Judgment;Abstract — ECLI:EU:C:2021:1034
Date: 2021-12-21
Language of the case: Romanian
Court formation: Grand Chamber
Subject matter: Budget;Financial provisions;Provisions governing the Institutions;Own resources;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Romania

Summary C-357/19 - 1 
Case C-357/19 
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:  
6 May 2019 
Referring court:  
Înalta Curte de Casație și Justiție (Romania) 
Date of the decision to refer:  
6 May 2019 
Applicants:  
Parchetul de pe lângă Înalta Curte de Casație și Justiție – Direcția 
Națională Anticorupție 
PM and Others 
Defendants:  
QN and Others 
Autoritatea Națională pentru Turism 
Agenția Națională de Administrare Fiscală 
SC Euro Box Promotion SRL 
      
Subject matter of the main proceedings 
Extraordinary action for annulment of the decision of 5 June 2018 of a Chamber 
of the Înalta Curte de Casație și Justiție (High Court of Cassation and Justice, 
Romania; ‘the ICCJ’) composed of five judges. 
Subject matter and legal basis of the request for a preliminary ruling 
An interpretation is requested, under Article 267 TFEU, of Article 19(1) TEU, 
Article 325(1) TFEU, Article 1(1)(a) and (b) and Article 2(1) of the Convention 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-357/19 
 
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drawn up on the basis of Article K.3 of the Treaty on European Union, on the 
protection of the European Communities’ financial interests, and Article 47(2) of 
the Charter of Fundamental Rights of the European Union. It is also requested that 
the present request for a preliminary ruling be determined pursuant to the 
expedited procedure. 
Questions referred 
1. Must Article 19(1) of the Treaty on European Union, Article 325(1) of the 
Treaty on the Functioning of the European Union, Article 1(1)(a) and (b) 
and Article 2(1) 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, and the principle of legal certainty be 
interpreted as precluding the adoption of a decision by a body outside the 
judicial system, the Curtea Constituțională a României (Constitutional Court 
of Romania), which adjudicates on the lawfulness of the composition of 
Chambers hearing the case, in that way creating the conditions for allowing 
extraordinary actions brought against final judgments delivered in a given 
period? 
2. Must Article 47(2) of the Charter of Fundamental Rights of the European 
Union be interpreted as precluding a finding by a body outside the judicial 
system — binding under national law — of the lack of independence and 
impartiality of a Chamber which includes a judge responsible for judicial 
administration who has not been randomly appointed, but on the basis of a 
transparent rule known to the parties and unchallenged by them, applicable 
to all the cases dealt with by that same chamber? 
3. Must the primacy of EU law be interpreted as allowing the national court to 
disapply a decision of the constitutional court, handed down in a case 
concerning a constitutional dispute, binding under national law? 
Provisions of EU law and case-law of the Court of Justice relied on 
Article 19(1) TEU 
Article 325(1) TFEU 
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 
PFI Convention’), Article 1(1)(a) and (b) and Article 2(1) 
Charter of Fundamental Rights of the European Union (‘the Charter’): Article 
47(2) 
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Council Decision 2007/436/EC, Euratom of 7 June 2007 on the system of the 
European Communities’ own resources 
Judgment of 26 February 2013, Åkerberg Fransson, C-617/10, EU:C:2013:105; 
judgment of 5 December 2017, M.A.S. and M.B., C-42/17, EU:C:2017:936; 
judgment of 5 June 2018, Kolev and Others, C-612/15, EU:C:2018:392; judgment 
of 2 May 2018, Scialdone, C-574/15, EU:C:2018:295; judgment of 8 September 
2015, Taricco and Others, C-105/14, EU:C:2015:555; judgment of 20 March 
2018, Di Puma, C-596/16 and C-597/16, EU:C:2018:192; judgment of 
27 February 2018, Associação Sindical dos Juízes Portugueses, C-64/16, 
EU:C:2018:117; judgment of 19 September 2006, Wilson, C-506/04, 
EU:C:2006:587; judgment of 16 February 2017, Margarit Panicello, C-503/15, 
EU:C:2017:126; judgment of 30 September 2001, Köbler, C-224/01, 
EU:C:2003:513; judgment of 10 July 2014, Impresa Pizzarotti, C-213/13, 
EU:C:2014:2067; judgment of 9 March 1978, Simmenthal, 106/77, 
EU:C:1978:49; judgment of 22 June 2010, Melki and Abdeli, C-188/10 and 
C-189/10, EU:C:2010:363. 
National provisions relied on 
Legea nr. 135/2010 privind Codul de procedură penală (Law No 135/2010 
laying down the Code of Criminal Procedure), as amended by Legea nr. 255/2013 
(Law No 255/2013) and by Ordonanța de urgență a Guvernului României 
nr. 18/2016 (Decree Law No 18/2016). Article 426(1)(d) provides for the 
possibility of bringing an action to set aside final judgments in criminal 
proceedings in the event that the composition of the appeal court is contrary to 
law. Article 432(1) lays down the effects of upholding such an action, providing 
that the contested judgment must be set aside and the action re-examined. 
Regulamentul privind organizarea și funcționarea administrativă a ÎCCJ 
(Regulation on the organisation and administrative functioning of the ICCJ), 
adopted by the management committee of the ICCJ, on the basis of Law 
No 304/2004, republished, as amended by Decision No 3/2014 of the ICCJ (‘the 
Regulation on organisation and administrative functioning’). 
Article 28 provides that, in the context of the ICCJ, Chambers are to comprise five 
judges with jurisdiction laid down by law, and such Chambers are to be presided, 
as applicable, by the President, the Vice-Presidents, the President of the Criminal 
Division or the most senior member. 
Article 29(1) lays down the procedure for establishing the five-judge Chambers in 
criminal matters. Thus, the President, or in his absence, one of the Vice-Presidents 
of the ICCJ is to appoint each year, by lot and at a public hearing, four or, if 
necessary, five judges from the Criminal Division of the ICCJ for each Chamber. 
Judgment No 685 of 7 November 2018 of the Curtea Constituțională a 
României (Constitutional Court, Romania) found that there was a legal dispute of 
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a constitutional nature between the Parliament, on the one hand, and the ICCJ, on 
the other, due to the fact that only four of the five members of the five-judge 
Chamber were appointed by drawing lots, contrary to the provisions of Article 32 
of Legea nr. 304/2004 privind organizarea judiciară (Law No 304/2004 on the 
judiciary). As regards the effects of such a finding, the Constitutional Court stated 
that the above-mentioned judgment is also applicable to completed cases, to the 
extent to which the time limits for bringing an extraordinary action have not yet 
expired for the parties. 
Legea nr. 303/2004 privind statutul judecătorilor și procurorilor (Law 
No 303/2004 on the status of judges and prosecutors), republished, provides, in 
Article 99(1)(ș) that the failure to comply with the decisions of the Constitutional 
Court is a disciplinary offence. 
Brief outline of the facts and the main proceedings 
1 By judgment of 5 June 2018, a five-judge Chamber of the ICCJ ruled on the 
appeal against the judgment of the ICCJ – Criminal Division of 28 March 2017. 
That chamber comprised the President of the Criminal Division, in addition to 
four other judges appointed by lots, in accordance with the Regulation on 
organisation and administrative functioning. By that decision convictions were 
imposed, which have become final, for certain acts of corruption, abuse of office 
and tax evasion. 
2 As regards the acts of corruption, it was held, in essence, that during the period 
2010 to 2012 Ms PM, a minister, coordinated a mechanism whereby PM and 
those close to her (UR – personal adviser to the minister, VS – director of a 
national investment body, SP – permanent secretary to the minster and RO – 
personal assistant) received sums of money from the representatives of certain 
commercial companies in order to guarantee those companies the timely payment 
of the works carried out in the context of programmes financed from the 
ministry’s budget, in a context in which the budget amount was notably reduced 
and the payment of the works significantly delayed. 
3 As regards the acts of abuse of office, it was found that, in the course of 2011, Ms 
PM, in her capacity as minister, had the Ministry for Regional Development and 
Tourism award a contract for services to SC Europlus Computers SRL; the 
contract concerned the provision of services to promote Romania in the context of 
the events during the international professional boxing gala organised by the 
Romanian boxing federation. 
4 In fact, the sporting event was organised by SC Europlus Computers SRL, run by 
TQ, which, through the award of the contract for advertising services, benefited 
from public funds in an amount of 8 116 800 Romanian lei (RON) for organising 
a commercial event for which it took all the proceeds. 
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5 It was, therefore, held that the public funds were used having recourse to unlawful 
arrangements and that the contract was awarded in breach of the legislation on 
public contracts, since services were purchased which did not fall within the 
permitted categories of expenditure for EU-funded programmes in the context of 
the project ‘Promotion of the tourist brand of Romania’, by means of the Regional 
Operational Programme 2007-2013. Those circumstances led to the payment of 
the amounts being refused by the European funds managing authority, so that the 
amounts which ought to have been reimbursed through European funds were 
charged in full to the State budget, entailing a loss to the Ministry of Regional 
Development and Tourism of RON 8 116 800. 
6 As regards the acts of tax evasion, it was found that, for the purposes of reducing 
the amount of the taxes owed to the State budget in respect of the proceeds 
obtained from the abovementioned events, Mr TQ included in SC Europlus 
Computers SRL’s accounts documentation issued by front companies which 
certify fictional expenses, allegedly incurred for advertising and consultancy 
services; this gave rise to damage in the amount of RON 646 838, of which 
RON 388 103 by way of VAT, and RON 90 669, of which RON 54 402 by way of 
VAT. 
7 After the judgment became final, Mr RO’s three-year term of imprisonment and 
Mr TQ’s five-year term of imprisonment were activated, whereas the six-year 
term of imprisonment imposed on Ms PM could not be activated, since she had 
left Romanian territory, being subsequently arrested in Costa Rica for the 
purposes of extradition to Romania. The other persons convicted, namely UR, VS, 
QN and SP, received suspended terms of imprisonment.  
8 Following the Constitutional Court’s judgment of 7 November 2018, the 
applicants brought an extraordinary action for annulment, seeking to have the 
ICCJ’s judgment of 5 June 2018 set aside and their appeals re-examined. The 
applications lodged by the applicants were held admissible and were joined in 
order to be dealt with together. Meanwhile, the execution of the terms of 
imprisonment was suspended, pending judgment in the extraordinary action for 
annulment brought in relation to RO, TQ and PM, who were released from prison. 
9 In the present case, the referring court is called upon to decide on the merits of the 
grounds put forward and either dismiss the extraordinary action, and thereby 
uphold the judgment under appeal, or allow the action, and thereby set aside the 
judgment imposing conviction and re-examine the appeals. 
The essential arguments of the parties in the main proceedings 
10 The parties, with the exception of Parchetul de pe lângă Înalta Curte de Casație și 
Justiție (the public prosecution office attached to the High Court of Cassation and 
Justice, Romania), have argued that EU law is not applicable to the present case. 
Consequently, having regard to the subject matter of the case, and the binding 
nature of the judgments of the Constitutional Court, which cannot be excluded by 
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a judgment of the Court of Justice of the European Union, national-law provisions 
alone are applicable to the present case. 
Succinct presentation of the reasons for the reference 
11 By the questions referred for a preliminary ruling, the referring court asks, in 
essence, whether, in view of the principle that criminal penalties must be effective 
in cases of serious fraud, the provisions whose interpretation is requested and the 
principle of legal certainty, read in the light of the Charter, preclude a national 
court from applying a decision of an authority which does not form part of the 
judicial system and which adjudicates on the merits of an extraordinary action, in 
the sense that it requires the judgments which have become final before that 
decision was handed down to be set aside and calls into question the initial 
indictment, remitting the case for appeal. 
12 Thus, in the Court of Justice’s case-law, it has been held that Article 325(1) TFEU 
requires the Member States to counter fraud and other illegal activities affecting 
the financial interests of the European Union itself through effective deterrent 
measures and, given that the European Union’s own resources include in 
particular, as provided in Article 2(1)(b) of Decision 2007/436, revenue from the 
application of VAT, 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 (Åkerberg Fransson judgment). 
13 It has also been held that although the Member States enjoy procedural and 
institutional autonomy in order to counter infringements of harmonised VAT 
rules, that autonomy is nevertheless limited not only by the principle of 
proportionality and the principle of equivalence, the application of which is not at 
issue in the present case, but also by the principle of effectiveness, which requires 
that the penalties be effective and dissuasive (judgments in Scialdone and Taricco 
and Others). 
14 The Court has held that it is primarily for the national legislature to adopt the 
necessary measures. It is, therefore, for the national legislature, where required, to 
amend its legislation and to ensure that the procedural rules applicable to the 
prosecutions of offences affecting the financial interests of the European Union 
are not designed in such a way that there arises, for reasons inherent in those rules, 
a systemic risk that acts that may be categorised as such offences may go 
unpunished, and also to ensure that the fundamental rights of accused persons are 
protected. 
15 The Court has held that it is for the national courts to give full effect to the 
obligations under Article 325(1) TFEU and to disapply national provisions which, 
in connection with proceedings concerning serious VAT infringements, prevent 
the application of effective and deterrent penalties to counter fraud affecting the 
financial interests of the Union. 
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16 However, the obligation to ensure the effective collection of the European Union’s 
resources does not dispense national courts from the necessary observance of the 
fundamental rights guaranteed by the Charter and of the general principles of EU 
law, given that the criminal proceedings instigated for VAT offences amount to an 
implementation of EU law, within the meaning of Article 51(1) of the Charter. In 
criminal law, those rights must be respected not only during the criminal 
proceedings, but also during the stage of the investigation, from the moment when 
the person concerned becomes an accused (judgments in M.A.S. and M.B., Kolev 
and Others and Di Puma and Zecca). 
17 After recalling that Article 19 TEU gives concrete expression to the value of the 
rule of law stated in Article 2 TEU and entrusts the responsibility for ensuring 
judicial review in the EU legal order not only to the Court of Justice but also to 
national courts and tribunals, the referring court states that the principle of the 
effective judicial protection of individuals’ rights under EU law, referred to in 
Article 19(1) TEU, is a general principle of EU law stemming from the 
constitutional traditions common to the Member States and enshrined in 
Article 47 of the Charter. 
18 Every Member State must ensure that the bodies which, as ‘courts or tribunals’ 
within the meaning of EU law, come within its judicial system in the fields 
covered by that law, meet the requirements of effective judicial protection, the 
maintenance of that body’s independence being essential.  
19 The guarantee of independence, which is inherent in the task of adjudication, is 
required not only at EU level as regards the Judges of the Union and the 
Advocates-General of the Court of Justice, but also at the level of the Member 
States as regards national courts (judgment in Associaçăo Sindical dos Juizes 
Portugueses). 
20 The concept of independence presupposes, in particular, that the body concerned 
exercises its judicial functions wholly autonomously, without being subject to any 
hierarchical constraint or subordinated to any other body and without taking 
orders or instructions from any source whatsoever, and that it is thus protected 
against external interventions or pressure liable to impair the independent 
judgment of its members and to influence their decisions (judgments in Wilson 
and Margarit Panicello).  
21 The Court has on several occasions emphasised the importance of the principle of 
res judicata (judgment in Köbler). It has, therefore, been held that EU law does 
not require a judicial body to go back on a judgment given, not even in order to 
take into account the interpretation of a relevant provision of EU law adopted by 
the Court after delivery of that judgment which has acquired the authority of res 
judicata (judgment in Impresa Pizzarotti).  
22 In the light of the Court of Justice’s case-law interpreting the provisions held 
relevant by the referring court and having regard to the subject matter of the case 
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and the relevant facts, the answer to the first question referred for a 
preliminary ruling is necessary in order to clarify whether the Member States’ 
obligations under Article 325(1) TFEU, and Article 1(1)(a) and (b) and Article 
2(1) of the PFI Convention also concern the execution of criminal penalties 
already applied.  
23 The referring court considers that it would be useful to interpret the phrase ‘and 
any other illegal activities affecting the financial interests of the Union’ in Article 
325(1)  TFEU, in order to examine whether it is possible to include within that 
phrase true acts of corruption and also fraud committed in the course of public 
procurement, in particular when the aim pursued was to obtain the reimbursement 
of sums which had been fraudulently allocated from European funds, even though 
those funds were not actually defrauded, in a context in which such facts 
constitute a particularly serious threat to the European Union’s financial interests. 
24 In the light of the Court’s case-law, but also the importance in both the EU and 
national legal systems of the principle of legality (on the basis of which the law 
must be foreseeable, certain and not retroactive), by its second question referred 
for a preliminary ruling the referring court requests the Court to clarify whether 
the meaning of the concept of ‘previously established by law’ in Article 47(2) of 
the Charter precludes the interpretation provided by the Constitutional Court 
concerning the unlawful nature of the judicial body’s composition. 
25 The interpretation is necessary to allow the court to determine whether there is 
any bar on disapplying the decision on which the extraordinary action is based. 
26 In the Court’s case-law, it has thus been held that when the national courts having 
jurisdiction decide to disapply provisions of substantive criminal law, they are 
required to ensure that the fundamental rights of the persons accused of an offence 
are respected (judgment in Taricco and Others) and that those courts are free to 
apply national standards of protection of fundamental rights, provided that the 
level of protection provided for by the Charter, as interpreted by the Court, and the 
primacy, unity and effectiveness of EU law are not thereby compromised 
(judgments in Åkerberg Fransson and M.A.S. and M.B.). 
27 Lastly, by its third question referred for a preliminary ruling, the referring 
court requests the Court to clarify whether it is necessary to disapply a decision of 
the Constitutional Court in order give full effect to EU law, in a situation in which 
the observance of EU law is mandatory for the court and its infringement 
constitutes a disciplinary offence. 
28 In the Court’s case-law, it has been held that a national court is under a duty to 
give full effect to EU law, if necessary refusing of its own motion to apply any 
conflicting provision of national law, and that any provision of a national legal 
system and any legislative, administrative or judicial practice which withholds 
that power from the court having jurisdiction is incompatible with the 
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requirements which are the very essence of EU law (judgments in Simmenthal and 
Melki and Abdeli). 
29 An interpretation from the Court of Justice is necessary in order to clarify whether 
the judgment of the Constitutional Court, a court outside the judicial system, 
which has exclusive jurisdiction for constitutional disputes and whose rulings are 
binding erga omnes, forms part of those rulings which can and must be disapplied 
in order to give full effect to the provisions of EU law, in particular where there is 
a national rule which allows a disciplinary penalty to be imposed on a judge if he 
annuls their effects. 
30 Such clarification is essential since, in the absence of an answer, there is a serious 
risk that, regardless of the answer to the first two questions, the judgment cannot 
be applied in national law. 
31 The referring court draws the Court of Justice’s attention to the interpretation 
according to which, given the importance of the principle of judicial 
independence, extending the connection with EU law also to cases in which 
national law alone is being applied is warranted, when such a principle is 
jeopardised by the effects of the decisions of a court, including those of the 
Constitutional Court. 
The national court’s view 
32 In the national court’s view, EU law precludes the application of a judgment of 
the Constitutional Court which has the effect of setting aside final judgments 
given by the five-judge Chamber and which deprives the penalties applied in a 
considerable number of serious fraud cases of their effectiveness and deterrence; 
such application affects the European Union’s financial interests, and creates, on 
the one hand, the appearance of impunity and, on the other, a systemic risk of 
impunity as a result of time bar, given the complexity and duration of the 
proceedings until final judgment has been given following re-examination. 
33 In addition, the principles of judicial independence and of certainty in legal 
relations preclude conferring binding effects in relation to decisions which have 
already become final as at the date of the Constitutional Court’s decision, in the 
absence of serious grounds which call into question the observance of the right to 
a fair trial in the relevant cases. 
34 Consequently, the interpretation provided by the administrative committee of 
ICCJ and incorporated into the Regulation on organisation and administrative 
functioning, uncontested and unanimously accepted by judicial practice, does not 
constitute a reasonable ground warranting such effects. 
35 In addition, the decision to refer the ICCJ to the Constitutional Court, following 
which the judgment of 7 November 2018 was handed down, was referred to, in 
the Report from the Commission to the European Parliament and the Council on 
Progress in Romania under the Cooperation and Verification Mechanism, as one 
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of the actions against the key judicial institutions with ‘clear implications for 
judicial independence’. 
36 In the referring court’s view, EU law precludes attributing binding legal effects to 
a decision of a court, including that of a constitutional court, which removes the 
jurisdiction of a national court to assess whether the principle of primacy applies. 
37 The application of the expedited procedure to the present case is warranted either 
in order to clarify swiftly the legal position of the individuals convicted in the 
proceedings, or by the fact that the passage of time creates risks concerning both 
the actual possibility of penalties being implemented, bearing in mind that one of 
the individuals convicted and sentenced is not in Romania, and the recovery of 
losses.