Opinion of the Advocate General — ECLI:EU:C:2025:94
Date: 2025-02-13
Language of the case: Bulgarian
Procedure: Reference for a preliminary ruling
Origin: Bulgaria

Summary C-733/23 – 1 
Case C-733/23 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice  
Date lodged:  
1 December 2023 
Referring court:  
Administrativen sad Burgas (Bulgaria)  
Date of the decision to refer:  
21 November 2023 
Appellant in cassation:  
‘Beach and bar management’ EOOD  
Respondent in cassation:  
Nachalnik na otdel ‘Operativni deynosti’ Burgas  
  
Subject matter of the main proceedings 
Proceedings arising from the appeal in cassation brought by ‘Beach and bar 
management’ against the decision of the Rayonen sad Burgas (District Court, 
Burgas) confirming the decision by which the respondent in cassation imposed a 
financial penalty on the appellant in cassation for a tax offence. 
Compatibility with Article 50 of the Charter of Fundamental Rights of the 
European Union (‘the Charter’) of the cumulation of coercive administrative 
measures and financial penalties ordered as against the same person for the same 
offence in different proceedings. 
Compatibility with Article 49(3) of the Charter of an administrative penalty in the 
form of a ‘financial penalty’ subject to a high lower limit, without procedural law 
leaving it open to the court to set the financial penalty at an amount below that 
lower limit or to impose a more lenient type of penalty. 
Compatibility with the first paragraph of Article 47 and Article 49(3) of the 
Charter of the imposition of a single overall coercive administrative measure in 
EN 
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respect of multiple offences and the permissibility of provisionally enforcing that 
measure before it has become final, without procedural law leaving it open to the 
court or the offender itself to review the proportionality of that measure in relation 
to the seriousness of each individual administrative offence. 
Subject matter and legal basis of the request 
The request for a preliminary ruling is made under subparagraph (b) of the first 
paragraph of Article 267 TFEU. 
Questions referred for a preliminary ruling 
1. Are Article 325 of the Treaty on the Functioning of the European Union, 
Article 273 of Council Directive 2006/112/EC of 28 November on the 
common system of value added tax and Article 50 of the Charter of 
Fundamental Rights of the European Union to be interpreted as permitting 
national legislation under which a single overall measure of ‘sealing 
business premises and prohibiting access thereto’ may be imposed in respect 
of multiple failures to fulfil tax obligations, where that measure is aimed 
exclusively at limiting the adverse effects of the offence, including the 
extent of the damage to the financial interests of the European Union, but 
not at punishing the offender, without that measure limiting the possibility of 
pursuing against that offender, in respect of each of those failures to fulfil 
tax obligations, independent proceedings of a punitive nature imposing on 
the taxable person a measure in the form of a financial penalty, it being the 
duty of the national court to examine and determine in each individual case 
which of the two objectives is pursued by the coercive administrative 
measure of ‘sealing business premises and prohibiting access thereto’ 
imposed at an earlier stage: prevention and restriction or punishment? 
2. Are Article 325 of the Treaty on the Functioning of the European Union, 
Article 273 of Council Directive 2006/112/EC of 28 November 2006 on the 
common system of value added tax and Article 49(3) of the Charter of 
Fundamental Rights of the European Union to be interpreted as precluding a 
regime of penalties such as those at issue in the main proceedings, which, 
irrespective of the nature and seriousness of the offences, provides for a 
significant lower limit for the penalty in the form of a financial penalty, 
without providing for the possibility of imposing a penalty below the 
minimum amount laid down in the law or of replacing that penalty with a 
more lenient one? 
3. Are Article 325 of the Treaty on the Functioning of the European Union, 
Article 273 of Council Directive 2006/112/EC of 28 November 2006 on the 
common system of value added tax and the first paragraph of Article 47, 
Article 48(1) and Article 49(3) of the Charter of Fundamental Rights of the 
European Union to be interpreted as precluding national legislation which 
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allows, in respect of multiple failures to fulfil tax obligations, the imposition 
of a single overall measure of ‘sealing business premises and prohibiting 
access thereto’ and – before that measure becomes final – its provisional 
enforcement, without giving the court and the offender itself the opportunity 
to review the proportionality of that measure in relation to the seriousness of 
each individual administrative offence? 
Provisions of European Union law and case-law relied on 
TFEU, Article 325(1) and (2) 
Council Directive 2006/112/EC of 28 November 2006 on the common system of 
value added tax, Article 273 
Charter of Fundamental Rights of the European Union (‘the Charter’), first 
paragraph of Article 47, Article 49(3), Article 50 
Judgment of the Court of Justice of 4 May 2023, MV – 98, C-97/21, 
EU:C:2023:371 
Provisions of national law relied on 
Zakon za danak varhu dobavenata stoynost (Law on Value Added Tax; ‘the 
ZDDS’) 
NAREDBA No N-18 ot 13.12.2006 za registrirane i otchitane chrez fiskalni 
ustroystva na prodazhbite v targovskite obekti, iziskvaniata kam softuerite za 
upravlenieto im i iziskvania kam litsata, koito izvarshvat prodazhbi chrez 
elektronen magazin (Regulation N-18 of 13 December 2006 on the registration 
and recording of sales on business premises by means of fiscal memory devices, 
the requirements governing software for their management and the requirements 
as regards persons making sales via online shops; ‘Regulation No N-18’) 
Zakon za administrativnite narushenia i nakazania (Law on administrative 
offences and penalties; ‘the ZANN’) 
Danachno-osiguritelen protsesualen kodeks (Code of tax and social security 
procedure; ‘the DOPK’) 
Succinct presentation of the facts and procedure in the main proceedings 
1 The appellant in cassation is a legal person which operates business premises, 
namely a bar and restaurant. 
2 At 15.15 on 4 August 2022, revenue inspectors from the glavna direktsia ‘Fiskalen 
kontrol’ (General Directorate ‘Tax Supervision’) carried out an audit in the 
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appellant in cassation’s business premises. The inspectors drew up a record of that 
audit, during which they had found two POS terminals on the premises as well as 
85 POS terminal receipts for accepted payments by debit and credit cards during 
the period from 25 June 2022 to 26 July 2022, amounting in total to BGN 2978. In 
the case of those 85 payment transactions, it was found that no fiscal cash register 
receipts had been issued from the fiscal memory devices present in the bar and 
restaurant. 
3 The administrative authority took the view that the omissions found to have 
occurred in the period from 25 June 2022 to 26 July 2022, in the form of the non-
issue of cash register receipts for 85 sales, constituted 85 instances of 
infringement of Article 118(1) of the ZDDS, read in conjunction with 
Article 25(1)(1) of Regulation No N-18. That provision imposes on every trader 
an obligation to register and record all sales made in a business premises by 
issuing a fiscal cash register receipt generated by a fiscal memory device. 
4 On 12 August 2022, the administrative authority issued an order imposing the 
coercive administrative measure of ‘sealing business premises’ for a period of 
14 days and ‘prohibiting access thereto’ for the same period. In the order imposing 
the coercive administrative measure, the administrative authority authorised by 
separate decision the provisional enforcement of that measure. 
5 The order imposing the coercive administrative measure of 12 August 2022 and 
the decision of the administrative authority, contained in that order, authorising its 
provisional enforcement, were challenged before the Administrativen sad Burgas 
(Administrative Court, Burgas) in two separate sets of proceedings. Those actions 
were dismissed. 
6 At the time of the hearing of the main proceedings in the present case, the judicial 
decisions in the abovementioned two disputes are final and the penalty of ‘sealing 
business premises and prohibiting access thereto’ for a period of 14 days was 
enforced. 
7 On the basis of the 85 notices establishing an administrative offence which had 
been issued, the penalising authority issued a total of 85 decisions imposing a 
penalty, including, inter alia, the decision at issue here, the facts relating to which 
it considered to be proved. For each of the 85 offences, a financial penalty equal 
to the minimum amount laid down in the provision on sanctions, BGN 500.00, 
was imposed on ‘Beach and bar management’. The total sanction for all 85 
offences thus amounts to BGN 42 500.00. The total amount of VAT not registered 
owing to the non-issue of cash register receipts for all 85 payment transactions 
completed via POS terminals amounts to BGN 268.02. 
8 All 85 decisions were challenged before the District Court, Burgas. 85 sets of 
proceedings were instituted and the District Court, Burgas confirmed each 
decision that was the subject of an action. All 85 judgments of the District Court, 
Burgas are currently under appeal to the Administrative Court, Burgas, the 
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proceedings before which are not concluded but are to be stayed for the making of 
the present request for a preliminary ruling. 
9 In this particular dispute (although the same is also true of all of the other 84 
cases), the court of first instance considered the facts to be proved and found that 
the penalising administrative authority had applied the law correctly in forming 
the view that the company in question had committed the offence concerned. It 
found that the penalty imposed had been set at the minimum level provided for by 
law, and confirmed the decision imposing a penalty in full. That judgment was 
given before the delivery of the judgment of the Court of Justice of 4 May 2023 in 
Case C-97/21. In the grounds of its judgment, the court [of first instance] neither 
took into account the fact that the order of 12 August 2022 and the decision for its 
provisional enforcement had enforced the coercive administrative measure of 
‘sealing business premises and prohibiting access thereto’ for a period of 14 days 
which had been imposed in respect of all 85 offences, nor gave any consideration 
to the legal effect of that enforced coercive administrative measure on the current 
second set of proceedings, which are concerned with a review of the financial 
penalty imposed in the amount of BGN 500.00. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
10 The ZDDS governs the levying of VAT on every taxable supply of goods or 
services for consideration. That law provides for two types of measure in the event 
of non-compliance by the taxable person with the obligations arising from the 
ZDDS: on the one hand, the application of coercive administrative measures and, 
on the other hand, the imposition of administrative penalties (in this case, a 
financial penalty). In accordance with the judgment of the Court of Justice in Case 
C-97/21, coercive administrative measures are regarded as measures of a punitive 
nature (referred to as ‘soft penalties’ for the purposes of this request). 
11 The imposition, challenge and enforcement of those two types of measure are 
subject to different procedural rules. Those relating to the imposition of a financial 
penalty follow the logic and the rules of the law of criminal procedure. The 
imposition of so-called soft penalties is governed by the rules of the law of 
administrative procedure and (in the case of subsidiarity) the law of civil 
procedure. 
12 The adjudicating chamber is aware of and takes into account the legal conclusions 
set out by the Court of Justice of the European Union in the judgment of 4 May 
2023 in Case C-97/21, in particular paragraphs 49 and 63. 
13 The present case is governed by the same legal basis but differs in relation to the 
facts from the abovementioned case in such a way as to prompt on the part of the 
adjudicating chamber seised doubts as to whether the two cases are to be treated, 
from the point of view of the application of EU law, in the manner laid down in 
the judgment of 4 May 2023 in Case C-97/21. 
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14 So far as the facts are concerned, the essential difference lies in the fact that the 
applicant in the main proceedings in the course of which the judgment of 4 May 
2023 in Case C-97/21 was given challenged two measures (which were regarded 
by the Court of Justice as penalties) imposed for a single offence: 1. a soft penalty 
in the form of the coercive administrative measure of ‘sealing business premises 
and prohibiting access thereto’; and 2. a financial penalty. 
15 As well as in cases such as the foregoing, a soft penalty in the form of the coercive 
administrative penalty of ‘sealing business premises and prohibiting access 
thereto’ may also be ordered in respect of more than one offence, that is to say, in 
respect of a number of similar offences committed by one and the same person. 
16 The present case differs from the case previously decided by the Court of Justice 
in that, following the audit that was conducted, which covered a whole financial 
period of one month, not just one but 85 individual offences were found to have 
been committed. In this case, the soft penalty in the form of the coercive 
administrative measure of ‘sealing business premises and prohibiting access 
thereto’ was imposed in respect of all of the offences which the audit had found to 
have been committed, considered as a whole. 
17 In the present case, the adjudicating chamber seised finds that the coercive 
administrative measure of ‘sealing business premises and prohibiting access 
thereto’ is not punitive but restrictive in nature and is aimed at limiting the extent 
of the damage caused to the financial interests of the European Union by 
temporarily bringing to a halt a commercial activity which, on account of the 
offences found by the auditors, is damaging to the system of VAT in the longer 
term. 
18 This view is based primarily on Article 22 of the ZANN, according to which the 
effect of coercive administrative measures is, on the one hand, both deterrent and 
restrictive and ‘preventing the adverse consequences of administrative offences’ 
but can, on the other hand, also be punitive, as the Court of Justice held in its 
judgment in Case C-97/21. 
19 In the present case, 85 sales made within one month were not registered with a 
fiscal memory device. Under national law, each omission constitutes a separate 
offence. A single overall soft penalty in the form of the coercive administrative 
measure of ‘sealing business premises and prohibiting access thereto’ for a period 
of 14 days was imposed in respect of all of the offences found to have been 
committed, without any individual examination of each of the 85 offences, 
including from the point of view of the seriousness of each and the proportionality 
to its seriousness of the corresponding share of the overall soft penalty in the form 
of the coercive administrative measure. An individual determination of the share 
of the penalty amount in proportion to the seriousness of each individual offence 
is not required by law and was not carried out in those now concluded 
proceedings. 
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20 The soft penalty itself, namely the coercive administrative measure, was enforced. 
From a formal point of view, therefore, it seems reasonable to consider, in the 
light of what the Court of Justice held in Case C-97/21, that the offender has 
already been penalised for the same offence and that the court, in the absence of a 
statutory mechanism for coordinating the soft penalty already imposed and the 
financial penalty at issue in the main proceedings, should not penalise that 
offender again. The referring court takes the view that, in the case at hand, which 
concerns the imposition of a coercive administrative measure in respect of 85 
offences considered as a whole, such an approach to the issue would infringe 
Article 325 TFEU and Article 273 of Directive 2006/112, since it would prevent 
the penalty imposed for each particular offence from being individualised, thus 
restricting the possibility of verifying whether the penalty is lawful, justified and 
appropriate. That approach also makes it impossible to examine whether the 
measures so ordered act as a deterrent and afford effective protection, in 
accordance with Article 325 TFEU, so as to ensure the correct collection of VAT 
and prevent evasion within the meaning of Article 273 of Directive 2006/112. 
21 In the view of the adjudicating chamber seised, that soft penalty, namely the 
coercive administrative measure, is not capable of attaining those fundamental 
objectives, since it has a dual nature, with the primary one being restrictive rather 
than punitive in nature, and fulfils punitive functions too only in some cases. 
22 In order to substantiate its view, the court seised would like to explain, from a 
procedural point of view, the mechanism and scope of the review under national 
law of the order imposing a soft penalty in the form of a coercive administrative 
measure. 
23 Unlike the procedure for contesting a proper penalty, which is governed entirely 
by the rules of criminal procedure, and thus requires proof of the subject and 
object of the criminal offence, of the subjective and objective elements of the act, 
and of the legality of the type and severity of the penalty imposed, the judicial 
review conducted in the context of an action contesting a soft penalty in the form 
of a coercive administrative measure covers consideration of the following. Was 
the order imposing the coercive administrative measure issued by a competent 
authority? Was it issued in the legal form prescribed by law? Was the procedure 
for its issue followed in such a way as not to restrict the applicant’s ability to 
present all of his or her arguments and to gather all of the evidence considered by 
him or her to be relevant, without restricting his or her rights of defence? Are 
there genuine factual grounds for the issue of the contested order and do they 
correspond to the legal grounds given therein for its issue? Is the extent of the 
coercive administrative measure imposed proportionate and justified? Some of the 
objective and subjective elements of the offence are not assessed. 
24 It should also be noted that, when reviewing the imposition of a soft penalty in the 
form of a coercive administrative measure, the court has no option to shorten or 
extend the period for which it was ordered. In the event that the adjudicating 
chamber considers that measure to be disproportionate, the only option available 
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to it is to revoke the measure in its entirety, but it cannot adjust/individualise that 
measure according to the seriousness of the offence(s). 
25 Next, it is crucial to note that, even if the court finds the measure ordered to be 
fair and proportionate in itself, that measure may still be annulled, for example 
because the formal conditions for its issue were not fulfilled, even though the 
offender and the offence were established. 
26 On the one hand, this prompts misgivings on the part of the adjudicating chamber 
as to whether the revocation in this way of a coercive administrative measure 
which has been ordered may be regarded as an acquittal for the purposes of 
Article 50 of the Charter, in which case, in the absence of a mechanism for 
coordinating the soft penalty in the form of a coercive administrative measure and 
the financial penalties provided for, the conduct of a second set of penalty 
proceedings would be precluded on the ground that these would constitute 
criminal proceedings not properly conducted with due regard for all the required 
guarantees and standards. 
27 On the other hand, the court also has doubts as to whether the imposition of this 
soft overall penalty, in the form of a coercive administrative measure, in respect of 
numerous tax offences, in the manner set out above, without the individual 
consideration of each of the 85 offences committed, may be regarded as a first 
conviction for the purposes of Article 50 of the Charter, where the penalty for 
each offence has not been duly individualised and not all of the standards laid 
down in the law of criminal procedure for the protection of the offender have been 
complied with, such as, for example, the option of provisional enforcement of the 
coercive administrative measure, which is directly contrary to the presumption of 
innocence enshrined in Article 48(1) of the Charter. 
28 The case giving rise to the present request for a preliminary ruling calls for an 
assessment of the legality of the proceedings leading to the imposition of a 
financial penalty on the offender. Since those proceedings progressed more slowly 
than the administrative proceedings for the imposition of a soft penalty in the form 
of a coercive administrative measure, they are, chronologically, the second set of 
proceedings against the trader. It therefore falls to the referring court to examine 
whether the first, soft penalty in the form of a coercive administrative measure of 
‘sealing business premises and prohibiting access thereto’ for a period of 14 days 
constitutes a ‘conviction’ for the purposes of the Charter, that is to say, whether 
criminal proceedings in the broader sense of that term were conducted, whether a 
measure of a criminal nature was imposed, and whether, from a factual point of 
view, that measure was ordered in respect of the same offence. That examination 
is by its nature an application of the ‘Engel’ test, that is to say, an algorithm 
introduced by the ECtHR in Engel and Others v. Netherlands and established in 
its case-law, which has been fully adopted and further developed by the Court of 
Justice in its judgments (Bonda, С-489/10, paragraph 37, Hans Åkerberg 
Fransson, С-617/10, and others). 
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29 In applying that test, the referring court, first of all, has doubts as to whether the 
first set of proceedings (in which the soft penalty in the form of a coercive 
administrative measure was imposed) involved the conduct of proceedings which, 
by their nature, constitute criminal proceedings in the broader sense of that term, 
inasmuch as that measure was ordered in respect of all of the 85 offences found to 
have been committed, considered as a whole. That measure is not individual, 
which is to say that it is not ordered in respect of one in particular of those 85 
offences (as, for example, in the situation that was examined by the Court of 
Justice in Case C-97/21), and, from a legal point of view, does not constitute a 
cumulation of 85 individual soft penalties in the form of coercive administrative 
measures. If that soft penalty in the form of a coercive administrative measure 
were to be regarded as a penalty within the meaning of Case C-97/21, it would not 
be individualised in relation to each particular offence committed. This would lead 
directly to a breach of the principle of proportionality laid down in Article 49(3) 
of the Charter, according to which the severity of the penalty must not be 
disproportionate to the criminal offence – a circumstance which neither the court 
seised nor the offender itself is able to assess in relation to the contested soft 
penalty in the form of a coercive administrative measure that was imposed in 
respect of 85 offences considered as a whole. 
30 National law does not in fact provide for the procedural possibility of cumulating 
administrative penalties. On the contrary, in accordance with Article 18 of the 
ZANN, an individual penalty is to be imposed for each offence. 
31 Lastly, that soft penalty in the form of a coercive administrative measure is neither 
included in a specific list of penalties imposed, nor taken into account in the 
assessment of the repeated or systematic commission of an offence, as is the case 
with penalties for criminal offences or financial penalties which are imposed in 
administrative penalty proceedings such as the main proceedings. 
32 Considered as a whole, all of the circumstances of the present case, as described, 
might give the impression that, in a case such as that in the main proceedings, in 
which a coercive administrative measure was imposed in respect of 85 offences 
considered as a whole but the extent to which that measure is ordered in respect of 
each particular offence is not individualised, the safeguarding function of the 
coercive administrative measure, which restricts the amount of unregistered and 
uncharged VAT to that in the original findings, does not simply prevail over its 
punitive nature but is in practice the only manifestation of the coercive 
administrative measure in the main proceedings as specifically described, and is 
aimed exclusively at limiting the extent of the damage to the financial interests of 
the European Union. 
33 The adjudicating chamber seised takes the view that, in such a case, the national 
courts have jurisdiction to assess which manifestation of the dual nature of the 
measure in question was applied in each individual case, and should exercise that 
jurisdiction. That procedural possibility is fully consistent with the guidance given 
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by the Court of Justice to the national courts in the judgment in Hans Åkerberg 
Fransson, C-617/10. 
34 The court does not call into question the considerations set out in Case C-97/21 
with respect to the high level of severity of the soft penalty in the form of a 
coercive administrative measure in relation to the offence in respect of which it 
was imposed in the main proceedings that formed the subject of the judgment of 
4 May 2023 in Case C-97/21. Where, however, that measure concerns 85 
individual offences relating to evasion of the obligation to register sales and 
collect VAT, in other words, concerns ongoing and persistent conduct which, 
according to the findings of the officials concerned, lasted for at least one month, 
that measure does not in the view of the referring court seem so excessively severe 
and disproportionate as to have to be treated as a measure of a punitive nature, 
but, as mentioned above, is aimed rather at limiting the extent of the overall 
damage caused to the EU budget by the numerous administrative offences 
committed. 
35 Should the Court of Justice endorse the position set out above and concur with the 
referring court’s view that the soft penalty in the form of a coercive administrative 
measure ordered in respect of all 85 administrative offences, in the case of which 
the seriousness of each particular offence and the extent to which the coercive 
administrative measure pertains to each particular offence were not individualised, 
does not constitute a ‘conviction’ within the broader sense of that term, it must be 
assumed, in the light of the ne bis in idem principle, that there are no procedural 
obstacles precluding the referring court from hearing and determining the second 
set of administrative penalty proceedings brought before it and imposing a 
financial penalty should it find that the company committed the offence at issue. 
36 In this connection, the referring court would like to know whether Article 325 
TFEU, Article 273 of Directive 2006/112 and Article 50 of the Charter are to be 
interpreted as permitting national legislation under which a single overall coercive 
administrative measure of ‘sealing business premises and prohibiting access 
thereto’ may be ordered in respect of multiple failures to fulfil tax obligations, 
where that measure is aimed exclusively at limiting the adverse effects [of those 
offences], including the extent of the damage to the financial interests of the 
European Union, but not at punishing the offender, without that measure 
restricting the possibility of pursuing against the same offender, in respect of each 
of those offences, independent proceedings of a punitive nature imposing on the 
taxable person a punishment in the form of a ‘financial penalty’, it being the duty 
of the national court to examine and determine in each individual case which of 
the two objectives is pursued by the soft penalty imposed in the form of the 
coercive administrative measure of ‘sealing business premises and prohibiting 
access thereto’: prevention and restriction or punishment. 
37 If the Court of Justice finds this to be the case in a situation such as that in the 
main proceedings, it will fall to the court to examine the substance of the 
administrative-law dispute. In that event, the adjudicating chamber will have to 
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examine the lawfulness of the penalty imposed by the penalising administrative 
authority (if the court finds that the offence in question was committed). 
38 The grounds of the judgment of 4 May 2023 in Case C-97/21 already state that the 
financial penalty provided for in respect of the offence at issue is of an excessively 
‘severe’ nature – paragraph 48 of the judgment. However, in so far as the present 
case concerns the fact that a sale in the amount of BGN 30.00 was not registered 
and that VAT in the amount of 9% of the sale value, that is to say, in the amount 
of BGN 2.70, was not collected, the sum relevant to the adjudicating chamber 
seised is the minimum amount of the financial penalty laid down by law. In the 
case of legal persons, that amount is BGN 500.00. 
39 On the one hand, it is to be noted that this case concerns the fulfilment of an 
element of an offence simply through an omission, that is to say the ‘non-issue of 
a cash register receipt’, which is not linked to the extent of the damage caused to 
the financial interests of the European Union. On the other hand, the amount of 
VAT uncharged and unpaid as a result of that omission is one of the essential 
points of reference for assessing the severity of the penalty, since it determines the 
amount of VAT evaded and not collected, in fulfilment of the obligation laid 
down in Article 325 TFEU and Article 273 of Directive 2006/112, which permit 
the use at national level of any means to collect VAT and to restrict the damaging 
effects of any illegal activity which adversely affects the financial interests of the 
European Union. 
40 In addition to the foregoing, it is to be recalled that Article 18 of the ZANN 
obliges the penalising administrative authority to impose in respect of each 
offence a separate penalty which is to be discharged separately. The law does not 
take into account the overall effect of the entire series of penalties which may be 
imposed on an offender. It thus makes no provision for the legal concept of the 
‘cumulation’ of penalties, as criminal law does. 
41 In the context of the assertions made in the previous paragraph, it strikes the 
adjudicating chamber as disproportionate, in the light of Article 49(3) of the 
Charter, that the abovementioned legal concept of the cumulation of penalties is 
envisaged for the purposes of criminal justice, which penalises more serious 
unlawful acts, namely criminal offences, but not for less serious offences which 
are dealt with in accordance with the procedure provided for in the ZANN, as in 
the present case. This entails a risk for the imposition of a penalty that is 
disproportionate in its type and amount, as considered from the point of view of 
the amount of the damage to the financial interests of the European Union, 
without the possibility of carrying out a full and actual assessment of the severity 
of the penalty in relation to the actual offence. This is also contrary to 
Article 47(1) of the Charter, since the offender does not have access to an 
effective remedy by which to obtain a fair punishment for the cumulative adverse 
effects of all 85 administrative offences. 
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42 The fact that the legal concept referred to in the previous paragraph does not exist 
as a possible means of individualising financial penalties in cases concerning 
administrative offences seems even more serious in the light also of the fact that 
the procedural provisions of the ZANN do not allow the chamber dealing with the 
case to set a financial penalty below the amount laid down by law, while, at the 
same time, that minimum amount is of a not insignificant nominal value. In this 
particular case, those circumstances may lead to the imposition of a total of 85 
financial penalties, each of which has a minimum value of BGN 500.00 and the 
overall punitive effect of which amounts to BGN 42 500.00, a sum which is 
almost certainly more likely to contribute to the offender’s insolvency than to 
have a deterrent and corrective effect on that offender. 
43 The adjudicating chamber takes the view that, on a comparative analysis, the 
prescribed penalty of BGN 500 seems disproportionately high in relation to the 
VAT evaded, which, as stated above, amounts to BGN 2.70. The abovementioned 
total amount of the penalty for all 85 offences also seems disproportionately high 
in relation to the total amount of the unregistered VAT arising from all 85 
offences, which runs to BGN 268.02. 
44 On the other hand, dispensing entirely with imposing punitive penalties of any 
type or amount, on account of the trifling nature of each individual offence, would 
not help achieve the effects and discharge the tasks imposed on the Member States 
by Article 325 TFEU and Article 273 of Directive 2006/112 either, in so far as the 
present case concerns an ongoing and persistent illegal activity which has been 
proved to have been perpetuated on a daily basis for at least a month. 
45 For the reasons set out above, the referring court has doubts as to whether a legal 
system such as the [Bulgarian] one, which provides for a significant lower penalty 
limit for offences the adverse effects of which on the financial interests of the 
European Union are a hundred times lower than the penalty prescribed, without 
authorising the imposition of a penalty below the minimum amount prescribed by 
law or of an overall penalty of the most severe type and amount in respect of all 
the offences committed by the trader, before the latter is convicted for the first 
time by a final administrative or judicial act, infringes the principle of 
proportionality provided for in Article 49(3) of the Charter. 
46 Lastly, if the Court of Justice were to take the opposite view, to the effect that the 
coercive administrative measure ordered in respect of all 85 offences constitutes a 
‘conviction’ in the broader sense of that term, that is to say, if that coercive 
administrative measure is regarded as a penalty within the meaning of the 
judgment in Case C-97/21 and there is no individualisation in relation to each 
particular offence committed, the referring court has doubts as to whether this 
might not run directly counter to the principle that the penalty must be 
proportionate to the offence committed, enshrined in Article 49(3) of the Charter, 
according to which the severity of the penalty must not be disproportionate to the 
criminal offence – a circumstance which neither the adjudicating chamber seised 
nor the offender itself is able to assess in the case of a soft penalty in the form of a 
BEACH AND BAR MANAGEMENT  
 
13 
coercive administrative measure which was imposed in respect of 85 offences 
considered as a whole. The fact that there is no mechanism for presenting a 
defence against each of the individual offences for which an overall soft penalty in 
the form of a coercive administrative measure is envisaged leads the adjudicating 
chamber also to conclude that Article 47(1) of the Charter is infringed, inasmuch 
as the proceedings thus provided for do not guarantee the right of the appellant in 
cassation to an effective remedy and a fair trial.