Order;Information — ECLI:EU:C:2019:1109
Date: 2019-12-19
Language of the case: Romanian
Court formation: Ninth Chamber
Subject matter: Free movement of goods;Approximation of laws;Customs Cooperation
Procedure: Reference for a preliminary ruling
Origin: Romania

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Translation C-679/19 — 1 
Case C-679/19 
Request for a preliminary ruling 
Date lodged: 
12 September 2019 
Referring court: 
Tribunalul Ilfov (Romania) 
Date of the decision to refer: 
2 September 2019 
Appellant: 
NL 
Respondent: 
Direcția Generală Regională a Finanțelor Publice București 
  
[…] 
TRIBUNALUL ILFOV (Regional Court, Ilfov, Romania) 
CIVIL DIVISION 
[…] 
REQUEST FOR A PRELIMINARY RULING 
The Tribunalul Ilfov (Regional Court, Ilfov), at the request of the appellant NL, in 
view of the decision given upon the conclusion of the hearing of 9 July 2019, 
pursuant to Article 267 of the Treaty on the Functioning of the European 
Union (TFEU), requests  
THE COURT OF JUSTICE OF THE EUROPEAN UNION  
EN 
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to answer the following questions for a preliminary ruling concerning the 
interpretation of Article 9(1) of Regulation (EC) No 1889/2005 of the European 
Parliament and of the Council on controls of cash entering or leaving the 
Community: 
1. Is Article 9(1) of Regulation (EC) No 1889/2005 of the European Parliament 
and of the Council on controls of cash entering or leaving the Community to be 
interpreted as precluding a penalty such as that laid down in Article 653(i) of 
Hotărârea Guvernului nr. 707/2006 (Government Decree No 707/2006), which 
provides that cash in excess of EUR 10 000 that has not been declared in writing 
to the customs authority is to be confiscated in its entirety and permanently? 
2. Is Article 9(1) of Regulation (EC) No 1889/2005 of the European Parliament 
and of the Council on controls of cash entering or leaving the Community to be 
interpreted as precluding the application by Member States of an administrative 
penalty consisting in the confiscation of the entire undeclared amount without any 
prior or subsequent verification of the provenance or destination of the amounts 
and regardless of their provenance and destination? 
Subject-matter of the dispute ‒ Relevant/Pertinent facts 
1. By application registered on the roll of the Judecătora Buftea (Court of First 
Instance, Buftea, Romania) on 1 September 2017, […] NL, the applicant in an 
action against the defendant Direcția Generală Regională a Finanțelor Publice 
București (Regional Directorate-General of Public Finances, Bucharest, 
Romania), requested the court seized of the matter to order the annulment of 
contravention report No 199, drawn up on 16 August 2017, and, in the alternative, 
to order the annulment of the ancillary measure for the confiscation of 
BGN 240 000, and to award costs. 
2. In the grounds of his application, NL stated that, on 16 August 2017, he flew from 
Tel Aviv, Israel, to Sofia, Bulgaria, in order to carry out currency exchange 
transactions and that, on entering the territory of Bulgaria, he declared the sums of 
money that he was carrying with him. 
3. Later on the same day, he flew from Sofia, Bulgaria, to Bucharest, Romania, 
where he was given a fine [OR 2] of RON 3 000, and the sum of BGN 240 000 
from the currency exchange transactions he had carried out in Bulgaria was 
confiscated from him. 
4. The applicant stated that his actions were not blameworthy and presented no more 
than a limited danger to society, since he had filled in the mandatory cash 
declaration form on entering the European Community. 
5. The applicant also pointed out that the confiscation measure went beyond the 
bounds of proportionality established by Regulation (EC) No 1889/2005, which, 
in view of Article 288 TFEU, must take precedence in the present case. 
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6. As regards the law, NL cited the provisions of Ordonanţa Guvernului nr. 2/2001 
(Government Order No 2/2001) (‘Order No 2/2001’) and Regulation (EC) 
No 1889/2005. 
7. […] 
8. […] 
9. The defendant, Direcția Generală Regională a Finanțelor Publice București 
(Regional Directorate-General of Public Finances, Bucharest) lodged its defence 
on 30 October 2017 […], in which it contended that the action should be 
dismissed as unfounded. 
10. In the grounds of its defence, it stated that, on 16 August 2017, in the passenger 
exit area at Henri Coandă International Airport, the applicant NL, an Israeli 
citizen, had taken the green customs corridor, marked ‘Nothing to declare’, with 
the intention of leaving the customs clearance area and evading customs checks, 
given that there were illuminated signs at the airport, in Romanian and English, 
[and two separate corridors,] depending on what passengers were carrying in their 
baggage. 
11. As regards the law, the defendant cited Article 3(1) of Regulation (EC) 
No 1889/2005, Article 156(3) of Hotărârea Guvernului nr. 707/2006 din 7 iunie 
2006 (Government Decree No 707/2006 of 7 June 2006) and Order No 2/2001. 
12. […] 
13. By civil judgment […] delivered on 6 March 2018 by the Judecătora Buftea 
(Court of First Instance, Buftea), NL’s application for the annulment of the 
contravention report […] drawn up on 16 August 2017 was dismissed as 
unfounded. 
14. In reaching that judgment, the trial court found as follows: 
15. With respect to lawfulness, the court, analysing the manner in which 
contravention report No 199 of 16 August 2017 had been drawn up, found that it 
complied with the mandatory statutory provisions and that none of the absolute 
grounds for invalidity laid down in Article 17 of Order No 2/2001 was 
present. […] 
16. As regards the merits, in accordance with Article 156(3) of Hotărârea 
Guvernului nr. 707/2006 din 7 iunie 2006 pentru aprobarea Regulamentului de 
aplicare a Codului vamal al României (Government Decree No 707/2006 of 
7 June 2006 approving the Regulation for the implementation of the Romanian 
Customs Code) (‘Decree No 707/2006’), sums of cash as referred to in Regulation 
(EC) No 1889/2005 of the European Parliament and of the Council on controls of 
cash entering or leaving the Community, published in the Official Journal of the 
European Union, Series L, No 309, of 25 November 2005, must in all cases be 
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declared in writing to the customs authority, in accordance with the provisions of 
this regulation. 
17. To that effect, Article 3(1) of Regulation (EC) No 1889/2005, provides that any 
natural person entering or leaving the Community and carrying cash of a value of 
EUR 10 000 or more shall declare that sum to the competent authorities of the 
Member State through which he is entering or leaving the Community in 
accordance with this regulation. 
18. The court of first instance found that, contrary to the applicant’s claim, the 
domestic legislation did not infringe the provisions of the regulation but were 
complementary to them, in that Article [OR 3] 653(1)(i) of Decree No 707/2006 
penalised failure, on the part of a natural person crossing the border, to comply 
with the obligation, laid down in Article 3 of Regulation (EC) No 1889/2005 of the 
European Parliament and of the Council, to declare in writing to the customs 
authority cash in foreign and/or national currency of a value equal to or in excess 
of the limit fixed by the regulation which he has with him, in the means of 
transport taken or in accompanied or unaccompanied baggage or in a package or 
parcel. Cash in excess of the limit fixed in the regulation that is not declared in 
writing shall be confiscated. 
19. In addition, the preamble to Regulation (EC) No 1889/2005 also states, in 
recital 13 thereof, that the powers of the competent authorities should be 
supplemented by an obligation on the Member States to lay down penalties. 
20. The court also stated that the applicant did not dispute the veracity of the facts 
alleged in the contravention report, but asserted that his actions were not 
blameworthy and that, given the limited danger to society they presented, the 
ancillary confiscation measure was in breach of the principle of proportionality. 
21. First of all, the court noted that, inside Henri Coandă International Airport, there 
were illuminated signs, in Romanian and English, and two separate corridors, 
depending on what passengers were carrying in their baggage, and found that it 
could not therefore be held that the applicant had not been at fault as alleged. 
22. Secondly, with regard to the administrative penalty imposed, the court noted that 
the applicant had been given a fine of RON 3 000, pursuant to Article 653(1)(i) of 
Decree No 707/2006, which was the minimum provided for by law, and, 
moreover, that the confiscation of the sum of BGN 240 000 was based on the last 
sentence of that domestic provision, and that NL had been left with the equivalent 
of EUR 10 000 […] . 
23. In view of the objective pursued by the introduction of the domestic and 
Community legislation on the subject, which was to enable the flow of cash into 
and out of the Member States to be checked, the court found that the danger to 
society which the applicant’s actions presented was significant, in that they could 
undermine the checks carried out by the competent authorities. 
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24. If sums of money exceeding the limit permitted by law were not declared, then 
whenever a natural person entered or left a Member State of the European Union, 
the checks set up by the abovementioned legislative provisions would be 
inadequate. 
25. Consequently, the court found that the measure for the confiscation of the sum of 
BGN 240 000 had been lawfully adopted pursuant to the last sentence of 
Article 653(1)(i) of Decree No 707 and, furthermore, was not excessive, given the 
circumstances in which the infringement had been committed, since the applicant 
was supposed to be familiar with the relevant rules. 
26. Finally, since the presumption that the contravention report at issue was lawful 
and well-founded had not been rebutted, the court dismissed the action as 
unfounded. 
27. NL brought an appeal against the judgment and the case was registered on 
the roll of the Tribunalul Ilfov ‒ Secția Civilă (Regional Court, Ilfov ‒ Civil 
Division, Romania) […] on 20 April 2018. 
28. NL, as appellant, seeks the complete annulment of report No 199 of 16 August 
2017 establishing and imposing a penalty for the contravention, on the ground that 
the constituent elements of the contravention provided for in Article 653(1)(i) of 
Decree No 707/2006 are not present: there has been no fault on his part and the 
actions at issue present no real danger to society. He also seeks the partial 
annulment of the report, in so far as concerns the ancillary confiscation measure, 
by means of the disapplication of the domestic provision contained in the last 
sentence of Article 653(1)(i) of Decree No 707/2006, on the grounds [OR 4] that 
it is incompatible with EU law and that the requirement that penalties must be 
proportionate, laid down in Article 5(5) and (6) of Order No 2/2001, is not 
fulfilled, an order requiring the respondent to repay the confiscated sum, and 
costs. 
29. In support of his appeal, the appellant states that the court of first instance failed to 
observe the principle of the primacy of EU law, the characteristics of which are 
that it is immediately applicable and takes precedence over domestic law. He also 
points out that the reasoning of the court of first instance was inconsistent with 
Regulation (EC) No 1889/2005 and that that court failed to take note of the 
binding case-law of the Court of Justice of the European Union. He points out that 
the court of first instance did not examine the reasoning based on the argument 
that he completed the mandatory forms for declaring the cash in his possession, 
indicating the provenance of the cash and stating the purpose of his visit. 
30. As regards the law, the appellant cites Article 466 et seq. of the Codul de 
procedură civilă (Code of Civil Procedure), Articles 4 and 9 of Regulation (EC) 
No 1889/2005, the last sentence of Article 653(1)(i) of Decree No 707/2006 and 
Article 5(5) and (6) of Order No 2/2001. 
31. […] 
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32. The respondent, Direcția Generală Regională a Finanțelor Publice București 
(Regional Directorate-General of Public Finances, Bucharest), has lodged its 
defence, in which it contends that the appeal should be dismissed as unfounded 
and that the contravention report should consequently stand in its entirety, having 
been drawn up rigorously and in accordance with the law. 
33. In its defence, the respondent emphasises that the customs authority drew up the 
contravention report rigorously and in accordance with the law. It points out that, 
given the ruling of the court of first instance, it took the view that, based on the 
documents in the case file and from hearing the applicant, the measure imposing 
the penalty had been drawn up rigorously and in accordance with the law. It also 
considers that the court was correct in its assessment that the applicant does not 
dispute the situation described in the measure imposing the penalty, and has 
confined himself to asserting that he did not think it was necessary to declare the 
cash in question on leaving the airport in Otopeni, Romania, given that he had 
declared it on leaving the airport in Sofia, Bulgaria, albeit that fact in no way 
alters the legal position. 
34. As regards the law, the respondent cites Article 205(2) of the Codul de procedură 
civilă (Code of Civil Procedure) and Order No 2/2001 on the legal regime for 
sanctions. 
35. Applicable provisions of national law 
36. Article 156(3) of Hotărârea Guvernului nr. 707/2006 din 7 iunie 2006 pentru 
aprobarea Regulamentului de aplicare a Codului vamal al României (Government 
Decree No 707/2006 of 7 June 2006 approving the Regulation for the 
implementation of the Romanian Customs Code) provides that sums of cash as 
referred to in Regulation (EC) No 1889/2005 of the European Parliament and of 
the Council on controls of cash entering or leaving the Community, published in 
the Official Journal of the European Union, Series L, No 309, of 25 November 
2005, must in all cases be declared in writing to the customs authority, in 
accordance with the provisions of this regulation. 
37. Article 653(1)(i) of Hotărârea Guvernului nr. 707/2006 din 7 iunie 2006 
(Government Decree No 707/2006 of 7 June 2006), [which penalises] failure, on 
the part of a natural person crossing the border, to comply with the obligation, 
laid down in Article 3 of Regulation (EC) No 1889/2005 of the European 
Parliament and of the Council, to declare in writing to the customs authority cash 
in foreign and/or national currency of a value equal to or in excess of the limit 
fixed by the regulation which he has with him, in the means of transport taken or 
in accompanied or unaccompanied baggage [OR 5] or in a package or parcel. 
Cash in excess of the limit fixed in the regulation that is not declared in writing 
shall be confiscated. 
38. Applicable/relevant provisions of EU law 
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39. This court considers that Article 3(1) of Regulation (EC) No 1889/2005 is 
applicable to the present case, that provision providing that any natural person 
entering or leaving the Community and carrying cash of a value of EUR 10 000 or 
more shall declare that sum to the competent authorities of the Member State 
through which he is entering or leaving the Community in accordance with this 
regulation. 
40. Article 4(2) of Regulation (EC) No 1889/2005, [which provides that], in the event 
of failure to comply with the obligation to declare laid down in Article 3, cash 
may be detained by administrative decision in accordance with the conditions laid 
down under national legislation. 
41. Article 9(1) of Regulation (EC) No 1889/2005, [in accordance with which] each 
Member State shall introduce penalties to apply in the event of failure to comply 
with the obligation to declare laid down in Article 3. Such penalties shall be 
effective, proportionate and dissuasive. 
42. The reasons for which the referring court is making the present request for a 
preliminary ruling 
43. This court has been unable to identify any settled case-law on the legal issue 
raised in this case and considers that the proper interpretation of the legal 
provision in question is not free from reasonable doubt, having regard to the 
factual circumstances of the case. 
44. In particular, in his appeal, the appellant argues that the national court failed to 
observe the principle of the primacy of EU law and argues that the confiscation of 
cash in excess of the limit fixed in Regulation (EC) No 1889/2005 that has not 
been declared in writing, which is governed by Article 653(1)(i) of Decree 
No 707/2006, is not a proportionate penalty, in that it goes beyond what is 
necessary in order to attain the regulation’s objectives, and that, accordingly, the 
national court should have disapplied that inconsistent provision of national law. 
45. Given the grounds that have been put forward for the appeal and the reasoning of 
the court of first instance in that context, the court considers that it is necessary, in 
order to resolve the dispute before it, to establish whether Article 9(1) of 
Regulation (EC) No 1889/2005 of the European Parliament and of the Council on 
controls of cash entering or leaving the Community is to be interpreted as 
precluding a penalty such as that laid down in Article 653(i) of Decree 
No 707/2006, which provides that cash in excess of EUR 10 000 that has not been 
declared in writing to the customs authority is to be confiscated in its entirety and 
permanently, and whether Article 9(1) of Regulation (EC) No 1889/2005 of the 
European Parliament and of the Council on controls of cash entering or leaving 
the Community is to be interpreted as precluding the application by Member 
States of an administrative penalty consisting in the confiscation of the entire 
undeclared [OR 6] amount without any prior or subsequent verification of the 
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provenance or destination of the amounts and regardless of their provenance and 
destination. 
[…] 
2 September 2019