Order;Information — ECLI:EU:C:2025:952
Date: 2025-12-08
Language of the case: Bulgarian
Court formation: Sixth Chamber
Procedure: Reference for a preliminary ruling - inadmissible
Origin: Bulgaria

summary, the Court of Justice of the European Union finds that VAT law and 
Article 50 of the Charter must be interpreted as precluding national legislation 
under which a financial penalty and a measure involving sealing of a business 
premises can be imposed for one and the same offence relating to a tax obligation. 
The situation in the present case is similar to that referred to above, since, in 
addition to the financial penalty provided for in Article 278b(3) of the DOPK, 
Article 121a(3) of the DOPK provides for the confiscation of the goods which are 
the subject matter of the infringement as an additional administrative protective 
measure in favour of the State. 
The referring court has doubts as to the compatibility of national law, specifically 
Articles 121a(3) and 278b(3) of the DOPK, and of national administrative 
practice, with Article 50 of the Charter and with the interpretation of the Court of 
Justice of the European Union referred to above, which is why the first question is 
referred. 
The second question seeks to ascertain whether legislation such as that in 
Article 121a(3) of the DOPK, which provides for the confiscation of the goods 
which are the subject matter of the infringement in favour of the State as an 
additional penalty to the administrative penalty – a financial penalty under 
Article 278b(3) of the DOPK – constitutes a permissible proportionate 
interference with the property rights of the perpetrator of the infringement under 
Article 49(3) of the Charter. 
The principle of proportionality is enshrined in Article 5(4) of the Treaty on 
European Union. In accordance with that principle, the content and form of Union 
action is not to exceed what is necessary to achieve the objectives of the Treaties. 
In its judgment [of 19 September 2000, Ampafrance and Sanofi (C-177/99 and 
C-181/99, EU:C:2000:470)], paragraph 68, the Court of Justice ruled that that 
principle also applies to the Member States in their national practice. The Court of 
Justice considers the principle in the light of the Member States’ obligation not to 
interfere with the fundamental rights of taxable persons in protecting their 
financial interests and not to go beyond what is strictly necessary for attaining that 
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objective, while at the same time doing the least harm to the objectives and 
principles of EU law. 
Article 49 of the Charter of Fundamental Rights of the European Union enshrines 
the proportionality of the crime to the punishment as a principle of legality. 
Paragraph 3 thus provides that the severity of penalties must not be 
disproportionate to the criminal offence. 
The purpose of the prior declaration and tracking of goods of high fiscal risk is to 
prevent abuse through the potential sale of goods in the territory of the country 
without corresponding tax payments. If the receipt of goods is acknowledged as 
having the same quantity and value as the goods which entered the territory of the 
country, that risk is obviously excluded. In the present case, the receipt was 
acknowledged the next day by the revenue authorities themselves. 
It is common ground that the revenue authorities inspected the place of unloading 
the day after the intra-Community acquisition and confirmed that the goods had 
been found. The company submits that a financial penalty of 40% of the value of 
the goods, which is imposed, even though it is proven that no prejudice has been 
caused to the budget and the amount thereof always exceeds the potential 
prejudice to the budget, is manifestly unfair, especially in a case such as the 
present, where the goods were found in the warehouse the next day and it is clear 
that no prejudice can be caused to the budget. 
The company submits that two administrative penalties were imposed in relation 
to that shipment: one, a financial penalty in the amount of BGN 5 515 and, two, 
the confiscation of the goods which are the subject matter of offence in favour of 
the State and the ordering of a guarantee in the amount of more than 50% of the 
invoice value of the goods. In addition, regardless of the details of the specific 
case, Article 278b(3) of the DOPK provides for the imposition of a financial 
penalty in the case of legal persons or sole traders in the amount of 40% of the 
taxable amount of the goods shipped within the meaning of the ZDDS, but not 
less than BGN 5 000. 
In that context, there is a suspicion that the principle of proportionality may have 
been infringed in this case with regard to the financial penalty imposed. 
In its recent judgment [of 21 November 2024, Еkоstroy (C-61/23, 
EU:C:2024:974)], the Court of Justice of the European Union expressly points out 
that penalties whose amount is fixed (such as the statutory minimum in 
Article 278b(3) of the DOPK) may prove to be disproportionate to the severity of 
the infringement, in particular if they are imposed in addition to another measure 
imposed for the same infringement. According to established case-law, the 
principle of proportionality is one of the general principles of EU law which must 
be observed by any national legislation which falls within the scope of EU law or 
which implements that law, including in the absence of harmonisation of EU 
legislation in the field of sanctions applicable (judgment of 4 May 2023 [Agenția 
REQUEST FOR A PRELIMINARY RULING OF 4. 4. 2025 – CASE C-304/25 
 
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Națională] de Integritate, C-40/21, EU:C:2023:367, paragraph 49 and the case-
law cited). 
In its judgment of 16 July 2015, [Chmielewski (C-255/14, EU:C:2015:475)], the 
Court of Justice held that a fine amounting to 60% of the subject matter of the 
infringement does not appear to be proportionate and exceeds the limits of what is 
necessary to ensure compliance with the obligation to declare and the attainment 
of the objectives pursued by the regulation at issue. In paragraphs 30 and 31 of the 
judgment, the Court of Justice states that such a fine goes beyond what is 
necessary in order to ensure compliance with that obligation and the fulfilment of 
the objectives pursued by that regulation, which does not seek to penalise possible 
fraudulent or unlawful activities, but solely a breach of that obligation. 
Furthermore, the Court of Justice has held that the above conclusions apply 
precisely to situations concerning failure to comply with the obligation to declare 
(judgment of the Court of Justice of 31 May 2017, Zheng, С-190/17, 
EU:C:2018:357). 
In the present case, the financial penalty imposed by law is 40% of the value of 
the subject matter of the offence, bearing in mind that an error in the declaration 
of goods of high fiscal risk is penalised, while the receipt of the subject matter of 
the infringement in the same type and quantity in which the goods entered the 
territory of the country was established by the revenue authorities. At the same 
time, the penalty cannot be less than BGN 5 000, and if the value of the goods is 
less than that amount, the penalty could exceed the value of the goods or even 
exceed it many times over. In addition, the person liable must provide 61% of the 
invoice value of the goods as a guarantee in order to have them returned to him or 
her. 
In the light of the facts established, the referring court suspects that the national 
legislation, through Articles 121a(3) and 278b(3) of the DOPK, imposes a practice 
on the national administration which leads to a manifest infringement of the 
principle of proportionality. 
… [...] [Staying of national proceedings in connection with a reference for a 
preliminary ruling] 
On the above grounds and in accordance with the first paragraph, point [(b)], of 
Article 267 TFEU, in conjunction with Article 628 of the GPK and Article 144 of 
the APK and Article 631 of the GPK, in conjunction with Article 144 of the APK, 
the Cassation Chamber of the Administrativen sad Sofia-grad, XVIII 
ORDERS: 
… [...] [Measures in the national proceedings] 
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The following questions shall be referred to the Court of Justice of the European 
Union for a preliminary ruling pursuant to the first paragraph, point (b), of 
Article 267 TFEU: 
1. Must Article 325 of the Treaty on the Functioning of the European Union 
and Article 50 of the Charter of Fundamental Rights of the European Union be 
interpreted as precluding national legislation, such as that laid down in 
Articles 121a(3) and 278b(3) of the Danachno-osiguritelen protsesualen kodeks 
(Tax and Social Security Procedure Code; ‘the DOPK’), under which, on account 
of non-compliance with the obligation relating to prior declaration of data, a 
provisional protective measure involving confiscation of the goods or lodging of a 
security amounting to 50% of the invoice value can be ordered in respect of each 
shipment of goods of high fiscal risk made from another Member State of the 
European Union to the Republic of Bulgaria, and, at the same time, a financial 
penalty amounting to 40% of the taxable amount of the goods shipped, but not 
less than BGN 5 000, may be imposed? 
2. Must Article 49(3) of the Charter of Fundamental Rights of the European 
Union to be interpreted as meaning that national legislation such as that laid down 
in Articles 121a(3) and 278b(3) of the DOPK, under which a financial penalty and 
the confiscation of the goods which were the subject matter of the offence can be 
cumulated in favour of the State, is impermissible in that it constitutes a 
disproportionate penalising interference with property rights, which is not 
proportionate to the legitimate aim pursued? 
… [...] [staying of the national proceedings] 
… [...] [non-challengeability of the order].