Keywords : customs code, legal protection, goods confiscated for the benefit of the state
Subject :
– Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code
– Council Framework Decision 2005/212/JHA of 24 February 2005 on the confiscation of crime proceeds, instrumentalities and property obtained therefrom
Facts:
The ‘Customs Investigations and Investigations Department of the Territorial Directorate ‘Burgas Customs Office’ examined the evidence collected and found that there was no evidence relating to the person of the perpetrator. Therefore, pursuant to Article 232(1) of the Customs Act (ZM), he has issued fine decision No. 233/20.02.2021 against an unknown perpetrator, confiscating 3 840 fuel injectors for vehicles with a customs value of 479 813.05 lev (BGN) ) from an unknown offender in favor of the state. According to the relevant registration certificates, the truck combination confiscated for the benefit of the state was registered in the name of JP EOOD. JP EOOD claims that it suffered financial loss as a result of the confiscation of property belonging to it for the benefit of the State, ordered by the contested decision. Although it is a third party not involved in the administrative procedure, it nevertheless suffers financial loss without being able to effectively protect its rights and legitimate interests.
Consideration:
The referring court argues that JP EOOD is a third party not involved in the administrative infringement proceedings and, pursuant to Article 59(2) of the Administrative Offenses and Penalties Act (ZANN), as applicable at the time of the infringement, not part of the circle of persons who can challenge the issued fine, not even with regard to the part related to its confiscated objects. The referring court therefore asks whether Article 44(1) of Regulation 952/2013, read in conjunction with Article 13 ECHR and Article 47 of the Charter, must be interpreted as precluding national legislation such as Article 59(2) of the ZANN, according to which the owner of objects confiscated under a fine decision, if he has not committed the offence, does not belong to the category of persons who may institute legal proceedings against this decision. Next, the referring court asks whether Article 22(7), read in conjunction with Articles 29 and 44 of Regulation 952/2013, Article 13 ECHR and Article 47 of the Charter, must be interpreted as precluding to a national scheme such as Article 232(1) ZM, on the basis of which no judicial remedy may be brought against a decision to impose a fine against an unknown offender if, under national law, that decision may order the confiscation of property belonging to a third party not involved in the administrative infringement procedure for the benefit of the State . Finally, the referring court asks whether Article 4 of Framework Decision 2005/212/JHA, read in conjunction with Article 47 of the Charter, must be interpreted per argumentum a fortiori as meaning that those provisions must also be applied where the conduct is not constitutes a crime, as well as in that sense,
Preliminary question:
1. Is Article 44(1) of Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013, read in conjunction with Article 13 of the European Convention on Human Rights and Fundamental freedoms (‘the ECHR’) and Article 47 of the Charter of Fundamental Rights of the European Union (hereinafter ‘the Charter’), be interpreted as precluding national legislation such as Article 59(2) of de Zakon za administrativnite narushenia i nakazania (Bulgarian Act on Administrative Violations and Penalties; ‘ZANN’),on the basis of which the owner of objects confiscated in the context of a fine decision, if he has not committed the violation, does not belong to the circle of persons who can institute legal proceedings against this decision.
2. Is Article 22(7), read in conjunction with Articles 29 and 44 of Regulation (EU) No 952/2013, Article 13 ECHR and Article 47 of the Charter, to be interpreted as precluding a national legislation, such as Article 232(1) of the Zakon za mitnitsite (Bulgarian Customs Act, ‘the ZM’), which does not allow for judicial remedies against a decision to impose a fine against an unknown offender if, in accordance with that decision, under national law, can the confiscation of property belonging to a third party not involved in the administrative infringement procedure be ordered for the benefit of the State?
3. Is Article 4 of Council Framework Decision 2005/212/JHA of 24 February 2005, read in conjunction with Article 47 of the Charter, to be interpreted per argumentum a fortiori as meaning that it must also be applied where the conduct is not constitutes a criminal offense and in the sense that it precludes national legislation which – as in Article 59(2) of the ZANN – excludes the owner of the confiscated property from the circle of persons entitled to a judicial remedy configure,or in which – as in Article 232 ZM – it is expressly provided that no legal remedy is available against a decision whereby under national law objects belonging to a third party not involved in the administrative infringement procedure can be confiscated?
Source Minbuza.nl
