Opinion of the Advocate General — ECLI:EU:C:2022:873
Date: 2022-11-10
Language of the case: Romanian
Subject matter: Fundamental rights;European Convention on Human Rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Romania

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 January 2021 
Referring court: 
Curtea de Apel Timișoara (Romania) 
Date of the decision to refer: 
12 November 2020 
Applicant: 
T.A.C. 
Defendant: 
Agenția Națională de Integritate  
  
Subject matter of the main proceedings 
Administrative action by which the applicant seeks the judicial annulment of an 
assessment report in which it was found that he had not complied with the legal 
regime relating to conflicts of interests in administrative matters. 
Subject matter and legal basis of the request for a preliminary ruling 
In accordance with Article 267 TFEU, interpretation is sought of Articles 15(1), 
47 and 49 of the Charter of Fundamental Rights of the European Union. 
Questions referred for a preliminary ruling 
1. Is the principle of the proportionality of penalties, enshrined in Article 49 of 
the Charter of Fundamental Rights of the European Union, to be interpreted as 
also applying to facts other than those which are formally defined as criminal 
offences under national law, but which may be regarded as ‘criminal charges’ 
within the meaning of Article 6 of the European Convention on Human Rights, in 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-40/21 
 
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the light of the criteria developed by the case-law of the European Court of 
Human Rights, in particular the criterion of the severity of the penalty, as in the 
case in the main proceedings in so far as concerns the appraisal of conflicts of 
interests which may result in the application of an additional penalty consisting in 
a prohibition on holding elective public office for a period of three years? 
2. In the event that the first question is answered in the affirmative, is the 
principle of the proportionality of penalties, enshrined in Article 49 of the Charter 
of Fundamental Rights of the European Union, to be interpreted as precluding a 
provision of national implementing law pursuant to which, in the case where a 
person holding an elective public office is found to have acted under a conflict of 
interests, an additional penalty consisting in a prohibition on holding elective 
public office for a period of three years applies automatically, by operation of law, 
without there being any possibility of imposing a penalty that is proportionate to 
the infringement committed? 
3. Are the right to engage in work, guaranteed by Article 15(1) of the Charter 
of Fundamental Rights of the European Union, and the right to an effective 
remedy and to a fair trial, guaranteed by Article 47 of the Charter, to be 
interpreted a precluding a provision of national implementing law pursuant to 
which, in the case where a person holding an elective public office is found to 
have acted under a conflict of interests, an additional penalty consisting in a 
prohibition on holding elective public office for a period of three years applies 
automatically, by operation of law, without there being any possibility of 
imposing a penalty that is proportionate to the infringement committed? 
Provisions of EU law cited 
Charter of Fundamental Rights of the European Union (‘the Charter’): 
Articles 15(1), 47, 49, 51 and 52(3); 
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 
(‘the MCV Decision’). 
Provisions of national law cited 
Legea nr. 176/2010 privind integritatea în exercitarea funcțiilor și demnităților 
publice, pentru modificarea și completarea Legii nr. 144/2007 privind înființarea, 
organizarea și funcționarea Agenției Naționale de Integritate, precum și pentru 
modificarea și completarea altor acte normative (Law No 176/2010 on integrity in 
the performance of public duties and the holding of public office and amending 
Law No 144/2007 on the establishment, organisation and operation of the Agenția 
Națională de Integritate (National Integrity Agency) and amending certain other 
acts (‘Law No 176/2010’). Article 25 of that law provides as follows: 
AGENȚIA NAȚIONALĂ DE INTEGRITATE 
 
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‘1. In the case where an individual has issued an administrative act, concluded a 
legal act, adopted a decision or participated in the adoption of a decision in breach 
of the legal obligations relating to conflicts of interests or to situations entailing 
incompatibility, his action shall constitute a disciplinary offence and shall be 
punished in accordance with the rules which apply to his office, function or 
relevant activities, in so far as the provisions of the present law provide no 
derogation therefrom and where the action does not constitute a criminal offence. 
2. An individual who has been relieved of his duties or dismissed from office 
in accordance with paragraph 1, or in respect of whom a conflict of interests has 
been established or a situation entailing incompatibility, shall no longer be entitled 
to perform the public duties or hold the public office to which the provisions of 
this law apply, with the exception of electoral duties, for a period of three years 
from the date on which he is relieved of his duties or dismissed from the public 
office in question or from the date on which his mandate automatically terminates. 
In the case where the individual has performed electoral duties, he shall no longer 
perform the same duties for a period of three years from the date of termination of 
his mandate. In the case where the individual no longer performs public duties or 
holds public office at the time when the situation entailing incompatibility or 
conflict of interests is established, the three-year period of prohibition shall 
commence, in accordance with the law, on the date on which the assessment 
report becomes final or on the date on which a judicial decision confirming the 
conflict of interests or the situation entailing incompatibility becomes final and 
irrevocable.’ 
Legea nr. 161/2003 privind unele măsuri pentru asigurarea transparenței în 
exercitarea demnităților publice, a funcțiilor publice și în mediul de afaceri, 
prevenirea și sancționarea corupției (Law No 161/2003 adopting certain measures 
to ensure transparency in the performance of public duties and public functions 
and in the sphere of business and the prevention and punishment of corruption). 
Decizia nr. 418/2014 (Decision No 418/2014) of the Curtea Constituțională 
(Constitutional Court), according to which the expression ‘aceeași funcție’ (‘the 
same duties’), appearing in Article 25(2) of Law No 176/2010 covers all elective 
duties, including those of the office of mayor. 
Decizia nr. 449/2015 (Decision No 449/2015) of the Curtea Constituțională. 
Succinct presentation of the facts and procedure in the main proceedings 
1 The defendant (the Agenția Națională de Integritate (National Integrity Agency)), 
is an administrative authority responsible for the assessment of conflicts of 
interests. The applicant was, at the relevant time, mayor of the city of MN. 
2 In an assessment report dated 25 November 2019, the defendant found that the 
applicant had failed to comply with the legal regime governing conflicts of 
interests in administrative affairs, in that, during his term of office as mayor, he 
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had concluded a ‘loan for use’ agreement with Asociația T.M.N. 
(T.M.N. Association), of which the applicant’s wife was a founding member and 
vice-chairperson. Under that agreement, the association was granted the right to 
use, free of charge, certain premises belonging to the city of MN for a period of 
five years, for the purposes of cultural activities. 
3 On 19 December 2019, the applicant brought an administrative action seeking the 
annulment of that report. In support of his application, the applicant argues, in 
substance, that the decision to conclude the ‘loan for use’ agreement had been 
adopted by the MN city council and that he had therefore been obliged to give 
effect to that decision. In addition, he contends, the decision in question procured 
no material advantage for his wife. Lastly, the applicant submits that he was not 
invited to submit observations and that his rights of defence have therefore been 
infringed. 
4 The applicant has also asked the referring court, hearing the dispute, [the Curtea 
de Apel Timișoara (Court of Appeal, Timisoara) to refer various questions to the 
Court of Justice for a preliminary ruling. In substance, the applicant takes the view 
that European Union law precludes the national legislation pursuant to which the 
ancillary penalty of being barred from holding elective public office for a period 
of three years (‘the contested penalty’) was imposed on him. 
The essential arguments of the parties in the main proceedings 
5 The applicant claims that, if his action is dismissed, he will be exposed, by virtue 
of Article 25(2) of Law No 176/2010, to grave penalties, namely the termination 
of his mandate and a prohibition on his holding any elective public office for a 
period of three years. Law No 176/2010, he contends, is a law implementing the 
MCV decision and, for that reason, pursuant to Article 51 of the Charter, the 
guarantees provided for in the Charter apply equally to Law No 176/2010. 
6 In that context, the applicant raises the question of whether the contested penalty, 
which applies automatically by operation of law and cannot be applied in 
proportion to the infringement found, is consistent with a series of rights and 
principles guaranteed by the Charter. 
7 In the first place, the applicant maintains that the administrative assessment in 
conflicts of interests matters provided for by the national legislation corresponds 
to the concept of ‘criminal charge’ within the meaning of Article 6 of the 
European Convention on Human Rights, in the light of the criteria developed by 
the European Court of Human Rights, in particular the criterion of the severity of 
the penalty. In accordance with Article 52(3) of the Charter, that assessment 
should be characterised in the same way in the context of EU law. Consequently, 
even though the action in respect of which he has been penalised is not regarded 
as a criminal offence, but rather as a disciplinary offence, Article 49 of the 
Charter, he argues, remains applicable and precludes the national legislation, for 
reasons pertaining to the proportionality of the penalty in relation to the offence. 
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8 In the second place, the applicant considers that the legislation at issue infringes 
Article 15(1) of the Charter. Indeed, Article 25(2) of Law No 176/2010 lays down 
a prohibition on holding elective office for a period of three years from the date of 
termination of mandate or the date on which the administrative authority’s 
assessment report becomes final. That prohibition, which is not proportionate to 
the act committed, adversely affects the applicant’s right to engage in work. 
9 In the third place, the applicant takes the view that the fact that the contested 
penalty cannot be challenged in judicial proceedings and that it comes into force 
automatically by operation of law infringes his right to an effective remedy, 
guaranteed by Article 47 of the Charter. 
10 The defendant argues, with reference to the principle of the proportionality of 
criminal offences and penalties, on which the applicant relies, that the analogy 
which the latter draws between the rules governing ‘incidente de integritate’ 
(integrity incidents) and those of criminal law is not a reasonable one, since each 
set of rules has a specific, and therefore different, scope. 
11 In this connection, the defendant argues that, in Decision No 449/2015, the Curtea 
Constituțională (Constitutional Court) held that the contested penalty is a penalty 
of a different legal nature from that of ancillary penalties under criminal law and 
consists in a temporary ban on the exercise of certain rights, in this case those 
being electoral rights. In addition, according to the same decision, the objective of 
Law No 176/2010 is to ensure integrity and transparency in the performance of 
public duties and the holding of public office and to prevent institutional 
corruption, that being a sphere which cannot be brought, by analogy, within the 
specific legal regime of criminal law and criminal-law penalties. 
12 As regards the alleged infringement of Article 15(1) of the Charter, the defendant 
relies on Article 52 thereof and submits, in substance, that the limitation of certain 
fundamental rights is natural if there is compliance with prevailing laws adopted 
in accordance with the Constitution and with EU law. A legal provision which 
provides for a penalty is not contrary to EU law or to any other legal provisions 
establishing fundamental rights of citizens if it entails a restriction of the rights of 
citizens, provided that a legal penalty is applied. 
13 The defendant takes the view that the application of a national rule intended to 
impose a negative obligation on individuals who hold positions of public 
authority – an obligation that arises precisely because of the status of the 
individuals in question – cannot constitute an infringement of EU law as long as it 
occurs in a context of imperative observance of the precepts of the rule of law and 
of the principles of integrity, transparency and the supremacy of the public 
interest. The rules on the basis of which the defendant performs its duties are 
designed to ensure integrity in the performance of public duties and the holding of 
public office and to prevent institutional corruption, by way of the exercise of 
authority in the assessment, in particular, of potential conflicts of interests 
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involving individuals identified by the law during the performance of public 
duties and the holding of public office. 
Succinct presentation of the grounds for the request for a preliminary ruling 
14 The referring court observes that Law No 176/2010 is a law implementing the 
MCV Decision, which established certain benchmarks which Romania is required 
to fulfil. Benchmark 2 in the annex to that decision concerns the establishment of 
an integrity agency with responsibilities for verifying assets, incompatibilities and 
potential conflicts of interests, and for issuing mandatory decisions on the basis of 
which dissuasive sanctions can be taken. Given that the objective of the action 
before the referring court is the annulment of a report drawn up by the agency 
established on the basis of that second benchmark, the present case concerns the 
application of EU law. 
15 The referring court states that national law provides that, in the case where a 
conflict of interests is established in the context of elective duties, as in the present 
case, the mandate of the person concerned terminates automatically under national 
law. At the same time, a penalty, such as the contested penalty, applies as an 
ancillary penalty. It applies automatically, by operation of law, without any 
analysis of the appropriateness of its imposition and without any variation by 
reference to the gravity of the infringement found. 
16 As regards the first question referred for a preliminary ruling, the national 
court points out that the facts in respect of which the applicant was penalised may, 
in accordance with Article 25(1) of Law No 176/2010, constitute either a 
disciplinary offence or a criminal offence. The offence of conflict of interests is 
punishable under national law by a term of imprisonment of between one and five 
years and a ban on exercising the right to hold public office. Thus, it may be seen 
that both the legislation on administrative conflicts of interests and criminal law 
on the offence of conflict of interests govern the penalty of a ban on performing 
public duties or on holding public office. 
17 In that context, the question arises as to whether the provisions of Article 49 of the 
Charter apply also to proceedings other than criminal proceedings (concerning, for 
example, the disciplinary liability of civil servants, which, under Romanian law, is 
a public-law matter) which could nevertheless entail criminal liability. On this 
point, the referring court states that the facts of the present case can be regarded as 
a ‘criminal charge’ within the meaning of Article 6 of the European Convention 
on Human Rights, in the light of the criteria developed by the European Court of 
Human Rights, in particular the criterion of the gravity of the penalty. 
18 As regards the second question, the referring court notes that, in the case where a 
person who holds an elective public office is found to have acted under a conflict 
of interests, the contested penalty applies automatically, by operation of law, 
without there being any possibility of imposing a penalty that is proportionate to 
the infringement committed. Not even a court analysing a report issued by the 
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defendant has competence to examine the principal penalty of the termination of 
mandate or the contested penalty or to apply, if appropriate, a penalty which is 
proportionate to the infringement in question. 
19 In that context, in the event that the first question is answered in the affirmative, 
the question arises as to whether the principle of the proportionality of penalties, 
enshrined in Article 49(3) of the Charter, precludes national legislation of that 
kind. 
20 As regards the third question, the referring court states that, under national law, 
the contested penalty applies automatically, by operation of law, and the court 
may not examine either the need for the penalty to be applied or its extent, in the 
light of the specific circumstances of the case. The court can merely verify 
whether the facts alleged constitute a conflict of interests. 
21 Consequently, since the individual concerned by the assessment report may 
dispute before the national court only the existence of the facts alleged, and not 
the penalty applied, the question arises as to whether Articles 15 and 47 of the 
Charter preclude legislation of that kind.