C-107/23 PPU Lin

JUDGMENT OF THE COURT (Grand Chamber)

24 July 2023 ( *1 )

(Reference for a preliminary ruling – Protection of the financial interests of the European Union – Article 325(1) TFEU – PFI Convention – Article 2(1) – Obligation to counter fraud affecting the financial interests of the European Union by taking effective deterrent measures – Obligation to provide for criminal penalties – Value added tax (VAT) – Directive 2006/112/EC – Serious VAT fraud – Limitation period for criminal liability – Judgment of a constitutional court invalidating a national provision governing the grounds for interrupting that period – Systemic risk of impunity – Protection of fundamental rights – Article 49(1) of the Charter of Fundamental Rights of the European Union – Principle that offences and penalties must be defined by law – Requirements of foreseeability and precision of criminal law – Principle of the retroactive application of the more lenient criminal law (lex mitior) – Principle of legal certainty – National standard of protection of fundamental rights – Duty on the courts of a Member State to disapply judgments of the constitutional court and/or the supreme court of that Member State in the event that they are incompatible with EU law – Disciplinary liability of judges in the event of non-compliance with those judgments – Principle of the primacy of EU law)

In Case C‑107/23 PPU [Lin], ( i )

REQUEST for a preliminary ruling under Article 267 TFEU from the Curtea de Apel Brașov (Court of Appeal, Brașov, Romania), made by decision of 22 February 2023, received at the Court on the same day, in the criminal proceedings against

C.I.,

C.O.,

K.A.,

L.N.,

S.P.,

other party:

Statul român,

THE COURT (Grand Chamber),

composed of K. Lenaerts, President, L. Bay Larsen, Vice-President, A. Prechal, C. Lycourgos (Rapporteur), E. Regan, P.G. Xuereb, L.S. Rossi and D. Gratsias, Presidents of Chambers, J.-C. Bonichot, S. Rodin, F. Biltgen, N. Piçarra, N. Jääskinen, J. Passer and O. Spineanu-Matei, Judges,

Advocate General: M. Campos Sánchez-Bordona,

Registrar: R. Şereş, Administrator,

having regard to the written procedure and further to the hearing on 10 May 2023,

after considering the observations submitted on behalf of:

C.I., by C.-I. Gliga, avocat,

C.O., by M. Gornoviceanu, avocată,

L.N., by C.-I. Gliga, avocat,

S.P., by H. Crişan, avocat,

the Romanian Government, by L.-E. Baţagoi, M. Chicu, E. Gane and O.‑C. Ichim, acting as Agents,

the European Commission, by J. Baquero Cruz, F. Blanc, I.V. Rogalski, F. Ronkes Agerbeek and P.J.O. Van Nuffel, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 29 June 2023,

gives the following

Judgment

Legal context and the dispute

1This request for a preliminary ruling concerns the interpretation of Article 2, Article 4(3) and the second subparagraph of Article 19(1) TEU, Article 325(1) TFEU, the last sentence of Article 49(1) of the Charter of Fundamental Rights of the European Union (‘the Charter’) and Article 2(1) of the Convention drawn up on the basis of Article K.3 of the Treaty on European Union, on the protection of the European Communities’ financial interests, signed in Brussels on 26 July 1995 and annexed to the Council Act of 26 July 1995 (OJ 1995 C 316, p. 48; ‘the PFI Convention’), Articles 2 and 12 of Directive (EU) 2017/1371 of the European Parliament and of the Council of 5 July 2017 on the fight against fraud to the Union’s financial interests by means of criminal law (OJ 2017 L 198, p. 29; ‘the PFI Directive’), Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1), Commission Decision 2006/928/EC of 13 December 2006 establishing a mechanism for cooperation and verification of progress in Romania to address specific benchmarks in the areas of judicial reform and the fight against corruption (OJ 2006 L 354, p. 56), and the principle of the primacy of EU law.

2The request has been made in the context of extraordinary appeals brought by C.I., C.O., K.A., L.N. and S.P. (‘the appellants in the main proceedings’), seeking to have set aside the final judgments convicting them of tax evasion and establishment of an organised criminal group and imposing prison sentences pursuant to those convictions.

Legal context

European Union law

The PFI Convention

3Article 1 of the PFI Convention, entitled ‘General provisions’, provides:

‘1. For the purposes of this Convention, fraud affecting the European Communities’ financial interests shall consist of:

…

in respect of revenue, any intentional act or omission relating to:

the use or presentation of false, incorrect or incomplete statements or documents, which has as its effect the illegal diminution of the resources of the general budget of the European Communities or budgets managed by, or on behalf of, the European Communities,

…

2. Subject to Article 2(2), each Member State shall take the necessary and appropriate measures to transpose paragraph 1 into their national criminal law in such a way that the conduct referred to therein constitutes criminal offences.

3. Subject to Article 2(2), each Member State shall also take the necessary measures to ensure that the intentional preparation or supply of false, incorrect or incomplete statements or documents having the effect described in paragraph 1 constitutes a criminal offence if it is not already punishable as a principal offence or as participation in, instigation of, or attempt to commit, fraud as defined in paragraph 1.

…’

4Article 2 of that convention, headed ‘Penalties’, provides:

‘1. Each Member State shall take the necessary measures to ensure that the conduct referred to in Article 1, and participating in, instigating, or attempting the conduct referred to in Article 1(1), are punishable by effective, proportionate and dissuasive criminal penalties, including, at least in cases of serious fraud, penalties involving deprivation of liberty which can give rise to extradition, it being understood that serious fraud shall be considered to be fraud involving a minimum amount to be set in each Member State. This minimum amount may not be set at a sum exceeding [EUR] 50000.

2. However, in cases of minor fraud involving a total amount of less than [EUR] 4000 and not involving particularly serious circumstances under its laws, a Member State may provide for penalties of a different type from those laid down in paragraph 1.

…’

The PFI Directive

5Article 16 of the PFI Directive, entitled ‘Replacement of the [PFI Convention]’, states:

‘The [PFI Convention], including the Protocols thereto of 27 September 1996, of 29 November 1996 and of 19 June 1997, is hereby replaced by this Directive for the Member States bound by it, with effect from 6 July 2019.

For the Member States bound by this Directive, references to the Convention shall be construed as references to this Directive.’

Romanian law

The Romanian Constitution

6The principle of the retroactive application of the more lenient criminal law (lex mitior) is laid down in Article 15(2) of the Constituția României (Romanian Constitution), which provides that ‘the law shall have legal effect only for the future, with the exception of the more lenient criminal or administrative law’.

7Article 147(1) and (4) of the Romanian Constitution provides:

‘1. The provisions of laws and ordinances currently in force, as well as those of regulations, that are found to be unconstitutional shall cease to have legal effect 45 days after the publication of the decision of the Curtea Constituțională [(Constitutional Court, Romania)] if, during that time, the Parliament or the Government, as appropriate, fails to bring the unconstitutional provisions into line with the provisions of the Constitution. Throughout that period, the provisions that have been found to be unconstitutional shall be suspended by law.

…

4. The decisions of the Curtea Constituțională [(Constitutional Court)] shall be published in the Monitorul Oficial al României. As from the date of publication, those decisions shall be generally binding and shall have legal effect only for the future.’

Romanian criminal law

8The offence of tax evasion is established as follows in Article 9 of Legea nr. 241/2005, pentru prevenirea și combaterea evaziunii fiscale (Law No 241/2005 on preventing and combating tax evasion), of 15 July 2005 (Monitorul Oficial al României, Part I, No 672 of 27 July 2005), in the version applicable to the main proceedings:

‘1. Commission of the following acts in order to avoid fulfilling tax obligations shall constitute tax evasion and shall be punishable by a prison term of two to eight years and the loss of certain rights or a fine:

…

the recording, in the accounts or in other legal documents, of expenditure which does not correspond to actual transactions or the recording of other fictitious transactions;

…

2. If the acts referred to in paragraph 1 give rise to a loss of more than EUR 100000, in the equivalent in national currency, the minimum and maximum penalties shall be increased by five years.

3. If the facts referred to in paragraph 1 give rise to a loss of more than EUR 500000, in the equivalent in national currency, the minimum and maximum penalties shall be increased by seven years.’

9On 1 February 2014, Legea nr. 286/2009, privind Codul penal (Law No 286/2009 on the Criminal Code), of 17 July 2009 (Monitorul Oficial al României, Part I, No 510 of 24 July 2009; ‘the Criminal Code’), entered into force.

10Under Article 154(1)(b) of the Criminal Code, the general limitation period for the criminal offences of which the appellants in the main proceedings are accused is 10 years.

11Before the entry into force of the Criminal Code, the provision governing the interruption of limitation periods in criminal matters provided as follows:

‘The limitation period laid down in Article 122 shall be interrupted by the performance of any act which, by law, must be notified to the suspect or defendant in the course of criminal proceedings.’

12In its initial version, Article 155(1) of the Criminal Code provided:

‘The limitation period for criminal liability shall be interrupted by the performance in the proceedings of any procedural act.’

13Article 155(1) of the Criminal Code was amended as follows by Ordonanța de urgență a Guvernului nr. 71/2022, pentru modificarea articolului 155 alineatul (1) din Legea nr. 286/2009 privind Codul penal (Decree-Law No 71/2022, amending Article 155(1) of Law No 286/2009 on the Criminal Code), of 30 May 2022 (Monitorul Oficial al României, Part I, No 531 of 30 May 2022; ‘Decree-Law No 71/2022’):

‘The limitation period for criminal liability shall be interrupted by the performance in the proceedings of any procedural act which, by law, must be notified to the suspect or defendant.’

14The scope of the principle of the retroactive application of the more lenient criminal law (lex mitior), laid down in Article 15(2) of the Romanian Constitution, is specified in Article 5(1) of the Criminal Code, according to which:

‘If, between the commission of an offence and the final judgment in the case, one or more criminal laws are passed, the more lenient law shall be applied.’

15Article 426 of Legea nr. 135/2010, privind Codul de procedură penală (Law No 135/2010 on the Code of Criminal Procedure), of 1 July 2010 (Monitorul Oficial al României, Part I, No 486 of 15 July 2010), in the version applicable to the dispute in the main proceedings, entitled ‘The cases in which an extraordinary appeal may be brought’, provides, in point (b):

‘An extraordinary appeal may be brought against final judgments in criminal proceedings in the following cases:

…

where the defendant has been convicted despite evidence of the existence of a ground for discontinuance of the criminal proceedings.

…’

Legislation on the disciplinary regime for judges

16Article 99 of Legea nr. 303/2004, privind statutul judecătorilor și procurorilor (Law No 303/2004 on the rules governing judges and prosecutors), of 28 June 2004 (republished in the Monitorul Oficial al României, Part I, No 826 of 13 September 2005), provided:

‘The following shall constitute disciplinary offences:

…

failure to comply with the judgments of the Curtea Constituțională [(Constitutional Court)] or the Înalta Curte de Casație și Justiție [(High Court of Cassation and Justice, Romania)] in appeals in the interest of the law;

…’

17Article 271 of Legea nr. 303/2022, privind statutul judecătorilor și procurorilor (Law No 303/2022 on the rules governing judges and prosecutors), of 15 November 2022 (Monitorul Oficial al României, Part I, No 1102 of 16 November 2022), provides:

‘The following shall constitute disciplinary offences:

…

the performance of duties in bad faith or with gross negligence.’

18Article 272(1) and (2) of that law provides:

‘1. A judge or prosecutor shall be deemed to have acted in bad faith if he or she knowingly infringes rules of substantive or procedural law and either has the intention of harming another person or accepts that the infringement will cause harm to another person.

2. A judge or prosecutor commits gross negligence if he or she negligently disregards rules of substantive or procedural law in a manner that is serious, irrefutable and inexcusable.’

The dispute in the main proceedings and the questions referred for a preliminary ruling

19In 2010, the appellants in the main proceedings omitted, wholly or in part, to indicate in their accounting documents the commercial transactions and income relating to the sale, to national recipients, of diesel fuel acquired under the excise duty suspension regime, thereby causing a loss to the State budget, in particular as regards value added tax (VAT) and excise duty on diesel fuel.

20By criminal judgment No 285/AP of 30 June 2020, the Curtea de Apel Brașov (Court of Appeal, Brașov, Romania), the referring court, convicted or upheld the convictions of the appellants in the main proceedings, handed down by the Tribunalul Brașov (Regional Court, Brașov, Romania) in its criminal judgment No 38/S of 13 March 2018, to terms of imprisonment for the commission of the offence of tax evasion, provided for in Article 9(1)(b) and (c) and Article 9(3) of Law No 241/2005 on preventing and combating tax evasion, in the version applicable to the dispute in the main proceedings, and the offence of establishment of an organised criminal group, provided for in the combined provisions of Article 7 and Article 2(b)(16) of Legea nr. 39/2003, privind prevenirea și combaterea criminalității organizate (Law No 39/2003 on preventing and combating organised crime), of 21 January 2003 (Monitorul Oficial al României, Part I, No 50 of 29 January 2003), in the version applicable to the dispute in the main proceedings, with application of Article 5 of the Criminal Code.

21Two of the appellants in the main proceedings, K.A. and S.P., were serving prison sentences at the time the present request for a preliminary ruling was lodged, pursuant to judgment No 285/AP of 30 June 2020 of the Curtea de Apel Brașov (Court of Appeal, Brașov).

22The appellants in the main proceedings were also ordered to pay tax losses, including sums due by way of VAT, totalling 13964482 Romanian lei (RON) (approximately EUR 3240000).

23In its request for a preliminary ruling, the referring court refers to national case-law relating to the initial version of Article 155(1) of the Criminal Code, which may have a decisive effect on the situation of the appellants in the main proceedings.

24More specifically, that court states, first, that the Curtea Constituțională (Constitutional Court), by its judgment No 297 of 26 April 2018, published on 25 June 2018 (‘judgment No 297/2018 of the Curtea Constituțională (Constitutional Court)’) upheld a plea of unconstitutionality concerning that provision in so far as it provided for the limitation period for criminal liability to be interrupted by the performance of ‘any procedural act’.

25The Curtea Constituțională (Constitutional Court) found, inter alia, that that provision lacked foreseeability and that it infringed the principle that offences and penalties must be defined by law, given that the expression ‘any procedural act’ also covered acts which were not notified to the suspect or accused person, thus preventing him or her from becoming aware of the fact that a new limitation period for his or her criminal liability had begun to run.

26It also found that the earlier legislative provision satisfied the conditions of foreseeability imposed by the relevant constitutional provisions, since it provided that only the performance of an act which, by law, must be notified to the suspect or accused person was capable of interrupting the limitation period for criminal liability.

27Secondly, it is apparent from the explanations provided by the referring court that, for several years, the national legislature did not take action following judgment No 297/2018 of the Curtea Constituțională (Constitutional Court), in order to replace the provision held to be unconstitutional, namely Article 155(1) of the Criminal Code.

28Thirdly, the referring court states that the Curtea Constituțională (Constitutional Court), by its judgment No 358 of 26 May 2022, published on 9 June 2022 (‘judgment No 358/2022 of the Curtea Constituțională (Constitutional Court)’), upheld a further plea of unconstitutionality concerning Article 155(1) of the Criminal Code. In that judgment, the Curtea Constituțională (Constitutional Court) clarified that its judgment No 297/2018 had the legal status of a ‘simple’ judgment of unconstitutionality. Emphasising the lack of action by the legislature since judgment No 297/2018 and the fact that the combined effect of the latter judgment and of that lack of action had given rise to a new situation which lacked clarity and foreseeability as regards the rules applicable to the interruption of the limitation period for criminal liability, which had resulted in inconsistent case-law, the Curtea Constituțională (Constitutional Court) stated that, between the date of publication of judgment No 297/2018 and the entry into force of a legislative measure determining the applicable rule, ‘[Romanian] positive law [did] not provide for any ground for interrupting the limitation period for criminal liability’.

29Furthermore, the Curtea Constituțională (Constitutional Court) stated that the purpose of its judgment No 297/2018 was not to remove the limitation periods for criminal liability or to preclude the interruption of those periods, but to bring Article 155(1) of the Criminal Code into line with the constitutional requirements.

30Fourthly, it is apparent from the request for a preliminary ruling that, on 30 May 2022, namely after judgment No 358/2022 of the Curtea Constituțională (Constitutional Court) was delivered, but before it had been published, the Romanian Government, acting on the basis of its delegated legislative powers, adopted Decree-Law No 71/2022, which entered into force on the same date, by which Article 155(1) of the Criminal Code was amended so that the limitation period for criminal liability is interrupted by any procedural act which must be notified to the suspect or accused person.

31Fifthly, the referring court states that, by judgment No 67/2022 of 25 October 2022, published on 28 November 2022, the Înalta Curte de Casație și Justiție (High Court of Cassation and Justice) stated that, under Romanian law, the rules relating to the interruption of the limitation period for criminal liability fall within the scope of substantive criminal law and that, consequently, they are subject to the principle of non-retroactivity of criminal law, without prejudice to the principle of the retroactive application of the more lenient criminal law (lex mitior), as guaranteed, inter alia, in Article 15(2) of the Romanian Constitution.

32Consequently, the Înalta Curte de Casație și Justiție (High Court of Cassation and Justice) held that a final conviction may, in principle, be the subject of an extraordinary appeal based on the effects of judgments No 297/2018 and No 358/2022 of the Curtea Constituțională (Constitutional Court) as a more lenient criminal law (lex mitior). That possibility is, however, precluded where the appeal court has already examined the issue of the limitation period for criminal liability in the course of the proceedings which gave rise to that final conviction.

33The appellants in the main proceedings brought extraordinary appeals before the Curtea de Apel Brașov (Court of Appeal, Brașov) seeking to have that court’s judgment No 285/AP of 30 June 2020 set aside. They seek, on the basis of Article 426(b) of Law No 135/2010 on the Code of Criminal Procedure, in the version applicable to the dispute in the main proceedings, the annulment of their criminal convictions, on the ground that they were convicted even though there was evidence of the existence of a ground for discontinuing the criminal proceedings, namely the expiry of the limitation period for their criminal liability.

34In support of their action, those appellants claim, on the basis of the principle of the retroactive application of the more lenient criminal law (lex mitior), that their criminal liability is time-barred following judgments No 297/2018 and No 358/2022 of the Curtea Constituțională (Constitutional Court).

35Those appellants argue, in essence, that, between the date of publication of judgment No 297/2018 of the Curtea Constituțională (Constitutional Court), namely 25 June 2018, and the date of publication of its judgment No 358/2022, namely 9 June 2022, Romanian law did not provide for any ground for interrupting the limitation period for criminal liability.

36The fact that, during the period between those dates, positive law did not provide for any ground for interrupting the limitation period for criminal liability constitutes, in itself, a more favourable criminal law which should be applied to them in accordance with the principle of the retroactive application of the more lenient criminal law (lex mitior), which is enshrined, inter alia, in the Romanian Constitution.

37If such an interpretation were to be accepted, the referring court finds that, having regard to the date on which the offending acts were committed, the limitation period of 10 years laid down in Article 154(1)(b) of the Criminal Code would, in the present case, have expired before the decision convicting the appellants in the main proceedings became final, which would entail the discontinuation of the criminal proceedings against the appellants and would render impossible their conviction.

38That court sets out several grounds capable of precluding the application of the principle of the retroactive application of the more lenient criminal law (lex mitior), as guaranteed by the Romanian Constitution, in a situation such as that in the main proceedings.

39That court notes, in particular, that the legal situation characterised by the absence of grounds for interrupting the limitation period in criminal matters, pleaded by the appellants in the main proceedings, results not from an act reflecting the intention of the legislature, but from a judgment of the Curtea Constituțională (Constitutional Court) declaring the initial version of Article 155(1) of the Criminal Code unconstitutional. According to the referring court, the principle of the retroactive application of the more lenient criminal law (lex mitior) is applicable only in the event of a succession of laws adopted by the legislature over time.

40It is in that context that the referring court questions the compatibility with EU law of the interpretation put forward by the appellants in the main proceedings, since it would have the effect of exempting them from their criminal liability for tax evasion offences liable to affect the budget of the European Union and the protection of the European Union’s financial interests. Such an interpretation, which could apply in a considerable number of criminal cases, would be liable to undermine, inter alia, Article 2 and the second subparagraph of Article 19(1) TEU, Article 325(1) TFEU, Article 2(1) of the PFI Convention, Articles 1, 3 and 4 of Decision 2006/928, Article 2 and Article 12(1) of the PFI Directive and Directive 2006/112.

41In that regard, that court notes that, subject to the limited information available to it, the effects of judgments No 297/2018 and No 358/2022 of the Curtea Constituțională (Constitutional Court) on the limitation period for criminal liability are likely to affect a considerable number of cases. The national courts have ruled in favour of criminal liability being time-barred, including in the context of extraordinary appeals such as those at issue in the main proceedings. Moreover, in its report of 22 November 2022 to the European Parliament and the Council on Progress in Romania under the Cooperation and Verification Mechanism (COM(2022) 664 final), the European Commission referred to its concerns about the impact of that case-law on important ongoing criminal cases.

42Furthermore, the referring court points out that it might be required – if it transpires that an interpretation consistent with EU law is not possible in the light of the pleas raised before it – to disapply the approaches adopted in the case-law of the Curtea Constituțională (Constitutional Court) and/or the Înalta Curte de Casație și Justiție (High Court of Cassation and Justice) ruling on appeals in the interest of the law.

43The referring court notes that the new disciplinary regime, provided for in Articles 271 and 272 of Law No 303/2022 on the rules governing judges and prosecutors, allows for the imposition of penalties on judges who, knowingly and therefore ‘in bad faith’, or through gross negligence, within the meaning of those articles, disregard the judgments of the Curtea Constituțională (Constitutional Court) or the Înalta Curte de Casație și Justiție (High Court of Cassation and Justice) ruling on appeals in the interest of the law.

44For those reasons, the Curtea de Apel Brașov (Court of Appeal, Brașov) decided to stay proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

Should Article 2 TEU, the second [sub]paragraph of Article 19(1) TEU and Article 4(3) TEU, read in conjunction with Article 325(1) TFEU, Article 2(1) of the PFI Convention, Articles 2 and 12 of the PFI Directive and Directive [2006/112], with reference to the principle of effective and dissuasive penalties in cases of serious fraud affecting the financial interests of the European Union, and applying [Decision 2006/928], with reference to the last sentence of Article 49(1) of the [Charter], be interpreted as precluding a legal situation, such as that at issue in the main proceedings, in which the convicted appellants seek, by means of an extraordinary appeal, to set aside a final judgment in criminal proceedings and request the application of the principle of the more lenient criminal law, which they allege was applicable in the course of the substantive proceedings and which would have entailed a shorter limitation period that would have expired before the case was finally concluded, but which was revealed only subsequently, by a decision of the national Constitutional Court which declared unconstitutional legislation on interrupting the limitation period for criminal liability ([judgment No 358/2022 of the Curtea Constituțională (Constitutional Court)]), on the ground that the legislature had failed to act to bring the legislation in question into line with another decision of the same Constitutional Court delivered four years earlier ([judgment No 297/2018 of the Curtea Constituțională (Constitutional Court)]) – by which time the case-law of the ordinary courts formed in application of [that judgment No 297/2018] had already established that the legislation in question was still in force, in the form understood as a result of [that judgment No 297/2018] – with the practical consequence that the limitation period for all the offences in relation to which no final conviction had been handed down prior to [judgment No 297/2018 of the Curtea Constituțională (Constitutional Court)] is reduced by half and the criminal proceedings against the defendants in question are consequently discontinued?

Should Article 2 TEU, on the values of the rule of law and respect for human rights in a society in which justice prevails, and Article 4(3) TEU, on the principle of sincere cooperation between the European Union and the Member States, applying [Decision 2006/928] as regards the commitment to ensure the efficiency of the Romanian judicial system, with reference to the last sentence of Article 49(1) of the [Charter], which enshrines the principle of the more lenient criminal law, be interpreted, in relation to the national judicial system as a whole, as precluding a legal situation, such as that at issue in the main proceedings, in which the convicted appellants seek, by means of an extraordinary appeal, to set aside a final judgment in criminal proceedings and request the application of the principle of the more lenient criminal law, which they allege was applicable in the course of the substantive proceedings and which would have entailed a shorter limitation period that would have expired before the case was finally concluded, but which was revealed only subsequently, by a decision of the national Constitutional Court which declared unconstitutional legislation on interrupting the limitation period for criminal liability ([judgment No 358/2022 of the Curtea Constituțională (Constitutional Court)]), on the ground that the legislature had failed to act to bring the legislation in question into line with another decision of the same Constitutional Court delivered four years earlier ([judgment No 297/2018 of the Curtea Constituțională (Constitutional Court)]) – by which time the case-law of the ordinary courts formed in application of [that judgment No 297/2018] had already established that the legislation in question was still in force, in the form understood as a result of [that judgment No 297/2018] – with the practical consequence that the limitation period for all the offences in relation to which no final conviction had been handed down prior to [judgment No 297/2018 of the Curtea Constituțională (Constitutional Court)] is reduced by half and the criminal proceedings against the defendants in question are consequently discontinued?

If [the first and second questions are answered in the affirmative], and only if it is impossible to provide an interpretation in conformity with EU law, is the principle of the primacy of EU law to be interpreted as precluding national legislation or a national practice pursuant to which the ordinary national courts are bound by decisions of the national Constitutional Court and binding decisions of the national supreme court and may not, for that reason and at the risk of committing a disciplinary offence, of their own motion disapply the case-law resulting from those decisions, even if, in light of a judgment of the Court of Justice, they take the view that that case-law is contrary to Article 2 TEU, the second [sub]paragraph of Article 19(1) TEU and Article 4(3) TEU, read in conjunction with Article 325(1) TFEU, in application of [Decision 2006/928], with reference to the last sentence of Article 49(1) of the [Charter], as in the situation in the main proceedings?’

45By a communication of 24 March 2023, received at the Court on the same day, the referring court referred to several judgments, delivered between 15 December 2022 and 8 March 2023, by which the Curtea de Apel București (Court of Appeal, Bucharest, Romania) and the Înalta Curte de Casație și Justiție (High Court of Cassation and Justice) upheld extraordinary appeals, on the basis of the expiry of the limitation period for criminal liability of the persons concerned.

46Furthermore, in that communication the referring court emphasised that an appeal on a point of law is the only remedy that would allow, where appropriate, a final judicial decision to be challenged on the basis of an infringement of EU law as interpreted by the Court in its answers to the questions referred for a preliminary ruling. However, the period of 30 days from notification of the decision of the appeal court within which an appeal on a point of law must be lodged precludes the bringing of such an appeal, since, on the date on which the Court rules on the present request for a preliminary ruling, that period will have expired in most of the cases concerned.

47Consequently, the referring court asked the Court to state that, ‘in accordance with the principle of sincere cooperation, in order to comply with the principles of equivalence and effectiveness, in the context of national procedural autonomy, and to guarantee equal treatment and non-discrimination for the parties to the main proceedings in relation to individuals in similar situations, in the event of an appeal on a point of law brought against final judgments delivered in similar cases in the meantime, national courts are required to rule that [that period] runs from the date of delivery of the judgment of the Court’ ruling on the present request for a preliminary ruling.

Application of the urgent preliminary ruling procedure

48Exercising the power conferred on him by Article 107(3) of the Rules of Procedure of the Court of Justice, the President of the Court invited the Fourth Chamber, designated in accordance with Article 108(1) of those rules, to consider whether it was necessary to deal with the present reference for a preliminary ruling under the urgent preliminary ruling procedure referred to in the first paragraph of Article 23a of the Statute of the Court of Justice of the European Union.

49It follows from Article 107(1) of the Rules of Procedure that only requests for a preliminary ruling which raise one or more questions relating to one of the areas covered by Title V of Part Three of the TFEU – which is devoted to the area of freedom, security and justice – may be dealt with under the urgent procedure.

50In the present case, the questions referred for a preliminary ruling concern, inter alia, the interpretation of Article 2(1) of the PFI Convention, which was drawn up on the basis of Article K.3 TEU. Article K.3 TEU became Article 31 TEU, the provisions of which were reproduced in Articles 82, 83 and 85 TFEU, which fall within Title V of Part Three of the TFEU.

51It follows that the present reference for a preliminary ruling raises questions concerning one of the areas covered by Title V and that, accordingly, it may be dealt with under the urgent procedure.

52As regards the criterion relating to urgency, it follows from settled case-law that that criterion is satisfied when the person concerned in the case in the main proceedings is, as at the date when the request for a preliminary ruling is made, deprived of his or her liberty and the question as to whether he or she may continue to be held in custody depends on the outcome of the dispute in the main proceedings (judgment of 12 January 2023, MV (Formation of a cumulative sentence), C‑583/22 PPU, EU:C:2023:5, paragraph 45 and the case-law cited).

53In that regard, it is apparent from the order for reference that the appellants in the main proceedings were sentenced to terms of imprisonment and that two of them, K.A. and S.P., are currently serving their respective terms of imprisonment.

54In response to the request for clarification which the Court sent to the referring court on 15 March 2023, the latter stated, first, that those two appellants in the main proceedings are currently incarcerated pursuant to its criminal judgment No 285/AP of 30 June 2020 and, secondly, that their detention would be terminated if it were to decide to uphold the extraordinary appeals brought before the referring court against their convictions.

55Furthermore, it is apparent from the explanations provided by that court that the outcome of the extraordinary appeals brought by the appellants in the main proceedings depends on the Court’s answers to the questions referred.

56In those circumstances, pursuant to Article 108(1) of the Rules of Procedure, the Fourth Chamber of the Court decided, on 23 March 2023, on a proposal from the Judge-Rapporteur and after hearing the Advocate General, of its own motion, to deal with the present reference for a preliminary ruling under the urgent preliminary ruling procedure.

57It also decided, on the basis of Article 113(2) of the Rules of Procedure, to refer the present case back to the Court for allocation to the Grand Chamber.

Admissibility of the request for a preliminary ruling

58L.N. and C.I. argued that the request for a preliminary ruling is inadmissible in its entirety. L.N. submitted inter alia, in that respect, that Decision 2006/928 and the PFI Directive were not relevant in the circumstances of the dispute in the main proceedings.

59The Romanian Government also questions the hypothetical nature of the third question referred.

60Lastly, C.O., C.I. and the Romanian Government have argued that the request referred to in paragraph 47 above is inadmissible on the ground that, in the dispute in the main proceedings, the referring court is ruling not on an appeal on a point of law, but on extraordinary appeals.

61It should be noted that, according to settled case-law, in the context of the cooperation between the Court and the national courts provided for in Article 267 TFEU, it is solely for the national court before which a dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted by the national court concern the interpretation of EU law, the Court is, in principle, bound to give a ruling (judgment of 21 March 2023, Mercedes-Benz Group (Liability of manufacturers of vehicles fitted with defeat devices), C‑100/21, EU:C:2023:229, paragraph 52 and the case-law cited).

62It follows that questions relating to EU law enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court for a preliminary ruling only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgment of 21 March 2023, Mercedes-Benz Group (Liability of manufacturers of vehicles fitted with defeat devices), C‑100/21, EU:C:2023:229, paragraph 53 and the case-law cited).

63In the present case, as regards, in the first place, the three questions referred for a preliminary ruling by the referring court, it should be noted, first, that the interpretation of EU law sought by that court could lead that court to disapply judgments No 297/2018 and No 358/2022 of the Curtea Constituțională (Constitutional Court) and/or judgment No 67/2022 of the Înalta Curte de Casație și Justiție (High Court of Cassation and Justice), which were relied on by the appellants in the main proceedings in order to support their claim concerning the expiry of the limitation period for their criminal liability. Those questions are therefore not hypothetical.

64That being said, secondly, it should be noted that, under Article 16 of the PFI Directive – in respect of which the referring court seeks an interpretation of Articles 2 and 12 in its first question – that directive replaces the PFI Convention with effect from 6 July 2019. The acts giving rise to the dispute in the main proceedings were committed in 2010. Accordingly, that directive is clearly not applicable to that dispute, with the result that the interpretation of that directive does not appear necessary for the resolution of that dispute.

65Moreover, since, according to the information brought to the Court’s attention, the acts at issue in the main proceedings do not constitute corruption, it is clear that the interpretation of Decision 2006/928 is also irrelevant for the purposes of the answer to be given to the first and second questions referred for a preliminary ruling.

66As regards, thirdly, the other provisions of EU law referred to in the three questions referred for a preliminary ruling by the referring court, it is sufficient, however, to note that, where it is not obvious that the interpretation of a provision of EU law bears no relation to the facts of the main action or its purpose, the objection alleging the inapplicability of that provision to the case in the main action does not relate to the admissibility of the request for a preliminary ruling, but concerns the substance of the questions raised (judgments of 19 December 2019, Dobersberger, C‑16/18, EU:C:2019:1110, paragraph 21, and of 27 April 2023, M.D. (Ban on entering Hungary), C‑528/21, EU:C:2023:341, paragraph 52).

67As regards, in the second place, the request referred to in paragraph 47 above, it seeks, according to the explanations provided by the referring court, to determine whether EU law requires that the 30-day period for lodging an appeal on a point of law begin to run on the date on which the Court delivers its judgment in the present case.

68However, in the context of the dispute in the main proceedings, the referring court is seised not of an appeal on a point of law, but of extraordinary appeals, as noted by C.O., C.I. and the Romanian Government.

69Consequently, the question referred to in paragraph 47 above concerns a hypothetical problem, within the meaning of the case-law referred to in paragraph 62 above, and must therefore be declared inadmissible.

70It follows from the foregoing that the present request for a preliminary ruling is admissible, with the exception of (i) the first and second questions, in so far as they concern the interpretation of the PFI Directive and Decision 2006/928, and (ii) the question referred to in paragraph 47 above.

Consideration of the questions referred

The first and second questions

71The first and second questions, which it is appropriate to examine together, concern the interpretation of Article 2, Article 4(3) and the second subparagraph of Article 19(1) TEU, Article 325(1) TFEU, the last sentence of Article 49(1) of the Charter, Article 2(1) of the PFI Convention and Directive 2006/112.

72However, it is apparent from the grounds of the order for reference that referring court’s doubts which gave rise to those questions concern, in essence, the interpretation, first, of the provisions of EU law requiring Member States to counter illegal acts affecting the financial interests of the European Union effectively and, secondly, of the guarantees stemming from the principle that offences and penalties must be defined by law.

73In those circumstances, it is necessary to examine the first and second questions only in the light of Article 325(1) TFEU, Article 49(1) of the Charter and Article 2(1) of the PFI Convention.

74It follows that, by those questions, the referring court asks, in essence, whether those provisions must be interpreted as meaning that the courts of a Member State are required to disapply (i) judgments of the constitutional court of that Member State invalidating the national legislative provision governing the grounds for interrupting the limitation period in criminal matters, as a result of a breach of the principle that offences and penalties must be defined by law, as to its requirements relating to the foreseeability and precision of criminal law, and (ii) a judgment of the supreme court of that Member State, from which it follows that the rules governing those grounds of interruption, as derived from that constitutional case-law, may be applied retroactively as a more lenient criminal law (lex mitior) in order to call into question final convictions, it being understood that, as a consequence of those judgments, a considerable number of criminal cases, including cases relating to offences of serious fraud affecting the financial interests of the European Union, will be discontinued because of the expiry of the limitation period for criminal liability.

75As a preliminary point, it should be noted that the exact scope of the rules governing, in Romania, the interruption of limitation periods in criminal matters during the period from 25 June 2018, the date of publication of judgment No 297/2018 of the Curtea Constituțională (Constitutional Court), to 30 May 2022, the date on which Decree-Law No 71/2022 entered into force, was debated by the parties both in their written observations and at the hearing before the Court.

76It must be borne in mind, in that regard, that, in proceedings under Article 267 TFEU, which are based on a clear separation of functions between the national courts and the Court, the national court alone has jurisdiction to find and assess the facts in the case before it and to interpret and apply national law (judgments of 31 January 2023, Puig Gordi and Others, C‑158/21, EU:C:2023:57, paragraph 61, and of 21 March 2023, Mercedes-Benz Group (Liability of manufacturers of vehicles fitted with defeat devices), C‑100/21, EU:C:2023:229, paragraph 59).

77In the present case, according to the explanations provided by the referring court, it follows from judgments No 297/2018 and No 358/2022 of the Curtea Constituțională (Constitutional Court), summarised in paragraphs 23 to 29 above, that, during the period from 25 June 2018 to 30 May 2022, Romanian law did not provide for any ground for interrupting the limitation period for criminal liability. Accordingly, for the purposes of the answer to be given to the first and second questions, it must be considered that that was the position under Romanian law during that period.

78In the light of the case-law referred to in paragraph 76 above, it is also necessary to answer those questions on the basis of the referring court’s interpretation of judgment No 67/2022 of the Înalta Curte de Casație și Justiție (High Court of Cassation and Justice), according to which the latter’s interpretation of the principle of the retroactive application of the more lenient criminal law (lex mitior) allows the effects of the absence of grounds for interrupting that limitation period in Romanian law to be applied retroactively to procedural acts which took place before 25 June 2018, namely the date of publication of judgment No 297/2018 of the Curtea Constituțională (Constitutional Court).

Breach of the obligation to counter fraud affecting the financial interests of the European Union through effective deterrent measures

79Since it is apparent from the order for reference that the dispute in the main proceedings concerns, inter alia, acts constituting serious VAT fraud, it must be borne in mind that it is for the Member States to adopt the measures necessary to guarantee the effective and comprehensive collection of the European Union’s own resources, namely the revenue from the application of a uniform rate to the harmonised VAT assessment bases (judgment of 21 December 2021, Euro Box Promotion and Others, C‑357/19, C‑379/19, C‑547/19, C‑811/19 and C‑840/19, EU:C:2021:1034, paragraph 182 and the case-law cited).

80That being said, the enactment of criminal penalties in order to protect the financial interests of the Union, and in particular the correct collection of that revenue, falls within the shared competence of the European Union and the Member States within the meaning of Article 4(2) TFEU (see, to that effect, judgment of 5 December 2017, M.A.S. and M.B., C‑42/17, EU:C:2017:936, paragraph 43).

81In the present case, at the material time for the main proceedings, the rules governing limitation periods applicable to criminal offences affecting the financial interests of the European Union had not been harmonised by the EU legislature and harmonisation has since taken place only to a partial extent by the adoption of the PFI Directive (see, to that effect, judgment of 5 December 2017, M.A.S. and M.B., C‑42/17, EU:C:2017:936, paragraph 44), which, as noted in paragraph 64 above, is not applicable to the dispute in the main proceedings.

82Accordingly, the adoption of rules governing limitation periods for criminal offences affecting the financial interests of the European Union fell, at the time of the facts in the main proceedings, within the competence of the Member States. However, those Member States are required, when exercising that competence, to comply with their obligations deriving from EU law (see, to that effect, judgments of 26 February 2019, Rimšēvičs and ECB v Latvia, C‑202/18 and C‑238/18, EU:C:2019:139, paragraph 57, and of 21 December 2021, Euro Box Promotion and Others, C‑357/19, C‑379/19, C‑547/19, C‑811/19 and C‑840/19, EU:C:2021:1034, paragraph 216).

83In that regard, it must be pointed out, in the first place, that Article 325(1) TFEU requires the Member States to counter fraud and any other illegal activities affecting the financial interests of the European Union through effective deterrent measures (judgment of 21 December 2021, Euro Box Promotion and Others, C‑357/19, C‑379/19, C‑547/19, C‑811/19 and C‑840/19, EU:C:2021:1034, paragraph 181 and the case-law cited).

84While the Member States are free to choose the applicable penalties, which may take the form of administrative penalties, criminal penalties or a combination of the two, they must nonetheless ensure, pursuant to Article 325(1) TFEU, that cases of serious fraud or other serious illegal activities affecting the financial interests of the European Union are punishable by criminal penalties that are effective and that act as a deterrent (see, to that effect, judgments of 21 December 2021, Euro Box Promotion and Others, C‑357/19, C‑379/19, C‑547/19, C‑811/19 and C‑840/19, EU:C:2021:1034, paragraph 191, and of 8 March 2022, Commission v United Kingdom (Action to counter undervaluation fraud), C‑213/19, EU:C:2022:167, paragraph 219).

85In the second place, under Article 2(1) of the PFI Convention, Member States must take the necessary measures to ensure that conduct constituting fraud affecting the financial interests of the European Union, including VAT fraud, is punishable by effective, proportionate and dissuasive criminal penalties, including, at least in cases of serious fraud – namely fraud involving a minimum amount which may not be set by the Member States at a sum exceeding EUR 50000 – penalties involving deprivation of liberty (see, to that effect, judgment of 2 May 2018, Scialdone, C‑574/15, EU:C:2018:295, paragraph 36 and the case-law cited).

86Accordingly, those Member States must ensure that the limitation rules laid down by national law allow effective punishment of infringements linked to such fraud (see, to that effect, judgment of 5 December 2017, M.A.S. and M.B., C‑42/17, EU:C:2017:936, paragraph 36).

87In the present case, it is apparent from the explanations provided by the referring court, as summarised in paragraphs 23 to 32 above, that, first, pursuant to judgments No 297/2018 and No 358/2022 of the Curtea Constituțională (Constitutional Court), during the period from 25 June 2018, the date of publication of judgment No 297/2018, to 30 May 2022, the date on which Decree-Law No 71/2022 entered into force, Romanian law did not provide for any ground allowing the limitation period for criminal liability to be interrupted, and that, secondly, according to judgment No 67/2022 of the Înalta Curte de Casație și Justiție (High Court of Cassation and Justice), that constitutional case-law can be invoked as a more lenient criminal law (lex mitior), including to challenge final convictions.

88As regards the specific effects that might result from that case-law, the referring court states that, in the dispute in the main proceedings, the application, as a more lenient criminal law (lex mitior), of the rule laid down in judgments No 297/2018 and No 358/2022 of the Curtea Constituțională (Constitutional Court), according to which, during the period referred to in the preceding paragraph, Romanian law did not provide for any ground for interrupting the limitation period for criminal liability, would have the result that the 10-year limitation period laid down for the offences at issue in the main proceedings would have expired before the conviction of the appellants in the main proceedings became final, which would entail the discontinuation of the criminal proceedings and would render impossible the conviction of those appellants.

89The referring court also pointed out that judgments No 297/2018 and No 358/2022 of the Curtea Constituțională (Constitutional Court) are likely to affect a ‘significant number of cases’, including cases closed by the delivery of final convictions, which could be challenged by means of extraordinary appeals such as those at issue in the main proceedings.

90In addition, although, as noted in paragraph 65 above, Decision 2006/928 is not applicable as such to tax evasion offences, such as those at issue in the main proceedings, the data presented by the Commission in its report of 22 November 2022 to the European Parliament and the Council on Progress in Romania under the Cooperation and Verification Mechanism (COM(2022) 664 final), pursuant to Article 2 of that decision, nevertheless confirm the existence of a risk that many cases of serious fraud affecting the financial interests of the European Union may no longer be penalised because of the expiry of the corresponding limitation period for criminal liability. It is apparent from that report, mentioned by the referring court, that judgments No 297/2018 and No 358/2022 of the Curtea Constituțională (Constitutional Court) could lead to ‘to the termination of criminal proceedings and the removal of criminal liability in a substantial number of cases’ and that the situation created entails the ‘risk that thousands of defendants would not face criminal liability’.

91It may be inferred from the foregoing that the legal situation resulting from the application of judgments No 297/2018 and No 358/2022 of the Curtea Constituțională (Constitutional Court) and of judgment No 67/2022 of the Înalta Curte de Casație și Justiție (High Court of Cassation and Justice) entails a systemic risk of offences of serious fraud affecting the financial interests of the European Union going unpunished, in particular in cases whose complexity calls for a longer investigation by the criminal authorities.

92The existence of such a systemic risk of impunity is incompatible with the requirements of Article 325(1) TFEU and Article 2(1) of the PFI Convention, as noted in paragraphs 83 to 86 above (see, to that effect, judgment of 21 December 2021, Euro Box Promotion and Others, C‑357/19, C‑379/19, C‑547/19, C‑811/19 and C‑840/19, EU:C:2021:1034, paragraph 203).

93In that regard, it is primarily for the national legislature to take the measures necessary to comply with those requirements, inter alia by adopting the necessary provisions and, where appropriate, by amending the existing provisions in order to ensure that the procedural rules applicable to the prosecution and punishment of offences of serious fraud affecting the financial interests of the European Union, including the rules governing the limitation period for criminal liability, comply with the provisions of Article 325(1) TFEU and Article 2(1) of the PFI Convention. Those rules must be designed in such a way that no systemic risk arises, for reasons inherent in those rules, that acts that may be categorised as such offences may go unpunished, and also to ensure that the fundamental rights of accused persons are protected (see, to that effect, judgments of 5 December 2017, M.A.S. and M.B., C‑42/17, EU:C:2017:936, paragraph 41, and of 21 December 2021, Euro Box Promotion and Others, C‑357/19, C‑379/19, C‑547/19, C‑811/19 and C‑840/19, EU:C:2021:1034, paragraph 193).

94A legal situation in which the legislation of a Member State governing the interruption of the limitation period for criminal liability has been invalidated and, accordingly, rendered ineffective by the constitutional court of that Member State, without the national legislature having remedied that situation during a period of almost four years, is incompatible with the obligation, referred to in paragraphs 83 to 86 above, to ensure that cases of serious fraud affecting the financial interests of the European Union, committed on the national territory, are punishable by criminal penalties that are effective and that act as a deterrent. Such a situation, which concerns a provision of general application that was applicable to all criminal proceedings and in which it was not foreseeable, either by the prosecuting authorities or by the criminal courts, that that provision would not be replaced after it had been declared unconstitutional, entails the inherent risk that numerous cases of serious fraud affecting the financial interests of the European Union will go unpunished because of the expiry of that limitation period, particularly in cases whose complexity calls for a longer investigation by the criminal authorities.

The obligations of the national courts

95It is settled case-law that, in accordance with the principle of the primacy of EU law, the national court called upon within the exercise of its jurisdiction to apply provisions of EU law is under a duty, where it is unable to interpret national law in compliance with the requirements of EU law, to give full effect to the requirements of EU law in the dispute brought before it, by disapplying, as required, of its own motion, any national rule or practice, even if adopted subsequently, that is contrary to a provision of EU law with direct effect, without it having to request or await the prior setting aside of that national rule or practice by legislative or other constitutional means (judgments of 9 March 1978, Simmenthal, 106/77, EU:C:1978:49, paragraph 24; of 24 June 2019, Popławski, C‑573/17, EU:C:2019:530, paragraphs 61 and 62; and of 22 February 2022, RS (Effect of the decisions of a constitutional court), C‑430/21, EU:C:2022:99, paragraph 53).

96In the present case, Article 325(1) TFEU and Article 2(1) of the PFI Convention are formulated in clear and precise terms and are not subject to any conditions, and they therefore have direct effect (see, to that effect, judgment of 21 December 2021, Euro Box Promotion and Others, C‑357/19, C‑379/19, C‑547/19, C‑811/19 and C‑840/19, EU:C:2021:1034, paragraph 253 and the case-law cited).

97Accordingly, it is, in principle, for the national courts to give full effect to the obligations under Article 325(1) TFEU and Article 2(1) of the PFI Convention and to disapply national provisions which, in connection with proceedings concerning serious fraud affecting the financial interests of the European Union, prevent the application of effective and deterrent penalties in order to counter such offences (see, to that effect, judgment of 21 December 2021, Euro Box Promotion and Others, C‑357/19, C‑379/19, C‑547/19, C‑811/19 and C‑840/19, EU:C:2021:1034, paragraph 194 and the case-law cited).

98It thus appears that, in principle, the national courts are required, in accordance with Article 325(1) TFEU and Article 2(1) of the PFI Convention, to disapply judgments No 297/2018 and No 358/2022 of the Curtea Constituțională (Constitutional Court), from which it follows that, during the period from 25 June 2018, the date of publication of judgment No 297/2018, to 30 May 2022, the date of entry into force of Decree-Law No 71/2022, Romanian law did not provide for any ground for interrupting the limitation period for criminal liability, in so far as those judgments have the effect that criminal liability is time-barred in a large number of cases of serious fraud affecting the financial interests of the European Union and, accordingly, as noted in paragraph 91 above, of creating a systemic risk of impunity for such offences.

99Similarly, the national courts are required, in principle, in accordance with those provisions, to disapply judgment No 67/2022 of the Înalta Curte de Casație și Justiție (High Court of Cassation and Justice), in so far as that judgment makes it possible to invoke the expiry of the limitation period for criminal liability, on the basis of the effects of judgments No 297/2018 and No 358/2022 of the Curtea Constituțională (Constitutional Court) as a more lenient criminal law (lex mitior), in cases of serious fraud affecting the financial interests of the European Union and, accordingly, increases the systemic risk of such offences going unpunished.

100However, it remains necessary to ascertain whether the obligation to disapply such judgments conflicts, in a situation such as that at issue in the main proceedings, with the protection of fundamental rights.

101In that regard, it should be recalled, in the first place, that, as is apparent from settled case-law, the obligation to ensure the effective collection of the European Union’s resources does not dispense national courts from the necessary observance of the fundamental rights guaranteed by the Charter and of the general principles of EU law, given that the criminal proceedings instigated for VAT offences amount to an implementation of EU law, within the meaning of Article 51(1) of the Charter (judgment of 17 January 2019, Dzivev and Others, C‑310/16, EU:C:2019:30, paragraph 33, and, to that effect, judgment of 21 December 2021, Euro Box Promotion and Others, C‑357/19, C‑379/19, C‑547/19, C‑811/19 and C‑840/19, EU:C:2021:1034, paragraph 204).

102In the present case, it follows from the explanations provided by the referring court that the relevant national case-law in the context of the dispute in the main proceedings, summarised in paragraphs 23 to 32 above, is based on two separate principles, namely, first, as regards judgments No 297/2018 and No 358/2022 of the Curtea Constituțională (Constitutional Court), the principle that offences and penalties must be defined by law, as to its requirements relating to the foreseeability and precision of criminal law, and, secondly, as regards judgment No 67/2022 of the Înalta Curte de Casație și Justiție (High Court of Cassation and Justice), the principle of retroactive application of the more lenient criminal law (lex mitior), including to final convictions handed down after 25 June 2018.

103In the EU legal order, the principle that offences and penalties must be defined by law and the principle of the retroactive application of the more lenient criminal law (lex mitior) are enshrined in Article 49(1) of the Charter.

104Pursuant to the principle that offences and penalties must be defined by law, provisions of criminal law must, inter alia, ensure accessibility and foreseeability, as regards both the definition of the offence and the determination of the penalty (see, to that effect, judgments of 5 December 2017, M.A.S. and M.B., C‑42/17, EU:C:2017:936, paragraph 55, and of 11 June 2020, Prokuratura Rejonowa w Słupsku, C‑634/18, EU:C:2020:455, paragraph 48).

105In addition, the requirement that the applicable law must be precise, which is inherent in that principle, means that the law must clearly define offences and the penalties which they attract. That condition is met where the individual is in a position, on the basis of the wording of the relevant provision and if necessary with the help of the interpretation made by the courts, to know which acts or omissions will make him or her criminally liable (judgment of 5 December 2017, M.A.S. and M.B., C‑42/17, EU:C:2017:936, paragraph 56, and, to that effect, judgment of 11 June 2020, Prokuratura Rejonowa w Słupsku, C‑634/18, EU:C:2020:455, paragraph 49).

106Lastly, in accordance with the last sentence of Article 49(1) of the Charter, the principle of the retroactive application of the more lenient criminal law (lex mitior) requires that, if, after the commission of an offence, the law provides for a lighter penalty, that penalty must be applied.

107First of all, the application of the more lenient criminal law presupposes a succession of legal regimes over time and is based on the conclusion that that succession reflects, in the legal system concerned, a change of position either as regards the criminal classification of the act liable to constitute an offence or as regards the penalty to be applied to such an offence (see, to that effect, judgment of 7 August 2018, Clergeau and Others, C‑115/17, EU:C:2018:651, paragraph 33 and the case-law cited).

108Next, it follows from the Court’s case-law that the rules governing limitation periods in criminal matters do not fall within the scope of Article 49(1) of the Charter (see, to that effect, judgment of 8 September 2015, Taricco and Others, C‑105/14, EU:C:2015:555, paragraphs 54 to 57).

109Consequently, the obligation for national courts to disapply judgments No 297/2018 and No 358/2022 of the Curtea Constituțională (Constitutional Court) and judgment No 67/2022 of the Înalta Curte de Casație și Justiție (High Court of Cassation and Justice) is not such as to undermine either the principle of foreseeability, precision and non-retroactivity of offences and penalties or the principle of the retroactive application of the more lenient criminal law (lex mitior), as guaranteed in Article 49(1) of the Charter.

110In the second place, it must be borne in mind that, where, as in the present case, a court of a Member State is called upon to review whether fundamental rights are complied with by a national provision or measure which, in a situation where action of the Member States is not entirely determined by EU law, implements the latter for the purposes of Article 51(1) of the Charter, national authorities and courts remain free to apply national standards of protection of fundamental rights, provided that the level of protection provided for by the Charter, as interpreted by the Court, and the primacy, unity and effectiveness of European Union law are not thereby compromised (judgments of 26 February 2013, Åkerberg Fransson, C‑617/10, EU:C:2013:105, paragraph 29; of 5 December 2017, M.A.S. and M.B., C‑42/17, EU:C:2017:936, paragraph 47; and of 21 December 2021, Euro Box Promotion and Others, C‑357/19, C‑379/19, C‑547/19, C‑811/19 and C‑840/19, EU:C:2021:1034, paragraph 211).

111In the present case, according to the explanations provided by the referring court, judgments No 297/2018 and No 358/2022 of the Curtea Constituțională (Constitutional Court) and judgment No 67/2022 of the Înalta Curte de Casație și Justiție (High Court of Cassation and Justice) are based on the premiss that, in Romanian law, the rules concerning the interruption of the limitation period for criminal liability fall within the scope of substantive criminal law and, consequently, are subject to the principle that offences and penalties must be defined by law and to the principle of the retroactive application of the more lenient criminal law (lex mitior), as guaranteed by the Romanian Constitution. Those principles must therefore be regarded as national standards of protection of fundamental rights, within the meaning of the preceding paragraph.

112It follows from the considerations set out in paragraphs 108 and 109 above that those national standards of protection of fundamental rights are not liable, in cases such as those at issue in the main proceedings, to compromise the level of protection provided for by the Charter, as interpreted by the Court.

113In this respect, the importance given, both in the EU legal order and in national legal systems, to the principle that offences and penalties must be defined by law, as to its requirements concerning the foreseeability, precision and non-retroactivity of the criminal law applicable, must be recalled (judgment of 5 December 2017, M.A.S. and M.B., C‑42/17, EU:C:2017:936, paragraph 51).

114Those requirements of foreseeability, precision and non-retroactivity of criminal law constitute a specific expression of the principle of legal certainty. That fundamental principle of EU law requires, on the one hand, that the rules of law be clear and precise and, on the other, that their application be foreseeable for those subject to the law, in particular where they may have adverse consequences. That principle constitutes an essential element of the rule of law, which is identified in Article 2 TEU both as a founding value of the European Union and as a value common to the Member States (see, to that effect, judgments of 28 March 2017, Rosneft, C‑72/15, EU:C:2017:236, paragraphs 161 and 162, and of 16 February 2022, Hungary v Parliament and Council, C‑156/21, EU:C:2022:97, paragraphs 136 and 223).

115In the present case, it should be observed that, by holding, first, that the Romanian legislature had infringed the constitutional principle of foreseeability and precision of criminal law by allowing procedural acts to interrupt the limitation period for criminal liability, even though those acts were not notified to the suspect or accused person, the Romanian Constitutional Court applied a national standard of protection of fundamental rights which supplements the protection against arbitrariness in criminal matters offered by EU law, under the principle of legal certainty. It also applied such a national standard of protection of fundamental rights when, secondly, it found, in essence, that the lack of action by the Romanian legislature to replace the provision of the Criminal Code relating to the interruption of that limitation period declared unconstitutional had given rise to a new situation that lacked clarity and foreseeability, in breach of that constitutional principle.

116It is with regard to the importance of that protection against arbitrariness, in both the EU legal system and in the legal systems of the Member States, that the Court held, in essence, in paragraphs 58 to 62 of the judgment of 5 December 2017, M.A.S. and M.B. (C‑42/17, EU:C:2017:936), that a national standard of protection intended to guarantee the requirements of foreseeability, precision and non-retroactivity of criminal law, including the rules on limitation periods for criminal offences, could preclude the obligation which – in the circumstances at issue in the case which gave rise to that judgment – the national courts were under, pursuant to Article 325(1) and (2) TFEU, to disapply national provisions governing limitation periods in criminal matters, even though the application of those national provisions was liable to prevent the application of effective and deterrent criminal penalties in a significant number of cases of serious fraud affecting the financial interests of the European Union.

117It was also relevant, in that regard, that the rules governing limitation periods for criminal offences affecting the financial interests of the European Union which were at issue in that case had, as in the present case, not been the subject of full harmonisation, as noted in paragraph 81 above.

118In the light of the considerations set out in paragraphs 113 to 117 above and as the Court held in its judgment of 5 December 2017, M.A.S. and M.B. (C‑42/17, EU:C:2017:936), it must therefore be concluded that, in a case such as that at issue in the main proceedings, the Romanian courts are not required to disapply the national case-law referred to in paragraph 111 above, in accordance with Article 325(1) TFEU and Article 2(1) of the PFI Convention, notwithstanding the existence of a systemic risk of serious fraud offences affecting the financial interests of the European Union going unpunished, in so far as the judgments referred to in paragraph 111 above are based on the principle that offences and penalties must be defined by law, as protected under national law, as to its requirements concerning the foreseeability and precision of criminal law, including the rules on limitation periods for criminal offences.

119However, it is apparent from the explanations provided by the referring court that judgment No 67/2022 of the Înalta Curte de Casație și Justiție (High Court of Cassation and Justice) is also based on the principle of the retroactive application of the more lenient criminal law (lex mitior) arising from judgments No 297/2018 and No 358/2022 of the Curtea Constituțională (Constitutional Court). According to the referring court’s interpretation of judgment No 67/2022 of the Înalta Curte de Casație și Justiție (High Court of Cassation and Justice), the latter court found that, in accordance with that principle, the effects of the absence of grounds for interrupting the limitation period for criminal liability under Romanian law, resulting from those two judgments of the Curtea Constituțională (Constitutional Court), could be applied retroactively to procedural acts which took place before 25 June 2018, that is to say the date of publication of judgment No 297/2018 of the Curtea Constituțională (Constitutional Court).

120The application of a national standard of protection relating to the principle of the retroactive application of more lenient criminal law (lex mitior) must be distinguished from that of the national standard of protection examined by the Court in the judgment of 5 December 2017, M.A.S. and M.B. (C‑42/17, EU:C:2017:936).

121In that regard, it is apparent from the order for reference that the application of that first national standard of protection is liable to exacerbate the systemic risk that serious fraud affecting the financial interests of the European Union will escape any criminal penalty, in breach of Article 325(1) TFEU and Article 2(1) of the PFI Convention.

122Contrary to the national standard of protection relating to the foreseeability of criminal law, which, according to the referring court, is limited to neutralising the interrupting effect of procedural acts which occurred during the period from 25 June 2018, the date of publication of judgment No 297/2018 of the Curtea Constituțională (Constitutional Court), to 30 May 2022, the date on which Decree-Law No 71/2002 entered into force, the national standard of protection relating to the principle of the retroactive application of the more lenient criminal law (lex mitior) permits, at least in certain cases, the neutralisation of the interrupting effect of procedural acts which took place even before 25 June 2018 but after the entry into force of the Criminal Code on 1 February 2014, that is to say, during a period of more than four years.

123In such circumstances, in view of the need to weigh the latter national standard of protection against the provisions of Article 325(1) TFEU and Article 2(1) of the PFI Convention, the application of that standard by a national court in order to call into question the interruption of the limitation period for criminal liability by procedural acts which took place before 25 June 2018, the date of publication of judgment No 297/2018 of the Curtea Constituțională (Constitutional Court), must be regarded as being liable to compromise the primacy, unity and effectiveness of EU law, within the meaning of the case-law referred to in paragraph 110 above (see, to that effect, judgment of 21 December 2021, Euro Box Promotion and Others, C‑357/19, C‑379/19, C‑547/19, C‑811/19 and C‑840/19, EU:C:2021:1034, paragraph 212).

124Consequently, it must be held that the national courts cannot, in the context of judicial proceedings seeking to impose criminal penalties for serious fraud offences affecting the financial interests of the European Union, apply the national standard of protection relating to the principle of the retroactive application of the more lenient criminal law (lex mitior), as referred to in paragraph 119 above, in order to call into question the interruption of the limitation period for criminal liability by procedural acts which took place before 25 June 2018, the date of publication of judgment No 297/2018 of the Curtea Constituțională (Constitutional Court).

125In the light of all the foregoing considerations, the answer to the first and second questions is that Article 325(1) TFEU and Article 2(1) of the PFI Convention must be interpreted as meaning that the courts of a Member State are not required to disapply the judgments of the constitutional court of that Member State invalidating the national legislative provision governing the grounds for interrupting the limitation period in criminal matters as a result of a breach of the principle that offences and penalties must be defined by law, as protected under national law, as to its requirements relating to the foreseeability and precision of criminal law, even if, as a consequence of those judgments, a considerable number of criminal cases, including cases relating to offences of serious fraud affecting the financial interests of the European Union, will be discontinued because of the expiry of the limitation period for criminal liability. However, those provisions of EU law must be interpreted as meaning that the courts of that Member State are required to disapply a national standard of protection relating to the principle of the retroactive application of the more lenient criminal law (lex mitior) which makes it possible, including in the context of appeals brought against final judgments, to call into question the interruption of the limitation period for criminal liability in such cases by procedural acts which took place before such a finding of invalidity.

The third question

126By its third question, the referring court asks, in essence, whether the principle of primacy of EU law must be interpreted as precluding national legislation or a national practice under which the ordinary courts of a Member State are bound by the decisions of the constitutional court and by those of the supreme court of that Member State and cannot, for that reason and at the risk of incurring the disciplinary liability of the judges concerned, disapply of their own motion the case-law resulting from those decisions, even if they consider, in the light of a judgment of the Court, that that case-law is contrary to EU law.

127In that regard, it must be borne in mind that, although the organisation of justice in the Member States falls within the competence of those Member States, they are nevertheless required, when exercising that competence, to comply with their obligations deriving from EU law. The same applies vis-à-vis the disciplinary liability of judges for failure to comply with the decisions of the constitutional court and of the supreme court of the Member State concerned (see, to that effect, judgment of 21 December 2021, Euro Box Promotion and Others, C‑357/19, C‑379/19, C‑547/19, C‑811/19 and C‑840/19, EU:C:2021:1034, paragraph 133 and the case-law cited).

128In accordance with the Court’s settled case-law, the principle of the primacy of EU law establishes the pre-eminence of EU law over the law of the Member States. That principle therefore requires all Member State bodies to give full effect to the various EU provisions, and the law of the Member States may not undermine the effect accorded to those various provisions in the territory of those States (judgment of 18 May 2021, AsociațiaForumul Judecătorilor din Româniaand Others, C‑83/19, C‑127/19, C‑195/19, C‑291/19, C‑355/19 and C‑397/19, EU:C:2021:393, paragraph 244 and the case-law cited).

129As recalled in paragraph 95 above, in accordance with the principle of primacy, the national court has a duty to give full effect to the requirements of EU law in the dispute brought before it, by disapplying, as required, of its own motion, any national rule or practice, even if adopted subsequently, that is contrary to a provision of EU law with direct effect, such as Article 325(1) TFEU, without it having to request or await the prior setting aside of that national rule or practice by legislative or other constitutional means.

130In the present case, the referring court states that it might be required, in the event that the existence of an incompatibility with EU law results from the answer to the first and second questions and if it transpires that an interpretation in conformity with EU law is not possible in the light of the pleas raised before it, to disapply the approaches adopted in the national case-law referred to in paragraph 111 above.

131However, the referring court points out that the new disciplinary regime, provided for in Articles 271 and 272 of Law No 303/2022 on the rules governing judges and prosecutors, allows penalties to be imposed on judges who have, in bad faith or through gross negligence, disregarded judgments of the Curtea Constituțională (Constitutional Court) or judgments of the Înalta Curte de Casație și Justiție (High Court of Cassation and Justice) ruling on appeals in the interest of the law.

132In that regard, it must be recalled that a judgment in which the Court of Justice gives a preliminary ruling is binding on the national court as regards the interpretation of the provisions of EU law in question for the purposes of the decision to be given in the main proceedings (see, to that effect, judgments of 3 February 1977, Benedetti, 52/76, EU:C:1977:16, paragraph 26, and of 22 February 2022, RS (Effect of the decisions of a constitutional court), C‑430/21, EU:C:2022:99, paragraph 74).

133The national court, having exercised the discretion conferred on it by the second paragraph of Article 267 TFEU, must therefore, if necessary, disregard the rulings of a higher national court if it considers, having regard to the interpretation provided by the Court, that they are not consistent with EU law, if necessary refusing to apply the national rule requiring it to comply with the decisions of that higher court (judgment of 22 February 2022, RS (Effect of the decisions of a constitutional court), C‑430/21, EU:C:2022:99, paragraph 75).

134The national court which exercised the discretion or complied with its obligation to make a reference to the Court for a preliminary ruling under Article 267 TFEU cannot be prevented from forthwith applying EU law in accordance with the decision or the case-law of the Court, since otherwise the effectiveness of that article would be impaired. It must be added that the power to do everything necessary, when applying EU law, to disregard national rules or a national practice which might prevent EU rules from having full force and effect is an integral part of the role of a court of the European Union which falls to the national court responsible for applying, within its jurisdiction, the EU rules (see, to that effect, judgment of 21 December 2021, Euro Box Promotion and Others, C‑357/19, C‑379/19, C‑547/19, C‑811/19 and C‑840/19, EU:C:2021:1034, paragraph 257).

135National rules or a national practice under which the decisions of the constitutional court and of the supreme court of the Member State concerned are binding on the ordinary courts, even where the latter are of the view, in the light of a judgment given on a request for a preliminary ruling by the Court of Justice, that the case-law established in those decisions is contrary to EU law, can prevent those ordinary courts from ensuring that full effect is given to the requirements of EU law; that preventive effect may be heightened by the fact any non-compliance with that case-law may be classified as a disciplinary offence under national law (see, to that effect. judgment of 21 December 2021, Euro Box Promotion and Others, C‑357/19, C‑379/19, C‑547/19, C‑811/19 and C‑840/19, EU:C:2021:1034, paragraph 259).

136As regards, more specifically, the disciplinary liability that judges may incur, under the legislation of a Member State, in the event of failure to comply with the decisions of the constitutional court and of the supreme court of that Member State, the fact that a national court performs the tasks entrusted to it by the Treaties and fulfils its obligations under the Treaties, by giving effect – in accordance with the principle of the primacy of EU law – to a provision of EU law such as Article 325(1) TFEU or Article 2(1) of the PFI Convention and to the interpretation given to it by the Court, cannot, by definition, be regarded as a disciplinary offence on the part of judges sitting in that court without that provision and that principle being infringed ipso facto (see, to that effect, judgments of 21 December 2021, Euro Box Promotion and Others, C‑357/19, C‑379/19, C‑547/19, C‑811/19 and C‑840/19, EU:C:2021:1034, paragraph 260, and of 13 July 2023, YP and Others(Lifting of a judge’s immunity and his or her suspension from duties), C‑615/20 and C‑671/20, EU:C:2023:562, paragraph 85 and the case-law cited).

137It follows from the foregoing that the principle of primacy of EU law must be interpreted as precluding national legislation or a national practice under which the ordinary national courts of a Member State are bound by the decisions of the constitutional court and by those of the supreme court of that Member State and cannot, for that reason and at the risk of incurring the disciplinary liability of the judges concerned, disapply of their own motion the case-law resulting from those decisions, even if they consider, in the light of a judgment of the Court, that that case-law is contrary to provisions of EU law having direct effect.

Costs

138Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

Operative part

On those grounds, the Court (Grand Chamber) hereby rules:

Article 325(1) TFEU and Article 2(1) of the Convention drawn up on the basis of Article K.3 of the Treaty on European Union, on the protection of the European Communities’ financial interests, signed in Brussels on 26 July 1995 and annexed to the Council Act of 26 July 1995

must be interpreted as meaning that the courts of a Member State are not required to disapply the judgments of the constitutional court of that Member State invalidating the national legislative provision governing the grounds for interrupting the limitation period in criminal matters, as a result of a breach of the principle that offences and penalties must be defined by law, as protected under national law, as to its requirements relating to the foreseeability and precision of criminal law, even if, as a consequence of those judgments, a considerable number of criminal cases, including cases relating to offences of serious fraud affecting the financial interests of the European Union, will be discontinued because of the expiry of the limitation period for criminal liability.

However, those provisions of EU law must be interpreted as meaning that the courts of that Member State are required to disapply a national standard of protection relating to the principle of the retroactive application of the more lenient criminal law (lex mitior) which makes it possible, including in the context of appeals brought against final judgments, to call into question the interruption of the limitation period for criminal liability in such cases by procedural acts which took place before such a finding of invalidity.

Signatures

The principle of the primacy of EU law

must be interpreted as precluding national legislation or a national practice under which the ordinary national courts of a Member State are bound by the decisions of the constitutional court and by those of the supreme court of that Member State and cannot, for that reason and at the risk of incurring the disciplinary liability of the judges concerned, disapply of their own motion the case-law resulting from those decisions, even if they consider, in the light of a judgment of the Court, that that case-law is contrary to provisions of EU law having direct effect.

[Signatures]

( *1 ) Language of the case: Romanian.

( i ) The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings.

OPINION OF ADVOCATE GENERAL

CAMPOS SÁNCHEZ-BORDONA

delivered on 29 June 2023 ¹

(Reference for a preliminary ruling – Protection of the Union’s financial interests – VAT fraud – Article 325(1) TFEU – PFI Convention – Directive (EU) 2017/1371 – Obligation to counter fraud affecting the Union’s financial interests by taking dissuasive and effective measures – Decision 2006/928/EC – Mechanism for cooperation and verification of progress in Romania to address specific benchmarks in the areas of judicial reform and the fight against corruption – Limitation period in criminal matters – Judgment declaring unconstitutional national provisions on the interruption of limitation periods in criminal law – Systemic risk of impunity – Protection of fundamental rights – Last sentence of Article 49(1) of the Charter – Principle of the retroactive application of the more lenient criminal law (lex mitior) – National standard of protection of fundamental rights – Duty on national courts to give full effect to judgments of the Curtea Constituțională (Constitutional Court) – Disciplinary liability of judges in the event of non-compliance with such decisions – Power to disapply decisions of the Curtea Constituțională (Constitutional Court) that conflict with EU law – Principle of the primacy of EU law)

1In this request for a preliminary ruling, the referring court asks the Court to interpret a number of provisions of EU law to enable the former to decide whether it should uphold or dismiss extraordinary appeals brought by persons sentenced to imprisonment for tax evasion and establishment of an organised crime group.

2The dispute revolves around the compatibility with EU law of national rules governing limitation periods for criminal liability which, following the intervention of the Curtea Constituțională (Constitutional Court, Romania), did not provide, for a time, for the possibility of those periods being interrupted. According to the referring court, those rules could result in numerous criminal acts affecting the Union’s financial interests going unpunished.

3The answer to the questions referred for a preliminary ruling will require the Court to develop its still nascent case-law on the principle of the retroactivity of the more lenient criminal law (lex mitior), enshrined in the last sentence of Article 49(1) of the Charter of Fundamental Rights of the European Union (‘the Charter’).

I. Legal framework

A. European Union law

1. PFI Convention ²

4Article 1(1) of the PFI Convention reads:

‘For the purposes of this Convention, fraud affecting the European Communities’ financial interests shall consist of:

…

in respect of revenue, any intentional act or omission relating to:

the use or presentation of false, incorrect or incomplete statements or documents, which has as its effect the illegal diminution of the resources of the general budget of the European Communities or budgets managed by, or on behalf of, the European Communities,

…’

5Article 2 provides:

‘1. Each Member State shall take the necessary measures to ensure that the conduct referred to in Article 1, and participating in, instigating, or attempting the conduct referred to in Article 1(1), are punishable by effective, proportionate and dissuasive criminal penalties, including, at least in cases of serious fraud, penalties involving deprivation of liberty which can give rise to extradition, it being understood that serious fraud shall be considered to be fraud involving a minimum amount to be set in each Member State. This minimum amount may not be set at a sum exceeding [EUR] 50000.

…’

2. Decision 2006/928/EC ³

6Article 1 states:

‘Romania shall, by 31 March of each year, and for the first time by 31 March 2007, report to the Commission on the progress made in addressing each of the benchmarks provided for in the Annex.

…’

7The Annex reads as follows:

‘Benchmarks to be addressed by Romania, referred to in Article 1:

1Ensure a more transparent, and efficient judicial process notably by enhancing the capacity and accountability of the Superior Council of Magistracy. Report and monitor the impact of the new civil and penal procedures codes.

2Establish, as foreseen, an integrity agency with responsibilities for verifying assets, incompatibilities and potential conflicts of interest, and for issuing mandatory decisions on the basis of which dissuasive sanctions can be taken.

3Building on progress already made, continue to conduct professional, non-partisan investigations into allegations of high-level corruption.

4Take further measures to prevent and fight against corruption, in particular within the local government.’

3. Directive (EU) 2017/1371 ⁴

8Article 2(2) reads:

‘In respect of revenue arising from VAT own resources, this Directive shall apply only in cases of serious offences against the common [system of value added tax (‘VAT’)]. For the purposes of this Directive, offences against the common VAT system shall be considered to be serious where the intentional acts or omissions defined in point (d) of Article 3(2) are connected with the territory of two or more Member States of the Union and involve a total damage of at least EUR 10000000.’

9Under Article 16:

‘The Convention on the protection of the European Communities’ financial interests of 26 July 1995, including the Protocols thereto of 27 September 1996, of 29 November 1996 and of 19 June 1997, is hereby replaced by this Directive for the Member States bound by it, with effect from 6 July 2019.

For the Member States bound by this Directive, references to the Convention shall be construed as references to this Directive.’

10Article 17(1) provides:

‘Member States shall adopt and publish, by 6 July 2019, the laws, regulations and administrative provisions necessary to comply with this Directive. They shall immediately communicate the text of those measures to the Commission. They shall apply those measures from 6 July 2019.

…’

B. Romanian law

1. The Romanian Constitution

11Article 15(2) provides that ‘the law shall have legal effect only for the future, with the exception of the more lenient criminal or administrative law’.

12Article 147 provides:

‘1. The provisions of laws and decrees currently in force, as well as those of regulations, which are found to be unconstitutional shall cease to have legal effect 45 days after the publication of the judgment of the Constitutional Court, unless, in the intervening period, the Parliament or the Government, as appropriate, brings the unconstitutional provisions into line with the provisions of the Constitution. Throughout that period, the provisions found to be unconstitutional shall be suspended automatically.

…

4. The decisions of the Constitutional Court shall be published in the Monitorul Oficial al României [(Official Gazette of Romania)]. As from the date of publication, those decisions shall be generally binding and shall have legal effect only for the future.’

2. Criminal law

(a) Criminal Code of 1969, as amended in 1996 ⁵

13Under the first paragraph of Article 123, ‘the limitation period … shall be interrupted by the performance of any act which, by law, must be notified to the suspect or defendant in the course of criminal proceedings’.

(b) Criminal Code of 2009 ⁶

14Paragraph 1 of Article 5 provides that ‘if, between the commission of an offence and final judgment in the case, one or more criminal laws are passed, the more lenient law shall be applied’.

15Under paragraph 2 of Article 5, the preceding paragraph also applies where laws or any of the provisions thereof which have been found to be unconstitutional contain more lenient criminal provisions.

16In accordance with paragraph 1 of Article 6, ‘where a law providing for a lesser penalty has entered into force after the conviction has become final and before the enforcement in full of the custodial sentence or fine, the penalty imposed, if it exceeds the special upper limit provided for in the new law for the offence committed, shall be reduced to that upper limit’.

17Under Article 154(1):

‘The following limitation periods for criminal liability shall apply:

15 years, where the offence committed is punishable by life imprisonment or by a term of imprisonment of more than 20 years;

10 years, where the offence committed is punishable by a term of imprisonment of not less than 10 years and not more than 20 years;

8 years, where the offence committed is punishable by a term of imprisonment of not less than 5 years and not more than 10 years;

5 years, where the offence committed is punishable by a term of imprisonment of not less than 1 year and not more than 5 years;

3 years, where the offence committed is punishable by a term of imprisonment not exceeding 1 year or by a fine.’

18Article 155 used to provide:

‘1. The limitation period for criminal liability shall be interrupted by the performance in the proceedings of any procedural act.

2. Each interruption shall cause the limitation period to run afresh.

…’

19Decree-Law No 71 of 30 May 2022 ⁷ amended Article 155 of the Criminal Code of 2009. Paragraph 1 of that article has since been worded as follows: ‘the limitation period for criminal liability shall be interrupted by the performance in the proceedings of any procedural act which, by law, must be notified to the suspect or defendant’.

(c) Code of Criminal Procedure ⁸

20Under Article 426(b), an extraordinary appeal may be brought against a final criminal judgment where the defendant has been convicted despite evidence of the existence of a ground for discontinuance of the criminal proceedings.

(d) Judgment No 297/2018

21By judgment No 297/2018 of 26 April 2018, published on 25 June 2018, the Curtea Constituțională (Constitutional Court), upholding a plea of unconstitutionality, found that the interruption of the limitation period for criminal liability on account of the performance in the proceedings of any procedural act, as provided for in Article 155(1) of the Criminal Code of 2009, was unconstitutional.

22According to the Curtea Constituțională (Constitutional Court), that provision of the Criminal Code of 2009 lacked foreseeability and infringed the principle that offences and penalties must be defined by law, since the expression ‘any procedural act’ in that provision also covered acts which are not notified to the suspect or defendant. That circumstance prevented the suspect or defendant from knowing that the limitation period had been interrupted and that a new limitation period for criminal liability had begun to run. ⁹

23The Romanian legislature did not take steps to amend Article 155(1) of the Criminal Code of 2009 in the manner prescribed by the Curtea Constituțională (Constitutional Court), resulting in a body of inconsistent case-law of the ordinary courts on the interruption of limitation periods for criminal liability. ¹⁰

(e) Judgment No 358/2022

24By judgment No 358/2022 of 26 May 2022, published on 9 June 2022, the Curtea Constituțională (Constitutional Court), upholding a further plea of unconstitutionality, found that Article 155(1) of the Criminal Code of 2009 was unconstitutional.

25That court made the following observations.

The legislature had not taken steps, as required by Article 147(1) of the Constitution, to bring the provisions found to be unconstitutional in judgment No 297/2018 into line with the Constitution and to enact provisions governing cases in which the limitation period for criminal liability is interrupted.

In the absence of such legislative action, the judicial authorities could not themselves define the grounds for interrupting that limitation period. The application of Article 155(1) of the Criminal Code of 2009 lacked clarity and foreseeability, resulting in inconsistent judicial practice. The existing legal framework did not provide the legislative tools necessary to ensure the foreseeable application of Article 155(1) of the Criminal Code of 2009 following judgment No 297/2018.

Consequently, positive Romanian law did not provide for any ground for interrupting the limitation period for criminal liability between the date of publication of judgment No 297/2018 and the entry into force of an enactment of the legislature expressly governing the grounds for interrupting that period. ¹¹

(f) Judgment No 67/2022 of the Înalta Curte de Casație și Justiție (High Court of Cassation and Justice)

26By judgment No 67/2022 of 25 October 2022, published on 28 November 2022, the Înalta Curte de Casație și Justiție (High Court of Cassation and Justice), ruling on an appeal in the interest of the law, as thus described by the referring court, ¹² made the following findings.

The provisions on the interruption of limitation periods are rules of substantive criminal law. From the perspective of their temporal application, they are subject to the principle of non-retroactivity of offences and penalties, laid down in Article 3 of the Criminal Code of 2009, with the exception of more lenient provisions, in accordance with the lex mitior principle set out in Article 15(2) of the Romanian Constitution and Article 5 of the Criminal Code of 2009.

Between 25 June 2018 (the date of publication of judgment No 297/2018, as clarified by judgment No 358/2022) and 30 May 2022, Article 155(1) of the Criminal Code of 2009 did not provide for any ground for interrupting the limitation period for criminal liability.

A court adjudicating on an extraordinary appeal, based on the consequences of judgments No 297/2018 and No 358/2022, may not re-examine the limitation period for criminal liability if the appellate court has discussed and considered the effect of that ground for discontinuance of the criminal proceedings in the course of proceedings prior to judgment No 358/2022.

3. Legislation on the disciplinary regime for judges

27Article 99(ș) of Law No 303/2004 ¹³ provides that failure to comply with the judgments of the Curtea Constituțională (Constitutional Court) or the Înalta Curte de Casație și Justiție (High Court of Cassation and Justice) in appeals in the interest of the law constitutes a disciplinary offence.

28Article 271(s) of Law No 303/2022 ¹⁴ states that ‘the following shall constitute disciplinary offences: … the performance of duties in bad faith or as a result of gross negligence’.

29Under Article 272 of Law No 303/2022:

‘(1) A judge or prosecutor acts in bad faith where he or she knowingly infringes the rules of substantive or procedural law with the aim of causing detriment, or allowing detriment to be caused, to a person.

(2) A judge or prosecutor commits gross negligence where he or she commits a culpable, serious, unambiguous and inexcusable infringement of the rules of substantive or procedural law.

…’

II. Facts, dispute and questions referred for a preliminary ruling

30By judgment No 285/AP of 30 June 2020, ¹⁵ the Curtea de Apel Brașov (Court of Appeal, Brașov, Romania) finally convicted a number of individuals (C.O., C.I., L.N., K.A. and S.P.) of tax evasion and establishment of an organised crime group.

31As regards the offence of tax evasion, the trial court found that, in the course of 2010, the persons convicted had omitted, wholly or in part, to record in their accounts the commercial transactions carried out and the income earned from the sale to national customers of gas oil purchased under the excise duty suspension regime. That caused a loss to the tax authorities, both as regards VAT and excise duty on gas oil.

32The sentences imposed included imprisonment and the obligation to pay damages in respect of the tax loss, totalling 13964482 Romanian lei (RON) (approximately EUR 3240000), including VAT.

33Two of the persons convicted (K.A. and S.P.) are currently serving prison sentences pursuant to the judgment of 30 June 2020.

34The persons convicted brought an extraordinary appeal before the referring court (Article 426(b) of the Code of Criminal Procedure) against the judgment of 30 June 2020.

35In their extraordinary appeal, they seek to have that judgment set aside on the ground that they were convicted despite the expiry of the limitation period for criminal liability. They rely, in that regard, on judgments No 297/2018 and No 358/2022 of the Curtea Constituțională (Constitutional Court).

36The appellants put forward the following arguments.

The principle of the more lenient criminal law should be applied to them. In respect of the offences for which they were convicted, the more lenient law entailed a shorter limitation period for criminal liability, which expired before the case was finally concluded. The limitation period for criminal liability came to light after the final criminal judgment, as a result of judgment No 358/2022, by which the Curtea Constituțională (Constitutional Court) declared Article 155(1) of the Criminal Code of 2009 to be unconstitutional and held that, during the period following the publication of judgment No 297/2018, domestic criminal legislation contained no grounds for interrupting the limitation period for criminal liability.

The absence, in the period between the two judgments of the Curtea Constituțională (Constitutional Court), of grounds for interrupting the limitation period for criminal liability, as highlighted in judgment No 358/2022, in itself constitutes a more lenient criminal law. That more lenient criminal law should be applied to defendants who committed offences that were not finally judged before the date of publication of judgment No 297/2018. In those circumstances, if the grounds of interruption had not been taken into account, the 10-year limitation period set out in Article 154(1)(b) of the Criminal Code of 2009 would have expired before the judgment convicting them acquired the force of res judicata.

37In the context of the extraordinary appeal, the Ministerul Public – Direcția Națională Anticorupție (Public Prosecutor’s Office – National Anti-Corruption Directorate (‘DNA’), Romania) requested the referring court to submit a question to the Court of Justice for a preliminary ruling in order to ascertain whether Article 325 TFEU, Decision 2006/928 and Article 49 of the Charter must be interpreted as permitting the disapplication of the constitutional line of authority deriving from judgment No 358/2022. It contends that the implementation of that judgment entails a systemic risk of impunity in cases where EU law applies.

38The appellants, on the other hand, argued that EU law is not relevant in the present case, with the result that the request for a preliminary ruling is inadmissible. They also stated that the principle of the application of the more lenient criminal law has constitutional status and takes precedence over any rule of EU law.

39The referring court points out that, if it were to uphold the appellants’ claims, it would have to set aside their final convictions and discontinue the criminal proceedings, thereby preventing them from completing their sentences. On that basis, it sets out, in summary form, various reasons for disapplying in the present case the principle of the more lenient criminal law, guaranteed by the Romanian Constitution, the application of which would be contrary to EU law.

40In those circumstances the Curtea de Apel Brașov (Court of Appeal, Brașov) submits the following questions to the Court of Justice for a preliminary ruling:

Should Article 2 TEU, the second paragraph of Article 19(1) TEU and Article 4[(3)] TEU, read in conjunction with Article 325(1) TFEU, Article 2(1) of the PFI Convention, Articles 2 and 12 of the PFI Directive and Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, with reference to the principle of effective and dissuasive penalties in cases of serious fraud affecting the financial interests of the European Union, and applying [Decision 2006/928], with reference to the last sentence of Article 49(1) of the [Charter], be interpreted as precluding a legal situation, such as that at issue in the main proceedings, in which the [convicted] appellants seek, by means of an extraordinary appeal, to set aside a final judgment in criminal proceedings and request the application of the principle of the more lenient criminal law, which they allege was applicable in the course of the substantive proceedings and which would have entailed a shorter limitation period that would have expired before the case was finally concluded, but subsequently revealed by a decision of the national Constitutional Court which declared unconstitutional legislation on interrupting the limitation period for criminal liability (decision of 2022), on the ground that the legislature had failed to act to bring the legislation in question into line with another decision of the same Constitutional Court delivered four years earlier (decision of 2018) – by which time the case-law of the ordinary courts formed in application of the former decision had already established that the legislation in question was still in force, in the form understood as a result of the first decision of the Constitutional Court – with the practical consequence that the limitation period for all the offences in relation to which no final conviction had been handed down prior to the first decision of the Constitutional Court was reduced by half and the criminal proceedings against the defendants in question were consequently discontinued?

Should Article 2 TEU, on the values of the rule of law and respect for human rights in a society in which justice prevails, and Article 4(3) TEU, on the principle of sincere cooperation between the European Union and the Member States, applying [Decision 2006/928] as regards the commitment to ensure the efficiency of the Romanian judicial system, with reference to the last sentence of Article 49(1) of the [Charter], which enshrines the principle of the more lenient criminal law, be interpreted, in relation to the national judicial system as a whole, as precluding a legal situation, such as that at issue in the main proceedings, in which the convicted appellants seek, by means of an extraordinary appeal, to set aside a final judgment in criminal proceedings and request the application of the principle of the more lenient criminal law, which they allege was applicable in the course of the substantive proceedings and which would have entailed a shorter limitation period that would have expired before the case was finally concluded, but subsequently revealed by a decision of the national Constitutional Court which declared unconstitutional legislation on interrupting the limitation period for criminal liability (decision of 2022), on the ground that the legislature had failed to act to bring the legislation in question into line with another decision of the same Constitutional Court delivered four years earlier (decision of 2018) – by which time the case-law of the ordinary courts formed in application of the former decision had already established that the legislation in question was still in force, in the form understood as a result of the first decision of the Constitutional Court – with the practical consequence that the limitation period for all the offences in relation to which no final conviction had been handed down prior to the first decision of the Constitutional Court was reduced by half and the criminal proceedings against the defendants in question were consequently discontinued?

If so, and only if it is impossible to provide an interpretation in conformity with EU law, is the principle of the primacy of EU law to be interpreted as precluding national legislation or a national practice pursuant to which the ordinary national courts are bound by decisions of the national Constitutional Court and binding decisions of the national supreme court and may not, for that reason and at the risk of committing a disciplinary offence, of their own motion disapply the case-law resulting from those decisions, even if, in light of a judgment of the Court of Justice, they take the view that that case-law is contrary to Article 2 TEU, the second paragraph of Article 19(1) TEU and Article 4(3) TEU, read in conjunction with Article 325(1) TFEU, in application of [Decision 2006/928], with reference to the last sentence of Article 49[(1)] of the [Charter], as in the situation in the main proceedings?’

III. Procedure before the Court

41The request for a preliminary ruling was received at the Court on 22 February 2023, together with a request for the case to be dealt with under the expedited procedure.

42After receiving confirmation from the referring court that two of the appellants in the main proceedings were serving prison sentences pursuant to the judgment of 30 June 2020 and that they would have to be released if the extraordinary appeals filed against their convictions were upheld, the Court decided to deal with the request for a preliminary ruling under the urgent procedure.

43On 24 March 2023, the referring court sent the Court an addendum to its request for a preliminary ruling, which was notified to the interested parties so that they could take it into account in their observations.

44Written observations were submitted by four of the appellants in the main proceedings (C.O., C.I., L.N. and S.P.), the Romanian Government and the European Commission.

45The Romanian Government and the Commission took part in the hearing on 10 May 2023.

IV. Assessment

A. Admissibility

46I am in no doubt that the three questions referred for a preliminary ruling are admissible, but I am unsure whether the same can be said of the addendum sent by the referring court on 24 March 2023.

47In that addendum, the referring court asks the Court, if it answers the questions in the affirmative, to include reasons which would prevent the principle of non-discrimination set out in the Romanian Constitution from rendering the answer ineffective. ¹⁶

48The addendum in fact conceals a new, additional request for a preliminary ruling which, as C.I., C.O. and the Romanian Government point out, is hypothetical, ¹⁷ because it is not essential for the resolution of the main proceedings. The concerns behind it relate to judgments that have already been set aside by the Romanian courts pursuant to the case-law of the Curtea Constituțională (Constitutional Court). The appellants are not in that situation in the main proceedings.

B. First and second questions referred

49By its first two questions, which may be answered together, the referring court asks, in essence, whether, in factual and legal circumstances such as those described by it, Article 325(1) TFEU, read in conjunction with Article 2 of the PFI Convention, Decision 2006/928 and Article 49 of the Charter, precludes the national provisions and case-law on the interruption of limitation periods for criminal liability.

50Both questions start from the premiss that the application of domestic provisions in accordance with the constitutional case-law creates a risk that acts constituting serious fraud affecting the Union’s financial interests will go unpunished. Against that backdrop, the referring court’s reasoning cites, inter alia, the judgments of the Court in Åkerberg Fransson, ¹⁸Taricco and Others, ¹⁹M.A.S. and M.B. ²⁰ and Euro Box Promotion and Others. ²¹

1. Applicable provisions of EU law

51First of all, the PFI Directive, Article 12 of which lays down common rules on limitation periods for criminal liability in respect of offences constituting fraud affecting the Union’s financial interests, does not apply in the present case for the following reasons.

Those common rules concern offences committed after 6 July 2019 (Article 17). The conduct penalised in this dispute dates from 2010.

The PFI Directive governs serious offences against the common VAT system connected with the territory of two or more Member States which involve a total damage of over EUR 10000000 (Article 2(2)). The offences in this dispute involve lower amounts.

52For its part, Directive 2006/112/EC, ²² read in conjunction with Article 4(3) TEU, does indeed require Member States to combat VAT fraud, ²³ but it does not contain specific rules applicable to situations such as that in the main proceedings.

53As regards Article 2, the second subparagraph of Article 19(1) and Article 4(3) TEU, when considering the compatibility of national legislation and case-law with Article 325(1) TFEU, account may be taken of provisions of primary law establishing the principle of the protection of the Union’s financial interests.

54The same is true of the PFI Convention, which clarifies the principle established by Article 325 TFEU.

55In addition to Article 325 TFEU, Decision 2006/928 ²⁴ may also have a bearing on the answer. Although the offences punished here concern VAT fraud, the situation which arose as a result of the case-law of the Curtea Constituțională (Constitutional Court) on limitation periods for criminal liability also has an impact on corruption offences, particularly high-level ones, as the Commission noted in its 2022 CVM Report. ²⁵

56With those clarifications in mind, my analysis below will consider:

whether the Romanian constitutional case-law on the interruption of limitation periods for criminal liability is contrary to Article 325 TFEU and Decision 2006/928;

if so, whether the lex mitior principle enshrined in the last sentence of Article 49(1) of the Charter could be applied to that case-law; and

whether there exists in Romanian law a higher standard of protection of the lex mitior principle, to which the abovementioned constitutional case-law is related.

2. Article 325(1) TFEU and the case-law on the protection of the Union’s financial interests

57Pursuant to Article 325(1) TFEU, the Member States ‘shall counter fraud and any other illegal activities affecting the financial interests of the Union through measures … which shall act as a deterrent and be such as to afford effective protection in the Member States …’. ²⁶

58The Member States are obliged in particular to adopt the measures necessary to guarantee the effective and comprehensive collection of own resources, including revenue from the application of a uniform rate to the harmonised VAT assessment bases. ²⁷

59The reference in Article 325 TFEU to ‘fraud and any other illegal activities affecting the financial interests of the Union’ implies, according to the Court, ²⁸ that acts of corruption may be linked to cases of fraud and, conversely, the commission of fraud may be facilitated by acts of corruption. Financial interests can, in certain cases, be affected as a result of a combination of VAT fraud and acts of corruption. ²⁹

60The concept of ‘fraud’ defined in Article 1 of the PFI Convention ³⁰ covers revenue derived from applying a uniform rate to the harmonised VAT assessment bases determined according to EU rules. ³¹

61As indicated above, the individuals in this case were convicted of tax evasion and establishment of an organised crime group, offences committed in connection with VAT and excise duties on gas oil. There is therefore no doubt that Article 325(1) TFEU applies and that we are dealing with serious fraud affecting the Union’s financial interests: the amount defrauded exceeds EUR 50000 (Article 2(1) of the PFI Convention).

62When implementing Article 325(1) TFEU, Member States are free to choose the applicable penalties. They may take the form of administrative penalties, criminal penalties or a combination of the two. In any event, they must ensure that all VAT revenue is collected and, in doing so, that the Union’s financial interests are protected. Criminal penalties may be essential to combat certain serious cases of VAT evasion in an effective and dissuasive manner. ³²

63Romanian law lays down criminal penalties for fraud of that kind and, in the present reference for a preliminary ruling, there is no doubt that, as such, they are effective and dissuasive. It is also not in dispute that, in the abstract, the limitation periods ³³ established by the Criminal Code of 2009 for that category of offences are appropriate, ³⁴ that is to say, they are not a bar to the penalties being effective and dissuasive. Those periods exceed the minimum periods set out in Article 12 of the PFI Directive.

64The issue raised does not therefore concern penalties, as framed under Romanian law, or the limitation periods established by the Criminal Code of 2009, but rather the legal impossibility of interrupting those periods following two judgments of the Curtea Constituțională (Constitutional Court).

65For the highest Romanian courts, the limitation periods for criminal liability are, under Romanian law, a component of substantive law (and not, therefore, of procedural law). As I will examine below, that premiss is not contrary to EU law.

66The consequence of those judgments and of the national legislature’s inertia was that, for a time, ³⁵ no act adopted in the course of criminal proceedings was capable of interrupting the limitation periods for criminal liability. The cessation of existence of the grounds for interruption is regarded as a ‘more lenient criminal law’ for the purposes of Article 15(2) of the Romanian Constitution and Article 5 of the Criminal Code of 2009. Despite the inconsistent case-law of the lower courts, that is the interpretation of Romanian law which the Court must abide by as regards that interval of time, since it is the binding interpretation of the Curtea Constituțională (Constitutional Court) deriving from judgments No 297/2018 and No 358/2022 and of the Înalta Curte de Casație și Justiție (High Court of Cassation and Justice) deriving from judgment No 67/2022, delivered in the interest of the law.

67Consequently, persons who have been convicted of serious fraud affecting the Union’s financial interests and of other offences ³⁶ may have their convictions set aside and be released: it will suffice if, between the commission of the acts and the final judgment imposing the penalties, the limitation periods provided for in the Criminal Code of 2009 expired (without the possibility of taking any ground for interruption into account).

68The referring court ³⁷ favours an interpretation of domestic law enabling the existence of a ‘more lenient criminal law’ to be excluded in this dispute. ³⁸ That is, however, a matter for the referring court alone. The possibility of interpreting national law in conformity with EU law, even if it involves departing from the case-law of a higher court, is limited by the fact that interpretations of national law contra legem are not permitted. ³⁹

69For my part, I do not see how the relevant domestic provisions and constitutional case-law on the interruption of limitation periods for criminal liability between 2018 and 2022 could be interpreted in a manner that does not conflict with the decisions of the Curtea Constituțională (Constitutional Court). Those decisions definitively state the law which applies in Romania and the precedents set are the ‘last word’ on national law. ⁴⁰

70Having ruled out the possibility of any other interpretation, the question which arises is whether national law, resulting from the relevant provisions and the constitutional case-law interpreting those provisions, infringes the obligation to punish cases of serious fraud affecting the Union’s financial interests by means of effective and dissuasive criminal penalties. In the order for reference, the referring court takes the view that it does.

71Based on the information available in the present preliminary ruling procedure, that assessment could be regarded as well founded if, during the period under consideration, the situation in Romania resulted in a considerable number of offences affecting the Union’s financial interests going unpunished, in terms which are not compatible with Article 325(1) TFEU.

72According to the Court, the obligation to counter illegal activities affecting the Union’s financial interests through effective and deterrent measures has direct effect. Article 325(1) TFEU imposes on Member States a precise obligation as to the result to be achieved that is not subject to any condition. ⁴¹

73It is for each Member State to ensure that the rules applicable to offences affecting the Union’s financial interests are not designed in such a way that they present a systemic risk of impunity. They must do so, however, in a manner ensuring that the fundamental rights of the accused are protected. ⁴²

74As is apparent from the order for reference, the Romanian legislature failed to fulfil that obligation for almost four years, by failing to amend Article 155(1) of the Criminal Code of 2009 following judgment No 297/2018 of the Curtea Constituțională (Constitutional Court). In the end, the amendment was made by Decree-Law No 71/2022 but, during the period which elapsed between that judgment and the decree-law, a large number of serious offences went unpunished, to the detriment of the Union’s financial interests, on account of the retroactive effect of the lex mitior.

3. Decision 2006/928 and the systemic risk of impunity

75Decision 2006/928 is an act adopted by the Commission on the basis of the Act of Accession, which forms part of EU primary law. More specifically, it is a decision within the meaning of the fourth paragraph of Article 288 TFEU.

76The Commission’s reports to the European Parliament and to the Council, drawn up under the Cooperation and Verification Mechanism (CVM) established by Decision 2006/928, must also be regarded as acts adopted by an EU institution having as their legal basis Article 2 of that decision. ⁴³

77The Court has already examined the nature and legal effects of Decision 2006/928, pointing out that that decision is binding in its entirety on Romania as long as it has not been repealed.

78The benchmarks in the annex to Decision 2006/928 are intended to ensure that Romania complies with the value of the rule of law (Article 2 TEU) and are binding on it: Romania is required to take the appropriate measures to meet those benchmarks, taking due account, under the principle of sincere cooperation (Article 4(3) TEU), of the reports drawn up by the Commission and the recommendations made in those reports. ⁴⁴

79In particular, Decision 2006/928 established the CVM and laid down the benchmarks, referred to in Article 1 and detailed in the annex thereto, in the areas of reform of the judicial system and the fight against corruption in Romania. Those benchmarks are binding, with the result that Romania is subject to the specific obligation to address them and to refrain from implementing any measure which could jeopardise their being met. ⁴⁵

80The referring court points out that the Romanian courts are discontinuing criminal proceedings, including as a result of extraordinary appeals, on account of the grounds for interrupting the limitation periods for criminal liability ceasing to exist between 2018 and 2022, as a result of the case-law of the Curtea Constituțională (Constitutional Court).

81In that context, it recalls that the 2022 CVM Report found that the situation at issue could have a ‘substantial impact on ongoing pre-trial and court proceedings’, possibly with ‘serious consequences’ arising from the ‘removal of criminal liability in a substantial number of cases’. ⁴⁶ That is why the referring court is of the view that the situation affects the entire Romanian judicial system.

82The situation described by the referring court and in the 2022 CVM Report reveals a risk of impunity in Romania for offences of serious fraud affecting the Union’s financial interests (and for high-level corruption offences, which often go hand in hand) during the period from 2018 to 2022, although no precise figure is put on the number of cases affecting those financial interests. That risk arises from the absence of grounds for interrupting the limitation periods for criminal liability (and, at the same time, from the excessive length of the corresponding criminal proceedings, beyond the limitation period).

83It is for the referring court to determine whether, as a question of fact, on account of the case-law of the Curtea Constituțională (Constitutional Court), there is a systemic risk in Romania of offences of serious fraud affecting the Union’s financial interests and related corruption offences going unpunished. If there is, Romania would not fulfil the specific obligation to address the benchmarks set out in the annex to Decision 2006/928 (in particular, the benchmarks concerning the fight against corruption).

4. Article 49 of the Charter and the more lenient criminal law

84Like Decision 2006/928, Article 325(1) TFEU has direct effect. Under the principle of the primacy of EU law, those provisions render automatically inapplicable any conflicting provision of national law. ⁴⁷

85‘It is … for the competent national courts to give full effect to the obligations under Article 325(1) and (2) TFEU and to disapply national provisions, including rules on limitation, which, in connection with proceedings concerning serious VAT infringements, prevent the application of effective and deterrent penalties to counter fraud affecting the financial interests of the Union’. ⁴⁸

86In the proceedings at issue, Article 325(1) TFEU and Decision 2006/928 apply, that is to say, ‘EU law is implemented’ for the purposes of Article 51(1) of the Charter.

87Based on that premiss, the referring court will have to satisfy itself that the fundamental rights guaranteed by the Charter (in this case, the fundamental rights of the persons convicted) are respected. If, in the light of the foregoing, it decides not to apply the national case-law on the non-existence of grounds for interrupting the limitation period for criminal liability between 2018 and 2022, it must do so within the confines of the Charter, which is of no lesser value than Article 325(1) TFEU. ⁴⁹

88The obligation to ensure effective recovery of the Union’s own resources does not relieve national courts of their duty to ensure respect for the fundamental rights guaranteed by the Charter, where they are dealing with criminal proceedings for VAT offences in which EU law is being implemented. ⁵⁰

89In that context, the fundamental right that could justify maintaining and applying the Romanian constitutional case-law in question is that enshrined in the last sentence of Article 49(1) of the Charter: the retroactivity of the more lenient criminal law or lex mitior.

90The obligation to protect the Union’s own resources in the field of VAT cannot, I repeat, relieve the national courts of their obligation to apply the lex mitior, as a principle linked to the principle of the legality of criminal offences and penalties, which is a crucial component of the rule of law. The rule of law is, in turn, one of the primary values on which the European Union is founded (Article 2 TEU).

91Under Article 49(1) of the Charter, ‘… a heavier penalty [shall not] be imposed than the one that was applicable at the time the criminal offence was committed. If, subsequent to the commission of a criminal offence, the law provides for a lighter penalty, that penalty shall be applicable’.

92The principle of the retroactivity of the more lenient criminal law, enshrined in those terms in the Charter, is part of EU primary law ⁵¹ and features in international treaties concluded by the Member States of the European Union. ⁵²

93According to the Court, ‘the application of the more lenient criminal law necessarily involves a succession of laws over time and is based on the conclusion that the legislature changed its position either on the criminal classification of the act or the penalty to be applied to an offence’. ⁵³

94The lex mitior principle is intended to be an exception to the prohibition on the retroactive application of criminal provisions. In so far as retroactivity in bonam partem favours the defendant, it cannot be argued that enforcement of the subsequent criminal law infringes the principle that offences and penalties must be defined by law (nullum crimen, nulla poena sine lege). Quite simply, the former law, in force when the acts constituting the offence took place, retroactively gives way to the new law and thus improves the situation in criminal terms of the defendant (or the person convicted).

95Although its foundations are disputed, the lex mitior principle is based on the consideration that a person should not be convicted or kept in detention for conduct which, in the (revised) view of the legislature, is no longer deserving of the punishment provided for under the previous law. Thus, that person enjoys the benefit of the revised assessment of the legislature. ⁵⁴

96It follows from the Explanations relating to the Charter (Article 52(3)) that the right recognised in Article 49 has the same meaning and scope as that guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms (‘the ECHR’).

97Since the ECHR did not expressly include that principle, the European Court of Human Rights (‘the ECtHR’) – in line with the case-law of the Court – inferred it from Article 7 thereof. ⁵⁵

98According to the ECtHR:

‘Inflicting a heavier penalty for the sole reason that it was prescribed at the time of the commission of the offence would mean applying to the defendant’s detriment the rules governing the succession of criminal laws in time. In addition, it would amount to disregarding any legislative change favourable to the accused which might have come in before the conviction and continuing to impose penalties which the State – and the community it represented – now considered excessive’. ⁵⁶

‘… the obligation to apply, from among several criminal laws, the one whose provisions were the most favourable to the accused was a clarification of the rules on the succession of criminal laws, which was in accord with another essential element of Article 7 [ECHR], namely the foreseeability of penalties’. ⁵⁷

The principle of retroactivity implies that ‘where there were differences between the criminal law in force at the time of the commission of the offence and subsequent criminal laws enacted before a final judgment was rendered, the courts were required to apply the law whose provisions were most favourable to the defendant’. ⁵⁸

99To date, however, neither the ECtHR nor the Court has precisely defined the exact scope of the lex mitior principle in cases such as the one here. The present reference for a preliminary ruling affords the Court the opportunity to develop its case-law with a view to determining whether it follows from the last sentence of Article 49(1) of the Charter that:

the lex mitior principle applies to limitation periods for criminal liability and their grounds for interruption;

an amendment to criminal legislation and the case-law of a national constitutional court are on the same footing for the purposes of applying the lex mitior;

the lex mitior principle applies only to criminal proceedings in which a final judgment has not yet been handed down or, on the contrary, applies also to criminal proceedings concluded by judgments having the force of res judicata (thus affecting penalties at the stage of enforcement).

100The truth is that the constitutional traditions of the Member States have ‘little in common’ when it comes to the lex mitior principle. Some countries make almost no provision for that basic criminal safeguard, while others confer on it extensive, even constitutional, protection (including Portugal, Romania, Italy and Spain). In my view, the Court should establish an independent, specific standard of protection under the last sentence of Article 49(1) of the Charter, offering its beneficiaries high safeguards and not only de minimis protection.

(a) Lex mitior and interruption of the limitation period for criminal liability

101The last sentence of Article 49(1) of the Charter refers to the retroactivity of the law providing for ‘a lighter penalty’. As indicated above, the Court has stated that the application of the more lenient criminal law is based on the conclusion that the legislature changed its position ‘either on the criminal classification of the act or the penalty to be applied to an offence’. ⁵⁹

102Those two references are not decisive, but they indicate that the lex mitior principle under the Charter applies only to rules of substantive criminal law, not to rules of criminal procedure.

103If that is so, it will be necessary to determine in each case whether the limitation periods and their interruptions are substantive in nature or purely procedural, for the purposes of Article 49 of the Charter. That distinction is important because the rules of criminal procedure normally abide by the maxim tempus regit actum.

104According to the case-law of Romania’s highest courts, in Romania, the rules governing limitation periods in criminal law are substantive in nature. Nothing in EU law precludes that national case-law, as the Court acknowledged in its judgment in M.A.S. and M.B.

105The protection of the Union’s financial interests by the enactment of criminal penalties falls within the shared competence of the European Union and the Member States within the meaning of Article 4(2) TFEU.

106At the material time, the limitation rules applicable to VAT-related criminal proceedings had not been harmonised by the EU legislature. ⁶⁰ Member States were free to provide that, in their legal systems, the rules on limitation periods for criminal liability and their interruptions were to fall under substantive criminal law. ⁶¹

107In the absence of harmonisation of the rules on limitation periods for criminal liability in respect of offences affecting the Union’s financial interests, it is therefore for the law of each Member State to determine whether the limitation rules are of a procedural or substantive nature. ⁶²

108It is true that, in its judgment in Taricco, the Court decided that the rules on limitation periods for criminal liability were procedural in nature, as the ECtHR had indicated. ⁶³ In other cases, however, the Court has taken a different view with regard to limitation periods. ⁶⁴

109The ECtHR had tended, in its case-law, to regard those rules as being procedural in nature, in so far as they do not define offences or the penalties which they attract, but merely lay down a precondition for the investigation of the case. ⁶⁵ However, the ECtHR has found that Article 7 ECHR is infringed where a defendant is convicted of an offence which is already time-barred. ⁶⁶

110In its judgment in M.A.S. and M.B., ⁶⁷ the Court (rightly in my view) provided the following nuances to the judgment in Taricco.

It referred to the case-law of the ECtHR on Article 7(1) ECHR, according to which provisions of criminal law must comply with certain requirements of accessibility and foreseeability, as regards both the definition of the offence and the determination of the penalty. ⁶⁸

It made clear that the condition that the applicable law must be precise implies that legislation must clearly define offences and the penalties which they attract. That condition is met where the individual is in a position, on the basis of the wording of the provision and if necessary with the help of the interpretation made by the courts, to know which acts or omissions will make him or her criminally liable. ⁶⁹

It pointed out that the requirements of foreseeability, precision and non-retroactivity inherent in the principle that offences and penalties must be defined by law apply also (in Italy) to the limitation rules for criminal offences relating to VAT.

111In the light of the judgment in M.A.S. and M.B., my view is that as long as there is no harmonisation in EU law, ⁷⁰ each Member State may continue to accord substantive status to the rules governing limitation periods for criminal liability (including, of course, those governing the interruption of limitation periods). By the same token, such rules are subject to the lex mitior principle set out in the last sentence of Article 49(1) of the Charter.

(b) Lex mitior and decisions of the constitutional courts

112In addition to finding that limitation periods for criminal liability form part of substantive criminal law, the Curtea Constituțională (Constitutional Court) declared that Article 155 of the Criminal Code of 2009, concerning the interruption of limitation periods, was unconstitutional. As a result of that case-law, between 25 June 2018 and 30 May 2022, those periods ran without any possibility of interruption.

113It could be argued that the decisions of a constitutional court are not a ‘more lenient criminal law’, as they are not, strictly speaking, legislative measures adopted by a Member State. However, I think that that objection must be overruled.

114The Curtea Constituțională (Constitutional Court), in declaring that Article 155 of the Criminal Code of 2009 was unconstitutional, acted as a ‘negative legislature’. ⁷¹ In States with a concentrated constitutional review, declarations that laws are unconstitutional have a value and a binding force analogous to the laws themselves which are declared to be inapplicable (and, where appropriate, invalid) in whole or in part on the ground that they are incompatible with the national constitution. In those countries, declarations that laws are unconstitutional have erga omnes effect and entail the disappearance in whole or in part of such laws from the legal order (Spain, Poland, Portugal, Lithuania, Romania, Germany and Italy).

115As such, for the purposes of the retroactive application of the lex mitior, I see no difference between the repeal in whole or in part of a criminal law by another subsequent law (by decision of the legislature) and the expulsion from the legal order, also in whole or in part, of that law by a declaration of unconstitutionality (by decision of a constitutional court). ⁷²

116Accordingly, a declaration of unconstitutionality such as the one made by the Curtea Constituțională (Constitutional Court) in judgments No 297/2018 and No 358/2022 is tantamount, in substance, to a legislative amendment for the purposes of applying the lex mitior principle. Such a declaration is binding on all public authorities, including the courts, ⁷³ although the latter continue to have jurisdiction to assess whether or not a national provision which a constitutional court has declared to be consistent with the Constitution is compatible with EU law. ⁷⁴

117In the present case, judgments No 297/2018 and No 358/2022 of the Curtea Constituțională (Constitutional Court) settle a question of Romanian constitutional law and do not rule on its compatibility with EU law or ‘challenge’ the primacy of EU law.

118Where the Court of Justice refers to the ‘succession of laws over time’, the word ‘laws’ is used in a broad sense. Naturally, that term includes laws enacted by the Member State’s legislative bodies, but it also covers changes to those laws as a result of declarations of unconstitutionality made by a constitutional court. To my mind, that statement is more consistent with the obligation to refrain from interpreting the rights protected by the Charter in such a way as to restrict their essence.

119My proposed interpretation is not at variance with the ECtHR’s judgment in Ruban v. Ukraine. That case concerned a possible breach of the lex mitior principle by the Ukrainian State as a result of a judgment of its constitutional court. Although the ECtHR found that Article 7 ECHR had not been infringed, it examined the declaration of unconstitutionality as if it were a legislative change, without asserting that that constitutional case-law did not entail a succession of ‘laws’ over time. ⁷⁵

(c) Lex mitior and final criminal judgments

120In its judgment in Scoppola v. Italy, the ECtHR appeared inclined to limit the application of the lex mitior to criminal proceedings in which a final judgment has not yet been handed down. ⁷⁶ However, in a number of subsequent cases, it has also extended that principle to final judgments, provided that national law envisages such a possibility. ⁷⁷

121At first sight, it might be thought that the Court of Justice has also limited the lex mitior principle to cases where final judgment has not yet been handed down. ⁷⁸ I think, however, that that reaction would be overly hasty given that the national legislation at issue in the judgment in Delvigne afforded convicted persons the possibility of a reassessment, in accordance with the new law, of the situation resulting from a prior final criminal conviction.

122In my view, the lex mitior should also apply to final criminal judgments in the process of enforcement. I admit that that is not the case in all EU Member States, although it is the approach taken by some of them. ⁷⁹ Even in Member States where, as a general rule, the lex mitior does not apply to criminal judgments having the force of res judicata, there are many exceptions to that rule. Thus, it is often the case that the retroactive effect in melius is extended to such judgments where provision is made to that effect in new criminal legislation, where conduct is decriminalised, ⁸⁰ or where a constitutional court declares a criminal law to be unconstitutional. ⁸¹

123In any event, the principle set out in the last sentence of Article 49(1) of the Charter has an autonomous meaning, not dependent on the multiple approaches taken by the Member States, and the level of protection which it must provide is a high one and not only de minimis, as I have already suggested.

124It would be illogical if the legislature’s revised values (or punitive criteria) applied only to defendants or the accused and not to persons who, for similar acts, are serving final sentences. The lack of logic is most striking where conduct which has already been punished is decriminalised by a later law (abolitio criminis). It would be anathema to right-minded legal consciousness if, in such a situation, purely temporal reasons were to dictate that persons finally convicted of such conduct should remain in prison, while the perpetrators of the same conduct, still awaiting judgment, escape criminal liability.

125The same criterion of fairness and consistency which the lex mitior entails for defendants or accused may be transposed to persons who have already been convicted. It is unreasonable, I repeat, for two persons who committed similar acts on the same day to benefit – or not – from that principle simply because criminal proceedings were concluded more swiftly in respect of one of them, resulting in a final conviction, while they were more protracted in respect of the other, not yet finally convicted.

126The rationale behind the principle of the retroactivity of the more lenient criminal law must also apply to final criminal judgments, so as to avoid inconsistencies such as that mentioned above. It is true, however, that that approach would require there to be a procedure for reviewing convictions having the force of res judicata, but that does not seem to me to be an insurmountable obstacle. It is not an obstacle where conduct previously classified as a criminal offence is decriminalised and I see no reason why it should be in other cases involving a succession of laws over time. ⁸²

127In order for final judgments to be reviewed as a consequence of the lex mitior, domestic law must provide a procedural mechanism enabling such review to take place, at the request of the convicted person. In Romania, that mechanism is, according to the order for reference, the extraordinary appeal provided for in Article 426(1)(b) of the Romanian Code of Criminal Procedure, subject to the limits set out in judgment No 67/2022 of the Înalta Curte de Casație și Justiție (High Court of Cassation and Justice).

(d) Interim conclusion

128In short, I propose an interpretation of the principle of the retroactivity of the more lenient criminal law, enshrined in the last sentence of Article 49(1) of the Charter, which:

covers the rules governing the interruption of limitation periods for criminal liability where national criminal law accords substantive status to those rules;

treats amendments to criminal legislation as a result of a declaration of unconstitutionality made by a national constitutional court in the same way as the succession of criminal laws over time; and

applies to ongoing criminal proceedings and final judgments where provided for by national law and even generally.

129In the present case, the principle of the retroactivity of the more lenient criminal law, established by the last sentence of Article 49(1) of the Charter, justifies releasing from criminal liability convicted persons who, in the past, had been subject to rules governing the interruption of limitation periods for criminal liability which were subsequently declared unconstitutional, provided that areas to which EU law applies are at play. That release from criminal liability therefore covers offences of serious fraud affecting the Union’s financial interests, contrary to Article 325 TFEU and Decision 2006/928.

130Consequently, EU law does not require, in a situation such as the one described above, that the case-law of the Curtea Constituțională (Constitutional Court) at issue be disapplied, even though its effects may result in the perpetrators of some of those offences going unpunished.

5. Higher standard of protection of the lex mitior principle in Romanian law

131If the Court were to disagree with my proposed approach and take the view that the retroactivity of the more lenient criminal law under the last sentence of Article 49(1) of the Charter does not apply in this case, it would be necessary to consider whether Romanian law provides for a higher standard of protection of the lex mitior principle.

132A court of a Member State may be confronted, as here, with a situation in which it is called on to assess the compatibility with fundamental rights of a national provision or measure implementing EU law within the meaning of Article 51(1) of the Charter.

133Where, in that context, Member States’ actions are not entirely determined by EU law, Article 53 of the Charter confirms that national authorities and courts remain free to apply national standards of protection of fundamental rights.

134In Romanian law, the national standard of protection of the principle of retroactivity of the more lenient criminal law is set by Article 15(2) of the Constitution and Article 5(1) of the Criminal Code of 2009, the scope of which has been defined by the Curtea Constituțională (Constitutional Court).

135As I have already pointed out, according to the case-law of the Curtea Constituțională (Constitutional Court) and the Înalta Curte de Casație și Justiție (High Court of Cassation and Justice), the rules governing limitation periods for criminal liability and those governing the interruption of those periods are substantive in nature and are therefore subject to the lex mitior principle. ⁸³

136Judgments No 297/2018 and No 358/2022 of the Curtea Constituțională (Constitutional Court) made clear that, between 25 June 2018 and 30 May 2022, there were no grounds for interrupting the limitation periods for criminal liability, in accordance with that principle.

137If that national standard of protection of the principle of the retroactivity of the more lenient criminal law, established by Romanian law, is to apply, the Court of Justice requires two conditions to be met: ⁸⁴

the level of protection provided for by the Charter, as interpreted by the Court, must not be compromised; and

the primacy, unity and effectiveness of EU law must also not be compromised.

138EU law has not established any specific rules as regards the first condition. The application of the Romanian standard of protection does not therefore compromise the level of protection provided for by the last sentence of Article 49(1) of the Charter.

139Determining whether the standard of protection of the lex mitior principle provided for by Romanian law compromises the unity, primacy and effectiveness of EU law is a more difficult task, as the precedents set by the judgments in M.A.S. and M.B., on the one hand, and Euro Box Promotion, on the other, are not easily reconciled.

140In its judgment in M.A.S. and M.B., the Court:

acknowledged that the Italian Republic was, at that time, free to provide that, in its legal system, the rules governing limitation periods for criminal liability, like the rules on the definition of offences and the determination of penalties, form part of substantive criminal law, and are thereby, like those rules, subject to the principle that offences and penalties must be defined by law; ⁸⁵

pointed out that the Italian Republic was entitled to apply a higher national standard of protection of the principle that offences and penalties must be defined by law than the standard established by EU law, provided that it did not compromise the unity, primacy and effectiveness of EU law; ⁸⁶

stated that, in the light of the arguments of the Italian Constitutional Court concerning the negative effects of applying the judgment in Taricco for the principle that offences and penalties must be defined by law established by the Italian Constitution, it is for the national court to ascertain whether the disapplication of the provisions of the Criminal Code (which prevented the imposition of effective and deterrent criminal penalties in a significant number of cases of serious fraud affecting the Union’s financial interests) led to a situation of uncertainty in the Italian legal system as regards the determination of the applicable limitation rules, in breach of the principle that offences and penalties must be defined by law; ⁸⁷

found that, if the national court were to come to the view that the obligation to disapply the provisions of the Criminal Code governing limitation periods for criminal liability conflicts with the principle that offences and penalties must be defined by law, it would not be obliged to comply with that obligation, even if compliance with the obligation allowed a national situation incompatible with EU law to be remedied. ⁸⁸

141The Court thus accepted a limit on the application of the principle of the primacy of EU law: national courts may apply domestic provisions which are contrary to EU law in order to protect a fundamental right (that offences and penalties must be defined by law) guaranteed to a higher standard under national law than the standard set under EU law. ⁸⁹

142The judgment in M.A.S. and M.B. does not therefore require national courts to give absolute priority to the protection of the Union’s financial interests, to the point that they are given precedence over a fundamental right such as the principle that offences and penalties must be defined by law.

143In its judgment in Euro Box Promotion, the Court examined Romanian constitutional legislation and case-law ⁹⁰ which, like that Italian law considered in the judgment in M.A.S. and M.B., were capable of giving rise to a systemic risk of acts constituting serious fraud affecting the Union’s financial interests going unpunished, to the detriment of the obligation laid down in Article 325(1) TFEU. At the end of that analysis, it made the following findings.

The referring court must ensure the necessary observance of the fundamental rights enshrined in the first sentence of the second paragraph of Article 47 of the Charter, namely the entitlement of everyone to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law.

‘… an irregularity committed during the composition of panels [of a court] entails an infringement of the first sentence of the second paragraph of Article 47 of the Charter, particularly when that irregularity is of such a kind and of such gravity as to create a real risk that other branches of the State, in particular the executive, could exercise undue discretion undermining the integrity of the outcome of the panel composition process and thus give rise to a reasonable doubt in the minds of individuals as to the independence and the impartiality of the judge or judges concerned’. ⁹¹

The practice concerning the specialisation and the composition of the panels hearing cases in Romania related to corruption did not constitute an infringement of the first sentence of the second paragraph of Article 47 of the Charter, with the result that the situation was different from the one decided on by the judgment in M.A.S. and M.B. Accordingly, ‘… the requirements arising from the first sentence of the second paragraph of Article 47 of the Charter do not preclude the non-application of the [constitutional] case-law’. ⁹²

Romanian constitutional legislation and case-law concerning the requirement that judgments on appeal in corruption cases must be given by panels all the members of which were selected by the drawing of lots may constitute a national standard of protection of fundamental rights. ⁹³

Such a national standard of protection could compromise the primacy, unity and effectiveness of EU law, in particular Article 325(1) TFEU, read in conjunction with Article 2 of the PFI Convention, and Decision 2006/928, because it would entail a systemic risk of acts constituting serious fraud affecting the Union’s financial interests or corruption in general going unpunished. ⁹⁴

144In my view, the present dispute more closely resembles the dispute giving rise to the judgment in M.A.S. and M.B. than that giving rise to the judgment in Euro Box Promotion. In the latter judgment, the Court did not find that the first sentence of the second paragraph of Article 47 of the Charter had been infringed by the practice concerning the composition of the panels of the Înalta Curte de Casație și Justiție (High Court of Cassation and Justice) specialising in corruption, which the Curtea Constituțională (Constitutional Court) declared to be unconstitutional. Nor did Romanian law contain a clear national standard of protection of the right to an independent tribunal previously established by law. In response to a question from the Court, one of the parties at the hearing suggested that it did, but the Romanian Government and the Commission denied that that was the case. ⁹⁵

145In any event, a claim of a systemic risk of serious offences affecting the Union’s financial interests going unpunished does not seem to me to justify restricting a fundamental right such as the retroactive application of the more lenient criminal law, where the standard of protection of that right in the constitutional system of a Member State is higher than the standard set by the last sentence of Article 49(1) of the Charter.

146In short, if the Court does not endorse my proposed interpretation of the last sentence of Article 49(1) of the Charter, I submit that the case-law of the Curtea Constituțională (Constitutional Court) on the non-existence of the limitation periods for criminal liability between 2018 and 2022 established a higher national standard of protection of the principle of the retroactivity of the more lenient criminal law than the standard set by that article of the Charter.

147It is true that the application of that national standard may entail a risk of impunity for persons who have been tried for serious fraud affecting the Union’s financial interests, as I have already examined and as the referring court points out.

148However, the precedent set in the judgment in M.A.S. and M.B. gave rise to the same risk of impunity and I see no reason why it should be avoided in the present case. The national standard of protection of the lex mitior principle is clearly higher here, as it was in the judgment in M.A.S. and M.B., unlike in that in Euro Box Promotion.

149The Union’s financial interests undoubtedly warrant protection, but that protection cannot override the protection of a fundamental right such as that represented by the principle of the retroactivity of the more lenient criminal law.

150Fundamental rights in a community based on the rule of law such as the European Union are no less important than its financial interests. Put another way, the protection of the Union’s financial interests cannot come at the cost of infringing fundamental rights.

151If the application of Article 325 TFEU and of the provisions implementing it is defective and a systemic risk of impunity arises in one or more States, the European Union has other legal mechanisms at its disposal to deal with that situation, such as infringement proceedings. It does not seem to me to be compatible with the value of the rule of law enshrined in Article 2 TEU to diminish the level of protection of the lex mitior principle in order better to safeguard the Union’s financial interests.

152Accordingly, the primacy of EU law does not take effect in this case and the referring court does not have to disapply the case-law of the Curtea Constituțională (Constitutional Court) to ensure compliance with Article 325(1) TFEU and Decision 2006/928. In fact, it is required to abide by that case-law in order to preserve the higher standard of protection of the lex mitior principle in Romanian law, which, by its very nature, favours the perpetrators of criminal offences.

153That approach is also the most compatible with the principle that offences and penalties must be defined by law and with its requirements of foreseeability and precision of the applicable criminal law. ⁹⁶ The judgments of the Curtea Constituțională (Constitutional Court), supplemented by the judgment of the Înalta Curte de Casație și Justiție (High Court of Cassation and Justice), clarified the rules governing the interruption of limitation periods for criminal liability laid down in Article 155(1) of the Criminal Code of 2009 after a period during which the ordinary courts had expressed doubts. Disapplying that case-law would generate fresh uncertainty as to the interruption of limitation periods for criminal liability between 2018 and 2022.

C. Third question referred

154The referring court submits its third question in the event that the Court answers the first two questions in the affirmative (and only if an interpretation in conformity with EU law cannot be provided).

155As I propose that the first two questions be answered in the negative, there is no need to address the third question. I will nevertheless do so in case the Court takes a different view.

156The Court’s previous rulings on certain aspects of the Romanian judicial system ⁹⁷ enable an answer to be given to this last question. In its third question, the referring court stresses that judges may be disciplined if they depart from the case-law of the Curtea Constituțională (Constitutional Court) on the ground that it is inconsistent with EU law.

157As pointed out by the referring court ⁹⁸ and the Romanian Government, Article 99(ș) of Law No 303/2004, which treated a failure to comply with the judgments of the Curtea Constituțională (Constitutional Court) or the Înalta Curte de Casație și Justiție (High Court of Cassation and Justice) in appeals in the interest of the law as a disciplinary offence, was repealed following the judgment in RS.

158However, in judgment No 520/2022 of 9 November 2022, the Curtea Constituțională (Constitutional Court) held that a failure by judges to observe the judgments of the Curtea Constituțională (Constitutional Court) or the Înalta Curte de Casație și Justiție (High Court of Cassation and Justice) may give rise to a disciplinary penalty if the judge in question acted in bad faith or as a result of gross negligence. The referring court is uncertain whether that new disciplinary regime is compatible with EU law.

159The judgments in Eurobox Promotion and RS contain sufficient pointers to be able to answer that question. I will therefore confine myself to reproducing some of the considerations set out therein:

‘… the safeguarding of the independence of the courts cannot, in particular, have the effect of totally excluding the possibility that the disciplinary liability of a judge may, in certain entirely exceptional cases, be triggered as a result of judicial decisions adopted by him or her. Such a requirement of independence is clearly not intended to support any serious and totally inexcusable forms of conduct on the part of judges, which would consist, for example, in infringing deliberately and in bad faith, or as a result of particularly serious and gross negligence, the national and EU law with which they are supposed to ensure compliance, or in acting arbitrarily or denying justice when they are called upon, as guardians of the duty of adjudicating, to rule in disputes which are brought before them by individuals’. ⁹⁹

‘However, it appears essential, in order to preserve the independence of the courts and to prevent the disciplinary regime from being diverted from its legitimate purposes and being used to exert political control over judicial decisions or pressure on judges, that the fact that a judicial decision contains a possible error in the interpretation and application of national and EU law, or in the assessment of the facts and the appraisal of the evidence, cannot in itself trigger the disciplinary liability of the judge concerned’. ¹⁰⁰

‘… Article 2 and the second subparagraph of Article 19(1) TEU must be interpreted as precluding national rules or a national practice under which any failure to comply with the decisions of the national constitutional court by a national judge can trigger his or her disciplinary liability’. ¹⁰¹

‘The second subparagraph of Article 19(1) TEU, read in conjunction with Article 2 and Article 4(2) and (3) TEU, with Article 267 TFEU and with the principle of the primacy of EU law, must be interpreted as precluding national rules or a national practice under which a national judge may incur disciplinary liability on the ground that he or she has applied EU law, as interpreted by the Court, thereby departing from case-law of the constitutional court of the Member State concerned that is incompatible with the principle of the primacy of EU law’. ¹⁰²

160The answer to the third question referred for a preliminary ruling must therefore be along the same lines.

V. Conclusion

Conclusion

161In the light of the foregoing considerations, I propose that the following answer be given to the request for a preliminary ruling from the Curtea de Apel Brașov (Court of Appeal, Brașov, Romania):

National legislation and case-law on the interruption of limitation periods for criminal liability which result in a considerable number of acts constituting serious fraud affecting the Union’s financial interests going unpunished infringes, in principle, Article 325(1) TFEU and Commission Decision 2006/928/EC of 13 December 2006 establishing a mechanism for cooperation and verification of progress in Romania to address specific benchmarks in the areas of judicial reform and the fight against corruption.

National courts are not required to disapply that national legislation and case-law if such legislation and case-law are justified by the application of the principle of the retroactivity of the more lenient criminal law, enshrined in the last sentence of Article 49(1) of the Charter of Fundamental Rights of the European Union, or, failing that, by a higher national standard of protection of that principle, laid down by national law.

Article 2 and the second subparagraph of Article 19(1) TEU must be interpreted as precluding national rules or a national practice under which any failure to comply with the decisions of the national constitutional court or supreme court by a national judge can trigger his or her disciplinary liability. They do not, however, preclude such disciplinary liability being triggered in exceptional cases of serious and wholly inexcusable conduct on the part of judges, consisting in infringing deliberately and in bad faith, or as a result of particularly serious and gross negligence, the national and EU law with which they are supposed to ensure compliance.

The second subparagraph of Article 19(1) TEU, read in conjunction with Article 2 and Article 4(2) and (3) TEU, with Article 267 TFEU and with the principle of the primacy of EU law, must be interpreted as precluding national rules or a national practice under which a national judge may incur disciplinary liability on the ground that he or she has applied EU law, as interpreted by the Court, thereby departing from case-law of the constitutional court that is incompatible with the principle of the primacy of EU law.

¹ Original language: Spanish.

( i ) The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings.

² Convention drawn up on the basis of Article K.3 of the Treaty on European Union, on the protection of the European Communities’ financial interests, signed in Brussels on 26 July 1995 and annexed to the Council Act of 26 July 1995 (OJ 1995 C 316, p. 49; ‘the PFI Convention’).

³ Commission Decision of 13 December 2006 establishing a mechanism for cooperation and verification of progress in Romania to address specific benchmarks in the areas of judicial reform and the fight against corruption (OJ 2006 L 354, p. 56).

⁴ Directive of the European Parliament and of the Council of 5 July 2017 on the fight against fraud to the Union’s financial interests by means of criminal law (OJ 2017 L 198, p. 29; ‘the PIF Directive’).

⁵ Codul Penal din 21 iulie 1968, republicat (Monitorul Oficial al României, Part I, No 65, of 16 April 1997) (Criminal Code of 21 July 1968, republished). That criminal code is the result of the text as consolidated by Lege nr. 140/1996, pentru modificarea și completarea Codului penal (Monitorul Oficial al României, Part I, No 289, of 14 November 1996) (Law No 140/1996 amending the Criminal Code) and was in force until 1 February 2014 (‘the Criminal Code of 1969’).

⁶ Legea nr. 286/2009 privind Codul penal, of 17 July 2009 (Monitorul Oficial al României, Part I, No 510, of 24 July 2009) (Law No 286/2009 on the Criminal Code; ‘the Criminal Code of 2009’). In force since 1 February 2014.

⁷ Ordonanța de urgență a Guvernului nr. 71 din 30 mai 2022 pentru modificarea articolului 155 alineatul (1) din Legea nr. 286/2009 privind Codul penal (Monitorul Oficial al României, Part I, No 531, of 30 May 2022) (Decree-Law No 71 of 30 May 2022 amending Article 155(1) of Law No 286/2009 on the Criminal Code; ‘Decree-Law No 71/2022’).

⁸ Legea nr. 135/2010 privind Codul de procedură penală (Monitorul Oficial al României, Part I, No 486, of 15 July 2010) (Law No 135/2010 on the Code of Criminal Procedure).

⁹ By contrast, the Curtea Constituțională (Constitutional Court) held that the previous legislative approach (enshrined in the first paragraph of Article 123 of the Criminal Code of 1969) satisfied the foreseeability requirements imposed by the Constitution, since it provided that only the performance of an act which, by law, had to be notified to the accused could interrupt the limitation period for criminal liability.

¹⁰ According to the order for reference, the Înalta Curte de Casație și Justiție (High Court of Cassation and Justice, Romania) declared inadmissible the requests for interpretation of Article 155(1) of the Criminal Code of 2009 following judgment No 297/2018 and an extraordinary appeal in the interest of the law seeking an interpretation of that provision. That is reflected in its judgments No 5 of 21 March 2019 and No 25 of 11 November 2019, respectively.

¹¹ That enactment was passed shortly after publication of judgment No 358/2022 of the Curtea Constituțională (Constitutional Court) (see point 19 of this Opinion).

¹² It would appear, from reading that judgment, that the case concerned, rather, a reference for a ruling on preliminary questions of law.

¹³ Legea nr. 303/2004 privind statutul judecătorilor și procurorilor (republished in the Monitorul Oficial al României, Part I, No 826, of 13 September 2005) (Law No 303/2004 of 28 June 2004 on the rules governing judges and prosecutors).

¹⁴ Legea nr. 303/2022 din 15 noiembrie 2022 privind statutul judecătorilor și procurorilor (published in the Monitorul Oficial al României, No 1102, of 16 November 2022) (Law No 303/2022 of 15 November 2022 on the rules governing judges and prosecutors).

¹⁵ The judgment of 30 June 2020 upheld judgment No 38/S of 13 March 2018 delivered by the Tribunalul Brașov (Regional Court, Brașov, Romania).

¹⁶ According to the referring court, the case-law of the Curtea Constituțională (Constitutional Court) has rendered numerous custodial sentences invalid, in the absence of grounds for interrupting the limitation period for criminal liability. That results in a situation of discrimination as regards, on the one hand, the appellants in this dispute and, on the other, convicted persons to whom the lex mitior principle does not apply.

¹⁷ The Court may refuse to rule on a question referred by a national court where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical (emphasis added), or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgment of 22 February 2022, Stichting Rookpreventie Jeugdand Others, C‑160/20, EU:C:2022:101, paragraph 82).

¹⁸ Judgment of 26 February 2013 (C‑617/10, EU:C:2013:105; ‘the judgment in Åkerberg Fransson’).

¹⁹ Judgment of 8 September 2015 (C‑105/14, EU:C:2015:555; ‘the judgment in Taricco’).

²⁰ Judgment of 5 December 2017 (C‑42/17, EU:C:2017:936; ‘the judgment in M.A.S. and M.B.’).

²¹ Judgment of 21 December 2021 (C‑357/19, C‑379/19, C‑547/19, C‑811/19 and C‑840/19, EU:C:2021:1034; ‘the judgment in Euro Box Promotion’).

²² Council Directive of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1).

²³ Judgments in Åkerberg Fransson, paragraph 25, and in Taricco, paragraph 36. In particular, ‘it follows … from Articles 2 and 273 of [Directive 2006/112], read in conjunction with Article 4(3) TEU, that Member States are required to take all legislative and administrative measures appropriate for ensuring collection of all the VAT due on their territory and for preventing fraud’ (judgment of 2 May 2018, Scialdone, C‑574/15, EU:C:2018:295, paragraph 26).

²⁴ On its nature, content and effects, see judgments of 18 May 2021, Asociația Forumul Judecătorilor din România and Others (C‑83/19, C‑127/19, C‑195/19, C‑291/19, C‑355/19 and C‑397/19, EU:C:2021:393, ‘the judgment in Asociaţia “Forumul Judecătorilor din România”’, paragraphs 152 to 178), and in Euro Box Promotion, paragraphs 155 to 175.

²⁵ COM(2022) 664 final of 22 November 2022, Report from the Commission to the European Parliament and the Council on Progress in Romania under the Cooperation and Verification Mechanism (‘the 2022 CMV Report’), pp. 11-12 and 24.

²⁶ Judgments of 5 June 2018, Kolev and Others (C‑612/15, EU:C:2018:392, ‘the judgment in Kolev’, paragraph 50); of 17 January 2019, Dzivev and Others (C‑310/16, EU:C:2019:30, ‘the judgment in Dzivev’, paragraph 25); and in Euro Box Promotion, paragraph 181.

²⁷ Judgments in M.A.S. and M.B., paragraphs 31 and 32; in Kolev, paragraphs 51 and 52; and in Euro Box Promotion, paragraph 182.

²⁸ ‘in view of the importance that should be accorded to protecting the financial interests of the European Union, which in itself constitutes an objective of the latter …, the concept of “illegal activities” [of Article 352(1) TFEU] cannot be interpreted restrictively’ (judgment of 2 May 2018, Scialdone, C‑574/15, EU:C:2018:295, paragraph 45 and the case-law cited).

²⁹ Judgment in Euro Box Promotion, paragraph 186, and Opinion of Advocate General Bobek in that case (EU:C:2021:170, points 98 and 99).

³⁰ ‘… any intentional act or omission relating to … the use or presentation of false, incorrect or incomplete statements or documents, which has as its effect the illegal diminution of the resources of the general budget of the [European Union] or budgets managed by, or on behalf of, the [European Union]’.

³¹ Judgment in Taricco, paragraph 41.

³² Judgment in Taricco, paragraph 39.

³³ ‘It is primarily for the national legislature to lay down rules on limitation that enable compliance with the obligations under Article 325 TFEU, in the light of the considerations set out by the Court in paragraph 58 of the Taricco judgment. It is that legislature’s task to ensure that the national rules on limitation in criminal matters do not lead to impunity in a significant number of cases of serious VAT fraud …’ (judgment in M.A.S, and M.B., paragraph 41).

³⁴ As L.N. observed in his written observations, the limitation periods laid down in Article 154 of the Criminal Code of 2009 vary between 8 and 10 years for serious VAT fraud.

³⁵ Between 25 June 2018 (the date of official publication of judgment No 297/2018 of the Curtea Constituțională (Constitutional Court)) and 30 May 2022 (the date of official publication and entry into force of Decree-Law No 71/2022).

³⁶ In cases involving the application of the more lenient criminal law (on account of the grounds for interrupting the limitation period for criminal liability ceasing to exist) to persons convicted of driving without a licence, the Court, by order of 12 January 2023, SNI (C‑506/22, not published, EU:C:2023:46), declared inadmissible a request for a preliminary ruling.

³⁷ Order for reference, paragraph 121.

³⁸ In a similar vein, the Commission states that, between 2018 and 2022, until the publication of Decree-Law No 71/2022, the ordinary courts interpreted judgment No 297/2018 of the Curtea Constituțională (Constitutional Court) as meaning that acts notified to the accused interrupted the limitation periods for criminal liability. Since that same approach was taken as regards the Criminal Code of 1969, a more lenient criminal law would not have existed during the period at issue, so that it would not be necessary to disapply the constitutional case-law.

³⁹ Judgments of 4 March 2020, Telecom Italia (C‑34/19, EU:C:2020:148, paragraphs 59 and 60), and of 4 May 2023, Agenția Națională de Integritate (C‑40/21, EU:C:2023:367, paragraph 71).

⁴⁰ A contra legem interpretation of Romanian law would be likely to infringe Article 147(4) of the Romanian Constitution, although that is a matter for the national courts alone to decide on.

⁴¹ Judgment in Taricco, paragraph 51.

⁴² Judgments in Kolev, paragraph 65, and in Dzivev, paragraph 31.

⁴³ Judgments in Asociaţia ‘Forumul Judecătorilor din România’, paragraph 149, and in Euro Box Promotion, paragraph 156.

⁴⁴ Judgments in Asociaţia ‘Forumul Judecătorilor din România’, paragraph 178, and in Euro Box Promotion, paragraph 175.

⁴⁵ Judgments in Asociaţia ‘Forumul Judecătorilor din România’, paragraph 172, and in Euro Box Promotion, paragraph 169.

⁴⁶ ‘According to an estimate published by the DNA [National Anti-Corruption Directorate], a total of 557 criminal cases under criminal prosecution or pending before the courts could consequently be terminated … While the exact prejudice would need to be assessed case by case, the DNA estimates damage in these cases to around [EUR ]1.2 billion and the total amount of bribery and influence peddling at around [EUR ]150 million. … Beyond corruption cases, according to an estimate provided by the specialised prosecution office handling terrorism and organised crime, a total of 605 ongoing cases, with a total estimated financial damage of over [EUR ]1 billion, would be affected … Estimates from the General Prosecutor’s office on other crimes were not available’ (COM(2022) 664 final, p. 24).

⁴⁷ Judgment in Taricco, paragraphs 50 to 52.

⁴⁸ Judgment in M.A.S. and M.B., paragraph 39.

⁴⁹ Judgments in Kolev, paragraphs 68 and 71; in Dzivev, paragraph 33; and in Euro Box Promotion, paragraph 204.

⁵⁰ Judgment in M.A.S. and M.B., paragraph 52: ‘That principle [that offences and penalties must be defined by law], as enshrined in Article 49 of the Charter, must be observed by the Member States when they implement EU law, in accordance with Article 51(1) of the Charter, which is the case where, in the context of their obligations under Article 325 TFEU, they provide for the application of criminal penalties for infringements relating to VAT. The obligation to ensure the effective collection of the Union’s resources cannot therefore run counter to that principle’.

⁵¹ The Court has held on previous occasions that that principle followed from the constitutional traditions common to the Member States and, therefore, had to be regarded as forming part of the general principles of EU law, which national courts must respect when applying national law: judgments of 7 August 2018, Clergeau and Others (C‑115/17, EU:C:2018:651, ‘the judgment in Clergeau’, paragraph 26); of 6 October 2016, Paoletti and Others (C‑218/15, EU:C:2016:748, ‘the judgment in Paoletti’, paragraph 25); and of 3 May 2005, Berlusconi and Others (C‑387/02, C‑391/02 and C‑403/02, EU:C:2005:270, paragraphs 68 and 69).

⁵² See, in particular, the first sentence of Article 15(1) of the International Covenant on Civil and Political Rights, opened for signature on 19 December 1966 (UN Treaty Series, Vol. 999, p. 171).

⁵³ Judgments in Clergeau, paragraph 33, and in Paoletti, paragraph 27.

⁵⁴ Opinions of Advocate General Kokott in Joined Cases Berlusconi and Others (C‑387/02, C‑391/02 and C‑403/02, EU:C:2004:624, points 159 to 161), and in Clergeau and Others (C‑115/17, EU:C:2018:240, points 39 and 40), and of Advocate General Bobek in Scialdone (C‑574/15, EU:C:2017:553, points 155 to 160). Also see judgment in Paoletti, paragraph 27.

⁵⁵ Judgment of the Grand Chamber of the ECtHR, 17 September 2009, Scoppola v. Italy (No. 2) (CE:ECHR:2009:0917JUD001024903, ‘judgment in Scoppola v. Italy’, § 108).

⁵⁶ ECtHR, judgment in Scoppola v. Italy, § 108.

⁵⁷ ECtHR, judgment in Scoppola v. Italy, § 108.

⁵⁸ ECtHR, judgment in Scoppola v. Italy, § 109, and 18 March 2014, Öcalan v. Turkey (No. 2) (CE:ECHR:2014:0318JUD002406903, § 175). See also ECtHR, 12 January 2016, Gouarré Patte v. Andorra (CE:ECHR:2016:0112JUD003342710, § 28); 12 July 2016, Ruban v. Ukraine (CE:ECHR:2016:0712JUD000892711, § 37); and 24 January 2017, Koprivnikar v. Slovenia (CE:ECHR:2017:0124JUD006750313, § 49).

⁵⁹ Judgments in Clergeau, paragraph 33, and in Paoletti, paragraph 27.

⁶⁰ At a later stage, Article 12 of the PFI Directive partially harmonised the limitation rules applicable to that type of offence, but did not clarify whether the rules on limitation periods for criminal liability are substantive or procedural in nature.

⁶¹ Like the definition of offences and the determination of penalties, the rules of which are also subject to the principle that offences and penalties must be defined by law (judgment in M.A.S. and M.B., paragraph 45).

⁶² In Belgium, Germany and France, limitation rules are regarded as being of a procedural nature. By contrast, in Greece, Spain, Italy, Latvia, Sweden and Romania, those rules fall under substantive criminal law. In Poland and Portugal, they are both substantive and procedural rules.

⁶³ Judgment in Taricco, paragraphs 55 to 57.

⁶⁴ Judgment of 22 June 2022, Volvo and DAF Trucks (C‑267/20, EU:C:2022:494, paragraph 46): ‘… unlike procedural time limits, the limitation period, by resulting in the extinction of the legal action, is a matter of substantive law since it affects the enforceability of a subjective right which the person concerned can no longer effectively assert before the courts’. That is why the Court accords substantive rather than procedural status to Article 10 (‘Limitation periods’) of Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union (OJ 2014 L 349, p. 1).

⁶⁵ ECtHR, 22 June 2000, Coëme and Others v. Belgium (CE:ECHR:2000:0622JUD003249296, § 149); 12 February 2013, Previti v. Italy (CE:ECHR:2013:0212DEC000184508, § 80); and 22 September 2015, Borcea v. Romania (CE:ECHR:2015:0922DEC005595914, § 64).

⁶⁶ Advisory opinion P16-2021-001 of 26 April 2022 on the applicability of statutes of limitation to prosecution, conviction and punishment in respect of an offence constituting, in substance, an act of torture, §§ 72 to 77, and ECtHR, 18 June 2020, Antia and Khupenia v. Georgia (CE:ECHR:2020:0618JUD000752310, §§ 38 to 43).

⁶⁷ Judgment in M.A.S. and M.B., paragraphs 54 to 58.

⁶⁸ ECtHR, 15 November 1996, Cantoni v. France (CE:ECHR:1996:1115JUD001786291, § 29); 7 February 2002, E.K. v. Turkey (CE:ECHR:2002:0207JUD002849695, § 51); 29 March 2006, Achour v. France (CE:ECHR:2006:0329JUD006733501, § 41); and 20 September 2011, OAO Neftyanaya Kompaniya Yukos v. Russia (CE:ECHR:2011:0920JUD001490204, §§ 567 to 570).

⁶⁹ Judgment of 28 March 2017, Rosneft (C‑72/15, EU:C:2017:236, paragraph 162).

⁷⁰ The Court cannot implement, through its case-law, a harmonisation which the EU legislature was unable to carry out, however desirable it may be in order to achieve greater effectiveness in the prosecution of serious offences affecting the Union’s financial interests.

⁷¹ Kelsen, H., ‘La garantie juridictionnelle de la constitution (la justice constitutionnelle)’, Revue du droit public et de la science politique en France et à l’étranger, 1928, pp. 197-257.

⁷² In the same vein, see the judgment of the Cour de cassation, chambre criminelle (Criminal Chamber, Court of Cassation, France) of 8 June 2021, No 20-87.078 (FR:CCASS:2021:CR00864): ‘Decisions of the Conseil constitutionnel [(Constitutional Council, France)] binding on public authorities and on all administrative authorities and courts under Article 62 of the Constitution, declarations of non-conformity or the interpretative reservations contained therein, the effect of which is that an offence ceases, within the time limits and subject to the conditions and restrictions established therein, to be criminalised, must be treated as laws for the purposes of applying the second paragraph of Article 112-4 of the Criminal Code’ (emphasis added). The abovementioned article of the French Criminal Code provides that the enforcement of a penalty must cease where that penalty was imposed for conduct which, under a law post-dating the judgment, is no longer regarded as constituting a criminal offence.

⁷³ The Court has restated that Article 2 and the second subparagraph of Article 19(1) TEU and Decision 2006/928 do not preclude national rules or a national practice under which the decisions of a constitutional court are binding on the ordinary courts. That statement is based on the assumption that national law guarantees the independence of the constitutional court from, in particular, the legislature and the executive. There is nothing in the requests for a preliminary ruling submitted in other cases or in this case to suggest that the Curtea Constituțională (Constitutional Court), which is responsible, in particular, for reviewing the constitutionality of laws and decrees and for resolving legal disputes of a constitutional nature between public authorities, in accordance with Article 146(d) and (e) of the Romanian Constitution, does not satisfy the requirements of independence established by EU law (see, to that effect, judgments in Euro Box Promotion, paragraphs 230 and 232, and of 22 February 2022, RS (Effect of the decisions of a constitutional court), C‑430/21, EU:C:2022:99, ‘judgment in RS’, paragraph 44).

⁷⁴ Judgment in RS, paragraphs 45 and 46.

⁷⁵ ECtHR, 12 July 2016, Ruban v. Ukraine (CE:ECHR:2016:0712JUD000892711, §§ 41 to 46).

⁷⁶ ECtHR, judgment in Scoppola v. Italy, § 109: ‘where there were differences between the criminal law in force at the time of the commission of the offence and subsequent criminal laws enacted before a final judgment was rendered, the courts were required to apply the law whose provisions were most favourable to the defendant’.

⁷⁷ ECtHR, 12 January 2016, Gouarré Patte v. Andorra (CE:ECHR:2016:0112JUD003342710, §§ 33 to 36); 12 July 2016, Ruban v. Ukraine (CE:ECHR:2016:0712JUD000892711, § 39); and 24 January 2017, Koprivnikar v. Slovenia (CE:ECHR:2017:0124JUD006750313, § 49).

⁷⁸ Judgment of 6 October 2015, Delvigne (C‑650/13, EU:C:2015:648, paragraph 56).

⁷⁹ Under Article 23(2) of the Spanish Criminal Code, criminal laws favouring the offender have retroactive effect even if, on the date of their entry into force, the person concerned has been finally judged and is serving his or her sentence. Similar provisions exist in the legal systems of Lithuania, Portugal and Poland.

⁸⁰ As provided for, for example, in the second paragraph of Article 112-4 of the French Criminal Code and Article 2(2) of the Italian Criminal Code.

⁸¹ In Germany, the Code of Criminal Procedure of 7 April 1987 (BGBl. I, p. 1074 et seq., particularly p. 1319), as amended by the Law of 25 March 2022 (BGBl. I, p. 571), allows a convicted person to request the reopening of criminal proceedings which have already been disposed of by a judgment having the force of res judicata where that judgment is based on a provision which has been declared by the Bundesverfassungsgericht (Federal Constitutional Court, Germany) to be unconstitutional and incompatible with the Basic Law, or invalid or incompatible with that court’s interpretation of the Basic Law. See Schmidt-Bleibtreu, Klein, Bethge, Bundesverfassungsgerichtsgesetz, 62nd edition, 2022, C.H. Beck, Munich, note 25, paragraph 79.

⁸² The application of the lex mitior may be adjusted in cases of, for instance, purely temporary laws, laws only establishing financial penalties, or laws enacted to address exceptional situations which subsequently cease to exist.

⁸³ See, in particular, judgment No 67/2022 of the Înalta Curte de Casație și Justiție (High Court of Cassation and Justice).

⁸⁴ Judgments in Åkerberg Fransson, paragraph 29; of 26 February 2013, Melloni (C‑399/11, EU:C:2013:107, paragraph 60); in M.A.S. and M.B., paragraph 47; of 29 July 2019, Pelham and Others (C‑476/17, EU:C:2019:624, paragraph 80); and in Euro Box Promotion, paragraph 211.

⁸⁵ Judgment in M.A.S. and M.B., paragraphs 45 and 58.

⁸⁶ Judgment in M.A.S. and M.B., paragraphs 47 and 48.

⁸⁷ Judgment in M.A.S. and M.B., paragraphs 49, 50 and 59.

⁸⁸ Judgment in M.A.S. and M.B., paragraphs 59 and 61.

⁸⁹ Judgment in M.A.S. and M.B., paragraphs 41, 42 and 60.

⁹⁰ According to that constitutional legislation and case-law, judgments in matters of corruption and VAT fraud which were not delivered, at first instance, by panels specialised in such matters or, on appeal, by panels all the members of which were selected by drawing lots, are rendered absolutely null and void, such that the cases of corruption and VAT fraud must, as the case may be, further to an extraordinary appeal against final judgments, be re-examined at first or second instance.

⁹¹ Judgment in Euro Box Promotion, paragraph 206. In paragraph 207, the Court added: ‘… although the Curtea Constituțională (Constitutional Court) found, in the decisions at issue in the main proceedings, that the earlier practice of the Înalta Curte de Casaţie şi Justiţie (High Court of Cassation and Justice), based inter alia on the Regulation on organisation and administrative functioning, relating to the specialisation and the composition of the panels hearing cases related to corruption, was inconsistent with the applicable national provisions, it does not appear that that practice was vitiated by a manifest breach of a fundamental rule of Romania’s judicial system, such as to call into question the fact that the panels of the Înalta Curte de Casaţie şi Justiţie (High Court of Cassation and Justice) hearing cases related to corruption, such as those established in line with the practice adopted prior to those decisions of the Curtea Constituțională (Constitutional Court), constitute a tribunal “previously established by law”’.

⁹² Judgment in Euro Box Promotion, paragraph 209.

⁹³ Judgment in Euro Box Promotion, paragraph 210.

⁹⁴ Judgment in Euro Box Promotion, paragraph 212.

⁹⁵ Judgment in Euro Box Promotion, paragraph 210.

⁹⁶ Judgment in M.A.S. and M.B., paragraphs 55 and 56.

⁹⁷ Judgments in Asociaţia ‘Forumul Judecătorilor din România’; in Euro Box Promotion; and in RS.

⁹⁸ Order for reference, paragraphs 145 and 146.

⁹⁹ Judgment in RS, paragraph 83, citing judgments of 15 July 2021, Commission v Poland (Disciplinary regime for judges) (C‑791/19, EU:C:2021:596, paragraph 137), and in Euro Box Promotion, paragraph 238.

¹⁰⁰ Judgment in RS, paragraph 84, citing judgments of 15 July 2021, Commission v Poland (Disciplinary regime for judges) (C‑791/19, EU:C:2021:596, paragraph 138), and in Euro Box Promotion, paragraph 239.

¹⁰¹ Judgment in RS, paragraph 87, citing judgment in Euro Box Promotion, paragraph 242.

¹⁰² Judgment in RS, paragraph 93 and point 2 of the operative part.