Article 18 ind. 2 of Law no. 78/2000. A few "omissions" by the current criminal law doctrine

Abstract

One of the most alarming (and constant) problems the European Union along the years is related to the actions that affect its own budget. In order to dissuade citizens of the Member States from behaving against the European Union’s (at that moment the European Communities') financial interests, in 1995, the Convention on the Protection of the European Communities' Financial Interests (PFI Convention) had been adopted. Inter alia, the PFI Convention elaborated a criminal-law mechanism meant to protect the European Union’s (at that moment the European Communities’) budget and prevent further harm.

Article 18² of Law no. 78/2000 incriminates the misapplication of funds from the European Union’s budgets (the general budget of the European Union or budgets managed by, or on behalf of the European Union) for purposes other than those for which they were originally granted, as well as a misapplication of a legally obtained benefit which has as an effect the illegal diminution of the resources of the general budget of the European Union or budgets managed by, or on behalf of the European Union.

In a regrettable and easily-criticizable manner, the Romanian legislator chose to incriminate under the same Article (18²) a crime in respect of expenditure [para. (1)] and one in respect of revenue [para. (2)], ignoring by all means the coherent regulation drawn by the PFI Convention.

Article 1 of the PFI Convention incriminates at point 1 (a) three acts in respect of expenditure, whereas at point 1 (b) three acts in respect of revenue, all affecting the general budget of the European Union (the former European Communities') or budgets managed by, or on behalf of the European Union.

Even though all six crimes pointed out in Article 1 point 1 (a) and (b) have been incriminated in the Romanian legislation, it was done in an incoherent and confusing manner, as follows: art. 18¹ of Law no. 78/2000 incriminates the first two crimes in respect of expenditure regulated by Article 1 point 1 (a) of the PFI Convention, art. 18³ of Law no. 78/2000 the first two crimes in respect of revenue regulated by Article 1 point 1 (b) of the PFI Convention, whereas art. 18² of Law no. 78/2000 incriminates in para. (1) the last crime in respect of expenditure regulated by Article 1 point 1 (a) of the PFI Convention and in para. (2) the last crime in respect of revenue regulated by Article 1 point 1 (b) of the PFI Convention.

As expected, placing a crime in respect of expenditure and one in respect of revenue under the same article (18²), had dramatic consequences in the national case-law. In the present paper we shall focus and analyse this aspect as well.