Opinion of the Advocate General — ECLI:EU:C:2022:544
Date: 2022-07-07
Language of the case: Lithuanian
Subject matter: Judicial cooperation in criminal matters;Area of freedom, security and justice
Procedure: Reference for a preliminary ruling
Origin: Lithuania

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:  
12 February 2021  
Referring court:  
Lietuvos vyriausiasis administracinis teismas (Lithuania) 
Date of the decision to refer:  
8 February 2021  
Applicant:  
Regionų apygardos administracinio teismo Kauno rūmai 
Defendant: 
Lietuvos Respublikos vidaus reikalų ministerija (Ministry of the 
Interior of the Republic of Lithuania) 
  
Subject matter of the main proceedings 
The subject matter of the main proceedings is the verification of the legality of 
provisions of national law under which vehicles can be registered only after they 
have been removed from the national Schengen Information System (SIS). 
Subject and legal basis of the request for a preliminary ruling 
Interpretation of Article 39 of Council Decision 2007/533/JHA of 12 June 2007 in 
order to clarify whether a Member State may enter in a national register objects 
for which an alert has been issued in the Schengen Information System if the alert 
is no longer relevant.  
Paragraph 3 of Article 267 of the Treaty on the Functioning of the European 
Union. 
EN 
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Questions referred 
1. 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), in particular Article 39(3), be interpreted as imposing an 
obligation to prohibit the registration of objects for which an alert has been issued 
in the Schengen Information System notwithstanding the fact that the alert is no 
longer relevant (the vehicle has been located; the criminal procedure in the 
Member State where the vehicle was located has been discontinued in the absence 
of a criminal offence committed in that Member State; the State that entered the 
alert has been informed but fails to take action to remove the alert from the 
system)?  
2. 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), in particular Article 39(3), be interpreted as obliging a Member 
State which has located an object for which an alert was issued pursuant to 
Article 38(1) of the decision to lay down rules of national law that would prohibit 
any actions with the located object other than actions by which an objective 
referred to in Article 38 (seizure or use as evidence in criminal proceedings) 
would be attained?  
3. 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), in particular Article 39(3), be interpreted as allowing Member 
States to lay down legal rules which would provide for exceptions to the 
prohibition on registering vehicles for which an alert has been entered in SIS 
pursuant to Article 38 of the decision, after the competent authorities of the 
Member State have taken steps in order for the State which entered the alert to be 
informed about the located object?  
Provisions of EU law cited 
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, signed in Schengen on 19 June 1990 (OJ 2000 L 239, p. 19): 
Article 92. 
Regulation (EC) No 1986/2006 of the European Parliament and of the Council of 
20 December 2006 regarding access to the Second Generation Schengen 
Information System (SIS II) by the services in the Member States responsible for 
issuing vehicle registration certificates (OJ 2006 L 381, p. 1): Article 1(1) and (2). 
LIETUVOS RESPUBLIKOS VIDAUS REIKALŲ MINISTERIJA 
 
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Council Decision 2007/801/EC of 6 December 2007 on the full application of the 
provisions of the Schengen acquis in the Czech Republic, the Republic of Estonia, 
the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the 
Republic of Malta, the Republic of Poland, the Republic of Slovenia and the 
Slovak Republic (OJ 2007 L 323, p. 34): Article 1(1). 
Council Decision 2007/533/JHA of 12 June 2007 on the establishment, operation 
and use of the second generation Schengen Information System (SIS II) (OJ 2007 
L 205, p. 63) (‘Decision 2007/533’): Article 1(2), Article 2(1), Article 3(1)(a), 
Article 4(1), Article 20(1), Article 21, Article 38(1) and (2)(a), Article 39, 
Article 45, Article 49(1) and (2), Article 64(1), and Article 65.  
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) (OJ 2017 L 231, p. 6): Section 8. 
Article 17 of the Charter of Fundamental Rights of the European Union (‘the 
Charter’). 
Provisions of national law cited 
Lietuvos Respublikos vidaus reikalų ministro įsakymas Nr. 1V-324 dėl Lietuvos 
nacionalinės antrosios kartos Šengeno informacinės sistemos nuostatų 
patvirtinimo (Order No 1V-324 of the Minister of the Interior of the Republic of 
Lithuania regarding approval of the regulations for the Lithuanian national second 
generation Schengen Information System) of 17 September 2007: points 3, 4, 5.1 
and 25. 
Lietuvos Respublikos saugaus eismo automobilių keliais įstatymas Nr. VIII-2043 
(Law No VIII-2043 of the Republic of Lithuania on road traffic safety) of 
12 October 2000 (current version): Article 10(5)(3), Article 27(1). 
Regulations for the register of road vehicles, approved by Resolution No 1286 of 
the Government of the Republic of Lithuania of 28 November 2005: point 2. 
Rules for the registration of motor vehicles and their trailers, approved by Order 
No 260 of the Minister of the Interior of the Republic of Lithuania of 25 May 
2001 (‘the Rules’): point 14. 
Article 4.96 of the Lietuvos Respublikos civilinis kodeksas (Civil Code of the 
Republic of Lithuania; ‘the CC’). 
Succinct presentation of the facts and procedure in the main proceedings 
1 D. R. (the interested third party in the individual case) purchased a BMW X5 
motor car (pursuant to a contract with ‘A. M. transportas’ UAB) in Germany on 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-88/21 
 
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13 November 2015. The car was deregistered in Germany on 20 November 2015, 
was brought to Lithuania and was sold to the purchaser. When the vehicle was to 
be registered in Lithuania on 22 February 2016, it turned out that an alert had been 
entered in SIS: a notice of search for the vehicle was issued in Bulgaria on 
23 December 2015. 
2 A pre-trial investigation was initiated in accordance with a notification from 
valstybinė įmonė (State undertaking) Regitra (‘VĮ Regitra’) regarding registration 
of the BMW X5 vehicle. However, the investigation was discontinued by 
resolution of the district prosecutor’s office on 21 September 2016 after it was not 
found that a criminal offence had been committed in Lithuania. By that resolution, 
the vehicle was returned to D. R., its purchaser who had acted in good faith. In 
addition, by means of that resolution, notification of the procedural decision 
adopted was given to the owner of the car at the time of theft, NABKO 
HOLDING GRUP (Bulgaria); it was sent a copy of the resolution and the details 
of D. R., the potential defendant (the purchaser acting in good faith), and the right 
to defend its rights in civil court proceedings was explained. 
3 For more than three years, the owner of the vehicle (the Bulgarian company 
NABKO HOLDING GRUP) took no measures that would show its intent to 
recover the vehicle. Furthermore, the responsible Bulgarian authorities did not 
take any action to remove the alert for the vehicle from SIS. 
4 On 20 February 2019, D. R. asked the regional division of VĮ Regitra to register 
the vehicle but it refused the request by decision of 20 February 2019. ‘A. M. 
transportas’ UAB (the applicant in the individual case) appealed against this 
decision to VĮ Regitra but the latter upheld the decision of the regional division by 
its decision of 28 March 2019. The regional division of VĮ Regitra refused to 
register the vehicle, on the basis of point 14 of the Rules, due to the fact that data 
on the search for the vehicle in Bulgaria were entered in the Schengen Information 
System.  
5 ‘A. M. transportas’ UAB appealed against the decisions of the regional division of 
VĮ Regitra and VĮ Regitra to the Regionų apygardos administracinio teismo 
Kauno rūmai (Regional Administrative Court, Kaunas Division). 
6 When examining the individual case, the Regional Administrative Court, Kaunas 
Division, had doubts as to the legality of the provision applicable in the 
administrative case and submitted to the Lietuvos vyriausiasis administracinis 
teismas (Supreme Administrative Court of Lithuania) a request that it examine 
whether point 14 of the Rules, in so far it establishes that vehicles can be 
registered only after they have been removed from the Lithuanian national 
Schengen Information System, is contrary to the constitutional principle of the 
rule of law.  
7 According to the Regional Administrative Court, Kaunas Division, such 
legislation undoubtedly restricts the right of ownership of the owner of the vehicle 
LIETUVOS RESPUBLIKOS VIDAUS REIKALŲ MINISTERIJA 
 
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as well as the right to dispose of that property because an unregistered vehicle 
cannot be transferred to other persons. In addition, the legal consequences arising 
from the contested provision are disproportionate because the legal regulation laid 
down in point 14 of the Rules prevents the owner of a vehicle from ever 
registering it, which is a measure disproportionate to the objective pursued, that is 
to say, ensuring the safety of traffic and road users and efficient control of road 
users. In the opinion of that court, such a restriction – that is to say, without 
establishing an end date and the possibility for the authority that decides on 
registration of the vehicle and/or for the court to adopt a decision on non-
application of those restrictions – is contrary to the constitutional principle of the 
rule of law.  
Succinct presentation of the reasons for the request for a preliminary ruling 
8 Point 14 of the Rules was adopted in implementation of the Law on road traffic 
safety. It is also designed to safeguard the objectives of the Schengen acquis and 
contribute to the proper functioning and implementation of the Schengen 
Information System. Therefore, in order to apply that provision correctly, the 
objectives, substance and meaning of legal acts adopted at EU level must be 
properly established.  
9 In the opinion of the Supreme Administrative Court of Lithuania, point 14 of the 
Rules is worded in such a way that VĮ Regitra has absolutely no discretion when 
making decisions on the registration of vehicles for which alerts have been entered 
in SIS, that is to say, as long as there is an alert entered in SIS, such a vehicle 
cannot be registered and no exceptions to the prohibition on registration have been 
laid down. It seems that, in such a case, protection of the rights of purchasers 
acting in good faith, which is established in Article 4.96 of the CC, remains 
completely unregulated. It is also questionable whether such legislation is 
compatible with Article 17 of the Charter.  
10 The court raises the question whether in a situation such as that in the individual 
case – where the State that entered the alert is informed that the object has been 
located, and the owner of the stolen object has been informed and given all the 
details of the purchaser acting in good faith but the alert still remains in the 
system – the assumption can be made that the alert still remaining in the system is 
no longer relevant. 
11 Article 39(3) of Decision 2007/533 apparently leaves it to the discretion of the 
Member State to determine the measures which it may take after the object has 
been located. The question therefore arises whether a Member State, acting within 
its discretion, can discontinue the execution of such a SIS alert, that is to say, 
whether national legal measures can provide for exceptions under which the 
competent authorities would be granted the right to carry out actions with a 
located object other than actions for the purpose of its seizure or its use as 
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evidence in criminal proceedings (as provided for in Article 38 of Decision 
2007/533), for example grant to VĮ Regitra of the right to register the vehicle.  
12 Doubts as to the interpretation of Article 39 of Decision 2007/533 are further 
reinforced by the insights provided by the SIS II Supervision Coordination Group 
in Common Position No 1/2016 of 14 April 2016 on the deletion of alerts on 
vehicles sought for seizure or use as evidence in criminal proceedings and the 
interpretation of Article 38 of the Council Decision 2007/533/JHA. In 
interpreting, inter alia, Article 39 of Decision 2007/533, an assumption is made 
that the Member State which has located the object and the Member State which 
entered the alert have to find an agreement on the measures, conforming to their 
legal regimes, that are to be taken. It is noted in paragraph 25 of the common 
position that, if agreement is not reached by the Member States, the purpose of the 
alert is not fulfilled; hence the alert cannot be deleted, with clear impact on the 
rights of the individuals. The common position emphasises that cooperation 
between the parties is the key to the functioning of SIS II. If the alert is never 
executed because cooperation does not happen in practice, the necessity of the 
alert can be disputed (paragraph 22 of the common position).