OPINION OF ADVOCATE GENERAL

TRSTENJAK

delivered on 3 May 2007 1( )

Case C‑62/06

Fazenda Pública – Director Geral das Alfândegas

v

ZF Zefeser – Importação e Exportação de Produtos Alimentares Lda

(Reference for a preliminary ruling from the Supremo Tribunal Administrativo (Portugal))

(Article 3 of Council Regulation (EEC) No 1697/79 – Post-clearance recovery of import or export duties – Customs law – Act that could give rise to criminal court proceedings – Concept – Community fundamental rights – Right to a fair legal process – Presumption of innocence – Principle of in dubio pro reo)

I – Introduction

1. In the present proceedings the Portuguese Supremo Tribunal Administrativo (Supreme Administrative Court) has submitted to the Court five questions for a preliminary ruling on the interpretation of Council Regulation (EEC) No 1697/79 of 24 July 1979 on the post-clearance recovery of import duties or export duties which have not been required of the person liable for payment on goods entered for a customs procedure involving the obligation to pay such duties ( ) which has since been repealed.

2. In the main proceedings, the undertaking ZF Zefeser – Importação e Exportação de Produtos Alimentares Lda. (‘ZF Zefeser’) and the Portuguese tax authorities disagree on the lawfulness of an adjusted customs assessment which requires ZF Zefeser to make ex post payment of customs duties not collected. Whereas ZF Zefeser takes the view that post-clearance recovery of import levies is precluded by the fact that the general three-year limitation period contained in Article 2(1) of the regulation has meanwhile expired, the tax authorities refer to the derogation provided for in Article 3 according to which that period does not apply when the competent authorities find that it is following an act that could give rise to criminal court proceedings that the competent authorities were unable to determine the exact amount of the import duties or export duties legally due on the goods in question. Accordingly, the 10-year limitation period provided for by national law applies instead.

3. At issue, in essence, is the question of which instance is competent with legal effect for Community law to determine whether particular conduct of a debtor must be considered ‘an act that could give rise to criminal court proceedings’ within the meaning of Article 3 of Regulation No 1697/79. That competence is claimed by the Portuguese customs authorities who rely on the wording and scheme of the provisions mentioned. ZF Zefeser contests that claim, arguing that such interpretation is incompatible with the principles of legal certainty and the presumption of innocence which presuppose final conviction by a criminal court.

II – Legal framework

A – Community law

1. The provisions applicable prior to entry into force of the Community Customs Code

4. For the period between 1 July 1980 and 31 December 1993, limitation periods applicable to actions seeking post-clearance recovery of import levies were determined in accordance with Article 2(1) of Regulation No 1697/79 which was worded as follows:

‘Where the competent authorities find that all or part of the amount of import duties or export duties legally due on goods entered for a customs procedure involving the obligation to pay such duties has not been required of the person liable for payment, they shall take action to recover the duties not collected.

However, such action may not be taken after the expiry of a period of three years from the date of entry in the accounts of the amount originally required of the person liable for payment or, where there is no entry in the accounts, from the date on which the customs debt relating to the said goods was incurred.’

5. Article 3 of Regulation No 1697/79 provided for a derogation from that general three-year limitation period:

‘When the competent authorities find that it is following an act that could give rise to criminal court proceedings that the competent authorities were unable to determine the exact amount of the import duties or export duties legally due on the goods in question, the period laid down in Article 2 shall not apply.

Under these circumstances, the competent authorities shall take action for recovery in accordance with the provisions in force in this respect in the Member States.’

2. The Customs Code

6. Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code ( ) (‘CCC’), which entered into force on 1 January 1994 and by which Regulation No 1697/79 was repealed, ( ) provides in Article 221(3) as follows:

‘Communication to the debtor shall not take place after the expiry of a period of three years from the date on which the customs debt was incurred. However, where it is as a result of an act that could give rise to criminal court proceedings that the customs authorities were unable to determine the exact amount legally due, such communication may, in so far as the provisions in force so allow, be made after the expiry of such three-year period.’

B – National law

7. According to Article 34(1) of the Código de Processo Tributário (Code on tax procedure) in force at the time when the events giving rise to the main proceedings occurred, as amended by Decree-Law No 154/91 of 23 April 1991, the Portuguese tax authorities had a period of 10 years in which to pursue post-clearance recovery of import levies, if, as a result of a fraudulent act, it had not been possible to determine correctly the amount of the tax debt.

III – Facts, main proceedings and questions referred for a preliminary ruling

8. In October 1993, a vessel originating in Turkey unloaded in the Portuguese harbour of Setúbal a certain volume of oil which was for delivery to the undertaking ZF Zefeser, whilst the remainder of the oil consignment on board was declared vis-à-vis the customs authorities as goods in transit. The vessel then continued its journey towards Ceuta (Spain) where that remaining oil was to be unloaded. According to information provided by the Spanish authorities, however, that ship arrived there without the stated cargo.

9. On the basis of that information, on 9 April 1997, that is to say, three years after the events which had led to the customs debt arising, the customs authority of Setúbal issued an adjusted customs assessment to ZF Zefeser. As a result of a criminal complaint of 18 March 1997 brought by the customs authority, criminal investigations concerning the undertaking’s members were opened also in relation to smuggling, falsification of documents, fraud and criminal conspiracy.

10. Alongside the criminal proceedings, ZF Zefeser contested the customs assessment in the Portuguese tax courts, arguing, inter alia, that the tax debt was time-barred. The competent Portuguese court, the Tribunal Tributário de Primeira Instância (First Instance Fiscal Court), dismissed the application on the ground that the relevant limitation period amounted to 10 and not three years, since acts that could give rise to criminal court proceedings had been committed.

11. On 12 October 2004, that judgment was set aside by the Tribunal Central Administrativo (Central Administrative Court), which reinstated the original position. The court justified its decision by reason of the applicability of the three-year limitation period following the judgment in the intervening period of the Supremo Tribunal de Justiça (Supreme Court of Justice) confirming and declaring as final the criminal judgment of the Tribunal Judicial de Setúbal (Setúbal Criminal Court) of 10 January 2001, by which the accused were acquitted for lack of evidence.

12. The Portuguese Finance Ministry then lodged an appeal with the Supremo Tribunal Administrativo against the administrative judgment of the Tribunal Central Administrativo.

13. The referring court wishes to know whether it is permitted as a matter of Community law to derogate from the general three-year limitation period, when factors merely point to the existence of a criminal offence, as a result of which criminal investigations were opened, which did not, however, lead to a conviction by a court. In particular, the question arises whether a broad interpretation of Article 3 of the regulation could restrict the rights of the debtor in the sense that it could permit administrative authorities by way of lodging a criminal complaint to extend excessively the period in which to bring proceedings for post‑clearance recovery of import levies.

14. Considering the interpretation of the said Article 3 of Regulation No 1697/79 to be contested, the Supremo Tribunal Administrativo decided, therefore, to refer the following questions to the Court for a preliminary ruling:

‘(1) For the purposes of Article 3 of Council Regulation (EEC) No 1697/79 of 24 July 1979, is classification by the customs authority as “an act that could give rise to criminal court proceedings” sufficient, or is it instead necessary that that classification should be made by the competent criminal court?

(2) In the latter hypothesis, is it sufficient for the competent criminal justice authority (in the case of Portugal, the Ministério Público (Public Prosecutor’s Office)) simply to lay a charge, or is it instead necessary that the debtor should be convicted in the relevant criminal proceedings?

(3) Also in the latter hypothesis, are different conclusions to be drawn from the fact that the court acquits the debtor by virtue of the application of the principle in dubio pro reo, or acquits him because it has been proved that the debtor did not commit the offence in question?

(4) What consequences follow if the Public Prosecutor’s Office does not lay a charge against the debtor, holding that there is no evidence of an act that could give rise to criminal court proceedings? Will such a decision preclude any action to recover the duty not collected?

(5) If the Public Prosecutor’s Office or the criminal court itself closes the case because the criminal proceedings are time-barred, does such a decision make it impossible to bring the corresponding action to recover the duty not collected?’

IV – Procedure before the Court

15. The application of 11 January 2006 was registered at the Court Registry on 6 February 2006.

16. Written observations were submitted, within the period prescribed for the purpose by Article 23 of the Statute of the Court, by ZF Zefeser, the Portuguese Government, Ireland and by the Commission.

17. At the hearing on 1 March 2007, the representatives of the parties submitting written observations appeared in order to present oral argument.

V – Main arguments of the parties

A – First and second questions

18. The Portuguese Government, Ireland and the Commission rely on the provision in Article 2 of the regulation according to which it is incumbent on the national customs authorities alone to classify conduct as ‘an act that could give rise to criminal court proceedings’. Together with the schematic context of those provisions that interpretation is supported also by the wording of Article 3 of the regulation which does not require the person concerned to be convicted. Moreover, they make reference to Meico-Fell, ( ) in which the Court declared customs authorities competent to pursue post-clearance recovery of import levies.

19. ZF Zefeser counters that argument, stating that an act can only be described as a criminal offence once it has been determined as such by way of a final judgment. Only in those circumstances may post-clearance recovery of charges be based on alleged breaches of criminal law. The principles of legal certainty and the presumption of innocence preclude the legal assessments made by the customs authorities and the Public Prosecutor’s Office from serving as a basis for post-clearance recovery.

B – Third question

20. As regards the consequences to be drawn in the event of an acquittal, the Portuguese Government and Ireland argue that what is decisive is simply the commission of an act that could give rise to criminal court proceedings and not the outcome of a criminal trial.

21. On the contrary, the Commission takes the view that the time‑limit in Article 3 of the regulation cannot be applied in the present case because in the criminal proceedings at issue against the members of ZF Zefeser no act that could give rise to criminal court proceedings could be proven.

22. ZF Zefeser shares that view and argues, in addition, that the principle of unity within the legal system precludes the acceptance of two contradictory decisions, that is to say, acquittal within the sphere of criminal law and conviction within the field of customs law.

C – Fourth and fifth questions

23. The Portuguese Government, Ireland and the Commission refer to their answer to the first question, according to which the decision of the customs authorities alone is decisive. Accordingly, non-pursuit of criminal charges or the closure of a case does not preclude the post-clearance recovery of import levies after expiry of the general three-year limitation period.

24. ZF Zefeser takes the view that the fourth question is unnecessary for a decision in the main proceedings, since in the present case investigations were opened. As regards the fifth question, it proposes that having regard to the principle of presumption of innocence that the answer to that question must be that closure of criminal proceedings precludes the post-clearance recovery of import levies.

VI – Legal appraisal

A – Introductory observations

25. Articles 2(1) and 3 of Regulation No 1697/79 and Article 221(3) and (4) of the CCC constitute provisions of Community law which set time-limits within which the competent authorities may recover from the debtor ex post any charges not collected. Thus, they do not constitute mere procedural rules; they contain, instead, substantive limitation periods the expiry of which has substantive consequences as a matter of Community customs law, that is to say, extinction of the customs debt. ( )

26. More generally, it should be noted that, according to settled case-law, procedural rules are generally held to apply to all proceedings pending at the time when they enter into force, whereas substantive rules are usually interpreted as not applying to situations existing before their entry into force. ( ) In order to determine which provisions govern post-clearance recovery, the date on which the customs declaration was accepted is decisive. Thus, if the declaration was accepted before 1 January 1994, post-clearance recovery is governed by Article 2 of Regulation No 1697/79. ( ) That is the situation applicable in the present case, since at the date when the facts underlying the main proceedings occurred, that is to say, when the oil was originally imported into the harbour of Setúbal in October 1993 and the remainder of the vessel’s consignment was declared to the Portuguese customs authorities as goods in transit, the said regulation was still in force.

27. With regard to the dispute in the main proceedings, reference must be made, therefore, on the one hand, to the substantive rules contained in the legislation in force prior to the application of the CCC and, on the other hand, to the procedural rules contained in the CCC.

B – Analysis of the questions referred for a preliminary ruling

1. First question

28. By way of its reference for a preliminary ruling, the referring court provides the opportunity to examine fundamental aspects of national procedural law and on the organisation of the State. The main question at issue concerns the legal effects of decisions taken by organs of the national criminal justice system on Community customs law, a field of law which nowadays following completion of the Community customs union falls mainly within its exclusive legislative competence, ( ) but which within the scope of the direct administrative implementation of Community law by Member States is applied first and foremost by the national authorities. ( )

a) Admissibility

29. First, it is necessary to recall that the permissible subject-matter of a reference within the framework of a preliminary ruling under Article 234 EC may exclusively concern the question raised by the national court judge on the validity or interpretation of Community law. On the contrary, the Court is precluded from providing an answer to questions on the interpretation or validity of national law. ( )

30. Regulation No 1697/79, at issue in the case, is without doubt subject to the Court’s interpretative authority. That follows from the fact that according to point b in the first paragraph of Article 234 EC Community law includes the acts of the institutions of the Community, which must be taken also as meaning the whole of Community secondary law created by the institutions. On the other hand, the indeterminate legal concept of ‘an act that could give rise to criminal court proceedings’ contained in Article 3 of Regulation No 1697/79 raises the question whether that concept is at all amenable to interpretation by the Court or, instead, on account of its schematic connection with the substance or procedure of criminal law it falls within the interpretative authority of national courts.

31. In Meico-Fell, ( ) the Court held that the concept of ‘an act that could give rise to criminal court proceedings’ refers only to acts which, under the legal system of the Member State whose competent authorities are seeking the post-clearance recovery of duties, are classified as offences under national criminal law. ( ) In reaching that conclusion, the Court essentially adopted the view of Advocate General Van Gerven, who considered that provision to make implicit reference ( ) to national law. In his Opinion in that case, the Advocate General pointed out that the concept of ‘an act that could give rise to criminal court proceedings’ must be determined on the basis of the applicable national law. In making that point, he emphasised that such determination must ensue, however, in the light of uniform interpretative criteria provided by the Court. ( )

32. As the Court of Justice has consistently held, the terms of a provision of Community law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an independent interpretation, which must take into account the context of the provision and the purpose of the relevant regulations. In the absence of an express reference, the application of Community law may sometimes necessitate a reference to the laws of the Member States where the Community Court cannot identify in Community law or in the general principles of Community law criteria enabling it to define the meaning and scope of such a provision by way of independent interpretation. ( )

33. References of that nature are, in particular, indispensable in those situations where the Community by reason of non-exercise ( ) or even the lack of legislative competence has not created uniform terminology in a specific area of Community law. They arise as a consequence, therefore, of the principles of limited legal competence and subsidiarity ( ) which, in accordance with Article 5 EC, are inherent in Community law. Accordingly, in the previously mentioned judgment of Meico-Fell, the Court – acknowledging the risk that the concept of ‘an act that could give rise to criminal court proceedings’ could lead to differing results on account of the content of the criminal law provisions of the Member States – held that according to the state of Community law prevailing at that time the classification of a certain kind of conduct for the purposes of criminal law was not harmonised and was governed, therefore, by national law. ( )

34. In assessing the present case, the second statement of Advocate General Van Gerven, according to which in interpreting national law national bodies are bound by the criteria provided by the Court, ( ) appears to me to be of greater relevance.

35. I understand that statement as meaning that the fact that a provision of Community law makes reference to national law cannot result in national law being wholly removed from the influence of Community law. Rather, I take the view that national law has to keep within the limits imposed on it by way of the implicit reference made by Community law. In my view, that principle is particularly applicable in situations such as the present case where at issue is not the substance of criminal law but solely the meaning in procedural terms attached to the concept of ‘an act that could give rise to criminal court proceedings’. That concept concerns, in fact, the legal consequences of decisions taken during the criminal justice process by the Public Prosecutor’s Office or the courts on the practical implementation of post-clearance recovery by Member State authorities.

36. Contrary to what was at issue in Meico-Fell, in the present proceedings interpretation of that concept by the Court is not hindered by the Community’s lack of authority to impose criminal penalties (ius puniendi), ( ) but by the Member States’ organisational and administrative sovereignty in implementing Community law. That notion includes the authority of the Member States, in the absence of a general Community law of procedure, to determine those administrative bodies ( ) and jurisdictions ( ) with competence to apply Community law at a Member State level. However, that administrative sovereignty does not release Member States from their duty to observe certain obligations imposed by Community law, above all, ensuring the principle of efficiency in the sense of achieving in its transposition the greatest practical effectiveness for Community law. ( )

37. Uniform application of customs law is not only necessary in the light of the customs union’s great integrative and economic importance to the Community, ( ) but also of importance in ensuring that the rule of law applies as between authorities and individuals. Time-limits and limitation periods apply in the interests of legal certainty and are designed to protect both debtors and the authorities. ( ) In my opinion, having regard to those weighty considerations and also the need to ensure uniform application of Community law and equal treatment of debtors, one of the objectives of Regulation No 1697/79 (above, point 4), Member States’ procedural autonomy must be diminished in order to arrive at a uniform set of rules for Community customs law. ( )

38. Accordingly, having regard to the importance in procedural law terms of the indeterminate legal concept of ‘an act that could give rise to criminal court proceedings’, the Supremo Tribunal Administrativo has referred a question on the interpretation of Community law which the Court is competent to answer within the framework of a preliminary ruling under point b in the first paragraph of Article 234 EC.

b) Interpretation of the regulation

i) Literal interpretation

39. As the Court has held on many occasions, the need for a uniform interpretation of Community regulations requires the provision in question to be interpreted and applied in the light of the other languages. ( ) Thus the starting point for interpretation must be the manner in which the contested concept is reproduced in the different language versions. On examination of those texts, what is striking is that certain versions, in particular the German and Dutch versions, referring to ‘Handlungen, die strafrechtlich verfolgbar sind’ and ‘een strafrechtelijk vervolgbare handeling’ do not indicate clearly whether a criminal court must at all be seised in an individual case with a criminally relevant set of facts or whether it is sufficient that in mere abstract terms the substantive criminal law treats a particular act as criminal.

40. On the contrary, the Portuguese, French, Spanish, English and Italian versions (‘um acto passível de procedimento judicial repressivo’, ‘un acte passible de poursuites judiciaires répressives’, ‘un acto que puede dar lugar a la incoación de un proceso judicial punitivo’, ‘an act that could give rise to criminal court proceedings’, ‘un atto passibile di un’azione giudiziaria repressiva’) clearly refer to judicial proceedings within the criminal justice process and even to the possibility of imposing criminal sanctions, which leads to the inference that ‘an act that could give rise to criminal court proceedings’ can be taken to exist only on charges being laid before a criminal court resulting in a conviction following a full hearing. Having regard to the more precise formulation of those language versions, it must be concluded that such interpretation corresponds more closely to the intention of the Community legislature.

41. That interpretation is not precluded by the strikingly broad wording adopted by the Community legislature to describe punishable conduct. Rather, in my view, that wording suggests that in an individual case the criminal character of specific conduct must be determined according to the substantive and procedural rules of national criminal law. That wording has to be considered in the light of the state of Community law at that time and the then prevailing consensus concerning the Community’s lack of authority to impose criminal penalties.

ii) Schematic and teleological interpretation

42. From the general competence of national customs authorities, in accordance with Article 2(1) of Regulation No 1697/79, to recover ex post import or export charges not yet demanded of the debtor, the Portuguese Government, Ireland and the Commission infer a power permitting customs authorities to determine with effect for Community law whether ‘an act that could give rise to criminal court proceedings’ exists.

43. That view must be countered by stating that although it is beyond dispute that the customs authorities are competent to recover ex post charges not collected in accordance with the relevant provisions, that authority alone does not permit any conclusions to be drawn concerning any ancillary authority arising from Community law permitting customs authorities to characterise conduct as criminally punishable.

44. Instead, it follows from the objectives and content of Regulation No 1697/79 that the significance of Articles 2(1) and 3(1) is limited to creating the authority to take action for post-clearance recovery. That rule of Community law sets out, namely, those situations in which customs duties can be recovered ex post from the debtor when the competent customs authorities establish that the original collection was incorrect or incomplete. ( ) Admittedly, both provisions refer to the power of the competent authorities to establish whether the conditions for post-clearance recovery are satisfied; however, they do not permit any conclusions to be drawn on the basis of what information the competent authorities should reach that conclusion.

45. In principle, both proximity to the customs procedure and the experience and specialised knowledge which customs authorities generally possess point to an authority in investigative matters, as is common in certain Member States. ( ) However, that authority to investigate may not be equated with the criminal law assessment of an act, ( ) which in accordance with the constitutional traditions of the Member States is generally reserved to the criminal justice authorities. ( ) A contrary interpretation would result in the customs and tax authorities, part of the executive branch of the State, being granted a quasi-judicial role which is supported neither by the constitutional traditions of the Member States nor by Community law.

46. Thus it follows, for example, from Article 135 EC and from a comparison between that provision of Community primary law and the provisions of the Treaty on European Union concerning police and judicial cooperation in criminal matters that, in accordance with the wishes of the Community legislature, customs and administration of justice should remain independent fields of sovereign activity. ( ) The first sentence of Article 135 EC empowers the Council to take measures in order to strengthen customs cooperation between Member States and between the latter and the Commission, with the second sentence clarifying the fact that such measures do not concern the application of national criminal law or the national administration of justice. ( ) The separation, in principle, between customs and the criminal justice system, as provided for by Community law, constitutes, in my opinion, an indication that considerations of customs authorities concerning the criminal nature of an act cannot substitute for judicial determination. ( )

47. Advocate General Van Gerven evidently takes similar considerations into account when in his Opinion in Meico-Fell, first, he expressly indicates that it is a matter for the national court to determine on the basis of applicable national law whether there is ‘an act that could give rise to criminal court proceedings’. ( ) Those observations are subsequently supplemented by the conclusion that the legal concept at issue necessarily refers to acts to which sanctions are attached, which a court must determine. ( )

48. By way of a schematic and teleological interpretation, it must be concluded, therefore, that the reference made in Article 3 of Regulation No 1697/79 is intended not only to refer to the substance but also to the procedure of national criminal law.

iii) Interpretation in the light of Community fundamental rights

49. That conclusion is confirmed on interpreting the provisions of Regulation No 1697/79 in the light of Community fundamental procedural rights, above all the right to fair legal process.

50. The Court has consistently held that fundamental rights form an integral part of the general principles of law whose observance the Court ensures. ( ) For that purpose, the Court draws inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international treaties for the protection of human rights on which the Member States have collaborated or to which they are signatories. In that regard, the European Convention for the Protection of Human Rights and Fundamental Freedoms (‘the ECHR’) signed in Rome on 4 November 1950 has particular significance. ( )

51. In the course of the further development of the European integration process, that case-law has become embodied in Article 6(2) EU. According to that provision, the Union must respect fundamental rights, as guaranteed by the ECHR and as they result from the constitutional traditions common to the Member States, as general principles of Community law.

52. In that connection, the Court has pointed out on many occasions that the requirements flowing from the protection of fundamental rights in the Community legal order are also binding on Member States when they implement Community rules and that the Member States must therefore, as far as possible, apply those rules in accordance with those requirements. ( ) From that finding, it must be concluded that Member States, in the same way as Community institutions, are bound directly by fundamental rights under Community law, if and to the extent that they act within the scope of the Treaties. ( ) That condition is doubtless satisfied when, as in the present case, they have competence for the administrative implementation of customs law.

53. Moreover, the Court has held that where such national rules fall within the scope of Community law and reference is made to the Court for a preliminary ruling, it must provide all the criteria of interpretation needed by the national court to determine whether those rules are compatible with the fundamental rights whose observance the Court ensures. ( )

– Right to a fair legal process

54. In order to answer the first question, it is relevant to begin with the provisions of Article 6(1) of the ECHR according to which, in the determination of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. That fundamental right has taken on a similar form in Article 47 of the Charter of Fundamental Rights of the European Union ( ) according to which everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. From those fundamental rights, the Court has expressly developed a general principle of Community law according to which everyone has a right to fair legal process ( ) which applies also in the area of criminal law. ( )

55. All Member States of the European Union possess a complex judicial organisation with numerous courts whose powers and areas of competence are strictly defined. The differing judicial systems within the European Union reflect the diverse legal traditions of the Member States. However, alongside a jurisdiction for civil and administrative matters, most Member State legal orders provide for a criminal jurisdiction which is characterised by a particular procedure for investigating and sanctioning criminal conduct. It is incumbent on that jurisdiction to realise the State’s right to punish whilst at the same time protecting the rights of the accused. ( ) In addition to particular expertise in the area of prosecution and individual legal protection, it ensures the judicial independence necessary to perform its tasks. ( )

56. In order to prevent the legal protection granted by the criminal jurisdiction from being circumvented by classifying prosecution measures as disciplinary, administrative or civil measures, ( ) the European Court of Human Rights has held that the concept of ‘criminal charge’ within the meaning of Article 6(1) of the ECHR must be interpreted autonomously. ( ) In that context, it is uncontested that such indeterminate legal concept contains both substantive and procedural components, inasmuch as the area protected by that fundamental right covers the whole criminal proceedings including appeal proceedings and sentencing. ( )

57. In my opinion, the same considerations must apply with regard to the interpretation of the legal concept of ‘an act that can give rise to criminal court proceedings’ in Article 3 of Regulation No 1697/79. Otherwise there is a risk that the procedural guarantees provided for by Community law based on Article 6(1) of the ECHR and Article 47 of the Charter of Fundamental Rights could be circumvented if a Member State were entitled to create an additional and competing jurisdiction. That conclusion is especially applicable as regards an allocation of power to the customs authorities, part of the executive branch of the State, which from the outset is in contradiction to the wording of Article 6(1) of the ECHR and Article 47 of the Charter of Fundamental Rights.

– Principle of presumption of innocence

58. Furthermore, I consider it appropriate also with regard to the first question to refer to the principle enshrined in Article 6(2) of the ECHR according to which everyone charged with a criminal offence is to be presumed innocent until proved guilty according to law. Article 48 of the Charter of Fundamental Rights provides accordingly that everyone who has been charged is to be presumed innocent until proved guilty according to law. The principle of the presumption of innocence is recognised as an expression of the rule of law in all legal orders of European Union Member States.

59. The case-law of the European Court of Human Rights sheds light on the meaning of the principle of the presumption of innocence. It follows from that case-law that such presumption has different manifestations. However, for the purposes of the present case, the following relevant characteristics may be observed.

60. The principle of the presumption of innocence benefits only persons who are charged with a criminal offence. ( ) It requires the State to treat the accused as if he had not committed a crime until such time as the State in the form of the prosecuting authorities has put forward sufficient evidence to convince an independent and impartial court of his guilt. As a rule, the public prosecutor must prove beyond all doubt the guilt of the accused. According to the view taken by the European Court of Human Rights, the burden of proof lies on the public prosecutor and any doubt must benefit the accused. ( )

61. Moreover, neither a court nor a public official may make any statement that the accused is guilty of an offence before he has been brought before a court and convicted. The presumption of innocence is infringed if by way of a remark of a public official concerning a person charged with an offence statements concerning that person’s guilt are made without that guilt being proven in accordance with the law and without that person having the opportunity to avail himself of his rights of defence. ( ) If public statements are made concerning matters connected to criminal proceedings, discretion should be exercised. ( )

62. Underlying that case-law is, first, the legal conviction that only criminal proceedings can result in a formal determination of guilt according to the criminal law and that, therefore, no other public institution may characterise a person as guilty. Second, it takes account of the fact that a public statement of the suspicion held by public authorities may have negative consequences for the individual’s legal position. Logically, it aims to protect an accused person from being prejudged. ( )

63. In my view, a determination of the punishability of a debtor’s action, if reached by the customs authorities within the context of post‑clearance recovery prior to conviction by a court, runs the risk of prejudging the matter and of publicly branding the debtor. Whilst the debtor is free to contest a customs assessment issued by the authorities by way of administrative court proceedings and, thus, could defend himself against the indirect allegation of criminal conduct, it is unreasonable, however, to expect the person concerned to have recourse to a means of legal protection other than that guaranteed by the law of criminal procedure. Rather, it is incumbent on a Member State to assume the duty of care which the ECHR ( ) and Community law impose. A power of interpretation in favour of the customs authorities, as argued for by the Portuguese Government and the Commission, cannot be regarded as compatible, therefore, with the case-law of the European Court of Human Rights on the principle of the presumption of innocence in Minelli, Ribemont, Daktaras and Butkevičius. ( ) Nor can the restriction on the fundamental rights of the debtor thereby arising be justified by the Community’s interest in ex post recovery of unpaid duties possibly resulting from an infringement of Community law.

c) Conclusion

64. From all of this, it follows that the legal concept of ‘an act that could give rise to criminal court proceedings’ must be regarded also in the light of Community fundamental rights as referring to the law of criminal procedure of the Member States. As a result, only final conviction by a criminal court of a Member State is capable of delivering an interpretation with effects for the relevant Community law on post-clearance recovery.

2. Second question

65. From my observations on the first question, it follows that the decision of a public prosecutor cannot substitute for a final judicial determination. Further, it must be noted, first, that in many Member States of the European Union in organisational and functional terms the Public Prosecutor’s Office either is attached to the executive branch of the State or at the very least is regarded as being closely connected ( ) and, second, that procedural law grants the criminal judge an authority to take decisions in the last resort, in the sense that as soon as a judgment becomes final the criminal proceedings are considered to be closed. Legal proof of guilt is furnished thus only on final judgment. ( ) Moreover, that conclusion coincides with the view taken by the Portuguese Government according to which the only possibility to be certain that ‘an act that could give rise to criminal court proceedings’ has been committed in fact is to await the conclusion of the criminal proceedings. ( ) Logically, in the interests of legal certainty, only that sovereign act and not the laying of charges by the Public Prosecutor’s Office may be taken into account.

3. Third question

66. The principle of the presumption of innocence as derived from Article 6(2) of the ECHR and the case-law of the European Court of Human Rights demands that the public prosecutor proves beyond doubt the guilt of the accused. ( ) The principle of in dubio pro reo ( ) derived according to the majority of commentators also from that provision applies in the context of judicial deliberations. It constitutes, thus, a particular expression of the presumption of innocence.

67. However, for the criminal judge, unlike the Public Prosecutor’s Office, that principle is not an evidential rule, but a decision-making rule. It does not tell the judge when to have doubts, but simply how he must decide when he is in doubt. If in criminal proceedings it cannot be determined with the necessary certainty whether the accused has committed a particular offence, the presumption of innocence must operate in his favour. ( ) The law of criminal procedure takes that fact into account in requiring in principle that the judge, in convicting the accused, is sure beyond all reasonable doubt of the latter’s guilt, with the precise requirements concerning judicial certainty being determined in accordance with the domestic law of criminal procedure and, thus, capable of varying from one Member State to another. ( ) The principle of in dubio pro reo affords the accused the right to be treated as if he has been proven innocent. ( ) Accordingly, from the perspective of criminal justice and the protection of fundamental rights, no qualitative difference exists between acquittal for lack of evidence and acquittal resulting from a clear determination of the accused’s innocence. ( )

68. The reference to the national law of criminal procedure in Article 3 of Regulation No 1697/79 has as regards those procedural principles a binding effect on the Community with the consequence that, where application of the principle of in dubio pro reo is concerned, as between the national authorities charged with the implementation of the regulation and the debtor that principle must also apply. As a result, a debtor who is acquitted by a criminal court for lack of evidence may not in legal terms be treated less favourably than a person whose innocence is clearly established.

4. Fourth question

69. By its fourth question, the referring court asks, first, what consequences result from the fact that the Public Prosecutor’s Office does not lay charges against the debtor because it takes the view that there is no evidence of acts that could give rise to criminal court proceedings. Second, it wishes to know whether such decision precludes an action to recover duties uncollected.

70. As regards that question, I wish to point out that it is clear from the settled case-law of the Court that the procedure provided for by Article 234 EC is an instrument of cooperation between the Court of Justice and national courts, by means of which the Court provides the national courts with the points of interpretation of Community law which they need in order to decide the disputes before them. ( )

71. In the context of that cooperation, it is solely for the national court, before which the dispute has been brought and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of Community law, the Court is, in principle, bound to give a ruling. ( )

72. Nevertheless, the Court has also held that, in exceptional circumstances, it can examine the conditions in which the case was referred to it by the national court, in order to assess whether it has jurisdiction. The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of Community law that is sought bears no relation to the facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it. ( )

73. The spirit of cooperation which must prevail in the preliminary ruling procedure requires the national court to have regard to the function entrusted to the Court of Justice, which is to assist in the administration of justice in the Member States and not to deliver advisory opinions on general or hypothetical questions. ( )

74. Inasmuch as the question referred concerns the possible legal effects for the post-clearance recovery procedure which could arise from a decision of the Public Prosecutor’s Office to waive the laying of charges, in my view, the question must be considered unnecessary for a decision in the main proceedings since it bears no relation to the facts. It is clear, both from the order for reference and from the written observations submitted to the Court by the Portuguese Government and ZF Zefeser that the Public Prosecutor’s Office following its criminal investigations on suspicion of smuggling, falsification of documents, fraud and criminal conspiracy laid charges against the members of ZF Zefeser before a national court for civil and criminal matters, the Tribunal Judicial de Setúbal, which acquitted them by judgment of 10 January 2001. Accordingly, at no time did the question of the Public Prosecutor’s Office discontinuing criminal proceedings or not laying charges arise.

75. It follows from those observations that the fourth question, having regard to its purely hypothetical character, is irrelevant for a decision in the main proceedings pending before the national court and that, accordingly, the Court is not required to reply.

5. Fifth question

76. On the contrary, the fifth question has a real connection to the main proceedings in so far as the submissions of ZF Zefeser indicate that the Tribunal Judicial de Setúbal determined of its own motion that the criminal proceedings concerning the offences of smuggling and falsification of documents – with which the members of that undertaking had been charged – were time-barred.

77. As a result of the reference to national criminal law in Article 3 of Regulation No 1697/79, it follows necessarily that the time-bars applying to criminal proceedings must be determined also in accordance with national law. As I have already indicated in the context of the first question, customs authorities when applying Community law are bound by the notion of efficiency within the meaning of the principle of cooperation according to the first paragraph of Article 10 EC. That principle correlates to the obligation under the second paragraph of Article 10 EC to abstain from any measures which could jeopardise the attainment of the objectives of the Treaty.

78. The intention of the Community legislature expressed in Article 3 of Regulation No 1697/79 that Community law should reflect national criminal law would be hindered if, notwithstanding the expiry of the general three-year limitation period, on the basis of alleged offences, the prosecution of which is time-barred by way of judicial determination, the customs authorities were entitled to bring administrative court proceedings to recover duties not received.

79. Closure of proceedings because a matter has become time-barred is not based on an assessment of the criminal nature of particular conduct pursuant to substantive criminal law but results from the existence of a procedural bar. Time-limits on prosecution reflect the legislature’s will in the interests of legal certainty only to pursue offences within a specific period.

80. Logically, that legislative will must be respected also in the area of customs law. If according to the assessment of the competent criminal court an act that could give rise to criminal court proceedings has become time-barred, an administrative court which is required to determine the legality of a customs decision is precluded for the purposes of customs law from assuming the existence of ‘an act that could give rise to criminal court proceedings’ within the meaning of Article 3 of Regulation No 1697/79.

81. Accordingly, the judicial closure of criminal proceedings which have become time-barred precludes the bringing of proceedings to recover duties not received to the extent that those proceedings are brought following the expiry of the general three-year limitation period in Article 3 of Regulation No 1697/79. On the contrary, if the period within which criminal proceedings become time-barred is shorter than the general three-year limitation period, proceedings may be brought accordingly.

82. In the present case, it is clear from the file that it has been judicially determined that the criminal proceedings are time-barred and the general three-year time-limit has expired. Recovery by way of court proceedings of the charges not collected is, thus, excluded.

VII – Conclusion

83. On the basis of the foregoing observations, I propose that the Court should reply to the questions referred by the Supremo Tribunal Administrativo as follows:

(1) Within the framework of post-clearance recovery in determining whether ‘acts that are capable of giving rise to criminal court proceedings’ within the meaning of Article 3 of Council Regulation (EEC) No 1697/79 of 24 July 1979 exist the customs authorities must apply the characterisation made by the competent criminal court.

(2) The conditions of Article 3 of Regulation No 1697/79 shall be regarded as satisfied only when final conviction of the debtor has been established in the relevant criminal proceedings.

(3) No ‘act that is capable of giving rise to criminal court proceedings’ within the meaning of Article 3 of Regulation No 1697/79 is to be taken to exist if the court has acquitted the debtor in accordance with the principle of in dubio pro reo.

(4) The Court shall not be required to answer the fourth question on account of its hypothetical character.

(5) Judicial closure of criminal proceedings because they have become time-barred must result in the situation that proceedings for recovery of duties not collected may not be brought following expiry of the general three-year limitation period in Article 3 of Regulation No 1697/79, inasmuch as the ex post recovery is justified by the fact that the debtor committed an act, which has been judicially determined to be time-barred pursuant to criminal law. If the period within which criminal proceedings become time-barred is shorter than the general three-year limitation period, proceedings may be brought to recover the duties not collected.