Opinion of the Advocate General — ECLI:EU:C:2025:91
Date: 2025-02-13
Language of the case: Bulgarian
Procedure: Reference for a preliminary ruling
Origin: Bulgaria

Summary C-605/23 – 1 
Case C-605/23 
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:  
4 October 2023 
Referring court:  
Administrativen sad Blagoevgrad (Bulgaria) 
Date of the decision to refer:  
21 September 2023 
Applicant:  
‘Ati-19’ EOOD 
Defendant:  
Nachalnik na otdel ‘Operativni deynosti’ – Sofia v Glavna direktsia 
‘Fiskalen kontrol’ pri Tsentralno upravlenie na Natsionalna agentsia 
za prihodite (Head of the Department ‘Operational Activities’ – 
Sofia City for the General Directorate ‘Tax Supervision’ of the 
Central Administration of the National Revenue Agency, Bulgaria) 
  
Subject matter of the main proceedings 
The main proceedings were initiated following an action brought by the ‘Ati-19’ 
EOOD against the order of administrative enforcement measures issued by the 
defendant on 30 August 2023. The order required the ‘sealing’ of the business 
premises operated by ‘Ati-19’ EOOD for a period of 14 days and a ‘ban on 
access’ pursuant to Article 186(1)(1)(a) and Article 187(1) of the Zakon za danak 
varhu dobavenata stoynost (Law on VAT; ‘the ZDDS’). 
On 19 September 2023, during the main proceedings, the company ‘Ati-19' 
EOOD applied to the court pursuant to Article 166(2) of the 
Administrativnoprotsesualen kodeks (Code of Administrative Procedure; ‘the 
APK’) for the provisional enforcement of the contested order of 30 August 2023, 
which was authorised by administrative decision of the issuing authority, to be 
stayed. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-605/23 
 
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Subject matter and legal basis of the request 
The request is made under point (b) of the first paragraph of Article 267 TFEU. 
Question referred for a preliminary ruling 
Must Article 47(1) of the Charter of Fundamental Rights of the European Union 
be interpreted as not precluding national rules on protection against the 
provisional enforcement of measures introduced by the national legislature to 
safeguard the interest referred to in Article 273 of Council Directive 2006/112/EC 
of 28 November 2006 on the common system of value added tax, in the context of 
which the scope of judicial review is limited to the existence of damage suffered? 
Provisions of European Union law and case-law relied on 
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, Article 47(1), 
Article 51(1) and (2), Article 52(1) 
Provisions of national law relied on 
Targovski zakon (Commercial Code; ‘the TZ’) 
Zakon za danaka varhu dobavenata stoynost (Law on VAT; ‘the ZDDS’) 
Naredba № 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 
(Ordinance No N-18 of 13 December 2006 on the registration and recording of 
sales on business premises by means of fiscal recording devices, on the 
requirements for the operating software and the requirements for persons selling 
via online shops) 
Administrativnoprotsesualen kodeks (Code of Administrative Procedure; ‘the 
APK’) 
Succinct presentation of the facts and procedure in the main proceedings 
1 The applicant is a one-person company with limited liability that operates under 
the name ‘Ati-19’. 
2 On 3 August 2023, financial inspectors from the General Directorate ‘Tax 
Supervision’ of the Central Administration of the National Revenue Agency 
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conducted an audit on business premises managed by ‘Ati-19’ EOOD in 
Blagoevgrad. 
3 During the audit on 3 August 2023, a test purchase of goods, food and beverages 
with a total value of 14.80 leva (BGN), paid in cash by a tax inspector, was made. 
No fiscal cash receipt was issued for the cash payment of BGN 14.80 by means of 
a fiscal recording device registered with the tax administration, installed in the 
business premises and put into operation. An employee accepted the payment on 
the business premises. 
4 After the tax inspectors who made the test purchase identified themselves as such, 
a daily statement for 3 August 2023 was prepared by the fiscal recording device in 
the business premises, according to which the sales turnover for the day amounted 
to BGN 327.80. In fact, a cash amount of BGN 573.55 was found in the cash 
register at the business premises; a list of the funds in the cash register was drawn 
up, which was included in the minutes of the audit of the business premises. 
5 Minutes No 0127640 dated 3 August 2023 were drawn up as evidence of the 
results of the audit carried out on 3 August 2023 at the company’s business 
premises. 
6 On 8 August 2023 a notice was issued declaring that an administrative offence 
had been committed, under which administrative criminal proceedings were 
initiated against the company in accordance with the provisions of the Zakon za 
administrativnite narushenia i nakazania (Law on Administrative Offences and 
Administrative Penalties; ‘the ZANN’) because on 3 August 2023, during the test 
purchase of food and beverages by the tax authority with the total value of 
BGN 14.80, which was paid for in cash, on business premises in Blagoevgrad 
managed by ‘Ati-19’ EOOD, no fiscal till receipt was issued by means of a fiscal 
recording device installed and put into operation on the business premises. That 
act constitutes an administrative offence pursuant to Paragraph 118(1) of the 
ZDDS. 
7 Based on the decision establishing an administrative offence, a notice imposing a 
fine was issued, which imposed a financial penalty against ‘Ati-19’ EOOD 
pursuant to Article 185(1) of the ZDDS for the administrative offence committed 
on 3 August 2023 pursuant to Article 118(1) of the ZDDS. 
8 On 30 August 2023, the defendant issued the administrative enforcement order 
contested in the main proceedings (‘the Order’) pursuant to Article 186(1)(1)(a) 
and Article 187(1) of the ZDDS, by which it ordered the ‘sealing’ of the business 
premises for a period of 14 days and a ‘ban on entry’. 
9 The Order was served on the legal representative of the company on 6 September 
2023; in the confirmation of receipt, the date for sealing the business premises was 
set as 21 September 2023. 
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10 On 14 September 2023, the company brought an action pursuant to Article 60 of 
the APK against the Order before the Administrative sad Blagoevgrad 
(Administrative Court, Blagoevgrad, Bulgaria) requesting that the administrative 
decision permitting its provisional enforcement be lifted. 
11 By decision of 18 September 2023, the court did not rule on the application to lift 
the administrative decision to authorise provisional enforcement because the 
limitation period for filing the application under Article 60(5) of the APK had 
expired. 
12 On 19 September 2023, the company filed an application with the court pursuant 
to Article 166(2) of the APK for the provisional enforcement of the Order of 
30 August 2023 to be stayed. That application is the subject matter of the main 
proceedings. 
The essential arguments of the parties in the main proceedings 
13 The applicant claims that there are no grounds and legal bases for allowing the 
provisional enforcement of the Order of 30 August 2023. It argues that the sealing 
of the business premises operated by it caused serious material damage to its 
activities, and the administrative offence pursuant to Paragraph 118(1) of the 
ZDDS constituted an isolated case in the company’s activities. 
14 The applicant has not put forward any arguments. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
15 The ZDDS governs the imposition of VAT on any supply of goods or services in 
return for a payment. The ZDDS provides for the imposition of administrative 
enforcement measures and administrative penalties for the failure of taxable 
persons to fulfil their legal obligations. 
16 In particular, the ZDDS collates different measures when penalties are imposed 
for the same offence. 
17 Failure by taxable legal entities and sole traders to fulfil the obligation under 
Article 118(1) of the ZDDS to register and record the sales they make on the 
business premises by issuing a fiscal cash receipt using a fiscal recording device 
(fiscal receipt) or a till receipt generated by an integrated automated business 
management system (system receipt), regardless of whether another tax document 
is required, constitutes an administrative offence under Article 118(1) of the 
ZDDS. 
18 The administrative offence under Article 118(1) of the ZDDS is punishable by a 
financial penalty imposed in administrative proceedings by the financial authority 
of the National Revenue Agency; at the same time, the law (ZDDS) also provides 
ATI-19 
 
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for the imposition of an administrative enforcement measure under 
Article 186(1)(1)(a) of the ZDDS – ‘sealing of business premises’ – for a period 
of up to 30 days. In addition, the sealing of business premises in accordance with 
Article 187(1) of the ZDDS also prohibits access to it. 
19 Both measures – the ‘sealing’ and the ‘financial penalty’ – are criminal in nature 
and their simultaneous application for the same act by the same trader in 
accordance with different and independent procedures, with recourse to legal 
action against those measures before different courts, constitutes an impermissible 
restriction of the right under Article 50 of the Charter to the extent that the 
national law does not provide for a coordination of the procedures, which would 
make it possible for the additional burden associated with the cumulation of the 
measures imposed to be reduced to what is strictly necessary, and does not make it 
possible to ensure that the severity of all those measures together is consistent 
with the offence in question (operative part of the judgment of 4 May 2023 in MV-
98, С-97/21, ECLI:EU:C:2023:371). 
20 The ‘sealing’ measure is implemented by the tax authority or an official 
authorised by that authority issuing an order in a procedure that is administrative 
in nature. The Order has the characteristics of an individual administrative act. 
21 The legal action against the individual administrative act has a suspensory effect, 
which means that it stays the enforcement of the act until the final decision on the 
legitimacy of the legal dispute has been taken. Exceptions to that rule are cases in 
which the law provides for provisional enforcement of the act or cases in which 
the provisional enforcement of the act was authorised by administrative decision 
of the authority issuing the act. 
22 The order to implement the ‘sealing’ measure pursuant to Article 186(1) of the 
ZDDS is not subject to provisional enforcement before it becomes final and 
absolute and thus becomes an enforceable title by operation of law. However, the 
legislature has authorised the tax authority to decide to authorise provisional 
enforcement in accordance with the procedures and conditions laid down in the 
law. That is precisely the position here. 
23 By issuing the Order on 30 August 2023 for the ‘sealing’ of the business premises 
operated by ‘Ati-19’ EOOD, the tax authority allowed its provisional enforcement 
by including its administrative decision to authorise such enforcement in the 
Order. 
24 The confirmation of receipt of the Order stated the date for sealing the business 
premises – 21 September 2023 – which, after the company exercised its right to 
appeal by filing the action with the court, was before the Order became final and 
absolute. In its statement of reasons, the authority did not state unequivocally that 
the Order would be enforced by sealing after the expiry of the limitation period for 
challenging it or, in the case of legal action, following a final court decision. 
Instead, the authority set a deadline for the removal of the goods from the business 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-605/23 
 
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premises and related storage rooms, which began on the day the Order was served. 
In fact, by setting the date for the sealing of the business premises as 
21 September 2023, while court proceedings were pending, the tax authority 
issued a decision to authorise the provisional enforcement of the Order, which 
gave rise to the company’s legal interest in bringing the proceedings before the 
court pursuant to Article 166(2) of the APK (stay of provisional enforcement). 
25 Provisional enforcement that is authorised by way of an administrative decision is 
an exception to the rule that administrative acts are not enforced until they have 
become final and absolute, and overturns the prohibition of their enforcement until 
the expiry of the limitation period for challenging them in administrative or 
judicial proceedings or, in the case of an action or appeal, until the higher 
administrative authority or a court have reached a decision. Provisional 
enforcement is aimed at protecting the life or health of citizens or particularly 
important interests of the state or the public, ensuring a successful outcome of the 
enforcement proceedings or protecting a particularly important interest of a party 
to the proceedings for the adoption of the administrative act (Article 60(1) of the 
APK). 
26 There are two ways to seek protection against the provisional enforcement of an 
individual administrative act – by challenging the administrative decision 
authorising it, by applying to the court to set it aside, and by applying for a stay of 
provisional enforcement after the order has become final and absolute. In the latter 
case, the application for a stay of enforcement is admissible at any stage of the 
proceedings initiated to challenge the order. 
27 The administrative decision to authorise provisional enforcement of the Order by 
sealing the business premises on 21 September 2023, which is contained in the 
Order contested in the main proceedings, has become final and absolute. Pursuant 
to 60(5) of the APK, the administrative decision can be challenged within three 
days of its announcement; in the present case, the Order was communicated to the 
company’s legal representative on 6 September 2023, while the legal action 
challenging it, which contained an application to lift the administrative decision 
pursuant to Article 60(5) of the APK, was filed on 14 September 2023. In its 
decision of 18 September 2023, the court did not rule on the application because 
the limitation period had expired. 
28 After the administrative decision to authorise the sealing has become final and 
absolute on 21 September 2023, protection against enforcement pending court 
proceedings to challenge the Order itself is only possible in accordance with the 
procedure and under the conditions of Article 166(2) and (3) of the APK (stay of 
provisional enforcement). 
29 The action filed against the Order was received on time and was brought by the 
company operating from the business premises, which has [legal standing]; for 
those reasons the application pursuant to Article 166(2) and (3) of the APK of 
19 September 2023 is admissible and the court must rule on it. 
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30 It is the scope of the judicial review pursuant to Article 166(2) of the APK that 
raises the question of whether the application is valid within the meaning of 
Article 47(1) of the Charter. 
31 There is no doubt that there is a legal basis for the administrative decision to 
authorise the sealing on 21 September 2023. The provision of Article 188(1) of 
the ZDDS permits the tax authority to authorise the provisional enforcement of the 
Order. It is questionable whether, with regard to the sealing, the judicial protection 
against such enforcement prior to the court’s decision on the lawfulness of the 
Order itself provides sufficient guarantees against arbitrary and disproportionate 
intervention in the company’s activities. 
32 According to the case-law of the Court of Justice of the European Union, ‘… the 
need for protection against arbitrary or disproportionate intervention by public 
authorities in the sphere of the private activities of any person, whether natural or 
legal, constitutes a general principle of Community law’ (judgment of 
21 September 1989, Hoechst v Commission, 46/87 and 227/88, EU:C:1989:337, 
paragraph 19 and judgment of 22 October 2002, Roquette Frères, С-94/00, 
EU:C:2002:603, paragraph 27). 
33 In proceedings under Article 166(2) and (3) of the APK, as in those under 
Article 60(5) of the APK, the facts underlying the offence pursuant to 
Article 118(1) of the ZDDS are deemed to have been proved by the minutes 
drawn up on the results of the audit carried out by the tax authorities on business 
premises and by the administrative decision establishing that an offence has been 
committed. 
34 The minutes, drawn up in accordance with the procedure and in the form provided 
for by a tax authority or an official within the scope of their powers, constitute 
evidence of the acts and statements made by them and in their presence and of the 
facts and circumstances established. 
35 In the case-law relating to the challenge of an order such as that in the main 
proceedings before the referring court, the administrative decision establishing 
that an offence has been committed pursuant to Article 118(1) of the ZDDS is 
regarded as an ‘official declaratory document with substantive evidential value’ 
regarding the facts underlying the offence, which reverses the burden of proof. 
According to case-law, the administrative decision establishing that an 
administrative offence has been committed has substantive evidential value and 
therefore leads to a reversal of the burden of proof. Until proved otherwise, it is 
assumed that the facts contained in its findings occurred exactly as stated therein. 
36 Judicial review in proceedings under Article 166(2) and (3) of the APK does not 
extend to the conditions for issuing the order for the ‘sealing’ of business premises 
under Article 186(1)(1)(a) of the ZDDS; the court does not make any ‘enquiries’ 
into the facts that were the basis for issuing the order. According to the case-law, 
the court does not examine the probable merits or lack of merits of the challenge 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-605/23 
 
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to the order itself pursuant to Article 146 of the APK, although the provision of 
Article 166(2) of the APK ‘is consistent with safeguarding the right to bring a 
challenge’. The protection under Article 166(2) of the APK can only be based on 
‘serious or irreparable damage’ that would be caused to the addressee if 
provisional enforcement were to take place. 
37 Subject to the conditions of Article 60(1) of the APK, specifically in the 
‘protection of an important interest of the state’ – the tax interest of the state – the 
conditions for issuing the administrative decision to authorise provisional 
enforcement pursuant to Article 188(1) of the ZDDS are not reviewed again by 
the court either. Moreover, any procedural errors in issuing the administrative 
decision are not covered by the review. After expiry of the limitation period for 
the application to the court for the administrative decision to be lifted, the latter is 
deemed to have been issued lawfully. 
38 The scope of judicial review pursuant to Article 60(5) to (7) of the APK against 
the administrative decision to authorise provisional enforcement pursuant to 
Article 188(1) of the ZDDS does not differ significantly from that pursuant to 
Article 166(2) of the APK. If there are differences, those lie in the wider scope of 
judicial review pursuant to Article 60(5) of the APK, in the context of which the 
court may review the authority’s assessment of whether the conditions have been 
satisfied under Article 60(1) (issuing the administrative decision to authorise 
provisional enforcement). However, the provision of Art 188(1) of the ZDDS is 
not interpreted and applied uniformly. 
39 In some of the cases, the provision of Article 188 of the ZDDS is interpreted as a 
presumption of a protected ‘important interest of the state’. In one decision, the 
Varhoven administrative sad (Supreme Administrative Court, Bulgaria; ‘the 
VAS’) stated that ‘… the purpose of the law providing for provisional 
enforcement is to protect relevant important interests of the state or the public or 
to prevent other consequences as specified in the scope and application of the 
general provision of Article 60 of the APK; that is to say in cases where 
provisional enforcement is authorised by law, the assessment of its necessity has 
been carried out by the legislature’ and is not subject to another review. 
40 In other cases, the court held that the provision of Article 188 of the ZDDS does 
not contain a presumption of an ‘important interest of the state’ that requires 
provisional enforcement of an order such as the one at issue in the main 
proceedings. For example, in one decision dated 3 October 2019, the VAS stated 
that ‘… the provisional enforcement […] does not exist by operation of law but is 
the result of a declaration of intent by the administrative authority; that is to say 
that, according to the law, there is no presumption that the conditions of 
Article 60(1) of the APK are satisfied simply because an administrative offence 
has been committed’. Therefore, ‘… the particularly important interest of the state 
and the occurrence of serious or irreparable damage must be substantiated by the 
authority in each individual case and it bears the burden of proof for the facts on 
which it relies’. 
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41 Due to the wording of Article 188(1) of the ZDDS chosen by the legislature, 
which is sometimes regarded as a presumption of an important interest of the state 
in the provisional enforcement of the ‘sealing’ measure imposed, the scope of 
protection against the administrative decision pursuant to Article 60(1) of the 
APK is also limited and restricted to ‘serious or irreparable damage’ to the 
addressee, same as the scope of judicial review under Article 166(2) of the APK. 
The difference between the procedure under Article 60(5) of the APK and that 
under Article 166(2) to (3) of the APK lies in the legal consequences. Lifting the 
administrative decision ‘restores’ the situation as it was before (second sentence 
of Article 60(7)), while the stay of enforcement prohibits the change of the 
situation for the future (Article 166(2) of the APK) until the decision on the action 
against the order becomes final. Thus, the procedure under Article 60(5) to (7) of 
the APK does not guarantee more effective protection. 
42 The procedure under Article 166(2) to (3) of the APK is conducted in camera on 
the basis of documents and does not permit the court to examine whether the 
provisional enforcement of the non-final order is aimed at protecting an important 
interest of the state, which would be a measure against an unlawful enforcement 
prior to the court’s final decision on its lawfulness. In those circumstances, it 
cannot be ruled out that the legal consequences of an order pursuant to 
Article 186(1)(1)(a) of the ZDDS, the provisional enforcement of which has been 
authorised, may arise and the court may subsequently lift the order as unlawful. 
Therefore, the limited scope of judicial review under Article 166(2) of the APK 
casts doubt on the effectiveness of an appeal against the provisional enforcement 
of a non-final administrative act. 
43 The right to an effective domestic remedy within the meaning of Article 47 of the 
Charter, which must be interpreted in the light of the case-law of the ECtHR on 
Art 6(1) ECHR requires that the body responsible for reviewing administrative 
acts ensures ‘sufficient control’ in the proceedings (ECtHR, judgment of 21 June 
2016, Al-Dulimi and Montana Management Inc. v. Switzerland, application no 
5809/08, ECLI:CE:ECHR:2016:0621JUD000580908, § 130). 
44 In the written observations in MV-98, С-97/21 (EU:C:2023:371), the European 
Commission states that the control is ‘sufficient’ if the court has the power ‘… to 
amend the act adopted in all respects, in fact and in law’. Consequently, judicial 
review cannot be limited to examining the “procedural” legality of the 
administrative act.’ (paragraph 7 of the written statements). Even after the 
administrative decision has become final and absolute under Article 60(1) of the 
APK, the applicant must have the opportunity to ‘… carry out a certain review of 
both the facts and the procedure by which the factual findings […] were arrived 
at’ (ECtHR, judgment of 20 October 2015, Fazia Ali v. United Kingdom, 
application no 40378/10, ECLI:CE:ECHR:2015:1020JUD004037810, §§ 83 and 
84). 
45 For those reasons, the court’s decision on the company’s application of 
19 September 2023 for a stay of the provisional enforcement of the Order of 
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30 August 2023, which was authorised by final and absolute decision of the tax 
authority, requires the interpretation of the Court of Justice of the European Union 
as to whether a procedure such as the one at issue here pursuant to Article 166(2) 
and (3) of the APK, which excludes an examination of the facts and limits the 
scope of judicial review only to the existence of damage suffered, constitutes an 
effective remedy in the light of Article 47 of the Charter.