Information;Order — ECLI:EU:C:2023:947
Date: 2023-12-01
Language of the case: Bulgarian
Court formation: Seventh Chamber
Subject matter: Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Bulgaria

Summary C-174/22 – 1 
Case C-174/22 
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: 
8 March 2022 
Referring court: 
Varhoven kasatsionen sad (Bulgaria) 
Date of the decision to refer: 
25 February 2022 
Appellant in the appeal in cassation: 
EV 
  
Subject matter of the main proceedings 
The proceedings were initiated following an appeal in cassation brought by the 
accused EV against Decision No 57/05.08.2021 of the Court of Appeal, Varna. 
By the decision contested before the Court of Cassation, the Court of Appeal had 
upheld judgment No 22/22.03.2021 of the Regional Court, Varna, by which EV 
had been found guilty of possession of drug precursors, without an appropriate 
licence and for the purpose of distribution, on 21 December 2018 in Varna, 
specifically two litres of toluene worth BGN 24, a material used to produce highly 
dangerous narcotic substances (methamphetamine), and 11.18 grams of red 
phosphorus worth BGN 2.79, all for a total value of BGN 26.79, and was, for that 
reason, under the second sentence of Article 354a(1) of the Nakazatelen kodeks 
(Criminal Code, Bulgaria; ‘the NK’) in conjunction with Article 58a(1) and 
Article 54 of the NK, sentenced to an initial custodial penalty of two years under 
the general rules on the penal system and a fine of BGN 20 000. 
Subject matter and legal basis of the request 
The request for a preliminary ruling is made under Article 267(1)(b) TFEU. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-174/22 
 
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Question referred for a preliminary ruling 
Do the provisions of Regulation (EC) No 273/2004 of the European Parliament 
and of the Council of 11 February 2004, which supplement the blanket provision 
of Article 354a of the NK in conjunction with Article 3(4) of the Zakon za kontrol 
varhu narkotichnite veshtestva i prekursorite (Law on the control of narcotic 
substances and drug precursors; ‘the ZKNVP’), allow a person to be found guilty 
of possession of a category 3 substance as per Annex I, namely toluene in a 
quantity of two litres? 
Provisions of international law relied on 
United Nations Convention against Illicit Traffic in Narcotic Drugs and 
Psychotropic Substances, Article 3 
Provisions of European Union law and case-law relied on 
Regulation (EC) No 273/2004 of the European Parliament and of the Council of 
11 February 2004 on drug precursors, Article 2, Article 3(2) and (6), Article 8, 
Annex I 
Provisions of national law relied on 
Criminal Code, Bulgaria (NK), Article 354a 
Law on the control of narcotic substances and drug precursors (ZKNVP), 
Articles 1, 3 and 18a, Supplementary provisions, Paragraph 1, point 14 
Naredba Nº 1 za kontrol na prekursorite na narkotichnite veshtestva (Regulation 
No 1 on the control of drug precursors) of 18 April 2008, Articles 1, 11 and 18, 
Annex 1 
Succinct presentation of the facts and procedure in the main proceedings 
1 On 21 December 2018, three officers of the Varna municipal police noticed three 
persons who were visibly unsettled by the police presence. After verifying their 
identities, it transpired that it was the accused EV and two of his associates, who 
would later appear as witnesses in the proceedings. When asked whether they 
were in possession of drugs or other prohibited substances, the witnesses 
answered in the negative. During the conversation, the accused stated that he had 
two bottles of toluene on his person. He opened his bag, which contained an 
electronic scale and a polyethylene bag containing a red powdery substance; 
Mr EV explained that this was red phosphorus. The accused handed over the 
described items voluntarily, stating that he had purchased red phosphorus on an e-
commerce website and toluene in a shop and that the substances were ingredients 
EV 
 
3 
for manufacturing ‘Pico’ (methamphetamine). The police officers took the 
accused to the police station. In the report drawn up in relation to the voluntary 
handover, Mr EV himself stated in writing that he had intended to take the items 
to an acquaintance who was to pay him their purchase price. 
2 According to the results of the physico-chemical analysis, items 1 and 2 
(colourless clear liquids with a total volume of 2 000 ml) are toluene; item 3 (a 
violet substance with a net weight of 11.64 g) is red phosphorus; item 4 (a grey 
electronic scale) has traces of methamphetamine. 
3 Based on the results of the analyses carried out, the experts came to the conclusion 
that the items could be used as precursors in a process for synthesising the 
narcotic substance methamphetamine by means of what is known as the 
ephedrine/pseudoephedrine reduction method, which involves heating in the 
presence of hydroiodic acid. 
4 The precursor is ephedrine/pseudoephedrine, which is most often obtained by 
extraction (purification) from pharmaceutical forms (capsules, tablets, ampoules). 
Hydroiodic acid is used during the stage where the precursor 
ephedrine/pseudoephedrine is reduced to methamphetamine, which acid is 
obtained by adding a prepared solution of red phosphorus (item 3) and iodine in 
the presence of phosphoric acid mixed in an aqueous medium. Methamphetamine 
base is obtained from the reaction of ephedrine/pseudoephedrine with hydroiodic 
acid. The process is carried out by heating on a stove in a glass vessel, which may 
be equipped with a reflux condenser and/or thermometer. Sodium hydroxide is 
added to the reaction mixture and solvents containing toluene (items 1 and 2) are 
used to extract the methamphetamine produced; acetone, ether, isopropyl and 
other substances are used to purify the methamphetamine. The end product, in the 
form of hydrochloride salt or sulphate, is obtained as a synthesis product in the 
form of a base; it is treated with sulphuric or hydrochloric acid, after which it is 
separated from the mixture and dried, taking the form of crystals. 
5 According to the findings of the appraisal report, the total value of the substances 
found is BGN 26.795, with the value of the two toluene bottles amounting to 
BGN 24.00 and the value of 11.18 g of red phosphorus to BGN 2.795. 
The essential arguments of the parties in the main proceedings 
6 The accused and his defence counsels argue that the act does not constitute an 
offence within the meaning of the second sentence of Article 354a(1) of the NK, 
since the two substances found on the person of the accused during the police 
check have a legal use and are very common in day-to-day life. In support of the 
view that the act does not meet the conditions of the offence, the defence counsels 
make reference to Regulation (EC) No 273/2004 of the European Parliament and 
of the Council on drug precursors, pointing out that the substance toluene is listed 
under category 3 of Annex I and that its possession does not require a licence 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-174/22 
 
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within the meaning of Article 3(2) of the Regulation nor a registration pursuant to 
Article 3(6) of the Regulation. 
7 The public prosecutor opposes this view, considering the arguments put forward 
by the defence to be unconvincing. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
8 In order to meet the requirements of Article 3(1)(a)(iv) and 3(1)(c)(ii) of the 
United Nations Convention against Illicit Traffic in Narcotic Drugs and 
Psychotropic Substances, the Criminal Code of the Republic of Bulgaria 
criminalises various acts involving substances that may serve as precursors in the 
drug manufacturing process. The chosen legislative approach of regulating in one 
single provision – namely Article 354a(1) of the NK – two criminal offences that 
differ from one another only in terms of the subject of the offence also 
predetermines the special features of the offence whose subject is drug precursors. 
9 Firstly, the second sentence of Article 354a(1) of the NK is a blanket provision, 
and for the act to constitute an offence it is necessary that its content be 
supplemented by the provisions of the Law on the control of narcotic substances 
and drug precursors (ZKNVP) and the regulations adopted pursuant to the law for 
its application. Reference is made to these provisions in relation to two aspects: a) 
the substances constituting precursors and b) the procedure and basis by which 
licences are granted to carry out activities relating to such substances. 
10 Article 1(3) of the special law ZKNVP transposes the requirements of Regulation 
(EC) No 273/2004 of the European Parliament and of the Council on drug 
precursors, on the one hand, and of Council Regulation (EC) No 111/2005 laying 
down rules for the monitoring of trade between the Community and third 
countries in drug precursors, on the other. 
11 The ZKNVP was implemented by Regulation No 1 of 18 April 2008 on the 
control of drug precursors. In Annex 1 thereto, the substances that may be used as 
precursors are divided into three categories, in accordance with the distinctions 
made in the two Community regulations. 
12 These considerations on the need to supplement the second sentence of 
Article 354a(1) of the NK and on the material scope of the ZKNVP, in so far as it 
concerns drug precursors, also justify the application of EU law to the case at 
issue in the main proceedings. 
13 The second special feature of the offence set out under the second sentence of 
Article 354a(1) of the NK is that, for the act to constitute an offence, it is 
necessary that it be an activity involving production, processing, acquisition, 
possession or distribution of precursors without an appropriate licence. Except in 
cases involving what are known as highly dangerous narcotic substances, the 
prohibition of which results from the law itself, in all other cases, including cases 
EV 
 
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relating to the possession of precursors intended for the production of narcotic 
substances, an appropriate licence is understood to be a legal act of a government 
authority authorising the holder to lawfully carry out the activity of production, 
processing, acquisition, possession or distribution of the substances in question, 
where this occurs for medical, scientific or research purposes. In the absence of 
such a legal act, the objective element of the offence ‘without an appropriate 
licence’ is satisfied. 
14 One element constituting the subject of the offence in the main proceedings, 
namely the two litres of toluene, falls within category 3 of Annex 1 to Regulation 
No 1 of 18 April 2008 and within the same category in Regulation (EC) 
No 273/2004 of the European Parliament and of the Council on drug precursors. 
There is no provision to the effect that a licence or registration would be required 
to engage in activities relating to substances in this category, and in particular to 
the possession of such substances, regardless of whether the accused is considered 
to be an operator within the meaning of Article 2(d) of Regulation (EC) 
No 273/2004 (in so far as the charge brought is that the criminalised substances 
were intended for further sale) or a user within the meaning of Article 2(h) of that 
Regulation (in so far as Mr EV is charged with possession of a listed substance). 
Although, in relation to the substances in the first two categories of Annex 1, 
national case-law has established that the act is carried out without an appropriate 
licence, in so far as the licences (for category 1 substances) or registrations (for 
category 2 substances) required by the ZKNVP and Regulation No 1 are missing, 
the national courts merely point out that category 3 substances are subject to 
control under Regulation (EC) No 273/2004 of the European Parliament [and of 
the Council], without stating what substantive requirements apply to activities 
involving category 3 substances and whether a specific legal act issued by a 
government authority is required for their acquisition, possession and use. It is 
only in the decision under review, which is the subject of the main proceedings, 
that the lack of an appropriate licence is, as an objective element of the offence set 
out under the second sentence of Article 354a(1) of the NK, based on the purpose 
of the substance, namely the production of narcotic substances. 
15 The referring court takes the view that, in light of the length of the criminal 
proceedings (the criminal proceedings were initiated on 11 March 2019 and the 
bill of indictment filed on 24 February 2021 before the Regional Court, Varna), 
the requirements of Article 107 of the Rules of Procedure of the Court of Justice 
of the European Union have been satisfied. In addition, the accused EV was 
remanded in custody pending trial for a prolonged period of time, namely from 
22 January 2021 to 25 January 2022. It is in the interests of the accused that the 
question surrounding his criminal liability be clarified quickly.