CEDH · CASELAW;COMMUNICATEDCASES;ENG — 21 janvier 2025

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s32563E28 { margin-top:0pt; margin-bottom:0pt } Published on 10 February 2025   THIRD SECTION Application no. 26587/20 X and Y against Greece lodged on 3 June 2020 communicated on 21 January 2025 SUBJECT MATTER OF THE CASE The applicants were the president and vice-president of a shipping company of recreational watercrafts. In 2007 they had declared an imported boat as a recreational craft for professional use and had been exempted from the payment of VAT on importation and of excise duties for fuel. Following a tax audit in May 2011 the tax authorities considered that the applicants had used false charter parties ( ναυλοσύμφωνα ) and service invoices to support that it was of professional use whereas it was used for private purposes. On 20   July 2011 the license for professional use of the craft ceased to be valid upon an applicants’ request. On 14 November 2011 the applicants requested that they qualify for Article 19 of Law no. 4002/2011 which entered into force as of 22 August 2011 and provided that under certain conditions no fines shall be imposed in relation to professional recreational craft which was used for private purposes and the licence of which had ceased to be valid. The competent authorities did not reply to this request. In 2015 a smuggling fine was imposed on the applicants of a total amount of EUR   1,090,432.26 as well as unpaid VAT of EUR 64,278.01. The applicants lodged a recourse against the decision of the tax authority and claimed, among others, that the failure of the authorities to apply in their case the aforementioned provision was in breach of the principle of the retrospectiveness of the more lenient “criminal law”. The Thessaloniki Court of Appeal dismissed this ground holding that they did not fulfil the necessary conditions to qualify for the exemption. The applicants appealed on points of law. By its judgment no. 272/2020 the Supreme Administrative Court (SAC) held that the aforesaid principle of the retrospectiveness could be restricted by the Member States’ obligation stemming from European Union law to provide for and impose effective and dissuasive penalties in the field of VAT; the statutory exemption was inapplicable as it was incompatible with that obligation and it was not taking into account the principle of proportionality. The applicants complain of a violation of Article 7 of the Convention as the restrictive interpretation of the SAC was in breach of the principle of the retrospectiveness of the more lenient “criminal law” and of a non-derogable right. They further complain under Article 6 § 1 of the Convention that they were deprived of a fair hearing and the guarantees of legal certainty were not satisfied as the SAC failed to provide sufficient reasons justifying its departure from its case-law; it failed to refer the matter to the European Court of Justice (CJEU), while the CJEU case-law which it cited did not concern the matter of retrospectiveness of the more lenient “criminal law”. QUESTIONS TO THE PARTIES 1.     Was the dismissal of the applicants’ appeal on points of law by the Supreme Administrative Court’s judgment no. 272/2020 contrary to Article   7 of the Convention (see, for example, Scoppola v. Italy (no. 2) [GC], no.   10249/03, §§ 105-109, 17 September)?   2.     Did the applicants have a fair hearing in accordance with Article 6 § 1 of the Convention? In particular, did the Supreme Administrative Court’s judgment contain sufficient reasons considering also that it did not refer the case for a preliminary ruling to the CJUE?