CANCELLATION OF THE EXCESSIVE FINE OF THE NATIONAL INSURANCE BODY WITH PETITION
28 Mar 2019 -- Posted by :
In recent years, the treatment of uninsured employment with the imposition of a fine on the employer has been converted into a collection measure by the National Insurance body. This imposition without exception of the excessive and unbearable fine of about 10.500 euros for each undeclared employee, have become the nightmare of every employer who struggles to maintain his small business.
Most of the time, the National Insurance officers literally enter to stores and businesses and without any dialogue and investigation into whether the employee is indeed undeclared, refuse to hear explanations and impose fines, which are impossible to be paid and that also in some cases will lead the business or store to close.
This occurred especially during the summer in the tourist areas of the country, where small businesses in order to remain open, due to the burden of the operating expenses that has, relatives and friends helped in any way they could, being inside the store, but not by providing work with the narrow sense of the law.
As long as employees are inside a store without their name on the personnel board, they can be considered undeclared workers, and National Insurance officers can impose a fine due to the unrestricted power given to them by law to impose a fine.
The employer has the right to challenge the fine with an administrative petition within 60 days from the day he was notified. At the same time, he can file a request for suspension, so that the fine will not be confirmed to the tax authorities until the decision on his petition is judged and issued.
If he does not file a petition within 60 days, he misses every opportunity to be vindicated and will have to pay the fine immediately and within 10 days to at least take advantage of the law’s provision of 30% discount of the one-time payment. The reasons that the employer can invoke vary depending on the case. In practice, he will have to prove whether the conditions of the employment relationship that justify the fine were met or not. It is obvious that the above provisions are met and therefore justify the imposition of a fine if there is an employee that has a contractual employment relationship, as it has been defined by the legal theory and case law.
An additional reason for such petition is the excessive and disproportionate fine imposed without distinguishing among the different cases of offenders. The fact that the fine is the same for everyone is in conflict with the fundamental principle of proportionality, according to which the restrictions imposed by the common legislator and the administration on the exercise of individual rights must be only the necessary ones and be in accordance with the purpose of the law.
A sanction for breach of a legal provision is contrary to the principle of proportionality, when by its type or nature, is manifested in an inappropriate manner to achieve the intended purpose or when the adverse consequences of the sanction are in obvious disproportion or exaggerate the intended purpose.
Two other basic principles that are usually violated with the way a fine is imposed are the principle of prior hearing of the citizen and the principle of complete and thorough justification, which must be present in all administrative actions.
The constitutional right of the previous hearing of the citizen, preserved in Article 20 para. 2 of the Constitution, is provided, initially, in any case that an adverse administrative action is to be brought against the citizen. This occurs even if the right to file an administrative petition (specific, legal or substantive) is provided against the administrative action. This stage is no longer sufficient to cover the above constitutional requirement.
The fine is also annulled when it is imposed due to misinterpretation of the law and misconduct in an unjustifiable and arbitrary manner and in violation of the principle of fair administration, which is held under the Administrative Law. Based on this principle, the citizen justifiably expects and trusts that the administration will act lawfully during the investigation and sanctioning processes and that it will not be arbitrary to the detriment of the citizen.