On March 23, 2023, the ECJ issued its decision in the case C-412/21 (Dual Prod).
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
Facts
- Dual Prod is a company incorporated under Romanian law that is authorised to operate in the field of the production of alcohol and alcoholic beverages subject to excise duty.
- On 1 August 2018, a search was carried out at the premises of that company.
- Following that search, criminal proceedings in rem were initiated for suspected infringements of Article 452(1)(h) and (i) of the Tax Code consisting, first, in the removal and holding outside the tax warehouse of an amount exceeding 40 litres of ethyl alcohol with an alcoholic strength of at least 96% by volume and, secondly, in the installation of a hose at the production plant.
- By decision of 5 September 2018, the competent administrative authority suspended Dual Prod’s authorisation to operate as a tax warehouse for products subject to excise duty, for a period of 12 months, on the basis of Article 369(3)(b) of the Tax Code. That authority interpreted that provision as allowing such a suspension to be imposed on the basis of mere evidence that criminal offences may have been committed under the legislation governing goods subject to excise duty.
- On 13 December 2019, the Curtea de Apel Oradea (Court of Appeal, Oradea, Romania), before which Dual Prod brought an action against the decision of 5 September 2018, reduced the length of that suspension to eight months, after holding that the imposition of the maximum suspension period provided for in Article 369(3)(b) of the Tax Code was manifestly disproportionate. That suspension was fully enforced.
- After Dual Prod was formally charged, on 21 October 2020, in the criminal proceedings, which were initiated following the search on 1 August 2018, the competent administrative authority once more suspended, under Article 369(3)(c) of the Tax Code, Dual Prod’s authorisation to operate as a tax warehouse for products subject to excise duty, pending the final outcome of the criminal proceedings. Dual Prod challenged that decision before the Tribunalul Satu Mare (Regional Court, Satu Mare, Romania).
- 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.
- In that regard, that court asks, in the first place, whether the principle of the presumption of innocence precludes an administrative authority from suspending, for an indefinite period of time, the authorisation to operate as a tax warehouse for products subject to excise duty, held by a legal person, on the sole ground that there is evidence that the latter may have committed an offence, and even before a court has given a final ruling on the guilt of that person.
- That court states, first, that the suspension of the authorisation granted to Dual Prod seems to indicate that that company is considered guilty and, secondly, that the criminal proceedings have been pending for more than three years now.
- 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.
Questions
(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?
Decision
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.
Source Curia
