Lyubimka Dyulgerova[1]

A recent judgment of the Court of Justice of the European Union (ECJ) in case C—382/09 Stils Met SIA v Valsts ieņēmumu dienests has started a discussion among Bulgarian lawyers on whether the penalties for infringement of customs law provided for in the Bulgarian Customs Act comply with EU law. However, the present article does not focus exclusively on this judgment, but it examines the requirements set forth in the case-law of the ECJ that those penalties should meet.

The introductory remarks discuss the Member States’ inherent legislative power to define, as they deem appropriate, the penalties for infringement of the applicable customs rules. According to the pre-Lisbon Treaty case-law of the ECJ, article 10 of the EC Treaty was considered as the legal basis of that competence. Since December 2009, article 3 TFEU provides that the Union enjoys exclusive competence in the area of the customs union. Article 2, para. 1 of the same Treaty specifies that, as a consequence of this exclusive competence, only the Union may legislate and adopt legally binding acts in this field, but the Member States are able to do so themselves for the implementation of the Union acts. Therefore, the legal basis of the competence of Member States to define the penalties for infringement of the applicable customs rules is now be article 2, read in conjunction with article 3 of the TFEU.

However, according to the case-law of the ECJ this power shall only be exercised in compliance with the two following major requirements: (i) the penalties shall comply with the general principles of the EU law and more specifically with the principle of proportionality, and (ii) substantive and procedural conditions for the imposition of penalties shall be analogous to those applicable to the infringement of national law of similar nature and gravity.

This article examines the application of the principle of proportionality as it results from the case-law in customs cases and, in this respect, concentrates on the legitimate aims that the penalties should pursue.

The question of whether the sanctions provided for in the Bulgarian Customs Act comply with these requirements is then analyzed. More specifically, the article focuses on the applicable sanctions under national law for evasion of customs duties or other sorts of public revenue. In these cases a fine worth 100 to 200% of the evaded duties is to be paid and, in addition, the goods subject of that infringement are to be forfeited in favor ofthe state or, in case they are not available, their pecuniary equivalent is due. The applicable articles under national law do not take into account the specific circumstances under which the infringement has been made as, for instance, whether there is a loss of income for the government budget or if the economic operator has acted in good faith, nor do they allow national courts to reflect the circumstances of the case on the amount of the penalty.

Finally, the article draws the conclusion that when applying restrictive or compulsory measures for infringement of the applicable customs rules, national courts are obliged ex officio to consider whether the specific sanctions to be imposed comply with the requirements set forth in the case-law of the ECJ, whether a party has raised such objections or not.

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Ливк към цялата статия на български език: ЗА КОМПЕТЕНТНОСТТА НА ДЪРЖАВИТЕ-ЧЛЕНКИ ДА ОПРЕДЕЛЯТ САНКЦИИ ЗА НАРУШАВАНЕ НА МИТНИЧЕСКОТО ПРАВО И СЪОТВЕТСТВИЕТО НА САНКЦИИТЕ ПО ЗАКОНА ЗА МИТНИЦИТЕ С ПРАВОТО НА ЕС

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[1]Attorney-at-law and managing partner at Dyulgerova & Penkova Law Firm, Sofia, l_dyulgerova@law-dp.com.