delivered on 20 October 2022 (1)

Case C‑412/21

Direcţia Generală Regională a Finanţelor Publice Cluj-Napoca, Comisia regională pentru autorizarea operatorilor de produse supuse accizelor armonizate

(Request for a preliminary ruling from the Tribunalul Satu Mare (Regional Court, Satu Mare, Romania))

(Reference for a preliminary ruling – Excise duty – Directive 2008/118/EC – Article 16 – Measure to suspend the authorisation of an authorised warehousekeeper – Parallel proceedings – Charter of Fundamental Rights of the European Union – Article 48(1) – Presumption of innocence – Article 50 – Principle ne bis in idem)

This request for a preliminary ruling from the Tribunalul Satu Mare (Regional Court, Satu Mare, Romania) arises in the following context. Dual Prod SRL, a company established in Romania, is authorised to operate a tax warehouse in which it, inter alia, produced alcohol. After an inspection disclosed the existence of a number of irregularities on the premises, the competent authorities suspended that authorisation for eight months. As a result of that inspection, a decision was taken to prosecute Dual Prod. Pending the outcome of that prosecution, Dual Prod’s authorisation was suspended for a second time. In the proceedings before the referring court, Dual Prod contends that the second suspension is contrary to the presumption of innocence contained in Article 48(1) of the Charter of Fundamental Rights of the European Union (‘the Charter’) and infringes the principle ne bis in idem in Article 50 thereof.

II. Legal context

Article 16 of Council Directive 2008/118/EC of 16 December 2008 concerning the general arrangements for excise duty and repealing Directive 92/12/EEC provides, (2) in paragraphs 1 and 2 thereof:

Such authorisation shall be subject to the conditions that the authorities are entitled to lay down for the purposes of preventing any possible evasion or abuse.

(a)provide, if necessary, a guarantee to cover the risk inherent in the production, processing and holding of excise goods;

(b)comply with the requirements laid down by the Member State within whose territory the tax warehouse is situated;

(c)keep, for each tax warehouse, accounts of stock and movements of excise goods;

(d)enter into his tax warehouse and enter in his accounts at the end of their movement all excise goods moving under a duty suspension arrangement, except where Article 17(2) applies;

(e)consent to all monitoring and stock checks.

…’

Article 364(1)(d) of Legea nr. 227/2015 privind Codul fiscal (Law No 227/2015 establishing the Tax Code) of 8 September 2015 (3) (‘the Tax Code’) provides that an authorisation for a tax warehouse is not to be issued if the applicant has been finally convicted of certain offences, including offences under the Tax Code.

Article 369(3)(b) of the Tax Code provides that an authorisation for a tax warehouse may be suspended for a period of between 1 and 12 months where it is established that the acts referred to in, inter alia, Article 452(1)(i) have been committed. (4) By Article 369(3)(c) of the Tax Code that authorisation is to be suspended until the final outcome of any criminal prosecution for an offence referred to in Article 364(1)(d). The latter provision includes offences under the Tax Code.

Article 452(1)(h) of the Tax Code makes it an offence for any person to hold outside a tax warehouse or to market on the territory of Romania excise goods which are subject to a marking obligation, but are either unmarked or improperly marked, in quantities that exceed the thresholds laid down in the Tax Code.

Article 452(1)(i) of the Tax Code makes it an offence to use mobile pipes and tubes, elastic hoses or other conduits of similar nature or uncalibrated tanks, or to place before meter conduits or taps by means of which quantities of alcohol or spirits may be extracted without being measured by that meter.

III. The dispute in the main proceedings and the questions referred for a preliminary ruling

Dual Prod is an authorised warehousekeeper that produces alcohol and alcoholic beverages at its tax warehouse. On 1 August 2018, in the course of an inspection of those premises carried out at the request of the customs authorities, it transpired that a mobile system of pipes and hoses had been installed through which alcohol was removed without it being duly accounted for. A quantity of alcohol was also found in a tank located outside the perimeter of the tax warehouse.

The following day the customs authorities sealed Dual Prod’s premises on the ground that the special arrangements for handling excisable goods prescribed in the Tax Code had been infringed. In subsequent proceedings, the Curtea de Apel Oradea – Secția de contencios administrativ (Court of Appeal, Oradea, Romania – Division for Administrative Matters) held that the sealing of the premises was unlawful since it infringed the presumption of innocence in the absence of a final court decision as to Dual Prod’s culpability.

On 5 September 2018, the customs authorities suspended Dual Prod’s authorisation for a period of 12 months pursuant to Article 369(3)(b) of the Tax Code, read in conjunction with Article 452(1)(h) thereof. According to the written observations of the Romanian Government, that precautionary administrative measure had been taken in the light of evidence disclosed in the course of the inspection that raised serious doubts as to Dual Prod’s compliance with the tax regime and the conditions of its authorisation thereunder. Following Dual Prod’s appeal against that suspension, the Curtea de Apel Oradea (Court of Appeal, Oradea) reduced its duration to eight months.

Criminal proceedings in rem subsequently established the circumstances envisaged in Article 452(1)(h) and (i) of the Tax Code, which implicated persons within Dual Prod. On 14 January 2020, Dual Prod became a suspect. On 21 October 2020, Dual Prod was formally charged with offences under Articles 452(1)(h) and (i) of the Tax Code. On 19 November 2020 Dual Prod’s authorisation was suspended pursuant to Article 369(3)(c) of the Tax Code, pending the outcome of those criminal proceedings.

Dual Prod challenged that second suspension before the referring court, which decided to refer the following questions to the Court of Justice of the European Union for a preliminary ruling:

Is the suspension of the authorisation of an authorised warehousekeeper, pending the outcome of criminal proceedings, compatible with the presumption of innocence as guaranteed by Article 48(1) of the Charter?

(2)

Does the principle ne bis in idem, as enshrined in Article 50 of the Charter, preclude the imposition of a second suspension of the authorisation of an authorised warehousekeeper, where the first suspension was imposed for the same reasons?

Is Article 48(1) of [the Charter], which concerns the principle of presumption of innocence, read in conjunction with Article 16(1) of [Directive 2008/118], to be interpreted as precluding a legal situation, such as that at issue in the present case, in which an administrative measure suspending an authorisation to operate as a producer of alcohol may be adopted on the basis of mere presumptions which are the subject of an ongoing criminal investigation, without any final conviction in criminal proceedings having been handed down?

Is Article 50 of [the Charter], which concerns the principle ne bis in idem, read in conjunction with Article 16(1) of [Directive 2008/118], to be interpreted as precluding a legal situation, such as that at issue in the present case, in which two penalties of the same nature (suspension of authorisation to operate as a producer of alcohol), differing only in [the duration of their effect], are imposed on the same person in respect of the same facts?

12.Dual Prod, the Italian Government, the Romanian Government and the European Commission filed written observations.

13.Dual Prod first submits that the suspension of its authorisation pending the outcome of criminal proceedings has severe consequences for the operation of its business and is contrary to the presumption of innocence enshrined in Article 48(1) of the Charter. Second, the principle ne bis in idem is infringed when a person is punished twice for the same facts, as is the case with the two suspensions adopted under Article 369(b) and (c) of the Tax Code respectively, regardless of the nature of the sanctions to be imposed. Dual Prod further claims that the suspensions are criminal in nature, given their punitive character and their close link to the criminal proceedings pending against it.

14.The Italian Government, the Romanian Government and the Commission submit that the facts in the order for reference show that the suspensions are not criminal in nature and were adopted to prevent evasion and abuse within the meaning of Article 16 of Directive 2008/118. The existence of pending criminal proceedings does not prevent the imposition of such measures. The Commission adds that Article 41 of the Charter is relevant to the assessment as to whether the suspensions, considered cumulatively, comply with the right to good administration, in particular the right of a person to have his or her affairs handled within a reasonable period of time.

The European Union has not acceded to the ECHR, and that legal instrument has therefore not been formally incorporated into the EU legal order. Pursuant to Article 6(3) TEU, fundamental rights recognised by the ECHR and resulting from the constitutional traditions common to the Member States constitute general principles of EU law. Article 52(3) of the Charter, which provides that rights in the Charter that correspond to rights guaranteed by the ECHR have the same meaning and scope as those laid down by the latter, is intended to ensure consistency between those rights without adversely affecting the autonomy of EU law and the Court of Justice.

The referring court’s questions refer to Dual Prod’s ‘authorisation to operate as a producer of alcohol’. I understand that term to refer to an authorisation for the purposes of Article 16 of Directive 2008/118, which was withdrawn pursuant to the conditions laid down by national law in order to prevent any possible evasion or abuse. Pursuant to Article 51(1) of the Charter, the applicable national legislation falls within the scope of EU law. The Charter thus in principle applies to the issues raised in the questions before the Court.

17.Article 48(1) of the Charter, to which the first question refers, provides that everyone who has been charged shall be presumed innocent until proved guilty according to law. Accordingly it is not up to the accused to prove his or her innocence. For a court to impose criminal sanctions, the prosecution must prove to the requisite legal standard that the accused is guilty of the offences with which he or she is charged. Statements by the authorities to the effect that an accused is guilty of a criminal offence before a criminal trial has led to a conviction undermine that presumption because they may influence the trial court and encourage the public to believe that the accused is guilty.

18.The presumption of innocence does not, however, stand in the way of appropriate and proportionate measures that are intended to mitigate a real and material risk that accused persons will commit again or continue to commit the offence of which they stand accused, or that they will evade justice by not standing trial or will improperly influence the conduct of their trial. Decisions on pre-trial detention and bail are measures of this kind.

19.The Court has held that legal persons benefit from the presumption of innocence enshrined in Article 48 of the Charter. However, that provision applies in the context of criminal proceedings and proceedings leading to criminal sanctions, just as is the case for the corresponding provision in Article 6(2) of the ECHR.

20.Article 50 of the Charter, to which the second question refers, provides that ‘no one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the Union in accordance with law’. The principle ne bis in idem prohibits a duplication of proceedings and of penalties of a criminal nature for the same acts and against the same person. It corresponds to Article 4(1) of Protocol No. 7 to the ECHR.

21.Three criteria are relevant to determine whether a measure is criminal in nature for the purposes of the Charter and of the ECHR. The first is the legal classification of the offence under national law, the second is its intrinsic nature and the third is the severity of the penalty that may be imposed. Meeting the first criterion is not dispositive of the matter. If the offence in question is not regarded as criminal as a matter of national law, one must proceed to consider if its criminal nature can be established by reference to the other two criteria, applied cumulatively or separately.

22.In the present case, national law provides for the suspension of an authorisation until the final outcome of the criminal proceedings in relation to an offence to which Article 364(1)(d) of the Tax Code refers. Nothing in the order for reference or in the observations filed before the Court indicates that, as a matter of national law, the suspension of an authorisation in the event of criminal proceedings is criminal in nature. It is the competent authority, which I understand to be the authority which issued the authorisation, that has the power to suspend it, not the authority bringing criminal proceedings for infringements of the Tax Code.

23.I will therefore examine how the other two criteria have been applied in the case-law of the Court and that of the ECtHR before considering how that case-law might apply to the suspension at issue before the referring court.

24.Penalties under the common agricultural policy consisting in the payment of a surcharge calculated on the basis of the amount of aid incorrectly paid, and the exclusion of a producer from the benefit of the aid for a period after an irregularity occurred, were not deemed to be penal sanctions. In the area of export refunds, a penalty determined in proportion to the amount unduly received by an exporter was not considered to be criminal in nature.

In the field of public procurement, a decision to exclude applicants from an award procedure without a full examination of their bid because they had been found guilty of misrepresentation was not regarded as a criminal penalty.

The decision by a financial supervisory authority to prohibit a director from holding a post in a regulated investment firm because he had been found to be untrustworthy was deemed not to come within the scope of criminal law. Under Directive 2004/39/EC a supervisory authority may refuse or withdraw an authorisation issued to an investment firm where it is not satisfied that the persons directing it are of sufficiently good repute. Without prejudice to the procedures governing the withdrawal of authorisations or to the right of Member States to impose criminal sanctions, appropriate administrative sanctions may be imposed. The Court observed that the steps an authority must take further to a finding that a person no longer satisfies the requirement of good repute are part of the procedures for the withdrawal of authorisation. Their application was not related to cases covered by criminal law within the meaning of that directive.

The Court reached that conclusion on a contextual interpretation of the relevant provisions of that directive. Advocate General Kokott, applying the Engel criteria in her Opinion in the same case, also considered that the decision of the authority was not criminal in nature for the purposes of Article 50 of the Charter. The decision at issue in that case was not liable to be imposed on members of the public in a manner typical of criminal law. It could be directed only at those persons who had decided to exercise management functions in investment firms that were subject to authorisation. The finding that there was no longer any trust in the director did not serve to penalise him but rather to avoid dangers to the financial system and investors. That finding was instead but a direct legal consequence of the directive that only persons of good repute may assume certain functions and it did not have a punitive purpose. Although the decision had far-reaching consequences for the person concerned, it neither barred him from pursuing other professional activities nor did it permanently exclude him from acting as a director of an investment firm.

By contrast, the presumption of innocence applies to the imposition of fines in competition law cases, which may be up to 10% of the relevant turnover. Similarly, a fine of an amount 10 times greater than the proceeds or profit obtained from market manipulation was deemed to be criminal in nature due to its severity. In the case of a non-payment of VAT, a fine of 30% of the VAT due was considered to be a criminal penalty. The imposition of penalty points on drivers of vehicles for road traffic offences was deemed to operate in the context of the commission of a criminal offence once account was taken of the fact: (i) they are imposed in connection with road traffic offences of a certain seriousness; (ii) they are additional to the penalty for the commission of such offences; and (iii) the accumulation of penalty points has legal consequences, such as the obligation to sit a driving test or being banned from driving. In another case, Advocate General Bot stated in an Opinion that a customs offence, defined in identical terms as the criminal offence of smuggling and which attracted penalties of up to 10 times the amount of tax due, was criminal in nature.

The ECtHR considers that offences that may lead to a criminal record or the imposition of custodial sentences are by definition criminal, as are those that lead to financial penalties that result in a custodial sentence in the event of default.

The ECtHR has ruled that Article 6(1) of the ECHR did not apply under its criminal head to disciplinary proceedings for professional misconduct against a lawyer. The provisions in question did not address the public but were aimed at the members of a professional group that possessed a special status; they were intended to ensure that members of the bar comply with specific rules of professional conduct; the applicable sanctions included a written reprimand, a fine of up to approximately EUR 36000, temporary suspension of the right to practice, or being struck off the register. The ECtHR held that, with the exception of the fine, those penalties were characteristic of disciplinary sanctions. Moreover non-payment of the fine did not lead to the imposition of a custodial sentence. Similarly, disciplinary proceedings that led to the dismissal or compulsory retirement of a civil servant were not considered to constitute criminal charges. The withdrawal of a licence to serve alcoholic beverages in a restaurant because the licence holder was considered unsuitable did not amount to the determination of a criminal charge; neither was the permanent revocation of a liquidator’s licence classified as a penalty within the meaning of Article 7 ECHR. On the other hand, the ECtHR considered that offences related to market manipulation that led to fines with significant financial implications were criminal in nature.

3. Application of the case-law to the second suspension

Although it is ultimately a matter for the referring court to determine, I am not persuaded, for the reasons set out below that the second suspension is criminal in nature within the meaning of the case-law cited above.

Directive 2008/118 aims to harmonise the conditions for charging duty on excise goods in order to ensure the proper functioning of the internal market. The system of warehouses subject to authorisation by the competent authorities is a key component of that system. Article 16 of Directive 2008/118 provides that authorisations must be subject to the conditions that national authorities are entitled to lay down for the purposes of preventing any possible evasion or abuse. This aims to facilitate the proper functioning of the system of harmonised duty on excise goods within the internal market and to ensure that those who abide by the rules are not placed at a competitive disadvantage compared to those who do not and that there is no loss of public revenue.

Where it is suspected that the conditions attaching to an authorisation have been breached, or are likely to be breached in future, the temporary suspension of an authorisation is a measure that seeks to ensure that the aims described in the previous point of the present Opinion are not compromised. Such circumstances are comparable with the temporary disqualification of a director in the context of a market abuse offence, which was considered to be a preventative measure to be taken as soon as possible in order to halt further damaging misconduct pending criminal proceedings relating to the same conduct. In a similar way, individuals who are in a position of trust vis-à-vis their clients or the public, such as medical doctors, veterinarians, teachers or law enforcement officers, may be suspended from their duties pending the investigation of alleged conduct which, if proved, is likely to have harmed those to whom they owe a professional duty.

Suspension is, moreover, directed at persons who have – of their own free will – obtained an authorisation and agreed to abide by the conditions applicable thereto. The consequences of failing to adhere to commitments voluntarily entered into are not punitive in the same way as the imposition of a custodial sentence or a substantial fine for acts that offend the public. A suspension pending investigation or the outcome of a prosecution is not inappropriate when one bears in mind the authorised warehousekeeper’s responsibilities within the context of the administrative system of harmonised duty on excise goods. Nor could it be described as particularly severe, given that the person whose authorisation has been suspended remains free to conduct business and to use the premises, equipment and staff associated with the business for purposes other than the production and holding of alcohol on which the payment of duty has been suspended.

In my view, the same considerations apply, mutatis mutandis, to the first suspension, adopted pursuant to Article 369(3)(b) of the Tax Code.

The referring court seeks to ascertain whether Article 48(1) of the Charter, read together with Article 16(1) of Directive 2008/118, precludes the adoption of measures to suspend an authorisation to operate as a producer of alcohol on the basis of mere presumptions that are the subject of an ongoing criminal investigation.

By Article 16 of Directive 2008/118 it is for the competent authorities of the Member States to authorise the opening and operation of tax warehouses on their territory. Those authorisations are expressly subject to conditions that those authorities are entitled to lay down in order to prevent any possible evasion or abuse. Since Directive 2008/118 recognises and encourages that objective, national courts and authorities are entitled to suspend or withdraw authorisations where it is shown to the requisite legal standard that the applicable conditions have been, or are likely to be, breached. (34)

Since EU law does not lay down rules governing evidential standards in connection with the suspension or withdrawal of authorisations for the purposes of Article 16(1) of Directive 2008/118, the authorities must comply with the evidential standards of national law, subject to the latter observing general principles of EU law such as the principles of effectiveness, proportionality and the right to good administration. (35)

There is no information in the order for reference as to the applicable evidential standard with respect to either of the two suspensions or to the criminal prosecution. Although the referring court implies that the second suspension of Dual Prod’s authorisation was based on a ‘mere presumption’ of wrongdoing, the order for reference does not say how that presumption operates. Article 369(3)(c) of the Tax Code refers to authorisations being suspended until the final outcome of any criminal prosecution for an offence. In the present case, Dual Prod’s authorisation was suspended following an investigation by the authorities, after criminal proceedings in rem had established that the circumstances envisaged in Article 452(1)(h) and (i) of the Tax Code existed and after it had been formally accused of having committed a criminal offence. At this point it is not unreasonable, given the nature of the system and the interests at stake, for the law to provide for the possibility of suspending an authorisation. It seems to me that it is not based on ‘a mere presumption’ of wrongdoing, but rather that the evidential standard that applies to the opening of a criminal prosecution is in effect the evidential standard that justifies imposing a suspension under Article 369(3)(c) of the Tax Code.

It may also be relevant that the Court has held that a system of administrative fines based on strict liability may be compatible with EU law and the general principle of proportionality, provided that the objective pursued thereby is a matter of public interest capable of justifying the introduction of such a system. (36)

Moreover, the right to good administration in Article 41 of the Charter requires administrative authorities, when carrying out their inspection duties, to conduct a diligent, careful and impartial examination of all relevant matters so that when deciding to suspend an authorisation they have at their disposal the most complete and reliable information possible. (37)

It may also be relevant that, in analogous situations, the Court has held that EU law does not preclude authorities from using evidence obtained in parallel criminal proceedings that have not yet been concluded to establish unlawful practices in the context of an administrative procedure, provided that any rights guaranteed by EU law are always observed. (38)

In the light of the foregoing, I am of the view, subject to verification by the national court of the matters referred to in points 37 to 41 of the present Opinion, that the circumstance that national legislation provides for criminal proceedings to be commenced against persons allegedly involved in the unlawful production and holding of alcohol does not mean that an authorisation to operate a tax warehouse within the meaning of Article 16(1) of Directive 2008/118 can only be suspended once those criminal proceedings have led to a conviction. Indeed, the logic of Dual Prod’s submission seems to be that, having been charged with a criminal offence in connection with the business that it operates pursuant to an authorisation, (39) it can continue to run that business until such time as it has been convicted of that offence. No interpretation of Article 16 of Directive 2008/118 permits such a conclusion, which would moreover run the risk of materially undermining the effectiveness of, and confidence in, the authorised warehouse regime for which Directive 2008/118 provides. (40)

Pursuant to the duty of impartiality and the presumption of innocence, the trial judge in subsequent or parallel criminal proceedings must not regard the suspensions as indications of the guilt of the accused in criminal proceedings. That appears to be the only context in which the presumption of innocence may be relevant since it does not apply in the context of the administrative procedure that resulted in the second suspension.

It is also relevant that the Court has held that the principle of the presumption of innocence does not preclude the operation of a legal presumption in criminal cases that shifts the burden of proof to the accused, provided that the presumption is open to rebuttal and the rights of the defence are guaranteed. (41) Such presumptions operate, for example, in the area of EU law governing the manner in which cartels are identified and penalised. (42) Similarly, the ECtHR has observed that presumptions of fact or of law operate in every legal system and that the ECHR does not prohibit recourse to them. States are, however, required to confine the operation of such presumptions within reasonable limits, taking into account the importance of what is at stake for the accused and maintaining the rights of the defence in criminal proceedings. (43) Moreover, authorities are not prohibited from drawing reasonable inferences based on all of the available evidence. (44) Although these considerations have been developed in the context of criminal proceedings and sanctions, they apply equally to non-criminal matters.

In the light of the foregoing, I propose that the Court answer the first question by stating that Article 48(1) of the Charter, read in conjunction with Article 16(1) of Directive 2008/118, does not preclude the imposition of an administrative sanction to suspend an authorisation for the purposes of preventing any possible evasion or abuse before a final conviction in criminal proceedings has been delivered; nor does it preclude reliance being placed upon a presumption in that context.

46.The second question

The referring court seeks to ascertain whether Article 50 of the Charter, read in conjunction with Article 16(1) of Directive 2008/118, precludes the authorities from suspending an authorisation twice in respect of the same facts.

Since I consider that neither of the suspensions is criminal in nature, the principle ne bis in idem in Article 50 of the Charter and Article 4(1) of Protocol No. 7 to the ECHR does not apply; nor does the case-law that has been developed in situations where closely connected parallel criminal and non‑criminal proceedings arise from the same facts. (45) I also agree with the observations made by the Italian Government that the order for reference does not explain in sufficient detail why the facts that led to each of the two suspensions are the same given the circumstance that, according to the order for reference, the first suspension was adopted pursuant to Article 452(1)(i) of the Tax Code, relating to the use of equipment by means of which quantities of alcohol or spirits may be extracted without being measured, and the second pursuant to Articles 452(1)(i) and (h) of the Tax Code, the latter of which relates to the holding of excise goods outside a tax warehouse. The second question is therefore hypothetical even if either or both of the suspensions were deemed to be of a criminal nature. (46)

The Commission considers that the imposition of two administrative sanctions, in circumstances where the offender, the material facts and the interest protected are the same, ought to be limited by reference to the principles of proportionality and good administration so as to ensure that their cumulative duration is not excessive. (47) In my view, the objection outlined in the preceding point of the present Opinion applies: since there is considerable uncertainty about whether the material facts that led to each of the two suspensions are the same, the possible application of an administrative law equivalent of the principle ne bis in idem principle is hypothetical. No useful purpose would therefore be served by considering it in the context of this reference for preliminary ruling, taking into account the fact that the Commission alone raised the issue and that the referring court did not include an alternatively phrased question to that effect.

Conclusion

The referring court seeks to ascertain whether Article 50 of the Charter, read in conjunction with Article 16(1) of Directive 2008/118, precludes the authorities from suspending an authorisation twice in respect of the same facts.

Since I consider that neither of the suspensions is criminal in nature, the principle ne bis in idem in Article 50 of the Charter and Article 4(1) of Protocol No. 7 to the ECHR does not apply; nor does the case-law that has been developed in situations where closely connected parallel criminal and non‑criminal proceedings arise from the same facts. (45) I also agree with the observations made by the Italian Government that the order for reference does not explain in sufficient detail why the facts that led to each of the two suspensions are the same given the circumstance that, according to the order for reference, the first suspension was adopted pursuant to Article 452(1)(i) of the Tax Code, relating to the use of equipment by means of which quantities of alcohol or spirits may be extracted without being measured, and the second pursuant to Articles 452(1)(i) and (h) of the Tax Code, the latter of which relates to the holding of excise goods outside a tax warehouse. The second question is therefore hypothetical even if either or both of the suspensions were deemed to be of a criminal nature. (46)

The Commission considers that the imposition of two administrative sanctions, in circumstances where the offender, the material facts and the interest protected are the same, ought to be limited by reference to the principles of proportionality and good administration so as to ensure that their cumulative duration is not excessive. (47) In my view, the objection outlined in the preceding point of the present Opinion applies: since there is considerable uncertainty about whether the material facts that led to each of the two suspensions are the same, the possible application of an administrative law equivalent of the principle ne bis in idem principle is hypothetical. No useful purpose would therefore be served by considering it in the context of this reference for preliminary ruling, taking into account the fact that the Commission alone raised the issue and that the referring court did not include an alternatively phrased question to that effect.

49.

I therefore propose that the Court answer the questions raised by the Tribunalul Satu Mare (Regional Court, Satu Mare, Romania) as follows:

Article 48(1) of the Charter of Fundamental Rights of the European Union, read in conjunction with Article 16(1) of Council Directive 2008/118/EC of 16 December 2008 concerning the general arrangements for excise duty and repealing Directive 92/12/EEC

is to be interpreted to mean that:

it neither precludes the imposition of an administrative sanction to suspend an authorisation for the purposes of preventing any possible evasion or abuse before a final conviction in criminal proceedings is handed down, nor precludes reliance upon a presumption in that context.

—

* Language of the case: English.

(OJ 2009 L 9, p. 12).

(Monitorul Oficial al României, Part I, No 688 of 10 September 2015).

The act mentioned in Article 452(1)(h) appears not to be one of the listed acts.

See, for example, judgment of 2 February 2021, Consob (C‑481/19, EU:C:2021:84, paragraph 36 and the case-law cited).

In the context of the presumption of innocence of natural persons in criminal proceedings, see Article 4 of Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings (OJ 2016 L 65, p. 1). See also, for example, judgment of 5 September 2019, AH and Others (Presumption of innocence) (C‑377/18, EU:C:2019:670, paragraph 43 and the case-law cited).

In the context of the presumption of innocence of natural persons in criminal proceedings, see recital 16 of Directive 2016/343, referring to preliminary decisions of a procedural nature based on suspicion or elements of incriminating evidence such as decisions on pre-trial detention, and recitals 18 and 19, referring to public dissemination of information about criminal proceedings. See also, for example, judgment of 28 November 2019, Spetsializirana prokuratura (C‑653/19 PPU, EU:C:2019:1024).

See, for example, judgment of 8 July 1999, Hüls v Commission (C‑199/92 P, EU:C:1999:358, paragraph 150 and the case-law cited).

See Explanations relating to the Charter of Fundamental Rights (OJ 2007 C 303, p. 17). See also, for example, judgment of 9 September 2021, Adler Real Estate and Others (C‑546/18, EU:C:2021:711, paragraph 46 and the case-law cited), and Article 3 of Directive 2016/343.

Judgment of 20 March 2018, Menci (C‑524/15, EU:C:2018:197, paragraph 25 and the case-law cited). The three criteria are also described as the ‘Engel criteria’, from the judgment of the European Court of Human Rights (‘the ECtHR’) of 8 June 1976 in Engel and Others v. the Netherlands, CE:ECHR:1976:0608JUD000510071. The Engel criteria were adopted to establish the existence of a criminal charge within the meaning of Article 6 of the ECHR. To facilitate the consistent interpretation of the ECHR, the ECtHR has held that the same criteria govern the applicability of Article 7 of the ECHR and the principle ne bis in idem in Article 4(1) of Protocol No. 7 to the ECHR (ECtHR, 25 June 2020, Ghoumid and Others v. France, CE:ECHR:2020:0625JUD005227316, § 68 and the case-law cited).

Judgment of 20 March 2018, Menci (C‑524/15, EU:C:2018:197).

EU:C:2018:197

paragraphs 29 and 30 and the case-law cited).

Judgments of 27 October 1992, Germany v Commission (C‑240/90, EU:C:1992:408, paragraphs 25 to 27); of 11 July 2002, Käserei Champignon Hofmeister (C‑210/00, EU:C:2002:440, paragraphs 36 to 44 and the case-law cited); and of 5 June 2012, Bonda (C‑489/10, EU:C:2012:319, paragraphs 40 to 46).

Judgment of 6 December 2012, SEPA (C‑562/11, EU:C:2012:779, paragraph 25 and the case-law cited).

Judgment of 26 September 2014, Flying Holding and Others v Commission (T‑91/12 and T‑280/12, EU:T:2014:832, paragraphs 60 to 63 and the case-law cited).

Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments, amending Council Directives 85/611/EEC and 93/6/EEC and Directive 2000/12/EC of the European Parliament and of the Council and repealing Council Directive 93/22/EEC (OJ 2004 L 145, p. 1).

Judgment of 13 September 2018, UBS Europe and Others (C‑358/16, EU:C:2018:715, paragraph 46).

Opinion of Advocate General Kokott in UBS Europe and Others (C‑358/16, EU:C:2017:606, points 60 to 71 and the case-law cited). See also ECtHR, 1 February 2007, Storbraten v. Norway (CE:ECHR:2007:0201DEC001227704).

Judgment of 14 February 2012, Toshiba Corporation and Others (C‑17/10, EU:C:2012:72, paragraph 94 and the case-law cited).

Judgment of 20 March 2018, Garlsson Real Estate and Others (C‑537/16, EU:C:2018:193, paragraph 35).

Judgment of 20 March 2018, Menci (C‑524/15, EU:C:2018:197, paragraph 33).

Judgment of 22 June 2021, Latvijas Republikas Saeima (Penalty points) (C‑439/19

EU:C:2021:504

paragraphs 86 to 93 and the case-law cited) and ECtHR, 23 September 1998, Malige v. France (CE:ECHR:1998:0923JUD002781295, §§ 35 to 40 and the case-law cited).

Opinion of Advocate General Bot in Karelia (C‑81/15, EU:C:2016:66, points 44 to 46 and the case-law cited).

ECtHR, 8 June 1976, Engel and Others v. the Netherlands (CE:EHCR:1976:0608JUD000510071, § 82) and ECtHR, 31 May 2011, Žugić v. Croatia (CE:ECHR:2011:0531JUD000369908, § 68).

ECtHR, 19 February 2013, Müller-Hartburg v. Austria (CE:ECHR:2013:0219JUD004719506, §§ 45 to 49 and the case-law cited).

ECtHR, 15 December 2020, Pişkin v. Turkey (CE:ECHR:2020:1215JUD003339918, §§ 105 to 109 and the case-law cited).

ECtHR, 7 July 1989, Tre Traktörer Aktiebolag v. Sweden (CE:ECHR:1989:0707JUD001087384, § 46).

ECtHR, 4 June 2019, Rola v. Slovenia (CE:ECHR:2019:0604JUD001209614, §§ 60 to 67 and the case-law cited).

ECtHr, 4 March 2014, Grande Stevens v. Italy (CE:ECHR:2014:0304JUD001864010, §§ 95 to 101 and the case-law cited).

Judgment of 20 March 2018, Menci (C‑524/15, EU:C:2018:197, paragraph 27 and the case-law cited).

See point 26 of the present Opinion and the case-law cited.

See also Articles 2, 7 and 8 of Commission Recommendation of 29 November 2000 setting out guidelines for the authorisation of warehousekeepers under Council Directive 92/12/EEC in relation to products subject to excise duty (OJ 2000 L 314, p. 29).

See, by analogy, judgments of 16 October 2019, Glencore Agriculture Hungary (C‑189/18, EU:C:2019:861, paragraph 37 and the case-law cited), and of 4 June 2020, C.F. (Tax audit) (C‑430/19, EU:C:2020:429, paragraph 45 and the case-law cited).

See, for example, judgment of 9 February 2012, Urbán (C‑210/10, EU:C:2012:64, paragraphs 45 to 59 and the case-law cited).

Or, in connection with the first suspension adopted pursuant to Article 369(3)(b) of the Tax Code, having committed an act referred to in Article 452(1)(i) of the Tax Code.

40See, to similar effect in the context of criminal penalties imposed by an administrative body, ECtHR, 28 June 2018, G.I.E.M. S.r.l. and Others v. Italy CE:ECHR:2018:0628JUD000182806, § 254 and the case-law cited.

41Judgment of 23 December 2009, Spector Photo Group and Van Raemdonck (C‑45/08, EU:C:2009:806, paragraphs 43 and 44 and the case-law cited).

42See, for example, judgments of 7 January 2004, Aalborg Portland and Others v Commission (C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P, EU:C:2004:6, paragraph 81 and the case-law cited), and of 27 January 2021, The Goldman Sachs Group v Commission (C‑595/18 P, EU:C:2021:73, paragraphs 31 to 33 and the case-law cited).

43ECtHR, 7 October 1988, Salabiaku v. France (CE:ECHR:1988:1007JUD001051983, § 28 and the case-law cited).

44ECtHR, 8 February 1996, John Murray v. the United Kingdom (CE:ECHR:1996:0208JUD001873191, § 54).

45ECtHR, 15 November 2016, A and B v. Norway (CE:ECHR:2016:1115JUD002413011) and ECtHR, 18 May 2017, Jóhannesson and Others v. Iceland (CE:ECHR:2017:0518JUD002200711).

46Order of 7 October 2013, Società cooperativa Madonna dei miracoli (C‑82/13, EU:C:2013:655, paragraph 12 and the case-law cited).

47See, by analogy, judgment of 16 July 2009, Der Grüne Punkt – Duales System Deutschland v Commission (C‑385/07 P, EU:C:2009:456, paragraphs 181 and 182 and the case-law cited). See also principle 3 of Recommendation No. R(91) 1, adopted on 13 February 1991 by the Committee of Ministers of the Council of Europe, which states that a person may not be administratively penalised twice for the same act, on the basis of the same rule of law or of rules protecting the same social interest.