Alternative dispute resolution in Romanian tax matters

1. What to remember if you read only one page

Romania formally has almost all the pieces of an alternative tax dispute resolution system. It has a procedure called "mediation" in the Fiscal Procedure Code. It has the individual advance tax ruling and the advance pricing agreement. It has the compliance notice issued before a tax inspection. It has the mandatory administrative challenge. And since 2019 it has the European mechanism for resolving cross-border disputes, with mandatory arbitration at the end.

It has the pieces, but not the mechanism. Each instrument is designed in a way that prevents it from producing the effect for which instruments of this type were invented elsewhere, namely closing the dispute through an agreement before it reaches court.

The difference is not about the quality of the administration's lawyers. It is about architecture. In Romania, the body that decides on the challenge belongs to the same administration that issued the act, there is no neutral third party in the internal administrative phase, and the tax claim cannot be the subject of a settlement, because art. 22 of the Fiscal Procedure Code exhaustively lists the ways in which tax claims are extinguished, and settlement is not among them.

The rest of this study explains how we got here, what can and cannot be negotiated with the Romanian tax authority, how the alternatives look in five European states, and what should change for the system to work.

2. Where the idea that a tax can be negotiated comes from

2.1. Tax as an act of authority, and the limit of that conception

The classical dogma of continental tax law says that tax is not negotiated. The tax obligation arises from the law, not from the will of the parties, and the administration has no power of disposal over the claim it administers on behalf of the budget. In Romanian law this idea has constitutional rank through art. 139 of the Constitution and is reflected in the principle of legality of taxation in the Fiscal Procedure Code.

The problem appears when theory meets practice. Determining a tax obligation involves two distinct operations, and only one of them is purely legal. The first is establishing the facts: what actually happened, what goods moved, what services were supplied, what the market value of a transaction between affiliated companies was, how many kilometres a car was driven for business purposes. The second is applying the rule to the facts thus established.

The legality of taxation governs the second operation. No one can agree that a 19% rate becomes 12% for a particular taxpayer. The first operation, however, is by its nature a matter of evidence and assessment, and where the evidence is uncertain or costly, mature legal systems have accepted that an agreement on the facts is preferable to a five-year lawsuit with an unpredictable outcome for both sides.

Germany formalised precisely this distinction. Starting from the principle of legality of taxation in § 85 of the Abgabenordnung, which rules out negotiation over the tax, the Bundesfinanzhof built the institution called tatsächliche Verständigung, the agreement on the facts. The limit was drawn just as clearly: the agreement cannot concern questions of law. The taxpayer and the inspector may agree that the goods were delivered; they may not agree on how to interpret the rule that applies to the delivery.

2.2. The three rationales that produced alternative resolution in tax matters

The first is economic and concerns the administration. A tax dispute costs the state money even when the state wins it. The cost includes the working hours of inspectors and legal advisers, expert fees, interest on sums refunded when the act is annulled, and above all the immobilisation of the disputed amount for the entire duration of the proceedings. The administrations that measured this cost reached the same conclusion: an agreement concluded early brings less to the budget than a total victory, but it brings it now and with certainty.

The second is legal and concerns the security of legal relations. A taxpayer who does not know, at the moment of taking a business decision, what tax treatment will be applied four years later, builds prices and margins on an assumption. If the assumption proves wrong at inspection, the correction comes with interest and penalties for the entire period. The instruments of advance certainty — advance rulings, advance pricing agreements and the various forms of ruling — emerged as a response to this temporal asymmetry.

The third is political and concerns legitimacy. A tax system in which the taxpayer has no real interlocutor between the inspector and the judge produces resentment, and resentment produces non-compliance. Northern European administrations built, from this observation, cooperative compliance programmes in which retrospective control is partly replaced by real-time supervision of the enterprise's internal tax control system.

2.3. What the OECD said

The modern conceptual architecture of this field comes from the documents of the OECD's Forum on Tax Administration. The 2008 study on the role of tax intermediaries introduced the concept of the enhanced relationship between the administration and large taxpayers. The 2016 report on building better tax control frameworks set out the criteria of a tax control framework and the conditions under which an administration can grant what the Dutch call justified trust. The December 2020 document, Tax Administration 3.0, moved the discussion towards compliance integrated into the taxpayer's IT systems.

This line of thinking explains Dutch horizontal monitoring, Austrian accompanying control, the French tax compliance review and the German pilot on tax control systems. It explains nothing of what happened in Romania, because neither the ANAF Strategic Plan for 2025–2028 nor the Reform Plan for the same period contains any reference to cooperative compliance, mediation, or reducing litigation volume as a distinct objective.

3. The general obligations — the dialogue the law already imposes

Before discussing the specific instruments, it is worth taking stock of the dialogue obligations the Fiscal Procedure Code imposes on the tax authority regardless of procedure. They do not constitute alternative dispute resolution, but they are the legal foundation on which any claim to negotiation rests, and in practice they are the most frequent ground of illegality raised in litigation.

3.1. The power of assessment and the duty of consistency

Art. 6 of the Fiscal Procedure Code requires the tax authority to assess the relevance of the facts within the limits of its powers and to ensure a fair proportion between the aim pursued and the means used. The text also contains a provision that taxpayers use too rarely: the tax authority must take into account the written opinion previously issued to the same taxpayer, as well as solutions previously adopted in similar situations, and if it departs from them, it must give written reasons.

This is, in Romanian law, the closest form of protection of legitimate expectations in the domestic tax procedure. A written answer from the regional directorate, a letter from the taxpayer assistance structure, or an earlier solution in an inspection report on the same company are not sources of law, but they generate a duty to give reasons for a change of position. Its breach is a perfectly usable ground of illegality.

3.2. The active role and access to the administrative file

Art. 7 requires the tax authority to examine the facts objectively and to inform the taxpayer of their rights and obligations. The same text provides for the administrative file to be made available to the taxpayer on request, and access was strengthened by Emergency Ordinance no. 188/2022.

Access to the file is, in practice, the taxpayer's most effective weapon in the administrative phase, because it directly activates the case law of the Court of Justice of the European Union. In case C-298/16, Ispas, a preliminary reference from Romania, the Court held that respect for the rights of the defence requires that the person be able to access, on request, the information and documents in the administrative file that were taken into account in adopting the decision. In case C-430/19, SC C.F. SRL, also a Romanian case, the Court went further and held that the refusal to communicate this information may lead to annulment, and VAT deduction cannot be refused on the basis of mere suspicions unsupported by evidence.

In case C-189/18, Glencore Agriculture Hungary, the Court added an element essential for Romanian practice: the administration cannot rely on findings from related administrative or criminal proceedings to which the taxpayer was not a party without giving the taxpayer access to that evidence and the possibility to contest it.

3.3. The right to be heard and the harm test

Art. 9 requires the tax authority to give the taxpayer the opportunity to express their point of view before the decision is taken, with the exceptions listed in the second paragraph, the most frequently invoked being the imminence of enforcement measures.

The sanction regime for breaching this obligation is, however, less favourable to the taxpayer than it seems. The supreme court adopted the test built by the Court of Justice in joined cases C-129/13 and C-130/13, Kamino International Logistics and Datema: breach of the right to be heard does not automatically entail annulment of the act, but only if, absent that irregularity, the procedure could have had a different outcome.

3.4. The final discussion in the tax inspection

Art. 130 requires the inspection body to communicate the draft tax inspection report and, together with it, the date, time and place of the final discussion. The taxpayer has five working days for the written point of view, seven working days for large taxpayers, with the possibility of a reasoned extension. The final discussion can be waived by notification.

Art. 131 completes the mechanism: the inspection report must contain the inspection body's opinion, reasoned in law and in fact, on the taxpayer's point of view. The assessment decision is issued within at most 25 working days from the closing of the inspection.

Here lies the central paradox of Romanian tax procedure. The final discussion is the only quasi-adversarial phase before the tax claim title is issued, but it is not a negotiation, because the inspector has no power of disposal over the tax base. He can be convinced that he was wrong, which sometimes happens, but he cannot agree on an intermediate outcome. The same meeting, in Germany, is called the Schlussbesprechung, is regulated by § 201 of the Abgabenordnung, and is the setting in which most agreements on the facts are concluded.

3.5. Good faith

Art. 12 provides that relations between the taxpayer and the tax authority are founded on good faith and that the taxpayer's good faith is presumed until proven otherwise. The text looks decorative and is not, because it combines with the Court of Justice's case law on the proportionality of penalties.

In case C-564/15, Farkas, the Court held that a 50% fine applied automatically, in a reverse-charge situation where there was no loss to the budget and no indication of fraud, goes beyond what is necessary. In case C-935/19, Grupa Warzywna, the same conclusion was extended to a 20% penalty applied indiscriminately, without distinguishing by the nature and gravity of the irregularity and without separating fraud from a mere error of classification.

These judgments are, legally speaking, the only area where EU law effectively opens a space for negotiation in tax matters, and that space is the amount of ancillary charges and penalties, not the tax base.

4. The specific obligations — the inventory of Romanian instruments

The existing instruments are spread over four moments of the tax relationship: before the transaction, during the audit, after the tax claim title is issued, and in the enforcement phase. We address them in this order, because the order corresponds to the moment when the taxpayer must decide whether to use them.

4.1. Before the transaction. The individual advance tax ruling and the advance pricing agreement

Art. 52 of the Fiscal Procedure Code regulates two distinct instruments. The individual advance tax ruling is the act that settles the tax treatment of a future factual situation. The advance pricing agreement establishes in advance that the prices charged with affiliated persons comply with the arm's length principle. Both are binding on and opposable to the tax authority, provided the established terms and conditions are respected, and produce effects only for the requesting taxpayer. Competence to issue them belongs to the Ministry of Finance.

The fees are significant: the advance ruling costs €5,000 for large taxpayers and non-residents and €3,000 for the rest, while the advance pricing agreement costs €20,000 for large taxpayers and €10,000 for the other categories, with €15,000 and €6,000 respectively for amending an existing agreement.

The APA procedure is detailed in ANAF President's Order no. 3735/2015. The advance-ruling procedure was approved by Minister of Finance Order no. 1178/2023 and provides for an issuance term of up to six months, the request having to be filed at least 90 days before the date on which the taxpayer intends to carry out the transaction. The Ministry of Finance put out for consultation in June 2026 a draft order intended to replace this procedure; its final publication must be checked before filing any request.

Usage remains, for now, marginal. The ANAF performance report for 2025 shows six advance pricing agreements concluded, of which one bilateral and five unilateral, plus another six at draft stage. The number of advance rulings issued is not reported separately, which is itself an indication of the priority given to the instrument. For comparison, the French tax administration received 22,341 tax ruling requests in 2023 and processed 21,285, with an average of 57 days for the categories where an answer is due within three months. The Netherlands received 586 requests for international rulings in the same year, of which 444 were granted.

4.2. Before the inspection. The compliance notice

Emergency Ordinance no. 188/2022 introduced art. 121^1, which requires the tax inspection body to notify taxpayers identified by risk analysis as presenting a tax risk, before selecting them for inspection. The taxpayer has 30 days from communication to re-analyse their situation and file or correct returns, and during this interval the inspection body takes no selection action. Filing or correcting does not prevent later selection if the risk persists.

The form and procedure were approved by ANAF President's Order no. 420/2023. For individuals, the equivalent mechanism is in art. 140^1(2). The notice is not issued in cases of insolvency, unannounced or urgent inspection, extension of the inspection beyond its initial object, or redoing of the inspection following annulment of the act in the challenge procedure.

The volumes show that this is, quantitatively, the most used preventive instrument in the Romanian system. ANAF issued 15,432 notices in 2024, for tax risks estimated at RON 4.64 billion, and 14,545 notices in 2025, for risks of RON 2,311.34 million.

4.3. After the tax claim title. The administrative challenge

Title VIII of the Fiscal Procedure Code, art. 268 to 281, regulates the administrative challenge. It is an administrative remedy and, at the same time, a condition of admissibility of the court action, without being an administrative-jurisdictional procedure. The consequence is that the body resolving the challenge does not enjoy the independence guarantees of an administrative jurisdiction.

The basic rules are as follows. The filing deadline is 45 days from communication of the act, on pain of forfeiture. The tax base and the claim established by the assessment decision are challenged together. Challenges against acts of the central tax authority are resolved by the specialised structure within the Ministry of Finance.

The challenger may request an oral hearing of the challenge, a request that must be made within 30 days of registering the challenge, on pain of forfeiture. This is the only oral and adversarial component of the administrative phase and it is, in our view, systematically underused. A well-prepared oral hearing, with a technical memorandum filed in advance, is the only occasion on which the taxpayer speaks directly to the person drafting the decision.

Filing the challenge does not suspend enforcement of the act. Suspension is requested from the administrative court under Law no. 554/2004, with a bond calculated on a percentage, degressive basis.

The resolution may consist of full or partial admission, rejection, or annulment of the act, in which case the tax authority issues a new act strictly observing the reasoning of the resolution decision. If the body does not resolve the challenge within six months of filing, the challenger may go directly to court.

An essential clarification came through Decision no. 20 of 20 March 2023 of the High Court of Cassation and Justice. The supreme court established that the grounds of illegality raised in the action for annulment are not limited to those raised in the administrative challenge. This ruling has an ambivalent effect. On the one hand, it protects the taxpayer, because the administrative phase has no preclusive effect on their defences. On the other hand, it reduces the stakes of the administrative settlement, because nothing that happens in the challenge definitively consolidates either party's position. A system in which the preliminary phase precludes nothing is a system in which the preliminary phase hardly matters.

4.4. In enforcement. The procedure called mediation

Here lies the instrument the Romanian legislator christened mediation and which is, in reality, something else.

The basis is art. 230^1 of the Fiscal Procedure Code, introduced by Law no. 30/2019. The same law amended art. 230 so that the enforcement summons must mention the possibility of entering a mediation procedure, and enforcement continues if, within 15 days of communication of the summons, the debt is not extinguished or the debtor does not notify the intention to mediate.

The procedure was approved by ANAF President's Order no. 1757/2019. The mechanism works as follows. The debtor files the notification within 15 days of communication of the summons, and from the date of notification enforcement is suspended by operation of law for the obligations listed in the summons. The tax authority informs the debtor within at most two days of receiving the notification, and the meeting takes place within at most ten days of the same date. Two representatives of the tax authority participate. Legal entities file the notification through the Virtual Private Space.

The meeting has two components: clarifying the situation of the obligations in the summons, if the debtor has objections, and analysing the debtor's economic situation, with a view to identifying optimal settlement solutions, including checking eligibility for payment facilities. The outcome is recorded in minutes. If no facility was granted, payment must be made within 15 days of the minutes, otherwise enforcement continues immediately.

Now, why it is not mediation. Law no. 192/2006 defines mediation as an amicable dispute-resolution method assisted by a specialised third party, under conditions of neutrality, impartiality and confidentiality, the mediator having no decision-making power. In the art. 230^1 procedure there is no third party. The tax authority is simultaneously creditor, party to the conflict, and conductor of the procedure, through two of its own officials.

Moreover, the object of the negotiation is limited to the manner of settlement, not the existence or amount of the claim. The procedure is triggered after the summons is issued, that is, after the claim title has become enforceable, by which point the 45-day challenge deadline has long expired in most cases. For these reasons, the name mediation is improper, and the operation correctly qualified is a direct negotiation with the creditor over the payment schedule.

There is a second, quieter signal. We have not identified any Romanian court decision in which the absence of the art. 230^1 mediation was raised as a ground in an enforcement challenge. An instrument that generates no litigation in seven years of application is either perfect or unused. The third signal is statistical: the ANAF performance reports for 2020 through 2025 do not report the number of mediation notifications filed, meetings organised, minutes concluded, or the success rate. An administration that does not measure an instrument does not consider it important.

4.5. Cross-border. The mutual agreement procedure and the European mechanism

Here lies the only procedure in Romanian law that actually has a neutral third party.

Title IX of the Fiscal Procedure Code was restructured by Government Ordinance no. 19/2019, which transposed Directive (EU) 2017/1852 on tax dispute resolution mechanisms in the European Union. Chapter I, art. 282 and 283, regulates the classic mutual agreement procedure, and Chapter II, art. 283^1 to 283^19, regulates the European mechanism.

The mutual agreement procedure in art. 282 was completely rewritten by Government Ordinance no. 11/2025. The affected person must present the case within three years of the first notification of the measure generating non-conforming taxation. Resolution requires the affected person to waive the right to pursue any other remedy, administrative or judicial. If no agreement is reached in time, ANAF initiates arbitration at the request of the affected person, under the 90/436/EEC Arbitration Convention and Directive 2017/1852. If there is a final court decision prior to the agreement, the procedure closes.

The most important amendment brought by the same ordinance is in art. 50(4), corroborated with art. 282(13): the decision resolving the mutual agreement procedure can now annul or amend the fiscal administrative act underlying the procedure. The old problem — the practical impossibility of enforcing the result of a MAP in domestic law — has thus been solved.

The European mechanism has a three-stage architecture with strict deadlines. The complaint is filed within three years of the first notification; the authorities confirm receipt within 60 days and decide on admissibility within 180 days. The mutual agreement procedure lasts two years, extendable by up to one year. If it fails, the taxpayer can request the establishment of an advisory commission, which is formed within at most 120 days and issues its opinion within 180 days, extendable by 90. The competent authorities then have 180 days for the final decision, and if they do not agree, the commission's opinion automatically becomes binding.

Use in Romania has grown visibly. The ANAF performance report for 2025 shows 45 MAP cases finalised, of which 34 concerning attribution or allocation of profits, plus 21 meetings with partner competent authorities.

At European level, however, the directive's mechanism is in a curious situation. The European Commission's report COM(2024) 494 final of 28 October 2024 shows that all Member States transposed the directive, but that, at the date of the report, no advisory commission had been established and no complaint had reached the arbitration phase. In 2023 the average time to close the complaint phase was 3.9 months across the Union, and the average duration for closing MAP cases was 10.9 months.

The correct reading of these figures is that the directive works through its shadow. The threat of mandatory arbitration pushes the authorities to close mutual agreement procedures on time, which is exactly the intended effect. It is the only mechanism in the entire landscape analysed here that produces results precisely because no one ends up using it all the way.

4.6. The substitutes for settlement — where one actually negotiates with the Romanian tax authority

Because settlement over the tax claim is prohibited, the Romanian legislator built a set of generally applicable facilities, granted unilaterally under strict legal conditions. In practice, these are the area where real discussions with the administration take place.

The classic payment instalment plan, regulated in Title VII Chapter IV, is granted for at most five years, with guarantees and a reduced late-payment penalty. The simplified instalment plan was made permanent by Government Ordinance no. 11/2021 and is regulated in art. 209^1 to 209^14. It is granted for at most 12 months, without guarantees, for obligations outstanding for at most 12 months before the request.

The restructuring of budgetary obligations, regulated by Government Ordinance no. 6/2019, is the most advanced quasi-transactional instrument in Romanian tax law. It addressed debtors with principal obligations outstanding of at least one million lei and allowed a restructuring plan of at most seven years, extendable to ten, with an advance payment of 5% to 15% and the cancellation of up to 50% of the principal obligations. The genuinely interesting element was the prudent private creditor test, which required a self-standing analysis demonstrating that recovery through restructuring exceeds recovery through enforcement or bankruptcy. This is the only construction in Romanian law that applies the economic logic of a settlement — comparing the present value of two scenarios — without calling it a settlement. The deadlines were successively extended, and the mechanism's current status must be checked before any move.

Tax amnesties have become, de facto, the main Romanian mechanism for closing disputes. Emergency Ordinance no. 69/2020 cancelled the ancillary charges related to obligations outstanding at 31 March 2020. Emergency Ordinance no. 107/2024 cancelled the ancillary charges related to principal obligations outstanding at 31 August 2024 and granted 50% or 25% reductions of principal for individuals. In July 2026 Parliament adopted a new amnesty law concerning assessments issued following the cancellation of VAT registration codes in the situations of art. 316(11)(a), (d) and (e) of the Fiscal Code, with refund of amounts already paid; the law's number and publication must be checked at the time of use.

5. What cannot be negotiated, and why

This section is the most important in the entire study for anyone building a defence strategy, because it delimits the available legal space.

5.1. The domestic prohibition. Art. 22 of the Fiscal Procedure Code

Art. 22 exhaustively lists the ways tax claims are extinguished: payment, set-off, enforcement, exemption, cancellation, limitation, transfer in lieu of payment, and other ways expressly provided by law. Settlement does not appear. The formula on other ways expressly provided by law is a reservation in favour of the legislator, not an open clause that would allow the tax authority to create a new mode of extinguishment by agreement. This is the principal and most solid basis for the unavailability of the tax claim in Romanian law.

Added to this is art. 2268(1) of the Civil Code, which prohibits settlement concerning rights the parties cannot dispose of under the law. The tax authority does not own the budgetary claim; it administers it, so it has no power of disposal over it.

We have not identified any Romanian court decision that expressly discussed the admissibility of a settlement between the taxpayer and the tax authority, either to admit or to reject it. The absence is itself significant: the issue does not reach the courts, art. 22 being considered decisive by all practitioners.

5.2. The exclusion of general-law mediation

Law no. 192/2006 provides in art. 2(4) that strictly personal rights and any other rights the parties cannot dispose of by agreement cannot be subject to mediation. Corroborated with the principle of legality of taxation, the text excludes substantive tax matters from the scope of general-law mediation. This explains why the legislator created a separate mechanism in art. 230^1 rather than referring to Law no. 192/2006.

The same limit carries into civil procedure. Art. 227(2) of the Civil Procedure Code allows the judge to invite the parties to an information session only in disputes that can, under the law, be mediated, which excludes the substantive tax dispute.

5.3. The external constraint. The State aid doctrine

Here lies the limit few Romanian practitioners take into account and which is, in reality, decisive for any future reform. The Court of Justice built, in four judgments, a doctrine that severely restricts a Member State's ability to grant individualised tax treatment by agreement.

In joined cases C-885/19 P and C-898/19 P, Fiat Chrysler Finance Europe, the Grand Chamber held on 8 November 2022 that, absent tax harmonisation, determining the constitutive features of the tax falls within the Member States' fiscal autonomy, and that for identifying the reference system the Commission must look exclusively to national law. In case C-457/21 P, Commission v Amazon.com, the judgment of 14 December 2023 confirmed and extended this line: parameters external to the national tax system, including the OECD Transfer Pricing Guidelines, can be considered only if the national tax system explicitly refers to them. In joined cases C-451/21 P and C-454/21 P, Luxembourg and Engie, the judgment of 5 December 2023 annulled the Commission's decision for error in defining the reference framework.

The counterpoint came through case C-465/20 P, Commission v Ireland and Others, known as the Apple case. On 10 September 2024, the Grand Chamber set aside the General Court's judgment, gave final judgment, and confirmed the Commission's decision, requiring Ireland to recover approximately €13 billion.

5.4. The Convention constraint. What the European Court of Human Rights says

The Strasbourg case law creates an asymmetry that any reform project must manage. In Ferrazzini v Italy (Grand Chamber judgment of 12 July 2001), the Court held that tax disputes do not fall within civil rights and obligations under art. 6 § 1, tax matters remaining in the hard core of public authority prerogatives. For the principal tax component, art. 6 does not apply, so waiving access to court through an agreement is not subject to that article's strict guarantees.

In Jussila v Finland (Grand Chamber judgment of 23 November 2006), the situation reverses for punitive tax surcharges, which constitute a criminal charge in the autonomous sense of the Convention. An agreement by which the taxpayer accepts the penalty and waives the challenge amounts, for this component, to a waiver of art. 6 guarantees. Such waivers are permitted, but under strict conditions: the waiver must be unequivocal, informed, and free of constraint.

In A and B v Norway (Grand Chamber judgment of 15 November 2016), the Court held that ne bis in idem is not breached by combining the administrative tax penalty with criminal prosecution, if the proceedings are sufficiently closely connected in substance and in time.

For a Romanian ADR mechanism, these three judgments translate into concrete design requirements. Any agreement including penalties must be accompanied by effective legal assistance, full information on the right to court being waived, the absence of any pressure derived from imminent enforcement, and a reflection period during which the taxpayer can withdraw. And any agreement must be coordinated with the criminal track, otherwise it risks either blocking the prosecution or itself remaining without effect.

5.5. The constitutional constraint. Can tax mediation be mandatory?

By Decision no. 266 of 7 May 2014, the Constitutional Court declared unconstitutional the provisions of Law no. 192/2006 that made participation in the mediation information session a condition of admissibility of the court action, for breach of art. 21 of the Constitution on free access to justice.

Read in isolation, this decision seems to block any mandatory tax mediation. The landscape has changed, however. In the judgment of 3 September 2024, case C-658/23, Investcapital, the Court of Justice held that mediation can be mandatory in Romania, provided the parties retain the effective possibility of going to court. The judgment continues the line opened by joined cases C-317/08 to C-320/08, Alassini and Others, and case C-75/16, Menini and Rampanelli.

The criteria resulting from this case law are clear and constitute, in our view, the legal window for any Romanian reform. A mandatory preliminary procedure is compatible with the right to court if it does not lead to a decision binding on the parties, does not substantially delay the court action, suspends limitation, does not generate significant costs, and is not available exclusively electronically. A mechanism built on these criteria would not reproduce the defects sanctioned in 2014.

6. How the alternatives look in five European states

We chose France, Germany, the Netherlands, Belgium and Luxembourg because they cover the entire spectrum of possible solutions, from the explicitly regulated settlement to the principled refusal of any negotiation, and because all five operate under the same EU-law constraints as Romania.

6.1. France. The most layered system, and the widest gap between law and practice

The French system has six overlapping layers. The first is the internal hierarchical recourse. The audited taxpayer can first address the divisional or principal inspector, then the departmental or regional interlocutor, a specially designated senior official distinct from the auditor's chain of command. The basis is the Charter of the audited taxpayer's rights and obligations, whose provisions are opposable to the administration. Breach of this guarantee vitiates the procedure.

The second layer is the joint advisory commissions. The commission for direct taxes and turnover taxes is chaired by the president of the administrative tribunal and includes three taxpayer representatives and two from the administration; it rules on facts without deciding questions of law. The departmental conciliation commission, chaired by a magistrate, intervenes in registration duties and successions. The abuse-of-tax-law committee has the strongest independence guarantees of all, composed of a Conseil d'État member, a Court of Cassation judge, a lawyer, a Court of Auditors senior member, a notary, a chartered accountant and a university professor. The commissions' opinions bind neither party, and the administration bears the burden of proof whatever the commission's opinion.

The third layer is the settlement proper, regulated in art. L. 247 of the Livre des procédures fiscales. Remissions of legally established direct taxes may be granted only where the taxpayer is unable to pay; remissions of fines and surcharges where the penalties are final; and, by way of settlement proper, a mitigation of tax fines or surcharges where those penalties are not final. The settlement cannot concern the principal.

The fourth layer is the most interesting, and has no legal basis. It is called the règlement d'ensemble and consists of a global compromise that also covers the principal — exactly what art. L. 247 prohibits. The French Court of Auditors found in its 2018 report that this practice rests on no clearly identified legal foundation, having been instituted by an internal note of 20 June 2004. The legislator's reaction was not prohibition but mandatory transparency, through an annual report to Parliament on remissions, settlements and global compromises.

The fifth layer is the departmental tax conciliator, competent on assessment, recovery and litigation matters, with a 30-day response commitment, but not independent, being an agent of the administration. The sixth layer is the tax ruling (rescrit), with thirteen categories. The element completely missing from Romanian law is tacit agreement: the administration's silence for three months counts as agreement in most categories. Volumes: 22,341 requests received and 21,285 processed in 2023. France also added the right to error and the tax compliance review, a voluntary ten-point audit with a concrete legal effect: if an adjustment concerns a validated point and the company followed the recommendations in good faith, the administration applies no penalties and no late-payment interest.

6.2. Germany. No settlement, but the most efficient administrative filter in Europe

The German model is built on the principled refusal of negotiation over the tax, through the legality principle of § 85 of the Abgabenordnung, combined with the strongest fact-agreement instrument in continental Europe and an administrative challenge procedure that actually works.

The agreement on the facts, tatsächliche Verständigung, is a creation of the Bundesfinanzhof. The validity conditions are three. There must be a hampered establishment of the facts, meaning an effort of work or time no longer justifiable, mere complexity not sufficing. An official competent to decide on the assessment must participate. And the result must not be manifestly incorrect. The agreement is recorded in writing, with clear warnings about its binding effect, and binds on the basis of good faith. The limit is absolute: there is no agreement on questions of law. These agreements are mostly concluded within the final discussion regulated by § 201 of the Abgabenordnung. German law placed factual negotiation inside the audit procedure, not after it.

For advance certainty, Germany has the binding information of § 89(2), which concerns future facts, is discretionary, carries a fee where the object's value exceeds €10,000, and knows no tacit agreement. The 2022 audit reform added, in § 199(2), the possibility of periodic discussions on findings and agreed framework conditions of cooperation. Germany has no general cooperative compliance regime; Austria does, through the accompanying control (§ 153a–153g of the Bundesabgabenordnung), which replaces the classic audit with continuous supervision for taxpayers above a turnover threshold, with a certified tax control system.

6.3. The Netherlands. The most flexible contractual instrument, and a retreat from cooperative compliance

Horizontal monitoring, horizontaal toezicht, was introduced as a paradigm shift from retrospective control to real-time supervision based on justified trust. The critical evaluation of 2012 flagged deficits of foundation and measurement, and the subsequent reform narrowed the architecture: the largest enterprises no longer receive an individual covenant but individual supervision plans, and medium-sized enterprises can participate only through a tax service provider.

Dutch tax mediation is frequently cited in Romania but deserves an exact description. The Belastingdienst offers mediation where the conflict goes beyond legal interpretation and also concerns how the taxpayer was treated. The mediator is independent, the procedure fast and free. The administration does not, however, publish the annual number of mediation cases, so the scale of use cannot be established from official sources.

The genuinely powerful Dutch instrument is the civil-law settlement contract, the vaststellingsovereenkomst, based on art. 7:900 of the Dutch Civil Code and applied in tax matters as the fiscal compromise. Unlike the German agreement, strictly limited to facts, it can also cover legal qualification, within the limits set by the Hoge Raad: the agreement is not opposable if it is so contrary to the law that the parties could not count on its validity, or if it offends public order or good morals.

The ruling practice was rebuilt with economic-substance requirements, dual collegial control and publication of anonymised summaries. In 2023, 586 requests were received and 444 granted. The challenge volumes show a system under pressure: 383,900 administrative challenges received in 2024, with 25,490 court actions; in 2025 challenges rose to 499,110 while court actions fell to 18,580.

6.4. Belgium. The only genuinely quasi-independent tax conciliation service

Belgium is, for Romania, the most relevant model, because it solved exactly the problem Romania has not: the independence of the body intervening in the dispute.

The tax conciliation service was created by the programme law of 25 April 2007. It operates within the federal finance administration and is led by a college of at least three and at most five members, named tax conciliators, with a renewable five-year mandate exercised full-time. Its competence covers VAT, income taxes, registration and succession duties, and the general law on customs and excise. The admissibility condition is that the complaint has already been filed and the possibilities of discussion with the administration have been effectively exhausted.

The conciliation report is not binding. It is a recommendation. The conciliator explains the legal context, proposes solutions and may make recommendations in equity. The service publishes annual activity reports, making it one of the few European structures that publicly measures this type of intervention. The law of 29 March 2018 created, within the same service, a cell for administrative penalties, competent over requests for remission or moderation of surcharges and fines, deciding in equity. For advance certainty, Belgium has the advance decisions service, with a pre-examination phase, collegial validation and systematic publication of decisions.

6.5. Luxembourg. A narrow system and an unprecedented policy reversal

Luxembourg remains governed by the German tax code of 1931, adopted and kept in force. The complaint to the director of the direct contributions administration (§ 228) is filed within three months; the director's silence beyond six months counts as implicit rejection and opens the judicial path. The gracious recourse of § 131 allows remission for excessive rigour, where a tax whose legality is not disputed would produce rigour incompatible with equity.

The advance decision is regulated in § 29a, with an advance decisions commission ensuring uniform application, a fee between €3,000 and €10,000, and a maximum validity of five fiscal years.

6.6. The comparative table

6.7. The European cooperative compliance programmes

Two programmes deserve mention because they define the direction the Union is moving in. The OECD's International Compliance Assurance Programme (ICAP) is a voluntary, multilateral risk-assessment mechanism, not a dispute-resolution one, with outcome letters carrying no binding legal effect. The European Trust and Cooperation Approach (ETACA) was launched as a pilot in November 2021; seventeen Member States expressed willingness to join the second pilot. The programme consists of a high-level risk assessment of transfer pricing policy, with no legal effect — operational predictability, not formal legal certainty.

7. How prepared is the Romanian tax administration

7.1. The normative framework. Enough to start, not enough for results

Romania has, on paper, more instruments than it uses. The compliance notice, the advance ruling, the APA with five-year retroactive effect and inspection suspension, the MAP with the power to annul the fiscal administrative act, the European mechanism with mandatory arbitration. All of these exist and none requires legislative amendment to produce effects. What is missing is a fact-agreement instrument in the audit phase, the German equivalent of the agreement on the facts. This gap cannot be filled by an ANAF president's order, because it requires an amendment to the Fiscal Procedure Code.

7.2. Institutional capacity. Indirectly measurable, and worrying

ANAF handled 114,660 court files in 2025, a figure covering administrative-fiscal, civil, criminal, insolvency and enforcement litigation. An administration managing such a volume does not have the capacity to absorb, in parallel, a new procedure requiring negotiation time, file preparation and individual decision ownership. Any reform ignoring this resource constraint will produce a formal procedure, ticked on time and without substance — exactly what happened with the 2019 mediation.

7.3. The independence of the deciding body. Formally improved, functionally unchanged

Transferring the challenge-resolution structure from ANAF to the Ministry of Finance was a correct and insufficient measure. Correct, because it took the challenge out of the perimeter of the institution issuing the act. Insufficient, because it moved it into the ministry — the hierarchy that coordinates the same institution and answers politically for budget receipts.

The comparison with Belgium is instructive. There, tax conciliators are appointed for five-year full-time mandates in an autonomous college. That is the minimal definition of independence, and it appears in no Romanian text applicable to the challenge-resolution structure. The 2.11% admission rate in 2025 does not by itself prove lack of independence. But the international comparison suggests otherwise: a German administration admitting 68% of resolved challenges does not have weaker inspectors — it has a resolution body that owns the correction of its own colleagues.

7.4. Measurement. The weakest area

The ANAF performance reports for 2020 through 2025 do not report the number of mediation notifications, meetings or success rates. They do not publish the absolute number of challenges filed and resolved, only a percentage indicator. They do not publish the total value of contested amounts, the stock of unresolved challenges, ANAF's success rate in court, or the number of advance rulings issued.

The comparison with France is direct. There, the annual publication of the number, total, median and average amounts of remissions and settlements, broken down by type and by tax, is a legal obligation, and the report can be debated annually in the finance committees of both chambers. An institution that does not measure an instrument does not manage it, and an institution that reports its performance through indicators built so that a low admission rate means success cannot develop a culture of agreement.

7.5. Institutional culture and declared priorities

The ANAF Strategic Plan for 2025–2028 and the Reform Plan for the same period contain no sections on mediation, cooperative compliance, or litigation reduction as a distinct objective. The emphasis falls on promoting voluntary compliance through digital services and risk-based notices. This choice is not illogical. The problem is that a mass instrument does not solve the individual dispute, and the individual dispute is exactly what ends up in court.

7.6. The conclusion of the assessment

The Romanian tax administration is not prepared for alternative dispute resolution, and the unpreparedness is first of all cultural and only secondly normative. The legal framework already allows more than is being done. What is missing is the political decision to measure, to grant the official a legally protected margin of appreciation, and to accept that an agreement concluded today at 60% of the claim is preferable to a 100% victory obtained four years later with unknown probability.

The last part is the hard one. An inspector who concludes an agreement takes a personal risk, because he can be asked why he yielded, while the inspector who issues the maximal decision and loses in court four years later is asked nothing. Until the system of individual accountability changes, no agreement instrument will work, however well drafted.

8. What would it achieve. Three scenarios

8.1. The minimal scenario. Activating what already exists

It requires no legislative amendment — three administrative decisions. The first is publishing the statistics: challenges filed and resolved, contested amounts, the stock, court success rates by category, mediations and their outcomes, advance rulings issued. Publication costs nothing and completely changes the discussion, because it makes visible where the money is lost. The second is actively promoting the APA after the July 2025 reform: six agreements per year in an economy of Romania's size is a figure explained not by lack of demand but by lack of supply. The third is generalising the oral hearing of the challenge, with ex officio summoning of the taxpayer in files above a value threshold.

The estimated impact is modest but real. Raising the challenge admission rate from 2% to 8% would mechanically reduce the inflow of new court files, and publishing the statistics would create the pressure needed for the next steps.

8.2. The intermediate scenario. An independent tax conciliator

It requires amending the Fiscal Procedure Code, on the Belgian model. The minimal elements: a college of three to five conciliators, appointed for fixed five-year full-time mandates, in an autonomous structure. Competence in the administrative phase, after the challenge is filed and before the court is seized. A non-binding opinion, with the resolution body required to give express reasons for departing from it. Suspension of the challenge-resolution deadline during conciliation, with a strict cap. An annual report with figures.

Such a mechanism would survive the constitutional test even if made mandatory, provided it observes the criteria in the Court of Justice's case law in Alassini, Menini and Investcapital. The impact depends on the agreement rate obtained in conciliation. Even taking over 10% of the files that reach court today would mean over ten thousand files per year.

8.3. The ambitious scenario. Agreement on the facts and cooperative compliance

It requires two structural interventions. The first is introducing an agreement on the facts into the Fiscal Procedure Code, built strictly on the German model: hampered establishment of the facts, participation of an official with decision power over the assessment, written form with an explicit warning of binding effect, and an absolute prohibition on covering questions of law. The optimal moment of conclusion is the final discussion of art. 130, which would thus gain real content. This construction is the only one simultaneously compatible with art. 22 of the Fiscal Procedure Code — because it creates no new mode of extinguishing the claim, but fixes the factual premise on which the claim is calculated according to the law — and with the State aid doctrine, because it does not derogate from national law.

The second is a cooperative compliance framework for large taxpayers, with certification of the internal tax control system, continuous supervision instead of periodic inspections, and objective, published eligibility criteria. The Austrian accompanying-control model is more suitable than the Dutch one, because it is legislated, not contractual, and has objective access thresholds.

The risks of this scenario must be stated openly. The first is capture — turning the programme into a channel of favourable treatment for the big players; the remedy is publishing the criteria and the list of participants. The second is overload of an administration already failing to cope; the remedy is phasing, with a two-to-three-year pilot. The third is the criminal track: a tax agreement uncoordinated with the prosecution may be ineffective or may block the prosecution; the remedy is an express delimitation clause, in the light of A and B v Norway.

8.4. What would not work

It is worth saying what is not worth trying. Extending Law no. 192/2006 mediation to tax matters would not work, because the general-law mediator cannot conciliate a claim the tax authority cannot dispose of; the problem is not the lack of mediators but the lack of an object of mediation. A mandatory mediation built as an admissibility filter would not work without the guarantees in the Court of Justice's case law, because it would fall at the first constitutionality review. Nor would a general tax settlement over the principal work, because it would walk straight into the Apple scenario: an individual agreement derogating from national law, attackable as State aid.

And the periodic tax amnesty does not work, although it is practised. Each amnesty teaches taxpayers that it is rational not to pay and to wait, and this learning effect accumulates. An amnesty is alternative dispute resolution without the alternative — a collective renunciation of any individual discussion about the correctness of the assessment.

9. What the taxpayer can do today

This section is written for practitioners and finance departments. The order follows the chronology of a tax relationship.

• Before a significant transaction. Check whether the situation lends itself to an individual advance tax ruling. The €3,000 or €5,000 fee looks large until you compare it with four years of ancillary charges on a wrong position. The request must be filed at least 90 days before the transaction, and issuance takes up to six months, so planning must start three quarters of a year ahead.
• If you have significant intragroup transactions. Reassess the APA in the light of the July 2025 amendments. The retroactive effect of up to five prior fiscal years and the suspension of the inspection during the request completely change the cost-benefit ratio.
• Build the file of written opinions. Art. 6 requires the tax authority to take into account the written opinion previously issued and solutions previously adopted in similar situations, and to give written reasons if it departs from them. Any written answer received from an ANAF structure, any earlier inspection report validating a treatment, must be archived and invoked. It is the cheapest form of protection available.
• If you receive a compliance notice, treat it as an announced inspection. You have 30 days to correct voluntarily, without an inspection report and without penalty. It is the only moment when you control the calendar.
• During the inspection, request the administrative file. Art. 7 gives you the right, and Ispas and SC C.F. SRL consolidate it. If the administration relies on findings from a related procedure to which you were not a party, invoke Glencore Agriculture Hungary and request access to that evidence.
• At the final discussion, build the harm test. Do not formally invoke the right to be heard. Show concretely what document you would have submitted, what it would have proven, and how it would have changed the conclusion.
• Request the oral hearing of the challenge. The deadline is 30 days from registering the challenge, on pain of forfeiture. It is the only moment when you speak directly to the person drafting the decision. Prepare a short technical memorandum and focus on two or three points.
• Separate principal from ancillary charges in your defence strategy. On the principal, the negotiation space is practically nil and the defence must be built legally. On ancillary charges and penalties, Farkas and Grupa Warzywna open a proportionality argument that works, especially where there is no loss to the budget and no indication of fraud.
• If the dispute has a cross-border component, do not miss the three-year deadline. The MAP and the European mechanism are triggered within three years of the first notification of the measure. Beware of incompatibility: accepting the result requires waiving the other remedies, and a prior final court decision closes the procedure.
• Under an enforcement summons, notify the intention to mediate within 15 days. Even if the procedure is not real mediation, the notification suspends enforcement by operation of law for the obligations in the summons. Legal entities file through the Virtual Private Space. Do not miss the deadline — there is no restoration.
• Do not build your strategy on the assumption of a future amnesty. Amnesties have strict cumulative conditions, generally exclude obligations subject to criminal proceedings, and have short deadlines. They are a lifeline, not a plan.

10. Conclusions and proposals

Romania has a tax dispute resolution system that produces exactly the result it was designed for: it transfers almost all disputes to court. The figures leave no room for interpretation: a 2.11% administrative admission rate and 114,660 court files describe a system in which the administrative phase is a formality of passage.

The instruments bearing the name of alternative resolution are not alternative resolution. The art. 230^1 mediation is a negotiation about the manner of payment, conducted with the creditor itself, after the claim has become enforceable. The challenge is an internal administrative recourse without a neutral third party. The final discussion is a right to be heard without decision power on the other side. The only authentic mechanism, with an independent third party and a binding decision, is the cross-border one — and it has never been used to the end anywhere in the European Union, which is, paradoxically, proof that it works.

The underlying blockage is not the officials' lack of will. It is a combination of three mutually reinforcing factors. Art. 22 of the Fiscal Procedure Code makes the tax claim unavailable, so there is no object of settlement. The resolution body has no independence guarantees, so it cannot correct systematically. And the system of individual accountability penalises agreement and tolerates defeat in court four years later, so nobody has an interest in concluding an agreement.

Until these things happen, the practical advice for any taxpayer remains the same. Use the preventive instruments, because they are the only ones that work; document the administrative phase rigorously even if you expect no result there; and build the file from day one for court, because that is where the decision will be made. It is not a comfortable conclusion. It is, however, the one the figures support.

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