Judgment;Abstract — ECLI:EU:C:2026:87
Date: 2026-02-12
Language of the case: Bulgarian
Court formation: Third Chamber
Procedure: Reference for a preliminary ruling
Origin: Bulgaria

Summary C-56/25 – 1 
Case C-56/25 [Petlichev] i 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
29 January 2025 
Referring court:  
Sofiyski gradski sad (Bulgaria) 
Date of the decision to refer:  
29 January 2025  
Defendant:  
MA 
  
Subject matter of the main proceedings 
Incompatibility of a provision of national law both with the national constitution 
and with EU law. Possibility of making an application to the Konstitutsionen sad 
(Constitutional Court, Bulgaria) for a declaration of unconstitutionality. Case-law 
of the Konstitutsionen sad according to which that court refuses to examine 
applications for a declaration as to the unconstitutionality of a provision of 
national law where that provision of national law comes within the scope of EU 
law and the court seised of the matter has not taken into account the effects of EU 
law. Need for a request for a preliminary ruling in regard to the taking into 
account of the effects of EU law. 
Subject matter and legal basis of the request 
The request is made on the basis of point (b) of the first paragraph of Article 267 
TFEU. 
 
i The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-56/25 
 
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Question referred for a preliminary ruling 
Are Article 267 TFEU, Article 94(b) of the Rules of Procedure of the Court of 
Justice and the principle of the primacy of EU law over national law to be 
interpreted as meaning that, where a national court has doubts as to the 
compatibility of a provision of national law with EU law, and is at the same time 
convinced that that provision of law is unconstitutional, it is obliged or entitled, 
before submitting its request for a preliminary ruling, to establish whether that 
provision of national law is indeed applicable in the main proceedings by making 
an application to the Konstitutsionen sad (Constitutional Court, Bulgaria) for a 
declaration as to its unconstitutionality?  
Provisions of EU law and case-law relied on 
Treaty on the Functioning of the European Union, Article 267 
Protocol (No 3) on the Statute of the Court of Justice of the European Union, 
Article 63 
Rules of Procedure of the Court of Justice, Article 94 
Recommendations to national courts and tribunals in relation to the initiation of 
preliminary ruling proceedings, points 3, 12 and 13 
Council Framework Decision 2004/757/JHA of 25 October 2004 laying down 
minimum provisions on the constituent elements of criminal acts and penalties in 
the field of illicit drug trafficking, Article 4 
Provisions of national law relied on 
Konstitutsia na Republika Bulgaria (Constitution of the Republic of Bulgaria) 
Article 4(1) The Republic of Bulgaria is a State governed by the rule of law. It 
shall be governed in accordance with the constitution and the laws of the country. 
… 
(3) The Republic of Bulgaria shall contribute towards the establishment and 
development of the European Union. 
Article 5(1) The constitution shall be the supreme law; the other laws must not 
contradict it. 
(2) The provisions of the constitution shall have direct effect. 
Article 149(1) The Konstitutsionen sad: 
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… 
2. shall decide on applications for a declaration as to the unconstitutionality of 
laws … 
Article 150(1) … 
(2) Any court may, on application by a party to the proceedings or of its own 
motion, make an application to the Konstitutsionen sad for a declaration that a law 
applicable in the proceedings concerned is incompatible with the constitution. The 
proceedings in the case shall continue and the court, whose judgment is not open 
to appeal, shall give its decision after the proceedings pending before the 
Konstitutsionen sad have been concluded. 
Article 151(1) … 
(2) The judgments of the Konstitutsionen sad shall be promulgated within 
15 days in the ‘Darzhaven Vestnik’ (Official Gazette, Bulgaria (‘DV’)). The 
judgment shall enter into force three days after its promulgation. The legal act 
which has been declared unconstitutional shall cease to apply as from the day on 
which the judgment enters into force. 
Rules of organisation and procedure of the Konstitutsionen sad 
Article 18(1) A reference to the Konstitutsionen sad shall be made in writing and 
shall be reasoned. 
… 
(3) (New, DV No 91 of 2021, in force since 6 November 2021) An application 
by the Varhoven kasatsionen sad (Supreme Court of Cassation) or the Varhoven 
administrativen sad (Supreme Administrative Court) in connection with 
proceedings pending before those courts must contain a reasoned examination of 
the applicable law, including the effects of EU law where the contested provision 
or the legal act comes within the scope of EU law. 
The provisions of Article 18(3) shall also apply to applications by the ordinary 
courts. 
Zakon za sadebnata vlast (Law on the judicature) Article 68e, Article 155 
Nakazatelen kodeks (Criminal Code, ‘the NK’), Article 354а 
Zakon za kontrol varhu narkotichnite veshtestva i prekursorite (Law on the control 
of narcotic drugs and drug precursors, ‘the ZKNVP’), Article 26а 
Article 26а The Council of Ministers shall determine the prices of narcotic drugs 
for the purposes of criminal proceedings. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-56/25 
 
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Naredba za reda za klasifitsirane na rasteniata i veshtestvata kato narkotichni 
(Regulation on the procedure for classifying plants and substances as narcotic 
drugs) 
Postanovlenie Nr. 23 na Ministerski savet ot 29.01.1998 g. za opredelyane na tseni 
na narkotichnite veshtestva za nuzhdite na sadoproizvodstvoto (Decree No 23 of 
the Council of Ministers on determining the prices of narcotic drugs for the 
purposes of judicial proceedings) 
Case-law of the Konstitutsionen sad 
The Konstitutsionen sad requires that a court making an application for a 
declaration that a law is incompatible with the constitution correctly determine the 
applicable law. That applicable law is not only the law claimed to be 
unconstitutional but also EU law where this governs the same facts as the 
contested law. For this reason, the Konstitutsionen sad requires that the court 
referring the matter to it should first apply EU law to the facts of the main 
proceedings and only thereafter seise it of the matter. This means that the court 
must identify the applicable legislative act (for example, a directive or a 
framework decision) or the relevant provision thereof and determine the content 
of that provision. The court must then compare the content of the provision of 
national law and that of the provision of EU law and, if necessary, adopt an 
interpretation that is in conformity with EU law. The provision of national law 
must thus be interpreted and understood in such a way as to be consistent with EU 
law. If the court which wishes to refer the matter to the Konstitutsionen sad 
encounters difficulties in the course of that analysis, it must submit a request for a 
preliminary ruling to the Court of Justice of the European Union. 
If EU law is not applied in this way (either directly or further to a request for a 
preliminary ruling), the Konstitutsionen sad will find that the application to 
declare a law unconstitutional does not meet the requirements which it has laid 
down and will dismiss it, without ruling on the merits of the matter. 
Succinct presentation of the facts and procedure in the main proceedings 
1 The referring court has before it an indictment in which a person is charged with 
possession of four consumption units of methamphetamine weighing 0.22 
grammes in total and 22 consumption units of fentanyl totalling 1.5838 grammes 
for the purpose of distribution. 
2 The documents before the court show that the share of active substance in three of 
the methamphetamine consumption units was 60% and in the fourth 50%. The 
percentage share of active substance in the fentanyl, on the other hand, was not 
determined because the laboratory did not have the corresponding standards. 
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3 The indictment states that the methamphetamine has a value of 15.40 leva (BGN), 
and the fentanyl a value of BGN 90 276.60, which is to say that they have a 
combined value of BGN 90 292 (EUR 46 166). 
4 The referring court notes that the value of the narcotic drugs as so determined is 
arrived at by reference to Article 26a of the ZKNVP and the Council of Ministers 
Decree adopted on that basis. The latter provides that that the narcotic drug is to 
have the same value irrespective of its share of active ingredient (values differ 
according to the percentage share of active ingredient only in the case of cocaine 
and heroin). In addition, the Council of Ministers Decree lays down a value, in 
particular in relation to fentanyl, which is ten times the street price.  
5 The expert opinion obtained in the main proceedings states that one gramme of 
fentanyl the share of active ingredient in which is 100% costs BGN 5 700 on the 
street. Since the 22 consumption units of fentanyl weigh 1.5838 grammes in total, 
their value according to the Council of Ministers Decree is BGN 90 276. 60. 
6 Given the value of the two narcotic drugs, that is to say BGN 90 292 
(EUR 46 166), the classification criterion of ‘large quantity’ that would lead to a 
higher penalty was considered to be met. The act in question was classified in law 
as an offence under Article 354a(2) of the Nakazatelen Kodeks (Criminal Code) 
(‘the NK’). 
7 More specifically, the custodial sentence tariff prescribed for possession of 
narcotic drugs for the purpose of distribution is 50% higher in the case of a large 
quantity [of narcotic drugs] (Article 354a(2) of the NK) than that provided for in 
the case of [possession] of a quantity of narcotic drugs which is not large 
(Article 354a(1) of the NK); under the same conditions, the fine to be 
cumulatively imposed in addition hereto is twice as high. 
The essential arguments of the parties in the main proceedings 
8 The defence admits possession for the purpose of distribution, but disputes the 
classification criterion of ‘large quantity’ and takes the view that the narcotic 
drugs in question do not meet that condition. It contends that the value stated by 
the public prosecutor is 632 times higher than the actual value. It would 
nonetheless like to enter into a plea bargain in order to achieve a lighter sentence 
for the defendant. 
9 The question at issue in the main proceedings is therefore whether the narcotics 
concerned do constitute a large quantity and whether that classification criterion is 
to be determined by reference to the monetary value established in accordance 
with Article 26a of the ZKNVP and the Council of Ministers Decree.  
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Succinct presentation of the reasoning in the request for a preliminary ruling 
The reason for the request for a preliminary ruling 
10 The referring court takes the view that it would be more appropriate to seise the 
Konstitutsionen sad of this matter, given that the present case concerns a specific 
criterion of national law and not particularities of EU law, and the Konstitutsionen 
sad gives judgment quickly, usually within two months.  
11 However, the Konstitutsionen sad has attached conditions to the making of 
references to it in cases where the contested legal provision comes within the 
scope of EU law. In this case, it is insistent that the court referring the matter to it 
must apply EU law and establish the effects of EU law on the contested legal 
provision, in particular whether that provision can be interpreted in conformity 
with EU law or must be disapplied; to that end, the court referring the matter to it 
can submit a request for a preliminary ruling to the Court of Justice of the 
European Union, if it considers this necessary. 
12 In this way, the Konstitutsionen sad makes it impossible for the court wishing to 
refer the matter to it to make an application for a declaration as to the 
incompatibility of Article 26a of the ZKNVP and the Council of Ministers Decree 
with the constitutional principle of proportionality. Such an application would be 
dismissed, either because the court referring the matter to it has not cited the 
relevant EU law or because it has stated that the contested legal provision comes 
within the scope of EU law and is incompatible with Article 4 of Framework 
Decision 2004/757. 
13 The only option left to the referring court is to submit a request for a preliminary 
ruling to the Court of Justice of the European Union. If it submits such a request, 
however, it must fulfil the requirements which EU law imposes on it and, in 
addition, take into account the Court of Justice’s own recommendations to courts. 
In so doing, the referring court assumes that it is thereby under an obligation to 
determine correctly and according to the best of its knowledge and belief the 
national law claimed to be incompatible with EU law. The purpose of the present 
request for a preliminary ruling is to determine whether EU law does indeed 
impose that obligation on the national court which submits a request for a 
preliminary ruling. 
The interpretation of Article 267 TFEU and Article 94(b) of the Rules of 
Procedure 
14 Article 267 TFEU empowers the Court of Justice of the European Union to rule, 
at the request of a national court, on the interpretation of EU secondary law, 
including on the question whether a provision of national law relevant to the main 
proceedings is consistent with a specific provision of secondary law. To enable it 
to do this, the national court must indicate clearly and correctly which national 
law is applicable in the main proceedings. 
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15 The Court of Justice itself formulated that requirement in its Rules of Procedure. 
Thus, Article 94(b) of the Rules of Procedure obliges the referring court to specify 
the ‘national provisions applicable in the case’. 
16 In points 3 and 12 of the Recommendations, the Court of Justice places great trust 
in the national court in giving it the power to formulate its request freely, at its 
own discretion, in order to obtain an answer that will be useful to it in giving 
judgment in the dispute in the main proceedings. Point 12 nonetheless requires the 
referring court to submit its request at the stage of the national proceedings at 
which it ‘is able to define, in sufficient detail, the legal … context of the case in 
the main proceedings’. There is therefore a requirement to provide a clear, precise, 
correct and adequate definition of the content of the national law governing the 
facts of the main proceedings. 
17 In the light of the arguments put forward in support of the referring court’s view, 
Article 267 TFEU and Article 94(b) of the Rules of Procedure are to be 
interpreted as imposing on the national court submitting a request for a 
preliminary ruling an obligation to act according to the best of its knowledge and 
belief, namely to make every effort to identify the provision of national law which 
is actually and specifically applicable in the main proceedings. 
The rejection of hypothetical requests by the Court of Justice of the European 
Union 
18 The Court of Justice has held that hypothetical questions concerning problems 
which do not form the subject of the main proceedings do not need to be 
answered, and the interpretation of EU law provided would not be useful to the 
judgment to be given in those proceedings anyway. If, however, the contested 
national legal provision were unconstitutional and, therefore, not applicable in the 
main proceedings under any circumstances, the question referred would be 
hypothetical. 
19 The Court of Justice may refuse to rule on a question referred by a national court 
only where it is quite obvious that the interpretation of EU law that is sought bears 
no relation to the actual facts of the main action or its object, where the problem is 
hypothetical, or where the Court does not have before it the factual or legal 
material necessary to give a useful answer to the questions submitted to it 
(judgment of 7 November 2024, С-126/23, EU:C:2024:937, paragraph 26). 
The primacy of EU law over national law 
20 The referring court would prefer to refer the question of the proportionality of 
Article 26a of the ZKNVP and the Council of Ministers Decree to the 
Konstitutsionen sad. This would not have the effect of disapplying EU law, since, 
if the Konstitutsionen sad decided that those provisions were unconstitutional, 
they would be inapplicable; if, on the other hand, the Konstitutsionen sad decided 
that they were compatible with the constitution, the referring court would be at 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-56/25 
 
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liberty to submit a request for a preliminary ruling on their compatibility with EU 
law. 
21 In this way, the primacy of EU law, including over the national constitution, 
would be guaranteed. 
22 Conversely, the case-law of the Konstitutsionen raises the question as to whether 
the national constitution has primacy over EU law. More specifically, this would 
be the case where a provision of national law which has already been interpreted 
in conformity with EU law is challenged as being unconstitutional, in particular 
where the legal effect of that provision has been significantly changed as a result 
of that interpretation. Thus, its legal effect is in essence already the result of the 
application of EU law. 
23 If a national constitutional court had the power to declare the legal provision 
unconstitutional and thus disapply it, this would mean, first, that the constitution 
would have primacy over EU law in the form of a national transposing legislative 
provision correctly interpreted in conformity with EU law, and, secondly, that the 
constitutional court would give final judgment on the compatibility of EU law (in 
the form of that correct interpretation in conformity with EU law) with national 
law (in the form of the constitution). 
Primacy of EU law and the case-law of the Konstitutsionen sad 
24 In the view of the referring court, the settled case-law of the Konstitutsionen sad is 
the result of a reluctance to recognise that primacy. Rather, it is the result of the 
wish of the Konstitutsionen sad to exercise control over whether EU law is 
compatible with the Bulgarian constitution. It is for that very reason that the 
national court is required first to identify the applicable EU law and determine 
how this affects the content of the provision of national law, and [only] then to 
make an application to the Konstitutsionen sad. 
25 In the view of the Konstitutsionen sad, a provision of national law must first be 
interpreted in the light of EU law. Thereafter, its content, as determined by its 
interpretation in conformity with EU law, must be reviewed from the point of 
view of compatibility with the constitution. This means, moreover, that the EU 
law expressed in that interpretation in conformity with EU law is reviewed from 
the point of view of its compatibility with the constitution. 
The alternative in the question referred 
26 The question referred contains two possible interpretative variants, that is to say, 
whether the provisions of Article 267 TFEU and of Article 94(b) of the Rules of 
Procedure of the Court of Justice and the principle of the primacy of EU law are to 
be interpreted in two ways: either as an obligation or merely as an entitlement of 
the referring court, when formulating its request for a preliminary ruling, to act 
according to the best of its knowledge and belief when it comes to indicating the 
legal provision to be applied in the main proceedings. That conscientiousness has 
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to do with assessing whether that provision is indeed applicable given the 
referring court’s conviction that it is unconstitutional. If that were the case, that 
provision would not be applicable in the main proceedings. 
27 Or, alternatively, whether the referring court has an obligation to review the 
applicability of the contested provision in the main proceedings if it is convinced 
that it is unconstitutional or, should it not have an obligation to do so, whether EU 
law does not preclude such a review. In both cases, that review takes the form of 
an application to the Konstitutsionen sad for a declaration as to the 
unconstitutionality of the contested legal provision. 
28 That review is objectively necessary. In accordance with Article 149(1), point 2, 
of the constitution, the Konstitutsionen sad has exclusive jurisdiction to declare a 
law unconstitutional. In accordance with Article 150(2), the referring court is 
entitled to apply for such a declaration. However, it cannot itself make a 
declaration of unconstitutionality and disapply the legal provision concerned. 
Consequently, its conviction that a legal provision is not compatible with the 
constitution can lawfully lead only to an application to the Konstitutsionen sad for 
a declaration of unconstitutionality, but not to the direct disapplication of that 
provision. 
The need for a request for a preliminary ruling 
29 If the Court of Justice of the European Union were to answer the question in the 
affirmative, this would entitle the referring court, first, to claim before the 
Konstitutsionen sad that Article 26a of the ZKNVP and the Council of Ministers 
Decree are unconstitutional; only if the question were answered in the negative 
would it have to submit a request for a preliminary ruling to the Court of Justice of 
the European Union, since an answer in the negative to that question would make 
it certain that the contested provision of national law is indeed applicable in the 
main proceedings. 
30 If the Court of Justice of the European Union were to answer the question in the 
negative, this would enable the referring court to submit the request for a 
preliminary ruling directly, without any uncertainty as to whether it is citing as 
being applicable in the dispute in the main proceedings provisions of national law 
which it considers to be unconstitutional and which could not therefore, in 
principle, constitute applicable law. Next, if the answer of the Court of Justice 
were that the principle of proportionality has been observed, the referring court 
would apply to the Konstitutsionen sad for a declaration as to whether the national 
requirement of proportionality is also satisfied. If the Konstitutsionen sad were to 
rule in the negative, the provision of national law, even if it were compatible with 
EU law, would be inapplicable. 
31 Those circumstances make it necessary to refer for a preliminary ruling the 
question whether EU law, which governs the content of requests for a preliminary 
ruling, in particular the indication of the provision of national law applicable in 
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the dispute in the main proceedings, obliges or entitles the national court to carry 
out a comprehensive review of whether that legal provision does indeed constitute 
applicable law, including in the light of its unconstitutionality, which review must 
be carried out by way of an application to the Konstitutsionen sad for a declaration 
of unconstitutionality.  
Case-law of the Court of Justice of the European Union on the question referred 
32 The Court of Justice has been asked questions which are similar to, but essentially 
different from, [that in the present case]: whether EU law precludes a national law 
which imposes on the national court an obligation to make a reference to the 
constitutional court first and only thereafter to submit a request for a preliminary 
ruling to the Court of Justice if this continues to be necessary following the 
decision of the constitutional court (Cases C-348/89, С-457/09) or whether a 
reference [may be made] only to the constitutional court, following the decision of 
which the submission of a request for a preliminary ruling to the Court of Justice 
is no longer admissible (Cases С-188/10 and С-189/10, С-357/19, С-430/21). The 
question raised in the present request for a preliminary ruling differs from these 
and is based on different facts (the national constitutional court insists that the 
matter be referred to the Court of Justice first); it concerns the correctness of the 
indication of the national law applicable in the request for a preliminary ruling in 
the light of the referring court’s conviction that that law is unconstitutional and 
therefore inapplicable. 
33 A similar question is raised in Case C-348/89 (paragraph 41, second question, as 
cited in the judgment of 27 June 1991), namely whether the national court may 
dispense with a reference for a preliminary ruling where the national legal order 
provides the means of remedying the defects in a domestic provision. The Court’s 
answer to that question (paragraphs 47 to 49) was that the assessment as to the 
need for a preliminary ruling to enable the national court to give its own 
judgment, and the question of determining at what stage of the procedure a 
question must be referred to the Court of Justice for a preliminary ruling, are 
matters for the referring court [;] [the Court] also [ruled] to that effect in the 
judgment of 10 March 1981, С-36/80 and С-71/80, paragraph 9. This could mean 
that the Court of Justice takes the view that it is permissible for the national court 
to exhaust the domestic means available for remedying the defects in the provision 
concerned first, and to submit a request for a preliminary ruling to the Court of 
Justice only if those means are inadequate. It could also mean that, in cases where 
two competing remedies are available (a reference to the Court of Justice or an 
application to the constitutional court), it is not always necessary to favour the 
reference to the Court of Justice. 
34 Finally, it might follow from certain arguments of the Court of Justice that it 
would be consistent with the essence of Article 267 TFEU for the referring court 
to have to make sure that the provision of national law is applicable in the case in 
the main proceedings first, by employing the domestic means available for that 
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purpose, before deciding after that examination whether it is necessary to seise the 
Court of Justice of the matter. 
35 It is only where doubts exist as to the validity of an EU legal act that the national 
court whose decision is not open to appeal is obliged to refer the matter to the 
Court of Justice and may not make an application to the constitutional court for a 
declaration as to the unconstitutionality of the national transposing law (judgment 
of 22 June 2010, С-188/10 and С-189/10, EU:C:2010:363, paragraphs 55 and 56).