Order;Information — ECLI:EU:C:2024:44
Date: 2024-01-09
Language of the case: Romanian
Court formation: Ninth Chamber
Subject matter: Accession;Right of establishment;Financial provisions;Principles, objectives and tasks of the Treaties;Approximation of laws;Freedom to provide services;Judicial cooperation in criminal matters;Area of freedom, security and justice;Own resources;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling;Reference for a preliminary ruling - inadmissible
Origin: Romania

Summary C-75/23 ‒ 1 
Case C-75/23 
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 February 2023 
Referring court:  
Curtea de Apel Brașov (Romania) 
Date of the decision to refer:  
10 February 2023 
Appellant:  
Parchetul de pe lângă Tribunalul Brașov 
Defendants:  
M.A.sr 
S.A.C.S. 
S.A.S. 
Civil party: 
Romanian State 
  
Subject matter of the main proceedings 
Appeal against a judgment delivered in criminal proceedings before the Tribunalul 
Brașov (Regional Court, Brașov, Romania, ‘the Regional Court’) ordering the 
discontinuance of criminal proceedings against all the defendants in the case, who 
were being tried for offences of tax evasion and money laundering. The questions 
referred for a preliminary ruling relate to case-law of the Curtea Constituțională 
(Constitutional Court, Romania) concerning the interruption of the limitation 
period for criminal liability, the application of which would make it impossible to 
convict the defendants, even for the commission of acts to which provisions of 
European Union law are applicable. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-75/23 
 
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Subject matter and legal basis of the request for a preliminary ruling 
Pursuant to Article 267 TFEU, interpretation is sought of Article 2, Article 4(3) 
and the second paragraph of Article 19(1) TEU, Article 325(1) TFEU, Article 2(1) 
of the Convention drawn up on the basis of Article K.3 of the Treaty on European 
Union (‘the PFI Convention’), Articles 2 and 12 of Directive 2017/1371 (‘the PFI 
Directive’), Directive 2006/112, Decision 2006/928, the last sentence of 
Article 49(1) of the Charter of Fundamental Rights of the European Union, and 
the principle of the primacy of EU law. 
Questions referred for a preliminary ruling 
1. Are Article 2 TEU, the second paragraph of Article 19(1) TEU and 
Article 4[(3)] TEU, read in conjunction with Article 325(1) TFEU, Article 2(1) of 
the PFI Convention, Articles 2 and 12 of the PFI Directive and Council Directive 
2006/112/EC of 28 November 2006 on the common system of value added tax, 
with reference to the principle of effective and dissuasive penalties in cases of 
serious fraud affecting the financial interests of the European Union, and in 
application of Commission Decision 2006/928/EC, with reference to the last 
sentence of Article 49(1) of the Charter of Fundamental Rights of the European 
Union, to be interpreted as precluding a legal situation, such as that in the case in 
the main proceedings, in which defendants request the application of the principle 
of the more lenient criminal law, in a context in which a national constitutional 
court decision has declared as unconstitutional legislation on the interruption of 
the limitation period for criminal liability (decision of 2022), on the ground that 
the legislature had failed to act to bring the legislation in question into line with 
another decision of the same constitutional court delivered four years earlier 
(decision of 2018) – and in the interim the case-law of the ordinary courts 
applying the first decision had become settled in the sense that the legislation in 
question continued to exist, in the form understood following the first decision of 
the constitutional court – with the practical consequence that the limitation period 
for all the offences in relation to which no final conviction had been handed down 
prior to the first decision of the constitutional court was reduced by half and the 
criminal proceedings against the defendants in question were consequently 
discontinued? 
2. Are Article 2 TEU, on the values of the rule of law and respect for human 
rights in a society in which justice prevails, and Article 4[(3)] TEU, on the 
principle of sincere cooperation between the European Union and the Member 
States, in application of Commission Decision 2006/928/EC in so far as it 
concerns the commitment to ensuring the efficiency of the Romanian judicial 
system, with reference to the last sentence of Article 49[(1)] of the Charter of 
Fundamental Rights of the European Union, which enshrines the principle of the 
more lenient criminal law, to be interpreted, in relation to the national judicial 
system as a whole, as precluding a legal situation, such as that in the case in the 
main proceedings, in which defendants request the application of the principle of 
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the more lenient criminal law, in a context in which a national constitutional court 
decision has declared as unconstitutional legislation on the interruption of the 
limitation period for criminal liability (decision of 2022), on the ground that the 
legislature had failed to act to bring the legislation in question into line with 
another decision of the same constitutional court delivered four years earlier 
(decision of 2018) – and in the interim the case-law of the ordinary courts 
applying the first decision had become settled in the sense that the legislation in 
question continued to exist, in the form understood following the first decision of 
the constitutional court – with the practical consequence that the limitation period 
for all the offences in relation to which no final conviction had been handed down 
prior to the first decision of the constitutional court was reduced by half and the 
criminal proceedings against the defendants in question were consequently 
discontinued? 
3. If that is so, and only if it is impossible to provide an interpretation in 
conformity with EU law, is the principle of the primacy of EU law to be 
interpreted as precluding national legislation or a national practice pursuant to 
which the ordinary national courts are bound by decisions of the national 
constitutional court and binding decisions of the national supreme court and, for 
that reason, cannot, without committing a disciplinary offence, of their own 
motion disapply the case-law resulting from those decisions, even if, in light of a 
judgment of the Court of Justice, they take the view that that case-law is contrary 
to Article 2 TEU, the second paragraph of Article 19(1) TEU and Article 4[(3)] 
TEU, read in conjunction with Article 325(1) TFEU, in application of 
Commission Decision 2006/928/EC, with reference to the last sentence of 
Article 49[(1)] of the Charter of Fundamental Rights of the European Union, as in 
the situation in the main proceedings? 
Provisions of EU law and case-law of the Court of Justice relied on 
Article 2, Article 4(3) and the second paragraph of Article 19(1) TEU; 
Article 325(1) TFEU; 
Convention drawn up on the basis of Article K.3 of the Treaty on European Union 
(‘the PFI Convention’), Article 1(1) and Article 2(1);  
Directive (EU) 2017/1371 of the European Parliament and of the Council of 
5 July 2017 on the fight against fraud to the Union’s financial interests by means 
of criminal law (‘the PFI Directive’), Articles 1, 2 and 12;  
Commission Decision 2006/928/EC of 13 December 2006 establishing a 
mechanism for cooperation and verification of progress in Romania to address 
specific benchmarks in the areas of judicial reform and the fight against 
corruption; 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-75/23 
 
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Council Directive 2006/112/EC of 28 November 2006 on the common system of 
value added tax; 
Charter of Fundamental Rights of the European Union (‘the Charter’), 
Article 49(1), last sentence; 
The principle of the primacy of EU law; 
Judgment of 21 December 2021, Euro Box Promotion and Others (C-357/19, 
C-379/19, C-547/19, C-811/19 and C-840/19), EU:C:2021:1034; judgment of 
8 September 2015, Taricco and Others (C-105/14), EU:C:2015:555; judgment of 
5 December 2017, M.A.S. and M.B. (C-42/17), EU:C:2017:936; judgment of 
14 September 2010, Akzo Nobel Chemicals and Akcros Chemicals v Commission 
(C-550/07 P), EU:C:2010:512; judgment of 22 March 1961, S.N.U.P.A.T. v High 
Authority (42/59 and 49/59), EU:C:1961:5; judgment 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; judgment of 22 February 2022, RS 
(C-430/21), EU:C:2022:99; judgment of 26 February 2013, Åkerberg Fransson 
(617/10,) EU:C:2013:105. 
Provisions of international law and case-law of the European Court of 
Human Rights referred to in the proceedings 
Convention for the Protection of Human Rights and Fundamental Freedoms 
(‘ECHR’), Article 7; 
Judgment of the European Court of Human Rights (‘ECtHR’) of 18 October 2000, 
Coëme and Others v. Belgium; judgment of the ECtHR of 12 February 2013, 
Previti v. Italy; judgment of the ECtHR of 22 September 2015, Borcea v. 
Romania; judgment of the ECtHR of 17 September 2014, Mocanu and Others v. 
Romania; judgment of the ECtHR of 15 November 2016, A and B v. Norway; 
judgment of the ECtHR of 3 April 2012, Michelioudakis v. Greece. 
Provisions of national law and national case-law relied on 
Constituția României (Romanian Constitution, ‘the Constitution’), 
Article 147(1) and (4); 
Codul penal (Criminal Code), republished by Law No 140/1996, in force until 
1 February 2014 (‘the old Criminal Code’). In accordance with Article 123 of the 
old Criminal Code, ‘the limitation period … shall be interrupted by the 
performance of any act which, by law, must be communicated to the defendant in 
the course of criminal proceedings’. 
Codul penal (Criminal Code), adopted by Law No 286 of 17 July 2009, which 
entered into force on 1 February 2014. Article 5(1) of the code provides that ‘if, 
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between the commission of an offence and final judgment in the case, one or more 
criminal laws are passed, the more lenient law shall be applied’. Article 155(1) of 
the code provided that ‘the limitation period for criminal liability shall be 
interrupted by the performance of any procedural act in the case’. 
Decizia nr. 297 din 26 aprilie 2018 (Decision No 297 of 26 April 2018) of the 
Constitutional Court (‘Decision No 297/2018’). In this decision, the Constitutional 
Court held, in substance, that the legislative solution that provided for the 
interruption of the limitation period for criminal liability as a result of the 
performance of ‘any procedural act in the case’, contained in Article 155(1) of the 
Criminal Code, was unconstitutional. In its analysis, the Constitutional Court 
stated that it was necessary to ensure the predictability of the effects of 
Article 155(1) of the Criminal Code in relation to the person who has committed 
an offence under criminal law, including by ensuring that that person may be 
apprised of the fact that the limitation period for criminal liability has been 
interrupted and that a new limitation period has started to run. To accept the 
contrary view would be tantamount to creating in the person concerned, where 
procedural acts are performed that are not notified to the suspect or defendant but 
have the effect of interrupting the limitation period for criminal liability, a state of 
perpetual uncertainty, caused by the impossibility of making a reasonable estimate 
of the period within which he or she may be held criminally liable for the offence 
committed; such uncertainty could last until the special limitation period expires. 
Article 155(1) of the Criminal Code was therefore devoid of predictability, as well 
as being contrary to the principle that penalties must be clearly defined by law, 
since the expression ‘any procedural act’ used therein also included acts that are 
not notified to the suspect or defendant. 
Decizia nr. 5 din 21 martie 2019 and Decizia nr. 25 din 11 noiembrie 2019 
(Decision No 5 of 21 March 2019 and Decision No 25 of 11 November 2019) of 
the Înalta Curte de Casație și Justiție (High Court of Cassation and Justice, 
Romania; ‘the Court of Cassation’). 
Decizia nr. 358 din 26 mai 2022 (Decision No 358 of 26 May 2022) of the 
Constitutional Court (‘Decision No 358/2022’). In this decision, the Constitutional 
Court held the provisions of Article 155(1) of the Criminal Code to be 
unconstitutional, holding, in essence, as follows: ‘The Court considers that, on 
account of the effects which it produces, Decision [No 297/2018] is, in legal 
nature, a simple/extreme decision, inasmuch as … the Court sanctioned the only 
legislative solution which the provisions of Article 155(1) of the Criminal Code 
governed. … The Court notes that, in paragraph 34 of Decision [No 297/2018], it 
emphasised the fact that the legislative solution in the [old Criminal Code] 
satisfied the requirements of clarity and predictability, since it provided for the 
interruption of the limitation period for criminal liability only by the performance, 
in a case in which the person concerned was the individual charged or the 
defendant, of an act which, by law, had to be notified. The Court would observe, 
however, that the indication of the legislative solution in the previous legislative 
act had a guiding role and can in no way be attributed an absolute nature, in the 
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sense of requiring the legislature to adopt a rule identical to that contained in the 
[old Criminal Code]. Thus, the Court would emphasise that, although it sanctioned 
the legislative solution provided for in Article 155(1) of the Criminal Code, 
because it established that the limitation period could be interrupted by the 
performance of procedural acts that are not made known to the suspect or 
defendant, by means of notification or the person’s presence while the act is 
performed, it did not require that all acts notified to the suspect or defendant or all 
acts entailing the involvement of the suspect or defendant be regarded as acts 
capable of interrupting the limitation period for criminal liability, since it is for the 
legislature to determine what these are, subject to the fundamental condition that 
they satisfy the requirements mentioned by the Constitutional Court. … Precisely 
in view of the scope of the legislature’s competence, the Court would observe 
that, in paragraph 34 of Decision [No 297/2018], it emphasised the points of 
reference of the constitutional approach which the legislature, and not the 
judiciary, was required to adopt, and that, under Article 147 of the Constitution, 
the legislature was required to intervene by means of legislation and to establish in 
a clear and predictable manner the cases in which the limitation period for 
criminal liability would be interrupted. … The Court finds that this outcome is the 
result of a failure by the legislature to comply with its obligations under the 
Constitution and of its inaction, even in spite of the fact that decisions of the 
[Court of Cassation] have been pointing out since 2019 the non-uniform practice 
resulting from the lack of legislative intervention. Similarly, the Court would 
emphasise that the aim of Decision [No 297/2018] was not to abolish limitation 
periods for criminal liability or the interruption of those periods, but to bring the 
provisions of Article 155(1) of the Criminal Code into line with constitutional 
requirements. … The Court notes that the situation created by the legislature’s 
inaction following the publication of the aforementioned decision upholding the 
objection of unconstitutionality, constitutes an infringement of Article 1(3) and (5) 
of [the Constitution], which enshrines the rule of law of the Romanian State and 
the primacy of the Constitution … The legislature has disregarded Article 147(4) 
of the Constitution by ignoring the binding effects of Decision [No 297/2018], 
thus creating a more serious defect of unconstitutionality arising from the non-
uniform application of the wording in the legislation “the limitation period for 
criminal liability is interrupted by the performance …”, which clearly does not 
specify any case of interruption of the limitation period for criminal liability’. 
Ordonanța de urgență a Guvernului nr. 71 din 30 mai 2022 pentru modificarea 
articolului 155 alineatul (1) din Legea nr. 286/2009 privind Codul penal 
(Government Emergency Order No 71/2022 of 30 May 2022 amending 
Article 155(1) of Law No 286/2009 on the Criminal Code; ‘Order No 71/2022’). 
Pursuant to the single article of Order No 71/2022, Article 155(1) of the Criminal 
Code is amended to read as follows: ‘the limitation period for criminal liability 
shall be interrupted by the performance of any procedural act in the case that, by 
law, must be notified to the suspect or defendant’. 
Decision No 67 of 25 October 2022 of the Court of Cassation. By that decision, 
delivered in an appeal in the interests of the law, the Court of Cassation held that 
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the rules on the interruption of the limitation period for criminal liability are 
substantive rules of criminal law, subject, as regards their application over time, to 
the principle of the operability of the criminal law, without prejudice to more 
lenient provisions of criminal law. 
Ordonanța de urgență a Guvernului nr. 34/2006 privind atribuirea contractelor 
de achiziție publică, a contractelor de concesiune de lucrări publice și a 
contractelor de concesiune de servicii (Government Emergency Order No 34/2006 
on the award of public procurement contracts, public works concession contracts 
and service concession contracts; ‘Order No 34/2006’); Article 2. 
Legea nr. 241/2005 pentru prevenirea și combaterea evaziunii fiscale (Law 
No 241/2005 on the prevention and combating of tax evasion). 
Legea nr. 656/2002 pentru prevenirea și sancționarea spălării banilor (Law 
No 656/2002 on the prevention and sanctioning of money laundering).  
Legea nr. 303/2022 privind statutul judecătorilor și procurorilor (Law 
No 303/2022 on the rules governing judges and prosecutors). 
Decision No 520 of 9 November 2022 of the Constitutional Court concerning 
objections of unconstitutionality in relation to Law No 303/2022 on the rules 
governing judges and prosecutors. 
Succinct presentation of the facts and procedure in the main proceedings 
1 By an indictment of 23 May 2018 of the Parchetul de pe lângă Tribunalul Brașov 
(Prosecutor’s Office attached to the Regional Court, Brașov), the defendants were 
committed for trial on charges of tax evasion and money laundering. 
2 In the first place, the defendant M.A.sr, was accused of having, in his capacity as 
director of the company S.A.S., recorded in the accounts, in 2008 and 2009, 
various tax invoices that had no basis in any real transaction and of having 
declared to the competent tax authorities expenses relating to those invoices, in 
order to escape an obligation to pay corporation tax amounting to 1 607 097 
Romanian lei (RON) (approximately EUR 382 000) and value added tax (VAT) 
amounting to RON 1 908 403.62 (approximately EUR 454 000). 
3 In the second place, it was asserted that the defendant M.A.sr, after obtaining the 
sum of RON 1 000 000 (approximately EUR 238 000) by committing an offence 
of tax evasion, had deposited that money on 26 January 2009 in a bank account 
belonging to him, from which, on the same day, he transferred it to an account of 
the company S.A.S., justifying it as a credit, so as to conceal the unlawful source 
of the money and evade prosecution. 
4 In the third place, the defendant S.A.C.S., a legal person, was accused of having 
issued, on 28 February 2009, a tax invoice in the sum of RON 3 602 843.70 and 
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VAT in the sum of RON 684 540.30 that had no basis in any real transaction, in 
the knowledge that the invoice was to be recorded in S.A.S.’s accounts, for the 
purposes of evading an obligation to pay corporation tax of RON 576 453. 
5 By a criminal judgment of 15 September 2022, the Regional Court, while finding 
the defendants guilty of the offences of tax evasion and money laundering, held 
that, following the delivery of Decisions Nos 297/2018 and 358/2022, there were 
no longer any cases in domestic law in which the limitation period for criminal 
liability was interrupted and that, in this case, the general limitation periods had 
expired. Consequently, the court ordered the criminal proceedings against each of 
the defendants to be discontinued. 
6 In the same judgment, the Regional Court upheld the civil action brought in the 
criminal proceedings and ordered the defendants M.A.sr. and S.A.S. jointly and 
severally to pay the civil party the sum of RON 11 554 347 (approximately 
EUR 2 751 000). 
7 Both the defendants and the Prosecutor’s Office attached to the Regional Court, 
Brașov, have brought an appeal against that judgment before the referring court, 
the latter taking issue with the decision to discontinue the criminal proceedings for 
the offences with which the defendants were charged and requesting that they be 
convicted. 
The essential arguments of the parties in the main proceedings 
8 The Direcția Națională Anticorupție (National Anti-Corruption Directorate; ‘the 
DNA’) requested the referring court to make a reference to the Court of Justice for 
a preliminary ruling in order to establish whether Article 325 TFEU, Decision 
2006/928 and Article 49 of the Charter must be interpreted as precluding a 
national provision such as Decision No 358/2022 from being left unapplied. 
According to the DNA, the application of that decision entails a systemic risk of 
impunity in cases where EU law is applicable. 
9 The defendants maintain that there is no rule of EU law that applies to the present 
case and they requested the court to reject the DNA’s request for a reference to be 
made to the Court of Justice. Moreover, the principle of the application of the 
more lenient criminal law is of constitutional status and takes precedence over any 
rule of EU law that might be relevant to the case. 
Succinct presentation of the reasoning in the reference for a preliminary 
ruling 
10 As a preliminary point, the referring court notes that the defendants claim that 
criminal liability has become time-barred as a result of the finding, in Decisions 
Nos 297/2018 and 358/2022, that the provisions of Article 155(1) of the Criminal 
Code are unconstitutional, those provisions providing for the interruption of that 
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limitation period as a result of the performance of a procedural act in the case. In 
other words, the absence, in the period between those two decisions, from the 
applicable legislation of any definition of the causes of interruption of the 
[limitation period] for criminal liability, as noted in Decision No 358/2022, in 
itself constitutes a more lenient criminal law that should be applied in favour of 
those defendants who have committed offences that were not finally judged before 
the date of publication of Decision No 297/2018. In those circumstances, the 
general limitation period (which is ten years under the applicable provisions of 
national law) would have expired in this case, if the causes of interruption of the 
limitation period are not taken into account, and that would result in the closure of 
the criminal proceedings and the impossibility of convicting the defendants. 
11 The referring court also emphasises that the present case concerns, inter alia, 
offences of tax evasion in the area of VAT, to which the provisions of EU law on 
the protection of the Union’s financial interests are applicable. 
The first and second questions referred for a preliminary ruling 
12 As regards the first question, the referring court considers that a solution in 
accordance with which the defendants would be relieved of criminal liability for 
the offences of tax evasion and fraud upon the European budget would generally 
undermine the values of the rule of law, enshrined in Article 2 TEU, and the 
principle of effective judicial protection of the rights conferred on individuals 
under the second paragraph of Article 19(1) TEU. In addition, such a solution 
would conflict, in particular, with recital 3 and Articles 1, 3 and 4 of Decision 
2006/928 – as regards the commitment to ensure greater transparency and 
efficiency in judicial proceedings and to prevent and combat corruption, including 
high-level corruption, in particular within local government – as well as 
Article 325(1) TFEU, Article 2(1) of the PFI Convention and Articles 2 and 12(1) 
of the PFI Directive, as regards the principle of effective and dissuasive penalties 
for criminal offences which affect the Union’s financial interests. Those 
provisions of EU law must be read in conjunction with Directive 2006/112 and 
must be referred to the last sentence of Article 49(1) of the Charter, which 
enshrines the principle of the more lenient criminal law. In this connection, the 
national court refers to the judgment of 26 February 2013, Åkerberg Fransson, in 
particular, paragraphs 24 to 31 thereof, and the judgment in Euro Box Promotion 
and Others, in particular, paragraph 194 thereof. 
13 As regards the second question, the referring court emphasises that the 
circumstances of the present case are by no means unique, but extremely 
widespread in the Romanian judicial system. At present, national case-law is 
unanimous in finding that criminal proceedings must be terminated if prosecution 
is time-barred. A significant number of cases could be in that situation. In this 
context, the referring court recalls the conclusions to that effect reached by the 
European Commission in its Report to the European Parliament and the Council 
of 22 November 2022 (COM(2022) 664 final), in which it observed that the 
situation in question could have ‘a particularly damaging impact on important 
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ongoing criminal cases’, possibly with ‘serious consequences’ arising from the 
‘removal of criminal liability in a substantial number of cases, while ‘the DNA 
estimates damage in these cases to [be] around EUR 1.2 billion and the total 
amount of bribery and influence peddling at around EUR 150 million’, and 
observed that ‘the risk that thousands of defendants would not face criminal 
liability has triggered major criticism in Romania’. 
14 In those circumstances, the referring court considers, with reference to the 
provisions of EU law mentioned in the second question, that the situation in the 
present case concerns the entire Romanian judicial system, in terms of its ability 
to observe the values of the rule of law and human rights in a society in which 
justice prevails, to ensure effective judicial protection in the areas covered by EU 
law and to observe the principle of since cooperation between the European Union 
and the Member States. The situation is at odds with mutual respect and assistance 
in carrying out the tasks which flow from the Treaties and with the efficiency of 
the judicial system in a country based on the rule of law, in terms of ensuring the 
predictability of the law and the provision of sufficient means for combating all 
crimes. The abovementioned provisions of EU law must also be referred to the 
last sentence of Article 49(1) of the Charter.  
15 Consequently, the case-law of the Court of Justice according to which the national 
authorities and courts are free to apply national standards of protection of 
fundamental rights, provided that the level of protection provided by the Charter 
and the primacy, unity and effectiveness of EU law are not compromised, is 
applicable in the present case. However, the referring court considers that, in 
situations such as that in the present case, that level of protection could be 
compromised and that the very nature of the applicable legal provisions 
unequivocally gives rise to a systematic risk of impunity, within the meaning of 
the judgment in Euro Box Promotion and Others. 
16 Next, beneath the heading ‘Opinion of the national referring court’, the referring 
court set out an extensive legal analysis of the situation at issue, which is common 
to the first two questions referred for a preliminary ruling, from the perspective of 
national law, EU law and ECHR law. 
17 Thus, the referring court begins by examining the case-law of the Constitutional 
Court on the time-barring of criminal liability, the application of the more lenient 
criminal law and the interpretation of the law by the ordinary courts. It then 
examines how those courts have applied that case-law and concludes that it has 
been rigorously followed. More specifically, the ordinary courts have complied 
with Decision No 297/2018, as they have understood it must be applied, and have 
narrowed the scope of the relevant legislation, taking the view that the limitation 
period for criminal liability is interrupted exclusively by acts that must be 
communicated to the defendant. Therefore, the ordinary courts’ interpretation has 
not been extra legem or contra legem, but intra legem, and has not overstepped 
the bounds of ordinary judicial interpretation. 
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18 The referring court then proceeds to analyse the case-law of the ECtHR on the 
time-barring of criminal liability and the principle that offences and penalties must 
be defined by law, and concludes that, since Decision No 297/2018 was delivered, 
the ordinary courts have complied with that case-law too. 
19 Thus, the ordinary courts have interpreted and applied the legislation on the 
interruption of the limitation period, as it has been interpreted by the 
Constitutional Court, in light of the European rule which enshrines the 
inevitability of the interpretation of any legislative provision, including provisions 
of criminal law. In the situation at issue, the legal form given to the relevant 
legislative text following its interpretation in conformity with Decision 
No 297/2018 was entirely consistent with the only legislative solution that was 
traditional under Romanian law and was favourable to the defendants, which is to 
say the interruption of the limitation period only by acts that must be 
communicated to the defendant, and not by acts of any kind. In that context, it 
may be concluded that the legislation, thus interpreted, was reasonably clear and 
predictable. 
20 The referring court then goes on to analyse the case-law of the Court of Justice on 
the time-barring of criminal liability and the principle of the more lenient criminal 
law, in particular, the judgments in Taricco and Others and M.A.S. and M.B. From 
that case-law it draws the conclusion that the Court of Justice has acknowledged 
that a national court may disapply provisions of national law which reduce a 
special limitation period if it finds that they would make it harder to combat 
serious fraud in a significant number of cases and would undermine the necessary 
application of effective and dissuasive criminal penalties in order to protect the 
Union’s financial interests. However, in the second of these judgments, the Court 
of Justice contemplated an exception for cases in which the disapplication of such 
provisions would entail a breach of the principle that offences and penalties must 
be defined by law, because of a lack of precision in the applicable law or because 
of the retroactive application of legislation that imposes conditions of criminal 
liability that are stricter than those which were in force at the time the offence was 
committed. The Court of Justice recalled the importance given, both in the EU 
legal order and in national legal systems, to the principle that offences and 
penalties must be defined by law, as to its requirements concerning the 
foreseeability, precision and non-retroactivity of the applicable criminal law. 
21 Nevertheless, the referring court emphasises that, by contrast with the cases in 
which those two judgments of the Court of Justice were delivered, the present case 
does not involve a criminal law that has been applied for a certain period of time, 
but concerns a decision of a constitutional court, which is not the same thing as a 
law. 
22 In addition, in the meantime, the PFI Directive was adopted, establishing a 
number of minimum conditions relating to penalties and limitation periods, which 
appear to be fulfilled by the national legislation. However, the referring court 
considers that, in order to comply with Articles 1 and 12 of that directive, the 
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relevant provisions of national law must be interpreted in a practical and 
teleological fashion. On the other hand, the practical effect of applying the 
relevant provisions in the manner in which the defendants have interpreted them, 
relying on decisions of the Constitutional Court, would be to halve the limitation 
period for criminal liability, in a wholly unexpected and unforeseeable manner, 
without the legislature having taken action to that effect. That said, the legislature 
did subsequently take action, but to the opposite effect, with Order No 71/2022. 
23 The referring court then makes a detailed analysis, from the perspective of 
national law, of the principle of the more lenient criminal law, and concludes that 
that principle is not applicable in the present case and that its non-application does 
not lead to any breach of the principle that offences and penalties must be defined 
by law. 
24 Lastly, the referring court examines the hypothesis that, during the relevant 
period, a more lenient law on the time-barring of criminal liability was in force, 
and takes the view that, in such a situation, the principle of the more lenient 
criminal law would conflict with the principle of equity and justice. It therefore 
analyses, on the one hand, the case-law of the Constitutional Court and domestic 
legislation and, on the other hand, the case-law of the Court of Justice and the 
ECtHR. It emphasises the need for those two principles to be weighed against 
each other and concludes that, in situations such as that in the present case, the 
scale should tip in favour of the principle of equity and justice. 
The third question referred for a preliminary ruling 
25 The referring court considers that, if the first two questions are answered in the 
affirmative, it will be possible to interpret Decisions Nos 297/2018 and 358/2022 
in a manner consistent with EU law. However, if it is held that an interpretation in 
conformity with EU law is not possible, the referring court considers that it will 
have to be authorised to disapply those decisions, since, under national law, any 
failure to follow such decisions can render the judge in the case liable to 
disciplinary measures. 
26 Indeed, although the legal provision which the Court of Justice analysed in its 
judgment of 22 February 2022, RS, which provided for the disciplinary liability of 
judges in the event of failure to comply with decisions of the Constitutional Court, 
has been repealed, the new law on the rules governing judges and prosecutors 
establishes that ‘the performance of duties in bad faith or with gross negligence’ is 
a disciplinary offence. By Decision No 520 of 9 November 2022, the 
Constitutional Court held, in substance, that the Constitution provided that its 
decisions were binding generally, and for that reason any infringement of that 
constitutional text in bad faith or with gross negligence constituted a disciplinary 
offence. 
27 That being so, the referring court considers that the same liability for failure to 
follow judgments of the Constitutional Court under the old legislation is to be 
PARCHETUL DE PE LÂNGĂ TRIBUNALE BRAȘOV 
 
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found also in the new legislation, and for that reason the third question remains 
pertinent, even now that new legislation in the area has been adopted. 
Request for an expedited procedure 
28 The referring court requests that the case be dealt with under the expedited 
procedure. It emphasises the gravity of the situation at issue and the fact that it is 
not an isolated situation, but widespread, appearing in a considerable number of 
cases, many of which fall within the EU’s areas of competence. 
29 The referring court states that it is aware that the large number of individuals or 
legal situations potentially concerned cannot, as such, constitute an exceptional 
circumstance such as to justify recourse to the expedited procedure. However, it 
emphasises the particular seriousness of the legal uncertainty which is the subject 
of this request for a preliminary ruling and the general consequences, both for the 
authorities competent to apply criminal law in conformity with EU law and for the 
rights of the individuals concerned. 
30 There is a risk that the existing uncertainty will impede the coherent and effective 
functioning of the criminal justice system, especially because many of the cases 
will already have been decided before the Court of Justice’s answer is received. 
That will lead to increased legal uncertainty, because other legal principles, such 
as the principle of res judicata, could also come into play. The referring court 
points out in this context that it is not mandatory, but merely optional for courts 
hearing similar cases to stay the proceedings and that, once a ruling on the 
substance of the case has been given, for the purposes of the application of the 
limitation period for criminal liability, it can be set aside only under the 
particularly restrictive conditions of an extraordinary appeal. 
31 The referring court emphasises that the particular gravity of the legal situation at 
issue was pointed up by the Commission in its Report to the European Parliament 
and the Council of 22 November 2022 (COM(2022) 664 final). That report states 
that, ‘according to an estimate published by the DNA, a total of 557 criminal cases 
under criminal prosecution or pending before the courts could consequently be 
terminated … While the exact prejudice would need to be assessed case by case, 
the DNA estimates damage in these cases to [be] around EUR 1.2 million and the 
total amount of bribery and influence peddling at around EUR 150 million.’ 
32 Finally, the referring court states that, as in the case in which the judgment of 
5 December 2017, M.A.S. and M.B., was delivered, under the expedited 
procedure, a swift answer will help remove these uncertainties and, since they 
relate to fundamental questions of national constitutional law and of EU law, the 
application of the expedited procedure would appear to be fully justified.