Order;Summary — ECLI:EU:C:2024:42
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-131/23 ‒ 1 
Case C-131/23 
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: 
3 March 2023 
Referring court: 
Curtea de Apel Brașov (Romania) 
Date of the decision to refer: 
2 March 2023 
Appellants: 
C.A.A. 
C.V. 
Respondent: 
Unitatea Administrativ Teritorială Județul Brașov  
Interested party: 
Parchetul de pe lângă Înalta Curte de Casație și Justiție – Direcția 
Națională Anticorupție – Serviciul Teritorial Brașov 
  
Subject matter of the main proceedings 
Extraordinary appeal (extraordinary petition) seeking the setting aside of the final 
judgment of the referring court sentencing the appellants to terms of 
imprisonment. 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 result in the convictions being quashed and would make it impossible to 
convict the appellants, 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-131/23 
 
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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 the second subparagraph 
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’), 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. Should the second subparagraph of Article 19(1) [TEU], Article 325[(1)] 
TFEU, Article 2(1) of the PFI Convention and Commission Decision 
2006/928/EC be interpreted as precluding the application of a decision of the 
Constitutional Court finding, retroactively, that there were no cases of interruption 
of the limitation period, despite the existence of a body of generalised, long-
standing case-law of the national courts, including the highest courts, where the 
application of that decision would entail a systemic risk of impunity as a result of 
the re-opening of a significant number of criminal cases in which final judgment 
has been given and the delivery, in extraordinary appeal proceedings, of a decision 
to discontinue criminal proceedings as a result of a finding that the limitation 
period has expired? 
2. Does the principle of the primacy of EU law, with reference to Commission 
Decision 2006/928/EC and the third sentence of Article 49(1) of the Charter of 
Fundamental Rights of the European Union (the principle of the retroactivity of 
the more lenient criminal law), preclude any re-examination, at the stage where a 
sentence is being enforced, in extraordinary appeal proceedings, of the limitation 
period for criminal liability, where the lodging of the extraordinary appeal is a 
consequence of a decision of the Constitutional Court, delivered after the 
judgment passing sentence has become final, which overturns a body of 
generalised and long-standing case-law of the national courts and where the 
dissuasiveness and effectiveness of the sentence and the certainty and stability of 
legal relations are thereby affected? 
3. Does the principle of the primacy of EU law, with reference to Article 53 of 
the Charter of Fundamental Rights of the European Union, permit the application 
of national standards of protection, such as that at issue in the main proceedings, 
guaranteed by the national law of the Member State and arising from the effects 
attributed to decisions of the Constitutional Court, where the effective application 
of EU law in the Member State is thereby undermined? 
Provisions of EU law and case-law of the Court of Justice relied on 
The second subparagraph of Article 19(1) TEU; 
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Article 325(1) TFEU; 
Convention drawn up on the basis of Article K.3 of the Treaty on European 
Union, Article 2(1); 
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; 
Directive 2004/18/EC of the European Parliament and of the Council of 31 March 
2004 on the coordination of procedures for the award of public works contracts, 
public supply contracts and public service contracts; 
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 
26 February 2013, Melloni (C-399/11), EU:C:2013:107; judgment of 5 December 
2017, M.A.S. and M.B. (C-42/17), EU:C:2017:936. 
Provisions of national law and national case-law relied on 
Constituția României (Romanian Constitution, ‘the Constitution’), 
Article 20(2), 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 suspect or 
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, 
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 154 of 
that code establishes the limitation periods for criminal liability and Article 155 
thereof provided that ‘the limitation period for criminal liability shall be 
interrupted by the performance of any procedural act in the case’. 
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’). 
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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’. 
Codul de procedură penală (Code of Criminal Procedure), Article 426, point (b), 
in accordance with which an extraordinary appeal may be brought against a final 
criminal judgment where a defendant has been convicted despite there being 
evidence of the existence of a cause for discontinuance of the criminal 
proceedings. 
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’), which transposes into 
national law, inter alia, Directive 2004/18. Article 2 provides that a particular 
objective of the emergency order is to promote competition between economic 
operators and that the principles on which the award of public procurement 
contracts is based include transparency and the effective use of funds. 
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 essence, 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 reaching that conclusion, the 
Constitutional Court held, in essence, that the provisions of Article 155(1) of the 
Criminal Code lacked foreseeability, as well as being contrary to the principle that 
criminal offences 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, meaning that he or she could remain unaware of the fact that the 
limitation period has been interrupted and that a new limitation has begun in 
relation to his or her criminal liability. It also held that the previous legislative 
solution, provided for in Article 123(1) of the old Criminal Code, satisfied the 
requirements of foreseeability imposed by the provisions of constitutional law 
examined in these proceedings, 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 suspect or the defendant, of an act which, by law, 
had to be notified. 
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 
terms, a simple/extreme decision, inasmuch as … the Court objected to the only 
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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 foreseeability, since it provided for 
interruption of the limitation period for criminal liability only by the performance, 
in a case in which the person concerned was the suspect or the defendant, of an act 
which, by law, had to be notified. The Court would observe, however, that the 
statement 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 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 objected to 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, either 
through notification or through that person’s being present when the act is 
performed, it did not require that all acts notified to the suspect or defendant or all 
acts involving 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 
foreseeable manner the cases in which the limitation period for criminal liability 
would be interrupted. … The Court finds that such an 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 Înalta Curțe de Casație 
și Justiție (High Court of Cassation and Justice, Romania; ‘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 rationale 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 infringed 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’. 
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Decision No 67 of 25 October 2022 of the Court of Cassation. In this decision, 
delivered in an appeal in the interests of the law, the Court of Cassation held that 
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. It also held that a court deciding an 
extraordinary appeal for annulment based on the effects of Decisions Nos 
297/2018 and 358/2022 may not re-examine the limitation period for criminal 
liability if an appeal court had discussed and considered the effect of that ground 
for discontinuance of the criminal proceedings in the course of those proceedings 
prior to Decision No 358/2022. In the statement of reasons prefacing that decision, 
the Court of Cassation held, inter alia, that, if a favourable rule held to be 
unconstitutional can have retroactive effect, then, in turn, a rule that becomes 
more favourable as a result of a decision finding it unconstitutional (in whole or in 
part) can have retroactive effect, on the basis of the principle of the more lenient 
criminal law. Decisions of the Constitutional Court may have the capacity to 
reconfigure the content of a provision of criminal law, or even to produce effects 
equivalent to those of a decriminalising law: in both cases the provisions held to 
be unconstitutional are removed from the body of applicable legislation. In the 
event that a provision or part of a legal rule is struck down on being declared 
unconstitutional, the absence of rules governing the matter in question or the 
partial rule that has remained in force may fall within the scope of the application 
of the more lenient criminal law. 
Succinct presentation of the facts and procedure in the main proceedings 
1 By a criminal judgment of 30 April 2020, the Tribunalul Brașov (Regional Court, 
Brașov, Romania; ‘the Regional Court’) sentenced the appellant C.A.A., who had 
occupied a senior position within a local administrative authority, to a term of 
imprisonment of 7 years and 10 months for the offences of influence peddling, 
accepting bribes and abuse of office. In addition to the main sentence, the 
Regional Court imposed an ancillary penalty prohibiting the appellant, for a 
period of five years from the end of his main sentence, from exercising the right to 
be elected to serve within a public authority or to any other public office, the right 
to take up a position involving the exercise of public powers and the right to take 
up the duties which had enabled him to commit the offences. In the same 
judgment, the appellant C.V. was sentenced to a term of imprisonment of two 
years for abuse of office, that sentence being suspended and C.V. kept under 
supervision. 
2 As regards the offence of abuse of office that C.A.A. had committed, the Regional 
Court held that, performing his duties improperly, C.A.A. had, in breach of the 
legislation on public procurement procedures, approved the amendment of two 
public procurement contracts, thereby causing losses to the local budget of a 
territorial administrative unit of RON 2 228 483.37 and RON 18 042 939.27 
respectively, including value added tax (VAT). 
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3 As regards the offence of accepting bribes committed by the same appellant, the 
court held that, in the course of 2006 and 2007, he had received from an 
individual the sum of RON 1 248 704.95 so that, in his capacity as chairman of a 
public authority, he would perform his duties improperly so as to favour a 
company belonging to the individual in question in the award of public 
procurement contracts. 
4 The offence of influence peddling committed by the same appellant consisted in 
his having promised another person that he would use the influence that he, as 
chairman of a public authority, had over certain subordinates who were members 
of a jury in a public procurement procedure so as to induce them to award a public 
contract worth more than RON 20 million to the company owned by the same 
individual, in return for which he asked that he be paid a portion of that sum. 
5 The offence of abuse of office that the appellant C.V. had committed consisted in 
the fact that, between November 2006 and May 2007, acting in his capacity as 
director of a department of the public authority headed by C.A.A., he had, on 
C.A.A.’s instructions and knowingly furthering the interests of a commercial 
company, improperly performed his duties in relation to the performance of a 
public procurement contract. He had signed supporting documents that had 
resulted in payments being made for works that had not actually been carried out. 
The local budget of a territorial administrative unit had thereby suffered a loss of 
RON 1 012 612.16. 
6 The Regional Court’s judgment became final by a criminal ruling of 1 February 
2022 of the Curtea de Apel Brașov (Court of Appeal, Brașov, Romania). On the 
same day a warrant was issued for the enforcement of the sentence passed on the 
appellant C.A.A. The appeal in cassation brought against that latter decision was 
dismissed by the Court of Cassation by decision of 23 November 2022. 
7 C.A.A. and C.V. have brought before the referring court an appeal against that 
judgment, seeking that it be set aside on the ground that they were convicted 
despite the fact that it was demonstrated that there was a cause for discontinuance 
of the criminal proceedings, namely the time-barring of criminal liability, in 
which connection they rely on Decisions Nos 297/2018 and 358/2022. 
The essential arguments of the parties in the main proceedings 
8 The Parchetul de pe lângă Înalta Curte de Casație și Justiție – Direcția Națională 
Anticorupție – Serviciul Teritorial Brașov (Prosecutor’s Office attached to the 
High Court of Cassation and Justice – National Anti-Corruption Directorate – 
Brașov Regional Department; ‘the DNA’) requested the referring court to make a 
reference to the Court of Justice for a preliminary ruling, maintaining that 
Decisions No 297/2018 and 358/2022 affect Romania’s entire justice system. 
9 According to the DNA, the removal of the special limitation period does not 
reflect the legislature’s intention but is the consequence of decisions of the 
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Constitutional Court, an institution outside the judicial system whose members are 
appointed, as to two thirds, by the legislature and, as to one third, by the President 
of Romania. Applying those decisions, and as a result of the legislature’s inaction, 
national courts are compelled to apply a rule of substantive law the effect of which 
is to remove liability for the commission of criminal offences, which amounts to a 
mechanism for systemic impunity in respect of any acts that constitute a criminal 
offence, regardless of their nature or seriousness. These include fraud affecting the 
financial interests of the European Union and corruption, in relation to which 
Romania has given express and distinct commitments that are governed by EU 
law. 
10 The DNA has thus argued that it is necessary to establish whether the non-
application of Decision No 358/2022 would be in conformity with EU law and 
whether the disapplication of provisions of national law governing limitation 
periods would infringe the last sentence of Article 49(1) of the Charter. 
11 The appellants have argued, first of all, that a reference for a preliminary ruling in 
the present case would be inadmissible because decisions of the Constitutional 
Court are binding on the ordinary courts and judgments of the Court of Justice are 
capable of producing effects only as to the future and can have no effect on the 
present dispute. They have also asserted that the questions proposed by the DNA 
strictly relate to the application of national law, not the application of EU law. 
Relying on the PFI Directive they have also argued that that directive establishes 
minimum limitation periods shorter than those provided for by Romanian law. 
Lastly, they have emphasised that, according to Article 20 of the Romanian 
Constitution, international human rights treaties take precedence over national law 
only where they contain provisions which are more favourable to citizens, but that 
is not the situation in the present case. 
Succinct presentation of the reasoning in the reference for a preliminary 
ruling 
12 The referring court states, by way of introduction, that an extraordinary appeal has 
been brought before it, challenging a final judgment convicting the appellants, in 
which the appellants rely on Decisions Nos 297/2018 and 358/2022 and seek, at 
the stage where their sentences are being enforced, the application of the more 
lenient criminal law and the discontinuance of the criminal proceedings against 
them on the ground that their criminal liability became time-barred during the 
course of the proceedings on the substance of the case. 
13 The referring court explains that the general limitation periods for criminal 
liability for the offences committed by the appellants are ten years, for C.A.A., 
and eight years, for C.V., from the date on which the offences were committed. 
However, having regard to the date on which the offences for which the appellants 
were tried were committed, if no account is taken of the causes of interruption of 
those limitation periods, they would already have expired by the time the 
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judgment convicting the appellants became final. Therefore, if the extraordinary 
appeals are upheld, the effects of the judgment convicting the appellants would be 
lost and it would be impossible to continue to enforce the sentences imposed by 
that judgment. 
14 The referring court sets out at length the national legal context prior to Decision 
No 358/2022 and emphasises, first, the fact that the case-law of the Romanian 
courts – according to which, following the publication of Decision No 297/2018, 
the limitation period for criminal liability could be interrupted only by the 
performance of an act that had to be notified to the suspect or defendant – was 
based not only on the wording of that decision, but also on the wording of other 
decisions of the Constitutional Court preceding and following Decision 
No 297/2018 and, secondly, that that case-law was generalised. It also emphasises 
that Decision No 358/2022 is unique in the case-law of the Constitutional Court, 
which had never before held the same legal text to be unconstitutional on more 
than one occasion. 
15 As regards the first question referred for a preliminary ruling, the referring court 
analyses the situation at issue in this case, first of all, in the light of Romania’s 
obligations under Decision 2006/928 and, in particular, its obligation to combat 
corruption offences effectively and appropriately. 
16 In this connection, the referring court states that, although the Commission’s 
Report of 22 November 2022 to the European Parliament and the Council on 
Progress in Romania under the Cooperation and Verification Mechanism 
[(COM(2022) 664 final)] concluded that progress was sufficient to meet the 
commitments Romania had made at the time of its accession to the European 
Union, it also noted that it was important that Romania should continue to work 
consistently on translating the remaining commitments specified in the report into 
concrete legislation and on continued implementation, within the annual Rule of 
Law Report cycle and with the support of other parts of the EU rule of law 
toolbox. 
17 Consequently, the measures imposed on the Romanian State by Decision 
2006/928, in particular in points 1, 3 and 4 of the annex to the report, have not yet 
been lifted, since that decision has not been repealed and may still be relied on in 
requests for a preliminary ruling. Moreover, even if Decision 2006/928 were to be 
repealed, questions for a preliminary ruling on the interpretation of that decision 
would remain admissible, in so far as the legal situation giving rise to the question 
of law requiring clarification from the Court of Justice arose while that decision 
was in force. 
18 Against that background, the referring court emphasises that, as a result of 
Decision No 358/2022, the limitation periods for criminal liability were halved, in 
an untimely manner and without any intervention on the legislature’s part. 
Decision No 358/2022 affects complex cases in particular, including cases of 
fraud affecting the interests of the European Union and cases of high-level 
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corruption within local government. In such cases complex criminal investigations 
are needed and numerous procedural steps must be taken, in the course of both the 
criminal investigation and the trial, and this results in criminal proceedings taking 
longer, in the interests of the sound administration of justice. 
19 Furthermore, the effect of Decision No 358/2022 is not only the discontinuance of 
criminal proceedings in a particularly large number of cases in which offences that 
have caused significant damage were being tried, but also the reopening of cases 
that had been finally adjudicated between the date on which Decision 
No 297/2018 was published (25 June 2018) and the date on which Order 
No 71/2022 entered into force (30 May 2022). In these circumstances it is the 
effectiveness of the entire justice system that suffers, along with the certainty and 
stability of legal relations, and the situation calls for a comparative analysis of the 
principles of res judicata, justice and fairness, on the one hand, and the principle 
of the more lenient criminal law, on the other. 
20 In the second place, the referring court analyses the situation in the present case 
by reference to the provisions of Article 19(2) TEU, Article 325 TFEU and the 
PFI Convention. It points out that the present case concerns the commission, by 
two public officials, of offences of corruption in connection with the conclusion of 
public procurement contracts in breach of the provisions of Order No 34/2006, 
which transpose into national law, in particular, Directive 2004/18. It maintains 
that the provisions of EU law mentioned, which concern the protection of the 
European Union’s financial interests, are applicable in the light of various 
considerations. 
21 First, the funds used to finance the public procurement contracts in question came 
from budgets that included value added tax. Second, observance of the principle of 
transparency and efficiency in the use of public funds ensures genuine 
competition in the award of public contracts. Any breach of those principles not 
only diminishes the availability of State funds and disrupts fair access to public 
services, but also affects the budget of the European Union, which is financed, 
inter alia, by sums paid by the Member States that are calculated by applying a 
percentage to the gross domestic product of each country according to its level of 
prosperity. Therefore, acts which adversely affect the national budget will 
obviously have an impact on the amount of the Member State’s contribution to the 
Union’s budget, and thus implicitly affect the financial interests of the European 
Union. Third, as regards the Member States’ obligation to enact effective and 
dissuasive penalties for serious fraud and serious corruption affecting the financial 
interests of the European Union, provided for in Article 325(1) TFEU and 
Article 2(1) of the PFI Convention, that obligation would be breached in the 
present case if it were possible for an individual who has been sentenced to a term 
of imprisonment of 7 years and 10 months for offences committed while he 
occupied an important managerial position within a local authority in Romania to 
be released from prison after serving only one year. 
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22 As regards the systemic risk of impunity created by Decisions Nos 297/2018 and 
358/2022, the national court refers to the Commission’s report of 22 November 
2022, mentioned earlier, which 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 billion and the total amount of bribery and influence 
peddling at around EUR 150 million … The risk that thousands of defendants 
would not face criminal liability has triggered major criticism in Romania.’ 
23 In those circumstances, the referring court suggests that the answer to the first 
question referred for a preliminary ruling should be that, if Decision No 358/2022 
takes effect, the obligations imposed on the Member State by the provisions 
expressly mentioned in that question could be breached by the creation of a 
systemic risk of impunity and the undermining of the effectiveness and 
dissuasiveness of the penalties imposed in a large number of cases. 
24 As regards the second question referred for a preliminary ruling, the referring 
court states that time-barring is a matter of substantive criminal law, governed by 
the principle of the more lenient criminal law. As the Court of Cassation 
concluded in Decision No 67/2022, that principle applies equally to the situation 
at issue in this case following the finding that Article 155(1) of the Criminal Code 
was unconstitutional. Therefore, in the period from 25 June 2018 to 30 May 2022, 
by virtue of the effects of Decisions Nos 297/2018 and 358/2022, that provision 
constitutes a more lenient criminal law. 
25 Nevertheless, the referring court emphasises that, under Romanian law, at the 
stage when a sentence is being enforced the more lenient criminal law is 
considered to be solely that which provides for a lighter sentence, whereas 
alteration of the conditions for convicting a defendant is not regarded by the 
legislature as a law of that type. The referring court therefore considers that the 
case-law of the Court of Justice resulting from its judgment of 5 December 2017, 
M.A.S. and M.B., is not applicable in the present case on account of the significant 
differences between the factual and legal contexts of the two cases. Indeed, first of 
all, while the main dispute in the case which gave rise to the Court’s judgment of 
5 December 2017 had not been finally resolved, there is, in the present case, a 
final decision convicting the appellants. Secondly, by contrast with that earlier 
case, the present case does not concern aggravation of the appellants’ criminal 
liability, but on the contrary a substantial alleviation thereof. 
26 The referring court then states that the limitation periods provided for in the PFI 
Directive are recommended minimum periods and do not prevent a Member State 
from providing for a longer limitation period in its national law. In addition, legal 
provisions on limitation must satisfy the requirements of clarity and foreseeability. 
Decision No 358/2022, however, impinges on the very foreseeability of the 
application of Article 155(1) of the Criminal Code, given the widespread judicial 
practice that preceded the publication of that decision. Moreover, the PFI 
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Directive cannot be relied upon to justify the untimely and retroactive halving of 
the limitation period, both in cases still pending and in cases that have been finally 
decided. 
27 The referring court therefore suggests that the answer to the second question 
should be that, in the circumstances of the present case, the third sentence of 
Article 49(1) of the Charter and the principle of the primacy of EU law preclude 
the reopening of cases that have already been finally adjudicated if the conviction 
is the result of generalised, consistent and settled case-law that the Constitutional 
Court has found to be incompatible with the Constitution. 
28 As regards the third question referred for a preliminary ruling, the referring court 
states that, in accordance with Article 20(2) of the Constitution, if national law 
contains provisions that are more favourable, those provisions take precedence 
over rules of international law, and so too over EU law. That being so, it is 
necessary to ascertain whether the standards of protection provided for by national 
law are compatible with the principle of the primacy of EU law. 
29 In the present case, the national standard of protection arises from Decisions Nos 
297/2018 and 358/2022 and the effect of its application would be the non-
enforcement of main sentences and ancillary penalties imposed by a final 
judgment. The referring court emphasises that the purpose of such penalties is to 
protect the image of public institutions, by preventing individuals who have been 
convicted of offences of a certain gravity from taking up important public duties. 
30 The referring court considers that the criminal penalties provided for by national 
law do not satisfy the EU-law requirements of effectiveness and dissuasiveness. 
Article 53 of the Charter permits the application of higher national standards of 
protection only if the fundamental principles of EU law, namely its primacy, unity 
and effectiveness, are not undermined. 
Request for an expedited procedure 
31 The referring court requests that the case be dealt with under the expedited 
procedure. In the first place, it emphasises that Decisions Nos 297/2018 and 
358/2022 are liable to cause a widespread crisis in Romania, consisting in the 
delivery of decisions annulling the effects of final judgments convicting 
defendants, with no possibility of subsequent review or alteration of those 
decisions. 
32 In the second place, the application of those decisions could result in 
discrimination between individuals whose convictions are quashed before an 
answer is given to the questions referred in these proceedings for a preliminary 
ruling and those whose extraordinary appeals are decided after the Court of Justice 
has given its ruling. 
UNITATEA ADMINISTRATIV TERITORIALĂ JUDEȚUL BRAȘOV 
 
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33 In the third place, the setting aside of final judgments also implies the annulment 
of measures for the enforcement of such judgments and the withdrawal of 
European arrest warrants, which could seriously and irreparably undermine the 
principle of sincere cooperation and the principle of mutual trust between the 
Romanian State and the Member States of the European Union. 
34 In the fourth place, the particular situation which the national courts face creates 
legal uncertainty which touches on fundamental questions of EU law. 
35 In those circumstances, the referring court considers it necessary in this case for 
the questions referred for a preliminary ruling to be answered quickly. It also 
states that, although C.A.A. was, at the time when he lodged his appeal, in prison 
serving the sentence of 7 years and 10 months imposed on him by the judgment 
which he seeks to have set aside, after the present reference was made to the Court 
of Justice for a preliminary ruling, his application for suspension of the 
enforcement of that sentence was granted. From this perspective too, the legal 
position of that appellant needs to be clarified as soon as possible. 
Request for the joinder of cases 
36 The referring court requests that the present case be joined with Cases C-74/23, 
C-75/23 and C-107/23, since all these cases involve the same question of law, 
from the perspective of the interpretation of EU law.