Opinion of the Advocate General — ECLI:EU:C:2025:994
Date: 2025-12-18
Language of the case: Romanian

Summary C-280/25 – 1 
Case C-280/25 [Lin II] i 
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: 
10 April 2025 
Referring court: 
Înalta Curte de Casație și Justiție (Romania) 
Date of the decision to refer: 
13 March 2025 
Appellant: 
Parchetul de pe lângă Curtea de Apel Oradea 
Respondent/Defendant: 
M.G.D. 
Respondent in civil action: 
Statul român – Agenția Națională de Administrare Fiscală prin 
Direcția Generală Regională a Finanțelor Publice Cluj-Napoca, prin 
Administrația Județeană a Finanțelor Publice Satu Mare 
  
Subject of the action in the main proceedings 
Appeal on a point of law against a judgment by an appeal court ordering the 
discontinuation of criminal proceedings against M.G.D. following the expiry of 
the statute of limitations on that party’s criminal liability for tax evasion. 
Subject matter and legal basis of the request 
On the basis of Article 267 TFEU, the referring court seeks an interpretation of 
Article 2 and Article 4(2) and (3) TEU, Article 2(2) and Article 325(1) TFEU, 
 
i The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-280/25 
 
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Article 1(1)(a) and Articles 2 and 9 of the Convention drawn up on the basis of 
Article K.3 of the Treaty on European Union, on the protection of the European 
Communities’ financial interests (‘the PIF Convention’), and Article 49(1), 
Article 52(3) and Article 53 of the Charter of Fundamental Rights of the European 
Union (‘the Charter’). 
Questions referred for a preliminary ruling 
(1) In interpreting and applying Article 325 [TFEU], Article 1(1)(a) and Articles 
2 and 9 of the PIF Convention [and] Article 49 of the Charter, in the absence of a 
provision of domestic law establishing a minimum amount for a case of fraud 
affecting the financial interests of the European Union to be considered serious, 
must the provisions of EU law be interpreted as meaning that fraud is considered 
serious only if it involves an amount exceeding EUR 50 000? 
(2) If the answer to the previous question is in the negative, must the provisions 
of Article 2 and Article 4(2) and (3) TEU, Article 2(2) and Article 325(1) TFEU 
and Article 2(1) of the PIF Convention, as interpreted by the judgment of the 
Court [of 24 July 2023, Lin, C-107/23 PPU, EU:C:2023:606; ‘the Lin judgment’], 
[and] of Article 49(1), Article 52(3) and Article 53 of the Charter be interpreted as 
meaning that, in criminal proceedings concerning offences relating to [value 
added tax (VAT)], the national court must disapply the national standard of 
protection relating to the principle of the retroactive application of the more 
lenient criminal law (lex mitior), as this emerges from the binding case-law of the 
highest court of that Member State, a standard according to which procedural acts 
taking place before the national legislative provision governing the causes of 
interruption of the limitation periods for criminal liability was invalidated do not 
have the effect of interrupting a limitation period, where: 
a. the disapplication of that national standard is incompatible with the 
prohibition on applying lex tertia – a principle of constitutional rank; 
b. in application of that national case-law, it can be considered that the general 
limitation period for criminal liability had expired before the Lin judgment was 
delivered; 
c. the disapplication, on the basis of EU law, of that national standard results in 
a level of protection of the fundamental rights enshrined in the Charter that is not 
equivalent or comparable to the protection guaranteed by Article 7 of the 
European Convention on Human Rights [‘the ECHR’]; 
d. national law does not lay down specific criteria to be applied by the court of 
the Member State to assess, at a preliminary stage, the systemic risk of impunity 
arising from the application of that national standard in cases of serious fraud 
affecting the financial interests of the European Union? 
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Provisions of European Union law relied on 
Article 2 TEU 
‘The Union is founded on the values of respect for human dignity, freedom, 
democracy, equality, the rule of law and respect for human rights, including the 
rights of persons belonging to minorities. These values are common to the 
Member States in a society in which pluralism, non-discrimination, tolerance, 
justice, solidarity and equality between women and men prevail.’ 
Article 4(2) and (3) TEU 
‘2. The Union shall respect the equality of Member States before the Treaties as 
well as their national identities, inherent in their fundamental structures, political 
and constitutional, inclusive of regional and local self-government. It shall respect 
their essential State functions, including ensuring the territorial integrity of the 
State, maintaining law and order and safeguarding national security. … 
3. Pursuant to the principle of sincere cooperation, the Union and the Member 
States shall, in full mutual respect, assist each other in carrying out tasks which 
flow from the Treaties. 
The Member States shall take any appropriate measure, general or particular, to 
ensure fulfilment of the obligations arising out of the Treaties or resulting from 
the acts of the institutions of the Union. 
The Member States shall facilitate the achievement of the Union’s tasks and 
refrain from any measure which could jeopardise the attainment of the Union’s 
objectives.’ 
Article 2(2) TFEU 
‘When the Treaties confer on the Union a competence shared with the Member 
States in a specific area, the Union and the Member States may legislate and adopt 
legally binding acts in that area. The Member States shall exercise their 
competence to the extent that the Union has not exercised its competence. The 
Member States shall again exercise their competence to the extent that the Union 
has decided to cease exercising its competence.’ 
Article 325(1) TFEU 
‘The Union and the Member States shall counter fraud and any other illegal 
activities affecting the financial interests of the Union through measures to be 
taken in accordance with this Article, which shall act as a deterrent and be such as 
to afford effective protection in the Member States, and in all the Union's 
institutions, bodies, offices and agencies.’ 
Article 1(1)(a) of the PIF Convention 
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‘For the purposes of this Convention, fraud affecting the European Communities’ 
financial interests shall consist of: 
(a) in respect of expenditure, any intentional act or omission relating to: 
— the use or presentation of false, incorrect or incomplete statements or 
documents, which has as its effect the misappropriation or wrongful retention of 
funds from the general budget of the European Communities or budgets managed 
by, or on behalf of, the European Communities, 
— non-disclosure of information in violation of a specific obligation, with the 
same effect …’ 
Article 2 of the PIF Convention 
‘1. Each Member State shall take the necessary measures to ensure that the 
conduct referred to in Article 1, and participating in, instigating, or attempting the 
conduct referred to in Article 1(1), are punishable by effective, proportionate and 
dissuasive criminal penalties, including, at least in cases of serious fraud, penalties 
involving deprivation of liberty which can give rise to extradition, it being 
understood that serious fraud shall be considered to be fraud involving a minimum 
amount to be set in each Member State. This minimum amount may not be set at a 
sum exceeding [EUR] 50 000. 
2. However in cases of minor fraud involving a total amount of less than 
[EUR] 4 000 and not involving particularly serious circumstances under its laws, a 
Member State may provide for penalties of a different type from those laid down 
in paragraph 1. 
3. The Council of the European Union, acting unanimously, may alter the 
amount referred to in paragraph 2.’ 
Article 9 of the PIF Convention 
‘No provision in this Convention shall prevent Member States from adopting 
internal legal provisions which go beyond the obligations deriving from this 
Convention.’ 
Article 49(1) of the Charter 
‘No one shall be held guilty of any criminal offence on account of any act or 
omission which did not constitute a criminal offence under national law or 
international law at the time when it was committed. Nor shall a heavier penalty 
be imposed than the one that was applicable at the time the criminal offence was 
committed. If, subsequent to the commission of a criminal offence, the law 
provides for a lighter penalty, that penalty shall be applicable.’ 
Article 52(3) of the Charter 
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‘In so far as this Charter contains rights which correspond to rights guaranteed by 
the [ECHR], the meaning and scope of those rights shall be the same as those laid 
down by the said Convention. This provision shall not prevent Union law 
providing more extensive protection.’ 
Article 53 of the Charter 
‘Nothing in this Charter shall be interpreted as restricting or adversely affecting 
human rights and fundamental freedoms as recognised, in their respective fields of 
application, by Union law and international law and by international agreements 
to which the Union or all the Member States are party, including the [ECHR], and 
by the Member States’ constitutions.’ 
Provisions of national law relied on 
Article 20(2) of the Constituția României (Romanian Constitution) 
‘Where divergence exists between the agreements and treaties on fundamental 
human rights to which Romania is party, and national law, the international rules 
shall take precedence, unless the Constitution or domestic laws contain more 
favourable provisions.’ 
Article 5 of the Codul penal (Romanian Criminal Code) 
‘(1) If, between the commission of an offence and the final judgment in the case, 
one or more criminal laws are passed, the more lenient law shall be applied. 
(2) The provisions of paragraph 1 shall also apply to legislative acts or 
provisions thereof that have been declared unconstitutional, and to emergency 
orders approved by Parliament with amendments or additions or rejected, if – 
during the period in which they were in force – they contained more favourable 
criminal provisions.’ 
Article 438(1)(8) of the Codul de procedură penală (Romanian Code of Criminal 
Procedure) 
‘Judgments shall be subject to appeal in the following cases: … 
8. the criminal proceedings were wrongly discontinued.’ 
Article 9 of Legea nr. 241/2005 (Law No 241/2005) (published in the Monitorul 
Oficial, Part I, No 672 of 27 July 2005, amended by Legea nr. 50/2013 (Law 
No 50/2013), published in the Monitorul Oficial, Part I, No 146 of 19 March 
2013) – version in force on 23 January 2014 
‘(1) Commission of the following acts in order to avoid fulfilling tax obligations 
shall constitute tax evasion and shall be punishable by a prison term of two to 
eight years and the loss of certain rights: … 
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(c) the recording, in the accounts or in other legal documents, of expenditure 
which does not correspond to actual transactions or the recording of other 
fictitious transactions; 
(2) If the acts referred to in paragraph 1 give rise to a loss of more than 
EUR 100 000, in the equivalent in national currency, the minimum and maximum 
penalties shall be increased by five years. 
(3) If the acts referred to in paragraph 1 give rise to a loss of more than 
EUR 500 000, in the equivalent in national currency, the minimum and maximum 
penalties shall be increased by seven years.’ 
Article 9 of Law No 241/2005, amended by Law No 126/2024 (published in the 
Monitorul Oficial, Part I, No 437 of 13 May 2024) – version currently in force 
‘(1) Commission of the following acts in order to avoid fulfilling tax obligations 
shall constitute tax evasion and shall be punishable by a prison term of 3 to 10 
years and the loss of certain rights or the imposition of a fine: … 
(c) the recording, in the accounts, in an electronic invoice or in other legal 
documents, of expenditure which does not correspond to actual transactions or the 
recording of other fictitious transactions; 
(2) If the acts referred to in paragraph 1 give rise to a loss of more than 
EUR 500 000, in the equivalent in national currency, the minimum and maximum 
penalties shall be increased by three years. 
(3) If the acts referred to in paragraph 1 give rise to a loss of more than 
EUR 1 000 000, in the equivalent in national currency, the minimum and 
maximum penalties shall be increased by five years.’ 
Succinct presentation of the facts and procedure in the main proceedings 
1 By a judgment of 21 March 2024, the Curtea de Apel Oradea (Court of Appeal, 
Oradea, Romania) dismissed the criminal proceedings against M.G.D. on the 
ground that the limitation period for criminal liability for complicity in continuous 
tax evasion alleged against M.G.D, as provided for in Article 9(1)(c) of Law 
No 241/2005, had expired. 
2 The criminal charge was that, between 3 May 2012 and 23 January 2014, M.G.D., 
in the capacity of director of two commercial companies and on the basis of a 
single criminal plan, repeatedly and knowingly made available to B.V., co-
defendant in the case, 12 tax invoices relating to fictitious purchases, which were 
entered by the latter in the accounts of another commercial company, with the aim 
of reducing the taxable base and causing damage to the State budget. The damage 
caused to the State budget amounted to 268 536 Romanian lei [RON] (equivalent 
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to EUR 59 304), on which the VAT amounted to RON 163 656 (equivalent to 
EUR 36 142). 
3 The Parchetul de pe lângă Curtea de Apel Oradea (Public Prosecutor at the Oradea 
Court of Appeal) lodged an appeal on a point of law against the judgment of 
21 March 2024, essentially arguing that that decision had wrongly discontinued 
the criminal proceedings against the defendant M.G.D., even though the Lin 
judgment was applicable to the case and, as such, the limitation period for that 
party’s criminal liability had not expired. The Public Prosecutor argued that the 
limitation period had not expired because procedural acts took place that 
interrupted that limitation period, both before 25 June 2018 (date of publication in 
the Monitorul Oficial of the judgment of the Curtea Constituțională (Romanian 
Constitutional Court) No 297/2018) and after 30 May 2022 (date of publication in 
the Monitorul Oficial of the judgment of the Constitutional Court No 358/2022). 
4 Emphasising that it is not acceptable for there to be a conflict between, on the one 
hand, the two judgments of the Romanian Constitutional Court and, on the other, 
the Lin judgment, which held that the application of the lex mitior should not have 
any effect on procedural acts taking place before 25 June 2018, the Public 
Prosecutor at the Oradea Court of Appeal requested that the binding nature of the 
interpretation of EU law given in the Lin judgment be taken into account and, 
therefore, that the appeal be upheld. 
5 That appeal on a point of law is the subject of the proceedings in which the 
questions referred for a preliminary ruling have been raised and in which the 
referring court is required to rule on the merits of the grounds asserted. 
Essential arguments of the parties in the main proceedings 
6 Both the Public Prosecutor and M.G.D. have argued that the EU law relied on is 
applicable to the main proceedings and that the divergent consequences resulting 
from the interpretations provided by the Court of Justice of the European Union 
(‘the Court’) on the one hand, and by the Înalta Curte de Casație și Justiție (High 
Court of Cassation and Justice, Romania; ‘the ICCJ’) on the other, require the 
Court to rule within the framework of the mechanism laid down in Article 267 
TFEU. 
7 The referring court notes on that point that, although it was delivered after the Lin 
judgment, the judgment against which the appeal on a point of law has been 
brought applies the national standard relating to the application of the more 
favourable criminal law, as set out in judgment No 67/2022 of the ICCJ – 
Completul pentru dezlegarea unor chestiuni de drept (ICCJ – Chamber with 
jurisdiction to rule on questions of law). 
8 After the matter was referred to the referring court, the ICCJ delivered two further 
judgments on the matter, both of which are binding on national courts. Taking into 
account the interpretative parameters provided by the Court in the Lin judgment, 
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those judgments ruled on the obligation of national courts to continue to apply the 
national standard of protection of fundamental rights represented by the 
retroactive application of the more favourable criminal law, as interpreted in ICCJ 
judgment No 67/2022. 
9 Thus, through judgment No 37 of 17 June 2024 delivered by the Chamber with 
jurisdiction to rule on questions of law within the ICCJ, it was established that 
courts cannot disapply the interpretation of questions of law relating to the 
application of the lex mitior principle in matters dealing with the interruption of 
the limitation period for criminal liability, given in judgment No 67/2022 of the 
[ICCJ], within the limits resulting from the Lin judgment (limits set out in the 
operative part of the judgment in the second sentence of paragraph 1). The same 
judgment established that the interpretation given by judgment No 67/2022 of the 
[ICCJ] will also apply, under the conditions laid down in that judgment, to 
procedural acts taking place before 25 June 2018, the date of publication of 
judgment No 297/2018 of the Romanian Constitutional Court. 
10 In the grounds for that judgment, the ICCJ essentially held that, under Romanian 
positive law, the limitation period for criminal liability – which cannot be 
separated from its interruption – is an institution of substantive law subject, inter 
alia, to the principle of lex mitior, as declared by that supreme court in its 
judgment No 67/2022. The national standard of protection relating to the principle 
of retroactive application of more favourable criminal law – including in relation 
to the interruption of the limitation period for criminal liability – gives concrete 
expression to the principle of legality of criminal offences and penalties, as 
governed by Article 7 of the ECHR and Article 49 of the Charter, and guarantees 
more extensive protection by requiring its application as a matter of priority. 
11 It was also considered that the obligation imposed on national courts by the Lin 
judgment has the effect of ensuring a level of protection that is not equivalent or 
comparable to that guaranteed by Article 7 of the ECHR, since, in assessing the 
compatibility of domestic rules with EU law in the field of the protection of the 
EU’s financial interests, the Court took into account the information and 
explanations provided by the referring court, which reflected inadequately and, in 
some cases, incorrectly, the legal situation resulting from the national judgments 
relating to the principle of legality of criminal offences and penalties and the 
effects of the judgments of the Constitutional Court on pending cases. The 
disapplication of the interpretation given by [ICCJ] judgment No 67/2022 would 
therefore imply both a breach of the fundamental principle of the legality of 
criminal offences and penalties, as reflected in the national legal system, and a 
breach of legal certainty, creating the conditions for the differentiated application 
of the legal treatment of the concurrence of laws over time, depending on the type 
of offence, based on whether an offence affects the financial interests of the Union 
or is another type of offence. 
12 Furthermore, judgment No 16 of 16 September 2024 given by the Chamber with 
jurisdiction to rule on questions of law within the ICCJ established that procedural 
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acts taking place before 25 June 2018 (date of publication in the Monitorul Oficial 
of judgment No 297/2018 of the Romanian Constitutional Court) have the effect 
of interrupting the limitation period for criminal liability, regardless of the amount 
of damage, without it being necessary to assess in concrete terms a systemic risk 
of impunity, in all cases involving offences against the financial interests of the 
European Union and corruption-related offences, only if the more favourable 
criminal law established overall by judgment No 265 of 6 May 2014 of the 
Romanian Constitutional Court is the Criminal Code or special legislation 
containing criminal provisions, in the version in force between 1 February 2014 
and 24 June 2018. 
13 The abovementioned [ICCJ] judgment No 16/2024 also established that 
procedural acts for which there is a legal obligation to notify the suspect or 
defendant after 30 May 2022 interrupt the limitation period for criminal liability 
only in respect of acts committed on or after 30 May 2022 or, with regard to acts 
committed previously, only if the more favourable criminal law established 
overall by judgment No 265 of 6 May 2014 of the Romanian Constitutional Court 
is the Criminal Code or special legislation containing criminal provisions, in the 
version in force on 30 May 2022. 
14 In the grounds for its judgment No 16/2024, the ICCJ essentially stated that, in 
accordance with the case-law of the European Court of Human Rights (‘the 
ECtHR’), it is for the courts to determine and apply the provisions of the ECHR 
and the relevant case-law in interpreting indefeasible rights where, in relation to 
those rights, there is a disparity between the standard of protection conferred by 
the Charter, as interpreted by the Court, on the one hand, and that conferred by the 
ECHR, on the other, in the sense that the former is inferior to the latter. 
15 The principles of legality of criminal offences, retroactive application of more 
favourable criminal law and absence of retroactive application of more severe 
criminal law fall within the category of indefeasible rights, which are inherent in 
the constitutional traditions of the Member States. 
16 As for how the more favourable criminal law is applied in national law, the 
Romanian Constitutional Court ruled in judgment No 265 of 6 May 2014 on the 
need for the comprehensive application of the more favourable criminal law, 
which implies the choice – between successive laws and applying the criterion of 
concrete assessment – of a single applicable criminal law, the one that is most 
favourable. Only in such circumstances is it possible to avoid imposing different 
legal treatment in the event of concurrent offences (for example, taking into 
account the existence of grounds for interruption of the limitation period for 
criminal liability in the case of VAT fraud, but at the same time the absence of 
such grounds in the case of corporate income tax fraud, which has no connection 
with the EU budget), or the creation of a double standard in relation to 
fundamental rights, resulting in the imposition of an unlawful penalty. 
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17 Consequently, even after the Lin judgment, in order to determine which 
procedural acts have the effect of interrupting the limitation period before 28 June 
2018, Romanian courts must determine the more favourable criminal law overall 
and avoid applying a lex tertia. 
18 [ICCJ] Judgment No 16/2024 also emphasised that, as an institution of substantive 
criminal law, the limitation period for criminal liability is one of the criteria to be 
taken into account for the overall application of the more favourable criminal law 
and must be assessed in the context of the mechanism created by judgment 
No 265 of 6 May 2014 of the Romanian Constitutional Court, in order to avoid lex 
tertia and in the light of the rules deriving from the lex mitior principle. Because, 
in the period between 28 June 2018 and 30 May 2022, the limitation periods for 
criminal liability expired without the possibility of interruption, disapplying the 
case-law of the Romanian Constitutional Court would have the effect of 
reactivating criminal liability after the expiry of the applicable limitation periods, 
by virtue of a subsequent more severe criminal law, thereby infringing 
Article 7(1) of the ECHR. 
19 Lastly, the court noted that, in the absence of clear criteria to be used to assess the 
systemic risk of impunity by national courts, which are required under EU law to 
disapply national case-law, the application by those courts of such an abstract 
concept – which is not clarified by law – would be such as to infringe the principle 
of legality of criminal offences and penalties, as guaranteed by Article 7 of the 
ECHR. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
20 By its first question, the referring court asks, in essence, whether Article 325 
TFEU and Article 1(1) and Articles 2 and 9 of the PIF Convention, read in the 
light of the principle of legality of criminal offences and penalties enshrined in the 
Charter, must be interpreted as meaning that, in the absence of a provision of 
domestic law establishing a minimum amount for a case of fraud affecting the 
financial interests of the Union to be considered serious, VAT fraud must be 
considered serious only if it involves an amount exceeding EUR 50 000. 
21 The referring court observes that, according to the settled case-law of the Court, 
Article 325(1) TFEU obliges the Member States to counter fraud and other illegal 
activities affecting the financial interests of the European Union through effective 
deterrent measures. Given that the European Union’s own resources include, 
among other things, revenue from application of a uniform rate to the harmonised 
VAT assessment bases determined according to European Union rules, there is a 
direct link between the collection of VAT revenue in compliance with the EU law 
applicable and the availability to the EU budget of the corresponding VAT 
resources, since any lacuna in the collection of the first potentially causes a 
reduction in the second (judgments of 26 February 2013, Akerberg Fransson, 
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C-617/10, EU:C:2013:105, paragraph 26, and of 5 December 2017, M.A.S and 
M.B., C42/17, EU:C:2017:936, paragraph 31). 
22 At the same time, it has been established that, in order to guarantee the collection 
of all VAT revenue and thus to ensure the protection of the financial interests of 
the European Union, Member States are free to choose the applicable penalties, 
which may take the form of administrative penalties, criminal penalties or a 
combination of the two. However, Member States must ensure, pursuant to 
Article 325(1) TFEU, that cases of serious fraud or other serious illegal activities 
affecting the financial interests of the European Union are punishable by criminal 
penalties that are effective and that act as a deterrent (judgments of 8 September 
2015, Taricco and Others, C-105/14, EU:C:2015:555, paragraph 39; of 2 May 
2018, Scialdone, C-574/15, UE:C:2018:295, paragraphs 34 and 35; and of 24 July 
2023, Lin, C-107/23 PPU, EU:C:2023:606, paragraph 84). 
23 Furthermore, Member States’ freedom of choice is limited by the PIF Convention, 
which imposes criminal law obligations on them. As is clear from Articles 1 and 2 
of that convention, Member States are required, first, to classify as criminal 
offences conduct constituting fraud affecting the financial interests of the Union 
and, second, to ensure that such conduct, including VAT fraud, is punishable by 
effective, proportionate and dissuasive criminal penalties, including, at least in 
cases of serious fraud – namely fraud involving a minimum amount which may 
not be set by the Member States at a sum exceeding EUR 50 000 – penalties 
involving deprivation of liberty (judgments of 2 May 2018, Scialdone, C-574/15, 
EU:C:2018:295, paragraph 36; of 13 October 2022, MC, C-1/21, EU:C:2022:788, 
paragraph 43; and of 24 July 2023, Lin, C-107/23 PPU, EU:C:2023:606, 
paragraph 85). 
24 Similarly, in interpreting Article 325(1) TFEU, the Court has held that criminal 
proceedings for tax fraud involving an amount of less than EUR 50 000 constitute 
implementation of EU law (judgment of 26 February 2013, Akerberg Fransson, 
C-617/10, EU:C:2013:105, paragraph 27). 
25 However, the Court has not had occasion to rule, in a situation such as that in the 
main proceedings, on the interpretation of Article 2(1) and Article 9 of the PIF 
Convention, provisions that the referring court considers particularly relevant, in 
particular with regard to the discretion enjoyed by Member States when adopting 
domestic provisions by which they fulfil their obligations under Article 2(1) of the 
PIF Convention. 
26 In the light of the Court’s previous case-law on the interpretation of the provisions 
considered relevant by the referring court and in the light of the subject matter of 
the case and the relevant facts, the answer to the first question referred for a 
preliminary ruling is, therefore, necessary in order to determine whether, under 
Article 325(1) TFEU and Article 1(1) and Article 2(1) of the PIF Convention, in 
the absence of a provision of domestic law establishing a minimum amount for a 
case of fraud affecting the financial interests of the Union to be considered 
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serious, VAT fraud such as that at issue in the main proceedings, committed in 
aggravating circumstances specific to a continuous offence but involving a VAT 
amount of RON 163 656 (equivalent to EUR 36 142), must be considered serious 
only if it involves an amount exceeding EUR 50 000. 
27 If the Court finds that EU law precludes VAT fraud such as that alleged against 
M.G.D. from being regarded as serious only if it involves such a minimum 
amount, it will be for the referring court to identify and apply, as a whole, the 
relevant provisions of EU law, including those relating to the limitation period for 
criminal liability, the interpretation of which is the subject of the second question 
referred for a preliminary ruling. 
28 By its second question, the referring court asks, in essence, whether the provisions 
of Article 2 and Article 4(2) and (3) TEU, Article 2(2) and Article 325(1) TFEU, 
and Article 2(1) of the PIF Convention, as interpreted by the Lin judgment, and 
the provisions of Article 49(1), Article 52(3) and Article 53 of the Charter, must 
be interpreted as meaning that, in criminal proceedings concerning VAT fraud, the 
national court must disapply the national standard of protection relating to the 
principle of lex mitior, as established in judgment No 37/2024 and judgment 
No 16/2024 of the highest Romanian court – both of which are binding for 
national courts. According to that standard, the recognition of the interruptive 
effect, on limitation, of procedural acts taking place before the national legislative 
provision governing the grounds for interruption of the limitation periods for 
criminal liability was invalidated is incompatible with the prohibition on applying 
lex tertia, a principle of constitutional rank, and would have the effect of 
guaranteeing a level of protection of the fundamental rights enshrined in the 
Charter that is not equivalent or comparable to the protection guaranteed by 
Article 7 of the ECHR. 
29 The referring court also considers it necessary to interpret those provisions of EU 
law in the light of a possible obligation of the national court to disapply that 
national standard of protection even if, in accordance with the two binding 
judgments of the ICCJ, it can be considered, first, that the general limitation 
period for criminal liability expired before the Lin judgment was delivered and, 
second, that, in the absence of criteria laid down by the legislature to be used by 
the national courts to assess the systemic risk of impunity in a significant number 
of cases, any application of that concept by the courts would lead to a breach of 
the principle of legality of criminal offences and penalties guaranteed by Article 7 
of the ECHR. 
30 In accordance with the Court’s settled case-law, the principle of the primacy of 
EU law establishes the pre-eminence of EU law over the law of the Member 
States. That principle therefore requires all Member State bodies to give full effect 
to the various EU provisions, and the law of the Member States may not 
undermine the effect accorded to those various provisions in the territory of those 
States and, therefore, the unity and effectiveness of Union law. The effects of the 
principle of the primacy of EU law are binding on all the bodies of a Member 
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State, without, inter alia, provisions of domestic law, including constitutional 
provisions, being able to prevent that (judgments of 18 May 2021, Asociația 
‘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, paragraphs 244 and 245 and the case-
law cited, and of 22 February 2022, RS, C-430/21, EU:C:2022:99, paragraph 51 
and the case-law cited). 
31 Since it has exclusive jurisdiction to give the definitive interpretation of EU law, it 
is for the Court, in the exercise of that jurisdiction, to clarify the scope of the 
principle of the primacy of EU law in the light of the relevant provisions of that 
law, with the result that that scope cannot turn on the interpretation of provisions 
of national law or on the interpretation of provisions of EU law by a national court 
which is at odds with that of the Court (judgment of 22 February 2022, RS, 
C-430/21, EU:C:2022:99, paragraph 52 and the case-law cited). 
32 The interpretation which the Court, in the exercise of the jurisdiction conferred on 
it by Article 267 TFEU, gives to a rule of EU law clarifies and defines, where 
necessary, the meaning and scope of that rule as it must be or ought to have been 
understood and applied from the time of its coming into force. The national court 
is bound by a preliminary ruling of the Court on the interpretation of EU law. The 
effectiveness of Article 267 TFEU would be impaired if the national court were 
prevented from forthwith applying EU law in accordance with the decision or the 
case-law of the Court (judgment of 5 April 2016, PFE, C-689/13, EU:C:2016:199, 
paragraph 38 and 39). 
33 As regards the meaning to be given to Article 325(1) TFEU and Article 2(1) of the 
PIF Convention in the light of the national standard of protection relating to the 
principle of lex mitior in relation to the interruption of the limitation period, the 
Court ruled in the Lin judgment that, in proceedings seeking to impose criminal 
penalties for serious fraud affecting the financial interests of the Union, national 
courts cannot apply that national standard to call into question the interruption of 
the limitation period for criminal liability by procedural acts taking place before 
25 June 2018, the date of publication of judgment No 297/2018 of the Romanian 
Constitutional Court, since otherwise the application of the national standard 
would undermine the primacy, unity and effectiveness of EU law. 
34 According to the principle of interpretation in conformity of national law, which is 
inherent in the system of the Treaties, the national court is therefore required to 
interpret national law, as far as possible, in conformity with the requirements of 
EU law, as they result from the binding case-law of the Court, and to ensure, 
within the limits of its jurisdiction, the full effectiveness of EU law when it rules 
on the dispute before it. 
35 However, according to the Court’s case-law, the principle of interpretation of 
national law in conformity with EU law has certain limits. The obligation on 
national courts to refer to the content of EU law when interpreting and applying 
the relevant rules of domestic law is limited by general principles of law and 
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cannot serve as the basis for an interpretation of national law that is contra legem 
(judgment of 9 April 2024, FY, C-582/21, EU:C:2024:282, paragraph 63 and the 
case-law cited). 
36 Furthermore, the requirement to interpret national law in conformity with EU law 
entails, in particular, the obligation for national courts and tribunals to change 
established case-law, where necessary, if it is based on an interpretation of 
national law that is incompatible with EU law. Consequently, a national court 
cannot validly consider that it is impossible for it to interpret a provision of 
national law in a manner that is consistent with EU law merely because that 
provision has consistently been interpreted in a manner that is incompatible with 
EU law (judgment of 9 April 2024, FY, C-582/21, EU:C:2024:282, paragraph 65 
and the case-law cited). 
37 The referring court argues that the legal situation resulting from the binding 
national case-law subsequent to the Lin judgment differs in two essential respects 
from the situation examined by the Court in that case and that those differences 
justify the referral of the present request for interpretation of EU law. 
38 On the one hand, that legal situation, which is limited to a sector to which EU law 
applies, namely serious VAT fraud, raises the question of the extent to which EU 
law precludes the application of a national standard of protection relating to the 
principle of the retroactive application of the more favourable criminal law in 
relation to the interruption of the limitation period for criminal liability, in so far 
as concerns the overall application of the lex mitior, while avoiding the creation of 
a lex tertia, a standard as established in national case-law. This particular feature 
of the national standard was not examined by the Court in the Lin judgment, but 
was explicitly applied by the ICCJ in judgment No 16/2024, when it ruled with 
binding effect that, even after the Lin judgment, national courts must recognise the 
interruptive effect of procedural acts taking place before 25 June 2018, under the 
conditions laid down in judgment No 265/2014 of the Romanian Constitutional 
Court. 
39 On the other hand, this new legal situation expressly raises the question of the 
compatibility of the standard of protection corresponding to the requirements of 
EU law, as interpreted by the Court in the Lin judgment (paragraph 123), with the 
standard laid down in Article 7 of the ECHR. Both judgment No 37/2024 and 
judgment No 16/2024 of the ICCJ reflect the conclusion that the obligations 
imposed on courts under EU law, in a field to which that law applies, will have the 
effect of not ensuring the protection of fundamental rights in a manner equivalent 
or comparable to the protection guaranteed by the ECHR. 
40 According to the referring court, this new legal situation arising from national 
case-law raises several questions concerning the interpretation of EU law. 
41 First, by making the interruption of the limitation period for procedural acts 
implemented before 25 June 2018 subject to the prior determination of the more 
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favourable nature of the criminal law applicable during that period, the national 
case-law makes the application of EU law, as interpreted by the Lin judgment, 
subject to an additional requirement. Yet such an additional requirement has not 
been examined by the Court. 
42 However, that requirement inherent in the national standard could render the 
interpretation of EU law given in the Lin judgment inapplicable in practice, since 
there is no concrete, foreseeable situation in which the criminal law in force 
before 25 June 2018 – which provided for the interruption of the limitation 
periods, with their expiry after a longer period of time – could be considered, 
overall, more favourable than the law applicable in the period between 25 June 
2018 and 30 May 2022, during which there were no cases in positive law in which 
the limitation period for criminal liability was interrupted and the limitation period 
thus expired after a shorter period of time. 
43 Second, in order to consider that the national standard of protection corresponding 
to the principle of retroactive application of the lex mitior corresponds to a higher 
standard, as guaranteed by Article 7 of the ECHR, the referring court should start 
from the premiss – explicitly drawn from national case-law – that the obligation 
imposed on national courts under EU law, as interpreted by the Lin judgment, 
does not guarantee a comparable or equivalent level of protection of fundamental 
rights. In such a situation, the question inevitably arises as to the scope of the right 
enshrined in Article 49(1) of the Charter and the meaning to be given to it in EU 
law (judgment of 5 December 2017, M.A.S. and M.B., C-42/17, EU:C:2017:936, 
paragraph 54), an area in which the Court has exclusive jurisdiction for 
interpretation. 
44 Third, the referring court must also assess whether the expiry of the limitation 
period for criminal liability in the main proceedings – which, according to 
national case-law, could have occurred on 23 March 2022, before the Lin 
judgment – raises questions in the light of the principle of legality of criminal 
offences and penalties, as guaranteed by the Charter and the ECHR. 
45 Fourth, it is for the referring court to assess, ultimately, whether, within the 
parameters for interpreting EU law provided by the Lin judgment, the fact that its 
obligation to give full effect to that law is subject to its own preliminary 
assessment of the systemic risk of impunity in the absence of legal criteria, as it 
results from national case-law, is compatible with EU law. 
Opinion of the national court 
46 According to the referring court, in the light of the rules at issue in the first 
question, in the absence of a provision of domestic law establishing a minimum 
amount for a case of fraud affecting the financial interests of the European Union 
to be considered serious, EU law precludes such VAT fraud from being 
considered serious only where it involves an amount exceeding EUR 50 000. 
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47 The fact that, in fulfilling its obligations under Article 2(1) of the PIF Convention, 
a Member State chooses to impose criminal penalties involving deprivation of 
liberty for VAT fraud, regardless of the amount of damage caused, cannot mean 
that all acts causing damage in an amount of less than EUR 50 000 are 
automatically excluded from the scope of EU law. This latter threshold does not 
reflect a single, strictly defined criterion for classifying VAT fraud as serious, but 
rather a maximum limit which Member States must take into account when, in 
fulfilling their obligations, they choose to lay down in their domestic legislation a 
minimum amount for determining that fraud is serious. 
48 Before the harmonisation by the EU legislature of the legal regime applicable to 
fraud affecting the financial interests of the Union, criminal penalties for this 
category of fraud, regardless of the amount of damage caused, were left to the 
discretion of the Member States, given their freedom to choose the penalties 
applicable in the field of the protection of the Union’s financial interests and 
corresponding to the shared competence between the Union and the Member 
States in that field. 
49 Consequently, in the absence of a provision of domestic law laying down a 
minimum amount, other circumstances may be taken into account. Depending on 
the law of the Member State, those circumstances may constitute aggravating 
causes or circumstances that, in concrete terms, mean that fraud committed before 
6 July 2019 can be classified as serious, such as, for example, the continuous 
nature of the offence committed. It is for the national courts to determine the 
impact of such causes or circumstances laid down in national law in the disputes 
before them. 
50 With regard to the rules requiring interpretation through the second question, the 
referring court considers that, in criminal proceedings concerning serious VAT 
fraud, EU law does not preclude the national court from disapplying a national 
standard of protection relating to the principle of lex mitior, as enshrined in the 
binding case-law of the highest court of that Member State, where, based on that 
standard, the prohibition on creating a lex tertia allows consideration of the 
interruption of the limitation period for procedural acts taking place before the 
national legislative provision governing the grounds for interruption of the 
limitation periods for criminal liability was invalidated only if it is established that 
the legislation serving as the basis for implementation of those procedural acts is, 
overall, more favourable. 
51 In fact, according to the constitutional standard established by judgment 
No 265/2014 of the Romanian Constitutional Court (which applies the case-law of 
the ECtHR relating to Article 7(1) of the ECHR), the principle of retroactive 
application of the more favourable criminal law implies that, in the event of a 
succession of legal regimes, the court must choose and apply the law that, overall, 
guarantees a more favourable situation for the accused, without, however, 
allowing the favourable provisions of successive laws to be combined and a lex 
tertia to be created by the courts. 
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52 In the case of Member States, the concept of law includes not only domestic law 
but also Union law, which, as a result of accession, in the light of the case-law of 
the Court (judgment of 6 March 2018, Achmea, C-284/16, EU:C:2018:158, 
paragraph 41), must be considered an integral part of the law in force in each 
Member State, characterised by autonomy, primacy and direct effect. 
53 In national law, the rules governing the limitation period for criminal liability for 
fraud affecting the financial interests of the Union have been incorporated into 
two legal regimes relevant to the main proceedings, namely: 
– a first variant applicable until 25 June 2018, according to which procedural 
acts taking place during that period had the effect of interrupting the limitation 
period (this variant also incorporates the relevant EU law as interpreted in the 
judgments of 8 September 2015, Taricco and Others, C-105/14, EU:C:2015:555, 
and of 5 December 2017, M.A.S and M.B., C-42/2017, EU:C:2017:936), and 
– a second variant applicable in the period between 25 June 2018 and 30 May 
2022, according to which, following judgment No 297/2018 of the Romanian 
Constitutional Court, procedural acts did not have the effect of interrupting the 
limitation period (for this variant, EU law as interpreted in the Lin judgment is 
relevant). 
54 According to the referring court, the retroactive application of the more favourable 
criminal law on the interruption of the limitation period for criminal liability for 
fraud affecting the interests of the Union does not imply a possible combination of 
the two regulatory options, but, on the contrary, requires the choice of one of 
them, the more favourable, as determined in concrete terms by the national court 
on the basis of the specific features of the case and the relevant criteria deriving 
also from EU law. 
55 National courts are, therefore, free to determine whether the more favourable 
criminal law overall is the law in force until 25 June 2018 or, conversely, the law 
subsequent to that date. In exercising that prerogative, the national courts must 
nevertheless interpret the law applicable in the period between 25 June 2018 and 
30 May 2022 in a manner consistent with EU law, as interpreted by the Court, in 
order to ensure the unity and effectiveness of that law. 
56 From this latter perspective, the choice of the more favourable legal regime 
applicable to the limitation period for fraud affecting the financial interests of the 
Union does not, in itself, lead to the creation of a lex tertia. 
57 According to the referring court, a hypothetical situation such as that highlighted 
in judgment No 16/2024 of the ICCJ – concerning a possible concurrence between 
offences affecting the financial interests of the Union and offences falling outside 
the scope of EU law – raises questions relating solely of the application of 
national law and can be examined in concrete terms only by the national courts. 
However, such a hypothetical situation should not affect the primacy and direct 
effect of EU law, since the recognition of the full effectiveness of that law cannot 
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depend on the interpretation given to the applicable national legislation in areas 
subject to rules of domestic law. 
58 As regards the extent to which EU law requires the national court to disapply the 
national standard of protection relating to the application of the more favourable 
criminal law, even if it can be considered, on the basis of national case-law, that 
the limitation period for criminal liability for fraud affecting the financial interests 
of the Union expired before the Lin judgment was delivered, the referring court 
submits that the answer to that question involves an assessment of the foreseeable 
and accessible nature of the interpretation of EU law provided by the Court before 
the Lin judgment. A definitive conclusion on this point requires the Court to 
interpret the provision in order to ensure the unity and effectiveness of EU law. 
59 In any event, according to the referring court, the legal regime applicable to the 
limitation period for criminal liability for fraud affecting the financial interests of 
the Union – as this results from national legislation interpreted in accordance with 
EU law – cannot be regarded as reflecting a standard of protection relating to the 
principle of retroactive application of the more favourable criminal law that is not 
equivalent or comparable to the standard laid down in Article 7 of the ECHR. 
60 The Court has held that the rules governing the limitation period for criminal 
liability do not fall within the scope of Article 49(1) of the Charter. 
61 For its part, the ECtHR has held that rules on limitation periods are, in principle, 
procedural rules, and therefore Article 7 of the ECHR does not preclude the 
immediate application to pending proceedings of rules extending limitation 
periods, where the acts have never been time-barred. However, Article 7 prohibits 
the reinstatement of criminal penalties for acts for which the limitation period has 
expired under national law. 
62 National law does not contain any express provisions that can be used as a basis 
for considering that the limitation period for criminal liability had expired, in 
respect of acts such as those at issue in the main proceedings, before the Lin 
judgment was delivered. Such a conclusion could only be drawn if it were 
accepted, as the sole effect of the application of binding national case-law and 
contrary to the Court’s ruling in the Lin judgment, that procedural acts taking 
place before 25 June 2018 do not have the effect of interrupting the limitation 
period. 
63 Without forgetting that the mechanism established by Article 267 TFEU is based 
on a clear separation of functions between national courts and the Court, the 
referring court nevertheless asks the Court, when determining the meaning to be 
given to EU law, to take into account the following particular feature of the 
national standard relating to the application of the more favourable criminal law 
on limitation periods. While it is true that, traditionally, the limitation period for 
criminal liability has been classified as falling within substantive criminal law, 
Romanian criminal law has nevertheless gradually introduced, since 2012, a series 
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of exceptions to the prohibition on the retroactive application of stricter rules in 
relation to the limitation period for criminal liability for certain serious offences. 
64 The relevant national criminal law provisions in this regard provide that the 
limitation period does not preclude criminal liability for murder and intentional 
offences resulting in the death of the victim for which the limitation period had 
not expired on the date when those provisions entered into force. 
65 In its judgment No 473 of 12 July 2018, the Romanian Constitutional Court held 
that these provisions are not contrary to the constitutional principle of retroactive 
application of the more favourable criminal law, even if they are more severe and 
apply retroactively to acts committed before they entered into force. According to 
the referring court, the position of the Constitutional Court reflects the primacy 
accorded, at constitutional level, to the procedural aspect of the legislation on 
limitation periods, since the consequence of that constitutional choice is the 
retroactive application of stricter rules to a specific category of serious offences. 
66 The referring court also considers relevant the position taken by the ECtHR in a 
similar legal situation, arising from differences in case-law on how to apply 
criminal laws on limitation periods over time. The ECtHR ruled that there is no 
question of a violation of Article 7 of the ECHR by a provision that would have 
the effect of reinstating the possibility of punishing acts for which the limitation 
period has expired, where the person concerned was convicted for acts for which 
the right to prosecute had never been extinguished by the limitation period and 
had not suffered – as a result of the change in case-law on limitation periods – 
greater harm than that to which he or she was exposed at the time the offence was 
committed (Borcea v. Romania, 55959/14, CE:ECHR:2015:0922DEC005595914, 
§ 65). 
67 Finally, the referring court considers that, in accordance with its obligations under 
EU law, within the parameters provided by the Lin judgment (paragraph 91), its 
duty to give full effect to that law in criminal proceedings relating to serious VAT 
fraud cannot be made subject to a preliminary and separate analysis of the 
existence of a systemic risk of impunity for such fraud.