Opinion of the Advocate General — ECLI:EU:C:2022:454
Date: 2022-06-09
Language of the case: Bulgarian
Subject matter: External relations;Common foreign and security policy;Judicial cooperation in criminal matters;Police cooperation;Area of freedom, security and justice;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Bulgaria

Summary C-203/21 – 1 
Case C-203/21 
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:  
31 March 2021 
Referring court:  
Okrazhen sad Burgas (Bulgaria) 
Date of the decision to refer:  
12 March 2021 
Applicant:  
Bezirksstaatsanwaltschaft Burgas  
Defendant:  
DELTA STROY 2003 EOOD 
  
Subject matter of the main proceedings 
Criminal proceedings and administrative penalty proceedings running in parallel – 
Possibility, provided for in national law, of holding a legal person liable under 
administrative criminal law by imposing on it, at the request of the public 
prosecutor, a fine for an offence committed by its representative before the 
commission of that offence has been confirmed by a final judgment – 
Applicability of Framework Decision 2005/212/JHA where a fine equal to the 
economic advantage obtained from the offence may be imposed 
Subject matter and legal basis of the request 
Interpretation of EU law, Article 267 TFEU 
Questions referred for a preliminary ruling 
1. Are Articles 4 and 5 of Framework Decision 2005/212/JHA and Article 49 
of the Charter of Fundamental Rights of the European Union to be 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-203/21 
 
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interpreted as permitting legislation of a Member State under which, in 
proceedings such as those in the main proceedings, the national court may 
impose a penalty on a legal person for a specific criminal offence the 
commission of which has not yet been established because it is the subject of 
parallel criminal proceedings which have not been definitively concluded? 
2. Are Articles 4 and 5 of Framework Decision 2005/212/JHA and Article 49 
of the Charter of Fundamental Rights of the European Union to be 
interpreted as permitting legislation of a Member State under which, in 
proceedings such as those in the main proceedings, the national court may 
impose a penalty on a legal person by fixing the amount of that penalty at 
the amount of the proceeds which would have been obtained from a specific 
criminal offence the commission of which has not yet been established 
because it is the subject of parallel criminal proceedings which have not 
been definitively concluded? 
Provisions of EU law and international law relied on 
Framework Decision 2005/212/JHA on Confiscation of Crime-Related Proceeds, 
Instrumentalities and Property, Articles 2, 4 and 5 
Framework Decision 2006/783/JHA on the application of the principle of mutual 
recognition to confiscation orders 
Directive 2014/42/EU of the European Parliament and of the Council of 3 April 
2014 on the freezing and confiscation of instrumentalities and proceeds of crime 
in the European Union 
Charter of Fundamental Rights of the European Union, Articles 48 and 49 
European Convention for the Protection of Human Rights and Fundamental 
Freedoms, Articles 6 and 7, and its additional protocol, Article 1 
Case-law of the Court of Justice of the European Union relied on 
Judgment of the Court of Justice of 19 March 2020, C-234/18 (EU:C:2020:221) 
Case-law of the European Court of Human Rights relied on 
Sud Fondi srl and Others v. Italy, no. 75909/01, 20 January 2009 
Varvara v. Italy, no. 17475/09, 29 October 2013 
G.i.e.m. S.r.l. and Others v. Italy, nos. 1828/06, 34163/07 and 19029/11, 28 June 
2018 
DELTA STROY 2003 
 
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Provisions of national law relied on 
Constitution of the Republic of Bulgaria, Article 31(3) 
Nakazatelen kodeks (Criminal Code, Bulgaria; ‘the NK’), Article 255 
Nakazatelno-protsesualen kodeks (Code of Criminal Procedure, Bulgaria; ‘the 
NPK’, Articles 1, 16 and 301(1) 
Zakon za administrativnite narushenia i nakazania (Law on administrative 
offences and administrative penalties, Bulgaria; ‘the ZANN’), Articles 83, 83a, 
83b, 83c, 83d and 83f 
Succinct presentation of the facts and procedure in the main proceedings 
1 ZK manages and represents the company DELTA STROY 2003 EOOD. On 
5 August 2019, ZK was accused of having evaded, in that capacity, the assessment 
and payment of tax liabilities of a significant amount – a total of 11 388.98 leva 
(BGN) – in the form of a continuing offence in the city of Burgas in the period 
from 17 March 2009 to 13 August 2009. That amount represents the value added 
tax payable under Article 25(6) of the Zakon za danak varhu dobavenata stoynost 
(Law on value added tax; ‘the ZDDS’) for a total of three tax periods, namely 
March, April and July 2009. That act fulfils the criteria for constituting an offence 
under points 2 and 3 of Article 255(1) of the NK (evasion of payment of tax 
liabilities of a significant amount by filing an incorrect or incomplete return or by 
failing to submit an accounting document) in conjunction with Article 26 of the 
NK (continuing offence). 
2 Criminal proceedings were instituted against ZK before the Okrazhen sad 
(Regional Court), Burgas, which had not yet been concluded at first instance when 
the present order for reference was made. The law provides for the possibility of 
an appeal and an appeal in cassation after the judgment of the court of first 
instance has been delivered. 
3 On 9 December 2020, a public prosecutor of the Bezirksstaatsanwaltschaft Burgas 
(Regional Prosecutor’s Office, Burgas) proposed, in accordance with Articles 83a 
et seq. of the ZANN, to the Regional Court, Burgas that a fine be imposed on 
DELTA STROY 2003 EOOD for enrichment in the form of an economic 
advantage in the total amount of BGN 11 388.98 as a result of the commission by 
the person managing and representing the company of an offence under points 2 
and 3 of Article 255(1) of the NK, read in conjunction with Article 26 thereof. 
4 The proceedings against DELTA STROY 2003 EOOD were instituted on the 
basis of the fact that a bill of indictment charging the managing director of that 
company with a tax offence was filed with the Regional Court, Burgas, on the 
basis of which criminal proceedings were instituted before that court, which have 
not yet been concluded at first instance. 
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5 According to Article 83a(1) of the ZANN, a fine of up to BGN 1 000 000 is to be 
imposed on a legal person that has enriched or would enrich itself by committing 
an offence under the provisions of the Criminal Code listed [in that provision of 
the ZANN] (which include Article 255 of the NK) where the offence was 
committed by a person who is authorised to form the will of the legal person or 
who can represent it, whereby the amount may not be less than the proceeds if the 
advantage is economic in nature. According to Article 83a(4) of the ZANN, a fine 
is to be imposed irrespective of the criminal liability of the persons who 
participated in the commission of the offence under Article 83a(1) of the ZANN. 
According to Article 83a(5) of the ZANN (in the version applicable in the present 
case), the proceeds obtained directly or indirectly by the legal person from the 
offence pursuant to paragraph 1 are to be confiscated for the benefit of the State, 
unless they are subject to restitution or return or to confiscation under the 
Criminal Code. Where the items or assets which are the subject of the offence are 
not available or have been disposed of, the recovery of the equivalent value in 
BGN is to be ordered. 
6 According to Article 83b of the ZANN, proceedings under Article 83a of that law 
are to be instituted, on a reasoned proposal from the public prosecutor responsible 
for assessing the case or the case file for the relevant offence to the regional court 
of the domicile of the legal person, after the bill of indictment has been filed with 
the court. In accordance with Article 83d of the ZANN, the court seised is to 
examine the public prosecutor’s proposal and assess, on the basis of the evidence 
gathered, whether the legal person has obtained unlawful proceeds, whether there 
is a connection between the person who committed the criminal offence and the 
legal person, whether there is a connection between the criminal offence and the 
proceeds accruing for the legal person, as well as the nature of the proceeds and, if 
they constitute an economic advantage, the amount of the latter. The court is to 
issue a decision either imposing a fine or refusing to impose a fine. 
Essential statements of the Public Prosecutor’s Office 
7 In his proposal submitted pursuant to Article 83a et seq. of the ZANN, the public 
prosecutor states that, in his view, the legal conditions for holding the legal person 
liable under administrative criminal law have been met, for the following reasons. 
The legal person enriched itself by means of the offences committed within the 
meaning of points 2 and 3 of Article 255(1) of the NK, read in conjunction with 
Article 26 thereof. 
The offence was committed by a person who managed and represented the 
company and was authorised to form the will of the legal person and to represent 
it. 
The legal person DELTA STROY 2003 EOOD obtained proceeds that are 
attributable to the offence committed. They amount to BGN 11 388.98 and 
represent value added tax payable within the meaning of Article 25(6) of the 
DELTA STROY 2003 
 
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ZDDS (in the version of 13 February 2009), the payment of which had been 
evaded by the manager. 
The prosecutor points out that that amount was a receivable of the State, governed 
by public law, which the company had not paid and which it would have had to 
pay and would have paid if the fiscal relationship had developed in a lawful 
manner. 
The non-payment of that debt constitutes an economic advantage and there is a 
connection between that advantage and the criminal offence. 
The public prosecutor therefore proposes that the court impose a fine on the legal 
person DELTA STROY 2003 EOOD in the maximum amount pursuant to 
Article 83a(1) of the ZANN. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
8 First, the referring court provides an overview of the legislative history and the 
main features of the proceedings under Article 83a et seq. of the ZANN. Those 
proceedings were first introduced into Bulgarian positive law in 2005. According 
to its original wording, the provision provided that the court was to impose a fine 
on a legal person only after a criminal conviction had become final. In 2015, the 
content of that provision was amended in its entirety and the requirement that the 
criminal conviction must have become final in order for a fine to be imposed was 
removed. 
9 As stated above, the proceedings under Article 83a et seq. of the ZANN are 
instituted on a reasoned proposal by the public prosecutor after the bill of 
indictment has been filed. The referring court emphasises that, at present, for the 
purpose of imposing a fine on a legal person, the law does not necessarily require 
the existence of a final conviction for a specific offence committed by the natural 
person in connection with the company’s activity penalised by a fine. Arguments 
put forward in support of that view are, on the one hand, the absence of that very 
requirement in the ZANN and, on the other hand, point 3 of Article 83f(1) of the 
ZANN, according to which the proceedings in which a final decision of a regional 
court or appellate court has been delivered are subject to revision if, after the 
decision on the imposition of the fine on the legal person has become final, the 
legal person referred to in points 1 to 4 of Article 83a(1) of the ZANN is acquitted 
by a final court decision or the suspended preliminary investigation is 
discontinued by the public prosecutor where the act was not committed or does 
not constitute a criminal offence. 
10 The court seised points out that two sets of parallel proceedings are pending in the 
present case. First, criminal proceedings were instigated against the managing 
director of the company DELTA STROY 2003 EOOD, in which he was charged 
with committing the criminal offence under Article 255 of the NK. The 
proceedings were still ongoing at the time when the order for reference was made. 
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Subsequently, proceedings under Article 83a et seq. of the ZANN were instituted 
for the imposition of a fine on the company, which, according to the referring 
court, corresponds to the proceeds from the aforementioned offence under 
Article 255 of the NK (the commission of which has yet to be established in the 
first set of proceedings, that is to say, the criminal proceedings). The Regional 
Court points out that the ZANN does not currently provide for the possibility of 
staying the proceedings provided for in Article 83a et seq. thereof until the 
criminal proceedings have been concluded. 
11 The referring court takes the view that the imposition of a fine on a legal person 
for a specific offence in the amount of the proceeds which were or would have 
been obtained from that offence undoubtedly constitutes a total or partial 
confiscation of the proceeds of the offence. In the light of Article 2(1) of 
Framework Decision 2005/212/JHA and the fact that the offence under 
Article 255 of the NK is punishable by a custodial sentence of one to six years, the 
Regional Court takes the view that the present case falls within the scope of the 
Framework Decision. 
12 In that respect, the referring court takes into account the decision of the Court of 
Justice in Case C-234/18 – which followed a request for a preliminary ruling 
made by a different Bulgarian court – by pointing to the fact that the present case 
is different. The Regional Court states that the proceedings under Article 83a et 
seq. of the ZANN concern the imposition of an administrative penalty – a ‘fine’ – 
on a legal person for a specific offence committed by its representative. They have 
all the characteristics of ‘criminal’ rather than ‘civil’ proceedings. The referring 
court takes the view that they concern the final deprivation of property 
(confiscation) ordered by a court in relation to a criminal offence. Proceedings are 
conducted before a criminal court in accordance with the ZANN, whereby the 
NPK applies on a subsidiary basis. The decision imposes a fine on a legal person 
in connection with the commission of a specific criminal offence, the amount of 
which is determined on the basis of the amount of the proceeds that were obtained 
or would have been obtained. The aim of imposing a penalty is to punish and deter 
the commission of criminal offences, and not to make good the damage caused by 
them, and the law allows for the imposition of a penalty even where no actual 
proceeds have been obtained or the proceeds do not constitute an economic 
advantage. Consequently, the decision to be given by the court seised in the 
proceedings under Article 83a et seq. of the ZANN is delivered after the conduct 
of proceedings that concern one or more offences, do not focus solely on 
unlawfully acquired property and are directly related to the outcome of the 
criminal proceedings. The referring court concludes that this should lead to the 
conclusion that Framework Decision 2005/212/JHA is applicable. 
13 The Regional Court recalls that it is settled case-law of the Court of Justice that 
the fundamental rights guaranteed in the legal order of the European Union are 
applicable in all situations governed by European Union law. The national court 
refers to Article 49 of the Charter, which enshrines the principle of legality of 
criminal offences and penalties, which includes a prohibition of the imposition of 
DELTA STROY 2003 
 
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a penalty before the commission of an offence has been established. In order to be 
able to presume the commission of an offence for which a corresponding penalty 
is to be imposed, this must have been established in accordance with national law. 
This requires a finding that the natural person concerned has committed a specific 
act constituting a criminal offence under national law and has been found guilty of 
committing that offence by a criminal court. Under Bulgarian national law, 
specifically Article 31(3) of the Constitution and Article 16 of the NPK, this can 
take place only by way of a final judgment under the NPK. According to 
Article 1(1) of the NPK, the latter sets out the rules according to which criminal 
proceedings are to be conducted in order to ensure the investigation of criminal 
offences, the establishment of the guilty party or parties and the proper application 
of the law. 
14 Next, the court seised examines the questions to be considered under Article 83d 
of the ZANN in order to issue a judicial decision (the court must assess, on the 
basis of the evidence gathered, whether the legal person has obtained unlawful 
proceeds, whether there is a connection between the person who committed the 
criminal offence and the legal person, whether there is a connection between the 
criminal offence and the proceeds accruing for the legal person, as well as the 
nature of the proceeds and, if they constitute an economic advantage, the amount 
of the latter. The referring court points out that one question that does not feature 
among those questions is whether the offence was committed – a question that 
precedes all of the others. 
15 In actual fact, the present proceedings under Article 83a et seq. of the ZANN, 
which were instituted on the basis of the bill of indictment filed in respect of the 
company’s managing director before the criminal proceedings brought against 
him were concluded, in practice allow for the imposition of a penalty on the basis 
solely of the circumstances set out in the charge brought for a specific type of 
offence. Since the commission of that offence has not been established by a final 
court decision, the referring court considers that it is doubtful whether this is 
compatible with the principle of legality of criminal offences and penalties 
enshrined in Article 49 of the Charter. 
16 For the same reasons, the present Chamber has doubts as to the extent to which 
the proceedings under Article 83a et seq. of the ZANN, according to which the 
national court may impose a penalty on a legal person for a specific offence the 
commission of which has not yet been established because it is the subject of 
parallel criminal proceedings which have not been definitively concluded, are 
compatible with Framework Decision 2005/212/JHA, read in conjunction with 
Article 49 of the Charter. That possibility calls into question compliance with the 
fundamental principle of EU law not to impose a penalty before the offence has 
been established and may lead to an impairment of the mutual trust and mutual 
recognition underpinning judicial cooperation between the Member States of the 
European Union. 
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17 The referring court considers that the question referred is of importance in the 
context of Framework Decision 2006/783/JHA on the application of the principle 
of mutual recognition to confiscation orders. Framework Decision 2005/212/JHA 
is an act which seeks to oblige the Member States to establish common minimum 
rules on confiscation of instrumentalities and proceeds of crime, in particular with 
a view to facilitating mutual recognition of confiscation orders in criminal 
proceedings. In accordance with Article 83a(2) of the ZANN, a fine may be 
imposed on a legal person which does not have its seat in the territory of the 
Republic of Bulgaria, which means that the enforcement of that decision of the 
Bulgarian court in another Member State would have to take place on the basis of 
Framework Decision 2006/783/JHA. Cooperation between Member States, based 
on the principle of mutual recognition and immediate execution of judicial 
decisions, presupposes confidence that the decisions to be recognised and 
executed will always be taken in compliance with the principles of legality, 
subsidiarity and proportionality. Consequently, in order to recognise and enforce a 
decision imposing a fine on a legal person, the executing Member State must be 
satisfied that that decision was given by the issuing State after a procedure in 
accordance with those principles, including in accordance with Article 49 of the 
Charter. The question arises as to whether this is the case if the Bulgarian court’s 
judgment under Article 83a of the ZANN imposes a fine on a legal person for a 
specific criminal offence the commission of which has not yet been established 
because it is the subject of parallel criminal proceedings that have not been 
definitively concluded. 
18 For those reasons, the referring court takes the view that the correct resolution of 
the dispute requires an answer to the question of whether the fundamental 
principle of EU law – of legality of criminal offences and penalties – is respected 
where, in proceedings such as those in the main proceedings, the court imposes a 
penalty on the company before the commission of the offence is established in the 
parallel criminal proceedings under Article 255 of the NK.