Information;Order — ECLI:EU:C:2024:4
Date: 2024-01-09
Language of the case: Bulgarian
Court formation: Eighth Chamber
Subject matter: Justice and home affairs;Approximation of laws;Judicial cooperation in criminal matters;Area of freedom, security and justice
Procedure: Reference for a preliminary ruling - inadmissible
Origin: Bulgaria

Summary C-338/23 – 1 
Case C-338/23 [Bravchev] 1 
Summary of the request for a preliminary ruling under Article 98(1) of the 
Rules of Procedure of the Court 
Date lodged: 
30 May 2023 
Referring court: 
Sofiyski gradski sad (Bulgaria) 
Date of the decision to refer: 
25 May 2023 
Criminal proceedings against: 
M.S.S. and Others 
  
Subject matter of the main proceedings 
The criminal proceedings were initiated at first instance before the (former) 
Spetsializiran nakazatelen sad (Specialised Criminal Court, Bulgaria), now the 
Sofiyski gradski sad (Sofia City Court, Bulgaria), on 23 October 2019. 
The parties to the criminal proceedings in the present case are, on the one hand, 
the Public Prosecutor’s Office of the Republic of Bulgaria and, on the other hand, 
14 defendants (with defence lawyer either authorised by the defendants or 
appointed ex officio by the court) accused of offences under Article 321(6) of the 
Nakazatelen kodeks (Criminal Code; ‘the NK’), Article 248a(5) of the NK, read in 
conjunction with paragraphs (2), (3) and (4) thereof, read in conjunction with 
paragraph (1) thereof, read in conjunction with Article 26(1) of the NK, read in 
conjunction with paragraph (3) thereof; Article 252(1) of the NK; and 
Article 282(1) of the NK, read in conjunction with Article 20(2) thereof, read in 
conjunction with paragraph (1) thereof 
 
1 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-338/23 
 
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Subject matter and legal basis of the request 
Interpretation of EU law, Article 267 of the Treaty on the Functioning of the 
European Union (TFEU), read in conjunction with Article 19(3)(b) of the Treaty 
on European Union (TEU) 
Interpretation of provisions of EU law and compatibility of Bulgarian law with 
those provisions, which ensures the uniform interpretation and application of the 
law within the European Union under the second subparagraph of Article 19(1) 
TEU, which establishes the remedies sufficient to ensure effective legal protection 
in the fields covered by Union law, read in conjunction with Article 2 TEU (which 
guarantees EU citizens an area of freedom, security and justice) and the value of 
the rule of law enshrined therein, and under Article 47 of the Charter of 
Fundamental Rights; Directive 2012/13/EU on the right to information in criminal 
proceedings; Directive 2013/48/EU on the right of access to a lawyer in criminal 
proceedings; Directive 2016/343 
Questions referred for a preliminary ruling 
1. Are the actions of a defendant’s lawyer, who carries out, during the criminal 
proceedings as the legal of representative of the defendant’s commercial 
company, transactions (in the civil field) intentionally aimed at creating the 
conditions for recusal  and for a ‘conflict of interests’ between the defendant 
and the judge hearing the pending criminal case, compatible with EU law 
and the corresponding Bulgarian law?  
If its answer to that question from the relevant court (the Court of Justice) is 
negative, the Court is asked whether the lawyer representing that defendant, 
who has officially legitimised his or her participation as the legal 
representative of a commercial company owned by the defendant in other 
extra-judicial civil law proceedings which were of a nature to deliberately 
and knowingly create artificial conditions for recusal and a conflict of 
interests between the defendant and the judge in the criminal proceedings 
and during the period in which the criminal proceedings are ongoing, is to 
continue to defend the defendant in those criminal proceedings. 
2. In so far as the assessment of whether there are real grounds for recusal falls 
within the jurisdiction of the national court, how is the right of access to a 
lawyer in criminal proceedings, which is laid down by Directive 
2013/48/EU, to be understood, and is it an absolute right and 
unconditionally linked to a particular lawyer personally? How is the 
contradiction to be resolved between (i) the right of access to a lawyer, laid 
down by the European directive, reflected in national law, which fully 
entitles the defendant to select and engage a lawyer, and (ii) the action of 
that same lawyer who has aided the defendant to create artificial conditions 
for the reporting judge’s recusal? 
BRAVCHEV 
 
3 
3. How should the right of the other 13 defendants to information in criminal 
proceedings and the right of access to the materials of the case, laid down in 
Article 7(2) and (3) of Directive 2012/13/EU, to be interpreted and regulated 
with regard to the request for recusal submitted by the lawyer in question 
and the documents with that request? How should these actions of that 
lawyer be assessed having regard to the right of judges, as  EU citizens, to 
respect for private and family life? 
4. If a defendant succeeds, either personally or through his or her commercial 
company, by means of deliberate and active conduct, in artificially creating 
conditions for a conflict of interest, are those conditions to be considered as 
a ‘conflict of interest’, and constitute a means of hidden pressure to avoid 
criminal proceedings? 
5. Does the request for a preliminary ruling on the above questions constitute a 
ground for the lawyer of the defendant in question to initiate and conduct 
disciplinary proceedings against the judge of the referring national court, 
knowing that that judge lodged a complaint with the competent national 
authorities immediately after the defence lawyer’s actions had been 
discovered? 
Provisions of EU law 
TEU, TFEU, Article 47 of the Charter of Fundamental Rights, Directive 
2012/13/EU on the right to information in criminal proceedings, Directive 
2013/48/EU on the right of access to a lawyer in criminal proceedings, Directive 
2016/343 
Provisions of national law 
Nakazatelno-protsesualen kodeks (Code of criminal procedure), Zakon za 
advokaturata (Law on the legal profession), Etichen kodeks na advokata (Code of 
ethics for the legal profession), Zakon za sadebnata vlast (Law on the judiciary), 
Nakazatelen kodeks (Criminal Code) 
Succinct presentation of the facts and procedure 
1 The criminal proceedings were initiated on 23 October 2019 against M.S.S. and 
13 other persons in respect of criminal offences under Article 321(6) of the NK, 
Article 248a(5) of the NK, read in conjunction with paragraphs (2), (3) and (4) 
thereof, read in conjunction with paragraph (1) thereof, read in conjunction with 
Article 26(1) of the NK, read in conjunction with paragraph (3) thereof, 
Article 252(1) of the NK and Article 282(1) of the NK, read in conjunction with 
Article 20(2) thereof, read in conjunction with paragraph (1) thereof. M.S.S. is 
charged with five offences: 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-338/23 
 
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(1) conspiring with nine other persons to commit, in Bulgaria, criminal offences 
under Article 248[a](5) [of the NK], read in conjunction with paragraph (2) 
thereof, carrying a custodial sentence of at least three years, to obtain a pecuniary 
advantage and exercise unlawful influence over the public authority DF 
Zemedelie [Darzhaven fond Zemedelie, State Agricultural Fund] in relation to the 
granting of financial support to registered farmers under the National Support 
Programme for the Wine Sector and the Rural Development Programme through 
the business operations of his single-member company; 
(2) acting as an instigator and accomplice in collaboration with three other 
persons, on nine separate occasions, intentionally to cause three persons to apply 
for financial support under the National Support Programme for the Wine Sector 
and to make false declarations to the National Agricultural Fund when applying 
for financial assistance, advance payments and final payments, and intentionally 
to make it easier for them to obtain funds from the financial support granted by 
creating artificial conditions allowing him to obtain an advantage by means of the 
business operations of his single-member company and to obtain funds amounting 
to 250 849.46 leva (BGN) made available to the Bulgarian State by the European 
Union and distributed by the State Agricultural Fund; 
(3) acting as an instigator and accomplice in collaboration with five other 
persons, on five separate occasions, artificially to create conditions allowing him 
to obtain an advantage by means of the business operations of his single-member 
company and to obtain funds amounting to 1 173 480 leva (BGN) made available 
to the Bulgarian State by the European Union and distributed by the State 
Agricultural Fund; 
(4) applying for financial support under the Rural Development Programme, 
which is co-financed by the European Agricultural Fund for Rural Development, 
and making false declarations to the State Agricultural Fund when applying for 
financial assistance, thereby creating conditions allowing him to obtain an 
advantage by means of the business operations of his single-member company and 
to obtain funds amounting to 914 467.31 leva (BGN) made available to the 
Bulgarian State by the European Union and distributed by the State Agricultural 
Fund; 
(5) on three separate occasions, making false declarations to the State 
Agricultural Fund when applying for financial assistance under the National 
Support Programme for the Wine Sector, thereby creating conditions allowing 
him to obtain an advantage by means of the business operations of his single-
member company and to obtain funds amounting to 1 641 600 leva (BGN) made 
available to the Bulgarian State by the European Union and distributed by the 
State Agricultural Fund; 
2 Since the beginning of the judicial inquiry process – 25 November 2019 – A.R.P., 
Rechtsanwältin, has been the authorised defence lawyer of defendant M.S.S. 
BRAVCHEV 
 
5 
3 Between 25 November 2019 and 20 January 2023, in spite of the restrictions on 
gatherings of two or more people in one room which had been imposed, on 
medical advice, in connection with the spread of coronavirus, a total of 46 court 
hearings took place in the present case. 
4 Seventy-two witnesses have already been examined; two other witnesses and a 
number of experts who have drafted relevant reports are still to be examined. Part 
of the evidence gathered using SRS [Spetsialni razuznavatelni sredstva (special 
investigation methods)] has already been heard, and the submission of physical 
evidence [is still pending]. The referring court points out that the aforementioned 
procedural steps must be completed within three months. 
5 During the course of the judicial prosecution proceedings, A.R.P., the lawyer 
authorised by the defendant M.S.S., acting as the authorised representative and 
agent of M.S.S. but without the knowledge and consent of the reporting judge 
(rapporteur), had a change registered in relation to the commercial company ‘H’ 
OOD, in which the defendant M.S.S. has a 95% share. By that change, ‘H’ OOD 
acquired all the shares in the commercial company ‘B.B.S.’ EOOD, which 
belonged to S.D., the judge’s cousin. In this way, the company ‘H’ OOD, which is 
95% owned by the defendant M.S.S., became a co-owner, alongside the 
rapporteur and her mother, of a property which the rapporteur had inherited. 
6 In Bulgaria, it is currently permissible to register the sale of all shares in a 
commercial company instead of the sale of a company, the Agentsia po 
vpisvaniyata (Registrations Agency) currently being responsible for these 
registrations. The law is thereby circumvented, as a share in the ownership of a 
property can be transferred from the financial sphere of one commercial company 
into the financial sphere of another commercial company without the buyer and 
seller being obliged to inform the other co-owner of that transfer and without that 
co-owner being able to exercise his or her right of first refusal under Article 33 of 
the Zakon za sobstvenostta (Law on property; ‘the ZS’). 
7 On 16 June 2022, the lawyer A.R.P., who acted as defence lawyer for the 
defendant M.S.S. for two years, already knew the judge by sight, having attended 
the court hearings, and knew the judge’s name, which is not common in Bulgaria, 
and it was that very lawyer who, with authorisation from the defendant, had a 
change registered in the commercial register which made the judge, her mother 
and the defendant’s commercial company co-owners of a property. That action 
took place at a stage when the auction of the property was imminent but had not 
yet been officially announced; that is to say, special efforts were required to 
discover the judge’s financial situation and contact members of her family. It must 
be noted that the commercial company belonging to the defendant M.S.S. can 
have gained no actual advantage from and had no serious economic interest in 
acquiring a share in the co-ownership, as the property was subject to a lifelong 
right of use in favour of the judge and her mother. The only reason for the 
purchase in question of a share in the co-ownership was to create the artificial 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-338/23 
 
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conditions for a conflict of interest on the part of the judge and compel her to 
recuse herself from the criminal proceedings. 
8 However, Bulgarian does not provide for such a change of ownership to be 
entered in the land register, so such circumstances remain hidden from public 
view. 
Supplementary information on the facts (antecedents) concerning the manner 
in which a share in the judge’s property was acquired 
9 It is evident from a notarial deed of 16 March 1965 that the grandfather of the 
criminal court judge, who was born in 1967, had acquired the property in 
question, which is located in the city of Varna, Bulgaria. After his death, the 
property passed to the judge’s father and aunt pursuant to a judgment of the 
Varnenski okrazhen sad (Varna Regional Court, Bulgaria) of 28 March 2012. The 
judge inherited her father’s co-ownership share as sole heir after his death. A 
decision of 21 February 2022 by the division responsible for civil matters of the 
Varnenski rayonen sad (Varna District Court, Bulgaria) ordered the public auction 
of that property, ownership of which was shared by the judge, her mother and 
‘B.B.S.’ EOOD. The sole owner and managing director of ‘B.B.S.’ EOOD is S.D., 
the judge’s cousin. Upon consultation of the commercial register, it was found that 
the commercial company ‘B.B.S.’ EOOD, the managing director of which was 
S.D., sold all its shares to the commercial company ‘MB’ OOD on 3 June 2022 
without selling the company itself. As of 3 June 2022, the public auction had not 
yet been announced, meaning that there was no publicly accessible information 
about the fact that the public auction of a property partly owned by the judge was 
to take place. 
10 The legal significance of that transaction lies primarily in the fact that the 
obligation under Article 33 of the ZS to notify the judge and her mother as co-
owners and their right of first refusal were circumvented; that is to say, the 
transfer of ownership of a share in the property took place not only without their 
consent but even without their knowledge. 
11 The purchase of a company has occurred, concealed by the purchase of 100% of 
its shares by which the commercial company ‘H’ OOD became the owner of 
‘B.B.S.’ EOOD. 
12 Through the purchase of ‘B.B.S.’ EOOD, the defendant M.S.S., as a shareholder 
of the commercial company ‘H’ OOD, became the actual owner of a share in the 
property while, in legal terms, the judge and her mother continued to be co-
owners alongside ‘B.B.S.’, without there being any obligation to inform them who 
had purchased the company and who was actually behind the company ‘B.B.S.’ 
EOOD. It is apparent from the documents in the commercial register that the 
lawyer A.R.P. was actively involved in that legal transaction and that she was 
already aware of it and negotiated on behalf of the defendant regarding the 
property concerned as early as 3 June 2022. 
BRAVCHEV 
 
7 
13 There has been a data breach in relation to the personal data of the reporting 
judge. There is no interest for third parties in purchasing the property, since the 
reporting judge and her mother have the right to use half of the property, meaning 
that, despite the purchase, the property cannot be used. 
14 In practical terms, the commercial company ‘H’ OOD thereby became a co-owner 
of a property inherited by the judge and her mother while an enforcement 
procedure was being initiated but before the auction had been made public and 
carried out. The public auction date was set as 28 July 2022. Only at that point 
could the commercial company ‘MB’ OOD lawfully learn that a property 
belonging to the judge was to be auctioned. 
15 Immediately after the conclusion of that legal transaction, which remains hidden 
and will not be entered in the land register, the lawyer A.R.P., as defence lawyer 
to the defendant M.S.S., submitted a written request for the recusal of the judge 
and declared in the media and in the press that the judge had a conflict of interest. 
16 After discovering what the defence had done, the judge reported the matter to the 
police authorities, which launched an investigation. The matter is currently being 
examined by the Public Prosecutor’s Office. 
17 After the court had announced in open session on 20 January 2023 that it would 
submit a request for a preliminary ruling in respect of the aforementioned facts, 
the defence lawyer A.R.P. even filed a request for the institution of disciplinary 
proceedings against the reporting judge, although the investigation by the Public 
Prosecutor’s Office was still ongoing. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
18 The national court emphasises that the question is essential in that it is a matter of 
preventing future actions on the part of defendants and their defence lawyer to 
create artificial conditions for conflicts of interest which would make the 
administration of justice generally impossible. 
19 The referring court encounters difficulties in interpreting the EU directives on the 
right to information in criminal proceedings and the right of access to a lawyer, in 
that the facts presented give rise to questions about the right of defence of the 
defendant M.S.S., whose authorised lawyer is preventing the criminal proceedings 
from being concluded. The written request for the judge’s recusal filed by the 
defence lawyer A.R.P. and the written evidence concerning the purchase of the 
co-ownership share in the judge’s property by the commercial company owned by 
the defendant M.S.S. also have to be submitted for information purposes to the co-
defendants and their defence lawyers, who can submit responses to them. This 
violates the judge’s right to respect for her private and family life, as the evidence 
contains such data which concerns not only the actions of the defence lawyer but 
also the person and family of the judge. The actions of the defence lawyer A.R.P. 
thereby result in the violation of further fundamental rights, including those of the 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-338/23 
 
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co-defendants in these proceedings, namely their right to have the case dealt with 
within a reasonable time frame, as the case involves considerable complexity in 
terms of facts and points of law, consists of 88 volumes of court files and another 
19 volumes of classified documents, has involved the hearing of 76 witnesses and 
is in the final stages, whereas if the judge were required to recuse herself, it would 
have to be assigned to another judge and restarted. The question is whether the 
rights of defence are absolute or whether the conduct and actions of the defence 
lawyer, which were intended artificially to create the conditions for a conflict of 
interest and to hamper the continuation of the criminal proceedings, ought to be 
taken into account. If the rights of defence in criminal proceedings are considered 
absolute rights which exist independently of the defence lawyer’s conduct during 
the proceedings, the result will be not to protect the defendant’s rights but to 
enable him or her to gain amnesty, as absolute protection would become a lever 
with which to remove inconvenient judges and prevent criminal proceedings from 
being concluded. Any defendant would perceive it as such and take advantage of 
it to evade prosecution. 
Observations of the referring court 
20 In the view of the referring court, the conduct of the defence lawyer authorised in 
the criminal proceedings, who deliberately, as the defendant’s legal representative, 
participated in creating artificial conditions for recusal and a ‘conflict of interest’ 
in relation to the defendant for the judge dealing with the case, is not covered by 
the meaning of a person’s rights of defence in criminal proceedings. A defence 
lawyer must not obstruct the proper conduct of criminal proceedings and must not 
continue to represent the defendant if there is objective evidence from which it 
may be inferred that he or she has engaged in such conduct. The defendant should 
authorise another defence lawyer or request legal counsel appointed ex officio by 
the court. The rights of defence in criminal proceedings should not be absolute; on 
the contrary, the defence lawyer ought to adhere to professional ethics and not 
knowingly and intentionally hamper the conduct of the criminal proceedings. 
21 Other defendants’ right of access to the materials of the case can be guaranteed by 
having legal representatives rejected or not admitted if they are shown on the basis 
of actual documentary evidence deliberately to have created artificial conditions 
for a conflict of interest. That would ensure that criminal proceedings are 
conducted properly and prevent defendants and their legal representatives from 
choosing which judges will hear their cases. That would also be consistent with 
the right of judges, as EU citizens, to respect for their private and family lives. 
22 In the view of the referring court, there is no ‘conflict of interest’ where a 
defendant, either personally or through his or her commercial company, succeeds 
by means of wilful and active conduct in creating artificial conditions for a 
conflict of interest without the knowledge and consent of the judge. 
BRAVCHEV 
 
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23 The referring court considers that the judge’s submission of the above questions 
for a preliminary ruling, after she had lodged a complaint with the Public 
Prosecutor’s Office of the Republic of Bulgaria about the circumstances of an 
artificially created conflict of interest, does not constitute grounds for the defence 
lawyer or the defendant to request the institution of disciplinary proceedings 
against the judge of the referring national court. 
THE EXPEDIENCY OF THE REQUEST FOR A PRELIMINARY RULING 
24 The referring court is not asking whether the judge ought to recuse herself in the 
circumstances described. The court will decide that question independently within 
the framework of the powers conferred on it by national law. 
25 However, the provisions of EU law cited, which have also been transposed into 
Bulgarian law, do not provide a concrete answer to the question of the limits on 
the rights of the defence in criminal proceedings with regard to achievement of the 
objectives and tasks set out in the EU directives. No limits are specified as to 
when the rights of the defence become an instrument for evading criminal 
liability. If a precedent were allowed to be set along these lines, it would trigger 
an avalanche of similar cases in which prosecutions would be directed not against 
those about whom a well-founded suspicion exists but against judges who, instead 
of performing their duties, would be punished precisely for performing their 
duties.