1 This request for a preliminary ruling concerns the interpretation of the first paragraph of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’), read in conjunction with Article 273 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1; ‘the VAT Directive’).
2 The request has been made in proceedings between a company incorporated under Bulgarian law, ‘Ati-19’ EOOD, and the Nachalnik na otdel ‘Operativni deynosti’ - Sofia v Glavna direktsia ‘Fiskalen kontrol’ pri Tsentralno upravlenie na Natsionalna agentsia za prihodite (Head of the ‘Operational Activities’ Department - Sofia City, of the ‘Fiscal Supervision’ Directorate-General of the National Public Revenue Agency, Bulgaria) (‘the tax authority’) concerning a measure sealing business premises managed by that company.
3 Article 47 of the Charter provides: ‘Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article. Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented. …’
4 Article 2(1)(a) of the VAT Directive provides that the supply of goods for consideration within the territory of a Member State by a taxable person acting as such is subject to value added tax (VAT).
5 Under Article 273 of that directive: ‘Member States may impose other obligations which they deem necessary to ensure the correct collection of VAT and to prevent evasion, subject to the requirement of equal treatment as between domestic transactions and transactions carried out between Member States by taxable persons and provided that such obligations do not, in trade between Member States, give rise to formalities connected with the crossing of frontiers. The option under the first paragraph may not be relied upon in order to impose additional invoicing obligations over and above those laid down in Chapter 3.’
6 Article 118(1) of the Zakon za danak varhu dobavenata stoynost (Law on value added tax) (DV No 63 of 4 August 2006), in the version applicable to the facts at issue in the dispute in the main proceedings (‘the Law on VAT’), provides: ‘Any person registered or not registered under this law is obliged to register and record in writing the supplies and sales made by him or her on business premises by issuing a fiscal cash register receipt generated by a fiscal memory device (cash register receipt) or a cash register receipt generated by an automatic integrated business management system (system receipt), irrespective of whether or not another tax document is requested. The recipient must receive the cash register receipt or the system receipt and keep it until he or she has left the premises.’
7 Article 185(1) and (2) of that law provides: ‘(1) Failure to issue a supporting document referred to in Article 118(1) shall, for natural persons who are not traders, be sanctioned by a fine of between 100 and 500 [leva] (BGN) [approximately EUR 50 to EUR 250] and, for legal persons and individual traders, by a financial penalty of between BGN 500 and BGN 2 000 [approximately EUR 250 to EUR 1 000]. (2) Apart from the cases referred to in paragraph 1, any person who commits or permits the commission of an offence referred to in Article 118 or in a legislative act implementing that article shall be liable to a fine of between BGN 300 and BGN 1 000 [approximately EUR 150 to EUR 500] for natural persons who are not traders, or to a financial penalty of between BGN 3 000 and BGN 10 000 [approximately EUR 1 500 to EUR 5 000] for legal persons and individual traders. Where the offence does not result in a failure to indicate tax revenue, the penalties provided for in paragraph 1 shall be imposed.’
8 Article 186 of that law, in the version applicable to the facts at issue in the dispute in the main proceedings, is worded as follows: ‘(1) The coercive administrative measure of sealing business premises for a period of up to 30 days shall be ordered, irrespective of the fines or financial penalties provided for, against any person who: (3) The coercive administrative measure pursuant to paragraph 1 shall be applied by means of a reasoned injunction issued by the revenue service or by an official authorised by that department. (4) An appeal shall lie against the injunction referred to in paragraph 3 in accordance with the procedure laid down in the [Administrativnoprotsesualen kodeks (Code of Administrative Procedure) (DV No 30 of 11 April 2006), in the version applicable to the facts at issue in the main proceedings (“the Code of Administrative Procedure”)].’
9 In accordance with Article 187(1) and (4) of that law: ‘(1) Where a coercive administrative measure is ordered pursuant to Article 186(1), access to the person’s business premises shall also be prohibited and the property present in those premises and in the adjoining storage facilities shall be removed by the person or by his or her authorised representative. The measure shall apply to the premises where the offences were established, including where the premises are managed by a third party at the time of sealing, if that third party knows that the premises will be placed under seal. The National Public Revenue Agency shall publish on its website the lists of business premises to be sealed and their location. The person shall be deemed to be aware of the sealing of the premises where a notice of sealing has been permanently affixed to the premises or where information about the business premises to be sealed and their location has been published on the website of the revenue administration. … (4) At the request of the offender and subject to his or her providing proof of full payment of the fine or financial penalty, the authority shall terminate the coercive administrative measure imposed by it. The removal of seals shall be subject to an obligation of cooperation on the part of the offender. In the event of a repeat offence, removal of the seals from the premises shall not be permitted until one month has elapsed since its placing under seal.’
10 Article 188 of the Law on VAT provides: ‘(1) The coercive administrative measure referred to in Article 186(1) shall be provisionally enforceable under the conditions laid down in Article 60(1) to (7) [of the Code of Administrative Procedure]. …’
11 Article 193 of that law provides: ‘(1) ‘The [Zakon za administrativnite narushenia i nakazania (Law on administrative offences and penalties)] shall govern the establishment of offences under this Law and under the legislative acts implementing it, the adoption and enforcement of decisions imposing administrative penalties, and any appeals against such decisions. (2) Findings of offences shall be established by the revenue services and the decisions imposing administrative penalties shall be adopted by the Executive Director of the National Public Revenue Agency or by the official authorised by him or her for that purpose.’
12 Article 6(5) of the Code of Administrative Procedure provides: ‘Administrative authorities must refrain from adopting acts and engaging in conduct liable to cause damage which is manifestly disproportionate in view of the aim pursued.’
13 Article 21(1) of that code provides: ‘An individual administrative act is an express declaration of will, or a declaration of will expressed by an act or omission, of an administrative authority or other authority or organisation empowered to do so by law, of persons exercising public functions and of organisations providing public services, which creates rights or obligations or directly affects the rights, freedoms or legitimate interests of individual citizens or organisations, as well as the refusal to issue such an act.’
14 Under Article 60 of that code: ‘(1) The administrative act shall comprise an order for its provisional enforcement where required by the life or health of citizens, so as to protect particularly important State or public interests where enforcement of the decision is liable to be prevented or significantly impeded, or if the delay in enforcement is likely to cause damage which is serious or reparable only with difficulty, or at the request of one of the parties - to protect one of its particularly important interests. In the latter case, the administrative authority shall require the corresponding guarantee. (2) The provisional enforcement order shall state the grounds on which it is based. … (5) An appeal may be lodged against the order authorising or refusing provisional enforcement, through the administrative authority before the court within three days of notification of the order, irrespective of whether or not an appeal has been lodged against the administrative act. (6) The appeal shall be examined as soon as possible in chamber by the Board without notification of copies of the appeal to the parties. The appeal does not suspend provisional enforcement, but the court may suspend provisional enforcement until it has given a final ruling on the appeal. (7) When setting aside the order under appeal, the court shall rule on the substance of the case. If provisional enforcement is set aside, the administrative authority shall restore the pre-enforcement situation. (8) An appeal may be brought against the order of the court.’
15 Article 128(1)(1) of the Code of Administrative Procedure states that the administrative courts have jurisdiction to hear and determine cases seeking, inter alia, amendment or annulment of administrative acts.
16 Article 166 of that code, entitled ‘Suspension of enforcement of the administrative act’, provides: ‘(1) An appeal shall suspend enforcement of the administrative act. (2) … At each stage of the proceedings until the judgment becomes final, the court may, at the request of the applicant, suspend provisional enforcement, authorised by a final order of the authority which adopted the act referred to in Article 60(1), if the provisional enforcement would be likely to cause the applicant damage which is serious or reparable only with difficulty. Enforcement may be stayed only on the basis of new circumstances. (3) The request referred to in paragraph 2 shall be examined in chamber by the Board. The court shall give its decision as soon as possible, by way of an order against which an appeal may be brought, within 7 days of its notification. …’
17 Ati-19 is a one-person company with limited liability.
18 On 3 August 2023, inspectors from the National Public Revenue Agency carried out an inspection at business premises managed by Ati-19, namely a fast-food establishment located in Blagoevgrad (Bulgaria). During that inspection, those inspectors, without revealing their identities, purchased goods (food and beverages) totalling BGN 14.80 (approximately EUR 8), paid in cash. The payment was accepted by an employee of Ati-19, but no fiscal cash register receipt relating to that sale was issued.
19 After providing proof of the capacity in which they were acting, the inspectors carried out an inspection of the correspondence between the sales recorded during the same day in a daily accounts report and the cash in the establishment’s cash register. It was found that sales had been recorded for a total amount of BGN 327.80 (approximately EUR 167), while the amount of cash in that cash register amounted to BGN 573.55 (approximately EUR 293).
20 On the basis of those findings, an administrative offence was established against Ati-19 pursuant to national legislation.
21 Consequently, on 29 August 2023, the tax authority imposed on that company a financial penalty in the amount of BGN 1 000 (approximately EUR 500).
22 On 30 August 2023, that authority issued an injunction pursuant to the national legislation imposing a coercive administrative measure to seal the business premises where the administrative offence had been committed for a period of 14 days. In addition to that injunction, provisional enforcement of that measure was ordered with effect from 21 September 2023.
23 The injunction was served on Ati-19 on 6 September 2023.
24 On 14 September 2023, that company brought an action before the Administrativen sad Blagoevgrad (Administrative Court, Blagoevgrad, Bulgaria), which is the referring court, against (i) the injunction relating to the coercive administrative measure and (ii) the order for provisional enforcement of that measure.
25 On 18 September 2023, the referring court dismissed that action in so far as it was directed against the order provisionally enforcing the coercive administrative measure as inadmissible, on the ground that the period of three days laid down by the Code of Administrative Procedure for bringing such an action had expired.
26 The following day, namely 19 September 2023, Ati-19 submitted, in the context of the same proceedings, an application for suspension of the provisional enforcement of the coercive administrative measure under the Code of Administrative Procedure.
27 The referring court raises the question of whether that legal remedy constitutes an effective remedy within the meaning of the first paragraph of Article 47 of the Charter.
28 That court states that, in the context of those proceedings, the facts constituting the offence referred to in Article 118(1) of the Law on VAT are deemed to have been established by the record of the results of the inspection carried out by the National Public Revenue Agency at the business premises in question and by the act finding the administrative offence.
29 The referring court also states that the judicial review carried out in the context of an action brought under Article 166(2) and (3) of the Code of Administrative Procedure does not extend to the conditions for the adoption of an injunction that business premises be ‘sealed’ under Article 186(1)(a) of the Law on VAT. The court hearing the case does not therefore carry out an ‘investigation’ on the facts on which such adoption was based. Similarly, it does not assess whether the action against the injunction itself is likely to be well-founded in the light of the grounds referred to in Article 146 of the Code of Administrative Procedure. In the context of the action referred to in Article 166(2) and (3) of that code, an applicant may rely only on ‘damage which is serious or reparable only with difficulty’ which the provisional enforcement of the administrative measure taken against him or her would cause him or her.
30 Nor can the conditions for the adoption of the provisional enforcement order referred to in Article 188(1) of the Law on VAT be reviewed. After the expiry of the period for bringing an action for annulment of such an order, laid down in Article 60(5) of the Code of Administrative Procedure, that order is deemed to have been adopted in accordance with the law.
31 Although the court hearing the case may review the assessment, made by the administrative authority which adopted that order, of whether the conditions referred to in Article 60(1) of that code have been met, the scope of the protection against an order adopted under the latter provision is limited to assessing the existence of ‘damage which is serious or reparable only with difficulty’ caused to the addressee of that order, which corresponds to the scope of the judicial review carried out in the context of the proceedings for suspension of provisional enforcement under Article 166(2) of that code.
32 In any event, the procedure provided for in Article 166(2) and (3) of the Code of Administrative Procedure does not allow the court hearing the case to verify whether the provisional enforcement of the injunction is intended to defend an important State interest. In that context, it cannot be ruled out that the provisional enforcement of an injunction ordered on the basis of Article 186(1)(1)(a) of the Law on VAT produces legal effects before the injunction itself is set aside.
33 In the light of the foregoing, the referring court, which, moreover, refers to the criminal nature of a sealing measure, such as that before it, has doubts as to whether it is possible that a review limited to that of the existence of damage that is serious or reparable only with difficulty will ensure the effectiveness of the means of protection against provisional enforcement, for the purposes of both the first paragraph of Article 47 of the Charter and Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950.
34 In those circumstances, the Administrativen sad Blagoevgrad (Administrative Court, Blagoevgrad) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling: ‘Must [the first paragraph] of Article 47 of the [Charter] 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 [the VAT Directive], in the context of which the scope of judicial review is limited to the existence of damage suffered?’
35 By its question, the referring court asks, in essence, whether the first paragraph of Article 47 of the Charter must be interpreted as precluding legislation of a Member State which, pursuant to the option provided for in the first paragraph of Article 273 of the VAT Directive, limits the scope of the judicial review carried out in the context of an application for suspension of the provisional enforcement of a coercive administrative measure of a criminal nature solely to the existence of damage which is serious or reparable only with difficulty that such provisional enforcement may cause.
36 The Bulgarian Government disputes the admissibility of the question on the ground that it is hypothetical, as, in its submission, (i) the provisional enforcement order does not exist in the present case, since the acknowledgement of receipt of the sealing order shows only the date of notification of that injunction and (ii) in the absence of enforcement of the sealing, the proceedings seeking suspension of that enforcement are devoid of purpose.
37 In that regard, admittedly, it is apparent from both the wording and the scheme of Article 267 TFEU that the preliminary ruling procedure assumes, in particular, that a case is in fact pending before the national courts, since the preliminary ruling sought must be ‘necessary’ in order to enable the referring court to ‘give judgment’ in the case before it. The justification for a reference for a preliminary ruling is not that it enables advisory opinions on general or hypothetical questions to be delivered but rather that it is necessary for the effective resolution of a dispute (judgments of 21 April 1988, Pardini, 338/85, EU:C:1988:194, paragraph 11, and of 27 February 2025, Adjak, C‑277/24, EU:C:2025:130, paragraph 29 and the case-law cited).
38 However, 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 in the main proceedings, the relevance of the question which it submits to the Court. Consequently, where the question submitted concerns the interpretation or the validity of a rule of EU law, the Court is, in principle, bound to give a ruling. It follows that questions referred for a preliminary ruling concerning EU law enjoy a presumption of relevance. 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 EU law that is sought bears no relation to the actual 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 (judgment of 27 February 2025, Adjak, C‑277/24, EU:C:2025:130, paragraph 30 and the case-law cited).
39 In the present case, the arguments put forward by the Bulgarian Government concerning the hypothetical nature of the question referred are not convincing. First, according to the information provided by the referring court, the date set for the enforcement of the injunction ordering that the premises be sealed was set irrespective of whether that injunction had become final, thus making its enforcement provisional in the light of Bulgarian legislation. Second, the fact that provisional enforcement had not been implemented appears to be inherent in the application for suspension of that provisional enforcement brought before the referring court and enables the Court to give it a useful answer.
40 In the light of those considerations, it must be concluded that the question referred is not hypothetical and is, therefore, admissible.
41 As a preliminary point, it should be recalled that, according to settled case-law, coercive administrative measures imposed by the national VAT authorities, such as sealing business premises in which infringements of the Law on VAT have been found, constitute an implementation of Articles 2 and 273 of the VAT Directive and, therefore, of EU law, for the purposes of Article 51(1) of the Charter (see, to that effect, judgment of 4 May 2023, MV - 98, C‑97/21, EU:C:2023:371, paragraph 34).
42 Furthermore, notwithstanding the optional nature of the adoption of measures under Article 273 of the VAT Directive, it should be recalled that, for the purposes of the effective enforcement of an obligation under EU law, the national authorities may be required to order the immediate enforcement of that obligation (see, to that effect, judgment of 10 July 1990, Commission v Germany, C‑217/88, EU:C:1990:290, paragraph 25).
43 It follows that both the imposition and the immediate, albeit provisional, enforcement of a coercive administrative measure such as the sealing of business premises must comply with the fundamental right guaranteed by the first paragraph of Article 47 of the Charter.
44 In that regard, it is settled case-law of the Court that a national court seised of a dispute governed by EU law must be in a position to grant interim relief in order to ensure the full effectiveness of the judgment to be given on the existence and scope of the rights claimed under EU law (see, to that effect, judgment of 14 May 2020, Országos Idegenrendészeti Főigazgatóság Dél-alföldi Regionális Igazgatóság, C‑924/19 PPU et C‑925/19 PPU, EU:C:2020:367, paragraph 297 and the case-law cited).
45 As regards (i) the rights which may be claimed in a situation such as that in the main proceedings, it should be recalled that measures adopted under Article 273 of the VAT Directive must not go further than is necessary to attain the objectives referred to in that article, and must not undermine the neutrality of VAT or interfere with the fundamental rights recognised by the Charter, including, in particular, the freedom to conduct a business (see, to that effect, judgment of 26 October 2017, BB construct, C‑534/16, EU:C:2017:820, paragraphs 24 and 34).
46 As regards (ii) the effectiveness of the judgment to be given, it is important to note that effective compliance with EU law may indeed require, in accordance with the case-law cited in paragraph 42 of the present judgment, the immediate, albeit provisional, enforcement of a measure taken under EU law.
47 However, the fact remains that interim measures to suspend an allegedly unlawful obligation must be granted where they are necessary to guarantee the protection conferred by EU law (see, to that effect, judgment of 15 June 2023, Getin Noble Bank (Suspension of the performance of a loan agreement) C‑287/22, EU:C:2023:491, paragraph 55).
48 In order to assess that need in the context of the immediate enforcement of a coercive administrative measure such as that at issue in the main proceedings, it is necessary not only to weigh up the specific public and private interests militating in favour of and against that enforcement, respectively, but also to examine, at least in summary form, the lawfulness of the measure at issue.
49 As the Advocate General observed in point 87 of his Opinion, in the absence of any possibility for the court hearing the case to assess the lawfulness of the coercive administrative measure to be enforced, the interim judicial relief provided for in Article 47 of the Charter would not be effective, since the application for suspension could be rejected even if it sought the suspension of a manifestly unlawful measure.
50 As regards whether the legislation at issue in the main proceedings complies with the requirements of Article 47 of the Charter, it is apparent from settled case-law that the principle that national law should be interpreted in conformity with EU law requires national courts and tribunals, in observance, inter alia, of the prohibition on interpretation of national law contra legem, to do whatever lies within their jurisdiction, taking the whole body of domestic law into consideration and applying the interpretative methods recognised by domestic law, with a view to ensuring that the provision of EU law in question is fully effective and achieving an outcome consistent with the objective pursued by it (judgments of 5 October 2004, Pfeiffer and Others, C‑397/01 to C‑403/01, EU:C:2004:584, paragraphs 118 and 119, and of 15 October 2024, KUBERA, C‑144/23, EU:C:2024:881, paragraph 51 and the case-law cited).
51 The requirement to interpret national law in conformity with EU law entails, in particular, the obligation for national courts and tribunals to change established case-law, where necessary, if it is based on an interpretation of national law that is incompatible with the objectives of EU law. Consequently, a national court or tribunal cannot validly claim that it is impossible for it to interpret a provision of national law in a manner that is consistent with EU law merely because that provision has consistently been interpreted in a manner that is incompatible with EU law (judgments of 19 April 2016, DI, C‑441/14, EU:C:2016:278, paragraphs 33 and 34, and of 15 October 2024, KUBERA, C‑144/23, EU:C:2024:881, paragraph 52 and the case-law cited).
52 Pursuant to the principle of the primacy of EU law, where it is unable to interpret national law in compliance with the requirements of EU law, the national court which is called upon within the exercise of its jurisdiction to apply provisions of EU law has an obligation, as an organ of a Member State, to give full effect to those provisions, if necessary refusing of its own motion to apply any provision of national law that is contrary to a provision of EU law with direct effect in the case pending before it (judgment of 12 December 2024, Getin Holding and Others, C‑118/23, EU:C:2024:1013, paragraph 76 and the case-law cited).
53 Or, the provisions of Article 47 of the Charter must be considered to have direct effect (judgments of 17 April 2018, Egenberger, C‑414/16, EU:C:2018:257, paragraph 78, and of 12 December 2024, Getin Holding and Others, C‑118/23, EU:C:2024:1013, paragraph 77).
54 In the present case, it is therefore for the referring court to ascertain, taking the whole body of domestic law into consideration and applying the interpretative methods recognised by that law, whether, as the Bulgarian Government has maintained, the system of interim judicial relief provided for in that law offers an opportunity to have orders relating to the provisional enforcement of a coercive administrative measure, such as the sealing of business premises, taken under Article 273 of the VAT Directive examined, in law and in fact.
55 If such an interpretation proves impossible, that court must disapply the provisions of national procedural law which would prevent it from assessing whether the application for suspension of the provisional enforcement of such a measure brought before it is justified, in law and in fact, by arguments capable, prima facie, of demonstrating that the measure at issue is unlawful.
56 In the light of the foregoing considerations, the answer to the question referred for a preliminary ruling is that the first paragraph of Article 47 of the Charter must be interpreted as precluding legislation of a Member State which, pursuant to the option provided for in the first paragraph of Article 273 of the VAT Directive, limits the scope of the judicial review carried out in the context of an application for suspension of the provisional enforcement of a coercive administrative measure of a criminal nature solely to the existence of damage which is serious or reparable only with difficulty that such provisional enforcement may cause, by excluding any possibility for the court hearing that application to assess whether it is justified, in law and in fact, by arguments capable, prima facie, of demonstrating that the measure at issue is unlawful.
57 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.