Request for a preliminary ruling from the Rechtbank van eerste aanleg Oost-Vlaanderen Afdeling Gent (Belgium) lodged on 28 December 2023 – Minister van Financiën v DRINKS 52 BVBA, NZ

(Case C-800/23, DRINKS 52)

Language of the case: Dutch

Referring court

Rechtbank van eerste aanleg Oost-Vlaanderen Afdeling Gent

Parties to the main proceedings

Applicant: Minister van Financiën

Defendants: DRINKS 52 BVBA, NZ

Other party to the proceedings: Openbaar Ministerie

Questions referred

Can Article 42 of the UCC ¹ be interpreted as not precluding national legislation such as that laid down in Articles 220 and 221(1) of the Algemene wet inzake douane en accijnzen (General Law on customs and excise duty; ‘the AWDA’), Articles 1382 and 1383 of the Burgerlijk Wetboek (Civil Code) and Articles 44 and 50 of the Strafwetboek (Criminal Code), under which, in the event that it is not possible to produce the confiscated goods, an order to pay the equivalent value of the excise goods must, in the light of the general principles of EU law referred to in Article 6(3) of the Treaty on European Union (TEU), be classified not as a penalty of a criminal nature, or as a penalty at all, but as a consequence in civil law of the criminal conviction?

Can Article 42 of the UCC be interpreted as not precluding, in the light of the general principles of EU law referred to in Article 6(3) TEU, in particular the requirement of proportionality, also set out in Article 49(3) of the Charter of Fundamental Rights of the European Union, national legislation such as that laid down in Articles 220 and 221(1) of the AWDA, ¹ Articles 1382 and 1383 of the Civil Code and Articles 44 and 50 of the Criminal Code, under which, in the event that it is not possible to produce the confiscated goods, an order to pay the equivalent value of the excise goods may be combined with an order to pay a criminal fine calculated by applying a multiplier of the duties evaded?

Can Article 42 of the UCC be interpreted as not precluding, in the light of the general principles of EU law referred to in Article 6(3) TEU, in particular the requirement of proportionality, also set out in Article 49(3) of the Charter of Fundamental Rights of the European Union, national legislation such as that laid down in Articles 220 and 221(1) of the AWDA, Articles 1382 and 1383 of the Civil Code and Articles 44 and 50 of the Criminal Code, under which, in the event that it is not possible to produce the confiscated goods, an order to pay the equivalent value of the excise goods does not confer on the national court a power of mitigation to take account of the specific circumstances of the case, in particular the financial situation of the accused?

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¹ Union Customs Code.

¹ General Law on customs and excise duty.