Opinion of the Advocate General — ECLI:EU:C:2023:483
Date: 2023-06-15
Language of the case: Bulgarian
Subject matter: Principles, objectives and tasks of the Treaties;Judicial cooperation in criminal matters;Area of freedom, security and justice;Judicial cooperation in civil matters;Data protection
Procedure: Reference for a preliminary ruling
Origin: Bulgaria

Summary C-118/22 – 1 
Case C-118/22 
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:  
17 February 2022  
Referring court:  
Varhoven administrativen sad (Bulgaria)  
Date of the decision to refer:  
10 January 2022  
Appellant on a point of law:  
NG 
Respondent in the appeal on a point of law:  
Direktor na Glavna direktsia ‘Natsionalna politsia’ pri MVR – Sofia  
  
Subject matter of the main proceedings 
Appeal in on a point of law brought by NG against the judgment of the 
Administrative Sad Sofa-grad (Administrative Court, Sofia City) dismissing his 
action against the order of the Direktor na Glavna direktsia ‘Natsionalna politsia’ 
pri Ministerstvo na vatreshnite raboti (MVR) (Director of the ‘National Police’ 
Directorate-General at the Bulgarian Ministry of the Interior [MVR]) of 
2 September 2020 refusing the erasure of police record No 16903 of 2 June 2015 
created in respect of NG by the Rayonno upravlenie Kazanlak pri Oblastna 
direktsia na MVR – Stara Zagora (Kazanlak District Police Office at the Regional 
Directorate of the MVR – Stara Zagora). 
Processing of personal data by the competent authorities for the purposes of the 
prevention, investigation, detection or prosecution of criminal offences or the 
execution of criminal penalties. Requirements for the erasure of a police record. 
EN 
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Subject matter and legal basis of the request 
The request is made in accordance with point (b) of the first paragraph of 
Article 267 TFEU. 
Question referred for a preliminary ruling 
Does the interpretation of Article 5 in conjunction with Article 13(2)(b) and (3) of 
Directive (EU) 2016/680 of the European Parliament and of the Council of 
27 April 2016 on the protection of natural persons with regard to the processing of 
personal data by competent authorities for the purposes of the prevention, 
investigation, detection or prosecution of criminal offences or the execution of 
criminal penalties, and on the free movement of such data, and repealing Council 
Framework Decision 2008/977/JHA, permit national legislative measures which 
lead to a virtually unrestricted right of competent authorities to process personal 
data for the purposes of prevention, investigation, detection or prosecution of 
criminal offences or the execution of criminal penalties, and/or to the elimination 
of the data subject’s right to have the processing of his or her data restricted or to 
have them erased or destroyed? 
Provisions of European Union law and case-law relied on 
Directive (EU) 2016/680 of the European Parliament and of the Council of 
27 April 2016 on the protection of natural persons with regard to the processing of 
personal data by competent authorities for the purposes of the prevention, 
investigation, detection or prosecution of criminal offences or the execution of 
criminal penalties, and on the free movement of such data, and repealing Council 
Framework Decision 2008/977/JHA (OJ 2016 L 119, p. 89), Articles 5, 13 and 14 
Provisions of national law relied on 
Nakazatelen kodeks (Criminal Code, Bulgaria; ‘the NK’), Articles 82, 85 and 88a 
Zakon za Ministerstvo na vatreshnite raboti (Law on the Ministry of the Interior, 
Bulgaria; ‘the ZMVR’), Articles 25 to 27 and Article 68 
Naredba za reda za izvarshvane i snemane na politseyska registratsia (Bulgarian 
Regulation on the creation and erasure of police records), Articles 18 to 22 
Succinct presentation of the facts and procedure in the main proceedings 
1 On 15 July 2020, NG from Sofia applied to the Rayonno upravlenie na MVR, 
grad Kazanlak (District Police Office of the MVR in Kazanlak) for the erasure of 
a police record that had been created in connection with a preliminary 
investigation filed in the register of that police office. He enclosed a copy of a 
DIREKTOR NA GLAVNA DIREKTSIA ‘NATSIONALNA POLITSIA’ PRI MVR – SOFIA  
 
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certificate of good behaviour, by which he proved that he had no previous 
convictions. 
2 On 29 July 2020, the head of the Kazanlak District Police Office notified the 
deputy director of the Oblastna direktsia na MVR – Stara Zagora (Regional 
Directorate of the MVR – Stara Zagora) that criminal record No 16903 had been 
created in respect of NG on 2 June 2015 in the course of a preliminary 
investigation filed in the register of that police office, as he had failed to tell the 
truth as a witness, which constitutes a criminal offence under Article 290(1) of the 
NK. 
3 On 13 August 2020, the Rayonen prokuror (District Public Prosecutor) of 
Kazanlak notified the Regional Directorate MVR – Stara Zagora that NG had 
been accused of an offence under Article 290(1) of the NK. On 2 July 2015, 
charges were brought against NG before the Rayonen sad Kazanlak (District 
Court, Kazanlak) and he was given a suspended sentence of one year by judgment 
of 28 June 2016. That judgement was confirmed by the Okrazhen sad Stara 
Zagora (Regional Court, Stara Zagora) on 2 December 2016. On 14 March 2018, 
the sentence had been served. 
4 The administrative authority requested certified copies of the judgments. The 
results of the investigation were set out in a report of 19 August 2020, which 
recommended that a reasoned proposal be submitted to the ‘National Police’ 
Directorate-General – Sofia for refusal of the erasure of police record No 16903 of 
2 June 2015, which was created in respect of NG by the Kazanlak District Police 
Office in the course of a preliminary investigation into an offence under 
Article 290(1) of the NK, for which NG was given a suspended sentence by 
judgment of the District Court, Kazanlak of 28 June 2016, confirmed by judgment 
of the Regional Court, Stara Zagora of 2 December 2016. 
5 On 19 August 2020, a proposal was made to the Director of the ‘National Police’ 
Directorate-General at the MVR for the issuance of an order refusing the erasure 
of the police record relating to the person NG from Sofia, due to lack of a legal 
basis under Article 68(6) of the ZMVR. 
6 On 2 September 2020, the Director of the ‘National Police’ Directorate-General at 
the MVR issued the contested order refusing the erasure of police record 
No 16903 of 2 June 2015 created by the Kazanlak District Police Office at the 
Regional Directorate of the MVR – Stara Zagora. The reason given for the refusal 
was that, even in the case where rehabilitation has taken place, a final conviction 
is not one of the grounds for erasure of a police record that are exhaustively listed 
under Article 68(6) of the ZMVR. 
7 On 8 October 2020, NG brought an action before the Administrative Court, Sofia 
City against the order of the Director of the ‘National Police’ Directorate-General 
at the MVR of 2 September 2020. 
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8 The court of first instance found that the contested order of the Director of the 
‘National Police’ Directorate-General at the MVR is correct and lawful, and 
dismissed NG’s action. 
9 The court held that police records are, by nature, a type of processing of personal 
data that is carried out without the consent of the data subjects under the ZMVR. 
According to the court, the grounds for erasure of a police record are exhaustively 
listed in Article 68(6) of the ZMVR, and no evidence proving the existence of any 
of the listed grounds for erasure of the police record has been submitted in the 
proceedings. The court further held that it is common ground between the parties 
that NG had been convicted of an offence under Article 290(1) of the NK by final 
judgment and that the sentence imposed has been served and rehabilitation has 
taken place. It stated that rehabilitation is not among the grounds for erasure of a 
police record which are expressly listed in the law and that the grounds cannot be 
interpreted broadly, since police records serves a different purpose (that is to say, 
according to Article 27 of the ZMVR, guaranteeing national security, combating 
crime and maintaining public order) from that of rehabilitation, which serves to 
expunge the conviction and eliminate the associated consequences for the future. 
With regard to the application of Articles 13 and 14 of the directive, the court of 
first instance held that those provisions have not been infringed as there is no 
evidence that NG had been denied the information requested and that, in principle, 
EU law does not preclude the processing of personal data for the purpose of 
protecting national security, combating crime and maintaining public order. 
10 For the reasons set out above, the court concluded that Article 68(6) of the ZMVR 
is a special provision in relation to the general provisions in the field of personal 
data protection, with the result that it takes precedence and the erasure of a police 
record is not possible on grounds other than those set out in the special provision. 
It dismissed NG’s action. 
11 The judgment at first instance was challenged before the referring panel of the 
Varhoven administrativen sad (Supreme Administrative Court) of the Republic of 
Bulgaria, which considers that an interpretation of EU law is necessary to enable it 
to resolve the dispute correctly. 
The essential arguments of the parties in the main proceedings 
12 The main argument of the appellant on a point of law is that the court of first 
instance erred in finding that the contested order refusing the erasure of the police 
record was lawful, because it failed to take into account that the general meaning 
of Articles 5, 13 and 14 of the directive is that there cannot be an indefinite 
(unlimited) period for the processing of personal data by way of storage. He 
further argues that, in the absence of a legal ground for the erasure of a police 
record after rehabilitation has taken place, a convicted person will, in effect, never 
be able to request the erasure of his or her personal data collected by the 
competent authorities in connection with the offence which he or she committed 
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and in respect of which he or she has served the sentence and has been 
rehabilitated, with the result that the storage is for an unlimited period. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
13 The panel seised of the present case finds that NG is a natural person who has 
been finally convicted of an offence that is the subject of prosecution by the public 
prosecutor, has served the sentence for that offence and has been rehabilitated in 
accordance with Article 88a(1) of the NK, in conjunction with Article 82(1)(5) 
thereof. Rehabilitation was completed on 14 March 2020. 
14 The national law contains a system of legal provisions governing the creation of 
police records concerning persons accused of committing an intentional offence 
that is the subject of prosecution by the public prosecutor. 
15 By their nature, police records constitute processing of personal data by competent 
authorities for the purposes of the prevention, investigation, detection or 
prosecution of criminal offences or the execution of criminal penalties, including 
the safeguarding against and the prevention of threats to public security, and such 
records fall within the scope of Directive (EU) 2016/680. 
16 The national system of legal provisions allows a police record to be erased 
(removed, destroyed) under certain conditions. The grounds for erasure are listed 
exhaustively in Article 68(6) of the ZMVR and do not include rehabilitation. 
Therefore, in such a case, the record cannot be erased and none of the other 
grounds can be applied. 
17 EU law, and in particular Directive (EU) 2016/680, recital 26, which concerns the 
lawful, fair and transparent processing of personal data, requires guarantees that 
the personal data collected are not excessive and not kept longer than is necessary 
for the purpose for which they are processed. It also provides that time limits 
should be established by the controller for erasure or for a periodic review. 
Recital 34 expressly states that the processing of personal data by competent 
authorities for the purposes of the prevention, investigation, detection or 
prosecution of criminal offences or the execution of criminal penalties, including 
the safeguarding against and the prevention of threats to public security, should 
cover operations for the restriction of processing of data and for the erasure or 
destruction of data. 
18 Those principles are reflected in specific provisions such as Article 5 of the 
directive, which obliges Member States to provide for appropriate time limits to 
be established for the erasure of personal data or for a periodic review of the need 
for the storage of personal data, including procedural measures to ensure that 
those time limits are observed; Article 13(2) obliges Member States to ensure, by 
way of legislative measures, the exercise of the data subject’s rights by informing 
him or her of the period for which the personal data will be stored, or, where that 
is not possible, the criteria used to determine that period; Article 13(3) empowers 
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Member States to adopt legislative measures delaying, restricting or even omitting 
the provision of the information to the data subject pursuant to [Article 13(2)], but 
only in so far as due regard is had to the fundamental rights and legitimate 
interests of the person concerned. 
19 The referring court takes the view that it is not clear whether the objectives 
pursued by the directive permit legislative measures by Member States which lead 
to a virtually unrestricted right of competent authorities to process personal data 
for the purposes of prevention, investigation, detection or prosecution of criminal 
offences or the execution of criminal penalties, and to the elimination of the data 
subject’s right to have the processing of his or her data restricted or to have them 
erased or destroyed. 
20 In considering the need to make a request for a preliminary ruling, the referring 
court took into account that, according to recital 7 of the directive, ‘Ensuring a 
consistent and high level of protection of the personal data of natural persons and 
facilitating the exchange of personal data between competent authorities of 
Members States is crucial in order to ensure effective judicial cooperation in 
criminal matters and police cooperation. To that end, the level of protection of the 
rights and freedoms of natural persons with regard to the processing of personal 
data by competent authorities for the purposes of the prevention, investigation, 
detection or prosecution of criminal offences or the execution of criminal 
penalties, including the safeguarding against and the prevention of threats to 
public security, should be equivalent in all Member States’. 
21 The referring court is aware that two cases are pending before the Court of Justice 
of the European Union: Case C-180/21, referred by the Administrativen sad 
Blagoevgrad (Administrative Court, Blagoevgrad, Bulgaria) on 23 March 2021, 
and Case C-205/21, referred by the Spetsializiran nakazatelen sad (Specialised 
Criminal Court, Bulgaria) on 31 March 2021. However, they concern other 
provisions of Directive 2016/680 and have no bearing on the question to be ruled 
on in the present case. A review of the case-law of the Court of Justice of the 
European Union handed down under preliminary ruling procedures did not reveal 
any judgments providing an answer to the main question in the present case, with 
the result that a reference for a preliminary ruling would ensure a uniform 
interpretation of the relevant provisions of Directive 2016/680.