Article 48 - Presumption of innocence and right of defence
Article 50 - Right not to be tried or punished twice in criminal proceedings for the same criminal offence
Article 51 - Field of application
Article 52 - Scope and interpretation
Key facts of the case:
Reference for a preliminary ruling – Excise duties – Directive 2008/118/EC – Article 16(1) – Authorisation to operate as a tax warehouse for products subject to excise duty – Successive suspension measures – Whether criminal in nature – Articles 48 and 50 of the Charter of Fundamental Rights of the European Union – Principle of the presumption of innocence – Principle ne bis in idem – Proportionality
Outcome of the case:
On those grounds, the Court (Fourth Chamber) hereby rules:
1. Article 48(1) of the Charter of Fundamental Rights of the European Union
must be interpreted as precluding an authorisation to operate as a tax warehouse for products subject to excise duty from being suspended for administrative purposes, until the conclusion of criminal proceedings, on the sole ground that the holder of that authorisation has been formally charged in those criminal proceedings, if that suspension constitutes a criminal penalty.
2. Article 50 of the Charter of Fundamental Rights must be interpreted as not precluding a criminal penalty, for infringement of the rules on products subject to excise duty, from being imposed on a legal person who has already been subject, in respect of the same facts, to a criminal penalty that has become final, provided:
– that the possibility of duplicating those two penalties is provided for by law;
– that national legislation does not allow for proceedings and penalties in respect of the same facts on the basis of the same offence or in pursuit of the same objective, but provides for only the possibility of a duplication of proceedings and penalties under different legislation;
– that those proceedings and penalties pursue complementary aims relating, as the case may be, to different aspects of the same unlawful conduct at issue;
– that there are clear and precise rules making it possible to predict which acts or omissions are liable to be subject to a duplication of proceedings and penalties, and also to predict that there will be coordination between the different authorities; that the two sets of proceedings have been conducted in a manner that is sufficiently coordinated and within a proximate time frame; and that any penalty that may have been imposed in the proceedings that were first in time was taken into account in the assessment of the second penalty, meaning that the resulting burden, for the persons concerned, of such duplication is limited to what is strictly necessary and the overall penalties imposed correspond to the seriousness of the offences committed.
1 This request for a preliminary ruling concerns the interpretation of Article 16(1) of Council Directive 2008/118/EC of 16 December 2008 concerning the general arrangements for excise duty and repealing Directive 92/12/EEC (OJ 2009 L 9, p. 12), and Article 48(1) and Article 50 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
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17 That court observes that Directive 2008/118 contains general provisions on the authorisation of tax warehouses. From that, it infers that the principle of the presumption of innocence and the principle ne bis in idem, as enshrined in Article 48(1) and Article 50 of the Charter, may be relevant in the present case.
20 As regards, in the second place, the principle ne bis in idem, the referring court asks whether the imposition of two penalties of the same nature on a legal person, in respect of the same facts, in tax proceedings, on the sole ground that parallel criminal proceedings have reached a certain stage, is compatible with Article 50 of the Charter.
21 In those circumstances, the Tribunalul Satu Mare (Regional Court, Satu Mare) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1) Is Article 48(1) of [the Charter], which concerns the principle of presumption of innocence, read in conjunction with Article 16(1) of [Directive 2008/118], to be interpreted as precluding a legal situation, such as that at issue in the present case, in which an administrative measure suspending an authorisation to operate as a producer of alcohol may be adopted on the basis of mere presumptions which are the subject of an ongoing criminal investigation, without any final conviction in criminal proceedings having been handed down?
(2) Is Article 50 of [the Charter], which concerns the principle ne bis in idem, read in conjunction with Article 16(1) of [Directive 2008/118], to be interpreted as precluding a legal situation, such as that at issue in the present case, in which two penalties of the same nature (suspension of authorisation to operate as a producer of alcohol), differing only in [the duration of their effect], are imposed on the same person in respect of the same facts?’
Consideration of the questions referred
Preliminary observations
22 In the first place, it should be noted that the scope of the Charter, in so far as the action of the Member States is concerned, is defined in Article 51(1) thereof, according to which the provisions of the Charter are addressed to the Member States only when they are implementing EU law. That provision confirms the Court’s settled case-law, which states that the fundamental rights guaranteed in the legal order of the European Union are applicable in all situations governed by EU law, but not outside such situations (judgment of 19 November 2019, A. K. and Others (Independence of the Disciplinary Chamber of the Supreme Court), C‑585/18, C‑624/18 and C‑625/18, EU:C:2019:982, paragraph 78 and the case-law cited).
26 Therefore, where a Member State suspends the authorisation required to operate a tax warehouse, within the meaning of Directive 2008/118, on the basis of indications that criminal offences under the legislation governing goods subject to excise duty have been committed, it is implementing that directive and, therefore, EU law, within the meaning of Article 51(1) of the Charter and must, therefore, comply with the provisions of the Charter.
27 In the second place, although it is ultimately for the referring court to assess whether the two suspension measures at issue in the main proceedings may be classified as ‘criminal penalties’, for the purposes of Article 48(1) and Article 50 of the Charter, it must, however, be noted that three criteria are relevant in that respect. The first criterion is the legal classification of the offence under national law, the second is the intrinsic nature of the offence, and the third is the degree of severity of the penalty that the person concerned is liable to incur (see, to that effect, judgments of 5 June 2012, Bonda, C‑489/10, EU:C:2012:319, paragraph 37, and of 22 March 2022, bpost, C‑117/20, EU:C:2022:202, paragraph 25).
29 Nevertheless, it should be noted, first, that the application of the provisions of the Charter protecting the persons accused in criminal proceedings is not limited to proceedings and penalties which are classified as ‘criminal’ by national law, but extends regardless of such a classification under national law to proceedings and penalties which must be considered to have a criminal nature on the basis of the two other criteria referred to in paragraph 27 above (judgment of 20 March 2018, Menci, C‑524/15, EU:C:2018:197, paragraph 30).
39 It follows that, by its first question, the referring courts asks, in essence, whether Article 48(1) of the Charter must be interpreted as precluding an authorisation to operate as a tax warehouse for products subject to excise duty from being suspended for administrative purposes, until the conclusion of criminal proceedings, on the sole ground that the holder of that authorisation has been formally charged in those criminal proceedings.
40 Article 48(1) of the Charter is intended to ensure that no one is declared guilty, or treated as being guilty, of an offence before his or her guilt has been established (see, to that effect, judgment of 16 July 2009, Rubach, C‑344/08, EU:C:2009:482, paragraph 31).
42 Furthermore, Article 47 of the Charter requires every addressee of an administrative penalty of a criminal nature to have access to a legal remedy enabling him or her to have that penalty reviewed by a court that has unlimited jurisdiction (judgment of 18 July 2013, Schindler Holding and Others v Commission, C‑501/11 P, EU:C:2013:522, paragraphs 32 to 35), that legal remedy making it possible, in particular, to verify that the administrative authority has not infringed the principle of the presumption of innocence.
43 It follows that, if the referring court were to consider that a suspension measure, such as that referred to in paragraph 39 above, constitutes a criminal penalty, for the purposes of applying Article 48(1) of the Charter, the principle of the presumption of innocence, enshrined in that provision, would preclude the adoption of such a measure, where a decision has not yet been taken on the guilt of the person thus penalised.
44 It follows from all the foregoing considerations that Article 48(1) of the Charter must be interpreted as precluding an authorisation to operate as a tax warehouse for products subject to excise duty from being suspended for administrative purposes, until the conclusion of criminal proceedings, on the sole ground that the holder of that authorisation has been formally charged in those criminal proceedings, if that suspension constitutes a criminal penalty.
47 The question whether such an assessment complies with the requirements stemming from Article 50 of the Charter falls within the scope of the examination of the substance of the second question referred.
48 By its second question, the referring court asks, in essence, whether Article 50 of the Charter must be interpreted as precluding a penalty from being imposed on a legal person who has already been subject, in respect of the same facts, to a penalty of the same nature but of a different duration.
49 It should be noted, at the outset, that the principle ne bis in idem, enshrined in Article 50 of the Charter, prohibits a duplication both of proceedings and of penalties of a criminal nature for the purposes of that article for the same acts and against the same person (judgment of 22 March 2022, bpost, C‑117/20, EU:C:2022:202, paragraph 24 and the case-law cited).
58 If, following an examination of the conditions recalled in paragraphs 49 to 57 above, the referring court were to consider that Article 50 of the Charter applied to the dispute in the main proceedings, the combination of the two suspension measures at issue in the main proceedings would constitute a limitation of the fundamental right guaranteed in Article 50.
60 In such a case, it would be, in the second place, for the referring court to examine whether all the conditions under which Article 52(1) of the Charter allows Member States to limit the fundamental right, guaranteed in Article 50 of the Charter, are complied with in the present case.
61 In that respect, it is important to note that, in accordance with the first sentence of Article 52(1) of the Charter, any limitation on the exercise of the rights and freedoms recognised by the Charter must be provided for by law and respect the essence of those rights and freedoms. According to the second sentence of Article 52(1) of the Charter, subject to the principle of proportionality, limitations on those rights and freedoms may be made only if they are necessary and genuinely meet objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others.
62 As regards, first, the conditions set out in the first sentence of Article 52(1) of the Charter, it should be noted that the possibility of combining the two suspension measures at issue in the main proceedings does indeed appear to be provided for by law, namely Article 369(3)(b) and (c) of the Tax Code.
63 Furthermore, such a possibility of a duplication of proceedings and penalties respects the essence of Article 50 of the Charter only on condition that the national legislation does not allow for proceedings and penalties in respect of the same facts on the basis of the same offence or in pursuit of the same objective, but provides only for the possibility of a duplication of proceedings and penalties under different legislation (judgment of 22 March 2022, bpost, C‑117/20, EU:C:2022:202, paragraph 43). It is apparent from the file submitted to the Court that that condition does not appear to have been met in the present case.
64 As regards, secondly, the conditions set out in the second sentence of Article 52(1) of the Charter, which are examined by the Court only in the event that the referring court considers that the conditions required by the first sentence of that provision are, in the present case, met, it is apparent, first of all, from the file submitted to the Court, that the national legislation at issue in the main proceedings seeks, in a general manner, to ensure the correct collection of excise duties and to combat fraud and abuse.
68 In the present case, it should be noted, in particular, that the file submitted to the Court does not show that, when assessing the second suspension measure imposed on Dual Prod, the competent administrative authority took into account the seriousness of the first suspension measure that had already been imposed on that company, which is such as to affect the proportionality of that second suspension measure, within the meaning of Article 52 of the Charter.
69 It follows from the foregoing considerations that, although the two suspension measures at issue in the main proceedings must be regarded as criminal penalties, Article 50 of the Charter may preclude Dual Prod from being subject to the second suspension measure, the legality of which is challenged before the referring court, which it is for that court to determine.
70 Last, it should be added that, even if the referring court considers that at least one of the two suspension measures at issue in the main proceedings does not constitute a criminal penalty, for the purposes of Article 50 of the Charter, and that, therefore, that article cannot, in any event, preclude the duplication of those two penalties, the fact remains that, as the Commission has submitted, the imposition of the second suspension measure should comply with the principle of proportionality, as a general principle of EU law.
73 It follows from all the foregoing considerations that Article 50 of the Charter must be interpreted as not precluding a criminal penalty, for infringement of the rules on products subject to excise duty, from being imposed on a legal person who has already been subject, in respect of the same facts, to a criminal penalty that has become final, provided:
1. Article 48(1) of the Charter of Fundamental Rights of the European Union must be interpreted as precluding an authorisation to operate as a tax warehouse for products subject to excise duty from being suspended for administrative purposes, until the conclusion of criminal proceedings, on the sole ground that the holder of that authorisation has been formally charged in those criminal proceedings, if that suspension constitutes a criminal penalty.
