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Public Finance order to ban alcohol and tobacco commerce in duty-free shops was overruled in court

de V.M. transl/adapt. C.B.
Joi, 18 martie 2010, 19:07 English | Business

The Romanian Public Finance Ministry's order regarding border register for goods sold in duty-free shops which banned selling tobacco and alcohol was suspended by the Appeal Court in Ploiesti (south), Mediafax informs. The decision is not final, but it has to be enforced. The MFP has the right to appeal against the decision to the High Justice Court.

The Ploiesti Appeal Court decisions follows the request submitted by SC E. SA, which asked to suspend the execution of the 202/12 February 2010 Order issued by the Public Finance Ministry, through which the MEF 2007/2008 order annex was changed.

The annex featured the list of goods that can be commercialised in a duty-free regime. The change saw that all types of alcohol and tobacco crossed out of this list. MFP ruled the order published in the Official Monitory on February 12 this year, which also entailed that the crossed-out products could not be transferred between the stores of the same chain and a deadline of 45 days was to see these particular stocks emptied. After the deadline, the selling of tobacco and alcohol in the duty-free regime was banned entirely.

The commercial Society explained to the court that it contested the 202/2010 Order after a complaint submitted with the MFP on February 16 2010, which read that this normative act breached legal dispositions regarding owned rights, like being the owner the authorisation for the activity of duty-free stores located with terrestrial border pass points, obtained by the Society using the OUG 104.2002 legal aspects.

SC E. SA claimed that the contested role ruled by the MFP goes beyond the legal and constitutional competence, because Constitution articles 45 and 53 say that the exercise and economic freedom of an economic operator cannot be restricted unless the Parliament emits a law or a judicial act with the same force these conditions cannot be fulfilled by a ministerial order, but by issuing this order, MFP substituted the legislative authority.

When ruling out the suspension decision, the Court also appreciated that the MFP Ordered has brought material prejudice to the claimant, which diminished its patrimony, not being able to sell goods which the Society was authorised to sell.  

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