Opinion of the Advocate General — ECLI:EU:C:2022:12
Date: 2022-01-13
Language of the case: Bulgarian
Subject matter: External relations;Common foreign and security policy;Judicial cooperation in criminal matters;Area of freedom, security and justice
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:  
16 October 2020 
Referring court:  
Administrativen sad Silistra (Bulgaria) 
Date of the decision to refer:  
14 October 2020 
Applicants:  
DB 
LY 
Defendant:  
Nachalnik na Rayonno upravlenie Silistra pri Oblastna direktsiya na 
Ministerstvoto na vatreshnite raboti 
  
Subject matter of the main proceedings 
Action contesting the legality of an order issued under Article 84(8) of the Zakon 
za Ministerstvoto na vatreshnite raboti (Law on the Ministry of the Interior, ‘the 
ZMVR’) for the surrender of a vehicle for which an alert had been entered in the 
second generation Schengen Information System (SIS II) and a written request 
made for its surrender 
Subject matter and legal basis of the request for a preliminary ruling 
Interpretation of Article 39(3) of Council Decision 2007/533/JHA of 12 June 2007 
on the establishment, operation and use of the second generation Schengen 
Information System (SIS II). The reference is made under Article 267 TFEU. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-520/20 
 
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Question referred for a preliminary ruling 
Must Article 39 of Council Decision 2007/533/JHA of 12 June 2007 on the 
establishment, operation and use of the second generation Schengen Information 
System (SIS II), and in particular Article 39(3) thereof, be interpreted as meaning 
that it allows national rules and administrative practices under which, if the 
competent executing authority has valid reason to conclude that the alert entered 
in the SIS is not covered by the objectives for which it has been registered, and in 
particular the objectives laid down in Article 38(1), that authority can and must 
refuse to execute it? 
Provisions of EU law relied on 
Regulation (EC) No 1987/2006 of the European Parliament and of the Council of 
20 December 2006 on the establishment, operation and use of the second 
generation Schengen Information System (SIS II), recital 5 and Articles 1, 2 and 
52 
Council Decision 2007/533/JHA of 12 June 2007 on the establishment, operation 
and use of the second generation Schengen Information System (SIS II), 
Articles 1, 2, 36, 38, 39 and 49 
Provisions of national law relied on 
Zakon za Ministerstvoto na vatreshnite raboti (Law on the Ministry of the 
Interior), Articles 84, 120, 121, 122 and 123  
Naredba No. 8121z-465 za organizatsiyata i funktsioniraneto na Natsionalnata 
Shengenska informatsionna sistema na Republika Bulgaria (Ordinance No 8121h-
465 on the organisation and operation of the national Schengen Information 
System of the Republic of Bulgaria), Articles 3 and 7 
Succinct presentation of the facts and the main proceedings 
1 On 6 March 2017, the applicant, DB, purchased a car in Varna (Bulgaria) from 
AB, of Varna, under a written contract of sale of a vehicle on which the signatures 
were notarised, in accordance with Article 144(2) of the Zakon za dvizhenieto po 
patishtata (Law on road traffic). On 7 March 2017, the vehicle was registered with 
the Road Traffic Police Department of the Oblastna direktsiya na Ministerstvoto 
na vatreshnite raboti, Silistra (Regional Directorate of the Ministry of the Interior, 
Silistra) and issued with number plates. The applicant searched various public 
registers for encumbrances on the vehicle prior to the purchase and, when 
registering the vehicle, the competent services carried out the necessary searches, 
namely for any alert for the car registered in connection with criminal proceedings 
in Bulgaria as well as searches of the Interpol and Schengen Information System 
NACHALNIK NA RAYONNO UPRAVLENIE SILISTRA 
 
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databases. The vehicle was purchased as a joint asset of the spouses. The relevant 
taxes, compulsory insurance premiums and other fees were paid. 
2 On 24 May 2017, an alert from Norway was entered and registered in the national 
Schengen Information System (‘the N.SIS’), the search parameter for which was 
‘Object – stolen, misappropriated or otherwise lost’ and the vehicle was duly 
identified, including by its chassis number. 
3 On 26 May 2017, a police inspector noticed the vehicle in a car park in Silistra 
(Bulgaria). The car had Bulgarian number plates and was registered to DB. It was 
established following a search in the ‘Investigation’ automated information 
system of the N.SIS II that the chassis number matched that of the vehicle sought, 
for which Norway had entered an alert. Pursuant to Article 84(3) of the ZMVR, 
the vehicle at issue was seized from the applicant, DB, together with Part 2 of its 
registration certificate, and a report was prepared by the Rayonno upravlenie na 
politsiyata – Silistra (District Police Department, Silistra, Bulgaria).  
4 Form 38 (Vehicle), the form used to exchange information with the SIRENE 
Bureau when there is a hit on an object sought for the purposes of seizure or use 
as evidence in criminal proceedings, was completed and immediately submitted to 
the SIRENE Department of the Direktsiya Mezhdunarodno operativno 
satrudnichestvo pri Ministerstvoto na vatreshnite raboti (Directorate of 
International Operational Cooperation of the Ministry of the Interior, Bulgaria). 
5 The information was exchanged with the Norwegian SIRENE Bureau and the 
head of the District Police Department, Silistra issued the contested order for the 
surrender of objects that had been seized and listed in the report on the seizure. It 
is apparent from the grounds of the order that the Norwegian SIRENE Bureau 
entered an alert for the car in question in connection with the crime of 
fraud/breach of trust, committed in Hordaland (Norway) on 23 December 2014 
and reported to the police in Oslo on 20 March 2017. 
6 Santander Consumer Bank (Norway) reported that it was interested in the 
surrender of the vehicle and instructed Lindorff AS (Norway), represented in 
Bulgaria by Plam EOOD, a company with its registered office in Dobrich, 
represented in turn by its CEO, CD, to take receipt of the object. 
7 On 6 June 2017, Plam EOOD, Dobrich, acting through its CEO, CD, asked the 
defendant authority to take action to hand over the vehicle. The police formally 
requested the director of the Directorate of International Operational Cooperation 
of the Ministry of the Interior in Sofia to ask the State which had entered the alert 
to send a formal request for the surrender of the object. On 4 July 2017, the 
vehicle in question was handed over to CD together with a report.  
8 DB filed charges against AB, the vendor of the vehicle, following which the 
Rayonna prokuratura Varna (District Public Prosecutor’s Office, Varna) opened a 
file on the investigation ordered in accordance with Article 145(1)(3) of the Zakon 
za sadebnata vlast (Law on the judiciary). As of the closure of the hearing in the 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-520/20 
 
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main proceedings, there are no indications that a criminal offence has been 
committed. 
9 On 13 August 2019, the applicants filed a request with the defendant police 
authority for the immediate surrender of the vehicle based on Article 84(9) of the 
ZMVR as, in their opinion, the vehicle had been seized forcibly and there had 
never been any basis in fact or in law for its seizure. They contested the express 
rejection of that request before the Administrativen sad Silistra (Administrative 
Court, Silistra), before which administrative court proceedings were initiated. 
Those proceedings have been stayed pending judgment in the main proceedings.  
10 The applicants tried to bring an action against Santander Consumer Bank AS 
(Norway) in the ordinary courts, by which they asserted, in the alternative, civil 
claims under Article 108 of the Zakon zа sobstvenostta (Law on property) (action 
in rem) and Article 57(2) of the Zakon za zadalzheniyata i dogovorite (Law on 
obligations and contracts) (for the misappropriation/loss etc. of the vehicle at 
issue). However, the civil proceedings initiated in the Okrazhen sad Silistra 
(Regional Court, Silistra) were terminated as the Bulgarian court does not have 
jurisdiction to examine and rule on the dispute pending before it. 
11 The applicants are now challenging, before the referring court, the contested order 
requiring the vehicle seized from them to be surrendered to Norway. It follows 
from the communication of 20 March 2017 placed on file and from the 
international search request for the Volkswagen vehicle by the Regional Police of 
Hordaland, Kingdom of Norway, which gave rise to the alert entered in the N.SIS 
II for the search of the vehicle, that the Bulgarian national EF signed a credit 
agreement with Santander Consumer Bank AS on 23 December 2014 for a loan to 
finance the purchase of a 2014 Volkswagen Passat. A contract was signed and a 
sale plan agreed. Promissory notes were issued on 23 December 2014 and the sale 
(loan repayment) plan was entered in the Land Register on 6 January 2015. The 
loan was for the sum of NOK 421 840 and enforcement measures were taken 
against the debtor in respect of outstanding principal of NOK 213 679. It follows 
from a declaration by Santander Bank of ‘termination of the loan … and 
declaration of ownership’ that the last payment was made on 26 February 2016; 
that the debtor ceased repayments in May 2016 and the bank passed the file to 
Lindorff AS to collect the debt; and that a request for voluntary payment and an 
enforcement warning were sent out on 13 May 2016, whereupon the debtor 
advised the company that the vehicle was in Bulgaria. The balance was stated and 
a number of concerns were raised as to criminal activity. The bank suspected that 
a crime had been committed. The police were therefore asked to search the 
Schengen, Interpol, Autosys and other international databases. The bank declared 
its intention of bringing a civil action in connection with any criminal proceedings 
and its lawyer signed a document which was submitted in the main proceedings 
by the attorney of record acting for Plam EOOD, Dobrich, which had taken 
possession in fact of the vehicle at issue. The referring court is of the opinion that 
the relationship between the Norwegian bank and its customer (borrower) is a 
typical private-law relationship and that the concerns expressed as to criminal 
NACHALNIK NA RAYONNO UPRAVLENIE SILISTRA 
 
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activity are not established by files compiled by the law enforcement or 
prosecution authorities. The applicant’s vehicle was sold by an owner who held 
the due registration in Bulgaria, and not by EF, the person who contracted the loan 
from the Norwegian bank but stopped repaying it. The referring court is of the 
opinion that the finding that this case concerns a civil-law relationship in 
connection with a non-performing bank loan, rather than criminal proceedings, is 
also supported by the fact that vehicles sought in similar proceedings by credit 
institutions in various countries (including Norway, Iceland and Belgium) have 
been surrendered by the same authorised representative in Bulgaria, namely Plam 
EOOD of Dobrich, whose activities resemble those of a private ‘debt collection 
service’. 
12 During the course of the proceedings, the referring court requested that the 
defendant submit an official answer from the Norwegian police authorities as to 
whether criminal proceedings had been initiated in Norway in connection with the 
vehicle at issue and, if so, when and for what crime and what stage they had 
reached. A letter from the head of the SIRENE Department of the Directorate of 
International Operational Cooperation of the Ministry of the Interior was 
submitted at the hearing, from which it follows that ‘the files and the investigation 
were closed on 10 July 2017, as the vehicle was found and surrendered to 
Norway’. 
Principal arguments of the parties to the main proceedings 
13 The applicants submit that the police acted qua court in this case to rule on a 
dispute in rem; that the contested order was wrongly based on Article 84(8) of the 
ZMVR, as the legal relationship between the Norwegian credit institution, which 
describes itself as the owner of the vehicle, and the borrower, who secured his 
debt against the vehicle purchased with the loan which he stopped servicing, does 
not fall under Article 100(3)(a) of the Convention implementing the Schengen 
Agreement of 14 June 1985 or under Decision 2007/533/JHA; that the scope of 
the legal framework is determined by Article 2 of that decision and is limited to 
cooperation in criminal matters, which, according to the applicants, do not cover 
the question under examination in this case; that, if the requirements for 
acceptance and registration of Norway’s alert for the car in the N.SIS were not 
fulfilled, the subsequent exchange of supplementary information via the SIRENE 
Bureaux of the two States and the search for and surrender of the vehicle to 
Norway by its authorised representatives in Bulgaria was inadmissible.  
14 The applicants argue that this is the key point of contention in this case and must 
be resolved in the administrative court proceedings by presenting compelling 
evidence that criminal proceedings are conducted in Norway in connection with 
the vehicle at issue; that, although the conduct of the borrower (who is unknown 
to the applicants) is classed as ‘serious fraud’, ‘misappropriation’, etc., such legal 
relationships (non-performance of a credit agreement with a bank) are not a crime 
under national law and are settled under civil law, that is to say, directly through 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-520/20 
 
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enforcement proceedings (which, according to the files, were conducted in 
Norway) and, where appropriate, by bringing an action under commercial or 
general civil law; and that, as failure to repay a loan is not a criminal offence 
under national law, there was no basis for the registration of the alert in question 
in the N.SIS II. 
15 The applicants further submit that the order of the head of the District Police 
Department, Silistra for the surrender of the seized object, which is at issue in this 
case, was not even sent to them, and that, in the light of the applicable national 
law, the situation in the main proceedings, as described, is a foregone conclusion, 
as the police authorities' powers are circumscribed, and the protection of the rights 
of any owner acting in good faith, whose good faith is subject to specific 
examination in the main proceedings, remains wholly unregulated.  
16 The applicants are also of the opinion that the unlawful action by the police 
authorities resulted in ‘confiscation’; that forced seizure, which is merely 
‘temporary’ according to Article 84(1) of the ZMVR, becomes permanent 
dispossession, as there is no legal remedy open to the owner of the seized vehicle; 
that this is why they lodged a detailed and reasoned application for the 
proceedings before the Administrativen sad Silistra (Administrative Court, 
Silistra) to be stayed and a request for a preliminary ruling to be made to the Court 
of Justice of the European Union. 
17 The defendant police authority argues that it acted in accordance with the law and 
the facts established in this case, and that this request for a preliminary ruling by 
the Court is devoid of purpose, as the question referred is answered unequivocally 
in the relevant national and EU law as follows: whenever an alert for an object is 
registered in the N.SIS II and the object is identified precisely from the 
information in the alert, that object must be surrendered to the country which 
entered the alert, provided that a request is made to that effect within the 
procedural time limit. That authority does not state how the rights of an owner of 
an object at issue who acted in good faith should be addressed. 
Succinct presentation of the grounds for the request for a preliminary ruling 
18 The dispute between the parties concerns the order issued by the head of the 
District Police Department, Silistra for the surrender of the object seized in 
accordance with Article 84(1) of the ZMVR and, in particular, the question of 
whether the alert from the Norwegian authorities registered in the N.SIS II is 
covered by the purpose laid down in Article 1 of Regulation (EC) No 1987/2006 
and the objectives of Decision 2007/533/JHA. 
19 Article 100 of the Convention implementing the Schengen Agreement states that 
data on objects sought for the purposes of seizure or use as evidence in criminal 
proceedings are to be entered in the Schengen Information System, that is solely 
for the purpose of establishing the criminal liability of suspects, and not for the 
purpose of a speedy decision on private-law disputes.  
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20 Given the purpose of Form 38 (Vehicle), the form used to exchange information 
with the SIRENE Bureau when there is a hit on an OBJECT sought for the 
purposes of SEIZURE or USE AS EVIDENCE in criminal proceedings, and the 
powers expressly conferred on the competent national authority under Article 49 
of Decision 2007/533/JHA, which was (partially) transposed into national law by 
Article 7(2) of Ordinance No 8121h-465 of the Ministry of the Interior, the 
referring court believes that the only legitimate reason for registering an alert in 
the SIS is in criminal proceedings to achieve the general purpose of the Schengen 
acquis, namely to ensure a high level of security within the area of freedom, 
security and justice of the European Union for all European citizens, including the 
applicants in this case. Article 38 (Objectives and conditions for issuing alerts) 
and Article 39 (Execution of the action based on an alert) of Council Decision 
2007/533/JHA of 12 June 2007 on the establishment, operation and use of the 
second generation Schengen Information System should be applied directly in this 
case (given the express purpose of the form). 
21 In that regard, the referring court is of the opinion, in the light of the letter from 
the head of the SIRENE Bureau of the Directorate of International Operational 
Cooperation of the Ministry of the Interior submitted at that court's express 
request, from which it follows that the Norwegian authorities closed the file 
following the surrender of the vehicle, that there is no conclusive and secure 
evidence that the alert was entered in the SIS in accordance with the purpose of 
the legislation as stated in Article 1 of Regulation (EC) No 1987/2006 and 
Articles 1 and 2 of Decision 2007/533/JHA. 
22 The referring court is of the opinion that appropriate and sufficiently reliable 
evidence that criminal proceedings were even initiated in Norway has not been 
presented and, therefore, the alert entered in the SIS falls outside the scope 
established by Article 2 of Decision 2007/533/JHA. Nor was it in keeping with the 
purpose of establishing the SIS II, as stated in Article 1 of Regulation (EC) 
No 1987/2006. A case such as this, which concerns an unregulated relationship 
under civil or commercial law, is incompatible with the fundamental idea of 
police and judicial cooperation in a spirit of mutual trust. As a rule, creditors’ 
rights are heavily protected under national legislation, in that they have the facility 
to quickly initiate enforcement. In cases with a foreign connection, international 
law contains detailed rules for the recognition and enforcement of court 
judgments.  
23 The referring court notes that there is no specific case-law of the Court on the 
question that has arisen in this case, but considers that, applied mutatis mutandis, 
the following judgments of the Court are relevant subject to certain limitations: 
order of [12 November 2010], Asparuhov Estov and Others, С-339/10, 
EU:C:2010:680 (concerning admissibility); judgment of 16 July 2015, Lanigan, 
С-237/15 PPU, EU:C:2015:474; judgment of 30 May 2013, F., С-168/13 PPU, 
EU:C:2013:358; judgment of 26 February 2013, Melloni, С-399/11, 
EU:C:2013:107, and others. However, as they concerned questions referred on 
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police cooperation with regard to the enforcement of the European arrest warrant, 
they cannot of themselves inform judgment in this case beyond all doubt. 
24 The referring court is of the opinion that the request for a preliminary ruling is 
admissible, even though the Kingdom of Norway is not an EU Member State and 
the Republic of Bulgaria is not party to the Schengen Agreement. The Kingdom of 
Norway is named on the list of countries in the Schengen Area and the Schengen 
acquis has applied to Norway without restriction since 23 March 2003. That 
acquis was included in the EU legal system with the Protocol to the Treaty on 
European Union and the Treaty establishing the European Community (‘Protocol 
on the Schengen acquis’) and the acts building upon or otherwise related to it are 
binding on the Member States, including the Republic of Bulgaria. That follows 
expressly from the recitals of Commission Implementing Decision (EU) 
2017/1528 of 31 August 2017 replacing the Annex to Commission Implementing 
Decision 2013/115/EU on the SIRENE Manual and other implementing measures 
for the second generation Schengen Information System (SIS II) established by 
Regulation (EC) No 1987/2006 and Decision 2007/533/JHA (‘SIS II acts’). Those 
acts, which entered into force on 9 April 2013, repealed Title IV of the 
Convention implementing the Schengen Agreement. Schengen law is therefore 
integrated into the European legal system and both States involved in this dispute, 
namely the State which entered the alert in the SIS (Norway) and the State which 
executed it (Bulgaria), are generally bound by it, meaning that the Court of Justice 
of the European Union indisputably has jurisdiction to rule on the question 
referred.