Opinion of the Advocate General — ECLI:EU:C:2023:907
Date: 2023-11-23
Language of the case: Romanian
Subject matter: External relations;Common foreign and security policy
Procedure: Reference for a preliminary ruling
Origin: Romania

Summary C-351/22 – 1 
Case C-351/22 
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 May 2022 
Referring court:  
Tribunalul București (Romania) 
Date of the decision to refer:  
2 November 2021 
Appellant:  
Neves 77 Solutions SRL 
Respondent:  
Agenția Națională de Administrare Fiscală – Direcția Generală 
Antifraudă Fiscală 
  
Subject matter of the main proceedings 
Appeal brought by the company Neves 77 Solutions SRL (‘the appellant’) against 
the judgment of the Judecătoria Sectorului 1 București (Court of First Instance, 
Sector 1, Bucharest, Romania) concerning an application for the annulment of an 
infringement notice issued by the Agenția Națională de Administrare Fiscală – 
Direcția Generală Antifraudă Fiscală (National tax administration agency – Tax 
fraud department; ‘ANAF’ or ‘the respondent’). 
Subject matter and legal basis of the request 
On the basis of Article 267 TFEU, the interpretation is sought of Decision 
2014/512/CFSP, and in particular Articles 2(2)(a), 5 and 7. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-351/22 
 
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Questions referred for a preliminary ruling 
1. Can Decision 2014/512/CFSP, in particular Articles 5 and 7 thereof, in the 
light of the principles of legal certainty and nulla poena sine lege, be interpreted 
as permitting (by way of a civil penalty) a national measure authorising the 
confiscation of the entire proceeds of a transaction, such as the one referred to in 
Article 2(2)(a) of Decision 2014/512/CFSP, in the event that an act categorised by 
domestic law as a summary offence is found to have been committed? 
2. Is Article 5 of Decision 2014/512/CFSP to be interpreted as allowing 
Member States to adopt national measures providing for the automatic 
confiscation of any proceeds resulting from a breach of the obligation to notify a 
transaction falling within the scope of Article 2(2)(a) of Decision 
2014/512/CFSP? 
3. Is the prohibition laid down in Article 2(2)(a) of Decision 2014/512/CFSP 
applicable where goods constituting military equipment, which were the subject of 
brokering transactions, were never physically imported into the territory of the 
Member State? 
Provisions of European Union law and case-law relied on 
Council Decision 2014/512/CFSP of 31 July 2014 concerning restrictive measures 
in view of Russia’s actions destabilising the situation in Ukraine: Article 2(2)(a) 
and Articles 5 to 7 
Council Regulation (EU) No 833/2014 of 31 July 2014 concerning restrictive 
measures in view of Russia’s actions destabilising the situation in Ukraine: 
Article 1 
Judgment of 28 March 2017, Rosneft (C-72/15, EU:C:2017:236) 
Provisions of national law relied on 
Ordonanța de urgență a Guvernului nr. 202/2008 privind punerea în aplicare a 
sancțiunilor internaționale (Decree-Law No 202/2008 on the implementation of 
international sanctions; ‘Government Emergency Order No 202/2008’): 
Articles 1, 3, 7, 24 and 26. Pursuant to Article 26(1)(b), failure to comply with the 
obligation laid down in Article 24(1) constitutes a summary offence punishable by 
a fine of between RON 10 000 and RON 30 000, together with the confiscation of 
the goods destined for, used in or resulting from the summary offence. Pursuant to 
Article 24(1), natural or legal persons who, having established a legal relationship 
or being in a de facto relationship with any goods subject to an international 
sanction, become aware of the existence of notifiable or reportable situations 
under Article 7 or Article 18, respectively, are obliged, without delay and without 
prior notification to the competent authorities, to refrain from engaging in any 
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transaction involving the goods in question and to inform the competent 
authorities immediately. 
Ordinul ministrului afacerilor externe nr. 156/2018 pentru aprobarea Listei 
cuprinzând produsele militare supuse regimului de control al exporturilor, 
importurilor și altor operațiuni (Decree No 156/2018 of the Minister for Foreign 
Affairs ratifying the list of military products subject to the system of control of 
exports, imports and other transactions), in force from 5 March 2018 until 4 July 
2019, repealed and replaced by the Ordinul ministrului afacerilor externe nr. 
901/2019 pentru aprobarea Listei cuprinzând produsele militare supuse regimului 
de control al exporturilor, importurilor și altor operațiuni (Decree No 901/2019 
of the Minister for Foreign Affairs ratifying the list of military products subject to 
the system of control of exports, imports and other transactions), in force from 
5 July 2019 until 6 October 2021. The annexes to that decree contained, in 
particular, a category ML11, entitled ‘Electronic equipment, “spacecraft” and 
components not specified elsewhere in this list’. 
Succinct presentation of the facts and procedure in the main proceedings 
1 In 2009, the Ukrainian state-owned company SFTE Spetstechnoexport and the 
Indian state-owned company Hindustan Aeronautics Limited entered into a 
contract for the supply and repair of AN-32 civil aircraft, which SFTE Ukraine 
undertook to supply and repair using components that are manufactured solely in 
the Russian Federation. Following Russia’s invasion of Ukraine (Crimea) in 2014, 
SFTE Ukraine ceased purchasing the parts and equipment needed for the 2009 
contract directly from Russia. 
2 On 4 January 2019, SFTE Spetstechnoexport, as buyer, and the appellant, as 
seller, entered into a contract for the transfer of ownership of the V/UHD Corn R-
800L2E system (32 pieces), whereby the seller undertook to deliver the goods 
FCA to Sharjah (United Arab Emirates), in accordance with INCOTERMS 2000. 
3 On 8 January 2019, the appellant, as buyer, and the Portuguese company 
Additional Rhythm Unipessoal LDA, as seller, entered into a contract for 32 R-
800L2E radio sets, with the goods to be delivered FCA to Sharjah (United Arab 
Emirates), in accordance with INCOTERMS 2010. 
4 Of those 32 radio sets, 20 were exported from Russia to the United Arab Emirates, 
where SFTE Ukraine took delivery of them in Sharjah in January 2019. 
5 On 21 January 2019, SFTE Ukraine asked the appellant to deliver the first batch 
of 20 R-800L2E radio sets directly to the end user of the products in India; the 
goods were shipped from Sharjah to India, where the final beneficiary received 
them on 31 January 2019. 
6 The country of origin of the radio sets is the Russian Federation; the 20 R-800L2E 
radio sets were manufactured by the company Zavod Electrosignal and exported 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-351/22 
 
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by the company Rosaviaspetskomplekt from Russia to Sky Techniques FZE in the 
United Arab Emirates. 
7 By notice of 26 July 2019, the Departamentul pentru Controlul Exporturilor 
(Department of Export Control; ‘ANCEX’) of the Ministerul Afacerilor Externe 
(Ministry of Foreign Affairs) informed the appellant that the R-800L2E radio set 
was on the list of military products (in category ML11) subject to the system of 
control of exports, imports and other transactions, approved by Decree No 901 of 
the Minister for Foreign Affairs of 4 June 2019. In addition, foreign trade 
involving the abovementioned product could be carried out, in accordance with 
the Ordonanța de urgență a Guvernului nr. 158/1999 privind regimul de control al 
exporturilor, importurilor și altor operațiuni cu produse militare (Decree-Law 
No 158/1999 governing the system of control of exports, imports and other 
transactions with military products), on the basis of the registration confirmation 
and the licences issued by ANCEX. 
8 Following the notice of 26 July 2019, on 29 July 2019 ANCEX issued a notice 
informing the appellant that the brokering transaction relating to the R-800L2E 
radio sets came within the scope of Decision 2014/512/CFSP. 
9 The appellant replied to the two ANCEX notices, claiming that the radio sets in 
question were intended for civil use and that Decree No 901/2019 did not apply at 
the time of delivery of those goods. Furthermore, the provisions of Article 2(2)(a) 
of Decision 2014/512/CFSP did not apply either, since the radio sets had not been 
sold to Russia or in Russia, but to the company Hindustan India. In addition, the 
R-800L2E model belonged to a whole category of radio sets which included 
models for both military and civil use: those supplied by the appellant were 
strictly for civil use. 
10 Under the contract of 4 January 2019, on 6 and 9 August 2019, respectively, the 
appellant received the sum of EUR 577 746.08 from SFTE Ukraine by way of an 
advance and the sum of EUR 2 407 215.32 by way of consideration for the 
products delivered.  
11 A complaint dated 19 August 2019, filed by the Oficiul Național de Prevenire și 
Combatere a Spălării Banilor (National anti-money laundering agency) with the 
Parchetul de pe lângă Tribunalul București (Public prosecutor’s office at the 
Regional Court, Bucharest), concerning an alleged money laundering offence 
committed by the appellant, was closed on 11 May 2020 since no criminal offence 
was found to have been committed. 
12 On 12 May 2020, deciding that the appellant had infringed Article 2(2)(a) of 
Decision 2014/512/CFSP and Articles 3(1), 7(1) and 24(1) of Government 
Emergency Order No 202/2008, the respondent issued an infringement notice 
alleging that the applicant had committed a summary offence under 
Article 26(1)(b) of Government Emergency Order No 202/2008. The appellant 
was fined RON 30 000 as the main penalty. In addition, the sum of 
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RON 14 113 003 was confiscated, representing the consideration of 
EUR 2 984 961.40 received from SFTE Spetstechnoexport in Kyiv, Ukraine, on 6 
and 9 August 2019. The appellant concluded that, although ANCEX had informed 
it that the R-800L2E radio set was on the list of military products subject to the 
system of control of exports, imports and other transactions and that the brokering 
transactions concerning that product came within the scope of Decision 
2014/512/CFSP, the appellant had continued with the sale of those products, with 
the relevant consideration being paid into an account held with a bank in 
Romania. 
13 Neves 77 Solutions SRL contested the infringement notice before the Court of 
First Instance, Sector 1, Bucharest by a complaint that was dismissed by the 
judgment of 2 November 2020. The court ruling on the merits found that, on the 
basis of the evidence obtained during the proceedings, Neves 77 Solutions SRL 
had failed to rebut the presumption of legality and the validity of the infringement 
notice. 
14 Neves 77 Solutions SRL appealed the judgment before the referring court, the 
Tribunul București (Regional Court, Bucharest). 
The essential arguments of the parties in the main proceedings 
15 The appellant alleges that the court ruling on the merits ignored most of its 
arguments, including those concerning the fact that Decree No 901/2019, on the 
basis of which the alleged military nature of the radio sets was affirmed, was not 
in force at the time of their sale. Furthermore, according to the appellant, the court 
ruling on the merits failed to rule on its complaints concerning ANCEX’s failure 
to consider the military nature of the products at issue or an infringement of the 
system of export control for military products, the absence of a technical or 
laboratory study establishing the alleged military nature of the radio sets, ANAF’s 
lack of jurisdiction to determine whether a given product can be classed as 
military, and the absence of any contract of sale for goods for military use sent to 
Russia or intended for use in Russia, in a situation where such radio sets were 
purchased by a Portuguese company and sold to a state-owned company in India 
(the final beneficiary). 
16 The appellant contends that the alleged summary offence did not exist, since 
Decree No 901/2019 was not in force at the time of the sale of the radio sets and 
the characterisation of those sets as military was due to the retroactive application 
of the legislative decree in question. 
17 The appellant further submits that the radio sets it supplied were purely for civil 
use and that it had not infringed the provisions of Article 2(2) of Decision 
2014/512/CFSP, since the radio sets were not supplied to entities in Russia, nor 
were they intended for use in Russia. 
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18 Moreover, receiving sums of money representing consideration for the radio sets 
was not prohibited under Decision 2014/512/CFSP, which only prohibited the 
supply of military equipment, but not the transfer of funds. 
19 In the alternative, the appellant requested that ANAF’s confiscation order be 
found not to be proportionate to the gravity of the allegation, the tax authorities 
having acted disproportionately and unlawfully; the failure to identify the correct 
penalty amounted to a violation of the right to protection of property, enshrined in 
Article 1 of Protocol No 1 to the European Convention for the Protection of 
Human Rights. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
20 First, the Regional Court of Bucharest states that the Court of Justice has not 
previously ruled on the provisions for which an interpretation is sought, namely 
Article 2(2)(a) and Articles 5 and 7 of Decision 2014/512/CFSP. Furthermore, the 
correct application of EU law in the present case is so obvious as to leave no 
scope for any reasonable doubt. 
21 Second, the referring court points out that the circumstances of the dispute in the 
main proceedings are different from those in the dispute that led to the judgment 
of 28 March 2017 of the Court of Justice in Rosneft (C-72/15). 
22 Third, the judgment that the referring court is called upon to give in the main 
proceedings is final in the national system of means of redress, such that it is 
obliged, pursuant to the third paragraph of Article 267 TFEU, to refer the matter 
to the Court of Justice. 
23 Since one of the arguments put forward by the applicant concerns the lack of 
proportionality of the confiscation order which applies to the entire sum it 
received, the referring court raises the first question, which concerns the 
interpretation of Decision 2014/512/CFSP, in particular Articles 5 and 7 thereof. 
24 The second question concerns the interpretation of Article 5 of Decision 
2014/512/CFSP, in particular the question whether that provision precludes the 
introduction, in domestic legislation, of a separate obligation to inform/notify the 
competent authorities of any transaction involving goods falling within the scope 
of Article 2(2)(a) of Decision 2014/512/CFSP, under penalty of automatic 
confiscation of any proceeds resulting from the breach of the relevant obligation. 
25 By its third question, the referring court seeks to clarify – considering the 
definition of the concept of ‘brokering services’ contained in Regulation 
No 833/2014 – whether the prohibition laid down in Article 2(2)(a) of Decision 
2014/512/CFSP applies in the case of goods that come from Russia and that have 
not been physically imported into the territory of an EU Member State. 
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26 The Regional Court of Bucharest also points to the existence of national case-law 
on the application of the confiscation order to the entire sum of money destined 
for, used in or resulting from summary offences provided for in other legislative 
acts, noting that it takes into account the principles derived from the case-law of 
the European Court of Human Rights (Ismaylov v. Russia and Moon v. France, 
respectively), in which the penalty of confiscation was found to be 
disproportionate in cases where the infringement actually established (rather than 
the potential infringement, which is yet to occur) does not harm the State, and that 
compliance with the principle under discussion must also be examined in such 
situations from the point of view of the combination of the confiscation and the 
fine, to determine whether, overall, the penalty imposed on the offender goes 
beyond what is necessary in order to attain the objective pursued.