ELINOIL A.E. A EKO AVEE proti Řecku

THIRD SECTION

DECISION

Application no. 2030/15
ELINOIL A.E. against Greece
and 5 other applications
(see list appended)

The European Court of Human Rights (Third Section), sitting on 4 November 2025 as a Committee composed of:

Peeter Roosma, President,
Lətif Hüseynov,
Canòlic Mingorance Cairat, judges,
and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the applications against the Hellenic Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by the companies listed in the appended table (“the applicant companies”), on the various dates indicated therein;

the decision to give notice of the complaints concerning Article 6 § 2 and Article 7 of the Convention and Article 1 of Protocol No. 1 to the Convention to the Greek Government (“the Government”), represented by Mr K. Georgiadis and Ms A. Dimitrakopoulou, Legal Counsellor and Senior Adviser respectively at the State Legal Council;

the withdrawal of Mr Ioannis Ktistakis, the judge elected in respect of Greece, from sitting in the case under examination (Rule 28 § 3);

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The case concerns alleged violations of Articles 6 § 2 and 7 of the Convention and Article 1 of Protocol No. 1 to the Convention on account of the imposition of smuggling fines for fictitious transactions.

1. Background information

2. The applicant companies are petroleum product companies which, at the relevant time, held a special permit authorising them to purchase fuel directly from refineries and to trade it under a preferential tax regime (type E).

3. In accordance with Ministerial Decision no. T.3300/1984, fuel used for the purposes of refuelling ships could be exempted from duties and taxes. The companies in question maintained dedicated “free reserves” in respect of which they had prepaid the taxes and duties. From those reserves, the companies could supply fuel to station operators, who could then use it to refuel ships. A customs officer was required to be present to verify the refuelling process. The officer would confirm the transaction by signing a form, which the stations were then responsible for forwarding to the petroleum product company in question. Following the submission of the form to the customs authorities, the company could apply for an offsetting exemption (συμψηφιστική ατέλεια) from duties and taxes. The customs authorities could grant the exemption, enabling the company to replenish its “free reserves” with equivalent quantities of fuel, without incurring any charges.

2. The fines imposed and the proceedings in the administrative courts

4. In 1999 and 2001 the customs authorities found that certain refuelling transactions between station operators and third parties carried out between 1992 and 1995 had been “fictitious”, resulting in the release of fuel for consumption without payment of the taxes and duties. The customs authorities therefore imposed smuggling fines (πολλαπλά τέλη) and taxes on, among others, the station operators and held the applicant companies jointly liable (αστικώς συνυπεύθυνος) to pay those amounts owing to their relationship with the station operators (see the Appendix for details).

5. The applicant companies brought proceedings in the administrative courts. In each case the Supreme Administrative Court (“the SAC”) found against the applicant companies at final instance.

1. The SAC’s judgments nos. 2546/2014, 2797/2018 2796/2018 and 2798/2018 (applications nos. 2030/15, 30303/19, 30349/19 and 30351/19)

6. In applications nos. 2030/15 and 30349/19, the SAC, by judgments nos. 2546/2014 and 2796/2018 respectively, dismissed appeals on points of law by the applicant companies and upheld the appellate judgments finding against them. In applications nos. 30303/19 and 30351/19, the SAC, by judgments nos. 2797/2018 and 2798/2018 respectively, granted appeals on points of law by the State and overturned the appellate judgments finding in the applicant companies’ favour.

7. Regarding the applicant companies’ joint liability, the SAC, reiterating the principles set out in its plenary judgment no. 3987‑9/2012, held that from a systematic interpretation of the legal framework governing ship fuel supply and from the strict system of controls and checks it established, it was apparent that the legislature had taken care to ensure that fuel from “free” reserves used for tax‑free transactions was actually being used for its intended purpose, and that the offsetting exemption mechanism was not being misused. In view of the wording and overall structure of the relevant provisions, the station operator was not entitled to apply for the offsetting exemption. This right was granted in the petroleum product company’s name, which had supplied the fuel and constituted the “supplying company” in accordance with Ministerial Decision no. T.3300/1984. Only that company was authorised to supply fuel to ships under the applicable legal framework, the station operated on its behalf and lacked the authorisation to purchase fuel in its own name and resell it tax-free to ships. The petroleum product company therefore had exclusive responsibility for supplying the fuel to the ships.

8. Accordingly, the SAC held that a petroleum product company which, on account of the collusion between a station operator and a customs officer, had been granted an offsetting exemption for a quantity of fuel that had not actually been loaded onto a ship was both the owner and recipient of the contraband fuel at the time of the fictitious refuelling transactions. Considering the above, the SAC found that the applicant companies were jointly liable for the fines and taxes due under Article 108 of Law no. 1165/1918 (“the Customs Code”). Accordingly, it dismissed the applicant companies’ claim to the contrary.

9. The SAC also dismissed the applicant companies’ claim that their joint liability should be waived given that they had no involvement in or knowledge of the illicit transactions. The court reiterated that the condition set out in Article 108 of the Customs Code in order for joint liability to be waived ‑ requiring the party concerned to demonstrate that it “could not in any way have been aware of the likelihood that a smuggling offence would be committed” ‑ did not create a rule of objective liability, nor did it establish an irrebuttable presumption of fault. In accordance with the principles set out in its judgment no. 5198/2012 and in the context of these cases, that provision established an obligation for the petroleum product companies to check the documents provided by the stations and to do everything in their capacity to verify that they corresponded to genuine transactions. According to the SAC, this should be done by taking due diligence measures, such as checking the refuelling chain to determine whether it reflected typical volume levels (application no. 2030/15), conducting audits, and monitoring the operations of the stations (applications nos. 30303/19, 30349/19 and 30351/19). As the applicant companies had failed to demonstrate that they had taken such measures, their liability could not be waived.

10. In judgment no. 2797/2018 (application no. 30349/19), the SAC also rejected a complaint raised under Article 7 of the Convention to the effect that a more lenient provision of domestic law should have been retroactively applied, holding that the applicant company had failed to raise that issue in a substantiated manner in its appeal to the administrative court of first instance, and had raised it for the first time in its appeal on points of law.

11. Accordingly, the SAC upheld the smuggling fines in question.

2. The SAC’s judgments nos. 1727/2018 and 2568/2018 (applications nos. 11663/19 and 24406/19)

12. As regards application no. 11663/19, the SAC, by its judgment no. 1727/2018, granted in part an appeal on points of law by the applicant company, finding that the company should not have been declared jointly liable to pay two specific amounts in duties, and dismissed the remainder of the appeal. As regards application no. 24406/19, by its judgment no. 2568/2018 it rejected an appeal on points of law by the applicant company as inadmissible.

13. In both judgments, the SAC declared inadmissible the grounds of appeal concerning the establishment of the applicant companies’ joint liability, the waiver of liability, the retroactive application of a more lenient sanction, and the proportionality of the smuggling fines, in accordance with Article 53 § 3 of Presidential Decree no. 18/1989. Under that provision, an appeal on points of law may be lodged only when the litigant maintains by specific arguments, set out in the appeal on points of law, that there is no case‑law of the SAC, or that the impugned judgment is contrary to the case‑law of the SAC or of another supreme court or to a final judgment of an administrative court (see, for the relevant domestic law provisions, Papaioannou v. Greece, no. 18880/15, §§ 14-25, 2 June 2016, and Tsiolis v. Greece, no. 51774/17, § 35, 19 November 2024). The SAC held that, in their appeals on points of law, the applicant companies had argued that there was no existing supreme court case‑law regarding certain aspects of the legal issues raised; however, such case‑law did in fact exist. Furthermore, it held that although the applicant companies complained that the impugned judgment run counter to specific supreme court case-law as regards other aspects of the legal issues in question, the cases cited were irrelevant to their case. Lastly, it noted that certain elements of the appeal challenged the reasoning of the impugned judgments, which was precluded by Article 53 § 3 of Presidential Decree no. 18/1989.

14. In addition, as regards application no. 11663/19, the SAC held, in its judgment no. 1727/2018, that the grounds of appeal on points of law raised in the applicant companies’ additional grounds were inadmissible pursuant to Article 53 § 3 of Presidential Decree no. 18/1889. In accordance with the SAC’s well‑established case‑law, such grounds had not been raised in the text of the appeal on points of law and could not therefore be raised for the first time in the additional grounds.

THE COURT’S ASSESSMENT

15. Relying on Article 6 § 2 of the Convention, the applicant companies complained that, by imposing fines on them for smuggling offences allegedly committed by third parties and in respect of which they had no knowledge, the domestic courts had established a “presumption of guilt” in respect of them. Furthermore, relying on Article 7 of the Convention, they complained that the impugned measures had no basis in domestic law. In applications nos. 30303/19, 30349/19 and 30351/19, the applicant companies also complained, under the same provision, of the domestic courts’ failure to apply a more lenient sanction retroactively. Lastly, relying on Article 1 of Protocol No. 1 to the Convention, they complained of a violation of the right to respect for their property.

1. Joinder of the applications

16. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.

2. Applications nos. 11663/19 and 24406/19

17. The Government pleaded non‑exhaustion of domestic remedies with regard to applications nos. 11663/19 and 24406/19 on account of the applicant companies’ failure to comply with domestic procedural rules, that is, Article 53 § 3 of Presidential Decree no. 18/1989. They also argued that the complaints under Article 6 § 2 and Article 7 of the Convention were incompatible ratione materiae with the provisions of the Convention, and that the applications had been lodged out of time in so far as the SAC had already delivered binding judgments dismissing the applicant companies’ key arguments.

18. In application no. 11663/19, the applicant company argued, in particular, that it had relied, in substance, on the relevant provisions of the Convention. In application no. 24406/19, the applicant company alleged, inter alia, that non‑compliance with domestic procedural rules did not entail inadmissibility of their complaint.

19. The Court does not find it necessary to address all the above‑mentioned objections, given that the applications are inadmissible for the following reasons.

20. The Court reiterates that Article 35 § 1 of the Convention normally requires also that the complaints intended to be brought subsequently before the Court should have been made before the domestic courts, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law (see, for instance, Gäfgen v. Germany [GC], no. 22978/05, § 142, ECHR 2010).

21. In the present case, the SAC declared inadmissible all the grounds of appeal on points of law relevant to the complaints raised, owing to the non‑compliance of these appeals with the admissibility requirements (see paragraphs 13-14 above; see also Tsiolis v. Greece, no. 51774/17, §§ 64‑66, 19 November 2024, and Papaioannou v. Greece, no. 18880/15, §§ 39‑49, 2 June 2016). The applicant companies did not contend that their grounds for appeal on points of law should have been declared admissible or that they had been wrongly rejected.

22. It follows that the applicant companies have not exhausted domestic remedies as required by Article 35 § 1 of the Convention and that the applications must be rejected pursuant to Article 35 § 4.

3. Applications nos. 2030/15, 30303/19, 30349/19 and 30351/19

23. The Government pleaded non‑exhaustion of domestic remedies with regard to applications nos. 30303/19, 30349/19 and 30351/19 in so far as the complaints raised before the Court had not been raised in substance in the domestic courts. They also submitted that the complaints under Articles 6 § 2 and 7 of the Convention were incompatible ratione materiae with the provisions of the Convention.

24. The applicant companies argued that the Government’s objections were unfounded.

25. The Court does not find it necessary to address the above‑mentioned objections, given that the complaints are inadmissible for the following reasons.

1. Alleged violation of Article 7 of the Convention

26. Relying on Article 7 of the Convention, the applicant companies complained that the impugned smuggling fines had no basis in domestic law.

27. The relevant general principles on Article 7 of the Convention have been summarised in Rohlena v. the Czech Republic ([GC], no. 59552/08, § 50, ECHR 2015).

28. Thus, Article 7 does not outlaw the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, “provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen” (ibid., with further references).

(a) The applicant companies’ joint liability

29. The Court notes at the outset that, as regards the SAC’s finding that the applicant companies were jointly liable for the payment of the smuggling fines, it referred, firstly, to Article 108 of the Customs Code. That provision has been the subject of well‑established case‑law which was adduced by the Government, according to which owners or receivers of the goods involved in smuggling were jointly liable together with the persons who committed the smuggling offences.

30. In application of the above‑mentioned provision, the SAC found that the applicant companies had become the owners and receivers of the fuel in question. They had exclusive responsibility for supplying petrol to ships and the stations had acted in the applicant companies’ name when carrying out the refuelling transactions, as they were unable to sell fuel in their own name. In that connection, the SAC referred to Article 14 of Law no. 1571/1985 (“Petrol policy and other provisions”), as in force at the material time, which provided that only petroleum product companies holding a special permit, such as the applicant companies, were authorised to trade in petroleum products. It also referred to Article 15 of the same Law, which provided that a special licence (type E) had to be obtained for “the trading of fuel for ships ... subject to special tax treatment”. It further referred to Article 58 of Ministerial Decision no. T.3300/1984, which provided that only the petroleum companies had the right to request and obtain the offsetting exemption in their own name.

31. The SAC carried out a comprehensive interpretation of the complex legal framework. It also examined the aims of the applicable provisions, namely to ensure that fuel from “free” reserves was properly utilised, and to prevent abuse of the exemption system through smuggling. The applicant companies did not put forward any convincing arguments to the contrary. The Court considers that that interpretation concerning the establishment of the applicant companies’ joint liability for the payment of the smuggling fines in question was not inconsistent with the essence of the offence and could have reasonably been foreseen.

32. As regards the SAC’s interpretation of the conditions of waiver in order to exculpate themselves from joint liability, the applicant companies complained, in particular, that the SAC had imposed on them an obligation to conduct their own due diligence measures, in addition to the checks conducted by the State via customs officers (see paragraph 9 above). Such an interpretation did not result directly from the wording of any applicable provisions: no concrete measures were indicated, apart from the applicant companies’ obligation to conduct a formal check of the administrative forms provided by the stations. The Court observes that the SAC interpreted the applicable provisions in its plenary judgment of 2012, several years after the impugned refuelling transactions had taken place and held that petroleum product companies were required to do everything in their capacity to verify that the documents provided by the stations corresponded to genuine fuel transactions.

33. The Court acknowledges that, as the applicant companies noted, the above‑mentioned interpretation by the SAC was different from that which had been adopted by certain ordinary administrative courts in the cases in question, and in some other similar cases. However, as the Government argued, this did not amount to a departure from existing settled case‑law to the effect that the applicant companies should have been exempted from joint liability, but rather constituted a seminal interpretation of the relevant legal framework by the Plenary of the SAC in 2012. That interpretation has been consistently followed by courts since.

34. As to whether the SAC’s interpretation was foreseeable and consistent with the essence of the offence, the Court acknowledges that Article 108 of the Customs Code and Ministerial Decision no. T.3300/1984 did not expressly provide for the obligation for the applicant companies to conduct their own due diligence measures. However, Article 108 is a general provision concerning any smuggling activity. It is broad in scope and requires the interested parties to demonstrate that they could not in any way have been aware of the likelihood that a smuggling offence would be committed. The SAC’s finding that the applicant companies were required to demonstrate that they had undertaken their own due diligence measures does not therefore appear to be inconsistent with Article 108 (see Bavčar v. Slovenia, no. 17053/20, § 155, 7 September 2023).

35. Furthermore, the Court cannot accept the applicant companies’ argument that their involvement was limited to assisting station operators in supplying tax-free fuel to ships by submitting requests for an offsetting exemption. Under Ministerial Decision no. T.3300/1984, only the applicant companies were entitled to request and obtain the offsetting exemption in their own name to replenish their “free reserves” (see paragraphs 7‑8 and above). The applicant companies did not raise any arguments capable of challenging the above‑mentioned finding by the SAC. The Court finds it reasonable that, in exercising their right and submitting the relevant administrative forms as supporting documents, the applicant companies were expected to undertake due diligence measures, in order to ensure that these documents corresponded to genuine transactions rather than fictitious ones. In the Court’s view, the State’s supervision of the procedure via its customs officers did not mean that the applicant companies were exempted from having to carry out any checks of their own.

36. The Court is particularly mindful of the fact that the applicant companies were specialised companies with special permits, operating in a heavily regulated market with a dedicated legal framework. They risked facing severe sanctions in the event of any smuggling activities being carried out by the station operators. It follows that the applicant companies, acting in their professional capacity, were expected to take special care when entering into transactions in assessing the risks of their activity (see Georgouleas and Nestoras v. Greece, nos. 44612/13 and 45831/13, § 65, 28 May 2020, with further references).

37. Having regard to the above, the Court finds that the SAC’s interpretation of the conditions under which the applicant companies could be exempted from joint liability was reasonably foreseeable.

38. It follows that this part of the complaint, regardless of whether Article 7 of the Convention is applicable, is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4.

(b) Retroactive application of a more lenient sanction

39. As regards applications nos. 30303/19, 30349/19 and 30351/19, the applicant companies also complained of the domestic courts’ failure to apply Article 150 of Law no. 2960/2001 retroactively, in so far as that provision allegedly provided for a more lenient sanction for the smuggling offence in question. The Court notes that, in applications nos. 30303/19 and 30351/19, the applicant companies did not raise such a complaint in the SAC. Furthermore, in application no. 30349/19, the applicant company failed to comply with the applicable procedural rules in raising that complaint in the domestic courts (see paragraph 10 above).

40. It follows that the applicant companies have not exhausted domestic remedies, as required by Article 35 § 1 of the Convention, and that this part of the complaint must be rejected pursuant to Article 35 § 4.

2. Alleged violation of Article 6 § 2 of the Convention

41. Relying on Article 6 § 2 of the Convention, the applicant companies complained that, by holding them liable to pay fines for smuggling offences allegedly committed by third parties and in respect of which they had no knowledge, the domestic courts had established a “presumption of guilt” in respect of them.

42. The presumption of innocence imposes requirements in respect of, inter alia, the burden of proof and legal presumptions of fact and law (see Allen v. the United Kingdom [GC], no. 25424/09, § 93, ECHR 2013). At the same time, the Contracting States may, under certain conditions, penalise a simple or objective fact as such, irrespective of whether it results from criminal intent or from negligence. Presumptions of fact or law, that operate in every criminal‑law system, are not prohibited in principle, as long as States remain within reasonable limits, taking into account the importance of what is at stake and maintaining the rights of the defence. These limits will be overstepped where a presumption has the effect of making it impossible for an individual to exonerate himself from the accusations against him, thus depriving him of the benefit of Article 6 § 2 of the Convention (see G.I.E.M. S.R.L. and Others v. Italy [GC], nos. 1828/06 and 2 others, § 243, 28 June 2018, with further references).

43. In the present case, the applicant companies were found to be jointly liable for the payment of smuggling fines on the basis of the fact that they were the supplying companies, which remained owners of the contraband fuel throughout the refuelling process. The applicant companies argued that they had had no involvement in the smuggling activity or any knowledge thereof. The SAC dismissed that claim as unsubstantiated, finding that the applicant companies had not taken any due diligence measures to ensure that the associated transactions had been genuine.

44. The Court reiterates that the Contracting States may, in principle and under certain conditions, penalise a simple or objective fact as such, irrespective of whether it results from criminal intent or from negligence. In the present case, the applicant companies were not left without any means of defence to rebut that presumption (see, mutatis mutandis, Janosevic v. Sweden, no. 34619/97, § 102, ECHR 2002-VII), nor have they explained in what way the burden of proof imposed on them was unattainable to the extent that their defence could have no prospect of success (see Busuttil v. Malta, no. 48431/18, §§ 49-53, 3 June 2021).

45. The Court has found above under Article 7 of the Convention that the applicant companies could have reasonably foreseen that they might be called upon to demonstrate that they had undertaken their own due diligence measures to verify that the station operators were not involved in any fictitious transactions (see paragraph 37 above). It cannot subscribe to the applicant companies’ view that the SAC had shifted the burden of proof exclusively onto them. Even though the State carried out certain checks ‑ such as ensuring the presence of customs officers at all refuelling transactions ‑ this does not mean that the applicant companies can claim to have been exempted from having to perform certain controls of their own, in so far as they were licensed professional actors claiming tax exemption in their own name. The applicants did not demonstrate that taking measures to verify the authenticity of the transactions as suggested by the SAC (see paragraph 37 above) would have been impossible in practice. In that connection, the Court also has regard to the financial interests of the State in tax matters, taxes being the State’s main source of income (see Busuttil, cited above, § 56, with further references), and takes note of the SAC’s finding that the objective of the legal framework in question was to prevent abuse in the context of smuggling activities.

46. In the light of all the foregoing, the Court takes the view that the burden of proof imposed on the applicant companies was not unreasonable in the circumstances of the present case.

47. It follows that this complaint is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

3. Alleged violation of Article 1 of Protocol No. 1 to the Convention

48. Relying on Article 1 of Protocol No. 1 to the Convention, the applicant companies argued that the fines imposed on them had violated their right to respect for their property.

49. The Court notes that holding the applicant companies jointly liable to pay the fines in question constituted an interference with the right protected under the first paragraph of Article 1 of Protocol No. 1, in so far as it deprived them of the sums they were ordered to pay. Such interference falls under the second paragraph of Article 1 of Protocol No. 1, which, inter alia, allows the Contracting States to control the use of property to secure the payment of penalties. However, that provision must be construed in the light of the general principle set out in the first sentence of the first paragraph (see Mamidakis v. Greece, no. 35533/04, § 44, 11 January 2007).

50. The Court has found that the fact that the applicant companies were held jointly liable for the fines in question was foreseeable under domestic law (see paragraphs 37-38 above). Furthermore, it reiterates its well‑established position that States may be afforded some degree of additional deference and latitude in the exercise of their fiscal functions under the lawfulness test (see Bežanić and Baškarad v. Croatia, nos. 16140/15 and 13322/16, § 64, 19 May 2022). Accordingly, the Court finds that the impugned measures were provided for by law.

51. The Court also finds that the interference with the applicant companies’ property rights served a legitimate public interest, namely combatting smuggling (see Mamidakis, cited above, § 46).

52. It remains to be determined whether the interference was proportionate to the above‑mentioned interest. The Court notes that the amounts of the fines imposed were significant and ranged from EUR 75,508 to EUR 845,604 (see the Appendix). However, the applicant companies did not specify the adverse financial consequences owing to the imposition of the fines. Nor did they explain how the fines were burdensome, for instance in relation to their turnover or profits. In that respect, the case is different from Mamidakis (cited above), where the smuggling fines amounted to substantially more significant sums (approximately EUR 5,000,000, corresponding to ten times the damage sustained by the State) and were imposed on a natural person. Accordingly, the Court finds no basis to conclude that the applicant companies were made to bear a disproportionate and excessive burden.

53. It follows that this complaint is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Decides to join the applications;

Declares the applications inadmissible.

Done in English and notified in writing on 27 November 2025.

Olga Chernishova Peeter Roosma
Deputy Registrar President

Appendix

List of cases: