Order of the Court (Ninth Chamber) of 9 January 2024

Order

1 This request for a preliminary ruling concerns the interpretation of the second subparagraph of Article 19(1) TEU, Article 325(1) TFEU, 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 (OJ 1995 C 316, p. 49; ‘the PFI Convention’), 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), the last sentence of Article 49(1) of the Charter of Fundamental Rights of the European Union (‘the Charter’), and Article 53 thereof, as well as the principle of the primacy of EU law.

2 The request has been made in connection with extraordinary appeals brought by C.A.A. and C.V., seeking to have set aside the final judgments convicting them of the offences of influence peddling, accepting bribes, and abuse of office, in the case of C.A.A., and abuse of office, in the case of C.V.

Legal context

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

16 By a criminal judgment of 30 April 2020 of the Tribunalul Brașov (Regional Court, Brașov, Romania), which became final following a criminal judgment of the Curtea de Apel Brașov (Court of Appeal, Brașov, Romania) of 1 February 2022, C.A.A. and C.V. were found guilty, respectively, of accepting bribes, influence peddling, and abuse of office, in the case of C.A.A., and of abuse of office, in connection with procedures for the award of public contracts in Romania, in the case of C.V. C.A.A. was sentenced to a term of imprisonment of 7 years and 10 months, together with an ancillary penalty prohibiting him from exercising certain rights for a period of 5 years. C.V. was sentenced to a term of imprisonment of 2 years, that sentence being suspended and C.V. kept under supervision for a period of 3 years.

17 On 1 February 2022, on the basis of the decision convicting C.A.A., the Tribunalul Brașov (Regional Court, Brașov) issued a warrant for the enforcement of the prison sentence imposed on C.A.A.

18 In its request for a preliminary ruling, the referring court alludes to national case-law relating to Article 155(1) of the Criminal Code, in the version resulting from Law No 286/2009, which may have decisive effect on the situation of the appellants in the main proceedings.

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

20 The Curtea Constituțională (Constitutional Court) found, inter alia, that that provision lacked foreseeability and that it was in breach of the principle that offences and penalties must be defined by law, given that the expression ‘any procedural act’ also covered acts which had not been notified to the suspect or defendant, 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.

21 It also found that Article 155(1) of the Criminal Code, in the version thereof prior to the entry into force of Law No 286/2009, satisfied the conditions of foreseeability imposed by the relevant constitutional provisions, as it provided that only the performance of an act which, by law, had to be notified to the suspect or defendant was capable of interrupting the limitation period for criminal liability.

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

23 Thirdly, the referring court states that the Curtea Constituțională (Constitutional Court), by Decision No 358 of 26 May 2022, published on 9 June 2022 (‘Decision 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 decision, the Curtea Constituțională (Constitutional Court) clarified that Decision No 297/2018 had the legal status of a ‘simple’ decision finding unconstitutionality. Emphasising the lack of action by the legislature since Decision No 297/2018 and the fact that the combined effect of that decision 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 judicial practice, the Curtea Constituțională (Constitutional Court) stated that, between the date of publication of Decision 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’.

24 Fourthly, it is apparent from the request for a preliminary ruling that, on 30 May 2022, that is to say, after Decision No 358/2022 of the Curtea Constituțională (Constitutional Court) had been handed down, but before it had been published, the Romanian Government, acting on the basis of its delegated legislative powers, adopted OUG No 71/2022, which entered into force on the same date and by which Article 155(1) of the Criminal Code has been amended so that the limitation period for criminal liability is interrupted by any procedural act which has to be notified to the suspect or defendant.

25 Fifthly, the referring court states that, by Decision 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, Romania) 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 retroactive application of the more lenient criminal law (lex mitior), as guaranteed, inter alia, in Article 15(2) of the Romanian Constitution.

26 Consequently, 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 Decisions 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.

27 C.A.A. and C.V. each brought before the Curtea de Apel Brașov (Court of Appeal, Brașov), which is the referring court, on the basis of Article 426(b) of Law No 135/2010 establishing the Code of Criminal Procedure, in the version applicable to the dispute in the main proceedings, an extraordinary appeal seeking to have set aside the criminal judgment of 30 April 2020, referred to in paragraph 16 of the present order, explaining that they had been convicted despite there being evidence of a ground for discontinuance of the criminal proceedings, namely the expiry of the limitation period for their criminal liability. On the date on which his extraordinary appeal was brought, 21 June 2022, C.A.A. was incarcerated.

28 In support of their extraordinary appeals, 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 Decisions No 297/2018 and No 358/2022 of the Curtea Constituțională (Constitutional Court).

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

30 The 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, more lenient 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 in, inter alia, the Romanian Constitution.

31 If such an interpretation were to be accepted, the referring court finds that, having regard to the date on which the offences leading to the conviction of the appellants in the main proceedings were committed, the limitation period laid down for those offences would have expired before the decision convicting those appellants became final, which would entail the discontinuance of the criminal proceedings and would render their conviction impossible.

32 It 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. That court observes, first of all, that that interpretation would have the effect of exempting those appellants from their criminal liability for offences of corruption even though Decision 2006/928 requires Romania to combat such offences effectively and dissuasively.

33 It further observes that the case in the main proceedings concerns both offences of corruption stricto sensu, namely offences of accepting bribes and influence peddling, in connection with procedures for the award of public contracts, and offences equated with offences of corruption, namely abuse of office offences also committed in connection with public contracts, by civil servants, one of whom held a particularly senior post within a territorial administrative unit.

34 Next, the referring court states that the interpretation put forward by the appellants in the main proceedings, which would have the effect of exempting those appellants from their criminal liability, must also be examined in the light of the second subparagraph of Article 19(1) TEU, Article 325(1) TFEU and Article 2(1) of the PFI Convention. Those provisions, which concern the protection of the European Union’s financial interests, apply in this instance because the offences at issue in the main proceedings were committed in connection with procedures for the award of public contracts, which were financed using public funds and resulted in the application of value added tax (VAT).

35 That court adds, in that regard, that the budget of the European Union is financed, inter alia, by the sums paid by Member States corresponding to a percentage of their gross domestic product. Accordingly, acts which adversely affect the national budget have an impact on the amount of the Member State’s contribution to the budget of the European Union, thereby indirectly adversely affecting the financial interests of the European Union.

36 Lastly, the referring court claims that its request for a preliminary ruling must also be examined in the light of the last sentence of Article 49(1) of the Charter and of Article 53 thereof, because, depending on the response given by the Court of Justice, the national court could be led to apply the principle of the more lenient criminal law and to verify whether the national standards of protection arising from the effects attributed to the decisions of the Curtea Constituțională (Constitutional Court) are compatible with the primacy of EU law.

37 The referring court explains that the effects of Decisions No 297/2018 and No 358/2022 of the Curtea Constituțională (Constitutional Court) on the limitation period for criminal liability led to the discontinuance of criminal proceedings in a particularly large number of cases, causing significant damage, and to the reopening of cases that had been finally adjudicated over the period from 25 June 2018, the date of publication of Decision No 297/2018 of the Curtea Constituțională (Constitutional Court), to 30 May 2022, the date on which OUG No 71/2022 entered into force, undermining the effectiveness of the entirety of the judicial system, which is deprived of a crucial component in the fight against corruption.

38 In addition, 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 Commission referred to its concerns regarding the significant impact of that case-law on ongoing criminal cases, in particular in cases of corruption.

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

• Should the second subparagraph of Article 19(1) [TEU], Article 325(1) TFEU, Article 2(1) of the PFI Convention and [Decision 2006/928] be interpreted as precluding the application of a decision of [the Curtea Constituțională (Constitutional Court)] finding, retroactively, that there were no cases of interruption of the limitation period, despite the existence of a body of generalised, long-standing case-law of the national courts, including [the Înalta Curte de Casație și Justiție (High Court of Cassation and Justice)], where the application of that decision would entail a systemic risk of impunity as a result of the re-opening of a significant number of criminal cases in which final judgment has been given and the delivery, in extraordinary appeal proceedings, of a decision to discontinue criminal proceedings as a result of a finding that the limitation period has expired?

• Does the principle of the primacy of EU law, with reference to [Decision 2006/928] and the third sentence of Article 49(1) of [the Charter] (the principle of the retroactivity of the more lenient criminal law), preclude any re-examination, at the stage where a sentence is being enforced, in extraordinary appeal proceedings, of the limitation period for criminal liability, where the lodging of the extraordinary appeal is a consequence of a decision of the Curtea Constituțională (Constitutional Court), delivered after the judgment passing sentence has become final, which overturns a body of generalised and long-standing case-law of the national courts and where the dissuasiveness and effectiveness of the sentence and the certainty and stability of legal relations are thereby affected?

• Does the principle of the primacy of EU law, with reference to Article 53 of [the Charter], permit the application of national standards of protection, such as that at issue in the main proceedings, guaranteed by the national law of the Member State and arising from the effects attributed to decisions of the Curtea Constituțională (Constitutional Court), where the effective application of EU law in the Member State is thereby undermined?’

Procedure before the Court

40 By a decision of the President of the Court of 30 March 2023, the proceedings in the present case were stayed pending delivery of the judgment in Lin (C‑107/23 PPU).

41 The Court delivered its judgment in Lin (C‑107/23 PPU, EU:C:2023:606 ) on 24 July 2023 and, on the same day, the President of the Court ordered the resumption of the proceedings.

42 The referring court, to which the Registry had communicated that judgment, informed the Court that it intended to maintain its request for a preliminary ruling.

43 In its request for a preliminary ruling, the referring court requested that the Court deal with the present case under the expedited procedure provided for in Article 105 of the Rules of Procedure of the Court of Justice.

44 In view of the Court’s decision to rule by reasoned order pursuant to Article 99 of the Rules of Procedure, there is no longer any need to adjudicate on that request.

Admissibility of the request for a preliminary ruling

45 It 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).

46 It 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).

47 In this instance, the first question submitted by the referring court concerns, inter alia, the interpretation of Article 325(1) TFEU and Article 2(1) of the PFI Convention, which concern the protection of the European Union’s financial interests.

48 It should be noted that the dispute in the main proceedings concerns, as is apparent from paragraph 16 of the present order, offences of accepting bribes, influence peddling, and abuse of office committed in connection with procedures for the award of public contracts in Romania.

49 However, unlike the offences of corruption at issue in some of the disputes at issue in the case which led to the 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 ), which had been committed in connection with procedures for the award of public contracts financed in part by European funds, there is nothing in the documents before the Court to indicate that the European Union’s financial interests have been adversely affected by the offences forming the subject of the dispute in the main proceedings.

50 In particular, the fact that VAT was applied in connection with the procedures for the award of public contracts concerned cannot suffice to regard the financial interests of the European Union as having been adversely affected. Similarly, it cannot be sufficient that, as has been stated by the referring court, the offences committed were such as to adversely affect the national budget, which could have an impact on the amount of Romania’s contribution to the budget of the European Union.

51 It follows from the foregoing that the first question, in so far as it concerns the interpretation of Article 325(1) TFEU and Article 2(1) of the PFI Convention, bears no relation to the actual facts of the main action or its purpose. It is therefore, to that extent, manifestly inadmissible.

Consideration of the questions referred

52 Under Article 99 of its Rules of Procedure, the Court may at any time, on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide to rule by reasoned order where the reply to a question referred to the Court for a preliminary ruling may be clearly deduced from existing case-law.

53 It must also be recalled that the judicial cooperation provided for by Article 267 TFEU is based on a clear separation of functions between the Court and the national courts. On the one hand, the Court is empowered not to apply rules of EU law to a particular case, but only to rule on the interpretation of the Treaties and of acts of the EU institutions, bodies, offices and agencies (see, to that effect, judgment of 18 May 2021, Asociaţia ‘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, paragraph 201 and the case-law cited). On the other hand, in accordance with paragraph 11 of the recommendations of the Court of Justice of the European Union to national courts and tribunals in relation to the initiation of preliminary ruling proceedings (OJ 2019 C 380, p. 1), it is for the national courts or tribunals to draw case-specific conclusions from the elements of interpretation provided by the Court in the proceedings pending before them (see, to that effect, judgment of 25 October 2018, Roche Lietuva , C‑413/17, EU:C:2018:865, paragraph 43 ).

54 In this instance, despite the doubts expressed by the referring court, the Court considers that the interpretation of EU law sought by that court may be clearly deduced from the 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 ), and of 24 July 2023, Lin (C‑107/23 PPU, EU:C:2023:606 ). It is therefore appropriate to apply Article 99 of the Rules of Procedure in the present case.

55 As is apparent from paragraph 53 of the present order, it will be for the referring court to draw case-specific conclusions, in the dispute in the main proceedings, from the elements of interpretation arising from that case-law of the Court.

56 The questions submitted by the referring court, which it is appropriate to examine together, concern – in so far as they are admissible – the interpretation of the second subparagraph of Article 19(1) TEU, the last sentence of Article 49(1) of the Charter and Article 53 thereof, and Decision 2006/928.

57 However, it is apparent from the grounds for the order for reference that the doubts on the part of the referring court which have given rise to those questions concern, in essence, the interpretation, first, of the provisions of EU law requiring the Member States to combat corruption effectively and, secondly, of the guarantees stemming from the principle that offences and penalties must be defined by law.

58 In those circumstances, it is necessary to examine the questions only in the light of Decision 2006/928, as well as Article 49(1) and Article 53 of the Charter.

59 It follows that, by its questions, the referring court asks, in essence, whether the provisions of EU law referred to in the preceding paragraph are to be interpreted as meaning that the courts of a Member State are required to disapply (i) decisions of the constitutional court of that Member State declaring invalid the national legislative provision which governs 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 decision of the supreme court of that Member State, from which it follows that the rules governing those grounds for 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 decisions, a considerable number of criminal cases – including cases relating to offences of corruption – will be discontinued because of the expiry of the limitation period for criminal liability.

Costs

87 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court.