Opinion of the Advocate General — ECLI:EU:C:2023:532
Date: 2023-06-29
Language of the case: Romanian
Subject matter: Accession;Right of establishment;Financial provisions;Principles, objectives and tasks of the Treaties;Approximation of laws;Freedom to provide services;Judicial cooperation in criminal matters;Area of freedom, security and justice;Own resources;Fundamental rights;Charter of Fundamental Rights
Procedure: Preliminary reference - urgent procedure;Preliminary reference – inadmissible
Origin: Romania

Summary C-107/23 PPU ‒ 1  
Case C-107/23 PPU 
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: 
22 February 2023 
Referring court: 
Curtea de Apel Brașov (Romania) 
Date of the decision to refer: 
22 February 2023 
Appellants: 
C.I. 
C.O. 
K.A. 
L.N. 
S.P. 
Respondent: 
Romanian State 
  
Subject matter of the main proceedings 
Extraordinary appeal (extraordinary petition) seeking to set aside the final 
judgment of the referring court sentencing the appellants to terms of 
imprisonment. The questions referred for a preliminary ruling relate to case-law of 
the Curtea Constituțională (Constitutional Court, Romania) concerning the 
interruption of the limitation period for criminal liability, the application of which 
would result in the convictions being quashed and would make it impossible to 
convict the defendants, even for the commission of acts to which provisions of 
European Union law are applicable. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-107/23 PPU 
 
2  
Subject matter and legal basis of the request for a preliminary ruling 
Pursuant to Article 267 TFEU, interpretation is sought of Article 2, Article 4(3) 
and the second paragraph of Article 19(1) TEU, Article 325(1) TFEU, Article 2(1) 
of the Convention drawn up on the basis of Article K.3 of the Treaty on European 
Union (‘the PFI Convention’), Articles 2 and 12 of Directive 2017/1371 (‘the PFI 
Directive’), Directive 2006/112, Decision 2006/928, the last sentence of 
Article 49(1) of the Charter of Fundamental Rights of the European Union, and 
the principle of the primacy of EU law. 
Questions referred for a preliminary ruling 
1. Should 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, Articles 2 and 12 of the PFI Directive and Council Directive 
2006/112/EC of 28 November 2006 on the common system of value added tax, 
with reference to the principle of effective and dissuasive penalties in cases of 
serious fraud affecting the financial interests of the European Union, and applying 
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, be 
interpreted as precluding a legal situation, such as that at issue in the main 
proceedings, in which the appellants seek, by means of an extraordinary appeal, to 
set aside a final judgment in criminal proceedings and request the application of 
the principle of the more lenient criminal law, which they allege was applicable in 
the course of the substantive proceedings and which would have entailed a shorter 
limitation period that would have expired before the case was finally concluded, 
but subsequently revealed by a decision of the national Constitutional Court which 
declared unconstitutional legislation on interrupting 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) – by 
which time the case-law of the ordinary courts formed in application of the former 
decision had already established that the legislation in question was still in force, 
in the form understood as a result of 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. Should 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, applying Commission Decision 2006/928/EC as regards the commitment 
to ensure 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, be 
ROMANIAN STATE 
 
3 
interpreted, in relation to the national judicial system as a whole, as precluding a 
legal situation, such as that at issue in the main proceedings, in which the 
convicted appellants seek, by means of an extraordinary appeal, to set aside a final 
judgment in criminal proceedings and request the application of the principle of 
the more lenient criminal law, which they allege was applicable in the course of 
the substantive proceedings and which would have entailed a shorter limitation 
period that would have expired before the case was finally concluded, but 
subsequently revealed by a decision of the national Constitutional Court which 
declared unconstitutional legislation on interrupting 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) – by 
which time the case-law of the ordinary courts formed in application of the former 
decision had already established that the legislation in question was still in force, 
in the form understood as a result of 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 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 may not, for that 
reason and at the risk of 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? 
Provisions of EU law and case-law of the Court of Justice relied on 
Article 2, Article 4(3) and the second paragraph of Article 19(1) TEU; 
Article 325(1) TFEU; 
Convention drawn up on the basis of Article K.3 of the Treaty on European 
Union, Article 1(1) and Article 2(1); 
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, Articles 1, 2 and 12; 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-107/23 PPU 
 
4  
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; 
Council Directive 2006/112/EC of 28 November 2006 on the common system of 
value added tax; 
Charter of Fundamental Rights of the European Union (‘the Charter’), 
Article 49(1), last sentence; 
The principle of the primacy of EU law; 
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), EU:C:2021:1034; judgment of 
8 September 2015, Taricco and Others (C-105/14), EU:C:2015:555; judgment of 
5 December 2017, M.A.S. and M.B. (C-42/17), EU:C:2017:936; judgment of 
14 September 2010, Akzo Nobel Chemicals and Akcros Chemicals v Commission 
(C-550/07 P), EU:C:2010:512; judgment of 22 March 1961, S.N.U.P.A.T. v High 
Authority (42/59 and 49/59), EU:C:1961:5; judgment of 18 May 2021, Asociația 
‘Forumul Judecătorilor din România’ (C-83/19, C-127/19, C-195/19, C-291/19, 
C-355/19 and C-397/19), EU:C:2021:393; judgment of 22 February 2022, RS 
(C-430/21), EU:C:2022:99; judgment of 26 February 2013, Åkerberg Fransson 
(617/10) EU:C:2013:105; judgment of 30 September 2003, Köbler (C-224/01, 
EU:C:2003:513); judgment of 13 January 2004, Kühne & Heitz (C-453/00, 
EU:C:2004:17); judgment of 15 November 2012, Gothaer Allgemeine 
Versicherung and Others (C-456/11, EU:C:2012:719); judgment of 18 July 2007, 
Lucchini (C-119/05, EU:C:2007:434). 
Provisions of international law and case-law of the European Court of 
Human Rights referred to in the proceedings 
Convention for the Protection of Human Rights and Fundamental Freedoms 
(‘ECHR’), Article 7; 
Judgment of the European Court of Human Rights (‘ECtHR’) of 18 October 2000, 
Coëme and Others v. Belgium; judgment of the ECtHR of 12 February 2013, 
Previti v. Italy; judgment of the ECtHR of 22 September 2015, Borcea v. 
Romania; judgment of the ECtHR of 17 September 2014, Mocanu and Others v. 
Romania; judgment of the ECtHR of 15 November 2016, A and B v. Norway; 
judgment of the ECtHR of 3 April 2012, Michelioudakis v. Greece. 
ROMANIAN STATE 
 
5 
Provisions of national law and national case-law relied on 
Constituția României (Romanian Constitution, ‘the Constitution’), 
Article 147(1) and (4); 
Codul penal (Criminal Code), republished by Law No 140/1996, in force until 
1 February 2014 (‘the old Criminal Code’). In accordance with Article 123 of the 
old Criminal Code, ‘the limitation period … shall be interrupted by the 
performance of any act which, by law, must be communicated to the defendant in 
the course of criminal proceedings’. 
Codul penal (Criminal Code), adopted by Law No 286 of 17 July 2009, which 
entered into force on 1 February 2014. Article 5(1) of the code provides that ‘if, 
between the commission of an offence and final judgment in the case, one or more 
criminal laws are passed, the more lenient law shall be applied’. Article 155(1) of 
that code provided that ‘the limitation period for criminal liability shall be 
interrupted by the performance of any procedural act in the case’. 
Codul de procedură penală (Code of Criminal Procedure), Article 426, first 
paragraph, letter (b), in accordance with which an extraordinary appeal may be 
brought against a final criminal judgment where a defendant has been convicted 
despite there being evidence of the existence of a cause for discontinuance of the 
criminal proceedings. 
Decizia nr. 297 din 26 aprilie 2018 (Decision No 297 of 26 April 2018) of the 
Constitutional Court (‘Decision No 297/2018’). In this decision, the Constitutional 
Court held, in essence, that the legislative solution that provided for the 
interruption of the limitation period for criminal liability as a result of the 
performance of ‘any procedural act in the case’, contained in Article 155(1) of the 
Criminal Code, was unconstitutional. In its analysis, the Constitutional Court 
stated that it was necessary to ensure the predictability of the effects of 
Article 155(1) of the Criminal Code in relation to the person who has committed 
an offence under criminal law, including by ensuring that that person may be 
apprised 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 the 
contrary view would be tantamount to creating in the person concerned, where 
procedural acts are performed that are not notified to the suspect or defendant but 
have the effect of interrupting the limitation period for criminal liability, a state of 
perpetual uncertainty, caused by the impossibility of making a reasonable estimate 
of the period within which he or she may be held criminally liable for the offence 
committed; such uncertainty could last until the special limitation period expires. 
The provisions of Article 155(1) of the Criminal Code were therefore not 
foreseeable, as well as being contrary to the principle of legality in criminal 
matters, since the expression ‘any procedural act’ used therein also included acts 
that are not notified to the suspect or defendant. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-107/23 PPU 
 
6  
Decizia nr. 5 din 21 martie 2019 and Decizia nr. 25 din 11 noiembrie 2019 
(Decision No 5 of 21 March 2019 and Decision No 25 of 11 November 2019) of 
the Înalta Curte de Casație și Justiție (High Court of Cassation and Justice, 
Romania; ‘the Court of Cassation’). 
Decizia nr. 358 din 26 mai 2022 (Decision No 358 of 26 May 2022) of the 
Constitutional Court (‘Decision No 358/2022’). In this decision, the Constitutional 
Court held the provisions of Article 155(1) of the Criminal Code to be 
unconstitutional, holding, in essence, as follows: ‘The Court considers that, on 
account of the effects which it produces, Decision [No 297/2018] is, in legal 
terms, a simple/extreme decision, inasmuch as … the Court objected to the only 
legislative solution which the provisions of Article 155(1) of the Criminal Code 
governed. … The Court notes that, in paragraph 34 of Decision [No 297/2018], it 
emphasised the fact that the legislative solution in the [old Criminal Code] 
satisfied the requirements of clarity and foreseeability, since it provided for 
interruption of the limitation period for criminal liability only by the performance, 
in a case in which the person concerned was the suspect or the defendant, of an act 
which, by law, had to be notified. The Court would observe, however, that the 
statement of the legislative solution 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 [old Criminal 
Code]. Thus, the Court would emphasise that, although it objected to the 
legislative solution provided for in Article 155(1) of the Criminal Code, because it 
established that the limitation period could be interrupted by the performance of 
procedural acts that are not made known to the suspect or defendant, whether 
through notification or through that person being present when the act is 
performed, it did not require that all acts notified to the suspect or defendant or all 
acts involving the suspect or defendant be regarded as acts capable of interrupting 
the limitation period for criminal liability, since it is for the legislature to 
determine what these are, subject to the fundamental condition that they satisfy 
the requirements mentioned by the Constitutional Court. … Precisely in view of 
the scope of the legislature’s competence, the Court would observe that, in 
paragraph 34 of Decision [No 297/2018], it emphasised 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 Constitution, the legislature 
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 
would be interrupted. … The Court finds that such an outcome is the result of a 
failure by the legislature to comply with its obligations under the Constitution and 
of its inaction, even in spite of the fact that decisions of the [Court of Cassation] 
have been pointing out since 2019 the non-uniform practice resulting from the 
lack of legislative intervention. Similarly, the Court would emphasise that the 
rationale of 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. … 
The Court notes that the situation created by the legislature’s inaction following 
the publication of the aforementioned decision upholding the objection of 
ROMANIAN STATE 
 
7 
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 wording in the legislation “the limitation period for criminal 
liability is interrupted by the performance …”, which clearly does not specify any 
case of interruption of the limitation period for criminal liability’. 
Ordonanța de urgență a Guvernului nr. 71 din 30 mai 2022 pentru modificarea 
articolului 155 alineatul (1) din Legea nr. 286/2009 privind Codul penal 
(Government Emergency Order No 71/2022 of 30 May 2022 amending 
Article 155(1) of Law No 286/2009 on the Criminal Code; ‘Order No 71/2022’). 
Pursuant to the single article of Order No 71/2022, Article 155(1) of the Criminal 
Code is amended to read as follows: ‘the limitation period for criminal liability 
shall be interrupted by the performance of any procedural act in the case that, by 
law, must be notified to the suspect or defendant’. 
Decision No 67 of 25 October 2022 of the Court of Cassation. By that decision, 
delivered in an appeal in the interests of the law, the Court of Cassation held that 
the rules on the interruption of the limitation period for criminal liability are 
substantive rules of criminal law, subject, as regards their application over time, to 
the principle of the operability of the criminal law, without prejudice to more 
lenient provisions of criminal law. It also held that a court deciding an 
extraordinary appeal for annulment based on the effects of Decisions No 297/2018 
and 358/2022 may not re-examine the limitation period for criminal liability if an 
appeal court had discussed and considered the effect of that ground for 
discontinuance of the criminal proceedings in the course of those proceedings 
prior to Decision No 358/2022. 
Legea nr. 241/2005 pentru prevenirea și combaterea evaziunii fiscale (Law 
No 241/2005 on the prevention and combating of tax evasion). 
Legea nr. 303/2022 privind statutul judecătorilor și procurorilor (Law 
No 303/2022 on the rules governing judges and prosecutors). 
Decision No 520 of 9 November 2022 of the Constitutional Court concerning 
objections of unconstitutionality in relation to Law No 303/2022 on the rules 
governing judges and prosecutors. 
Succinct presentation of the facts and procedure in the main proceedings 
1 By final judgment of 30 June 2020, la Curtea de Apel Brașov (Court of Appeal, 
Brașov) sentenced the appellants to terms of imprisonment for the criminal 
offences of tax evasion and setting up a criminal organisation and ordered them to 
pay damages totalling 13 964 482 Romanian lei (RON) (approximately 
EUR 3 240 000), including value added tax (VAT). 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-107/23 PPU 
 
8  
2 As regards the offence of tax evasion, the court held in that judgment, essentially, 
that, in the course of 2010, the appellants had omitted, wholly or in part, to record 
in their accounts the commercial transactions that had been carried out and the 
income from the sale to national recipients of quantities of gas oil which they had 
purchased under the regime for the suspension of payment of excise duty, thus 
causing a loss to the State budget, including VAT and excise duty on the gas oil. 
3 The appellants have brought before the referring court an extraordinary appeal 
against the judgment of 30 June 2020, seeking that it be set aside on the ground 
that they were convicted despite the existence of evidence of a cause for 
discontinuance of the criminal proceedings, namely the expiry of the limitation 
period for criminal liability, in which connection they rely on Decision 
No 358/2022. 
4 Two of the appellants are currently serving prison sentences imposed on them by 
the judgment under appeal. 
The essential arguments of the parties in the main proceedings 
5 The Direcția Națională Anticorupție (National Anti-Corruption Directorate; ‘the 
DNA’) requested the referring court to make a reference to the Court of Justice for 
a preliminary ruling in order to establish whether Article 325 TFEU, Decision 
2006/928 and Article 49 of the Charter must be interpreted as precluding the 
disapplication of a national provision such as Decision No 358/2022. According to 
the DNA, the application of that decision entails a systemic risk of impunity in 
cases where EU law is applicable. 
6 The appellants maintain that there is no rule of EU law that applies to the present 
case and have requested the court to reject the DNA’s request for a reference to be 
made to the Court of Justice. Moreover, the principle of the application of the 
more lenient criminal law is of constitutional status and takes precedence over any 
rule of EU law that might be relevant to the case. 
Succinct presentation of the reasoning in the reference for a preliminary 
ruling 
7 As a preliminary point, the referring court notes that the appellants seek, by way 
of an extraordinary appeal seeking annulment, the setting aside of a final criminal 
conviction, relying on the application of the principle of the more lenient criminal 
law, which they allege was applicable during the course of the substantive 
proceedings. Accordingly, the appellants maintain that, in respect of the offences 
for which they were convicted, the more lenient law would have entailed a shorter 
limitation period for criminal liability, which would have expired before the case 
was finally concluded. However, the existence of that limitation period for 
criminal liability only became evident after the judgment had been handed down, 
following the delivery of Decision No 358/2022, in which the Constitutional 
ROMANIAN STATE 
 
9 
Court declared the provisions of Article 155(1) of the Criminal Code to be 
unconstitutional and held that, in the period following the publication of Decision 
No 297/2018, domestic criminal legislation contained no causes of interruption of 
the limitation period for criminal liability. 
8 In other words, according to the appellants, the absence, in the period between 
those two decisions, from the applicable legislation of any definition of the causes 
of interruption of the limitation period for criminal liability, as noted in Decision 
No 358/2022, in itself constitutes a more lenient criminal law that should be 
applied for the benefit of defendants who have committed offences that were not 
finally judged before the date of publication of Decision No 297/2018. In those 
circumstances, the general limitation period (which is ten years under the 
applicable provisions of national law) would have expired before the judgment 
convicting them acquired the force of res judicata, if the causes of interruption of 
the general limitation period are not taken into account. 
9 The referring court states that, if it accepts that argument, it will have to allow the 
extraordinary appeal, set aside the judgment convicting the appellants and order 
the criminal proceedings to be discontinued, which would make it impossible to 
convict the appellants. 
10 The referring court also emphasises that the present case concerns, inter alia, 
offences of tax evasion in the area of VAT, to which the provisions of EU law on 
the protection of the Union’s financial interests are applicable. 
The first and second questions referred for a preliminary ruling 
11 As regards the first question, the referring court considers that a decision 
absolving the appellants of criminal liability for the offences of VAT evasion, 
which affect the European budget, would generally undermine the values of the 
rule of law, enshrined in Article 2 TEU, and the principle of effective judicial 
protection of the rights conferred on individuals under the second paragraph of 
Article 19(1) TEU. In addition, such a solution would conflict, in particular, with 
recital 3 and Articles 1, 3 and 4 of Decision 2006/928 – as regards the 
commitment to ensure greater transparency and efficiency in judicial proceedings 
and to prevent and combat corruption, including high-level corruption, in 
particular within local government – as well as Article 325(1) TFEU, Article 2(1) 
of the PFI Convention and Articles 2 and 12(1) of the PFI Directive, as regards the 
principle of effective and dissuasive penalties for criminal offences which affect 
the Union’s financial interests. Those provisions of EU law must be read in 
conjunction with Directive 2006/112 and must be referred to the last sentence of 
Article 49(1) of the Charter, which enshrines the principle of the more lenient 
criminal law. In this connection, the national court refers to the judgment of 
26 February 2013, Åkerberg Fransson, in particular, paragraphs 24 to 31 thereof, 
and the judgment in Euro Box Promotion and Others, in particular, paragraph 194 
thereof. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-107/23 PPU 
 
10  
12 As regards the second question, the referring court emphasises that the 
circumstances of the present case are by no means unique, but extremely 
widespread in the Romanian judicial system. At present, national case-law is 
unanimous in finding that criminal proceedings must be discontinued, including as 
a result of an extraordinary appeal, if prosecution is time-barred. A significant 
number of cases could be in that situation. In this context, the referring court 
recalls the conclusions to that effect reached by the European Commission in its 
Report to the European Parliament and the Council of 22 November 2022 
(COM(2022) 664 final), in which it observed that the situation in question could 
have ‘a particularly damaging impact on important ongoing criminal cases’, 
possibly with ‘serious consequences’ arising from the ‘removal of criminal 
liability in a substantial number of cases, while ‘the DNA estimates damage in 
these cases to [be] around [EUR] 1.2 billion and the total amount of bribery and 
influence peddling at around [EUR] 150 million’, and observed that ‘[t]he risk 
that thousands of defendants would not face criminal liability has triggered major 
criticism in Romania’. 
13 In those circumstances, the referring court considers, with reference to the 
provisions of EU law mentioned in the second question, that the situation in the 
present case concerns the entire Romanian judicial system, in terms of its ability 
to observe the values of the rule of law and human rights in a society in which 
justice prevails, to ensure effective judicial protection in the areas covered by EU 
law and to observe the principle of sincere cooperation between the European 
Union and the Member States. The situation is at odds with mutual respect and 
assistance in carrying out the tasks which flow from the Treaties and with the 
efficiency of the judicial system in a country based on the rule of law, in terms of 
ensuring the predictability of the law and the provision of sufficient means for 
combating all crimes. The abovementioned provisions of EU law must also be 
referred to the last sentence of Article 49(1) of the Charter. 
14 Consequently, the case-law of the Court of Justice according to which the national 
authorities and courts are free to apply national standards of protection of 
fundamental rights, provided that the level of protection provided by the Charter 
and the primacy, unity and effectiveness of EU law are not compromised, is 
applicable in the present case. However, the referring court considers that, in 
situations such as that in the present case, that level of protection could be 
compromised and that the very nature of the applicable legal provisions 
unequivocally gives rise to a systemic risk of impunity, within the meaning of the 
judgment in Euro Box Promotion and Others. 
15 Next, under the heading ‘Opinion of the national referring court’, the referring 
court set out an extensive legal analysis of the situation at issue, which is common 
to the first two questions referred for a preliminary ruling, from the perspective of 
national law, EU law and ECHR law. 
16 Thus, the referring court begins by examining the case-law of the Constitutional 
Court on the time-barring of criminal liability, the application of the more lenient 
ROMANIAN STATE 
 
11 
criminal law and the interpretation of the law by the ordinary courts. It then 
examines how those courts have applied that case-law and concludes that it has 
been rigorously followed. More specifically, the ordinary courts have complied 
with Decision No 297/2018, as they have understood it must be applied, and have 
narrowed the scope of the relevant legislation, taking the view that the limitation 
period for criminal liability is interrupted exclusively by acts that must be 
communicated to the defendant. Therefore, the ordinary courts’ interpretation has 
not been extra legem or contra legem, but intra legem, and has not overstepped 
the bounds of ordinary judicial interpretation. 
17 The referring court then proceeds to analyse the case-law of the ECtHR on the 
time-barring of criminal liability and the principle that offences and penalties must 
be defined by law, and concludes that, since Decision No 297/2018 was delivered, 
the ordinary courts have complied with that case-law too. 
18 Thus, the ordinary courts have interpreted and applied the legislation on the 
interruption of the limitation period, as it has been interpreted by the 
Constitutional Court, in light of the European rule which enshrines the 
inevitability of the interpretation of any legislative provision, including provisions 
of criminal law. In the situation at issue, the legal form given to the relevant 
legislative text following its interpretation in conformity with Decision 
No 297/2018 was entirely consistent with the only legislative solution that was 
traditional under Romanian law and was favourable to the defendants, which is to 
say the interruption of the limitation period only by acts that must be 
communicated to the defendant, and not by acts of any kind. In that context, it 
may be concluded that the legislation, thus interpreted, was reasonably clear and 
predictable. 
19 The referring court then goes on to analyse the case-law of the Court of Justice on 
the time-barring of criminal liability and the principle of the more lenient criminal 
law, in particular, the judgments in Taricco and Others and M.A.S. and M.B. From 
that case-law it draws the conclusion that the Court of Justice has acknowledged 
that a national court may disapply provisions of national law which reduce a 
special limitation period if it finds that they would make it harder to combat 
serious fraud in a significant number of cases and would undermine the necessary 
application of effective and dissuasive criminal penalties in order to protect the 
Union’s financial interests. However, in the second of these judgments, the Court 
of Justice contemplated an exception for cases in which the disapplication of such 
provisions would entail a breach of the principle that offences and penalties must 
be defined by law, because of a lack of precision in the applicable law or because 
of the retroactive application of legislation that imposes conditions of criminal 
liability that are stricter than those which were in force at the time the offence was 
committed. The Court of Justice recalled the importance given, both in the EU 
legal order and in national legal systems, to the principle that offences and 
penalties must be defined by law, as to its requirements concerning the 
foreseeability, precision and non-retroactivity of the applicable criminal law. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-107/23 PPU 
 
12  
20 Nevertheless, the referring court emphasises that, by contrast with the cases in 
which those two judgments of the Court of Justice were delivered, the present case 
does not involve a criminal law that has been applied for a certain period of time, 
but concerns a decision of a constitutional court, which is not the same thing as a 
law. 
21 In addition, in the meantime, the PFI Directive was adopted, establishing a 
number of minimum conditions relating to penalties and limitation periods, which 
appear to be fulfilled by the national legislation. However, the referring court 
considers that, in order to comply with Articles 1 and 12 of that directive, the 
relevant provisions of national law must be interpreted in a practical and 
teleological fashion. On the other hand, the practical effect of applying the 
relevant provisions in the manner in which the defendants have interpreted them, 
relying on decisions of the Constitutional Court, would be to halve the limitation 
period for criminal liability, in a wholly unexpected and unforeseeable manner, 
without the legislature having taken action to that effect. On the contrary, the 
legislature did take explicit subsequent action, but to the opposite effect, by means 
of Order No 71/2022. 
22 The referring court also examines the case-law of the Court of Justice on the 
principle of res judicata and recalls, on the one hand, the importance of that 
principle for legal certainty and, on the other, the fact that it is not an absolute rule 
but must be weighed, in each individual case, against other legal principles that 
come into play. 
23 The referring court then makes a detailed analysis, from the perspective of 
national law, of the principle of the more lenient criminal law, and concludes that 
that principle is not applicable in the present case and that its non-application does 
not lead to any breach of the principle that offences and penalties must be defined 
by law. 
24 Lastly, the referring court examines the hypothesis that, during the relevant 
period, a more lenient law on the time-barring of criminal liability was in force, 
and takes the view that, in such a situation, the principle of the more lenient 
criminal law would conflict with the principle of equity and justice. It therefore 
analyses, on the one hand, the case-law of the Constitutional Court and domestic 
legislation and, on the other hand, the case-law of the Court of Justice and the 
ECtHR. It emphasises the need for those two principles to be weighed against 
each other and concludes that, in situations such as that in the present case, the 
scale should tip in favour of the principle of equity and justice. 
The third question referred for a preliminary ruling 
25 The referring court considers that, if the first two questions are answered in the 
affirmative, it will be possible to interpret Decisions Nos 297/2018 and 358/2022 
in a manner consistent with EU law. However, if it is held that an interpretation in 
conformity with EU law is not possible, the referring court considers that it will 
ROMANIAN STATE 
 
13 
have to be authorised to disapply those decisions, since, under national law, any 
failure to follow such decisions can render the judge in the case liable to 
disciplinary measures. 
26 Indeed, although the legal provision which the Court of Justice analysed in its 
judgment of 22 February 2022, RS, which provided for the disciplinary liability of 
judges in the event of failure to comply with decisions of the Constitutional Court, 
has been repealed, the new law on the rules governing judges and prosecutors 
establishes that ‘the performance of duties in bad faith or with gross negligence’ is 
a disciplinary offence. By Decision No 520 of 9 November 2022, the 
Constitutional Court held, in essence, that the Constitution provided that its 
decisions were binding generally, and for that reason any infringement of that 
constitutional text in bad faith or with gross negligence constituted a disciplinary 
offence. 
27 That being so, the referring court considers that the same liability for failure to 
follow judgments of the Constitutional Court under the old legislation is to be 
found also in the new legislation, and for that reason the third question remains 
pertinent, even now that new legislation in the area has been adopted. 
Request for an expedited procedure 
28 The referring court requests that the case be dealt with under the expedited 
procedure. It emphasises the gravity of the situation at issue and the fact that it is 
not an isolated situation, but widespread, appearing in a considerable number of 
cases, many of which fall within the EU’s areas of competence. 
29 The referring court also points out that some of the appellants are currently 
serving the prison sentences imposed on them by the judgment of 30 June 2020. 
They applied for a stay of execution of their sentences, but the referring court 
refused that application on the ground that, at this stage of the proceedings, it is 
necessary to strike a fair balance between preserving the legal certainty conferred 
by the force of res judicata which the judgment convicting them has acquired, on 
the one hand, and the need to ensure that the convicted individuals can exercise 
their procedural rights, on the other, account being taken of the extraordinary 
nature of the appeal that has been made. In those circumstances, the effects of the 
final judgment of conviction should be maintained. 
30 The referring court then acknowledges that it is aware that the large number of 
individuals or legal situations potentially concerned cannot, as such, constitute an 
exceptional circumstance such as to justify recourse to the expedited procedure. 
However, it emphasises the particular seriousness of the legal uncertainty which is 
the subject of this request for a preliminary ruling and the general consequences, 
both for the authorities competent to apply criminal law in conformity with EU 
law and for the rights of the individuals concerned. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-107/23 PPU 
 
14  
31 There is a risk that the existing uncertainty will impede the coherent and effective 
functioning of the criminal justice system, especially because many of the cases 
will already have been decided before the Court of Justice’s answer is received. 
That will lead to increased legal uncertainty, because other legal principles, such 
as the principle of res judicata, could also come into play. The referring court 
points out in this context that it is not mandatory, but merely optional for courts 
hearing similar cases to stay the proceedings and that, once a ruling on the 
substance of the case has been given, for the purposes of the application of the 
limitation period for criminal liability, it can be set aside only under the 
particularly restrictive conditions of an extraordinary appeal. 
32 The referring court emphasises that the particular seriousness of the legal situation 
at issue was pointed up by the Commission in its Report to the European 
Parliament and the Council of 22 November 2022 (COM(2022) 664 final). That 
report states that, ‘according to an estimate published by the DNA, a total of 557 
criminal cases under criminal prosecution or pending before the courts could 
consequently be terminated … While the exact prejudice would need to be 
assessed case by case, the DNA estimates damage in these cases to [be] around 
[EUR] 1.2 million and the total amount of bribery and influence peddling at 
around [EUR] 150 million.’ 
33 Finally, the referring court states that, as in the case in which the judgment of 
5 December 2017, M.A.S. and M.B., was delivered, under the expedited 
procedure, a swift answer will help remove these uncertainties and, since they 
relate to fundamental questions of national constitutional law and of EU law, the 
application of the expedited procedure would appear to be fully justified. 
Request for the joinder of cases 
34 The referring court requests that the present case be joined with Cases C-74/23 
and C-75/23, since all these cases involve the same question of law, from the 
perspective of the interpretation of EU law.