# C_2023045EN.01001101.xml

| 6.2.2023 | EN | Official Journal of the European Union | C 45/11 |
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6.2.2023

EN

Official Journal of the European Union

C 45/11

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Request for a preliminary ruling from the Rayonen sad Svilengrad (Bulgaria) lodged on 23 November 2022 — SISTEM LUX OOD v Teritorialna direktsia Mitnitsa Burgas

(Case C-717/22)

(2023/C 45/19)

Language of the case: Bulgarian

Referring court

Rayonen sad Svilengrad

Parties to the main proceedings

Applicant: SISTEM LUX OOD

Administrative enforcement authority: Teritorialna direktsia Mitnitsa Burgas

Questions referred

| 1. | Is Article 42(2) of Regulation (EU) No 952/2013 (1) of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code, which exhaustively specifies the administrative penalties that can be applied for breaches of customs legislation, read in conjunction with Article 17(1) of the Charter of Fundamental Rights of the European Union, to be interpreted as meaning that a national provision such as that of Article 233(6) of the Zakon za mitnitsite (Customs Law), which provides for an additional administrative penalty in the form of confiscation of the items involved in the offence (removal of property into State ownership), is unlawful? Is confiscation of the items involved in the offence lawful in those cases where the confiscated assets belong to someone other than the offender? |
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1.

Is Article 42(2) of Regulation (EU) No 952/2013 (1) of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code, which exhaustively specifies the administrative penalties that can be applied for breaches of customs legislation, read in conjunction with Article 17(1) of the Charter of Fundamental Rights of the European Union, to be interpreted as meaning that a national provision such as that of Article 233(6) of the Zakon za mitnitsite (Customs Law), which provides for an additional administrative penalty in the form of confiscation of the items involved in the offence (removal of property into State ownership), is unlawful? Is confiscation of the items involved in the offence lawful in those cases where the confiscated assets belong to someone other than the offender?

| 2. | Is Article 42(1) of Regulation (EU) No 952/2013, read in conjunction with Article 49(3) of the Charter, to be interpreted as meaning that a national provision such as that of Article 233(6) of the Customs Law, which, alongside fines, provides for the additional penalty of confiscation (removal of property into State ownership) of the items involved in the offence, is unlawful in the following cases by reason of constituting a disproportionately punitive interference with the right to property which is not commensurate with the legitimate goal being pursued: both generally, in those cases where the confiscated asset, being the item involved in the offence, belongs to the offender, and in those cases where it belongs to a third party other than the offender, and particularly in those cases where the perpetrator committed the offence not intentionally but through negligence? |
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2.

Is Article 42(1) of Regulation (EU) No 952/2013, read in conjunction with Article 49(3) of the Charter, to be interpreted as meaning that a national provision such as that of Article 233(6) of the Customs Law, which, alongside fines, provides for the additional penalty of confiscation (removal of property into State ownership) of the items involved in the offence, is unlawful in the following cases by reason of constituting a disproportionately punitive interference with the right to property which is not commensurate with the legitimate goal being pursued: both generally, in those cases where the confiscated asset, being the item involved in the offence, belongs to the offender, and in those cases where it belongs to a third party other than the offender, and particularly in those cases where the perpetrator committed the offence not intentionally but through negligence?

| 3. | Are the provisions of Article 2(1) of Framework Decision 2005/212, (2) read in conjunction with Article 17(1) of the Charter and regard being had to the judgment of the Court of Justice of the European Union of 14 [January] 2021 in Case C-393/19, (3) to be interpreted by way of argumentum a fortiori as meaning that they also apply in cases where the act constitutes not a criminal offence but an administrative offence, whereas the difference between the two lies solely in the criterion of ‘large quantities’ in terms of the value of the smuggled items as assumed by the courts? Are the fourth indent of Article 1 of Council Framework Decision 2005/212/JHA of 24 February 2005 on Confiscation of Crime-Related Proceeds, Instrumentalities and Property and Article 2(4) of Directive 2014/42/EU (4) 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 to be interpreted in this case as meaning that the term ‘confiscation’ refers specifically to a penalty or measure that must be issued by a court and cannot be ordered by an administrative authority, and is a national provision such as that of Article 233(6) of the Customs Law, read in conjunction with Article 231 thereof, in that sense unlawful? |
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3.

Are the provisions of Article 2(1) of Framework Decision 2005/212, (2) read in conjunction with Article 17(1) of the Charter and regard being had to the judgment of the Court of Justice of the European Union of 14 [January] 2021 in Case C-393/19, (3) to be interpreted by way of argumentum a fortiori as meaning that they also apply in cases where the act constitutes not a criminal offence but an administrative offence, whereas the difference between the two lies solely in the criterion of ‘large quantities’ in terms of the value of the smuggled items as assumed by the courts? Are the fourth indent of Article 1 of Council Framework Decision 2005/212/JHA of 24 February 2005 on Confiscation of Crime-Related Proceeds, Instrumentalities and Property and Article 2(4) of Directive 2014/42/EU (4) 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 to be interpreted in this case as meaning that the term ‘confiscation’ refers specifically to a penalty or measure that must be issued by a court and cannot be ordered by an administrative authority, and is a national provision such as that of Article 233(6) of the Customs Law, read in conjunction with Article 231 thereof, in that sense unlawful?

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(1)  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).

(2)  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).

(3)  EU:C:2021:8.

(4)  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).

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