The Tax Court of Lombardy with the sentence of appeal n. 2129 of 15/03/2018 declared disproportionate and consequent has deemed to disapply, in the quantum, the sanctions imposed by the Customs and Monopoly Agency on the basis of article 303 of the Single Text of Customs Legislation, reiterating “how the infringement of a general principle of European law allows the national court to disregard the rule that may be found incompatible with European law“. The sanction applied in the case treated, proportionate to the infringement committed, was determined equal to half of the published minimum and then to € 51.50 (against a penalty claim of € 5.128.75)
Proportionality of the sanctions
In the field of customs law, the most important sanctioning principles are contained in art. 303 TULD (Single Text of Customs Legislative Provisions, approved by D.P.R. 43/1973 and in force since 12 April 1973), which has recently been redrafted by Article 11, 4° paragraph, of D.L. 16/2012, converted by Law 44/2012.
The main concerns of this provision are the proportionality of the sanctions.
In fact, in the event of differences between the established border law and the one declared to be higher than 5%, art. 303, in force since 29 April 2012, applies the penalty as follows:
- for rights up to EUR 500 the penalty shall be from EUR 103 to EUR 500;
- for rights from EUR 500.1 to EUR 1000, the penalty from EUR 1000 to EUR 5000 shall apply;
- for rights from EUR 1000.1 to EUR 2000, the penalty from EUR 5000 to EUR 15000 shall apply;
- for fees from EUR 2,000.1 to EUR 3,999.99, the penalty from EUR 15,000 to EUR 30,000 shall apply;
- for rights of EUR 4000 or more, the penalty shall be from EUR 30000 to ten times the amount of the rights.
This penalty regime has clear discrepancies in relation to the principle of proportionality between the difference in value of an offence and the penalty measure applied, both with the general internal principles and with the Community principle of proportionality, repeatedly reiterated by the Court of Justice that the penalty should not be excessive in relation to the extent of the infringement.
This judgment therefore constitutes an important precedent with regard to disputes which could arise with reference to the same question and in order to avoid unjustified harassment of taxpayers.