Tax advisor: The CJEU considers that the sanction and revocation of authorization for tax warehouse do not violate proportionality principle in case of serious excise duty infringements
Both the financial penalty and the revocation of the authorization to operate a tax warehouse
were applied due to a serious infringement of the excise duty regime committed by the
company in question, as considered by national law. The revocation of the authorization was
taken after the pecuniary penalty, based on an assessment of the case, became final. These
measures are not addressed to the general public, but to a specific group of addressees who
must meet specific requirements in order to have an authorization granted by the Member
States that confers certain privileges.
As for the penalty, its minimum amount of approximately 250 euros, which is systematically
double the amount not charged, and the lack of a maximum limit in the national regulations in
dispute in this case, show the seriousness of the penalty. On the other hand, the revocation of
the authorization to operate a tax warehouse only entails the loss of certain privileges of the
tax warehouse regime and does not prohibit the company from continuing economic activities
that do not require such authorization.
Both measures in this case could be considered sanctions of a criminal nature, but this must be
assessed by the referring court. If they are considered criminal sanctions, Article 50 CFREU
could oppose the application of the revocation of the tax warehouse operating authorization
in this case, and this must be determined by the referring court.
Article 16(1)(1) of Directive 2008/118, in conjunction with the principle of proportionality,
allows a national regulation, in case of a serious infringement of the excise duty system, to
provide for the revocation of an authorization to operate a tax warehouse together with a
financial penalty imposed for the same facts, provided that this revocation is not
disproportionate in relation to the seriousness of the infringement.
In the event that both penalties are of a criminal nature, Article 50 of the CFREU does not
preclude national legislation provided that it allows for the cumulation of proceedings and penalties under different regulations, that they relate to complementary objectives and that there are clear and precise rules to provide for this cumulation, as well as coordination
between the authorities. In addition, the penalties imposed must be related to the gravity of
the infringements committed.
B Law & Tax International Tax & Legal Advisors.
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