Information;Order — ECLI:EU:C:2022:300
Date: 2022-04-26
Language of the case: Bulgarian
Court formation: Sixth Chamber
Subject matter: Transport;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Bulgaria

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:  
15 November 2020  
Referring court:  
Apelativen sad Sofia (Bulgaria) 
Date of the decision to refer:  
9 November 2020  
Prosecuting authority:  
Apelativna prokuratura Sofia (Bulgaria)  
Convicted person/offender:  
VD 
  
Subject matter of the main proceedings 
The main proceedings are extraordinary proceedings for the review of a final 
judgment. They were brought before the referring court at the request of a public 
prosecutor seeking to set aside a judgment delivered in the appeal proceedings and 
to remit the matter for a fresh examination by a different formation of the 
appellate court, or, in the alternative, to set aside the judgment of the appellate 
court and to uphold the judgment of the court of first instance by which the 
offender was found guilty of committing a criminal offence but was released from 
criminal liability. The act examined by the abovementioned courts consists in the 
driving of a motor vehicle while subject to an administrative penalty in the form 
of a suspension of the right to drive. 
Subject matter and legal basis of the request 
The request for a preliminary ruling is made pursuant to the second paragraph of 
Article 267 TFEU and concerns the interpretation of the principle of legality of 
criminal offences and penalties and the interpretation of Article 49(3) of the 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-654/20 
 
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Charter of Fundamental Rights of the European Union (‘the Charter’). The 
referring court seeks clarification as to whether national legislation is compatible 
with EU law if it provides for the possibility of imposing, for the same act, either 
an administrative sanction or a penalty for committing a criminal offence, without 
laying down criteria against which it is possible to assess whether the offender 
incurs administrative or criminal liability. 
Questions referred for a preliminary ruling 
1. Does the principle of legality of criminal offences and penalties allow national 
legislation which provides for both administrative and criminal liability for the 
same act, namely driving a motor vehicle while subject to a coercive 
administrative measure in the form of a driving licence suspension, in the absence 
of any criteria allowing for an objective distinction to be made between the two 
types of liability? 
2. Should the Court of Justice of the European Union answer the first question in 
the negative, what powers does the national court have to ensure the effective 
application of the principles of EU law? 
3. Is a penalty involving deprivation of liberty of up to three years and the 
imposition of a fine of 200 to 1 000 Bulgarian leva (BGN) proportionate for the 
purpose of Article 49(3) of the Charter of Fundamental Rights of the European 
Union as regards the criminal offence of driving a motor vehicle while subject to a 
coercive administrative measure in the form of a driving licence suspension? 
EU legislation and case-law relied on 
Treaty on European Union: Article 6(3) 
Treaty on the Functioning of the European Union: Article 90 and Article 91(1)(c) 
Charter of Fundamental Rights of the European Union: Article 49 
Directive 2006/126/EC of the European Parliament and of the Council of 
20 December 2006 on driving licences: Article 11(2) 
European Convention on the Protection of Human Rights and Fundamental 
Freedoms: Article 5(1) 
Judgment of 3 May 2007, Advocaten voor de Wereld, C-303/05, EU:C:2007:261, 
paragraphs 49 and 50 and the case‑ law cited 
Judgment of 12 February 2019, TC, C-492/18 PPU, EU:C:2019:108, 
paragraphs 59 and 60 and the case‑ law cited 
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Judgment of 16 July 2015, Chmielewski, C-255/14, EU:C:2015:475, paragraph 21 
and the case‑ law cited 
Order of 12 July 2018, Pinzaru and Cirstinoiu, C-707/17, not published, 
EU:C:2018:574, paragraph 26 
Provisions of national law relied on 
Nakazatelen kodeks (Criminal Code): Article 9(2), Article 78a and 343c. 
Nakazatelno-protsesualen kodeks (Code of Criminal Procedure): Article 301(1), 
Article 305(6), Articles 375 to 380. 
Zakon za dvizhenieto po patishtata (Law on road traffic): Articles 150, 150a, 
151a, 171, 177. 
Naredba No 3 ot 11.5.2011 za iziskvaniata za fizicheska godnost kam vodachite 
na motorni prevozni sredstva i reda za izvarshvane na meditsinskite pregledi za 
ustanovyavane na fizicheskata godnost za vodachite ot razlichnite kategorii 
(Ordinance No 3 of 11 May 2011 on the requirements for the physical fitness of 
drivers of motor vehicles and the procedure for conducting medical examinations 
to establish the physical fitness of drivers of various categories), issued by the 
Minister for Health 
Naredba No 3 ot 29.08.2011 za pridobivane na pravosposobnost za provezhdane 
na izpiti na kandidatite za vodachi na motorni prevozni sredstva (Ordinance No 3 
of 29 August 2011 on obtaining the qualification required to conduct 
examinations for persons applying to become drivers of motor vehicles), issued by 
the Minister for Education, Youth and Science 
Naredba No 38 ot 16.04.2004 za usloviata i reda za provezhdaneto na izpitite na 
kandidati za pridobivane na pravosposobnost za upravlenie na motorno prevozno 
sredstvo i reda za provezhdane na proverochnite izpiti (Ordinance No 38 of 
16 April 2004 on the conditions and procedure for conducting examinations for 
persons applying for the right to drive and the procedure for conducting 
confirmatory examinations), issued by the Minister for Transport and 
Communications 
Naredba No 31 ot 26.07.1999 za iziskvaniata, usloviata i reda za pridobivane na 
pravosposobnost za upravlenie na motorno prevozno sredstvo (Ordinance No 31 
of 26 July 1999 on the requirements, conditions and procedure for acquiring the 
right to drive), issued by the Minister for Transport and the Minister for Education 
and Science 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-654/20 
 
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Succinct presentation of the facts and procedure in the main proceedings 
1 The accused person is entitled to drive and holds a driving licence. On 9 May 
2018, his driving licence was withdrawn by an order imposing a coercive 
administrative measure, issued by the Oblasten Direktor (Regional Director) of 
the Ministerstvo na vatreshnite raboti (Ministry of the Interior, Bulgaria), on the 
ground that that person had not paid fines imposed on him as administrative 
penalties for traffic offences that he had committed. Pursuant to the order, his 
driving licence was to be suspended until he paid the fines owed. On 23 August 
2018, when driving a passenger car on a busy boulevard in Blagoevgrad without 
his lights on, the accused person was stopped for a police check. The police 
officers found that his driving licence had been suspended. As a result, he was 
issued with a notice establishing an administrative offence. 
2 On 19 March 2019, by a decision of a public prosecutor of the Rayonna 
prokuratura Blagoevgrad (District Public Prosecutor’s Office, Blagoevgrad, 
Bulgaria), criminal proceedings were brought against the accused for driving a 
motor vehicle, on 23 August 2018, while subject to a coercive administrative 
measure in the form of a driving licence suspension – an act classified by the 
public prosecutor as a criminal offence pursuant to Article 343c(3) of the 
Nakazatelen kodeks (Criminal Code; ‘the NK’) in conjunction with 
Article 343c(1) thereof. Pursuant to that provision, a person who drives a motor 
vehicle while subject to a coercive administrative measure in the form of a driving 
licence suspension is to be punished by deprivation of liberty of up to three years 
and the imposition of a fine of 200 to 1 000 Bulgarian leva (BGN). During 
questioning, the accused person admitted the facts constituting the offence and 
explained that his work required him to drive a vehicle, that he was suffering 
financially because he was unable to work due to the withdrawal of his driving 
licence, and that on the day on which he had committed the offence, he needed to 
drive his vehicle in order to buy urgently needed medication for his seriously ill 
brother. 
3 In the proceedings at first instance, the Rayonen sad Blagoevgrad (District Court, 
Blagoevgrad, Bulgaria) found that the accused person had committed a criminal 
offence, as he had driven the car on a busy boulevard and had thereby acted 
recklessly and failed to comply with the traffic rules. At the same time, that court 
released him from criminal liability pursuant to Article 78a(1) of the NK, as, in 
accordance with that provision, the offence is punishable by deprivation of liberty 
of up to three years and until then, the accused person had not been convicted and 
released from criminal liability. Pursuant to that same provision, which provides 
for a fine of BGN 1 000 to 5 000, a fine of BGN 1 000 was imposed on him. 
4 Following an appeal on the merits, the Okrazhen sad Blagoevgrad (Regional 
Court, Blagoevgrad, Bulgaria) set aside the judgment of the district court, 
acquitted the accused and held that his act did not constitute a criminal offence, as 
it gave rise to only an insignificant degree of danger to society and therefore had 
to be classified as an administrative offence. That court therefore imposed an 
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administrative sanction of BGN 300 on him pursuant to Article 177(1)(2) of the 
Zakon za dvizhenieto po patishtata (Law on road traffic; ‘the ZDvP’). That 
provision provides that a person who drives a motor vehicle after his or her 
driving licence has been suspended is to be punished by the imposition of a fine of 
BGN 100 to 300. The court ruling on the appeal on the merits found that although 
the accused had been repeatedly punished for administrative offences under the 
ZDvP, the offence that was the subject of the proceedings gave rise to only an 
insignificant degree of danger to society, as the accused had not been convicted or 
punished for criminal offences committed by him, nor had any administrative 
penalties been imposed on him for an offence related to the driving of a motor 
vehicle without a driving licence during the period in which his right to drive had 
been withdrawn or his driving licence had been suspended. The abovementioned 
court also took account of the fact that the accused person had confessed to the 
facts established, expressed regret for the incident and stated that the reason for 
driving the vehicle was that he needed to buy medication for his sick brother. 
5 The proceedings before the referring court were brought at the request of the 
Apelativen prokuror (appellate public prosecutor) of the Apelativna prokuratura 
Sofia (Appellate Public Prosecutor’s Office, Sofia) seeking to set aside the 
judgment of the Okrazhen sad Blagoevgrad (Regional Court, Blagoevgrad, 
Bulgaria) and to remit the matter for a fresh examination by a different formation 
of that court. In the alternative, the appellate public prosecutor requests that the 
judgment of the appellate court be set aside and the judgment of the Rayonen sad 
Blagoevgrad (District Court, Blagoevgrad, Bulgaria) be upheld. 
The essential arguments of the parties in the main proceedings 
6 The appellate public prosecutor takes the view that the Okrazhen sad Blagoevgrad 
(Regional Court, Blagoevgrad, Bulgaria) committed an error of substantive law in 
finding that the offence that is the subject of the proceedings gave rise to only an 
insignificant degree of danger to society. The appellate public prosecutor is of the 
view that the requirements for the applicability of Article 9(2) of the NK – 
pursuant to which an act which formally fulfils the criteria of a statutory criminal 
offence, but, owing to its insignificance, does not represent a danger to society or 
clearly gives rise to only an insignificant degree of danger to society, is not to be 
classified as a criminal offence – are not met because the accused person has been 
repeatedly punished for violations of the ZDvP. The appellate public prosecutor 
maintains that the act of the accused fulfils the criteria for constituting a criminal 
offence under Article 343c(3) of the NK in conjunction with Article 343c(1) 
thereof and that, for that offence, it is not necessary that the danger to society 
actually materialises. 
7 The referring court does not present any arguments made by the accused person. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-654/20 
 
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Succinct presentation of the reasoning in the request for a preliminary ruling 
8 The referring court states that Directive 2006/126 empowers Member States to 
adopt their own national criminal and police laws that provide for criminal or 
administrative measures in connection with the withdrawal or cancellation of the 
right to drive. 
9 The referring court adds that, according to the Court’s settled case-law, in the 
absence of harmonisation of EU legislation in the field of penalties applicable 
where conditions laid down by arrangements under such legislation are not 
complied with, Member States are empowered to choose the penalties which seem 
to them to be appropriate. They must, however, exercise that power in accordance 
with EU law and its general principles, and consequently in accordance with the 
principles of legality and proportionality (judgment of 16 July 2015, Chmielewski, 
C-255/14, EU:C:2015:475, paragraph 21 and the case-law cited, and order of 
12 July 2018, Pinzaru and Cirstinoiu, С-707/17, not published, EU:C:2018:574, 
paragraph 26). In particular, the administrative or punitive measures permitted 
under national legislation must not go beyond what is necessary in order to attain 
the objectives legitimately pursued by that legislation. 
10 The referring court takes the view that the present dispute relates to the 
application of EU law in the field of common transport policy and, in particular, 
measures to improve transport safety. It finds that the Bulgarian court, in so far as 
it applies EU law, may refer to Article 49 of the Charter in the present case, 
because, under Article 51 of the Charter, the latter is applicable in the main 
proceedings. 
11 For the purpose of transposing Directive 2006/126 into national law, the Bulgarian 
legislature adopted amendments to the ZDvP and the abovementioned Ordinance 
No 3 of 11 May 2011, Ordinance No 3 of 29 August 2011 and Ordinance No 31 
of 26 July 1999. On the other hand, the legislation on the sanctions laid down for 
failures to comply with the requirement to drive a motor vehicle with a duly 
issued and valid driving licence was already in force before the adoption of the 
directive. In particular, the criminal offences under Article 343c(1) and (2) of the 
NK were adopted in 1995, and the administrative offences under Article 177(1) of 
the ZDvP have existed since the promulgation of that law in 1999. 
12 In 2016, a new criminal offence was introduced, namely that under 
Article 343c(3) of the NK, criminalising the driving of a motor vehicle while 
subject to a coercive administrative measure in the form of a driving licence 
suspension. However, a completely identical administrative offence had already 
been provided for by Article 177(1)(2) of the ZDvP since the promulgation of that 
law in 1999. 
13 The referring court states that until the introduction of that new criminal offence 
under Article 343c(3) of the NK in 2016, it was clear and unambiguous from the 
criminal offences under Article 343c(1) and (2) of the NK that there is a 
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relationship of subsidiarity between criminal law and the law on administrative 
offences. Accordingly, pursuant to Article 343c(1) of the NK, a person who drives 
a motor vehicle while subject to a penalty withdrawing the right to drive, after 
having been punished for the same act in administrative proceedings, is to incur 
criminal liability. Pursuant to Article 343c(2) of the NK, a person who commits 
such an act within one year of having been punished for that act in administrative 
proceedings for driving a motor vehicle without a driving licence is to incur 
criminal liability. Consequently, a clear distinction between criminal and 
administrative liability is made for criminal offences under Article 343c(1) and (2) 
of the NK, since the prior imposition of an administrative penalty is a mandatory 
prerequisite for being prosecuted for those criminal offences. In both cases, 
therefore, criminal liability is subsidiary to liability for an administrative offence. 
14 By contrast, the new criminal offence under Article 343c(3) of the NK does not 
require the prior imposition of an administrative penalty for criminal liability to be 
incurred. Under those circumstances, there is a lack of any objective criterion for 
distinguishing the criminal offence under Article 343c(3) of the NK from the 
already existing and completely identical administrative offence under 
Article 177(1)(2) of the ZDvP. The differences between the abovementioned 
criminal offences and the administrative offence lie in the sanctions provided for 
in each case and the procedural rules (under criminal or administrative law) for 
imposing them, but not in the objective constituent elements of the offences. 
15 The referring court states that the legislature has not provided any specific 
justification for criminalising the driving of a motor vehicle during the period of 
suspension of the driving licence. In fact, the first draft law to amend and 
supplement the NK did not provide for either an amendment of or a supplement to 
Article 343c of the NK. The proposal for the adoption of a new paragraph 3 for 
that provision was submitted by two members of parliament only after the draft 
law had been adopted at first reading. The two members of parliament justified the 
proposal in one sentence, from which it is clear that they perceived the proposed 
new criminal offence as being identical to those under Article 343c(1) and (2) of 
the NK. Reasons for the insertion of the new paragraph 3 in that article were not 
discussed either in the Legal Committee or in the debates held at the first and 
second reading of the draft law in the plenary session of the Narodno sabranie 
(National Assembly). 
16 Pursuant to Article 11(3) of the Zakon za normativnite aktove (Law on normative 
legal acts; ‘the ZNA’), normative legal acts are repealed, amended or 
supplemented by an express provision of the new, amending or supplementing act. 
Following the supplementation of Article 343c by the new paragraph 3 in 2016, 
the administrative offence under Article 177(1)(2) of the ZDvP was not expressly 
repealed, even though the legislature had the opportunity to do so when other 
amendments were made to that article in 2018; thus, that administrative offence 
remained unchanged. 
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17 In the Bulgarian legal literature and case-law, it is uniformly assumed that the 
main distinction between liability under the law on administrative offences and 
that under criminal law is made on the basis of the degree of danger that the act 
poses to society. However, the legislature has not made provision for any 
additional objective circumstances that would establish an increased degree of 
danger to society on the part of the act in question and would require its 
criminalisation. The referring court states that the driving of a motor vehicle 
during the period of suspension of the driving licence poses less of a risk to 
society than the driving of a motor vehicle by an offender on whom a penalty 
withdrawing his or her right to drive has already been imposed and who has been 
sanctioned for that offence in administrative proceedings. 
18 In the absence of any objective criterion for determining whether the act is a 
criminal offence or an administrative offence, the assessment is ultimately left 
entirely at the discretion of the administrative authority, which may impose an 
administrative penalty in the form of a fine or, alternatively, request that the 
public prosecutor bring criminal proceedings for a criminal offence committed. 
Under those circumstances, the parallel application of the criminal offence under 
Article 343c(3) of the NK and the administrative offence under Article 177(1)(2) 
of the ZDvP leads to unequal treatment of perpetrators in respect of the same act, 
as sanctions of varying degrees of severity may be imposed on them: deprivation 
of liberty of up to three years as well as a fine of BGN 200 to 1 000 if it is 
accepted that a criminal offence has been committed, or a fine of BGN 100 to 300 
if it is accepted that an administrative offence has been committed. 
19 The referring court observes that the difference in treatment of the same type of 
cases runs counter to the principle of equal treatment of citizens enshrined in 
Article 6 of the Konstitutsia na Republika Bulgaria (Constitution of the Republic 
of Bulgaria). The fact that citizens are unable to foresee the consequences of the 
act is incompatible with fundamental principles of EU law, such as the principles 
of legal certainty and the protection of legitimate expectations. Furthermore, the 
lack of correspondence, as provided by the law, between the danger posed to 
society and the criminal nature of the act infringes Article 49 of the Charter, 
which enshrines the principle of legality of criminal offences and penalties and the 
principle of proportionality, since, in the same circumstances, an act may be both 
a criminal offence and an administrative offence, resulting in a discrepancy 
between the seriousness of the act and the severity of the sanction provided for. 
20 For this reason, the case-law of the Bulgarian courts is inconsistent in cases in 
which a motor vehicle is driven while the driver is subject to a coercive 
administrative measure withdrawing his or her driving licence. The referring court 
cites specific examples, of both judgments accepting the public prosecutor’s view 
that the act is to be classified as a criminal offence and judgments in which the 
courts found that the act is an administrative offence and acquitted the accused 
persons of the offence they were charged with. Cases are also cited in which the 
public prosecutor’s office terminated the criminal proceedings and an 
administrative penalty was imposed on the offender. 
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21 The referring court also takes account of the case-law of the Court of Justice of 
the European Union. It states that, according to the judgment of 3 May 2007, 
Advocaten voor de Wereld (C-303/05, EU:C:2007:261, paragraphs 49 and 50), the 
principle of legality of criminal offences and penalties implies that legislation 
must define clearly offences and the penalties which they attract. That condition is 
met in the case where the individual concerned is in a position, on the basis of the 
wording of the relevant provision and with the help of the interpretative assistance 
given by the courts, to know which acts or omissions will make him criminally 
liable. The referring court also cites the judgment of 12 February 2019, TC (С-
492/18 PPU, EU:C:2019:108, paragraphs 59 and 60), according to which the 
execution of a measure depriving a person of liberty requires the existence of a 
legal basis which justifies that deprivation of liberty and which must meet the 
requirements of clarity, predictability and accessibility in order to avoid any risk 
of arbitrariness. 
22 The referring court also refers to the judgment of the European Court of Human 
Rights in Medvedyev v. France from 2010, which states that the standard of 
lawfulness requires that ‘all law be sufficiently precise to avoid all risk of 
arbitrariness and to allow the citizen – if need be, with appropriate advice – to 
foresee, to a degree that is reasonable in the circumstances of the case, the 
consequences which a given action may entail’.