Opinion of the Advocate General — ECLI:EU:C:2023:464
Date: 2023-06-08
Language of the case: Romanian
Subject matter: Accession;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Romania

Summary C-58/22 – 1 
Case C-58/22 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
28 January 2022 
Referring court: 
Curtea de Apel Craiova (Romania) 
Date of the decision to refer: 
13 January 2022 
Appellant: 
NR 
Other party: 
Parchetul de pe lângă Curtea de Apel Craiova 
  
Subject matter of the main proceedings 
Appeals brought by NR (‘the accused’) and by the Parchetul de pe lângă 
Tribunalul Olt (public prosecutor’s office at the Regional Court, Olt, Romania) 
against the judgment in criminal matters of 19 November 2018 of the Tribunalul 
Olt (Regional Court, Olt) sentencing the accused to one year and four months’ 
imprisonment for the offence of passive corruption. 
Subject matter and legal basis of the request 
Pursuant to Article 267 TFEU, the Court is asked to interpret the ne bis in idem 
principle and Commission Decision 2006/928. 
Question referred for a preliminary ruling 
Is the ne bis in idem principle, as guaranteed by Article 50 of the Charter of 
Fundamental Rights of the European Union, in conjunction with Romania’s 
obligations to address the benchmarks set out in the CVM decision (Commission 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-58/22 
 
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Decision 2006/928), to be interpreted as meaning that a decision to take no further 
action, issued by the public prosecutor after obtaining essential evidence in the 
case, precludes another public prosecution from being brought against the same 
person, for the same acts, albeit with a different legal classification, since that 
decision is final – unless it is established that the circumstance on which the 
discontinuance was based does not exist, or new facts or circumstances have 
emerged which show that the circumstance on which the discontinuance was 
based no longer exists? 
Provisions of EU law and case-law of the Court of Justice relied on 
Article 2 of the Treaty on European Union 
Article 50 of the Charter of Fundamental Rights of the European Union 
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 
Article 54 of the Convention implementing the Schengen Agreement of 14 June 
1985 between the Governments of the States of the Benelux Economic Union, the 
Federal Republic of Germany and the French Republic on the gradual abolition of 
checks at their common borders 
Judgments of 10 March 2005, Miraglia (C-469/03, EU:C:2005:156); of 
28 September 2006, van Straaten (C-150/05, EU:C:2006:614); of 11 December 
2008, Bourquain (C-297/07, EU:C:2008:708); of 22 December 2008, Turanský 
(C-491/07, EU:C:2008:768); of 5 June 2014, M (C-398/12, EU:C:2014:1057); of 
29 June 2016, Kossowski (C-486/14, EU:C:2016:483); and of 18 May 2021, 
Associazione ‘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) 
Provisions of international law and case-law relied on 
Article 6 of the Convention for the Protection of Human Rights and Fundamental 
Freedoms (‘the ECHR’) 
Article 4 of Protocol No 7 to the ECHR 
Judgments of the European Court of Human Rights (‘the ECtHR’) of 29 May 
2001, Franz Fischer v. Austria; of 10 February 2009, Sergey Zolotukhin v. Russia; 
and of 8 July 2018, Mihalache v. Romania 
PARCHETUL DE PE LÂNGĂ CURTEA DE APEL CRAIOVA 
 
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Provisions of national law relied on 
Legea nr. 135 din 1 iulie 2010 privind Codul de procedură penală (Law No 135 of 
1 July 2010 laying down the Code of Criminal Procedure; ‘the Code of Criminal 
Procedure’) 
Article 6 – Ne bis in idem 
‘No one may be prosecuted or tried for an offence if a final judgment in criminal 
matters has already been handed down for the same acts, albeit with a different 
legal classification.’ 
Article 335 – Proceedings in the event of the reopening of investigations 
‘1. If it is subsequently found that the circumstance on which the 
discontinuance of the case is based does not exist, a more senior prosecutor than 
the one who issued the decision shall set aside the order and instruct the reopening 
of the investigations … 
2. If new facts or circumstances emerge which show that the circumstance on 
which the discontinuance was based no longer exists, the prosecutor shall revoke 
the order and instruct the reopening of the investigations.’ 
Succinct presentation of the facts and procedure in the main proceedings 
1 On 12 February 2014, the general meeting of a cooperative company decided to 
remove the accused from her position as chair of the company. That decision was 
contested in court and annulled; the accused was then reinstated by the company. 
In that dispute, the accused was represented by a lawyer to whom she had agreed 
to pay a ‘success fee’ of EUR 4 400. 
2 On 30 April 2015, the accused demanded that amount from five employees of the 
company; in return, she would refrain from issuing decisions terminating their 
employment contracts. Since her financial demands were not met, the accused 
issued and signed those decisions. The abovementioned persons (‘the 
complainants’) therefore lodged two complaints which have identical content. 
3 After the first complaint was filed with the competent police force on 8 June 2015, 
a criminal investigation file was opened at the public prosecutor’s office at the 
Regional Court, Olt. By special order dated 31 January 2017, the accused was 
committed for trial before the Regional Court, Olt, for the offence of passive 
corruption. This case is pending before the referring court on appeal (‘the 
proceedings relating to the offence of passive corruption’). 
4 A second complaint was filed on 26 June 2015 with the Direcția Națională 
Anticorupție (National Anti-Corruption Directorate, Romania). Taking the view 
that that complaint contained evidence of the existence of the offence of extortion, 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-58/22 
 
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the National Anti-Corruption Directorate referred the accused to the Parchetul de 
pe lângă Judecătoria Slatina (public prosecutor’s office at the Court of First 
Instance, Slatina, Romania), which had jurisdiction in the matter, and which 
opened a second criminal case (‘the proceedings relating to the offence of 
extortion’). 
Proceedings relating to the offence of extortion 
5 On 14 March 2016, the public prosecution service at the public prosecutor’s office 
at the Court of First Instance, Slatina, in charge of the case, ordered criminal 
proceedings in rem to be brought for the offence of extortion. The competent 
police force interviewed the accused and the complainants. Documents and a CD 
containing an audio recording that the complainants had allegedly made on 
30 April 2015 were also entered in the investigation file. 
6 On the basis of that evidence, the police decided that the accused had not 
demanded any money from the complainants and that she had not sought to obtain 
a material gain either for herself or others, since the amount of EUR 4 400 was to 
be given to the lawyer with whom the accused had entered into a legal aid 
agreement. A request for the case to be discontinued was therefore drawn up. On 
the basis of that request, on 27 September 2016 the prosecutor in charge of the 
case issued an order for dismissal. 
7 On 21 October 2016, the chief prosecutor of the public prosecutor’s office at the 
Court of First Instance, Slatina, when reviewing the legality and validity of the 
decision to take no further action, set aside the order of 27 September 2016 and 
instructed the reopening of the criminal proceedings at issue. The chief prosecutor 
noted in particular that the same matter was the subject of proceedings relating to 
the offence of passive corruption before the public prosecutor’s office at the 
Regional Court, Olt, where the investigations were at an advanced stage. Proper 
administration of justice dictated that jurisdiction in the proceedings relating to the 
offence of extortion should be declined in favour of the proceedings relating to the 
offence of passive corruption. The case was referred to the Judecătoria Slatina 
(Court of First Instance, Slatina, Romania) for confirmation of the reopening of 
the criminal proceedings. 
8 On 21 November 2016, that court rejected the application, holding that the legal 
criteria for reopening the criminal proceedings had not been met. The fact that the 
same person is the subject of investigations in another case pending before a 
different court and that those investigations are at an advanced stage does not lead 
to the legal conclusion that a decision to take no further action must be set aside. 
This is because, when examining the order of certiorari, the law requires a 
determination of whether the circumstance on which the decision to take no 
further action is based does not exist, or whether new facts or circumstances have 
emerged which no longer justify the decision to take no further action, neither of 
which is the case here. The order for dismissal of 27 September 2016 therefore 
became final. 
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Proceedings relating to the offence of passive corruption 
9 Following the complaint of 8 June 2015, the public prosecutor’s office at the 
Regional Court, Olt, began criminal proceedings against the accused for the same 
acts, although with a different legal classification – namely that of passive 
corruption. Committed for trial before the Regional Court, Olt, by order dated 
31 January 2017, the accused relied on the illegality of the proceedings brought 
before that court for the offence of passive corruption, since she had already been 
investigated for the same acts in the proceedings relating to the offence of 
extortion, and a final decision to take no further action had already been issued. 
On that basis, the accused invoked the ne bis in idem principle. 
10 The Regional Court, Olt, rejected that defence on the ground that the criteria for 
the application of that principle had not been met. The Regional Court, Olt found 
that: (a) the proceedings before it could not be regarded as new criminal 
proceedings compared with the proceedings relating to the offence of extortion, 
considering the dates on which the two criminal complaints had been made; (b) 
the investigations carried out in the proceedings relating to the offence of 
extortion had led to a decision to take no further action in rem, at a time when the 
proceedings relating to the offence of passive corruption had already been brought 
against the accused and she had been subjected to supervision measures; (c) in the 
proceedings relating to the offence of extortion, a thorough investigation had not 
been carried out, first because insufficient evidence had been obtained, and second 
because it had been investigated by a police officer, whereas the criminal 
investigation in the proceedings relating to the offence of passive corruption had 
been conducted by the public prosecution service handling the case. 
11 By judgment in criminal matters of 19 November 2018 of the Regional Court, Olt, 
the accused was sentenced, inter alia, to one year and four months’ imprisonment 
for the offence of passive corruption. The accused and the public prosecutor’s 
office at the Regional Court, Olt, appealed that judgment. By judgment of 
20 October 2020, the Curtea de Apel Craiova (Court of Appeal, Craiova, 
Romania) upheld the appeal entered by the accused, set aside the judgment under 
appeal and ordered the closure of the criminal proceedings brought against the 
accused. 
12 In its reasoning for that decision, the court of appeal found, in essence, that the 
complaints lodged by the complainants in the two proceedings were identical in 
content, and that although they had been made on different dates, the first 
proceedings in which evidence had been obtained were those relating to the 
offence of extortion, which had led to a decision to take no further action. In 
addition, the evidence collected in the two proceedings was the same: namely, 
statements from the complainants, the statement from the accused, an audio 
recording and miscellaneous documents. On the date of the final decision in the 
proceedings relating to the offence of extortion, the prosecutor in charge of the 
case and later the court, in verifying the set-aside decision adopted by the chief 
prosecutor at the public prosecutor’s office at the Court of First Instance, Slatina, 
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also examined the charges in the proceedings relating to the offence of passive 
corruption, since the existence of those proceedings was the reason for setting 
aside the decision to take no further action. 
13 At the end of its analysis, the court of appeal concluded that the criminal 
investigation conducted in both proceedings was thorough and that the decision to 
take no further action which terminated the proceedings relating to the offence of 
extortion must be considered a final judgment, within the meaning of Article 4 of 
Protocol No 7 to the ECHR, hence the ne bis in idem principle applied in that 
case. 
14 The Court of Appeal, Craiova, brought an appeal on a point of law against that 
judgment. By decision of 21 September 2021, the Înalta Curte de Casație și 
Justiție (High Court of Cassation and Justice, Romania; ‘the ÎCCJ’) upheld the 
appeal, set aside the contested decision and referred the case back to the Court of 
Appeal, Craiova. 
15 In its reasoning for that decision, the ÎCCJ, recalling the case-law of the Court of 
Justice and of the ECtHR in the matter, stated, in essence, that, although the ne bis 
in idem principle may apply in the case of decisions taken by the public 
prosecution service which terminate the public prosecution, such as 
discontinuance of the prosecution or a sentence negotiated between the parties, not 
all decisions to take no further action made by the public prosecution service fall 
into the category of a final judgment since, in most cases, those solutions are not 
final and an instruction to reopen the investigation may be given. 
16 Examining the order for dismissal of 27 September 2016 in the light of the ne bis 
in idem principle, the ÎCCJ held that the order did not fall into the category of a 
final judgment, since it did not contain any assessment on the substance of the 
case. Specifically, the public prosecution service gave no reasoning for the order, 
and merely instructed the case for the offence of extortion to be discontinued. 
17 Following the decision of the ÎCCJ, the case was brought before the referring 
court for a re-examination of the appeals lodged by the accused NR and the public 
prosecutor’s office at the Regional Court, Olt, against the judgment of 
19 November 2018 of the Regional Court, Olt. The referring court subsequently 
concluded that it was necessary to refer a question to the Court of Justice for a 
preliminary ruling. 
The essential arguments of the parties in the main proceedings 
18 The accused contends that Article 6 of the Code of Criminal Procedure, Article 4 
of Protocol No 7 to the ECHR and Article 50 of the Charter preclude a public 
prosecution from being brought against her for the offence of passive corruption, 
since the same matter was the subject of different criminal proceedings for the 
offence of extortion, which had led to a decision to take no further action. The 
public prosecutor’s office at the Regional Court, Olt, considers that, in the present 
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case, the criteria for the application of the ne bis in idem principle have not been 
met. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
19 The referring court notes that the accused faces the same charges in two criminal 
proceedings, one of which was settled definitively by the public prosecutor with 
an order for dismissal for the charge of extortion, while the other is pending 
before the referring court for the offence of passive corruption. 
20 On the basis of the case-law of the Court of Justice on the ne bis in idem principle, 
the referring court finds that, for an order for dismissal of the public prosecution 
service to be regarded as a final judgment which may be relied on in accordance 
with that principle, the following criteria must be met: (a) a thorough investigation 
of the matter must be carried out; (b) the decision to take no further action must be 
based on the substance of the criminal charges; (c) the eadem personae and idem 
factum requirements must be satisfied; (d) the criminal proceedings must be 
finally disposed of. 
21 From its analysis of both proceedings, the referring court concluded that all those 
criteria have been met in the present case. Essential evidence – namely the 
complainants’ statements and the audio recording of 30 April 2015 – was obtained 
in both proceedings. Therefore, in the proceedings relating to the offence of 
extortion, a thorough investigation was carried out and the essential evidence was 
obtained by the public prosecutor’s office at the Court of First Instance, Slatina. 
That evidence was taken into account when making the decision to take no further 
action, as is apparent from the arguments put forward in the request for the case to 
be discontinued, which were accepted by the prosecutor. 
22 Disagreeing with the ÎCCJ’s assessment that the order of 27 September 2016 was 
not substantiated by the public prosecution service, the referring court holds that, 
under Article 315(5) of the Code of Criminal Procedure, factual and legal 
reasoning is required only if the public prosecution service does not accept the 
arguments put forward in the investigating body’s request, or if there is a suspect 
in the case. However, because in the proceedings relating to the offence of 
extortion, the public prosecution had been brought in rem, the prosecutor could 
accept all the arguments of the investigating body put forward in the request for 
the case to be discontinued. 
23 The order of 27 September 2016 examined the evidence and its ability to prove 
the existence of the act and the guilt of the accused. The same evidence was 
subsequently the basis of the committal for trial in the proceedings relating to the 
offence of passive corruption. The referring court thus considers that all the 
criteria for the application of the ne bis in idem principle are met in the present 
case. 
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24 The same court emphasises that, while being required to comply with the ÎCCJ’s 
decision and having a different opinion on the interpretation of that principle, it 
considers it necessary to refer a question to the Court of Justice for a preliminary 
ruling. 
25 Decision 2006/928 is relevant in these proceedings, given the broad scope of the 
benchmarks set out in the annex to that decision and their systemic impact on the 
effectiveness of the judicial system. Decision 2006/928 and the Charter impose an 
obligation to ensure that those benchmarks are met and underline the need to 
respect the fundamental rights guaranteed by the Charter, the principle of legality 
and the rule of law. The aims of promoting judicial efficiency and combating 
corruption must be achieved within a functioning system which is compatible with 
the legal context and the fundamental rights of the persons concerned. 
26 One of the pillars of the rule of law is legal certainty, hence the ne bis in idem 
principle. Bringing two criminal proceedings against the same person for the same 
acts, for which the two public prosecutors’ offices have provided a different legal 
framework – one leading to a final decision to take no further action, issued after 
obtaining essential evidence, and the other leading to the accused being committed 
for trial – has created a situation of legal uncertainty for the accused, caused by 
the Romanian courts involved in the two investigations. 
27 However, a State that prosecutes one of its own citizens for the same act in two 
different proceedings calls into question its respect for the rule of law, the 
fundamental values of the European Union and the benchmarks that Romania 
must address under Decision 2006/928.