Opinion of the Advocate General — ECLI:EU:C:2023:322
Date: 2023-04-20
Language of the case: Bulgarian
Subject matter: Judicial cooperation in criminal matters;Police cooperation;Area of freedom, security and justice
Procedure: Reference for a preliminary ruling
Origin: Bulgaria

Summary C-219/22 – 1 
Case C-219/22 
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: 
28 March 2022 
Referring court: 
Rayonen sad Nesebar (Bulgaria) 
Date of the decision to refer: 
25 March 2022 
Criminal proceedings against: 
QS 
  
Subject matter of the main proceedings 
Criminal proceedings against the Romanian national QS for a criminal offence 
under Article 343b(1) of the Nakazatelen kodeks (Criminal Code, Bulgaria; ‘the 
NK’), committed in Bulgaria during the probation period imposed on him in a 
previous conviction for a criminal offence under Article 336(1) of the Criminal 
Code in force in Romania, in which he was sentenced to a term of imprisonment 
suspended for a probation period of two years. 
Subject matter and legal basis of the request 
Interpretation of EU law; Article 267 TFEU 
Question referred for a preliminary ruling 
Must Article 3(3) of Council Framework Decision 2008/675/JHA of 24 July 
2008 on taking account of convictions in the Member States of the European 
Union in the course of new criminal proceedings be interpreted as precluding 
national legislation such as Article 68(1) of the NK, in conjunction with 
Article 8(2) thereof, which provides that the national court seised of an application 
for execution of the sentence imposed by a previous conviction handed down by a 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-219/22 
 
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court of another Member State may, for that purpose, alter the arrangements for 
executing that sentence by ordering its actual execution? 
EU legislation and case-law 
Council Framework Decision 2008/675/JHA of 24 July 2008 on taking account of 
convictions in the Member States of the European Union in the course of new 
criminal proceedings: Articles 1 to 3 
Judgment in Case C-221/19 of 15 April 2021, EU:C:2021:278; 
Judgment in Case С-171/16 of 21 September 2017, EU:C:2017:710; 
Judgment in Case С-390/16 of 5 July 2018, EU:C:2018:532. 
Provisions of national law 
NK: Articles 8, 66, 68 and 343b 
Nakazatelno-protsesualen kodeks (Code of Criminal Procedure, Bulgaria; ‘the 
NPK’): Articles 306, 381, 382 and 383 
Judgments of the Varhoven kasatsionen sad (Supreme Court of Cassation, 
Bulgaria; ‘the VKS’) of the Republic of Bulgaria: Judgment of 2 January 2019 of 
the Third Criminal Division of the VKS in a criminal case from 2018, and 
judgment of 26 February 2021 of the Second Criminal Division of the VKS in a 
criminal case from 2020 
Succinct presentation of the facts and procedure in the main proceedings 
1 In a case from 2018, the court of Tur[d]a, by judgment of 3 April 2019, which was 
definitively upheld by a decision of the Court of Appeal, Cluj, which became final 
on 24 June 2019, convicted QS – a Romanian national permanently resident in 
Sibiu, Romania, single, previously convicted, student – of a criminal offence 
under Article 336(1) of the Romanian Criminal Code, sentencing him to a term of 
imprisonment of one year and six months, the execution of which was suspended 
for a probation period of two years. 
2 During the probation period, on 1 September 2020, QS committed a criminal 
offence under Article 343b(1) of the NK of the Republic of Bulgaria. At around 
2.04 a.m. on 1 September 2020, he was driving a passenger car of the make 
‘Dacia’ near the Nesebar stadium in Nesebar, in the direction of the Slanchev 
Bryag holiday resort, with a blood alcohol content exceeding 0.12%, namely 
0.229% (zero point two nine), which was duly established by means of a ‘Dräger 
Alcotest 7510’ measuring device. By order of the Rayonen sad Nesebar (District 
Court, Nesebar) – which became final on 9 March 2022 – concerning the approval 
QS 
 
3 
of an agreement [between the offender and the public prosecutor’s office] in a 
criminal case from 2021, subject to public prosecution, the following penalties 
were imposed on QS for the abovementioned criminal offence: a custodial 
sentence of 3 (three) months, initially to be served under the general regime in 
accordance with Article 57(1)(3) of the Zakon za izpalnenie na nakazaniata i 
zadarzhaneto pod strazha (Law on the enforcement of penalties and on remand in 
custody; ‘the ZINZS’); a fine of 150 000 Bulgarian leva (BGN); and withdrawal 
of the right to drive a motor vehicle for a period of 12 months in accordance with 
Article 343d of the NK, in conjunction with Article 343b(1) and Article 37(1)(7) 
thereof. 
3 In accordance with Article 68(1) of the NK, a prosecutor of the Rayonna 
prokuratura Burgas (District Public Prosecutor’s Office, Burgas), Nesebar 
territorial division, requested that the custodial sentence of one year and six 
months which had been imposed in the criminal case of the Court of Appeal, Cluj 
be executed, as the offence in the case of 2021 of the District Court, Nesebar was 
committed during the probation period set by the Court of Appeal, Cluj. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
4 For the reasons set out below, the referring court considers that the request for a 
preliminary ruling is relevant to the correct resolution of the case in the main 
proceedings. 
5 Council Framework Decision 2008/675/JHA of 24 July 2008 on taking account of 
convictions in the Member States of the European Union in the course of new 
criminal proceedings lays down the principle that it is necessary to determine the 
conditions under which, in the course of criminal proceedings in a Member State 
against a person, previous convictions handed down against the same person for 
different facts in other Member States, are taken into account. The principles 
enshrined in the abovementioned framework decision were transposed into 
Bulgarian law by the provision of Article 8(2) of the NK. Under that provision, a 
conviction handed down in another Member State of the European Union, that has 
become final, for an act which constitutes a criminal offence under the NK is to be 
taken into account in any criminal proceedings initiated against the same person in 
the Republic of Bulgaria. 
6 According to Article 3(1) of the framework decision, each Member State is to 
ensure that in the course of criminal proceedings against a person, previous 
convictions handed down against the same person for different facts in other 
Member States, in respect of which information has been obtained under 
applicable instruments on mutual legal assistance or on the exchange of 
information extracted from criminal records, are taken into account to the extent 
[that] previous national convictions are taken into account, and that equivalent 
legal effects are attached to them as to previous national convictions, in 
accordance with national law. Article 3(3) of the framework decision provides that 
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the taking into account of previous convictions handed down in other Member 
States, as provided for in paragraph 1, is not to have the effect of interfering with, 
revoking or reviewing previous convictions or any decision relating to their 
execution by the Member State conducting the new proceedings. 
7 In a series of judgments, the Court of Justice of the European Union (‘the Court’) 
interpreted Article 3(3) of the framework decision. By its judgment in Case 
C-221/19 of 15 April 2021, it ruled that Article 3(3) of Council Framework 
Decision 2008/675/JHA of 24 July 2008 on the European arrest warrant and the 
surrender procedures between Member States, read in the light of recital 14 
thereof, must be interpreted as permitting the issue of an aggregate sentence 
covering not only one or more previous convictions handed down against the 
person concerned in the Member State in which that aggregate sentence is 
delivered, but also one or more convictions handed down against him in another 
Member State and which are enforced, under Framework Decision 2008/909, as 
amended by Framework Decision 2009/299, in the first Member State, on 
condition that that aggregate sentence observes, in so far as concerns the latter 
convictions, the conditions and limits arising from Article 8(2) to (4), 
Article 17(2) and Article 19(2) of that framework decision 2008/909, as amended. 
8 By its judgment in Case С-390/16 of 5 July 2018, it ruled that Council Framework 
Decision 2008/675/JHA of 24 July 2008 on taking account of convictions in the 
Member States of the European Union in the course of new criminal proceedings, 
read in the light of Article 82 TFEU, must be interpreted as precluding the taking 
into account in a Member State, in new criminal proceedings brought against a 
person, of a final judgment previously handed down by a court of another Member 
State convicting that person of other offences being conditional on a special 
procedure for prior recognition, such as that at issue in the main proceedings, by 
the courts of the first Member State. 
9 According to point 3 of the operative part of the judgment in Case С-171/16 of 
21 September 2017, Article 3(3) of Framework Decision 2008/675 must be 
interpreted as precluding national legislation which provides that a national court, 
seised of an application for the imposition, for the purposes of execution, of an 
overall custodial sentence that takes into account, inter alia, the sentence imposed 
following a previous conviction handed down by a court of another Member State, 
may alter for that purpose the arrangements for execution of that latter sentence. 
10 It can be concluded from the framework decision cited and from the Court’s 
judgments interpreting the provisions of that framework decision that, first, the 
conviction in another Member State must be taken into account by the Member 
State in which the new criminal proceedings have been brought, without the need 
to conduct an execution procedure. That is precisely the situation in the case in the 
main proceedings, since the conviction in Romania preceded the conviction in the 
Republic of Bulgaria. It is apparent from the conviction handed down by the court 
of Tur[d]a on 3 April 2019 in the case from 2018, which was definitively upheld 
by the decision of the Court of Appeal, Cluj that became final on 24 June 2019, 
QS 
 
5 
and which was duly requested (through instruments of mutual legal assistance), 
that the convicted person was convicted of a criminal offence under Article 336(1) 
of the Criminal Code in force in Romania and was sentenced to a term of 
imprisonment of one year and six months, the execution of which was suspended 
for a probation period of two years (until 24 June 2021). On the basis of the 
information collected in the course of the pre-trial stage of the proceedings by 
means of mutual legal assistance, it was established that the criminal offence 
within the meaning of Article 336(1) of the Criminal Code in force in Romania is 
similar to that described in Article 343b(1) of the NK of the Republic of 
Bulgaria – driving a motor vehicle while under the influence of alcohol. During 
the probation period, on 1 September 2020, the person committed a criminal 
offence under Article 343b(1) of the NK. By order concerning the approval of an 
agreement [between the offender and the public prosecutor’s office], which 
became final on 9 March 2021, he was given a custodial sentence of three months 
for that criminal offence, initially to be served under the general regime in 
accordance with Article 57(1)(3) of the ZINZS. For such cases, Article 68(1) of 
the NK provides that the convicted person must also serve the suspended custodial 
sentence if, during the probation period, he or she commits another intentional 
criminal offence which is subject to public prosecution and for which a custodial 
sentence is imposed on him or her, even if the conviction takes place after the 
expiry of that period. 
11 It follows that, under Article 68(1) of the NK, all the requirements for the 
execution of the custodial sentence of one year and six months imposed by the 
Court of Appeal, Cluj are met: the convicted person committed another intentional 
criminal offence (on 1 September 2020, under Article 343b(1) of the NK) before 
the expiry of the probation period (before 24 June 2021), a criminal offence which 
is subject to public prosecution and for which a custodial sentence (of three 
months) was imposed on him. On the other hand, the provision of Article 3(3) of 
Council Framework Decision 2008/675/JHA stipulates that the taking into 
account of previous convictions handed down in other Member States, as provided 
for in paragraph 1, is not to have the effect of interfering with, revoking or 
reviewing previous convictions or any decision relating to their execution by the 
Member State conducting the new proceedings. 
12 It follows that, on the one hand, the referring court is required, under Article 68(1) 
of the NK, in conjunction with Article 8(2) thereof, to take into account the effects 
and to enforce the previous conviction by the Romanian court. On the other hand, 
Article 3(3) of the framework decision requires that a decision relating to the 
execution of a sentence not be subject to a review. Since the present case does not 
involve a typical review, but rather a statutory obligation to enforce the sentence 
under Article 68(1) of the NK (that is to say, the court is bound by the 
requirements provided for in Article 68(1) of the NK and does not review, at its 
own discretion, a previous conviction suspended for a certain period of time), and 
since no cases concerning the relationship between Article 3(3) of the framework 
decision and Article 68(1) of the NK (or similar provisions in other legal systems) 
have been referred to the Court to date, there is a need for an interpretation of the 
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provisions cited. That is the case because, under the framework decision, a review 
of the regime for executing the sentence is not permissible, and the Court has 
ruled to that effect. However, the judgments in question differ from the present 
case (for example, the facts of Case С-171/16, in which it was ruled, by judgment 
delivered on 21 September 2017, that it is prohibited to alter the arrangements for 
enforcing the sentence imposed in another Member State when determining an 
overall custodial sentence). The referring court submits that the case in the main 
proceedings is different in nature, since the manner in which the sentence is 
executed is not altered at the discretion of the Bulgarian court, but is the 
consequence of a mandatory provision in force in Bulgaria, namely Article 68(1) 
of the NK, which does not permit the court to take its own decision, but rather, if 
all the requirements are met (as in the present case), obliges the court to execute 
the sentence which has been suspended for a certain probation period. 
13 That issue has been only marginally addressed in the case-law of the Bulgarian 
courts. In the judgment of 2 January 2019 in a criminal case from 2018, the Third 
Criminal Division [of the VKS] stated that the non-recognition of a conviction 
handed down by a foreign court is an obstacle only to the possibility of its 
execution in Bulgaria. However, it is not an obstacle to the taking into account of 
its secondary effects, which, according to the law and case-law, are inter alia as 
follows: the legal qualification of the criminal offence in the new criminal 
proceedings; the application of the provisions of Articles 23 to 25 of the NK; the 
possibility of suspended sentencing or the execution of a sentence on the basis 
of Article 68 of the NK; the assessment of whether there are circumstances which 
aggravate guilt; the establishment of a risk of absconding and/or reoffending. In 
the judgment of 26 February 2021 in a criminal case from 2020, the Second 
Criminal Division of the VKS stated that the provision of Article 8(2) [of the NK] 
brings Bulgarian law into line with Council Framework Decision 2008/675/JHA 
and applies to the taking into account of convictions handed down in another 
Member State against the same person but in respect of different criminal offences 
(Article 3(1)), for example with a view to applying Article 23 and Article 25 of 
the NK. However, the statements in those judgments were made by way of 
example, and the application of Article 68(1) of the NK was not the subject of 
consideration by the respective compositions of that court.