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Greece / Council of State / 1741/2015

Director of 7th Customs of Independent Custom Groups of Piraeus v natural persons

Policy area:
Customs
Deciding Body type:
National Court/Tribunal
Deciding Body:
Council of State
Type:
Decision
Decision date:
08/05/2015

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.