Greece / The Council of the State / 359/2020

 

The decision at hand was reached by the plenary of the Greek Supreme Administrative Court (Council of the State – Συμβούλιο της Επικρατείας), following a decision by the referring Chamber B of the Court, in order to resolve issues related to the interpretation of the ne bis in idem principle. In accordance with the facts of the case, the appellant, a trader and importer of goods, imported in the year 2000, a large number of lighters, allegedly from Indonesia, and provided the Greek customs authorities with an invoice marked as “issued retroactively”. As a result of the special status afforded to Indonesian goods, the lighters were subject to smaller duties than if they originally came from another country. Following an audit, the customs authorities reached the conclusion that the invoice produced was false, the lighters were in fact imported from China, and the appellant had fraudulently paid less than the lawfully mandated duties. As a result, the customs authorities levied multiple fines on her, which she subsequently petitioned against before the administrative courts, citing, among others, a final decision of the Greek criminal courts which found her to be not guilty of the charges of illicit import of goods and forgery of documents. Her appeal was rejected following a fresh consideration of the facts of the case by the administrative courts, which found that she had, in fact, committed the impugned offences despite the criminal courts reaching the opposite conclusion. This is the decision complained against in the proceedings at hand.

 

The Court was called to answer the question whether the imposition of multiple administrative fines on the appellant, multiple years after her final acquittal of illicit import and forgery charges by the Greek criminal courts, violates the ne bis in idem principle.

 

The Court accepted the appellant’s argument that the appealed decision applied the law in a manner which violates the ne bis in idem principle, as enshrined in article 4(1) of Protocol No 7 ECHR and primary EU law. It, consequently, found that the decision should be appealed as regards its portion which relates to the levying of multiple fines, and reverted the case to Chamber B to adjudicate the issue of lost public revenue (in tax and duties). Specifically, the Court considers the administrative judge as the “natural” judge in citizens’ disputes with public authorities, such as the one at hand. Nevertheless, the legislator is not precluded from instituting criminal proceedings in addition to the administrative ones in cases where the disapprobation of the act committed renders the former appropriate, as long as the provisions of article 4(1) of Protocol No 7 ECHR and article 50 CFREU are respected. In the present case, the Court found that the two proceedings, administrative and criminal, pursue the same punitive aims, and do not concern different aspects of the same misconduct. Moreover, the two proceedings do not have a close temporal link, seen as the criminal proceedings concluded 15 years prior to the administrative trial in question, nor does the relevant legislative framework ensure that the outcomes of the criminal trial are taken into account in a manner which ensures that the overall amount of penalties imposed is proportionate.