72The mere fact that an abstract national rule categorises as a criminal offence conduct which consists in the evasion of the customs and tax provisions normally applicable cannot therefore constitute per se failure by a Member State to fulfil its obligations. The Court has held, as is clear from Louloudakis, paragraphs 69 and 70, that the requirements of enforcement and prevention may justify a Member State in setting penalties at a certain level of severity, but that it is nevertheless possible that those penalties may, in certain circumstances, prove to be disproportionate. Consequently, the question whether the penalties applied are proportionate or disproportionate has to be assessed on the basis of the level of the penalties actually applied in the individual case. An examination of the cases referred to in paragraph 48 of this judgment does not support the conclusion that the penalties actually imposed are disproportionate and the Commission has not put forward other evidence supporting a different conclusion.
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