Judgment;Summary — ECLI:EU:C:2023:179
Date: 2023-03-09
Language of the case: Bulgarian
Court formation: Eighth Chamber
Subject matter: Free movement of goods;Internal market - Principles;Common customs tariff;Customs Union;Judicial cooperation in criminal matters;Police cooperation;Area of freedom, security and justice;Fundamental rights;European Convention on Human Rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Bulgaria

Summary  C-752/21 – 1 
Case C-752/21 
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:  
7 December 2021  
Referring court:  
Administrativen sad – Haskovo (Bulgaria)  
Date of the decision to refer:  
17 November 2021  
Appellant in cassation:  
JP EOOD  
Respondent in the appeal in cassation:  
Otdel ‘Mitnichesko razsledvane i razuznavane’ v Teritorialna 
direktsia ‘Mitnitsa Burgas’  
  
Subject matter of the main proceedings 
Appeal in cassation against an order of the court of first instance dismissing as 
inadmissible, without examination, the action against a penalty notice issued by 
the customs administration confiscating for the benefit of the State a motor vehicle 
used to transport smuggled goods. 
Subject matter and legal basis of the request 
Interpretation of the EU rules applicable to the dispute; Article 267 TFEU 
Questions referred for a preliminary ruling 
1. Is Article 44(1) of Regulation (EU) No 952/2013 of the European Parliament 
and of the Council of 9 October 2013, read in conjunction with Article 13 of the 
European Convention for the Protection of Human Rights and Fundamental 
Freedoms and Article 47 of the Charter of Fundamental Rights of the European 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-752/21 
 
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Union, to be interpreted as precluding national legislation, such as Article 59(2) of 
the Zakon za administrativnite narushenia i nakazania (Law on administrative 
offences and administrative penalties, ‘the ZANN’), which excludes the owner of 
property confiscated pursuant to a penalty notice from the group of persons 
entitled to lodge an appeal against that penalty notice if the owner did not commit 
the offence? 
2. Is Article 22(7) of Regulation (EU) No 952/2013, read in conjunction with 
Articles 29 and 44 thereof and Article 13 of the ECHR and Article 47 of the 
Charter, to be interpreted as precluding national legislation, such as Article 232(1) 
of the Zakon za mitnitsite (Law on Customs, ‘the ZM’), which excludes appeals in 
respect of a penalty notice issued against an unknown offender, where national 
law allows property belonging to a third party not party to the administrative 
offence proceedings to be confiscated for the benefit of the State pursuant to that 
notice? 
3. Is Article 4 of Council Framework Decision 2005/212/JHA of 24 February 
2005, read in conjunction with Article 47 of the Charter, to be interpreted as 
meaning that it applies a fortiori where the act is not a criminal offence and as 
precluding national legislation, such as Article 59(2) of the ZANN, which 
excludes the owner of property confiscated from the group of persons entitled to 
lodge an appeal, or, such as Article 232 of the ZM, which expressly states that a 
notice by which property is confiscated under national law from a third party not 
party to the administrative offence proceedings is not open to appeal? 
Provisions of European Union law and case-law relied on 
European Convention for the Protection of Human Rights and Fundamental 
Freedoms, Article 13  
Protocol to the European Convention for the Protection of Human Rights and 
Fundamental Freedoms, Article 1 
Charter of Fundamental Rights of the European Union, Articles 17 and 47 
Regulation (EU) No 952/2013 of the European Parliament and of the Council of 
9 October 2013 laying down the Union Customs Code, Articles 1(1), 22(7), 29, 
42(1) and (2) and 44(1) and (4) 
Council Framework Decision 2005/212/JHA of 24 February 2005 on Confiscation 
of Crime-Related Proceeds, Instrumentalities and Property, Articles 2(1) and 4 
Judgment of 14 January 2021, Okrazhna prokuratura – Haskovo and Apelativna 
prokuratura – Plovdiv, C-393/19, EU:C:2021:8 
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Provisions of national law relied on 
Zakon za mitnitsite (Law on Customs, ‘the ZM’) 
Article 230 of the ZM states that the customs authorities shall issue a notice (the 
penalty notice) for infringements of customs procedure. If the offender is 
unknown, a penalty notice is issued pursuant to Article 232(1) and becomes final 
at the time of issue. Article 233 concerns the administrative offence of 
‘smuggling’. Article 233(1) states that a fine shall be imposed on anyone who 
carries or transports goods across the State border without the knowledge and 
permission of the customs authorities, or attempts to do so, unless the act is a 
criminal offence. Article 233(8) states that the means of transport used to transport 
the smuggled goods are to be confiscated for the benefit of the State, irrespective 
of who owns it, unless its value is manifestly not commensurate with the value of 
the smuggled goods. 
Zakon za administrativnite narushenia i nakazania (Law on administrative 
offences and penalties, ‘the ZANN’) 
According to Article 59 of the ZANN in the version in force until 23 December 
2021, the offender and the person claiming damages may challenge a penalty 
notice in the respective district court (Rayonen sad) and the public prosecutor may 
lodge an appeal against the penalty notice. 
According to Article 59 of the ZANN in the version which entered into force on 
23 December 2021, the owner of the property confiscated for the benefit of the 
State may also appeal a penalty notice, provided the owner is not an offender. 
Zakon za normativnite aktove (Law on normative legal acts) 
Article 11(2) lays down the rule of statutory interpretation that lex specialis 
derogat legi generali. 
Succinct presentation of the facts and procedure in the main proceedings 
1 On 11 July 2020, the Okrazhna prokuratura Haskovo (Haskovo Regional 
Prosecutor’s Office) opened a preliminary investigation into an attempt made that 
day to transport 3 840 fuel injectors for motor vehicles by lorry across the border 
between the Republic of Turkey and the Republic of Bulgaria via the ‘Kapitan 
Andreevo’ customs post without the knowledge or permission of the customs 
authorities, in breach of Article 242(1)(d) of the Nakazatelen kodek (Criminal 
Code, ‘the NK’). 
2 On 15 December 2020, that criminal investigation was suspended by the Public 
Prosecutor’s Office due to a lack of evidence as to the commission of that offence. 
The case file was forwarded to the customs administration in order to ascertain 
whether an administrative law offence had been committed. It should be noted 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-752/21 
 
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that the criterion for distinguishing between the criminal offence of ‘aggravated 
smuggling’ (Article 242(1)(d) of the NK) and the administrative offence of 
‘smuggling’ (Article 233 of the ZM) is the value of the smuggled goods. 
3 The Nachalnik na otdel ‘Mitnichesko razuznavane i razsledvane Yuzhna morska’ 
(Director of the Yuzhna morska Department of Customs Intelligence and 
Investigations), now the otdel ‘Mitnichesko razsledvane i razuznavane’ v 
Teritorialna direktsia ‘Mitnitsa Burgas’ (Department of Customs Intelligence and 
Investigations of the Burgas Customs Regional Directorate) at the Agentsia 
‘Mitnitsi’ (Customs Agency) (‘the director of the competent customs authority’) 
examined the evidence gathered and found that there was no evidence as to the 
identity of the offender. He therefore issued penalty notice No 233 on 20 February 
2021 pursuant to Article 232(1) of the ZM against an unknown offender and, by 
that notice, ordered 3 840 fuel injectors for motor vehicles with a customs value of 
BGN 479 813.05 to be confiscated from an unknown offender for the benefit of 
the State in accordance with Article 233(6) of the ZM, read in conjunction with 
Article 233(1) thereof. 
4 By that penalty notice, the vehicle used to transport the smuggled goods, namely a 
Mercedes articulated lorry with semi-trailer, was confiscated for the benefit of the 
State in accordance with Article 233(8) of the ZM. 
5 A valuation was obtained during the course of the administrative offence 
proceedings from an expert witness who estimated the value of the articulated 
lorry confiscated for the benefit of the State at the time of the offence (11 July 
2020) to be BGN 111 604.20. 
6 According to the respective registration certificates, JP EOOD owns the 
articulated lorry confiscated for the benefit of the State. 
7 JP EOOD brought an action against that penalty notice. 
8 By order of 20 April 2021, the Rayonen sad Svilengrad (District Court, 
Svilengrad) dismissed, without examination, the action brought by JP EOOD. 
First, the court held that the action was inadmissible on the ground of a lack of 
interest in bringing proceedings and that, under Article 59(2) of the ZANN, the 
offender and the person claiming damages are entitled to challenge the penalty 
notice and the public prosecutor may lodge an appeal. Second, the court cited 
Article 64(a) of the ZANN, which states that penalty notices not open to appeal 
become final at the time of issue. It further noted that, as the contested penalty 
notice had been issued against an unknown offender under Article 232(1) of the 
ZM, it had become final at the time of issue and was not open to appeal. For the 
reasons set out above, the District Court, Svilengrad, assumed that the penalty 
notice contested by JP EOOD is a notice against which it is not possible to bring 
an action seeking judicial review of its legality. That being so, the court found that 
JP EOOD had no right of appeal, even though an injustice had been perpetrated 
against this [legal] person, whose means of transport had been confiscated for the 
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benefit of the State. The court highlighted the imperative nature of Article 232 of 
the ZM and the obligation of the court to comply with that rule by recognising the 
contested penalty notice as final and not open to appeal. 
9 JP EOOD lodged an appeal in cassation against that order with the referring court, 
the Administrativen sad – Haskovo (Administrative Court, Haskovo). 
The essential arguments of the parties in the main proceedings 
10 JP EOOD claims that it suffered material damage as a result of the confiscation of 
assets belonging to it for the benefit of the State ordered by the contested notice, 
namely the loss of a Mercedes articulated lorry with semi-trailer worth 
approximately EUR 50 000; that, even if it is a third party not party to the 
administrative offence proceedings, it has suffered material damage without any 
opportunity in fact to protect its rights and legitimate interests; and that there was 
therefore an interest in bringing proceedings in the form of an appeal against the 
contested penalty notice. 
11 By separate pleadings, counsel for the appellant in cassation provided 
explanations by which he argued that the contested order of the District Court, 
Svilengrad, terminating proceedings was unlawful on the grounds of infringement 
of Article 4 of Framework Decision 2005/212/JHA, read in the light of Article 47 
of the Charter, and that those provisions could be applied directly by the court. 
12 Counsel for the appellant in cassation has relied on Article 2(1) and Article 4 of 
Framework Decision 2005/212/JHA and on the judgment of 14 January 2021, 
Okrazhna prokuratura – Haskovo and Apelativna prokuratura – Plovdiv, 
C-393/19 (‘judgment in Case C-393/19’). He argues that the Court of Justice 
found by that judgment that confiscation of a means of transport used to commit 
the offence of aggravated smuggling within the meaning of Article 242 of the NK 
was not permissible where that property belongs to a third party acting in good 
faith, and, furthermore, that confiscation at the expense of a person who was not 
afforded an effective remedy to defend their rights was also inadmissible. Counsel 
claims that that interpretation also applies to a case such as this, as the appellant in 
cassation is a party acting in good faith in the administrative offence proceedings 
and confiscation of its assets is a disproportionate and unacceptable measure that 
goes to the very essence of its right to property. 
13 In the absence of rules governing the exercise of the affected owner’s right to an 
effective remedy and a fair trial in Bulgarian procedural law, the court has been 
asked to find that a penalty notice issued against an unknown offender, which 
becomes final at the time of issue and is not open to appeal, and by which 
property not owned by the offender is confiscated for the benefit of the State, 
directly infringes the owner’s right to use his property without interference and, 
moreover, to defend himself before an independent and impartial court. 
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14 Should the panel disagree with the grounds for annulment of the contested order 
argued above, counsel for the appellant in cassation claims that a preliminary 
ruling on the interpretation of the aforesaid provisions of Framework Decision 
2005/212/JHA, read in the light of Article 47 of the Charter, should be requested 
pursuant to the third paragraph of Article 267 TFEU. 
15 The respondent in cassation and the public prosecutor contend that the appeal in 
cassation is inadmissible, and the respondent in cassation further argues that one 
part of the forms of order sought by the appellant in cassation is also unfounded. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
16 The present proceedings concern an appeal in cassation directed against the order 
of a court of first instance terminating proceedings and preventing the appellant in 
cassation from challenging the contested penalty notice. 
17 The referring court finds that assets owned by JP EOOD were in fact confiscated 
for the benefit of the State by penalty notice No 233 issued on 22 February 2021 
by the director of the competent customs authority. That justifies the conclusion 
that the contested penalty notice concerns the appellant’s right to property. The 
appellant is a third party not party to the administrative offence proceedings and, 
according to Article 59(2) of the ZANN in the version applicable at the time of the 
offence, does not belong to the group of persons entitled to challenge the penalty 
notice issued, even in respect of the part relating to its confiscated property. That 
legislation has been amended. Under the new version, which entered into force on 
23 December 2021, the owner of property confiscated for the benefit of the State 
may challenge a penalty notice within 14 days of service thereof, provided they 
are not an offender. 
18 However, that option could not be exercised in a case such as this, which has been 
brought against an unknown offender for an administrative offence under 
Article 233 of the ZM, even where the means of transport used to carry the 
smuggled goods was confiscated for the benefit of the State under Article 233(8) 
of the ZM despite the fact that it does not belong to the offender or the offender 
could not be identified. That follows from the rule enacted in Article 232(1) of the 
ZM, which expressly provides for penalty notices issued against offenders 
unknown (as in the present case) to become final immediately. 
19 The Zakon za mitnitsite (Law on Customs) is lex specialis in respect of the Zakon 
za administrativnite narushenia i nakazania (Law on Administrative Offences and 
Administrative Penalties), meaning that Article 232 of the ZM is a lex specialis in 
respect of the general provision in Article 59(2) of the ZANN and therefore takes 
precedence over it. This means that, even following the entry into force of the 
amended Article 59(2) of the ZANN, which allows the owner of property 
confiscated for the benefit of the State to challenge that part of the penalty notice, 
the owners of property confiscated under Article 233(8) of the ZM are unable to 
exercise their right to defend the confiscation of property in a case such as this, 
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where the penalty notice was issued against an unknown offender. That follows 
from the fact that the special provision in Article 232(1) of the ZM, which 
expressly states that the penalty notice is not open to appeal, takes precedence. 
20 For the reasons set out above, the question that arises for the referring court is 
whether Article 44(1) of Regulation No 952/2013, read in the light of Article 13 
of the ECHR and Article 47 of the Charter, must be interpreted as meaning that it 
precludes national legislation, such as Article 59(2) of the ZANN, which excludes 
from the group of persons entitled to lodge an appeal against a penalty notice the 
owner of the property confiscated by that same notice if he did not commit the 
offence. 
21 The next question that arises for the referring court is whether Article 22(7) of 
Regulation No 952/2013, read in conjunction with Articles 29 and 44 thereof and 
in the light of Article 13 of the ECHR and Article 47 of the Charter, must be 
interpreted as meaning that it precludes national legislation, such as Article 232(1) 
of the ZM, which excludes appeals against a penalty notice issued against an 
unknown offender, where national law allows the confiscation for the benefit of 
the State of property belonging to a third party not party to the administrative 
offence proceedings to be ordered by that same notice.  
22 The referring court is relying on the judgment of the Court of Justice in Case 
C-393/19 concerning an act of ‘aggravated smuggling’, an offence under 
Article 242 of the NK that differs from the administrative offence of smuggling 
under Article 233 of the ZM under consideration in this case solely in terms of the 
value of the smuggled goods. The referring court considers that, in the light of that 
judgment, the question relevant to these proceedings is that raised by counsel for 
the appellant in cassation as to whether Article 4 of Framework Decision 
2005/212/JHA, read in the light of Article 47 of the Charter, is to be interpreted a 
fortiori as meaning that it applies even where the act is not a criminal offence and 
that it precludes national legislation, such as Article 59(2) of the ZANN, which 
excludes the owner of the property confiscated from the group of persons entitled 
to lodge an appeal, or, such as Article 232 of the ZM, which expressly states that a 
notice by which property is confiscated under national law from a third party not 
party to the administrative offence proceedings is not open to appeal. 
23 The referring court considers that there is no need to refer the questions raised by 
counsel as to the interpretation of Article 2 of Framework Decision 2005/212/JHA 
to the Court of Justice for a preliminary ruling, as that provision could be applied 
when ruling on the legality of the penalty notice whereas, in the present case, the 
court has been seised to rule on an appeal in cassation against the order dismissing 
the action [against the penalty notice] as inadmissible. 
24 Accordingly, the referring court considers it necessary, in order to rule on the 
dispute before it, to refer the questions formulated above to the Court of Justice 
for a preliminary ruling pursuant to the third paragraph of Article 267 TFEU, read 
in conjunction with the first paragraph, points (a) and (b), of Article 267 TFEU.