Kapnoviomichania Karelia AE v Ypourgos Oikonomikon.
Date: 2016-06-02
37


It is true, as the Court has held on numerous occasions, that the cigarette market particularly lends itself to the development of unlawful trade (judgment of 13 December 2007 in BATIG, C‑374/06, EU:C:2007:788, paragraph 34 and the case-law cited). The obligation which stems from Article 20(3) of Directive 92/12, namely to take the necessary measures to deal with any offence or irregularity and to impose effective penalties, must be interpreted in the light of that finding.
42


According to settled case-law, it is not contrary to EU law to require an operator to take every step which could reasonably be required of him to satisfy himself that the transaction which he is effecting does not result in his participation in tax evasion (judgment of 21 February 2008 in Netto Supermarkt, C‑271/06, EU:C:2008:105, paragraph 24 and the case-law cited).
45


In that regard, it is appropriate to recall, in the first place, that Member States, when exercising their powers to choose the appropriate penalties in the transposition of a directive, must observe the principle of legal certainty. EU legislation must be certain and its application foreseeable by those subject to it and that requirement of legal certainty must be observed all the more strictly in the case of rules liable to entail financial consequences, in order that those concerned may know precisely the extent of the obligations which those rules impose on them (judgment of 16 September 2008 in Isle of Wight Council and Others, C‑288/07, EU:C:2008:505, paragraph 47 and the case-law cited).
48


As regards, in the second place, the principle of proportionality, it is clear from settled case-law that, in the absence of harmonisation of EU legislation in the field of sanctions applicable where conditions laid down by arrangements under that legislation are not complied with, Member States are empowered to choose the sanctions which seem to them to be appropriate. They must, however, exercise their powers in accordance with EU law and its general principles, and, consequently, in accordance with the principle of proportionality (see, inter alia, judgment of 29 July 2010 in Profaktor Kulesza, Frankowski, Jóźwiak, Orłowski, C‑188/09, EU:C:2010:454, paragraph 29).
49


So far as concerns the measures aimed at preventing tax evasion, the Court has held, in relation to value added tax, that the sharing of the risk, following fraud committed by a third party, will not be compatible with the principle of proportionality if a tax regime imposes the entire responsibility for the payment on suppliers, regardless of whether or not they were involved in the fraud committed by the purchaser (judgment of 21 February 2008 in Netto Supermarkt, C‑271/06, EU:C:2008:105, paragraphs 22 and 23).
50


Moreover, the Court has already taken the view that national measures which bring about, de facto, a system of strict joint and several liability go beyond what is necessary to preserve the public exchequer’s rights. It thus held that imposing responsibility for paying value added tax on a person other than the person liable to pay that tax, even where that person is an authorised tax warehousekeeper bound by the specific obligations referred to in Directive 92/12, without allowing him to escape liability by providing proof that he had nothing whatsoever to do with the acts of the person liable to pay the tax, must be considered contrary to the principle of proportionality, and it added that it would clearly be disproportionate to hold that person unconditionally liable for the shortfall in tax caused by acts of a third party over which he has no influence whatsoever (judgment of 21 December 2011 in Vlaamse Oliemaatschappij, C‑499/10, EU:C:2011:871, paragraph 24 and the case-law cited).