Information;Order — ECLI:EU:C:2023:46
Date: 2023-01-12
Language of the case: Romanian
Court formation: Sixth Chamber
Subject matter: Accession;Justice and home affairs;Principles, objectives and tasks of the Treaties;Area of freedom, security and justice
Procedure: Reference for a preliminary ruling - inadmissible
Origin: Romania

Summary C-506/22 – 1 
Case C-506/22 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
26 July 2022 
Referring court: 
Judecătoria Câmpina (Romania) 
Date of the decision to refer: 
1 July 2022 
Accused person: 
SNI 
  
Subject matter of the main proceedings 
Criminal proceedings in which the accused person, SNI, is charged with the 
offence of driving a vehicle without a driving licence; an offence provided for in 
and punishable under Article 335(1) of the Codul penal (Criminal Code) 
Subject matter and legal basis of the request  
An interpretation of the principle of the primacy of EU law is sought pursuant to 
Article 267 TFEU 
Question referred for a preliminary ruling 
Is the principle of the primacy of EU law to be interpreted as permitting ordinary 
national courts to disapply, of their own motion, decisions of the national 
constitutional court which, together with the passivity/inactivity of the legislature 
(Parliament) in complying with the case-law arising from those decisions and 
legislating in such a way as to bring provisions declared unconstitutional into line 
with the Constitution, may create a rule of criminal law which has the effect of 
extinguishing the criminal liability of perpetrators by restricting the effects of the 
limitation period for criminal liability and establishing a de facto mechanism of 
systemic impunity for any acts constituting offences, irrespective of the nature and 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-506/22 
 
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seriousness thereof, through the closure of legal proceedings, if those courts 
consider that that case-law is contrary to Article 3(2) of the Treaty on European 
Union, Article 67(1) and (4) of the Treaty on the Functioning of the European 
Union, or Decision 2006/928? 
Provisions of European Union law and case-law relied on 
Principle of the primacy of EU law, Article 2 and Article 3(2) TEU, as well as 
Article 67(1) and (4) TFEU 
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 
[(‘Decision 2006/928’)] 
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), paragraphs 160 to 163 and 165, as 
well as point 1 of the operative part 
Provisions of national law and case-law relied on 
Codul penal (Criminal Code) 
- Article 335(1), under which the driving of a motor vehicle on public roads 
by a person who does not hold a driving licence is punishable by a term of 
imprisonment of between one and five years; 
- Article 154(1)(d) of the Criminal Code, which provides that the limitation 
period for criminal liability is five years where the law provides for a term of 
imprisonment of not less than one year, but not more than five years, in respect of 
the offence committed; 
- Article 155(1), in the version in force from 1 February 2014 to 29 May 
2022, under which the completion of any procedural action in a case constitutes an 
interruption of the limitation period for criminal liability; 
- Article 155(1), in the version in force as of 30 May 2022, under which the 
completion of any procedural action in a case which, by law, must be notified to 
the suspect or accused person constitutes an interruption of the limitation period 
for criminal liability; 
- Article 155(4), under which if the limitation periods laid down in 
Article 154 have been exceeded once again, they are to be regarded as completed 
regardless of the number of interruptions. 
Decision No 297 of 26 April 2018 of the Curtea Constituțională (Constitutional 
Court, Romania) [(‘Decision No 297/2018’)], according to which ‘the legislative 
SNI 
 
3 
solution which provides for the interruption of the limitation period for criminal 
liability through the completion of “any procedural action in a case”, pursuant to 
Article 155(1) of the Criminal Code, is unconstitutional’ 
Decision No 358 of 26 May 2022 of the Curtea Constituțională (Constitutional 
Court) [(‘Decision No 358/22’)], according to which the provisions of 
Article 155(1) of the Criminal Code are unconstitutional 
Succinct presentation of the facts and procedure in the main proceedings 
1 SNI is charged before the referring court, the Judecătoria Câmpina (Court of First 
Instance, Câmpina, Romania), with the offence of driving a vehicle without a 
driving licence. This offence, provided for in and punishable under Article 335(1) 
of the Criminal Code, was committed, according to the information set out by the 
public prosecutor in the application initiating proceedings, on 11 June 2017. 
2 The referring court, which was seised on 5 April 2022, states that the date on 
which the offence was committed is the factor used to determine the time from 
which the limitation period for criminal liability starts to run. 
3 The general limitation period for criminal liability for the offence concerned, with 
respect to the sentencing range laid down in the criminal-law provision set out in 
Article 335(1) of the Criminal Code, is five years, under Article 154(1)(d) of that 
code. 
4 Ordonanța de urgență a Guvernului nr. 71/2022 (Government Emergency Order 
No 71/2022; ‘OUG No 71/2022’) amended Article 155(1) of the Criminal Code 
with effect from 30 May 2022, so that it is no longer ‘the completion of any 
procedural action in a case’, but rather ‘the completion of any procedural action in 
a case which, by law, must be notified to the suspect or accused person’, which 
interrupts the limitation period. 
5 Under Article 155(4) of the Criminal Code, the special limitation period for 
criminal liability for the offence in question is ten years and results from the 
general limitation period for criminal liability being exceeded once again, 
regardless of the number of interruptions. 
6 In Decision No 1092/2012 of the Curtea Constituțională (Constitutional Court, 
Romania), that court ruled that ‘the limitation period falls within the scope of 
substantive criminal law and not procedural criminal law and, therefore, the 
limitation period constitutes a ground for extinguishing criminal liability. … 
When criminal liability is extinguished, the criminal prosecution is also 
extinguished, but this is a derivative effect, of a procedural nature, which follows 
from the first effect – the extinction of criminal liability (an effect of a substantive 
nature)’. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-506/22 
 
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7 By Decision No 297/2018, the Curtea Constituțională (Constitutional Court) 
declared that the legislative solution which provides for the interruption of the 
limitation period through the completion of ‘any procedural action in a case’, 
pursuant to Article 155(1) of the Criminal Code, is unconstitutional. 
8 In its analysis, the Curtea Constituțională (Constitutional Court) stated that it is 
necessary to guarantee the foreseeability of the effects of Article 155(1) of the 
Criminal Code in relation to the person who has committed an offence provided 
for in criminal law, including by ensuring that that person is aware of the fact that 
the limitation period for criminal liability has been interrupted and that a new 
limitation period has started to run. To accept a contrary view would create in the 
person concerned, where procedural actions are completed which are not notified 
to the suspect or accused person and which have the effect of interrupting the 
limitation period for criminal liability, a state of perpetual uncertainty caused by 
the inability to make a reasonable assessment of the time within which he or she 
may be held criminally liable for the offences committed; such uncertainty may 
last until the special limitation period expires. Article 155(1) of the Criminal Code 
is devoid of foreseeability, as well as being contrary to the principle of nullum 
crimen sine lege, since the expression ‘any procedural action’ used therein also 
includes actions which are not notified to the suspect or accused person. 
9 Following Decision No 297/2018 of the Curtea Constituțională (Constitutional 
Court), several courts requested the Înalta Curte de Casație și Justiție (High Court 
of Cassation and Justice, Romania) to give a preliminary ruling in order to 
resolve, in principle, certain questions of law. 
10 By Decision No 5 of 21 March 2019 on the interpretation of Article 155(1) of the 
Criminal Code, the Înalta Curte de Casație și Justiție – Completul pentru 
dezlegarea unor chestiuni de drept în materie penală (High Court of Cassation and 
Justice – Panel for the resolution of certain questions of criminal law) ruled that 
the conditions for admissibility laid down in Article 475 of the Code of Criminal 
Procedure had not been satisfied cumulatively and dismissed as inadmissible the 
requests that it give a preliminary ruling in order to resolve, in principle, the 
questions of law raised. In essence, it followed the case-law of the Curtea 
Constituțională (Constitutional Court), according to which ‘the Înalta Curte de 
Casație și Justiție (High Court of Cassation and Justice) does not have jurisdiction 
to rule on the effects of a decision of the Curtea Constituțională (Constitutional 
Court) or to give binding rulings which contradict decisions of the Curtea 
Constituțională (Constitutional Court); […] asking the supreme court for 
additional clarifications […] is tantamount to disregarding the unlimited 
jurisdiction of the Curtea Constituțională (Constitutional Court) as regards the 
review of unconstitutionality’. 
11 By Decision No 25 of 11 November 2019, the Înalta Curte de Casație și Justiție – 
Completul pentru soluționarea recursului în interesul legii (High Court of 
Cassation and Justice – Panel for determining appeals in the interest of the law) 
found that there are, following the publication in the Monitorul Oficial al 
SNI 
 
5 
României (Official Journal of Romania) of Decision No 297/2018 of the Curtea 
Constituțională (Constitutional Court), non-uniform practices as regards the 
interpretation and application of Article 155(1) of the Criminal Code regarding the 
interruption of the limitation period for criminal liability through the completion 
of any procedural action in a case; however, it ruled that the notice of appeal did 
not relate to the interpretation of the law, but rather to ascertaining the effects of 
Decision No 297/2018 on that legislation, and therefore dismissed the appeal as 
inadmissible. 
12 The referring court refers to non-uniform case-law of the ordinary courts. Thus, 
the majority view is that Decision No 297/2018 of the Curtea Constituțională 
(Constitutional Court) is an interpretative decision, and that Article 155(1) of the 
Criminal Code remains substantively in force in the legislation and continues to 
produce effects, but the only actions which can have the effect of interrupting the 
limitation period for criminal liability are those which are notified to the suspect 
or accused person. According to a second, minority opinion, the decision in 
question is a simple/extreme one with the result that, since the legislation in 
question has been declared unconstitutional, the interruption of the limitation 
period for criminal liability no longer applies. 
13 For its part, the Înalta Curte de Casație și Justiție (High Court of Cassation and 
Justice) found that the limitation period can be interrupted only through the 
completion of an action which, by law, must be notified, as the Curtea 
Constituțională (Constitutional Court) has expressly ruled. 
14 By Decision No 358/2022, the Curtea Constituțională (Constitutional Court) 
declared that the provisions of Article 155(1) of the Criminal Code are 
unconstitutional, stating, in essence, as follows: ‘This court considers that, on 
account of the effects which it produces, [Decision No 297/2018] is, in legal 
terms, a simple/extreme decision, since […] the Curtea Constituțională 
(Constitutional Court) objected to the only legislative solution governed by 
Article 155(1) of the Criminal Code. […] This court observes that, in 
paragraph 34 of [Decision No 297/2018], [the Curtea Constituțională 
(Constitutional Court)] highlighted the fact that the legislative solution set out in 
the Criminal Code of 1969 satisfied the requirements of clarity and foreseeability, 
since it provided for interruption of the limitation period for criminal liability only 
through the completion, in a case in which the person concerned was the suspect 
or accused person, of an action which, by law, had to be notified. This court notes, 
however, that the statement of the legislative solution set out in the previous 
legislative act had a guiding role and can in no way be attributed an absolute 
nature in the sense of requiring the legislature to adopt a rule identical to that 
contained in the Criminal Code of 1969. Thus, this court emphasises that, 
although [the Curtea Constituțională (Constitutional Court)] objected to the 
legislative solution provided for in Article 155(1) of the Criminal Code, because it 
provided that the limitation period can be interrupted through the completion of 
procedural actions which are not made known to the suspect or accused person, 
whether through notification or through that person being present during the 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-506/22 
 
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completion of those actions, the Curtea Constituțională (Constitutional Court) did 
not require that all actions notified to the suspect or accused person or all actions 
involving the suspect or accused person be regarded as actions capable of 
interrupting the limitation period for criminal liability, since it is for the legislature 
to determine what these are, provided that they satisfy the requirements mentioned 
by the constitutional court. […] Precisely in view of the scope of the legislature’s 
competence, this court observes that, in paragraph 34 of [Decision No 297/2018], 
[the Curtea Constituțională (Constitutional Court)] highlighted the points of 
reference of the constitutional approach which the legislature, and not the 
judiciary, was required to adopt, and that, under Article 147 of the [Constituția 
României (Romanian Constitution) (‘the Constitution’)], it was required to 
intervene by means of legislation and to establish in a clear and foreseeable 
manner the cases in which the limitation period for criminal liability is 
interrupted. […] This court states that such a consequence is the result of a failure 
by the legislature to comply with its obligations under the Constitution and of its 
passivity, even despite the fact that the decisions of the Înalta Curte de Casație și 
Justiție (High Court of Cassation and Justice) have been pointing out since 2019 
the non-uniform practice resulting from the lack of legislative intervention. This 
court also emphasises that the reasoning behind [Decision No 297/2018] was not 
to abolish limitation periods for criminal liability or the interruption of those 
periods, but to bring the provisions of Article 155(1) of the Criminal Code into 
line with constitutional requirements. […] This court notes that the situation 
created by the passivity of the legislature, following the publication of the 
aforementioned decision upholding the objection of unconstitutionality, 
constitutes an infringement of Article 1(3) and (5) of the Constitution, which 
enshrines the rule of law of the Romanian State and the primacy of the 
Constitution. […] The legislature infringed Article 147(4) of the Constitution by 
ignoring the binding effects of [Decision No 297/2018], thus creating a more 
serious defect of unconstitutionality arising from the non-uniform application of 
the expression “completion … constitutes an interruption of the limitation period 
for criminal liability”, which clearly does not provide for any case of interruption 
of the limitation period for criminal liability’. 
15 [Decision No 358/2022] was followed by the adoption and entry into force, on 
30 May 2022, of OUG No 71/2022. 
The essential arguments of the parties in the main proceedings 
16 The Parchetul de pe lângă Judecătoria Câmpina (Public Prosecutor’s Office 
attached to the Court of First Instance, Câmpina) considers it permissible to refer a 
question to the Court of Justice for a preliminary ruling and SNI leaves it to the 
referring court to assess the need for such a reference. 
SNI 
 
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Succinct presentation of the reasoning in the request for a preliminary ruling 
17 The referring court recalls that, in the Romanian criminal justice system, the 
limitation period for criminal liability is an instrument of substantive criminal law 
and that that nature of the limitation period for criminal liability creates 
difficulties from the point of view of more favourable criminal law. 
18 The Curtea Constituțională (Constitutional Court) has ruled that its decisions are 
to be published in the Monitorul Oficial al României (Official Journal of 
Romania) and that, from the date of publication, they are to be generally binding 
and produce effects only in respect of the future. The ex nunc effect of the acts of 
that court constitutes an application of the principle of non-retroactivity, a 
fundamental guarantee of constitutional rights capable of ensuring legal certainty 
and citizens’ confidence in the legal system and a prerequisite for respect for the 
separation of powers, thus helping to strengthen the rule of law. 
19 As regards the principle of stability/certainty in legal relations, the Curtea 
Constituțională (Constitutional Court) has found that, although it is not expressly 
enshrined in the Constitution, that principle is inferred both from Article 1(3) 
thereof, under which Romania is a democratic and social state governed by the 
rule of law, and from the preamble to the Convention for the Protection of Human 
Rights and Fundamental Freedoms, as interpreted by the European Court of 
Human Rights in its case-law. With regard to that principle, the [European Court 
of Human Rights] has found that one of the fundamental elements of the primacy 
of law is the principle of certainty in legal relations (judgments of 6 June 2005, 
Androne v. Romania, and of 7 October 2009, Stanca Popescu v. Romania). 
20 As regards more favourable criminal law and, more specifically, the concrete 
determination thereof, the Curtea Constituțională (Constitutional Court) has ruled 
that it ‘concerns the application of the law, and not of the more favourable 
provisions since it is not possible to combine provisions of the old and the new 
law, as this would lead to a lex tertia, which, notwithstanding Article 61 of the 
Constitution, would allow a court to legislate’. 
21 The referring court emphasises that, in its view, the reasoning mechanism used by 
the Curtea Constituțională (Constitutional Court) in Decision No 358/2022 gives 
rise to a series of retroactive effects and neutralises national case-law which has 
become almost unanimous, consolidated and settled, according to which the 
limitation period can be interrupted only through the completion, in a case in 
which the person concerned is a suspect or accused person, of an action which, by 
law, must be notified. 
22 The referring court [also] emphasises that the subject matter of the objections of 
unconstitutionality, on which Decision No 297/2018 and Decision No 358/2022 
were based, is Article 155(1) of the Criminal Code: ‘the completion of any 
procedural action in a case constitutes an interruption of the limitation period for 
criminal liability’. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-506/22 
 
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23 Having regard also to the classification given, around four years later, by a new 
decision, to the nature/category of Decision No 297/2018, the referring court finds 
that the Curtea Constituțională (Constitutional Court) has, on two occasions, by 
two separate decisions upholding objections of unconstitutionality, declared 
Article 155(1) of the Criminal Code – a text which had the same content between 
1 February 2014 and 30 May 2022 – incompatible with the Constitution. 
24 In the view of the Judecătoria Câmpina (Court of First Instance, Câmpina), 
although it does not do so expressis verbis, the Curtea Constituțională 
(Constitutional Court) tacitly requires the ordinary courts to rule that all offences 
committed before the entry into force, on 30 May 2022, of OUG No 71/2022 are 
subject exclusively to the single general limitation periods laid down in 
Article 154 of the Criminal Code. 
25 Moreover, there is no effective mechanism by which the legislature can be 
induced to comply with the case-law of the Curtea Constituțională (Constitutional 
Court) and exercise its legislative prerogatives within the 45-day period laid down 
by Article 147(1) and (4) of the Constitution. In criminal matters, it is customary 
for the legislature not to comply with the abovementioned article, adopting 
conduct characterised by passivity/inactivity with respect to its obligation to 
comply with the case-law arising from the decisions of the Curtea Constituțională 
(Constitutional Court) and to legislate in such a way as to bring provisions 
declared unconstitutional into line with the Constitution. 
26 However, Decision No 358/2022, on the one hand, and the passivity/inactivity of 
the legislature, on the other, lead to the creation of effects specific to the adoption 
of an actual covert amnesty, the basis of which is the existence of a single general 
limitation period for criminal liability. That period is not subject to interruption 
and cannot be interrupted in such a way that, after its interruption, a new period 
starts to run, and is intended to be more favourable criminal law. All perpetrators 
of offences committed before 30 May 2022 benefit from, or are entitled to benefit 
from, that period, regardless of whether criminal proceedings are underway or 
final judgments have been given, on account of the existence and operation of the 
special limitation period in respect of offences for which the single general 
limitation period had expired at the time of the judgment. 
27 Therefore, in the case of offences committed before 30 May 2022, the general 
limitation period for criminal liability alone would apply, being regarded as a 
single period regardless of the frequency and nature of the procedural actions 
completed in the case, which would have no interruptive effect. The coexistence 
of the special and general limitation periods between the two decisions of the 
Curtea Constituțională (Constitutional Court) would be fictitious/illusory. The 
special limitation period would be inapplicable and there would be no cases of 
interruption of the limitation period laid down in the Criminal Code, which means 
that a new general limitation period for criminal liability would start to run. 
SNI 
 
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28 That mechanism would operate, without exception, in the case of any acts 
constituting criminal offences, whatever the nature and seriousness thereof, 
including fraud and any other illegal activity to the detriment of the European 
Union’s financial interests, as well as corruption, in respect of which Romania has 
entered into express and distinct obligations under EU law, on which the Court of 
Justice of the European Union ruled in its 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). 
29 Moreover, such a situation is likely to lead, through the extraordinary remedy of 
an action for annulment, to the challenging and removal of the force of res 
judicata of final criminal convictions through the setting aside of judgments given 
by the courts after the publication of Decision No 297/2018, which held, until the 
publication of Decision No 358/2022, that the completion of any procedural action 
notified to the suspect or accused person constituted an interruption of the 
limitation period for criminal liability, and made final judgments within the 
special limitation period for criminal liability, after the expiry of the single general 
limitation period. 
30 In the view of the referring court, Decision No 358/2022 is, in view of the effects 
which it may produce, contrary to Article 3(2) TEU, Article 67(1) and (4) TFEU, 
and Decision 2006/928, since it makes it impossible for the European Union, in 
general, and Romania, in particular, to provide citizens with an area of justice, as a 
result of the failure, by Romania, to fulfil its obligation to ensure the efficiency of 
court proceedings. 
31 The referring court considers that the safeguarding of an area of justice in a State 
of the Union prevails, in the present case, over the binding nature of a decision of 
the national constitutional court, which is subject to the passivity of the 
legislature, in the circumstances described. 
32 Having regard also to the obligation to verify the necessary observance of the 
fundamental rights guaranteed in Article 47 of the Charter of Fundamental Rights 
of the European Union [(‘the Charter’)], the classification and maintenance of the 
nature/category of Decision No 297/2018 as an interpretative decision, together 
with the disapplication of Decision No 358/2022 – with the result that cases of 
interruption of the limitation period for criminal liability through the completion, 
in a case in which the person concerned is the suspect or accused person, of an 
action which, by law, must be notified, are maintained for the period from 
1 February 2014 to 30 May 2022 – affords a national standard of protection in 
conformity with Article 47 of the Charter and makes it possible to guarantee (i) 
the administration of criminal justice (an essential component of the Union’s area 
of justice) and (ii) observance of the principle of the rule of law (a principle 
common to all the Member States).