CELEX: 62021CJ0752
Reference for a preliminary ruling
Regulation (EU) No 952/2013
Union Customs Code
Legal remedies
Judicial cooperation in criminal matters
Framework Decision 2005/212/JHA
Smuggled goods
Goods belonging to a third party seized in the course of administrative-offence proceedings
National legislation excluding that third party from the category of persons entitled to bring an action against the administrative penalty notice ordering the seizure

This request for a preliminary ruling concerns the interpretation of Article 22(7) and Articles 29 and 44 of Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code (OJ 2013 L 269, p. 1; ‘the Union Customs Code’), Article 4 of Council Framework Decision 2005/212/JHA of 24 February 2005 on Confiscation of Crime-Related Proceeds, Instrumentalities and Property (OJ 2005 L 68, p. 49) and Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
The request has been made in proceedings between JP EOOD, a commercial company governed by Bulgarian law, and the Otdel ‘Mitnichesko razsledvane i razuznavane’ /MRR/ v TD ‘Mitnitsa Burgas’ (Department of Customs Intelligence and Investigations of the Burgas Customs Regional Directorate, Bulgaria) concerning the decision adopted by the latter to seize, for the benefit of the Bulgarian State, a transport vehicle belonging to JP which had been used to smuggle goods.

Legal context

European Union law

Framework Decision 2005/212
Recital 1 of Framework Decision 2005/212 is worded as follows:
‘The main motive for cross-border organised crime is financial gain. In order to be effective, therefore, any attempt to prevent and combat such crime must focus on tracing, freezing, seizing and confiscating the proceeds from crime. However, this is made difficult, inter alia, as a result of differences between Member States’ legislation in this area.’
Article 1 of that framework decision, entitled ‘Definitions’, in its fourth indent, provides:
‘For the purposes of this Framework Decision:
…
–        “confiscation” means a penalty or measure, ordered by a court following proceedings in relation to a criminal offence or criminal offences, resulting in the final deprivation of property.’
Article 2 of that framework decision, entitled ‘Confiscation’, provides:
‘1.      Each Member State shall take the necessary measures to enable it to confiscate, either wholly or in part, instrumentalities and proceeds from criminal offences punishable by deprivation of liberty for more than one year, or property the value of which corresponds to such proceeds.
…’
Article 4 of that framework decision, entitled ‘Legal remedies’, provides:
‘Each Member State shall take the necessary measures to ensure that interested parties affected by measures under Articles 2 and 3 have effective legal remedies in order to preserve their rights.’

The Union Customs Code
Article 5 of the Union Customs Code, entitled ‘Definitions’, provides:
‘For the purposes of [the Union Customs] Code, the following definitions shall apply:
(1)      “customs authorities” means the customs administrations of the Member States responsible for applying the customs legislation and any other authorities empowered under national law to apply certain customs legislation;
(2)      “customs legislation” means the body of legislation made up of all of the following:
(a)      the Code and the provisions supplementing or implementing it adopted at Union or national level;
(b)      the Common Customs Tariff;
(c)      the legislation setting up a Union system of reliefs from customs duty;
(d)      international agreements containing customs provisions, in so far as they are applicable in the Union;
…
(39)      “decision” means any act by the customs authorities pertaining to the customs legislation giving a ruling on a particular case, and having legal effects on the person or persons concerned;
…’
Article 22 of that code, entitled ‘Decisions taken upon application’, provides, in paragraph 7:
‘A decision which adversely affects the applicant shall set out the grounds on which it is based and shall refer to the right of appeal provided for in Article 44.’
Article 29 of that code, entitled ‘Decisions taken without prior application’, provides:
‘Except when a customs authority acts as a judicial authority, Article 22(4), (5), (6) and (7), Article 23(3) and Articles 26, 27 and 28 shall also apply to decisions taken by the customs authorities without prior application by the person concerned.’
Article 42 of that code, entitled ‘Application of penalties’, states:
‘1.      Each Member State shall provide for penalties for failure to comply with the customs legislation. Such penalties shall be effective, proportionate and dissuasive.
2.      Where administrative penalties are applied, they may take, inter alia, one or both of the following forms:
(a)      a pecuniary charge by the customs authorities, including, where appropriate, a settlement applied in place of and in lieu of a criminal penalty;
(b)      the revocation, suspension or amendment of any authorisation held by the person concerned.
3.      Member States shall notify the [European] Commission, within 180 days from the date of application of this Article, as determined in accordance with Article 288(2), of the national provisions in force, as envisaged in paragraph 1 of this Article, and shall notify it without delay of any subsequent amendment affecting those provisions.’
Under Article 43 of the Union Customs Code, entitled ‘Decisions taken by a judicial authority’:
‘Articles 44 and 45 shall not apply to appeals lodged with a view to the annulment, revocation or amendment of a decision relating to the application of the customs legislation taken by a judicial authority, or by customs authorities acting as judicial authorities.’
Article 44 of that code, entitled ‘Right of appeal’, provides:
‘1.      Any person shall have the right to appeal against any decision taken by the customs authorities relating to the application of the customs legislation which concerns him or her directly and individually.
…
2.      The right of appeal may be exercised in at least two steps:
(a)      initially, before the customs authorities or a judicial authority or other body designated for that purpose by the Member States;
(b)      subsequently, before a higher independent body, which may be a judicial authority or an equivalent specialised body, according to the provisions in force in the Member States.
3.      The appeal shall be lodged in the Member State where the decision was taken or was applied for.
4.      Member States shall ensure that the appeals procedure enables the prompt confirmation or correction of decisions taken by the customs authorities.’

Directive 2014/42/EU
Article 2 of Directive 2014/42/EU of the European Parliament and of the Council of 3 April 2014 on the freezing and confiscation of instrumentalities and proceeds of crime in the European Union (OJ 2014 L 127, p. 39), entitled ‘Definitions’, provides:
‘For the purpose of this Directive, the following definitions apply:
…
(4)      “confiscation” means a final deprivation of property ordered by a court in relation to a criminal offence;
…’
Article 14 of that directive, entitled ‘Replacement of Joint Action 98/699/JHA and of certain provisions of Framework Decisions 2001/500/JHA and 2005/212/JHA’, provides, in paragraph 1:
‘… Articles 3 and 4 of [Council] Framework Decision 2001/500/JHA [of 26 June 2001 on money laundering, the identification, tracing, freezing, seizing and confiscation of instrumentalities and the proceeds of crime (OJ 2001 L 182, p. 1)], and the first four indents of Article 1 and Article 3 of Framework Decision 2005/212/JHA, are replaced by this Directive for the Member States bound by this Directive, without prejudice to the obligations of those Member States relating to the time limits for transposition of those Framework Decisions into national law.’

Bulgarian law

The ZM
Article 231 of the zakon za mitnitsite (Law on Customs) (DV No 15 of 6 February 1998), in the version applicable to the facts in the main proceedings (‘the ZM’), provides:
‘Decisions imposing administrative penalties shall be issued by the director of the Customs Agency or by officials appointed by him or her.’
Article 232 of the ZM provides:
‘(1)      Where the person committing the offence is unknown, the record shall be signed by the person who drew it up and by a witness and shall not be served. In that case, a penalty notice shall come into force as soon as it is issued.
…’
Article 233 of that law provides:
‘(1)      A person who ships or moves goods across the national border, or who attempts to do so, without the knowledge or approval of the customs authorities, shall be penalised for smuggling by a fine equal to between 100 and 200 per cent of the customs value of the goods and, on exportation, equal to the value of the goods, unless the act is a criminal offence.
…
(8)      Means of transport or containers used to move or ship the smuggled goods shall be confiscated for the benefit of the State, irrespective of who owns them, unless their value is manifestly disproportionate to the value of the smuggled goods.’

The ZANN
Article 59 of the zakon za administrativnite narushenia i nakazania (Law on administrative offences and penalties) (DV No 92 of 28 November 1969), in the version applicable to the facts in the main proceedings (‘the ZANN’), provides:
‘(1)      The administrative penalty notice or electronic penalty notice may be contested in the [Rayonen sad (district court)] within the district of which the offence was committed or concluded or, if it was committed abroad, in the [Sofiyski rayonen sad (District Court, Sofia)].
(2)      The person committing the offence and the person claiming compensation may bring an action against that decision within seven days of its service, while the public prosecutor has the right to lodge an objection against that decision within two weeks of its issue.’

The dispute in the main proceedings and the questions referred for a preliminary ruling
On 11 July 2020, the Bulgarian customs authorities recorded an attempt to transport, without authorisation, from Türkiye to Bulgaria, fuel injectors for motor vehicles, loaded on a heavy goods vehicle coupled to a semi-trailer.
A criminal investigation was opened by the Okrazhna prokuratura – Haskovo (Haskovo Regional Prosecutor’s Office, Bulgaria) for aggravated smuggling. However, by a decision of 15 December 2020, the public prosecutor at the Haskovo Regional Prosecutor’s Office terminated the criminal proceedings due to a lack of evidence.
At the same time, the file was sent to the Department of Customs Intelligence and Investigations so that it could assess whether it was appropriate to bring administrative-offence proceedings under the ZM.
Since it was not possible to identify the person who had committed the offence, on 22 February 2021, the director of the Burgas customs authority issued an administrative penalty notice against an unknown perpetrator pursuant to Article 232(1) of the ZM.  In accordance with that latter provision, where the person committing the offence is unknown, the administrative penalty notice comes into force as soon as it is issued.
By that notice, the unknown person was dispossessed of the fuel injectors for motor vehicles, which were seized for the benefit of the Bulgarian State. By the notice, the Bulgarian customs authorities seized for the benefit of the State, in accordance with Article 233(8) of the ZM, the heavy goods vehicle coupled to the semi-trailer with a total value of 111 604.20 Bulgarian leva (BGN) (approximately EUR 57 300), both of which were owned by JP.
That company brought an action challenging that notice before the Rayonen sad Svilengrad (District Court, Svilengrad, Bulgaria), which, by an order of 20 April 2021, dismissed that action as inadmissible on the ground that that company had no interest in bringing proceedings.
That court held, first, that the right to bring an action against the notice at issue in the main proceedings is available, in accordance with Article 59(2) of the ZANN, to the person committing the offence and to the person claiming compensation, whereas the public prosecutor has the right to lodge an objection. Secondly, it held that, in so far as the administrative penalty notice concerned had been issued against an unknown perpetrator, that notice had come into force, in accordance with Article 232(1) of the ZM, from the date of its issue and was not open to challenge.
JP appealed against that order to the Administrativen sad – Haskovo (Haskovo Administrative Court, Bulgaria), the referring court, claiming that, although it was a third party not involved in the administrative-offence proceedings, it had suffered financial loss when its assets were seized and had not been given a proper opportunity to defend its rights and legitimate interests.
That court confirms that Bulgarian law does not provide for a right of appeal where, as in the case in the main proceedings, an administrative penalty notice is issued against an unknown perpetrator. In such a case, it follows expressly from Article 232(1) of the ZM that no appeal lies against such a notice.
The referring court is, therefore, uncertain as to the compatibility of the national legislation, first, with the Union Customs Code and, secondly, with Framework Decision 2005/212, on the assumption that the latter also applies to situations in which the act committed does not constitute a criminal offence.
In those circumstances, the Administrativen sad – Haskovo (Administrative Court, Haskovo) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1)      Is Article 44[1] of [the Union Customs Code], read in conjunction with Article 13 of [the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950,] and Article 47 of the [Charter], to be interpreted as precluding national legislation, such as Article 59(2) of the [ZANN], which excludes the owner of property confiscated pursuant to a penalty notice from the group of persons entitled to lodge an appeal against that penalty notice if the owner did not commit the offence?
(2)      Is Article 22(7) of the [Union Customs Code], read in conjunction with Articles 29 and 44 thereof and with Article 13 [of the European Convention for the Protection of Human Rights and Fundamental Freedoms] and Article 47 of the Charter, to be interpreted as precluding national legislation, such as Article 232(1) of the [ZM], which excludes appeals in respect of an  administrative penalty notice issued against an unknown perpetrator, where national law allows property belonging to a third party, not party to the administrative-offence proceedings, to be confiscated for the benefit of the State pursuant to that notice?
(3)      Is Article 4 of Framework Decision [2005/212], read in conjunction with Article 47 of the Charter, to be interpreted as meaning that it also applies a fortiori where the act is not a criminal offence? Is that provision also to be interpreted as meaning that it precludes national legislation, such as Article 59(2) of the ZANN, which excludes the owner of property confiscated from the group of persons entitled to lodge an appeal, or, such as Article 232 [of the] ZM, which expressly states that a notice by which property is confiscated under national law from a third party not party to the administrative-offence proceedings is not open to appeal?’

Consideration of the questions referred

The first and second questions
By its first and second questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 44 of the Union Customs Code must be interpreted as precluding national legislation which does not provide for a right of appeal against an administrative penalty notice for a person whose assets have been seized on the basis of such a notice but who is not regarded, in that notice, as the person who committed the administrative offence connected with the penalty imposed.
In that regard, it should be noted that Article 44 of that code provides that any person has the right to appeal against decisions taken by the customs authorities relating to the application of customs legislation which concern him or her directly and individually.
The concept of ‘decision’, to which that provision refers, is defined in Article 5(39) of that code as ‘any act by the customs authorities pertaining to the customs legislation giving a ruling on a particular case, and having legal effects on the person or persons concerned’, with the customs legislation covering, in particular, in accordance with paragraph 2 of that article, the Union Customs Code and the provisions supplementing or implementing that code at national level.
In the present case, it is apparent from the order for reference that the administrative penalty notice at issue in the main proceedings, which was adopted by the customs authorities ruling on a particular case of smuggling, has legal effects on JP, in so far as goods belonging to that legal person, as the ‘person concerned’, were seized. It follows that that notice is a ‘decision’ within the meaning of Article 5(39) of the Union Customs Code.
It should be added, first, that Article 42(1) of that code provides that the Member States are required to provide for penalties in the event of infringement of the customs legislation, with the result that the decision imposing such a penalty, in the case of smuggling, such as that found in the main proceedings, in particular the seizure of the goods, constitutes a decision relating to the application of the customs legislation, within the meaning of Article 44 of that code.
Secondly, although it appears that the administrative penalty notice at issue in the main proceedings was not formally addressed to JP, this being a matter which it is for the referring court to ascertain, the fact remains that it produces direct legal effects for that company, in so far as its assets were seized pursuant to that decision. Consequently, it must be held that that decision is of direct and individual concern to JP, within the meaning of Article 44 of that code.
It follows that an administrative penalty notice, such as that at issue in the main proceedings, must, in accordance with Article 44 of the Union Customs Code, be open to challenge, with the result that that code precludes national legislation which does not provide for the right to bring an action against such a decision for a person directly and individually concerned by it.
In the light of all those reasons, the answer to the first and second questions is that Article 44 of the Union Customs Code must be interpreted as precluding national legislation which does not provide for a right of appeal against an administrative penalty notice for a person whose property has been seized on the basis of such a decision but who is not regarded, in that decision, as the person committing the administrative offence connected with the penalty imposed.

The third question
By its third question, the referring court asks, in essence, whether Article 4 of Framework Decision 2005/212 must be interpreted as applying to a decision in respect of an act which does not constitute a criminal offence and, if so, whether it precludes national legislation which provides that a third party whose property may be seized in the context of administrative-offence proceedings does not have a right of appeal against that decision.
In that regard, it should be noted that Article 2 of that framework decision, to which Article 4 thereof refers, provides that each Member State must take the necessary measures to enable it to confiscate, either wholly or in part, instrumentalities and proceeds from criminal offences punishable by deprivation of liberty for more than one year, or property the value of which corresponds to such proceeds.
It follows from the wording of that article that the material scope of that framework decision is, as is also apparent from the title and recital 1 of that framework decision, which refer respectively to ‘confiscation of crime-related proceeds, instrumentalities and property’ and ‘organised crime’, confined to criminal offences, with the result that that framework decision does not apply to a decision which does not come within the context of, or follow on from, proceedings relating to one or more criminal offences (see, to that effect, judgment of 19 March 2020, ‘
Agro In 2001
’, C‑234/18, EU:C:2020:221, paragraph 61).
That scope is also limited in that it covers only criminal offences of a certain gravity, namely those punishable by a custodial sentence of more than one year.
As regards the concept of ‘confiscation’, it is appropriate to refer not to the definition in the fourth indent of Article 1 of Framework Decision 2005/212, but to the definition in Article 2(4) of Directive 2014/42, since that directive, pursuant to Article 14(1) thereof, replaced, inter alia, the first four indents of Article 1 of that framework decision (judgment of 10 November 2022,
DELTA STROY 2003
, C‑203/21, EU:C:2022:865, paragraph 30).
Under Article 2(4) of that directive, confiscation means ‘a final deprivation of property ordered by a court in relation to a criminal offence’.
It is sufficient to note that, first, in the case in the main proceedings, the administrative penalty notice was issued following an administrative procedure, which did not relate to one or more criminal offences and even less to a criminal offence punishable by a custodial sentence of more than one year, as required by Article 2 of Framework Decision 2005/212.
Second, it is also apparent from the file before the Court that that decision was adopted by the Bulgarian customs authorities and not by a court, as required by Article 2(4) of Directive 2014/42.
Consequently, Framework Decision 2005/212 is not materially applicable in a situation in which the act committed does not constitute a criminal offence.
In so far as the material scope of that framework decision is clearly defined and it was adopted with a view to establishing common minimum rules in a clearly defined area, which, moreover, concerns cooperation in criminal matters, it also cannot be materially applicable by analogy to a situation such as that at issue in the main proceedings.
In the light of all those reasons, the answer to the third question is that Article 4 of Framework Decision 2005/212 must be interpreted as not applying to a decision concerning an act which does not constitute a criminal offence.

Costs
Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Eighth Chamber) hereby rules:
1.
Article 44 of Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code
must be interpreted as precluding national legislation which does not provide for a right of appeal against an administrative penalty notice for a person whose property has been seized on the basis of such a decision but who is not regarded, in that decision, as the person committing the administrative offence connected with the penalty imposed.
2.
Article 4 of Council Framework Decision 2005/212/JHA of 24 February 2005 on Confiscation of Crime-Related Proceeds, Instrumentalities and Property
must be interpreted as not applying to a decision concerning an act which does not constitute a criminal offence.
[Signatures]
*
Language of the case: Bulgarian.