# C_2020279EN.01001402.xml

| 24.8.2020 | EN | Official Journal of the European Union | C 279/14 |
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24.8.2020

EN

Official Journal of the European Union

C 279/14

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Request for a preliminary ruling from the Sofiyski gradski sad (Bulgaria) lodged on 17 April 2019 — KPKONPI v ZV, AX, Meditsinski tsentar po dermatologia i estetichna meditsina PRIMA DERM OOD

(Case C-319/19)

(2020/C 279/20)

Language of the case: Bulgarian

Referring court

Sofiyski gradski sad

Parties to the main proceedings

Applicant: Komisia za protivodeystvie na koruptsiata i za otnemane na nezakonno pridobitoto imushtestvo (KPKONPI)

Defendants: ZV, AX, Meditsinski tsentar po dermatologia i estetichna meditsina PRIMA DERM OOD

Questions referred

| 1. | Does the confiscation of illegally obtained assets constitute a punitive measure for the purposes of Directive 2014/42/EU (1) of the European Parliament and of the Council of 3 April 2014 on the freezing and confiscation of instrumentalities and proceeds of crime in the European Union or a measure under civil law if:






  A) | the objective of the confiscation of assets as declared by national law is general prevention, that is to say the prevention of the possibility of obtaining and disposing of assets illegally, whereby confiscation is not conditional on the commission of a crime or other offence or on a direct or indirect connection between the offence and the assets obtained; |
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1.

Does the confiscation of illegally obtained assets constitute a punitive measure for the purposes of Directive 2014/42/EU (1) of the European Parliament and of the Council of 3 April 2014 on the freezing and confiscation of instrumentalities and proceeds of crime in the European Union or a measure under civil law if:

A)

the objective of the confiscation of assets as declared by national law is general prevention, that is to say the prevention of the possibility of obtaining and disposing of assets illegally, whereby confiscation is not conditional on the commission of a crime or other offence or on a direct or indirect connection between the offence and the assets obtained;

| B) | the confiscation threatens not an individual asset, but (i) the total assets of the person under inquiry, (ii) property rights of third persons (natural and legal) acquired by the person under inquiry, whether for consideration or not, and (iii) property rights of the contracting partners of the person under inquiry and of the third parties; |
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B)

the confiscation threatens not an individual asset, but (i) the total assets of the person under inquiry, (ii) property rights of third persons (natural and legal) acquired by the person under inquiry, whether for consideration or not, and (iii) property rights of the contracting partners of the person under inquiry and of the third parties;

| (C) | the only condition for confiscation is the introduction of an irrebuttable presumption of the unlawfulness of all the assets for which no legal origin has been identified (without a previously established definition of ‘legal/illegal origin’); |
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(C)

the only condition for confiscation is the introduction of an irrebuttable presumption of the unlawfulness of all the assets for which no legal origin has been identified (without a previously established definition of ‘legal/illegal origin’);

| (D) | in the absence of proof of the origin of the acquisition of assets by the person under inquiry, the law governing the lawfulness of the acquired assets is revised with retroactive effect for a period of ten years for all the persons concerned (person under inquiry, third parties and their contracting partners in the past), whereby at the time of acquisition of the specific property right there was no statutory obligation to provide such proof? |
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(D)

in the absence of proof of the origin of the acquisition of assets by the person under inquiry, the law governing the lawfulness of the acquired assets is revised with retroactive effect for a period of ten years for all the persons concerned (person under inquiry, third parties and their contracting partners in the past), whereby at the time of acquisition of the specific property right there was no statutory obligation to provide such proof?

| 2. | Must the minimum standards of guaranteed rights of owners and third parties contained in Article 8 of Directive 2014/42/ЕU be interpreted as permitting national law and case-law which prescribe confiscation without it being necessary to satisfy the conditions laid down for that purpose in Articles 4, 5 and 6 of that directive if the criminal proceedings against the person concerned have been terminated (as confirmed by the court) owing to the absence of a criminal offence or the person has been acquitted owing to the absence of a criminal offence? |
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2.

Must the minimum standards of guaranteed rights of owners and third parties contained in Article 8 of Directive 2014/42/ЕU be interpreted as permitting national law and case-law which prescribe confiscation without it being necessary to satisfy the conditions laid down for that purpose in Articles 4, 5 and 6 of that directive if the criminal proceedings against the person concerned have been terminated (as confirmed by the court) owing to the absence of a criminal offence or the person has been acquitted owing to the absence of a criminal offence?

| 3. | In particular, must Article 8 of Directive 2014/42/ЕU be interpreted as meaning that the guarantees contained in that provision for the rights of a convicted person whose assets are subject to confiscation are also applicable in a case such as that in the present proceedings which runs in parallel with and independently of the criminal proceedings? |
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3.

In particular, must Article 8 of Directive 2014/42/ЕU be interpreted as meaning that the guarantees contained in that provision for the rights of a convicted person whose assets are subject to confiscation are also applicable in a case such as that in the present proceedings which runs in parallel with and independently of the criminal proceedings?

| 4. | Are the presumption of innocence enshrined in Article 48(1) of the Charter of Fundamental Rights of the European Union, the guarantee of the rights of the defence enshrined in Article 48(2) of the Charter and the principle of effectiveness to be interpreted as allowing national legislation such as that at issue in the main proceedings which:






  — | introduces a presumption for the criminal nature of assets of unknown or unproven origin (Article 1(2) of the Zakon za otnemane v polza na darzhavata na nezakonno pridobito imushtestvo [otm.] (Law on the confiscation of illegally obtained assets (repealed), ‘ZOPDNPI’); |
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4.

Are the presumption of innocence enshrined in Article 48(1) of the Charter of Fundamental Rights of the European Union, the guarantee of the rights of the defence enshrined in Article 48(2) of the Charter and the principle of effectiveness to be interpreted as allowing national legislation such as that at issue in the main proceedings which:

—

introduces a presumption for the criminal nature of assets of unknown or unproven origin (Article 1(2) of the Zakon za otnemane v polza na darzhavata na nezakonno pridobito imushtestvo [otm.] (Law on the confiscation of illegally obtained assets (repealed), ‘ZOPDNPI’);

| — | introduces a presumption of reasonable suspicion that assets have been obtained illegally (Article 21(2) ZOPDNPI, repealed); |
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introduces a presumption of reasonable suspicion that assets have been obtained illegally (Article 21(2) ZOPDNPI, repealed);

| — | reverses the burden of proof regarding the origin of the assets and the means of acquiring them not only for the person under inquiry, but also for third parties, who must prove the origin not of their assets but of those of their legal predecessor, even in cases where the assets are acquired for no consideration; |
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reverses the burden of proof regarding the origin of the assets and the means of acquiring them not only for the person under inquiry, but also for third parties, who must prove the origin not of their assets but of those of their legal predecessor, even in cases where the assets are acquired for no consideration;

| — | introduces ‘asset discrepancy’ as the sole and decisive means of proving the existence of illegally obtained assets; |
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introduces ‘asset discrepancy’ as the sole and decisive means of proving the existence of illegally obtained assets;

| — | reverses the burden of proof for all persons concerned, and not only for the convicted person, even before, or irrespective of, the conviction; |
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reverses the burden of proof for all persons concerned, and not only for the convicted person, even before, or irrespective of, the conviction;

| — | allows the application of a methodology for legal and financial investigation and analysis by means of which the suspicion of the illegal nature of the relevant assets and the value of the assets are determined, and that suspicion is binding on the adjudicating court without the latter being able to exercise full judicial control over the content and application of that methodology? |
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allows the application of a methodology for legal and financial investigation and analysis by means of which the suspicion of the illegal nature of the relevant assets and the value of the assets are determined, and that suspicion is binding on the adjudicating court without the latter being able to exercise full judicial control over the content and application of that methodology?

| 5. | Must Article 5(1) of Directive 2014/42/EU of the European Parliament and of the Council of 3 April 2014 on the freezing and confiscation of instrumentalities and proceeds of crime in the European Union be interpreted as allowing national law to replace a reasonable suspicion (on the basis of the facts and circumstances gathered in the proceedings and assessed by the court) that the assets were obtained by means of a criminal offence with a suspicion (presumption) of the illegality of the origin of the increase in assets which is based solely on the established circumstance that the increase is higher than a value referred to in the national law (for example, EUR 75 000 in ten years)? |
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5.

Must Article 5(1) of Directive 2014/42/EU of the European Parliament and of the Council of 3 April 2014 on the freezing and confiscation of instrumentalities and proceeds of crime in the European Union be interpreted as allowing national law to replace a reasonable suspicion (on the basis of the facts and circumstances gathered in the proceedings and assessed by the court) that the assets were obtained by means of a criminal offence with a suspicion (presumption) of the illegality of the origin of the increase in assets which is based solely on the established circumstance that the increase is higher than a value referred to in the national law (for example, EUR 75 000 in ten years)?

| 6. | Must the right to property, as a general principle of EU law enshrined in Article 17 of the Charter of Fundamental Rights of the European Union, be interpreted as allowing national legislation such as that at issue in the main proceedings which:






  — | introduces an irrebuttable presumption regarding the content and scope of the illegally obtained assets (Article 63(2) ZOPDNPI, repealed); |
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6.

Must the right to property, as a general principle of EU law enshrined in Article 17 of the Charter of Fundamental Rights of the European Union, be interpreted as allowing national legislation such as that at issue in the main proceedings which:

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introduces an irrebuttable presumption regarding the content and scope of the illegally obtained assets (Article 63(2) ZOPDNPI, repealed);

| — | introduces an irrebuttable presumption of the invalidity of transactions acquiring or disposing of assets (Article 65 ZOPDNPI, repealed) or |
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introduces an irrebuttable presumption of the invalidity of transactions acquiring or disposing of assets (Article 65 ZOPDNPI, repealed) or

| — | restricts the rights of third parties holding or asserting independent rights to assets subject to confiscation by means of the procedure for notifying them of the case, as provided for in Article 76(1) ZOPDNPI (repealed)? |
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restricts the rights of third parties holding or asserting independent rights to assets subject to confiscation by means of the procedure for notifying them of the case, as provided for in Article 76(1) ZOPDNPI (repealed)?

| 7. | Do the provisions of Article 6(2) and Article 8(1) to (10) of Directive 2014/42/ЕU have direct effect in so far as they provide guarantees and safeguard clauses for the persons affected by the confiscation or for bona fide third parties? |
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7.

Do the provisions of Article 6(2) and Article 8(1) to (10) of Directive 2014/42/ЕU have direct effect in so far as they provide guarantees and safeguard clauses for the persons affected by the confiscation or for bona fide third parties?

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(1)  OJ 2014 L 127, p. 39.

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