Excise penalty and the withdrawal of the authorisation to operate the tax warehouse may be applied parallelly if does not violate the principles of the common law.
The Bulgarian customs authority established excise duty debt at a local vinery and imposed excise penalty on the tax debt. After the official decision on the excise penalty had been upheld by the administrative court, the Director of the customs authority withheld the vinery’s authorisation to operate the tax warehouse.
The questions referred to the European Court of Justice in this case concern the proportionality of these sanctions, the principle of non-discrimination, and the cumulative applicability of the sanctions with regard to the ne bis in idem principle laid down in the Charter of Fundamental Rights of the European Union.
According to the judgement, the parallel application of the financial penalty and the withdrawal of the authorisation to operate the tax warehouse may be proportional measures if the offence is classified as ‘serious’ under the national law which is however to be judged by the national courts. The same applies for the ‘criminal’ nature of the sanctions which is to be considered on the basis of the nature and seriousness of the offence the penalty seeks to sanction. If the sanctions are of criminal nature, the parallel application of those do not violate the Charter of Fundamental Rights provided that (i) the possibility of combining those two (administrative and criminal) penalties is provided for by law; (ii) the national law provides solely for the possibility of a duplication of proceedings and penalties under different legislative provisions; (iii) those proceedings and penalties pursue complementary aims relating to different aspects of the same unlawful conduct at issue and (iv); there are clear and precise rules on the parallel application of the sanctions and the cooperation between the authorities is provided to consider whether the cumulative application of the sanctions is still necessary and proportional. The court also held that non-discrimination may not occur in this case since the sanctions in question might have been imposed to any other person holding an authorisation for operating a tax warehouse.