Ne bis in idem and tax evasion in Romania: when can both ANAF and the prosecutor sanction you for the same facts?

1. What does ne bis in idem mean, in law and in practice?

Literally, ne bis in idem means “not twice for the same [thing]”. The principle exists in several layers of law:

• At the level of the European Convention on Human Rights (ECHR), it is enshrined in Article 4 of Protocol no. 7, which prohibits the repetition of criminal proceedings for an offence for which a person has already been finally acquitted or convicted. See, for example, the Grand Chamber judgment of the ECtHR in A and B v. Norway , which specifically concerned tax surcharges and criminal proceedings for tax fraud.
• At EU level, Article 50 of the Charter of Fundamental Rights of the European Union provides that no one shall be liable to be tried or punished again in criminal proceedings for an offence for which they have already been finally acquitted or convicted within the Union. The CJEU has developed an extensive case-law on this principle in tax and VAT matters, starting from the Åkerberg Fransson case and continuing with cases such as Menci, Garlsson Real Estate, Di Puma, bpost, Nordzucker and others. An accessible overview is provided in the Eurojust report “CJEU case law on ne bis in idem” (2024) and in the doctrinal article “Ne bis in idem and Tax Offences” (eucrim) .
• In Romanian law, the principle is reflected, among others, in Article 6 of the Code of Criminal Procedure (CPC) and is invoked by the High Court of Cassation and Justice (ÎCCJ) in several decisions when analysing overlaps between offences or between administrative and criminal sanctions. For example, the High Court has used ne bis in idem to avoid double punishment for essentially the same conduct in cases where special and general criminal provisions overlapped.

From a practical point of view, the principle protects you against being punished twice for the same conduct by criminal or criminal-type sanctions. It does not prevent the State from:

• assessing and recovering unpaid taxes as such;
• imposing compensatory interest for late payment;
• organising coordinated administrative and criminal proceedings, provided certain strict conditions are met.

The tricky part is that many tax penalties (surcharges, punitive interest, administrative fines) can be considered “criminal in nature” even though they are formally classified as administrative. European case-law looks at the substance of the sanction – its purpose (punitive vs purely compensatory), its severity and the procedure in which it is imposed – not just at its label in national law.

2. Tax and criminal proceedings in practice: ANAF, tax surcharges and tax evasion offences

To understand where ne bis in idem becomes relevant, it is important to see how tax and criminal mechanisms work in practice in Romania.

2.1. ANAF tax inspections and fiscal sanctions

ANAF (the National Agency for Fiscal Administration) checks whether companies and individuals correctly declare and pay their taxes. The rules on tax inspections, assessment decisions, interest and penalties are mainly found in the Fiscal Procedure Code (Law no. 207/2015), available (in Romanian) on the Portal Legislativ and on the official ANAF website.

After an inspection, ANAF may:

• issue an assessment decision for additional tax, if it finds that you have under-declared or not declared income or VAT;
• calculate interest and late-payment penalties for the period of delay, according to the percentages provided in the Fiscal Procedure Code;
• apply an additional non-declaration penalty for significant discrepancies between declared and actual tax;
• impose administrative fines for contraventions, for example for failure to keep certain records, to issue receipts, to respond to requests within deadlines etc. – based on either the Fiscal Code, the Fiscal Procedure Code or special legislation.

In recent years, ANAF has intensified its controls not only on classic economic activities, but also on revenues from e-commerce, platforms and online content (YouTube, TikTok, Instagram, OnlyFans, platforms for apartments or car rental, sale of crypto assets, etc.). ANAF has published various guides and information materials on its website to explain how such income should be declared and what the main risk areas are for individuals with economic activity on online platforms.

For a practical overview of how tax inspections work, what inspectors actually check and what your rights are, you can also read the article on ANAF tax inspections .

2.2. Criminal investigations for tax evasion under Law no. 241/2005

In parallel with tax tools, Romania has a special criminal law on tax evasion: Law no. 241/2005 for the prevention and combating of tax evasion. It is available (in Romanian) on Portal Legislativ.

Law no. 241/2005 defines several offences, including (in simplified terms):

• hiding taxable goods or sources;
• failure to record commercial operations or revenues;
• using fictitious invoices and sham operations to reduce tax base;
• VAT fraud schemes, carousel operations and similar conduct.

The penalties range from imprisonment to criminal fines, with different limits depending on the type of offence and the amount of the damage. There have also been reforms whereby, under certain conditions, full payment of the damage plus a surcharge can lead to a more lenient solution or even to avoiding imprisonment. The exact thresholds and solutions depend on the current version of the law and must be checked in the official up-to-date text on the official legislation portal. I cannot confirm the precise numerical thresholds here, because they are subject to relatively frequent legislative amendments.

In practice, ANAF and the criminal investigation bodies work together. When inspectors suspect that the conduct goes beyond mere negligence and reaches the threshold of tax evasion, they draw up a report and send a notification to the prosecutor’s office or the police, which can open a criminal case. The same underlying facts will then be at the centre of both proceedings:

• in the tax proceedings – to determine how much tax is owed and what fiscal penalties apply;
• in the criminal proceedings – to determine whether an offence under Law no. 241/2005 was committed and by whom.

2.3. Typical “double track” sequence in tax evasion cases

A typical scenario for entrepreneurs and individuals looks like this:

1. ANAF carries out a tax inspection for a certain period (for example 2019–2022).
2. The inspection ends with an assessment decision: additional tax plus interest, penalties and possibly a contravention fine for certain breaches.
3. At the same time or shortly afterwards, ANAF sends a notification to the prosecutor, describing the suspected offence (for example, repeated under-reporting of VAT combined with fictitious invoices).
4. A criminal investigation is opened for tax evasion. You are heard as a suspect, assets may be seized, and the case may be sent to court.

From your perspective, it may feel like you are being punished twice: once by ANAF (tax penalties and fines) and once by the criminal courts. Whether this is allowed depends on whether the combined effect of the two proceedings still respects the guarantees of ne bis in idem in European and Romanian law.

3. European case-law: when can tax and criminal sanctions be combined?

Both the ECtHR and the CJEU recognise that Member States may, in principle, use a dual-track system in tax matters: administrative/fiscal and criminal. However, they impose strict conditions so that this does not turn into prohibited double punishment.

3.1. When are tax penalties “criminal in nature”?

The first important question is whether the tax sanctions in question are “criminal” for the purposes of the ECHR and the EU Charter. The ECtHR uses the well-known Engel criteria (from the case Engel and Others v. the Netherlands), considering:

• how the sanction is classified in national law (administrative, contraventional, criminal);
• the very nature of the offence and the sanction (punitive and deterrent vs purely compensatory and reparatory);
• the degree of severity of the sanction that may be imposed.

Many tax surcharges and punitive penalties, even if called “administrative”, have a clear punitive and deterrent function and can reach very high amounts. In such cases, they are considered “criminal in nature” for the application of ne bis in idem. The same approach is reflected in CJEU case-law on VAT offences, as summarised in doctrinal analyses such as those mentioned above.

3.2. The key ruling of the ECtHR: A and B v. Norway

In A and B v. Norway (2016, Grand Chamber), the ECtHR examined a situation in which taxpayers had received administrative tax surcharges and had also been convicted in criminal proceedings for tax fraud based on the same facts. The Court held that:

• if the tax surcharges and the criminal conviction are part of an integrated system of sanctions and have a sufficiently close connection in substance and in time, their combination does not necessarily violate Article 4 of Protocol no. 7 (no prohibited ne bis in idem);
• however, if the second set of proceedings comes much later, is not coordinated with the first and leads to additional punishment for the same conduct, this may violate ne bis in idem.

The Court listed several indicators to assess whether the connection between the proceedings is “sufficiently close”:

• whether the proceedings pursue complementary purposes and are part of a coherent whole;
• whether the authorities coordinate and share information, avoiding duplication of evidence and contradictory findings;
• whether the additional burden imposed on the person is proportionate and not excessive in relation to the gravity of the conduct;
• whether the second proceedings take into account, when determining the sanction, what has already been imposed in the first.

3.3. The CJEU: VAT, EU financial interests and ne bis in idem

The CJEU has addressed similar issues in cases concerning VAT and the protection of the EU’s financial interests. In Åkerberg Fransson (C‑617/10) and subsequent cases such as Menci, Garlsson Real Estate, Di Puma, bpost and Nordzucker, the Court held, in essence, that:

• Member States may provide both administrative tax penalties and criminal sanctions for the same acts, especially to protect the EU’s financial interests (VAT, customs duties), but this may constitute a restriction of Article 50 of the Charter;
• such a restriction is acceptable only if it pursues an objective of general interest (such as the fight against tax fraud), is provided for by law and respects the essence of the right;
• the combination of sanctions must be proportionate: the overall severity must not exceed what is strictly necessary, and the authorities must ensure that the person is not punished twice in an excessive or arbitrary way.

The Eurojust report cited above and the doctrinal article “Ne bis in idem and Tax Offences” provide detailed, but still accessible analyses of these conditions and their practical implications for national tax and criminal systems.

3.4. Practical criteria you can keep in mind

Without going into all the technical details, some practical questions you and your lawyer should ask in any double-track tax case are:

• Same person? Are we dealing with exactly the same taxpayer (for example, the same company or the same individual)?
• Same facts? Are the tax and criminal proceedings based on the same concrete acts (period, transactions, undeclared income)?
• Nature of sanctions? Are the tax penalties purely compensatory (for example, interest) or clearly punitive (high surcharges with deterrent purpose)?
• Connection in time and substance? Are the tax and criminal proceedings coordinated, or does one come much later and add “another round” of punishment without real justification?
• Overall proportionality? Does the combined result (tax penalties + criminal punishment) remain proportionate to the gravity of the conduct?

The answers to these questions do not automatically solve a case, but they are essential starting points for building a defence based on ne bis in idem.

4. Romanian practice: where does the risk of prohibited double punishment arise?

Romanian case-law and doctrine in tax matters are gradually aligning with the European standards above, but there is still considerable debate and some lack of uniformity. In what follows, we describe typical risk situations, without pretending to provide an exhaustive overview of all court decisions. You should always check the most recent practice with your lawyer. Where there is no clear and stable case-law yet, I cannot confirm that all courts will decide in the same way.

4.1. Tax assessment plus criminal conviction for the same undeclared income

The most common situation is that ANAF carries out an inspection, establishes additional tax (plus interest and penalties) and then a criminal case is opened for tax evasion for the same period and transactions. As long as:

• the two proceedings are coordinated (for example, the criminal court relies on ANAF’s findings);
• the criminal court takes the tax penalties into account when determining the sentence;
• the overall result is not excessive in relation to the gravity of the facts;

the combination is generally considered acceptable under the criteria from A and B v. Norway and the CJEU’s case-law. In other words, the mere fact that you receive both a tax assessment decision and a criminal conviction does not automatically mean that ne bis in idem is violated.

4.2. Administrative fines (contraventions) and criminal proceedings

Another frequent scenario is that ANAF (or another administrative authority) imposes a contravention fine for certain breaches related to tax obligations (for example, failure to issue receipts, breaches of accounting obligations, failure to register), and later a criminal case is opened for tax evasion based on the same underlying conduct.

In such cases, the question is whether the contravention fine is “criminal in nature” for the purposes of ne bis in idem (using the Engle criteria) and whether the criminal case adds a second punishment for the same facts or only targets more serious aspects that were not fully covered by the contravention. Romanian courts may reach different conclusions depending on the specific legislation and the way the facts are described in each case. This is a typical area where defence based on ne bis in idem is litigated.

4.3. Repeated tax inspections or new penalties for the same period

The principle of ne bis in idem is closely linked to the principle of legal certainty and to the prohibition of abusive repeated proceedings. In tax matters, a practical issue is whether ANAF can carry out new inspections and impose new penalties for the same tax period and the same substantive facts once a previous inspection has been completed.

The Fiscal Procedure Code regulates the cases in which re-inspection is allowed (for example, when new information appears, when the initial inspection was clearly flawed, when there is a superior order). If ANAF attempts to reopen matters already definitively settled, and if the sanctions proposed in the new procedure are punitive and based on the same facts, it may be possible to invoke ne bis in idem in combination with rules on legal certainty and legitimate expectations. However, each situation must be analysed concretely, as the law does allow certain limited exceptions.

4.4. Overlaps between tax evasion and other offences

Romanian courts have also used ne bis in idem to avoid double punishment when the same conduct falls under both a special offence and a more general one (for example, in the area of offences affecting EU funds and classic fraud or forgery). In some decisions, the High Court has held that punishing the same conduct under both the special and the general offence would violate ne bis in idem and that only the special offence should apply.

Similar reasoning can be relevant where conduct related to tax evasion overlaps with other economic offences (for example, some corruption, fraud or money laundering offences). The defence may argue that applying both sets of provisions for essentially the same conduct would lead to prohibited double punishment. Courts will examine in detail whether the elements of the offences are indeed the same and whether each sanction genuinely targets something different.

5. How to raise ne bis in idem in your defence

The principle is not applied automatically. In practice, your lawyer has to identify the right moment and forum in which to invoke it, and support it with clear legal arguments and relevant case-law.

5.1. In tax proceedings: inspection, administrative appeal and tax litigation

During the tax inspection itself, ne bis in idem may be relevant mainly in situations of re-inspection or when ANAF attempts to impose new punitive sanctions for facts already sanctioned. Your lawyer can:

• point out, in written submissions, that the authority is reopening a matter already definitively settled and that the cumulative effect of repeated sanctions would be contrary to legal certainty and ne bis in idem;
• request that, when determining tax surcharges or fines, ANAF takes into account sanctions already imposed in other procedures, in order to avoid disproportionate overall punishment.

If ANAF issues an assessment decision or contravention report that you consider to breach ne bis in idem, you can raise this argument in the administrative appeal and, later, in administrative-tax litigation before the courts. The court can check whether the tax and criminal proceedings (or different tax proceedings) are compatible with the guarantees under the ECHR and the Charter.

5.2. In criminal proceedings: from investigation to trial

In the criminal case, the defence can rely on ne bis in idem in several ways, depending on the stage:

• During the investigation – by pointing out, in written submissions to the prosecutor, that the person has already been finally sanctioned by punitive tax measures for the same facts, and that criminal prosecution would therefore violate the prohibition of double punishment, in light of ECtHR and CJEU case-law.
• At the stage of preliminary chamber – by raising procedural objections based on ne bis in idem and requesting the termination of the criminal proceedings or, at least, a restrictive interpretation of the charges.
• At trial – by requesting that the criminal court takes due account of tax sanctions already imposed, both when assessing the criminal liability and when determining the sentence, thus ensuring that the overall punishment remains proportionate and does not amount to a prohibited second sanction.

In some extreme situations, if ne bis in idem has been ignored and you have been punished twice by final decisions, your lawyer may examine whether extraordinary remedies (such as revision or contestation in annulment) can be used to correct the situation. The admissibility of such remedies is strictly regulated by the Code of Criminal Procedure, and I cannot confirm in abstract terms that they will always be available. This must be assessed case by case, based on the concrete grounds listed in the Code and on the most recent case-law.

5.3. Using European case-law before Romanian courts

Romanian courts are obliged to interpret national law in conformity with the ECHR and the ECtHR’s case-law, as well as with the Charter and CJEU judgments, where EU law is applicable (for example in VAT, customs duties, EU funds). In practice, an effective defence based on ne bis in idem should:

• clearly identify which decisions of the ECtHR and CJEU are relevant (for example, A and B v. Norway, Åkerberg Fransson, Menci, Jóhannesson and others);
• explain how the facts of your case are similar to those examined by the European courts (for example, a taxpayer who has received heavy tax surcharges and is then prosecuted for the same conduct);
• argue why the conditions for acceptable dual proceedings (connection in substance and time, complementarity, proportionality) are not met in your particular situation.

European case-law evolves, and new decisions may refine the criteria for combining tax and criminal sanctions. It is therefore important that your lawyer uses up-to-date sources when building a defence strategy.

6. Practical examples for entrepreneurs and individuals

To better understand how ne bis in idem appears in practice, it can be helpful to look at some typical fact patterns. These are simplified examples meant for illustration, not real cases.

6.1. Example 1 – VAT surcharges and criminal prosecution

A VAT-registered company systematically under-declares outputs over several years by using fictitious invoices. ANAF carries out an inspection, recalculates VAT, imposes high surcharges and notifies the prosecutor’s office. A criminal case is opened for tax evasion.

From the company’s perspective, the question is whether the combination of tax surcharges and criminal penalties is allowed. Under the criteria from A and B v. Norway and the CJEU’s VAT case-law, the following aspects are important:

• Were the surcharges and the criminal prosecution provided for by law in a sufficiently clear and predictable way?
• Are the proceedings coordinated (for example, the criminal court uses ANAF’s findings instead of repeating all the evidence)?
• When determining the criminal sentence, does the court take into account the tax surcharges already imposed, to avoid excessive overall punishment?

If the answer to these questions is positive, the combination of sanctions may be considered compatible with ne bis in idem, even though it feels like “double punishment”. If not, the defence may argue that the criminal proceedings should be limited or terminated, or that the sentence should be significantly reduced.

6.2. Example 2 – Contravention fine and later criminal case

An individual with significant cash sales receives a contravention fine for failure to issue receipts and for breaches of accounting obligations. The fine is paid and the contravention report becomes final. Later, based on the same set of facts, the prosecutor opens a criminal case for tax evasion.

Here, the key questions include:

• Is the contravention fine “criminal in nature” (punitive and deterrent, with a high maximum amount)?
• Do the criminal charges refer to the same concrete facts (same period, same transactions) or to a broader pattern of conduct that was not addressed in the contravention procedure?
• Does the criminal court take into account the fine already imposed when determining the sentence, or does it essentially ignore it?

Depending on the answers, the defence may successfully argue that the criminal case constitutes a prohibited second punishment, or, alternatively, that the criminal sanction must be significantly reduced to remain proportionate in light of what has already been imposed.

6.3. Example 3 – New tax penalties after a criminal conviction

A company director is convicted for tax evasion related to a certain period and transactions. The criminal court orders payment of the damage and certain accessory amounts. Several years later, ANAF carries out a new inspection for the same period and imposes additional tax surcharges and penalties based on the same facts.

In such a situation, the arguments based on ne bis in idem and on legal certainty are particularly strong. The person can argue that the matter has already been definitively settled by the criminal judgment and that additional punitive tax sanctions for the same facts are not permissible. The precise outcome will, however, depend on the exact content of the criminal judgment, on what amounts were ordered to be paid and on the legal framework applicable at the time.

6.4. What you should (and should not) do if you are in this situation

If you have both tax and criminal exposure for the same conduct, a few practical recommendations are:

• Do not ignore tax proceedings because you are focused on the criminal case. The way you respond to ANAF (documents, explanations, appeals) may be crucial both for the tax outcome and for the criminal case.
• Consult a lawyer early, ideally one with experience in both tax and criminal law. Coordination between accountant, tax consultant and criminal defence counsel is essential.
• Keep a complete file with all tax and criminal documents (inspection reports, assessment decisions, minutes, orders, court judgments). Establish precisely which sanctions have already become final and for what facts.
• Discuss with your lawyer whether and how ne bis in idem can be invoked in your case. Sometimes it may be more effective to rely on this principle at the tax stage, in other situations at the criminal stage, or in both.
• Avoid “DIY” strategies such as uncoordinated payments or statements aimed at “fixing” the situation on your own. Improvised steps can complicate both tax and criminal proceedings.

7. Link with other remedies: classification, appeals, extraordinary remedies

Ne bis in idem often appears together with other defence tools and remedies in Romanian law. For example:

• In the tax sphere, you can challenge ANAF acts through administrative appeals and, subsequently, actions in administrative-tax litigation, where you can invoke both national and European guarantees.
• In the criminal sphere, prosecutors may decide to classify a case or to waive prosecution when conditions are met. The existence of definitive tax sanctions may be relevant when assessing the utility and proportionality of continuing the criminal prosecution.
• If a final judgment or decision appears to be contrary to ne bis in idem, your lawyer may examine whether extraordinary remedies such as revision or contestation in annulment are available. Their use is subject to strict statutory conditions, and not every incorrect or unfair solution can automatically be corrected by such remedies.

In all these contexts, the core idea is the same: the State is entitled to fight tax evasion, but it must do so in a predictable, proportionate way, without punishing the same person twice for the same conduct through independent and excessive sanctions.

8. Conclusions: what should you remember about ne bis in idem and tax evasion?

For entrepreneurs, freelancers and individuals with significant economic activity, the combination of ANAF inspections, tax penalties and possible criminal proceedings for tax evasion is not just a theoretical issue – it is often a matter of financial survival and personal freedom. From the perspective of ne bis in idem, the key points to remember are:

• You are not automatically protected against any combination of tax and criminal sanctions. European and Romanian law allow dual-track systems in tax matters, provided that the proceedings are coordinated and proportionate.
• The principle does, however, set limits. When the same person is subjected to successive or parallel punitive sanctions for the same facts, without sufficient connection in substance and time, and without proper coordination and proportionality, there may be a breach of ne bis in idem.
• Each case is highly fact-specific. The nature of the tax penalties, the chronology of the proceedings, the content of decisions already taken and the specific legal framework all matter.
• Early, coordinated legal assistance is crucial. A lawyer familiar with both tax and criminal law, who also uses up-to-date European case-law, can significantly improve your chances of avoiding or correcting prohibited double punishment.

If you are facing both ANAF proceedings and a tax evasion investigation, it is advisable to seek a detailed legal consultation, preferably before taking any major steps (signing inspection minutes, paying penalties, giving statements) on your own. Properly used, ne bis in idem is not a “magic wand” that automatically cancels all sanctions, but an important safeguard against abusive or disproportionate cumulation of tax and criminal penalties.

FAQ – Frequently asked questions about ne bis in idem and tax evasion in Romania

1. If I have already paid tax surcharges to ANAF, can I still be prosecuted for tax evasion?

Yes, it is possible. European and Romanian law allow, in principle, the combination of tax surcharges and criminal proceedings for the same facts, especially in serious tax evasion cases. The key issue is whether the two proceedings form part of a coordinated and proportionate system and whether the overall burden imposed on you is not excessive. If the criminal case comes much later, is not coordinated with the tax procedure and adds a clearly disproportionate punishment, there may be strong arguments based on ne bis in idem.

2. Are all tax penalties considered “criminal” for ne bis in idem purposes?

No. Interest for late payment is normally considered compensatory, not criminal. However, high tax surcharges and punitive penalties, especially those with a clear deterrent function and a high maximum amount, can be considered “criminal in nature” in the sense used by the ECtHR and the CJEU. Whether a particular tax sanction is “criminal” depends on its purpose, severity and the procedure by which it is imposed, not just on how national law labels it.

3. Can ANAF carry out a new inspection for the same period after a criminal conviction?

The Fiscal Procedure Code allows re-inspection only in limited situations (for example, when new information emerges or when the initial inspection was obviously flawed). If ANAF tries to impose new punitive tax sanctions for the same period and facts that have already been definitively settled in a criminal judgment, there may be a strong argument that this violates both legal certainty and ne bis in idem. However, the specific answer depends on the content of the criminal judgment and on the reasons invoked by ANAF for reopening the case.

4. Does ne bis in idem also protect me if I am first fined for a contravention and then prosecuted criminally?

It can, in some circumstances. If the contravention fine is “criminal in nature” (punitive, with a high maximum amount) and if the criminal proceedings concern essentially the same facts, a second punishment may be problematic. Courts will, however, look carefully at whether the criminal case targets a broader or more serious pattern of conduct than the contravention and whether the combined sanctions remain proportionate. You should discuss this with a lawyer, based on the exact legal provisions and facts in your case.

5. What should I do if I suspect that my case involves prohibited double punishment?

The first step is to gather all relevant documents (tax inspection reports, assessment decisions, contravention reports, criminal orders, court judgments) and to consult a lawyer experienced in both tax and criminal law. Together, you can analyse whether the conditions for permissible dual proceedings are met, whether there is a clear overlap of facts and sanctions, and at which stage (tax appeal, criminal investigation, trial, extraordinary remedies) ne bis in idem arguments should be raised. Acting early and in a coordinated way significantly increases the chances of an effective defence.