Opinion of the Advocate General — ECLI:EU:C:2022:821
Date: 2022-10-20
Language of the case: Romanian
Subject matter: Taxation;Principles, objectives and tasks of the Treaties;Approximation of laws;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Romania

Summary C-412/21-1 
Case C-412/21 
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: 
6 July 2021 
Referring court: 
Tribunalul Satu Mare (Romania) 
Date of the decision to refer: 
9 June 2021 
Applicant: 
Dual Prod SRL 
Defendant: 
Direcția Generală Regională a Finanțelor Publice Cluj-Napoca ‒ 
Comisia regională pentru autorizarea operatorilor de produse supuse 
accizelor armonizate 
  
Subject matter of the main proceedings  
Administrative action brought before the Tribunalul Satu Mare (Regional Court, 
Satu Mare, Romania) by the applicant Dual Prod SRL against the defendant 
Direcția Generală Regională a Finanțelor Publice Cluj-Napoca ‒ Comisia 
regională pentru autorizarea operatorilor de produse supuse accizelor armonizate 
(Regional Directorate-General of Public Finances of Cluj-Napoca ‒ Regional 
authority for the authorisation of operators dealing in or producing goods subject 
to harmonised excise duty), seeking the annulment of certain decisions by which 
the applicant’s authorisation as a tax warehouse-keeper was suspended pending 
final judgment in criminal proceedings brought against it. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-412/21 
 
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Subject matter and legal basis of the request for a preliminary ruling 
Pursuant to Article 267 TFUE, the referring court seeks interpretation of 
Article 48(1) and Article 50 of the Charter of Fundamental Rights of the European 
Union (‘the Charter’) and of Article 16(1) of Directive 2008/118. 
Questions referred for a preliminary ruling 
1. Is Article 48(1) of the Charter of Fundamental Rights of the European 
Union, which concerns the principle of the presumption of innocence, read in 
conjunction with Article 16(1) of Directive 2008/118/EC, to be interpreted as 
precluding a legal situation, such as that at issue in the present case, in which an 
administrative measure suspending an authorisation to operate as a producer of 
alcohol may be adopted on the basis of mere presumptions which are the subject 
of an ongoing criminal investigation, without any final conviction in criminal 
proceedings having been handed down? 
2. Is Article 50 of the Charter of Fundamental Rights of the European Union, 
which concerns the principle non bis in idem, read in conjunction with 
Article 16(1) of Directive 2008/118/EC, to be interpreted as precluding a legal 
situation, such as that at issue in the present case, in which two penalties of the 
same nature (suspension of authorisation to operate as a producer of alcohol), 
differing only in [the duration of their effect], are imposed on the same person in 
respect of the same facts?  
Provisions of EU law relied on 
Article 48(1) and Article 50 of the Charter 
Council Directive 2008/118/EC of 16 December 2008 concerning the general 
arrangements for excise duty and repealing Directive 92/12/EEC; Article 16(1) 
Council Directive 92/83/EEC of 19 October 1992 on the harmonisation of the 
structures of excise duties on alcohol and alcoholic beverages  
Provisions of national law relied on 
Legea nr. 227/2015 privind Codul fiscal (Law No 227/2015 establishing the Tax 
Code, ‘the Tax Code’): 
Article 369(3)(b) and (c), which provide that the authorisation for a tax warehouse 
is to be suspended for a period of between 1 and 12 months where it is established 
that offences referred to in Article 452(1)(i) have been committed, or until the 
final outcome of criminal proceedings, where a prosecution has been brought for 
an offence referred to in Article 364(1)(d); 
DUAL PROD 
 
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Article 364(1)(d), which provides that no authorisation for a tax warehouse is to 
be issued if the applicant has been finally convicted of certain offences, including 
offences under the Tax Code; 
Article 452(1)(h) and (i), according to which it is an offence for any person to 
hold outside a tax warehouse or to market on the territory of Romania excise 
goods which are subject to a marking obligation, but are not marked or are 
improperly marked, in quantities exceeding the thresholds expressly laid down in 
the Tax Code, and the use of mobile pipes and tubes, elastic hoses or other 
conduits of similar nature, the use of uncalibrated tanks and the placing before 
meters of conduits or taps by means of which quantities of alcohol or spirits may 
be extracted without being measured by the meter are offences. 
Succinct presentation of the facts and procedure in the main proceedings 
1 The applicant is authorised to operate in the sector for the production of alcohol 
and alcoholic beverages and thus falls within the scope of Directives 2008/118 
and 92/83. 
2 On 1 August 20[1]8, at the request of the customs control authorities, the police 
carried out an inspection at the applicant’s premises. 
3 In the course of the joint investigation carried out by those authorities it was found 
that the applicant had installed a hose through which alcohol was run into a 
container located near the fence surrounding the production tax warehouse. 
Following the inspection, two parallel sets of proceedings were initiated against 
the company Dual Prod SRL, both of which exclusively concerned the facts, 
without any formal charge being made against the possible perpetrators. 
4 The criminal proceedings concerned two offences, namely the installation of a 
hose at the production plant and the holding outside the tax warehouse of more 
than 40 litres of ethyl alcohol having a concentration of at least 96%, which, 
according to the police, constitute offences under Article 452 of the Tax Code. 
5 The following day, the customs authorities returned to the company’s premises 
and proceeded to seal them on the ground of infringement of the special 
arrangements for excise goods. The tax warehouse authorisation was not 
suspended on that occasion. However, while it remained theoretically possible for 
the company to continue to operate administratively, the sealing of its premises 
made it impossible for it to carry on any of its activities. 
6 The Curtea de Apel Oradea – Secția de contencios administrativ (Court of Appeal, 
Oradea, Romania – Division for Administrative Matters) held that the sealing of 
the premises had been unlawful, finding that, in the absence of a final court 
decision, it constituted an infringement of the presumption of innocence. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-412/21 
 
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7 On 5 September 2018, the customs authorities officially suspended the applicant’s 
authorisation as a tax warehouse-keeper for a period of 12 months, taking the view 
that the existence of evidence of criminal offences was sufficient for that 
administrative penalty to be imposed. 
8 Following the applicant’s appeal against that measure, the Court of Appeal, 
Oradea, reduced the penalty from 12 to 8 months, finding the maximum penalty to 
be disproportionate. The applicant fully complied with the eight-month 
suspension. 
9 On 21 October 2020, the applicant was formally charged in the criminal 
proceedings and consequently, on 19 November 2020, the customs authorities 
imposed the same administrative penalty again, in respect of the same facts, 
suspending the applicant’s authorisation as a tax warehouse-keeper for an 
indefinite period, pending the final outcome of the criminal proceedings. 
10 The applicant, alleging an infringement of the presumption of innocence and of 
the principle non bis in idem, has challenged that further suspension before the 
referring court (the Regional Court, Satu Mare), which has decided to refer the 
matter to the Court of Justice for a preliminary ruling. 
The essential arguments of the parties in the main proceedings 
11 The applicant argues that although Directive 92/83 does not contain provisions 
concerning authorisation matters, the measures which the Member States adopt in 
this area must remain proportionate when aimed at preventing fraud. 
12 Two issues arise in the present case. First, there is the question of infringement of 
the principle non bis in idem, inasmuch as two penalties of the same nature have 
been imposed in respect of the same facts. Secondly, there is the question of the 
proportionality of the penalties imposed, in that, even before the conclusion of the 
criminal proceedings, the penalty imposed, given its consequences — namely that 
it prevents the applicant company from carrying on any kind of operation — is 
one which may be characterised as a criminal penalty. 
Succinct presentation of the reasoning in the request for a preliminary ruling  
13 The referring court states that two issues arise in this case. The first concerns the 
fact that a taxable person’s activities may be suspended indefinitely for the simple 
reason that there is evidence that it has committed a criminal offence, without any 
final judgment having been delivered. The second concerns a possible breach of 
the principle non bis in idem as a result of two penalties of the same nature being 
imposed in tax proceedings in respect of the same facts, simply because the 
criminal proceedings have reached a certain stage. 
DUAL PROD 
 
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14 In the referring court’s view, until such time as a national court delivers a final 
judgment finding Dual Prod SRL guilty of the facts of which it is accused, that 
company must be regarded as innocent. The decision of the national authorities, 
however, seems to imply that the applicant company has been found guilty. 
15 In addition, the consequences of that decision for a taxable person operating in a 
sector in which excise duties apply are especially injurious, since that person will 
be prevented from carrying on any activity, which would be contrary to Article 48 
of the Charter. 
16 As regards breach of the principle non bis in idem, the referring court states that, 
in the present case, the two suspensions of the tax warehouse authorisation are of 
the same nature and were imposed in respect of the same facts. In its judgment of 
26 February 2013, Åkerberg Fransson, C-617/10, EU:C:2013:105, the Court of 
Justice accepted a combination of tax penalties and criminal penalties, but only if 
the tax penalty does not take the form of a penalty that is criminal in nature. 
17 The referring court considers that since the penalties suspending the tax 
warehouse authorisation are closely connected with the criminal proceedings, it is 
necessary to interpret the principle non bis in idem in relation to the application of 
the same type of penalty, one having the same nature, in respect of the same facts.