Opinion of the Advocate General — ECLI:EU:C:2020:491
Date: 2020-06-25
Language of the case: Bulgarian
Subject matter: Free movement of capital;Free movement of goods;Customs Union;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Bulgaria

Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice  
Date lodged:  
21 May 2019 
Referring court:  
Apelativen sad — Plovdiv (Plovdiv Court of Appeal, Bulgaria)  
Date of the decision to refer:  
16 May 2019 
Applicant:  
OM 
Other parties to the proceedings:  
Okrazhna prokuratura — Haskovo 
Apelativna prokuratura — Plovdiv 
  
Subject matter of the main proceedings 
Appeal by the defence against the judgment in criminal matters handed down by 
the Okrazhen sad — Haskovo (Haskovo Regional Court) in inquisitorial 
proceedings No 709/18, by which the defendant OM was found guilty of 
aggravated smuggling, insofar as the judgment ordered the confiscation of the 
instrumentality for the benefit of the State. 
Subject-matter and legal basis of the request for a preliminary ruling 
Interpretation of Article 17(1) and Article 47 of the Charter of Fundamental 
Rights of the European Union. 
The application is made on the basis of Article 267(1)(b) TFEU. 
EN 
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Questions referred 
1. Is Article 17(1) of the Charter of Fundamental Rights of the European Union 
to be interpreted as meaning that a national provision such as that pursuant to 
Article 242(8) of the Nakazatelen kodeks (Criminal Code, ‘the NK’) of the 
Republic of Bulgaria, according to which a means of transport used to commit 
aggravated smuggling which belongs to a third person who neither knew nor 
could or should have known that its employee was committing the offence must 
be confiscated for the benefit of the State, is unlawful on the grounds that it 
undermines the fair balance between the public interest and the need to protect the 
right to property?  
2. Is Article 47 of the Charter of Fundamental Rights of the European Union to 
be interpreted as meaning that a national provision such as that pursuant to 
Article 242(8) of the NK, according to which a means of transport owned by a 
person who is not the person who committed the offence can be confiscated 
without the owner being guaranteed direct access to the courts to state its case, is 
unlawful? 
Legislation and case-law of the European Union 
Articles 17 and 47 of the Charter of Fundamental Rights of the European Union  
Recital 33 of Directive 2014/42/EU of the European Parliament and of the 
Council of 3 April 2014 on the freezing and confiscation of instrumentalities and 
proceeds of crime in the European Union 
National law  
Articles 242, 37, 44 and 53 of the NK  
Article 111(1) of the Nakazatelno-Protsesualen kodeks (Code of Criminal 
Procedure, ‘the NPK’)  
Article 108 of the Zakon za sobstvenostta (Law on Property) of 1951 
Pursuant to Article 242(8) of the NK, the means of transport or movement which 
has served the purpose of transporting or moving the smuggled goods is 
confiscated for the benefit of the State even if it is not the property of the 
perpetrator, unless its value clearly does not correspond to the severity of the 
offence. 
The referring court explains that under Bulgarian law the confiscation of the 
instrumentality used to commit the offence of aggravated smuggling is intended to 
be a necessary consequence of the commission of the offence with the question of 
who owns the instrumentality not being taken into account. This confiscation is 
not a punishment but rather a consequence of the fact that the confiscated 
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instrumentality has served the purpose of committing the smuggling. Thus, 
although the confiscation is a measure that gives rise to an adverse effect, it is not 
a punishment according to the Bulgarian Criminal Code. It cannot be equated with 
the punishment of ‘confiscation where no specific danger emanates from the 
article in question’, which constitutes an expropriation of property belonging to 
the perpetrator. 
In addition, it should be noted that the special provision of Article 242(8) of the 
NK in relation to the confiscation of the means of transport or movement is an 
exception to the general rule of Article 53(1) of the NK, according to which the 
instrumentalities are confiscated only when they belong to the perpetrator. The 
provision of Article 242(8) of the NK gives confiscation for the benefit of the 
State a substantially broader scope than the underlying provision of Article 53(1) 
of the NK.  
The term ‘instrumentalities’ is defined in the binding case-law of the Republic of 
Bulgaria. According to interpretative judgment No 84/01.12.1960 of the full court 
of the Criminal Chamber of the Varhoven sad (Supreme Court) in criminal case 
No 78/1960, articles have ‘served’ the purpose of the commission of an offence 
when they have actually been used to commit it. The principle in question was 
developed in judgment No 11/1971 of the full court of the former Supreme Court 
in criminal case No 8/1971. According to that judgment, articles have served the 
purpose of the commission of the offence ‘if they have been directly and 
immediately used as a tool or means for realising the elements of an intentional 
criminal offence’. An instrumentality is thus something different from the object 
of an offence since the former relates to articles which, in a specific situation, 
serve to perform a criminal act. An article is an instrumentality only when it is 
directly linked with the actus reus of the offence, and not with other elements of 
the offence. This concept is primarily relevant in cases such as the present one, in 
which the actus reus itself is committed by virtue of the use of a means of 
transport or movement. This is the case since the actus reus consists in an actual 
movement (an actual transportation) of the goods over the border. 
Brief summary of the facts and procedure 
1 In July 2018, the defendant OM worked for the Turkish transport company 
‘Plastnak Nakliat Turizam Sanayi Ve Tidzharet Anonim Shirketi’. He carried out 
international transportation with an articulated lorry which consisted of a tractor 
unit of the ‘Mertsedes’ make and a trailer of the ‘Tirsan’ make which was coupled 
to it.  
2 On 11 July 2018, he was to begin his next trip from the Turkish city of Istanbul to 
the town of Delmenhorst in the Federal Republic of Germany, for the purpose of 
transporting hazelnut paste. In the days prior to his departure, an unknown person 
contacted him and suggested that he smuggle 2,940 antique coins to Germany in 
return for payment. The defendant agreed and received the coins. These coins had 
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a total weight of 24.850 kg and were divided between three plastic Coca-Cola 
bottles, each of which had a volume of 1.5 litres and had had its upper section cut 
off. To conceal the content of the bottles, they were wrapped in black material and 
adhesive tape. The defendant stowed the three bottles in the hollow space which 
was present as standard under the driver’s seat and was intended for luggage, tools 
and other accessories. The hollow space was a cabinet with a door which was 
moved by pressing a button on the driver’s seat (the button was accessible only 
from the interior of the driver’s cabin). 
3 The defendant hid the bottles with the coins between four plastic plates and panels 
for automobile glass in the hollow space, and did not inform anybody of his plan 
to commit a criminal offence. 
4 On the morning of 12 June 2018, he passed the Turkish border crossing point of 
‘Kapakule’ without any problems and entered the territory of the Republic of 
Bulgaria via the border crossing point of ‘Kapitan Andreevo’. At the latter border 
crossing point, he joined the ‘Incoming lorries’ lane for border and customs 
control. 
5 At this point, the customs officer and witness DM was working at the line check. 
He carried out a routine check of the articulated lorry and of the goods, during 
which he asked the driver to open the hollow space. The defendant did so, and the 
witness discovered the bottles. Upon being asked by the customs officer what the 
bottles contained, the defendant replied that they contained spare parts for 
vehicles. The customs officers decided to carry out a detailed examination of the 
bottles and cut one of them open. Upon doing so, he discovered the coins. He 
presumed that these were of cultural-historical value and asked an expert from the 
regional historical museum, who confirmed this presumption. 
6 The antique coins, the tractor unit, the trailer, the ignition key and the vehicle 
registration document were secured and seized as evidence. The articulated lorry 
was properly searched, photographed, assessed by an expert for the purposes of 
determination of value, and then impounded. 
7 The archaeological-numismatic expert valuation report commissioned, which is 
not called into question by the parties, reached the conclusion that all of the coins 
were genuine and constituted archaeological objects. They represented a collective 
discovery which was extremely valuable for the purposes of historical research, 
namely a hoard of coins. As the coins constituted a treasure trove, they were of 
high value both in academic terms and also for the purposes of exhibitions. As a 
consequence, each coin was estimated to be worth BGN 25; the total value of all 
of the coins was fixed at BGN 73,500. 
8 In the irrefutable conclusions of the expert report relating to the goods, the value 
of the tractor unit of the ‘Mertsedes’ make, with which the coins were transported, 
was set at BGN 81,529.50, and that of the trailer of the ‘Tirsan’ make which was 
coupled to it was set at BGN 23,721.25.  
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9 The first-instance judicial proceedings took place in the absence of the defendant. 
The defence did not request that oral testimony be heard, or that documents be 
produced, and nor did it dispute the facts set out in the bill of indictment by which 
the judicial proceedings had been initiated. Those facts correspond to the facts 
accepted by the Court. It is not expressly stated in the bill of indictment that the 
company which owns the articulated lorry has no connection with the offence (this 
is not specified in the reasons given by the first-instance court either); however, it 
is evident from the statement of the accepted facts that no such connection exists. 
10 During the pre-trial investigations, the managing director of the owner of the 
tractor unit that was the subject of the proceedings learned of the proceedings and 
granted the lawyer Dimitar Sladov a power of attorney to represent him in 
connection with the impounding of the articulated lorry which had been secured as 
evidence. In the pre-trial proceedings, the lawyer Mr Sladov requested the return 
of the tractor unit and the trailer. The request for the return of the articulated lorry 
was refused by the supervising public prosecutor and, upon appeal, by the first-
instance court. 
11 In his closing submissions before the first instance court, the lawyer Mr Ivanov 
did not plead that his client was innocent or that he should be acquitted. He 
requested that a more lenient sentence be imposed and that Article 242(8) of the 
NK not be applied; in doing so, he contended for the first time that this provision 
and the provisions described above contravened EU law. 
12 By criminal judgment No 13/22.03.2019 of the Haskovo Regional Court in 
inquisitorial proceedings No 709/18, the defendant OM was found guilty of an 
offence under Article 242(1)(e) of the NK — aggravated smuggling of a hoard of 
coins, the value of which satisfied the ‘on a large scale’ element of the offence. He 
was sentenced to a primary penalty of three years’ deprivation of liberty and, as a 
secondary penalty, to a fine of BGN 20,000. The primary penalty was suspended 
for four years from the point at which the judgment became legally binding. The 
coins which were the subject of the offence were confiscated for the benefit of the 
State pursuant to Article 242(7) of the NK. Pursuant to Article 242(8) of the NK, 
the tractor unit that was the subject of the proceedings, which had served the 
purpose of transporting the smuggled goods, was also confiscated for the benefit 
of the State. The trailer, which had no direct connection with the transportation, 
was returned to its owner, the Turkish company. 
Principal arguments of the parties in the main proceedings  
13 In the notice of appeal it is argued that the confiscation of the tractor unit also 
infringed the defendant’s right of defence. There was a contravention of the 
provisions of the European Convention for the Protection of Human Rights and 
Fundamental Freedoms (ECHR), of the Additional Protocol to the Convention, of 
the Charter of Fundamental Rights of the European Union (hereinafter the 
‘Charter of Fundamental Rights’) and of Regulation (EU) No 952/2013 of the 
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European Parliament and of the Council of 9 October 2013 laying down the Union 
Customs Code. 
14 In the main hearing, the lawyer Mr Ivanov maintained the appeal and presented 
new arguments in favour of the position that the confiscation of the means of 
transport which was owned by a person other than his client had not been lawfully 
ordered. He alleges that the confiscation was also contrary to the requirements of 
Directive 2014/42, which refers to the ECHR and the case-law of the European 
Court of Human Rights (ECtHR); furthermore, the confiscation also did not 
comply with the requirement pursuant to Article 5 of the Convention on 
Laundering, Search, Seizure and Confiscation of the Proceeds from Crime, 
according to which persons affected must have effective legal remedies available 
to them in order to preserve their rights. The lawyer Mr Ivanov further maintains 
his special request to the Court of Appeal that a request for a preliminary ruling be 
submitted to the Court of Justice of the European Union, in order for the alleged 
infringement of specific provisions of EU law to be examined. 
15 The Prokuror ot Apelativna prokuratura — Plovdiv (Public Prosecutor of the 
Public Prosecutor’s Office for Appeals of Plovdiv) requests that the special 
request be refused given that there was no need for an interpretation of EU law. 
The confiscation, ordered by the Haskovo Regional Court, of the means of 
transport by which the smuggled treasure trove had been transported had to be 
confirmed by the Court of Appeal because the application of Article 242(8) of the 
NK had never been the subject of dispute or divergences in the Bulgarian case-
law. The public prosecutor refers to judgments of the Varhoven kasatsionen sad 
(Supreme Court of Cassation) of the Republic of Bulgaria, in which it was 
emphasised that confiscation necessarily had to take place as a consequence of the 
commission of smuggling, irrespective of whether the confiscated property 
belonged to the perpetrator or to a third party acting in good faith. The Supreme 
Court of Cassation of the Republic of Bulgaria had upheld a piece of case-law in 
relation to proceedings pertaining to offences under Article 242 of the NK in 
which no contravention of the principle of the fair balance between the various 
interests involved, which had been laid down in the EU legislation cited by the 
lawyer Mr Ivanov, had been found to exist. It was a legitimate and proportionate 
consequence of the offence that the owner of the means of transport had been 
deprived of its use. Every Member State had the right to order such a confiscation 
in the public interest. 
Brief summary of the basis for the reference  
16 An answer regarding the meaning and content of the relevant EU law is of 
decisive importance for the purposes of arriving at a correct decision in the 
pending criminal judicial proceedings. The provision of Article 242(8) of the NK 
is unambiguous and requires no interpretation. The Court is obliged to confiscate 
the means for committing aggravated smuggling, regardless of who owns the 
means. This provision dates from a time when Community law was not yet 
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binding on Bulgaria, and is probably not in accordance with a number of 
provisions of EU law. Specifically, it probably does not comply with Article 17(1) 
and Article 47 of the Charter of Fundamental Rights. The fact of the means of 
transport or movement which served the purpose of transporting or moving the 
goods smuggled within the meaning of Article 242 of the NK being, pursuant to 
Article 242(8) of the NK, confiscated for the benefit of the State even when it 
does not belong to the perpetrator, may, in the view of the Court of Appeal, result 
in an imbalance between the interests of a third person who was not involved in 
the offence in any way and has no connection with it whatsoever, and the interests 
of the State in confiscating this person’s property since it was used to commit the 
offence. Since the national law does not provide any procedure for hearing the 
owner of the instrumentality, there may additionally be an infringement of the 
requirement arising from Article 47 of the Charter of Fundamental Rights (which 
adopts the requirement from Article 6 ECHR) according to which effective legal 
remedies must be guaranteed, with this necessarily encompassing direct access to 
the courts. 
17 An indication that the national law of the Republic of Bulgaria is incompatible 
with the cited provisions of EU law is provided by the judgment of the Fourth 
Chamber of the ECtHR of 13 October 2015, ÜNSPED РАКЕТ SERVISI SAN. VE 
TIC. A. Ş. v Bulgaria (Appeal 3503/2008). This judgment discusses a case where a 
lorry owned by a company registered in the Republic of Turkey was confiscated 
on the basis of Article 242(8) of the NK of the Republic of Bulgaria. In this 
judgment, it is held that the confiscation is contrary to Article 1 of the Additional 
Protocol to the ECHR, the content of which is consistent with that of Article 17(1) 
of the Charter of Fundamental Rights in relation to the right to property. It is 
further stated in the judgment that the owner of the lorry was denied access to the 
courts. Access to the courts as a means of realising effective legal protection is 
guaranteed in Article 47 of the Charter of Fundamental Rights. In the ECtHR’s 
judgment it is stated that the absence of a procedure in which the person affected 
was able to put his case meant that the State authorities were not able to assess the 
proportionality of the confiscation, which in turn meant that no ‘fair balance’ was 
able to be struck between all of the interests involved. It is emphasised that this 
balance depends on many factors, which include the owner’s behaviour. 
Consequently, the national authorities should have considered the degree of fault 
or care in relation to the confiscated property or at least the relationship between 
the conduct exhibited and the offence. It is held that the company concerned had 
to bear an individual and excessive burden; in this context, reference is made to 
the judgment of 23 September 1982, Sporrong and Lönnroth v Sweden, (§§ 69 to 
73, Series A No 52).  
18 The referring court considers that it is appropriate to cite a section of a judgment 
of the ECtHR of 24 October 1986, Agosi v The United Kingdom (Appeal 9118/80, 
Series А, No 108), where it is stated: ‘For forfeiture to be justified under the terms 
of the second paragraph of Article 1 of the Additional Protocol to the ECHR, it is 
enough [that] the State has struck a fair balance between the interests of the State 
and those of the individual … The striking of a fair balance depends on many 
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factors and the behaviour of the owner of the property, including the degree of 
fault or care which he has displayed, is one element of the entirety of 
circumstances which should be taken into account. Accordingly, although the 
second paragraph of Article 1 contains no explicit procedural requirements, the 
[ECtHR] must consider whether the applicable procedures in the present case 
were such as to enable, amongst other things, reasonable account to be taken of 
the degree of fault or care of the applicant company or, at least, of the relationship 
between the company’s conduct and the breach of the law …; and also whether 
the procedures in question afforded the applicant company a reasonable 
opportunity of putting its case to the responsible authorities’. 
19 In addition, recital 33 of Directive 2014/42 should also be considered. According 
to that recital, specific safeguards and judicial remedies must be provided for in 
order to guarantee also the preservation of the fundamental rights of third parties 
who are not being prosecuted. It is further stated that these safeguards include the 
right to be heard for third parties who claim that they are the owner of the property 
confiscated. 
20 For these reasons, the Chamber of the Court which is considering the matter is of 
the view that the question as to the meaning and applicability of the two 
provisions of the Charter of Fundamental Rights that have been discussed and as 
to potential non-compliance with these provisions by the national provision of 
Article 242(8) of the NK in relation to the confiscation of the instrumentality used 
to commit aggravated smuggling is of direct (prejudicial) significance for the 
purposes of arriving at a correct decision both in the present case and in further 
cases having the same subject matter.