# C_2023205EN.01002401.xml

| 12.6.2023 | EN | Official Journal of the European Union | C 205/24 |
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12.6.2023

EN

Official Journal of the European Union

C 205/24

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Request for a preliminary ruling from the Curtea de Apel Brașov (Romania) lodged on 10 February 2023 — Criminal proceedings against M.A.sr, S.A.C.S., S.A.S.

(Case C-75/23, Parchetul de pe lângă Tribunalul Brașov)

(2023/C 205/27)

Language of the case: Romanian

Referring court

Curtea de Apel Brașov

Appellant

Parchetul de pe lângă Tribunalul Brașov

Defendants

M.A.sr, S.A.C.S., S.A.S.

Civil party

Romanian State

Questions referred

| 1. | Are 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, (1) Articles 2 and 12 of the PFI Directive (2) and Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, (3) with reference to the principle of effective and dissuasive penalties in cases of serious fraud affecting the financial interests of the European Union, and in application of Commission Decision 2006/928/EC, (4) with reference to the last sentence of Article 49(1) of the Charter of Fundamental Rights of the European Union, to be interpreted as precluding a legal situation, such as that in the case in the main proceedings, in which defendants request the application of the principle of the more lenient criminal law, in a context in which a national constitutional court decision has declared as unconstitutional legislation on the interruption of 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) — and in the interim the case-law of the ordinary courts applying the first decision had become settled in the sense that the legislation in question continued to exist, in the form understood following 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? |
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1.

Are 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, (1) Articles 2 and 12 of the PFI Directive (2) and Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, (3) with reference to the principle of effective and dissuasive penalties in cases of serious fraud affecting the financial interests of the European Union, and in application of Commission Decision 2006/928/EC, (4) with reference to the last sentence of Article 49(1) of the Charter of Fundamental Rights of the European Union, to be interpreted as precluding a legal situation, such as that in the case in the main proceedings, in which defendants request the application of the principle of the more lenient criminal law, in a context in which a national constitutional court decision has declared as unconstitutional legislation on the interruption of 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) — and in the interim the case-law of the ordinary courts applying the first decision had become settled in the sense that the legislation in question continued to exist, in the form understood following 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?

| 2. | Are 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, in application of Commission Decision 2006/928/EC in so far as it concerns the commitment to ensuring the efficiency of the Romanian judicial system, with reference to the last sentence of Article 49[(1)] of the Charter of Fundamental Rights of the European Union, which enshrines the principle of the more lenient criminal law, to be interpreted, in relation to the national judicial system as a whole, as precluding a legal situation, such as that in the case in the main proceedings, in which defendants request the application of the principle of the more lenient criminal law, in a context in which a national constitutional court decision has declared as unconstitutional legislation on the interruption of 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) — and in the interim the case-law of the ordinary courts applying the first decision had become settled in the sense that the legislation in question continued to exist, in the form understood following 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? |
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2.

Are 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, in application of Commission Decision 2006/928/EC in so far as it concerns the commitment to ensuring the efficiency of the Romanian judicial system, with reference to the last sentence of Article 49[(1)] of the Charter of Fundamental Rights of the European Union, which enshrines the principle of the more lenient criminal law, to be interpreted, in relation to the national judicial system as a whole, as precluding a legal situation, such as that in the case in the main proceedings, in which defendants request the application of the principle of the more lenient criminal law, in a context in which a national constitutional court decision has declared as unconstitutional legislation on the interruption of 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) — and in the interim the case-law of the ordinary courts applying the first decision had become settled in the sense that the legislation in question continued to exist, in the form understood following 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?

| 3. | If that is 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, for that reason, cannot, without 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 Commission Decision 2006/928/EC, with reference to the last sentence of Article 49[(1)] of the Charter of Fundamental Rights of the European Union, as in the situation in the main proceedings? |
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3.

If that is 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, for that reason, cannot, without 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 Commission Decision 2006/928/EC, with reference to the last sentence of Article 49[(1)] of the Charter of Fundamental Rights of the European Union, as in the situation in the main proceedings?

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(1)  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 (OJ 1995 C 316, p. 49).

(2)  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).

(3)  OJ 2006 L 347, p. l.

(4)  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).

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