Opinion of the Advocate General — ECLI:EU:C:2024:513
Date: 2024-06-13
Language of the case: Bulgarian
Procedure: Reference for a preliminary ruling
Origin: Bulgaria

Translation C-80/23 – 1 
Case C-80/23 
Request for a preliminary ruling 
Date lodged: 
14 February 2023  
Referring court or tribunal:  
Sofiyski gradski sad (Bulgaria)  
Date of the decision to refer:  
14 February 2023  
Applicant:  
Zamestnik direktor na Glavna direktsia za borba s organiziranata prestapnost kam 
Ministerstvo na vatreshnite raboti (Deputy Director of the General-Directorate for 
Combating Organised Crime)  
Accused: 
V. S.  
 
ORDER 
Date: 14.02.2023      City: Sofia 
Having examined private prosecution No 752 from the 2021 register, the Sofiyski 
gradski sad (Sofia City Court)   […] 
finds as follows: 
1 The referring court has taken note of the judgment of the Court of Justice of 
26 January 2023 in Case C-205/21 (ECLI:EU:C:2023:49), handed down in the 
present main proceedings, and finds that certain circumstances have not yet been 
sufficiently clarified, which means that the referring court is unable to directly 
apply that judgment in order to assess whether and under what conditions it would 
have to grant authorisation to collect V.S.’s biometric and genetic data. 
2 The difficulties relate, first, to the material in the file which the referring court 
may use to carry out the review required from it in paragraph 133 [of the Court’s 
judgment] and, second, to the question whether that review may extend to the 
EN 
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persuasiveness of the evidence, since, on the one hand, the lack of possibility 
under national law to assess the evidence is endorsed in paragraph 100, while, on 
the other hand, on the basis of the answer to the first question and in accordance 
with the remarks in paragraphs 130 to 131, the review may nevertheless be 
required. 
3 This requires the submission of a new request for a preliminary ruling. 
Facts 
4 On 1 March 2021, the natural person V.S. was accused of participating in a 
criminal organisation together with three other individuals, who – in the context of 
two commercial companies – for purposes of enrichment intended to commit 
coordinated criminal offences under Article 255 of the Nakazatelen kodeks 
(Bulgarian Criminal Code, ‘the NK’) for the purpose of tax evasion in connection 
with the assessment and payment of tax debts under the Zakon za danaka varhu 
dobavenata stoynost (Bulgarian Law on value added tax); the acts were legally 
classified as criminal offences under Article 321(3), 2nd case, point 2 in 
conjunction with Article 321(2) of the NK. 
The decision to accuse V.S. was served on her on 15 March 2021. V.S. defended 
herself and did not instruct a lawyer to represent her. 
5 Immediately after notification of the charges, she was requested to cooperate in 
the creation of a police record, in other words, to submit to the collection of 
dactyloscopic and photographic data concerning her and to the taking of samples 
in order to create a DNA profile (‘collection of biometric and genetic data’). 
6 The creation of a police record is a procedure that is separate and distinct from the 
criminal proceedings. While it is initiated once the person in question is accused, 
it exists separately from the criminal proceedings and is not a part of them. It is 
therefore subject to different rules. 
7 Since V.S. had refused to have her biometric and genetic data collected, on the 
same day – on 15 March 2021 – she filled out a declaration form stating that she 
had been informed that there was a legal basis for creating a police record under 
the Zakon za Ministerstvo na vatreshnite raboti (Bulgarian Law on the Ministry of 
Interior, ‘the ZMVR’). In this declaration, she officially stated, without giving 
reasons, that she refused to submit to the collection of the dactyloscopic and 
photographic data concerning her and to the taking of samples in order to create a 
DNA profile. 
8 The police authority did not take any action to create a police record for V.S. and 
instead called upon the referring court. 
The application made reference to the ongoing criminal proceedings; it is claimed 
that there is sufficient evidence for the guilt of the accused including V.S.; it is 
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stated that she was formally charged with committing a criminal offence in the 
sense of Article 321(3), 2nd case, no 2 in conjunction with Article 321(2) of the 
NK and that she refused to have her fingerprints taken, to be photographed, and to 
allow samples to be taken for the DNA profile; the legal provisions are mentioned 
(Article 68(1) of the ZMVR and Article 11(4) of the Naredba za reda za 
izvarshvane i snemane na politseyska registratsia [Bulgarian Regulation on the 
particulars of creating a police record, ‘the NRISPR’]); the application requests 
the power to force V.S. to subject herself to these actions (taking fingerprints, 
taking of photographs for the file, and taking of samples for the DNA profile). 
9 This application includes the following documents: a photocopy of the decision to 
formally accuse V.S. and a photocopy of the declaration in which V.S. refused to 
give consent to having fingerprints taken, to be photographed, and to allow 
samples to be taken for the DNA profile. 
The other documents contained in the file were not provided to the referring court. 
The reasons for that are set out below in paragraphs 21 to 27. 
Provisions of European Union law and case-law relied on 
10 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 L 119, 2016, p. 89). 
Judgment of the Court of Justice of 26 January 2023, Ministerstvo na vatreshnite 
raboti, C-205/21, ECLI:EU:C:2023:49. 
Provisions of national law relied on 
11 National laws: 
- Nakazatelen kodeks (Bulgarian Criminal Code; ‘the NK’); 
- Nakazatelno-protsesualen kodeks (Bulgarian Code of Criminal Procedure, 
‘the NPK’); 
- Zakon za Ministerstvoto na vatreshnite raboti (Bulgarian Law on the 
Ministry of Interior, ‘the ZMVR’); 
On the national legal provision in the NPK regarding the judicial review of 
measures taken by the investigating authorities in investigation proceedings that 
infringe the privacy of Bulgarian nationals 
12 In the course of the investigation proceedings, when evidence is collected, the 
necessity of such investigative measures that lead to a violation of the privacy of 
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natural persons arises – e.g. access to connection data – Article 159a of the NPK; 
body search, search of their homes and vehicles as well as seizure in their homes 
and vehicles – Article 161 of the NPK; or personal search of individuals with 
regard to items they carry in their clothing – Article 164 of the NPK; seizure and 
confiscation of correspondence – Article 165 of the NPK etc. 
13 One of these investigative measures is the examination of a person – Article 158 
of the NPK. This includes the identification of physical characteristics, including 
injuries, scars, traces of the offence, etc. The examination of a person may also 
include taking photographs, fingerprinting and taking a sample for DNA profiling 
(i.e. collecting biometric and genetic data) if this is necessary with regard to the 
subject matter of the proceedings. 
14 According to the national standard for the protection of the rights of natural 
persons, the measures referred to in paragraphs 12 to 13 are carried out by the 
investigating authorities after prior authorisation by a court; in urgent cases it is 
possible to carry them out without such prior judicial authorisation, but judicial 
approval should be obtained as soon as possible thereafter […]. 
The examination of a person under paragraph 13 specifically is carried out with 
the person’s consent, and if they do not consent, a compulsory examination is 
carried out with the court’s authorisation – Article 158(3) of the NPK; in urgent 
cases, it is carried out without the court’s authorisation, but subsequent judicial 
approval must be obtained – Article 158(4) of the NPK. 
15 In each case, the case file is submitted to the court, which may examine all of the 
material in the file in order to assess whether the request for prior authorisation or 
subsequent approval is justified. 
16 In the course of the investigation proceedings, the need arises to take procedural 
coercive measures against the accused – detention pending trial – Articles 64 to 65 
of the NPK, house arrest – Article 62, measures to protect the victim – Article 67 
of the NPK, removal from office – Article 69 of the NPK etc. This is a matter for 
the court. 
In each case the case file is submitted to the court, which may examine all of the 
material in the file in order to assess whether or not the prosecution’s request to 
order these measures is justified. In these cases, the defence also has access to the 
material in the file. 
17 In the course of the investigation proceedings it becomes necessary to take 
measures to secure a fine, confiscate items etc. This is also a matter for the court, 
which has access to the entire case file. 
18 Indeed, in the pre-trial phase of criminal proceedings, the court frequently grants 
judicial authorisations and approvals for the implementation of various measures 
that affect the rights of natural persons, or rules on complaints by the persons for 
violation of their rights – in particular on remedies against detention pending trial. 
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In each of these cases, the entire case file is submitted to the court, which must 
examine it and decide according to the documents contained in the file. 
In practice, this has led to the obstruction of the actual investigations, which is 
why the special provision of Article 203(5) of the NPK was introduced, according 
to which the investigations in proceedings are continued even if the case file has 
been submitted to a court in connection with procedural coercive measures. 
19 The case file is not submitted to the court if a witness is being questioned before a 
judge – second sentence of Article 222(1) of the NPK. The reason for this is that 
the court does not have the option of conducting the questioning itself – the role of 
the court is passive in that it only has to review the formal requirements for the 
lawfulness of this questioning. The court does not make any decisions. 
If an anonymous witness is being questioned, the court has access to their real 
identity – Article 123(5) in conjunction with Article 123(2) no 2 of the NPK. 
20 Conclusion: When it comes to criminal proceedings, under national law, case-law 
and legal doctrine there is neither a practical case nor a theoretical approach to say 
that the court, when deciding on an application concerning the violation of rights 
of natural persons, should not be provided with the case file in order not to impede 
the criminal investigations. 
It is not thought that the court could violate the secrecy of the investigation, 
disclose information to suspects or otherwise restrict the ability of the 
investigating authorities to carry out investigative measures – as stated in 
paragraph 100 of the judgment in Case C-205/21. 
From the perspective of national law, such an assumption sounds completely 
absurd. 
On the reason for not submitting the case file to the court if an application is made 
under Article 68 of the ZMVR for a court order for the compulsory collection of 
biometric and genetic data in the context of the mandatory creation of a police 
record. 
21 The above provisions are only relevant to criminal proceedings. However, they 
are not relevant to other procedures, including procedures under the second 
sentence of Article 68(5) of the ZMVR. It is distinct from criminal proceedings 
and is not part of them (see paragraph 6 above). 
22 The wording of Article 68 of the ZMVR is such that the creation of a police 
record automatically follows from a person being accused of an intentional 
official offence. Since the collection of biometric and genetic data is a mandatory 
element of such creation of a police record, this data must accordingly also 
necessarily be collected as an automatic consequence of the person’s being 
accused. 
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23 According to the second sentence of Article 68(5) of the ZMVR, in the event that 
the accused person refuses to submit to the collection of their biometric and 
genetic data at the time of creation of their police record, it is obligatory for these 
acts to be carried out ‘with judicial authorisation …’. 
In view of the automatic nature of the creation of a police record, including the 
collection of biometric and genetic data, judicial review under the second sentence 
of Article 68(5) of the ZMVR is limited to the question of whether there a person 
has been charged with an intentional official offence and whether that person has 
refused to submit to the collection of their biometric and genetic data. It is not 
required for any other circumstances to be reviewed. That is why the court is not 
provided with the entire case file but only with a copy of the decision to accuse 
the person and the statement of the accused refusing to submit to the collection of 
their biometric and genetic data. 
24 The reason for this limited judicial review is the fact that this procedure is 
governed by the ZMVR and not the NPK; the request is made by a police 
authority and not by the prosecution. Accordingly, the guarantees characteristic of 
the NPK regarding the provision of the entire case file to the court and the 
unlimited review of the lawfulness of the application do not apply. 
25 Specifically: If the collection of biometric and genetic data is necessary for the 
investigation in the specific proceedings in which the person is accused, it is 
carried out in accordance with the procedure under Article 158 of the NPK, 
applying procedural safeguards, including full access by the court to the case file, 
as well as a full assessment by the court of all circumstances related to the 
lawfulness of such collection, including whether there are sufficient grounds for 
the charge and whether the collection of such data is necessary and proportionate. 
In the case of the creation of a police record, on the other hand, the data is 
collected for possible future use only, should a need arise at some point in the 
future. The national legislature has therefore not provided for effective judicial 
review; accordingly, the case file is not submitted to the court. 
26 The referring court reiterates that the reason for not submitting the case file to the 
court in the proceedings under the second sentence of Article 68(5) of the ZMVR 
is not related to the objective of preserving the secrecy of the investigation and not 
impeding any future investigative measures. 
This procedure is not, in itself, related to the investigations. 
The procedure under Article 158 of the NPK, however, is related to the 
investigations and the case file is always submitted to the court in its entirety. 
27 Conclusion: The procedure pursuant to the second sentence of Article 68(5) of the 
ZMVR does not provide for submission of the case file to the court because the 
legislature did not consider it necessary to impose on the court the task of 
assessing whether there is [sufficient] evidence for the charge and whether the 
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collection of biometric and genetic data is necessary, and not because it was 
feared that the court’s access to the material in the file would impede the 
investigation. 
Grounds for the questions referred 
The first question 
28 In paragraph 133 of the judgment of 26 January 2023 in Case C-205/21, the Court 
of Justice ordered the referring court to verify whether national law can be 
interpreted as permitting the court’s assessment of whether it is ‘strictly 
necessary’ to collect biometric and genetic data of the accused V. S. for purposes 
of creating her police record. 
29 The referring court points out that such an interpretation in conformity with EU 
law is possible if, instead of applying the special provision of the second sentence 
of Article 68(5) of the ZMVR, it applies the general provisions of the NPK, which 
apply in all cases in which the court grants prior authorisation to carry out 
investigative acts that infringe the privacy of natural persons. Under these general 
rules, the court must conduct a full review of all aspects of the lawfulness of the 
requested investigative measure. Particularly where the collection of biometric 
and genetic data for purposes of ongoing investigations is concerned, the court 
must carry out a full review of the lawfulness of that measure – Article 158 of the 
NPK (paragraphs 13 to 15 above). 
30 In paragraph 133 of the judgment, the Court of Justice states that that review 
involves an assessment of (1) the nature and gravity of the offence and (2) other 
relevant factors, such as those referred to in paragraph 132 – the particular 
circumstances of that offence, any link between that offence and other procedures 
in progress, and the criminal record or individual profile of the accused person. 
31 The referring court points out that all these circumstances are covered by the 
review that the court carries out as a matter of principle when it allows 
investigative measures that violate the privacy of natural persons to be carried out 
under the NPK. 
The referring court would therefore be in a position to comply with the Court’s 
guidelines for an interpretation in conformity with EU law if it simply applied the 
general procedure under the NPK, including the procedure under Article 158 of 
the NPK (paragraphs 13 to 15 above), to the act of collecting biometric and 
genetic data for the purposes of forensic registration that is the subject matter of 
the proceedings. 
32 However, the referring court points out that when applying the general procedure 
under the NPK, including the procedure under Article 158 of the NPK, it has the 
entire case file at its disposal and can carry out the necessary checks after 
reviewing it (paragraph 15 above). This means that the referring court should 
apply the general procedure pursuant to the NPK not only with regard to the 
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conduct and scope of the checks referred to by the Court of Justice in 
paragraphs 132 and 133, but also in relation to the inspection of the material in the 
file, after which it would carry out those checks. 
33 This follows from the fact that the referring court must be able to familiarise itself 
with the material in the file in order to genuinely comply with the Court’s 
guidelines as to the nature of the review to be carried out. 
In particular, it is not possible to carry out a genuinely effective review solely on 
the basis of the decision to accuse V.S. and her written refusal to provide 
biometric and genetic data. On the basis of those, it is not possible to fully review 
the circumstances listed in paragraphs 132 to 133 of the judgment – the nature and 
gravity of the offence; the particular circumstances in which the offence may have 
been committed; any link between that offence and other procedures in progress; 
any criminal record – and it is not possible to establish her personality. 
34 The referring court reiterates that an interpretation in conformity with EU law in 
accordance with the first sentence of paragraph 133 of the judgment is possible, 
but that it requires the court to have the power to request access to the case file in 
the main proceedings and to familiarise itself with the documents contained 
therein. 
35 At the same time, it is clear from paragraph 100 of the judgment that the Court of 
Justice considers it compatible with Article 47 of the Charter for a court deciding 
on an application for authorisation to compulsorily collect biometric and genetic 
data from an accused person not to have access to the material in the file and 
therefore not to be in a position to assess the evidence. In light of this, a national 
law that does not make the case file available to the court in proceedings under the 
second sentence of Article 68(5) of the ZMVR appears to be compatible with EU 
law. 
36 Consequently, there is an ambiguity. On the one hand, the Court of Justice agrees 
with the national legislature that the case file should not be provided to the court, 
with the result that – in the absence of knowledge of the material in the file – it 
appears lawful for the latter not to be able to review the evidence on which the 
accusation is based (paragraphs 100 to 101). On the other hand, in paragraphs 132 
to 133, the Court of Justice requires the referring court to carry out a number of 
checks which, according to the referring court, cannot be effectively carried out if 
it does not have access to the case file. 
37 Hence the first question, namely whether Article 10 of the Directive must be 
interpreted as meaning that the assessment of ‘strict necessity’ can be carried out 
without the court having access to the entire case file but only to two documents 
contained therein – the decision on the formal accusation and the statement on the 
refusal to submit to the collection of biometric and genetic data – or whether, 
conversely, this assessment requires the court to have access to the entire case file. 
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38 The referring court reiterates that the Court of Justice arrived at its answer in 
paragraphs 100 to 101 by starting from a factual and legal situation that is alien to 
Bulgarian law, namely that the court was not granted access to the case file 
because there was a risk that this might impede the investigations (as discussed in 
paragraphs 12 to 27 above). 
In the absence of such reason for not making the case file available to the court, 
and taking into account the fact that the interpretation in conformity with EU law, 
which the Court of Justice invites the referring court to adopt in paragraph 133, 
requires access to the case file, the referring court should be able to request the 
case file. 
39 In practical terms: In order to be able to carry out the checks imposed by the Court 
in paragraph 133 of the judgment in the main proceedings, the referring court 
needs to request the case file. However, it is not able to request the case file as the 
Court has assumed in paragraphs 100 to 101 that it is lawful not to make the case 
file available to the referring court. However, the Court decided this on the basis 
of a factual and legal situation that does not exist in Bulgarian law. 
Before requesting the case file, the referring court therefore needs confirmation 
from the Court of Justice that it would not be doing the exact opposite of what the 
Court has already said in paragraphs 100 to 101. 
It is possible that, when the Court imposes certain checks in paragraphs 132 to 
133, it means that they should be carried out without the referring court having 
access to the case file but only on the basis of the decision to formally accuse the 
person concerned and their declaration of refusal. 
If this is what the Court meant, it is not possible for those checks to be carried out. 
The second question 
40 This question is raised only if the first question is answered in the affirmative. 
In paragraphs 100 to 101 of its judgment, the Court of Justice states that it is 
permissible for the referring court – since it does not have access to the case file – 
not to review the merits of accusation provided that a judicial review will take 
place subsequently. 
However, if the referring court does have access to the case file, it should carry 
out this review given that it is now not only factually possible – the material in the 
file is available – but also legally required. Thus, in paragraph 130 of its 
judgment, the Court stated that the mere fact that a person has been accused is not 
sufficient and clarified in paragraph 131 that there must be serious grounds for 
believing that that person has committed the criminal offence. 
41 It can be concluded from this that the referring court may also assess whether the 
accusation is sufficiently supported by evidence. This can be justified as follows: 
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- Article 6(a) of Directive 2016/680 establishes such a requirement as a 
fundamental condition for the collection of personal data; 
- such a review is routine under national law and is applied in all cases under the 
NPK, including the procedure pursuant to Article 158 of the NPK (paragraph 13), 
which comes closest to the procedure under the second sentence of Article 68(5) 
[of the ZMVR]; 
- the possibility of such a review being carried out at a later stage, as indicated by 
the Court in paragraphs 100 to 101 of the judgment, does not rule out the 
possibility that, at the time of the judicial authorisation of the compulsory 
collection of the biometric and genetic data, insufficient evidence had been 
collected to support the accusation but that it would only be collected at a later 
stage. 
- the possibility of such a review being carried out at a later stage, as identified by 
the Court in paragraphs 100 to 101 of the judgment, is a remedy for a legal 
infringement which has already taken place, the purpose of Directive 2016/680 
being to establish a mechanism to prevent personal data, in particular biometric 
and genetic data, from being collected without a basis for doing so. 
42 Next, the referring court expressly points out that at least part of the checks the 
Court of Justice requires it to carry out in paragraphs 132 to 133 of its judgment 
by their very nature involve a review of the evidence collected with regard to who 
committed the offence and whether it is criminal in nature. This applies to the 
review of 1) the nature and gravity of the offence and 2) the circumstances of its 
commission. In order to assess these circumstances, it must therefore first be 
established that there are ‘reasonable grounds to suspect that the person concerned 
has committed a criminal offence’; that assessment requires that ‘sufficient 
evidence has already been gathered’, as expressly stated in paragraph 131 of the 
judgment. 
43 The assessment that the Court requires the referring court to carry out in 
paragraphs 132 to 133 (determination of the nature and gravity of the offence and 
of the particular circumstances of that offence) therefore also requires an 
assessment of the circumstances referred to in paragraphs 100 and 131 of the 
judgment (‘assessment of the evidence on which the accusation is based’ and [of 
the question] whether ‘there are reasonable grounds to suspect that the person 
concerned has committed a criminal offence’). 
44 Hence the second question, namely whether the referring court, once it has access 
to the case file, may carry out a full review of the lawfulness of the request for 
compulsory collection of biometric and genetic data, including the merits of the 
accusation, or whether it should not address this issue and should only carry out a 
partial review concerning other, unrelated circumstances (e.g. the criminal record 
and the personality of the accused person). 
For the reasons set out above [the referring court] has 
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ORDERED: 
THE MAIN PROCEEDINGS ARE SUSPENDED 
IT SUBMITS A REQUEST FOR A PRELIMINARY RULING TO THE COURT 
OF THE COURT OF JUSTICE OF THE EUROPEAN UNION 
1. Is the requirement of assessing ‘strict necessity’ under Article 10 of 
Directive 2016/680, as interpreted by the Court of Justice in paragraph 133 of 
[the judgment of 26 January 2023, Ministerstvo na vatreshnite raboti, 
C-205/21, EU:C:2023:49], satisfied if it is carried out solely on the basis of the 
decision accusing the person and on the basis of her written refusal to have 
her biometric and genetic data collected, or is it necessary for the court to 
have before it all the material in the file which, under national law, is made 
available to it in the event of an application for authorisation to carry out 
investigative measures which infringe the legal sphere of natural persons, 
where that application is made in a criminal case? 
2. If the Court of Justice answers the first question in the affirmative – 
after having been provided with the case file, may the court in the context of 
the assessment of ‘strict necessity’ pursuant to Article 10 in conjunction with 
Article 6(a) of Directive 2016/680 also consider whether there are reasonable 
grounds to suspect that the accused has committed the criminal offence 
referred to in the accusation? 
[…]