Order;Summary — ECLI:EU:C:2022:878
Date: 2022-11-07
Language of the case: Romanian
Court formation: Sixth Chamber
Subject matter: Financial provisions;Provisions governing the Institutions;Approximation of laws;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
Origin: Romania

Summary C-859/19 - 1 
Case C-859/19 
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: 
26 November 2019 
Referring court: 
Înalta Curte de Casație și Justiție (Romania) 
Date of the decision to refer: 
19 November 2019 
Defendants: 
FX 
CS 
ND 
Other party to the proceedings: 
Parchetul de pe lângă Înalta Curte de Casaţie și Justiţie — Direcţia 
Naţională Anticorupţie 
 
Subject matter of the main proceedings 
Appeals lodged against a judgment delivered in criminal proceedings on 
17 October 2017 by a three-judge panel within the Criminal Chamber of the Înalta 
Curte de Casație și Justiție (High Court of Cassation and Justice, Romania) (‘the 
High Court’) 
Subject matter and legal basis of the request for a preliminary ruling 
Interpretation is sought, under Article 267 TFEU, of Article 2 and Article 19(1) 
TEU, Article 325(1) TFEU, Article 58 of Directive 2015/849, Article 4 of 
Directive 2017/1371, the second paragraph of Article 47 of the Charter of 
Fundamental Rights of the European Union, and the principle of the primacy of 
EU law 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-859/19 
 
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Questions referred 
1. Are Article 19(1) of the Treaty on European Union, Article 325(1) of the 
Treaty on the Functioning of the European Union, Article 58 of Directive (EU) 
2015/849 of the European Parliament and of the Council of 20 May 2015 on the 
prevention of the use of the financial system for the purposes of money laundering 
or terrorist financing, amending Regulation (EU) No 648/2012 of the European 
Parliament and of the Council, and repealing Directive 2005/60/EC of the 
European Parliament and of the Council and Commission Directive 2006/70/EC, 
[and] Article 4 of Directive (EU) 2017/1371 of the European Parliament and of 
the Council of 5 July 2017 on the fight against fraud to the Union’s financial 
interests by means of criminal law, [which was] adopted on the basis of 
Article 83(2) of the Treaty on the Functioning of the European Union [and which 
replaced the Convention] on the protection of the European Communities’ 
financial interests of 26 July 1995, to be interpreted as precluding the adoption of 
a decision by a body outside the judiciary — the Curtea Constituțională a 
României (Constitutional Court of Romania) — which requires corruption cases 
decided within a specified period and currently at the appeal stage to be referred 
back to the court of first instance for re-examination on the ground that there has 
been a failure to establish, at the level of the supreme court, panels hearing cases 
specialising in that field, although it recognises the specialisation of the judges of 
which those panels were composed? 
2. Are Article 2 of the Treaty on European Union and [the second paragraph 
of] Article 47 of the Charter of Fundamental Rights of the European Union to be 
interpreted as precluding a body outside the judiciary from finding that the 
composition of panels hearing cases within a chamber of the supreme court 
(panels composed of serving judges who, at the time of their promotion, satisfied, 
inter alia, the specialisation condition required for promotion to the Criminal 
Chamber of the supreme court) is unlawful? 
3. Is the primacy of EU law to be interpreted as permitting a national court to 
disapply a decision of the constitutional court which has been handed down in a 
case concerning a constitutional dispute and is binding under national law? 
EU law relied on 
TEU, Article 2 and Article 19(1) 
TFEU, Article 325(1) 
Charter of Fundamental Rights of the European Union (‘the Charter’), second 
paragraph of Article 47 
Directive (EU) 2015/849 of the European Parliament and of the Council of 
20 May 2015 on the prevention of the use of the financial system for the purposes 
of money laundering or terrorist financing, amending Regulation (EU) 
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No 648/2012 of the European Parliament and of the Council, and repealing 
Directive 2005/60/EC of the European Parliament and of the Council and 
Commission Directive 2006/70/EC (OJ 2015 L 141, p. 73), Article 58 
Directive (EU) 2017/1371 of the European Parliament and of the Council of 
5 July 2017 on the fight against fraud to the Union’s financial interests by means 
of criminal law (OJ 2017 L 198, p. 29), Article 4 
Judgments of 27 February 2018, Associação Sindical dos Juízes Portugueses, 
C-64/16, EU:C:2018:117; of 19 September 2006, Wilson, C-506/04, 
EU:C:2006:587; of 16 February 2017, Margarit Panicello, C-503/15, 
EU:C:2017:126; of 8 July 2010, Afton Chemical, C-343/09, EU:C:2010:419; of 
9 November 2010, Volker und Markus Schecke and Eifert, C-92/09 and C-93/09, 
EU:C:2010:662; of 23 October 2012, Nelson and Others, C-581/10 and C-629/10, 
EU:C:2012:657; of 22 January 2013, Sky Österreich, C-283/11, EU:C:2013:28; 
and of 17 October 2013, Schaible, C-101/12, EU:C:2013:661 
National law relied on 
Constitution of Romania, Article 1(3), Article 21, Article 124(3), Article 126(1), 
Article 142(1), Article 146(e) and Article 147(4). In essence, pursuant to those 
provisions, Romania is a State governed by the rule of law where any person can 
have recourse to the courts to defend his or her rights, freedoms and legitimate 
interests. Judges are independent and subject only to the law and justice is 
administered by the High Court and other judicial bodies established by law. The 
Constitutional Court is the guarantor of the primacy of the Constitution. One of its 
functions is to resolve judicial conflicts of a constitutional nature between public 
authorities. 
Legea nr. 135/2010 privind Codul de procedură penală (Law No 135/2010 laying 
down the Code of Criminal Procedure), Article 421(2)(b), which sets out the 
situations in which it is possible to order the setting aside of a judgment under 
appeal and the re-examination of the case by the court of first instance. 
Legea nr. 78/2000 pentru prevenirea, descoperirea și sancționarea faptelor de 
corupție (Law No 78/2000 on the prevention, detection and punishment of acts of 
corruption), Article 29, pursuant to which specialised panels are to be established 
to adjudicate at first instance on the offences referred to in that law. 
Legea nr. 304/2004 privind organizarea judiciară (Law No 304/2004 on the 
organisation of the judiciary), Article 19(3), pursuant to which the Governing 
Council of the High Court may, at the beginning of each year, approve the 
establishment of specialised panels within the chambers of the High Court. 
Furthermore, Article 99(1)(ș) of that law provides that failure to comply with 
decisions of the Constitutional Court is to constitute a disciplinary offence. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-859/19 
 
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Decision No 685/2018 of the Constitutional Court of Romania, published in the 
Monitorul Oficial al României No 1021 of 29 November 2018, and Decision 
No 417/2019 of the Constitutional Court of Romania, published in the Monitorul 
Oficial al României No 825 of 10 October 2019. 
Succinct presentation of the facts and the main proceedings 
1 By a judgment delivered in criminal proceedings on 17 October 2017 by a three-
judge panel within the Criminal Chamber of the High Court, the defendant FX 
(who was a public prosecutor at the material time) was convicted at first instance 
of corruption offences involving European funds. By that same judgment, the 
defendants CS and ND were acquitted of the offence of perjury. 
2 The defendant FX and the Public Ministry (Public Prosecutor’s Office attached to 
the High Court) brought an appeal against that judgment before a five-judge panel 
within the Criminal Chamber of the High Court. 
3 During the appeal proceedings, Decision No 685/2018 of the Constitutional Court 
was published, whereby that court found that there was a judicial conflict of a 
constitutional nature between the Romanian Parliament, on the one hand, and the 
High Court, on the other, as a result of the fact that only four out of five members 
of the latter’s five-judge panels had been designated by drawing lots. 
4 Following that decision of the Constitutional Court, the appeal was assigned to a 
new five-judge panel, all of whose members were drawn by lot. 
5 While the appeal was being re-examined before that new panel, the Constitutional 
Court handed down Decision No 417/2019, in which it found that there was 
another judicial conflict of a constitutional nature between the Romanian 
Parliament, on the one hand, and the High Court, on the other, arising from a 
failure on the part of the High Court to establish specialised panels to adjudicate at 
first instance on corruption offences. According to that decision, cases which were 
decided by the High Court at first instance prior to 23 January 2019 (when the 
specialised panels were established), in so far as they have not yet acquired the 
force of res judicata, must be re-examined at first instance by specialised panels. 
6 Following the publication of Decision No 417/2019 of the Constitutional Court, 
recognition was sought of the fact that that decision is binding and produces 
effects in respect of the judgment under appeal, because the three-judge panel 
which delivered that judgment was not specialised in the field of corruption. 
The essential arguments of the parties to the main proceedings 
7 The parties, with the exception of the Public Ministry, have argued that EU law is 
not applicable to the present case. Thus, having regard to the subject matter of the 
case and the fact that it is compulsory to comply with a decision of the 
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Constitutional Court, which cannot be disapplied by a ruling of the Court of 
Justice, only provisions of national law are applicable to the present case. 
Succinct presentation of the reasons for the reference 
8 As regards the first question, the referring court notes that the Member States, in 
the light of Article 325(1) TFEU, must take effective, dissuasive measures to 
counter illegal activities affecting the financial interests of the Union, in order to 
provide sufficient protection of those interests against, inter alia, corruption, 
which represents a particularly serious threat to those interests. 
9 In the present case, the defendant FX is on trial for corruption offences involving 
European funds, an illegal activity which is likely to harm the financial interests of 
the Union. 
10 According to the case-law of the Court of Justice, the Member States must take 
the legislative measures necessary to ensure that the procedural rules applicable to 
offences affecting the financial interests of the Union do not involve a systemic 
risk of impunity with regard to those acts. 
11 In addition, it is for the national courts to disapply provisions of national law 
which preclude the imposition of effective, dissuasive penalties to combat illegal 
activities which may harm the financial interests of the Union. 
12 In that context, the referring court considers that, in the light of the definitions of 
‘passive corruption’ and ‘active corruption’ set out in Article 4 of Directive 
2017/1371, an interpretation of the expression ‘and any other illegal activities 
affecting the financial interests of the Union’ contained in Article 325(1) TFEU is 
useful in order to determine whether corruption offences themselves also fall 
within the scope of that provision. 
13 The referring court emphasises that an answer from the Court of Justice to the first 
question is necessary because the re-examination required by the Constitutional 
Court — which is an institution outside the judiciary — prevents the application 
of effective, dissuasive criminal penalties within a reasonable time in cases 
concerning illegal activities affecting the financial interests of the Union. Thus, 
given the complexity and duration of the proceedings until a new final judgment is 
handed down following the resumption of the proceedings at first instance, there 
would be a risk of criminal liability being time-barred. The referring court 
specifies that, in the present case, the proceedings at first instance lasted 
approximately 4 years. 
14 As regards the second question, the referring court asks the Court of Justice to 
establish whether the concept of ‘the rule of law’ as referred to in Article 2 TEU is 
compatible with an intervention in the field of justice such as that effected by 
Decision No 417/2019 of the Constitutional Court. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-859/19 
 
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15 According to the referring court, although there is no doubt as to the importance 
of the Constitutional Court in upholding the rule of law and the fact that its 
decisions must be complied with, that institution is not a judicial body and 
performs no adjudicating functions. 
16 The intervention of the Court of Justice is also necessary to clarify the concept of 
the rule of law from the point of view of the independence of judges, in so far as 
the Constitutional Court introduces, by means of the abovementioned decision, 
binding procedural measures which, by their outcome, namely the resumption of 
proceedings on the ground of panels within the Criminal Chamber of the High 
Court not being specialised in the field of corruption offences, harm or are likely 
to harm the financial interests of the Union as a result of the imminent risk of 
creating impunity with regard to those who have committed serious offences. 
17 According to the referring court, all the judges of the Criminal Chamber of the 
High Court, at the time of their promotion to that judicial body, satisfied the 
condition of specialising in adjudicating on any criminal case, regardless of the 
subject matter of that case. 
18 As regards the third question, interpretation by the Court of Justice is necessary in 
order to clarify whether the decision of the Constitutional Court falls within the 
category of provisions which may and must be disapplied in order to ensure that 
full effect is given to the provisions of EU law, especially in a situation where 
there is a provision of national law which permits disciplinary penalties to be 
applied to a judge who does so. 
19 The referring court specifies that, if that question is left unanswered, there is a 
serious risk that it will not be possible to apply the judgment of the Court of 
Justice in national law. 
The national court’s view 
20 In the referring court’s view, EU law, in particular the provisions in respect of 
which interpretation is sought, precludes the application of a decision of the 
Constitutional Court which has the effect of setting aside judgments delivered at 
first instance within a specified period by three-judge panels within the Criminal 
Chamber of the High Court and which infringes the principle of the effectiveness 
of criminal penalties in the event of serious illegal activities which harm the 
financial interests of the Union. Thus, on the one hand, the appearance of 
impunity is created and, on the other, a systemic risk of impunity as a result of 
time-barring arises, given the complexity and duration of the proceedings until a 
final judgment is handed down following re-examination. 
21 In addition, the principle of the independence of judges precludes the 
establishment, by means of a decision of a judicial body outside the judiciary, of 
procedural measures which require the re-examination at first instance of certain 
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cases — thereby calling into question the criminal charge concerned — without 
serious grounds, a decision which affects the right to a fair trial in such cases. 
22 Consequently, EU law precludes attributing binding effects to a decision of an 
institution such as the Constitutional Court which removes the jurisdiction of a 
national court to assess the applicability of the principle of primacy. 
23 The referring court requests that the present case be determined under the 
expedited procedure, considering that it is necessary to clarify the legal situation 
of the defendant within a short period, in view of the risk that his criminal liability 
may be time-barred.