# C_2018094EN.01001001.xml

| 12.3.2018 | EN | Official Journal of the European Union | C 94/10 |
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12.3.2018

EN

Official Journal of the European Union

C 94/10

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Request for a preliminary ruling from the Rayonen sad Svilengrad (Bulgaria) lodged on 19 December 2017 — Criminal proceedings against Daniela Pinzaru and Robert-Andrei Cirstinoiu

(Case C-707/17)

(2018/C 094/12)

Language of the case: Bulgarian

Referring court

Referring court

Rayonen sad Svilengrad

Parties to the main proceedings

Parties to the main proceedings

Daniela Pinzaru, Robert-Andrei Cirstinoiu

Questions referred for a preliminary ruling

Questions referred for a preliminary ruling

| 1.1. | Are Article 65(3) TFEU and Article 9(1) of Regulation (EC) No 1889/2005 (1) of the European Parliament and of the Council of 26 October 2005 on controls of cash entering or leaving the Community to be interpreted as precluding provisions of national law which set out the penalties of the type and intensity of those contained in Paragraph 251(1) of the Nakazatelen kodeks (Bulgarian Penal Code) which, for a failure to comply with the obligation to declare laid down in Article 3 of that regulation, provides, as alternative options, either for a prison sentence of a maximum of six years, which need not be suspended even in the event of a first offence, or for a fine which represents twice the value of the goods involved in the criminal offence, and in addition provides, cumulatively, in Paragraph 251(2) of that code, as a supplementary penalty, for the confiscation, in favour of the State, of the entirety of the undeclared amounts of money, without it being necessary to determine the origin or intended purpose of those sums, because that provision of national law relates to a combination of penalties which go beyond that which is necessary to attain the objectives pursued by that regulation, contrary to the principle that the penalty must be proportionate to the criminal offence, enshrined in Article 49(3) of the Charter of Fundamental Rights of the European Union, and constituting a disguised restriction on the free movement of capital? |
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1.1.

Are Article 65(3) TFEU and Article 9(1) of Regulation (EC) No 1889/2005 (1) of the European Parliament and of the Council of 26 October 2005 on controls of cash entering or leaving the Community to be interpreted as precluding provisions of national law which set out the penalties of the type and intensity of those contained in Paragraph 251(1) of the Nakazatelen kodeks (Bulgarian Penal Code) which, for a failure to comply with the obligation to declare laid down in Article 3 of that regulation, provides, as alternative options, either for a prison sentence of a maximum of six years, which need not be suspended even in the event of a first offence, or for a fine which represents twice the value of the goods involved in the criminal offence, and in addition provides, cumulatively, in Paragraph 251(2) of that code, as a supplementary penalty, for the confiscation, in favour of the State, of the entirety of the undeclared amounts of money, without it being necessary to determine the origin or intended purpose of those sums, because that provision of national law relates to a combination of penalties which go beyond that which is necessary to attain the objectives pursued by that regulation, contrary to the principle that the penalty must be proportionate to the criminal offence, enshrined in Article 49(3) of the Charter of Fundamental Rights of the European Union, and constituting a disguised restriction on the free movement of capital?

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| 1.2. | Must those provisions of EU law, namely, Article 65(3) TFEU, Articles 3 and 9(1) of Regulation No 1889/2005 and Article 49(3) of the Charter of Fundamental Rights, be interpreted as precluding provisions of national law, in particular Paragraph 251(2) of the Nakazatelen kodeks (Bulgarian Penal Code), which, in addition to the principal penalties penalising a failure to comply with the obligation to declare under Article 3 of Regulation No 1889/2005, lays down a complementary penalty involving the confiscation, in favour of the State, of the entirety of the undeclared amounts of money, regardless of the origin or intended purpose of that sum of money? |
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1.2.

Must those provisions of EU law, namely, Article 65(3) TFEU, Articles 3 and 9(1) of Regulation No 1889/2005 and Article 49(3) of the Charter of Fundamental Rights, be interpreted as precluding provisions of national law, in particular Paragraph 251(2) of the Nakazatelen kodeks (Bulgarian Penal Code), which, in addition to the principal penalties penalising a failure to comply with the obligation to declare under Article 3 of Regulation No 1889/2005, lays down a complementary penalty involving the confiscation, in favour of the State, of the entirety of the undeclared amounts of money, regardless of the origin or intended purpose of that sum of money?

| 1.3. | Must Article 17(1) of the Charter of Fundamental Rights be interpreted as meaning that a provision of national law, namely Paragraph 251(2) of the Nakazatelen kodeks (Bulgarian Penal Code), which is a confiscation measure that penalises a simple failure to comply with the obligation to declare, fails to respect the strict balance between the general interest and the requirement of the protection of the right to property enshrined in Article 17 of the Charter? |
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1.3.

Must Article 17(1) of the Charter of Fundamental Rights be interpreted as meaning that a provision of national law, namely Paragraph 251(2) of the Nakazatelen kodeks (Bulgarian Penal Code), which is a confiscation measure that penalises a simple failure to comply with the obligation to declare, fails to respect the strict balance between the general interest and the requirement of the protection of the right to property enshrined in Article 17 of the Charter?

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(1)  Regulation (EC) No 1889/2005 of the European Parliament and of the Council of 26 October 2005 on controls of cash entering or leaving the Community (OJ 2005 L 309, p. 1).

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