Greece / Council of State / 1741/2015 Director of 7th Customs of Independent Custom Groups of Piraeus v natural persons

Key facts of the case:

By decision No 28/98/20.5.1999 of the Director of the 7th Customs Office of the Customs Complex of Pireus, multiple penalties were imposed on a company that made available in the internal market petrol that was the result of smuggling. The Administrative Court of Pireus confirmed the decision. The Administrative Court of Appeal of Pireus (judgement 793/2011) accepted the appeal of the company and annulled the decision. The Council of State annulled the decision of the Administrative Court of Appeal and required the company to pay the fines imposed due to smuggling independently of the fact that the penal courts acquitted the company in question.

The provisions of the Customs Code and Law 2127/1993 on penal procedures in the event of smuggling are application of the law of the EU in the sense of art. 51 para. 1 of the Charter. The administrative court is not bound by a previous decision of a penal court unless it is an irrevocable conviction, and an acquittal decision can be taken into account when formulating its judgement. This differentiation does not contravene arts. 4 para. 1 and 20 para. 1 of the Constitution.  

Outcome of the case:

The double penalty (monetary fine and penal sentence) imposed for smuggling cases does not contravene European and Greek legislation nor the decision of the Court of the European Union and the European Court of Justice (C-617/10, Hans Akerberg Fransson 26.2.2013). It is not a second sanction for the same crime and does not violate the ne bis in idem principle. To the extent that the sanction of multiple fees does not have a penal character, there is no case for application of the ne bis in idem principle consolidated in article 4 para. 1 of the Seventh Protocol of the ECHR and article 50 of the Charter of Fundamental Rights of the EU. The Court overturned the judgement of the Administrative Court of Appeal of Piraeus that decided the opposite and obliged a petrol company to pay the fine imposed by the Customs Office for smuggling despite the fact that the penal courts had acquitted the company. The case is referred to the Administrative Administrative Court of Appeal of Piraeus for a new judgement. 

Paragraphs referring to EU Charter: 

 

7. As art. 4 para. 1 of the Seventh Protocol to the European Convention on Human Rights ratified by law 1705/1987 (OG Α΄89) stipulates that … The above provision expresses the ne bis in idem principle to which the court refers and that constitutes a general principle of the law of the European Union …  and is confirmed in article 50 of the Charter of Fundamental Rights of the European Union (2000/C 364/01), having the formal status of a fundamental right of the Union.

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10. As the previously mentioned provisions of the Customs Code (arts. 89 ff) applicable during the period in question and Law 2127/1993 on multiple fees and initiation of the penal procedure, which are, according to what was previously said, applicable in the event of breach of community customs law and national provisions on Directive 92/12/EC, constitute a breach of the law of the European Union in the sense of art. 51 para. 1 of the Charter of Fundamental Rights of the Union. Consequently, the rules set by the provisions in question need to comply with the requirements that derive from the Charter with regard to the respect for fundamental rights consolidated there.

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12. As, with regard to the ne bis in idem principle consolidated in art. 50 of the Charter of Fundamental Rights, the Court of the European Union, in its previously mentioned decision of 26.2.2013, C-617/10, Hans Akerberg Fransson, on a question made by Haparanda Τingsr.tt of Sweden in the context of a criminal trial on tax evasion and more specifically, on the submission of inaccurate income tax reports and VAT, accepted among others, the following: “34. … Art. 50 of the Charter does not preclude a Member State from imposing, for the same acts of non-compliance with declaration obligations in the field of VAT, a combination of tax penalties and criminal penalties. In order to ensure that all VAT revenue is collected and, in so doing, that the financial interests of the European Union are protected, the Member States have freedom to choose the applicable penalties... These penalties may therefore take the form of administrative penalties, criminal penalties or a combination of the two. It is only if the tax penalty is criminal in nature for the purposes of art. 50 of the Charter and has become final that that provision precludes criminal proceedings in respect of the same acts from being brought against the same person. 35. … three criteria are relevant for the purpose of assessing whether tax penalties are criminal in nature. The first criterion is the legal classification of the offence under national law, the second is the very nature of the offence, and the third is the nature and degree of severity of the penalty that the person concerned is liable to incur (Case C-489/10 Bonda [2012] ECR, para. 37). 36. It is for the (national) court to determine, in the light of those criteria, whether the combining of tax penalties and criminal penalties that is provided for by national law should be examined in relation to the national standards as referred to in para. 29 of the present judgment, which could lead it, as the case may be, to regard their combination as contrary to those standards, as long as the remaining penalties are effective, proportionate and dissuasive …

13. As the multiple sanctions provided for by the Customs Code and, through reference to it, by Law 2127/1993, are not a penal sanction (stricto sensu sanction) imposed by penal courts under the terms and conditions of penal proceedings with the aim of a “sanction”, ie the general legal, moral and social disapproval of the behavior of the offender, but have the character of, as explicitly noted in art. 89 para. 2 of the Customs Code, of an administrative sanction imposed by administrative authorities – under the substantive control of administrative courts – and serves a different purpose which is the collection of community and national resources and the respect and smooth application of the provisions of customs procedure … Consequently, and given that the sanction does not have a criminal nature, there is no issue of application of the ne bis in idem principle of art. 4 para. 1 of the Seventh Protocol to the ECHR and art. 50 of the Charter of Fundamental Rights of the Union.

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37. It follows from the foregoing considerations that the answer to the second, third and fourth questions is that the ne bis in idem principle laid down in art. 50 of the Charter does not preclude a Member State from imposing successively, for the same acts of non-compliance with declaration obligations in the field of VAT, a tax penalty and a criminal penalty in so far as the first penalty is not criminal in nature, a matter which is for the national court to determine.

Deciding body (original language): 
Συμβούλιο της Επικρατείας
Language: 
Greek