Legal Challenges Connected with the RO e-Transport System

Written by: Cosmin Flavius Costaș and Miruna Mihuță

The RO e-Transport system was implemented with the adoption of the Emergency Ordinance no. 41/2022 on the establishment of the national system for monitoring road transport of goods ("RO e-Transport" System). This system aims to monitor the transport of goods with high fiscal risk, in order to streamline the collection of taxes and fees due to the state budget, but also to prevent fraud in the field of trade in goods of this kind, materialized through tax evasion and fraud. Through this system, tax authorities have the possibility to determine potential diversion points in the supply chain of transported goods based on the ITU code, generated based on the data recorded by the users of goods.

Goods with high tax risk include food products, such as vegetables, plants, edible fruits, clothing and clothing accessories, as well as materials such as steel or iron. 

In essence, the users provided for in art. 8 para. (1) of GEO no. 41/2022, including beneficiaries in Romania (in the case of intra-community purchases of goods), suppliers, warehouses or consignees registered in the import customs declaration, are obliged to register in the RO e-Transport system the data relating to the transport of goods with high fiscal risk. Based on the recorded information, the ITU code is generated, which will be made available to the transport operator, and then presented by the driver of the transport vehicle to the competent bodies of the National Agency for Fiscal Administration or of the Romanian Customs Authority or to the police agents and officers of the Romanian Police.

On the other hand, road transport operators have a correlative obligation, namely to ensure the transfer of the positioning data of the transport vehicle throughout the journey and to equip its vehicles with devices enabling the vehicle to be located.

Although this system seems to be innovative, especially from the perspective of reducing tax fraud and evasion, it entails a series of risks for beneficiaries, but also for carriers alike, in light of the obligations attributed to them under GEO no. 41/2022. The risks are generated by the ambiguity of the language used by the legislator in the regulation of the RO e-Transport system, but also by recent practice, which demonstrates the difficulty of implementing this system.

The risk applicable to both beneficiaries and carriers is that the competent bodies will hold back from committing the contraventions provided for by GEO no. 41/2022 even if they commit it through negligence, as the legal text does not qualify the subjective side of these contraventions. The legislator provided only for the sanctions provided for in case of recidivism, establishing a progressive sanctioning regime, depending on the number of contraventions committed, and the sanction of fine and confiscation of 100% of the value of the declared goods could be applied.

As for the beneficiaries, the main category that could face difficulties are the individual beneficiaries, of transports of goods with high fiscal risk in small quantities, based on online orders. Thus, pursuant to GEO no. 41/2022, including them, have the obligation to generate a UIT code related to the goods they purchase, being necessary to include all information regarding the means of transport, the goods delivered, as well as any other information necessary to identify the transport. However, objectively, they cannot find out all this information, since the delivery of goods is usually facilitated by a third-party transport service (e.g. courier service). Therefore, they are objectively unable to generate the ITU code, but at the same time liable to a sanction.

As regards road transport operators, there are risks regarding their obligation to ensure the operation of vehicle tracking devices, as they are obliged to equip themselves with technical infrastructure on an ongoing basis to ensure the traceability of the transport of goods.

Last but not least, from the perspective of the driver of the transport vehicle, if for reasons not attributable to him, he presents a wrong UIT code, the act consisting of not presenting the UIT code corresponding to the transport of goods will be retained. Or, most of the time and based on recent practice, the ascertaining agents do not proceed to a concrete finding of the facts, with the individualization of all the circumstances in which a contravention was committed and they easily retain these contraventions.

Costaș, Negru & Asociații provides legal assistance for all cases related to this new legal challenge.