Opinion of the Advocate General — ECLI:EU:C:2020:29
Date: 2020-01-22
Language of the case: Polish
Subject matter: Area of freedom, security and justice
Procedure: Reference for a preliminary ruling
Origin: Poland

Summary C-634/18 — 1 
Case C-634/18 
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: 
11 October 2018 
Referring court: 
Sąd Rejonowy w Słupsku (Poland) 
Date of the decision to refer: 
20 June 2018 
Criminal proceedings against: 
JI 
  
Subject matter of the main proceedings 
Criminal proceedings against JI, charged with criminal offences under 
Article 62(1) and (2) of the Ustawa z dnia 29 lipca 2005 roku o przeciwdziałaniu 
narkomanii (Law of 29 July 2005 on combating drug addiction) (Dziennik Ustaw 
of 2005, No 179, item 1485). 
Subject matter and legal basis of the reference 
Subject matter: firstly, interpretation of Article 4(2)(a) of Council Framework 
Decision 2004/757/JHA of 25 October 2004 laying down minimum provisions on 
the constituent elements of criminal acts and penalties in the field of illicit drug 
trafficking, read in conjunction with Article 2(1)(c) thereof; secondly, 
compatibility of Article 62(2) of the Law of 29 July 2005 on combating drug 
addiction with those provisions of Framework Decision 2004/757/JHA and with 
the principles of equality before the law and non-discrimination and the principle 
that offences and penalties must have a proper basis in law 
Legal basis: Article 267 of the Treaty on the Functioning of the European Union 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-634/18 
 
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Questions referred for a preliminary ruling 
(1)  Must the rule of EU law contained in Article 4(2)(a) of Council Framework 
Decision 2004/757/JHA of 25 October 2004 laying down minimum provisions on 
the constituent elements of criminal acts and penalties in the field of illicit drug 
trafficking, read in conjunction with Article 2(1)(c) thereof, be interpreted as 
meaning that that rule does not preclude the expression ‘a significant quantity of 
drugs’ from being interpreted on a case-by-case basis as part of the individual 
assessment of a national court, and that that assessment does not require the 
application of any objective criterion, in particular that it does not require a 
finding that the offender possesses drugs for the purpose of performing acts 
covered by Article 4(2)(a) of that framework decision, that is to say production, 
offering, offering for sale, distribution, brokerage, or delivery on any terms 
whatsoever? 
(2) In so far as the Polish Law on combating drug addiction contains no precise 
definition of ‘a significant quantity of drugs’ and leaves the interpretation thereof 
to the bench adjudicating in a specific case in the exercise of its ‘judicial 
discretion’, are the judicial remedies necessary to ensure the effectiveness and 
efficiency of the rules of EU law contained in Framework Decision 
2004/757/JHA, and in particular Article 4(2)(a) of that framework decision, read 
in conjunction with Article 2(1)(c) thereof, sufficient to afford Polish citizens 
effective protection resulting from the rules of EU law laying down minimum 
provisions on the constituent elements of criminal acts and penalties in the field of 
illicit drug trafficking? 
(3) Is the rule of national law contained in Article 62(2) of the Law on 
combating drug addiction compatible with EU law, and in particular [with the 
rule] contained in Article 4(2)(a) of Framework Decision 2004/757/JHA, read in 
conjunction with Article 2(1)(c) thereof, and, if so, is the interpretation which the 
national Polish courts place on the expression ‘a significant quantity of 
psychotropic substances and narcotic drugs’ contrary to the rule of EU law 
pursuant to which a person who has committed the offence of possessing large 
quantities of drugs to perform activities covered by Article 2(1)(c) of Framework 
Decision 2004/757/JHA is to be subject to stricter criminal liability? 
(4) Is Article 62(2) of the Law on combating drug addiction, which lays down 
stricter criminal liability for the offence of possessing a significant quantity of 
psychotropic substances and narcotic drugs, as interpreted by the Polish national 
courts, contrary to the principles of equality and non-discrimination (Article 14 [of 
the European Convention on Human Rights] and Articles 20 and 21 [of the 
Charter of Fundamental Rights of the European Union], read in conjunction with 
Article 6(1) [of the Treaty on European Union])? 
Provisions of EU law and case-law of the Court relied on 
Article 6 of the Treaty on European Union 
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Articles 20 and 21 of the Charter of Fundamental Rights of the European Union 
Articles 4(2)(b) and 2(1)(a), (b) and (c) of Council Framework Decision 
2004/757/JHA of 25 October 2004 laying down minimum provisions on the 
constituent elements of criminal acts and penalties in the field of illicit drug 
trafficking (OJ 2004 L 335, p. 8) 
Judgments of the Court of Justice: of 12 December 1996, X, C-74/95 and 
C-129/95, EU:C:1996:491; of 28 June 2005, Dansk Rørindustri v Commission, 
C-189/02 P, C-202/02 P, C-205/02 P to C-208/02 P and C-213/02 P, 
EU:C:2005:408, paragraphs 215 to 219; of 3 May 2007, Advocaten voor de 
Wereld, C-303/05, EU:C:2007:261; and of 22 May 2008, Evonik Degussa v 
Commission, C-266/06 P, EU:C:2008:295 
Judgment of the General Court of 27 June 2012, Bolloré v Commission, T-372/10, 
EU:T:2012:325 
Provisions of the ECHR and case-law of the ECtHR relied on 
Articles 7 and 14 ECHR 
Judgments of the ECtHR of 12 July 2016, Ruban v. Ukraine, 
CE:ECHR:2016:0712JUD000892711, and of 15 July 2014, Ashlarba v. Georgia, 
CE:ECHR:2014:0715JUD004555408 
Provisions of national law relied on 
Article 62 of the Law of 29 July 2005 on combating drug addiction: 
‘1. Any person who, contrary to the provisions of this Law, possesses narcotic 
drugs or psychotropic substances shall be liable to a term of imprisonment of up to 
three years. 
2. If the offence referred to in paragraph 1 involves a significant quantity of 
narcotic drugs or psychotropic substances, the offender shall be liable to a term of 
imprisonment of between one and ten years.  
3. In a minor case, the offender shall be liable to a fine, a restriction of liberty or a 
term of imprisonment of up to one year’. 
Succinct presentation of the facts and procedure 
1 The Prokuratura Rejonowa w Słupsku (District Prosecutor’s Office, Słupsk) 
brought proceedings against JI for, inter alia: (a) possessing on 7 November 2016 
a significant quantity of psychotropic substances in the form of amphetamines 
with a total net weight of 10.73 grams and narcotic drugs in the form of marijuana 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-634/18 
 
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with a total weight of 16.07 grams, an offence under Article 62(2) of the Law of 
29 July 2005 on combating drug addiction (‘the LCDA’); and (b) possessing on 
28 November 2016 narcotic drugs in the form of marijuana with a net weight of 
2.00 grams and psychotropic substances in the form of amphetamines with a net 
weight of 0.49 grams, an offence under Article 62(1) of the LCDA. 
2 In the course of the proceedings JI pleaded guilty to all the offences of which he 
was accused, explaining that he possessed marijuana and amphetamines for 
personal use and had not intended to supply or sell those drugs to anyone. 
3 In the past JI has already been sentenced by judgments of the Sąd Rejonowy w 
Słupsku (District Court, Słupsk): (a) of 21 September 2010 to 12 months’ 
restriction of liberty for offences under Article 62(3) of the LCDA (minor case) 
consisting in possessing, on 6, 7, 8 and 10 October 2008, 0.5, 1, 0.5 and 2.67 
grams of amphetamines respectively; (b) of 14 January 2014 to one year and ten 
months’ imprisonment, suspended, for an offence under Article 62(2) of the 
LCDA, consisting in possessing, from 21 to 22 November 2012, a significant 
quantity of psychotropic substances in the form of amphetamines with a net 
weight of 12.57 grams and narcotic drugs in the form of marijuana with a net 
weight of 15.54 grams and for an offence under Article 59(1) of the LCDA 
consisting in the supply to other persons, with the purpose of financial gain, of 15 
grams net of marijuana and 5 grams net of amphetamines; (c) of 3 April 2017 to 
one year and three months’ restriction of liberty for an offence under Article 62(1) 
of the LCDA consisting in possessing, on 26 January 2017, psychotropic 
substances in the form of amphetamines with a total net weight of 1.1 grams; and 
(d) of 30 June 2017 to six months’ restriction of liberty for an offence under 
Article 62(1) of the LCDA consisting in possessing, on 10 May 2017, narcotic 
drugs in the form of marijuana with a total weight of 1.40 grams and psychotropic 
substances in the form of amphetamines with a total net weight of 0.30 grams. 
Succinct grounds for the order for reference 
4 There is no definition of ‘large quantities of drugs’ in Framework Decision 
2004/757/JHA. However, the framework decision uses that vague expression in 
Article 4(2)(a) thereof, introducing the principle that the penalties likely to be 
incurred for offences related to the trafficking or possession of drugs are to be 
differentiated according to the quantities involved. Another expression which that 
framework decision uses [in Article 4(2)(b) thereof] is ‘drugs which cause the 
most harm to health, or [have] resulted in significant damage to the health of a 
number of persons’. In Polish criminal law the recommendations of that decision 
were implemented by, inter alia, Article 62(1) and (2) of the LCDA. Under those 
provisions, stricter criminal liability is borne by an offender who possesses a 
significant quantity of psychotropic substances or narcotic drugs. However, the 
LCDA also does not define the expression ‘a significant quantity of drugs’. There 
is no such legal definition in any legal act at either national or EU level. For this 
reason, the Polish judicature attempts to fill that gap by creating a definition of ‘a 
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significant quantity of drugs’. This leads, inter alia, to the adoption of criteria such 
as the following to determine whether the quantity of drugs is ‘significant’, ‘not 
significant’ or ‘normal’: (a) weight (grams, kilograms, tonnes, quantity of 
portions); (b) type of narcotic drug (division of drugs into ‘hard’ and ‘soft’); and 
(c) the intended purpose (for commercial reasons, for personal use). However, 
despite the introduction of these criteria the expression ‘a significant quantity of 
drugs’ under national law remains vague and is defined differently by the national 
courts, the way of defining that expression differing so much that it renders the 
situation of citizens significantly different depending on the region of the country 
where a case is heard. 
5 Furthermore, in case-law the expression ‘a significant quantity’ of narcotic drugs 
is broadening excessively, which means that the conduct of persons who possess 
relatively small quantities of drugs and persons who possess significant amounts 
thereof are classified as being the same. The scope remaining for the basic offence 
of drug possession is becoming narrower, although as the basic type it should 
cover the majority of offences involving the possession of drugs. 
6 Consequently, on the one hand, case-law is emerging according to which 200 
grams of amphetamines must be regarded as a significant quantity within the 
meaning of Article 62(2) of the LCDA, since one portion of amphetamines is 
normally 0.1 gram, and thus that quantity is sufficient to make 2 000 portions, that 
is to say it is sufficient to provide a single high for a significant number of people; 
also significant is the value of that quantity of drugs, which, at market prices, is 
around PLN 60 000. Therefore, the quantitative criterion for that constituent 
element is fulfilled in this case (see, for example, the judgment of the Sąd 
Najwyższy (Supreme Court) of 17 June 1999). On the other hand, however, 
positions of the courts are also emerging according to which: (i) a significant 
quantity of drugs is that which is sufficient to give several tens of thousands of 
people a single high (see, for example, the judgment of the Sąd Apelacyjny w 
Krakowie (Court of Appeal, Cracow) of 24 April 1997); (ii) a significant quantity 
of drugs is that which is sufficient to give at least several dozen people a single 
high (see, for example, the judgment of the Sąd Najwyższy of 14 July 2011); and 
finally (iii) a significant quantity of drugs is that which is sufficient to give several 
hundred people a single high (judgment of the Sąd Apelacyjny we Wrocławiu 
(Court of Appeal, Wrocław) of 20 February 2008. To complicate matters even 
further, it should be noted that the national courts complement that rule with 
additional criteria, such as the relationship between the quantity of drugs found 
and the needs of one person addicted to those drugs. Thus, if the offence concerns 
the quantity of drugs which could fulfil that kind of need for at least several dozen 
addicts, it must be concluded that there is a significant quantity of such drugs (see, 
for example, the judgment of the Sąd Najwyższy of 1 March 2006). In other 
judgments it has been further argued that to assess whether or not the quantity of 
drugs is significant it is necessary not only to establish the quantity of doses 
regarded as typical for reaching a high on the drug concerned, but also whether it 
is possible at all to take the quantity of the drug found and whether — having 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-634/18 
 
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regard to the kind of drug — it could induce a high (judgment of the Sąd 
Apelacyjny w Katowicach (Court of Appeal, Katowice) of 28 July 2011). 
7 Thus, the different definitions of ‘a significant quantity of drugs’ mean that both a 
person possessing, for example, 10 grams of amphetamines or marijuana, and a 
person possessing, for example, 3 000 grams of either of those two drugs can be 
regarded as possessing a significant quantity of drugs, depending on the definition 
of ‘a significant quantity of drugs’ adopted by the bench adjudicating in a specific 
case. The differences in judicial practice as regards the definition of that 
expression are evident even within the courts of a single town, depending on the 
bench adjudicating, as is clear from the facts set out above relating to the charges 
brought against JI. 
8 This obviously leads to a situation where different persons in the same factual 
circumstances as regards the causative act and the quantity of drugs possessed are 
subject to a different outcome from the legal assessment of their conduct. 
Consequently, the perpetrators of offences in similar situations, possessing, in 
essence, a comparable quantity of drugs, can be treated unequally under national 
law, depending on how the vague provision of law contained in Article 62(1) of 
the LCDA is construed by the court hearing the specific case. The referring court 
has serious doubts as to whether this infringes the principles of legal certainty and 
equality before the law. 
9 The above findings might suggest that the referring court should refer a question 
to the national body responsible for matters concerning the assessment of the 
compatibility of laws with the Constitution. However, it should be noted that the 
issue raised in this order for reference was considered by the Trybunał 
Konstytucyjny (Constitutional Court) and it held in its judgment of 14 February 
2012 that Article 62(2) (and Article 56(3)) of the LCDA are, with regard to the 
constituent element used of ‘a significant quantity’ of a substance, compatible 
with Article 42(1) of the Constitution, read in conjunction with Article 2 thereof. 
10 However, that judgment of the Trybunał Konstytucyjny does not prevent recourse 
being had to EU law in order to identify the meaning of expressions introduced 
through EU law, as is the case precisely with the expression ‘large quantities of 
drugs’ contained in Article 4(2)(a) of Framework Decision 2004/757/JHA, read in 
conjunction with Article 2(1)(c) thereof. By making a reference to the Court of 
Justice, the referring court seeks to establish a common minimum standard for 
identifying the meaning of the expression ‘large quantities of drugs’ or a quantity 
which ‘has resulted in significant damage to the health of a number of persons’. 
EU law uses those terms and a certain minimum standard of protection under 
criminal law should be imposed on the national legislature in this regard at the 
same time. However, the above framework decision does not state how the 
meaning of those terms is to be identified, thus leaving the national legislative 
authorities a large degree of discretion in interpreting them and this consequently 
gives rise to unequal treatment of EU citizens, not only depending on the country 
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in which the offence was committed, but also depending on the region of the 
country concerned. 
11 It should be recalled at this juncture that the principle that criminal offences and 
penalties must have a proper basis in law (nullum crimen, nulla poena sine lege), 
is one of the general principles of EU law underlying the constitutional traditions 
common to the Member States, and has also been enshrined in various 
international treaties, in particular in Article 7 of the European Convention on 
Human Rights (‘the ECHR’). 1 That principle requires that legislation must clearly 
define offences and the penalties applied to them. That condition — in relation to 
the facts of the present case — is satisfied where the individual concerned is able, 
on the basis of the wording of the relevant provision and, if need be, with the help 
of the interpretative guidance given by the courts, to know which acts or 
omissions will make him criminally liable, and therefore the provisions must 
clearly define the difference between a basic type, an aggravated type and a 
mitigated type of offence. 
12 The guarantee protected in Article 7 ECHR, which constitutes a fundamental 
element of the principle of the rule of law, occupies an important place in the 
system of protection under the Convention, as is highlighted by the fact that no 
derogation from the application thereof is permitted under Article 15 ECHR. As is 
clear from the subject matter and purpose thereof, it must be interpreted and 
applied in such a way as to provide effective protection against arbitrary 
prosecution, conviction and punishment. Therefore, Article 7 ECHR does not 
merely prohibit the retrospective application of criminal law to the detriment of 
the accused, it also contains a principle that the law cannot be interpreted broadly 
to the detriment of the accused, for example by way of analogy. That article 
constitutes, more generally, the principle that only the law may define an offence 
and lay down a penalty for it. With reference to ‘the law’, Article 7 ECHR alludes 
to the very same concept as that to which the ECHR refers elsewhere when using 
that term, a concept which comprises statute law as well as case-law and implies 
qualitative requirements, including those of accessibility, foreseeability and 
predetermination. 2 
13 It should also be noted that Article 14 ECHR provides that the enjoyment of the 
rights and freedoms set forth therein are to be secured without discrimination. In 
the view of the referring court, that provision shows that it is not possible to 
 
1  See judgments of the Court of Justice: of 12 December 1996, X, C-74/95 and C-129/95, 
EU:C:1996:491, paragraph 25; of 28 June 2005, Dansk Rørindustri v Commission, C-189/02 P, 
C-202/02 P, C-205/02 P to C-208/02 P and C-213/02 P, EU:C:2005:408, paragraphs 215 to 219; 
of 3 May 2007, Advocaten voor de Wereld, C-303/05, EU:C:2007:261, paragraph 49; of 22 May 
2008, Evonik Degussa v Commission, C-266/06 P, EU:C:2008:295, paragraph 38; see also 
judgment of the General Court of 27 June 2012, Bolloré v Commission, T-372/10, 
EU:T:2012:325. 
2  See judgments of the European Court of Human Rights of 12 July 2016 in Ruban v. Ukraine, 
CE:ECHR:2016:0712JUD000892711, and of 15 July 2014 in Ashlarba v. Georgia, 
CE:ECHR:2014:0715JUD004555408. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-634/18 
 
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differentiate between the situation of an EU citizen depending on his or her region 
or place of residence. However, as pointed out above, leaving discretion in 
interpreting the expressions ‘a significant or large quantity of drugs’ or ‘a quantity 
of drugs which has resulted in significant damage to the health of a number of 
persons’ introduces such inequality both from the perspective of the legislation of 
the individual countries of the Union and that of the national law of one of the 
Member States. The referring court considers that that situation is also contrary to 
Articles 20 and 21 of the Charter of Fundamental Rights. 
14 The referring court is of the view that the EU legal order must be the natural 
determinant of the relevant national standard in interpreting the expression ‘a 
significant quantity of drugs’. Account must also be taken of the Strasbourg 
standard (ECHR). The two systems have common values which, in the field of 
criminal law, are based on the human right to legal certainty and nulla poena sine 
lege. 
15 Having regard to the fact that the referring court dispenses justice by making 
judgments compatible with the law and settled case-law, it is necessary to obtain 
an answer to the questions referred for a preliminary ruling since the highest 
national courts, the Sąd Najwyższy and the Trybunał Konstytucyjny, have already 
adjudicated in the national order and the outcome of those adjudications has still 
not produced an unequivocal result. The Court of Justice may help in clarifying 
the definition of ‘a significant quantity’ by creating an EU standard in that respect 
and assessing whether EU law may contain a gap in that regard which the 
legislative bodies must fill by including in that law an aid to interpretation for 
defining the expression ‘large quantities of drugs’ contained in Framework 
Decision 2004/757/JHA.