With Order No.
676/2016 filed on 4 March 2016, the Fifth Criminal Chamber of the Supreme Court
has referred the
following question to the Joint Chambers:
“Whether the amendment to Art. 2621 of the Civil Code by effect of
Art. 9 of Law 69/2015 which, in the part regulating “False company
communications” does not contain the wording “the subject of valuations”, has
partially abrogated the effect on the case.”
The decision of the Supreme Court stems from the need to settle the
discord arising within the Fifth Criminal Chamber itself, which in a little
under a month has arrived at two opposing solutions.
The first interpretation, confirmed with Judgement No. 6916/2016, and
even earlier with Judgement No. 33774/2015, supports the abrogating effect
caused by the elision of the wording “the subject of valuations.”
The Court reaches this conclusion using literal and systematic criteria.
On the one hand, the adjective “material” excludes the criminal
relevance of valuations (so much so that the legislator decided to replace information with facts in the
enabling law). On the other hand, the legislator has left Art. 2638 of the
Civil Code unchanged (heading “Obstructing public regulatory authorities
performing their functions”), which contains explicit reference to
valuations, moreover “to clarify the contents of the same expression - material
facts that are untrue.”
However, with Judgement No. 890/2016 the Supreme Court provided an
opposing interpretation: it is not possible to exclude so-called false
valuation because most of the items recorded in the balance sheet are the
result of a valuation, which is performed using predetermined parameters.
Consequently, the new wording of Art. 2621 of the Civil Code cannot have
a partially abrogating effect and the statement of facts that are the subject
of valuations still has criminal relevance.
The Joint Chambers will have (perhaps)
the last word.