Information;Order — ECLI:EU:C:2023:662
Date: 2023-09-06
Language of the case: Romanian
Court formation: Sixth Chamber
Subject matter: Principles, objectives and tasks of the Treaties;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling - inadmissible
Origin: Romania

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: 
29 March 2022 
Referring court: 
Judecătoria Lehliu-Gară (Romania) 
Date of the decision to refer: 
6 December 2021 
Accused persons: 
KN 
LY 
OC 
DW 
  
Subject matter of the main proceedings 
Criminal prosecution of the accused persons KN, LY, OC and DW, who are 
charged with a number of offences. 
Subject matter and legal basis of the request for a preliminary ruling 
Pursuant to Article 267 TFEU, an interpretation is sought of Article 2 TEU, in 
conjunction with Articles 48(2) and 49 of the Charter of Fundamental Rights of 
the European Union (‘the Charter’). 
Question referred for a preliminary ruling 
Does Article 2 of the Treaty on European Union (concerning respect for the 
principles of the rule of law and respect for human rights), in conjunction with 
Article 48(2) of the Charter of Fundamental Rights of the European Union, 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-230/22 
 
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concerning the rights of the defence, and Article 49 of the Charter of Fundamental 
Rights of the European Union, concerning the principle of the legality of criminal 
offences and penalties, preclude national legislation which makes it a criminal 
offence to perform an act in breach of any law whatsoever, without expressly 
specifying the laws or legal provisions the breach of which gives rise to criminal 
liability? 
Provisions of EU law relied on 
Article 2 TEU 
Article 48(2) and Article 49 of the Charter 
Provisions of national law relied on 
Article 248 of the vechiul Cod penal (former Romanian Criminal Code, ‘the 
VCP’), which specified the criminal offence of ‘abuse of office against the public 
interest’ and pursuant to which a public official who, in the exercise of his or her 
duties, intentionally omits to perform an act or intentionally performs an act 
incorrectly and thereby occasions significant disruption to the proper functioning 
of, or material loss to, a State body or entity or other institution as referred to in 
Article 145 is liable to punishment by a term of imprisonment of between six 
months and five years. 
Legea nr. 215/2001 privind administrația publică locală (Law No 215/2001 on 
local government: Article 63(4)(a), pursuant to which a mayor acts as Chief 
Authorising Officer (ordonator principal de credite). 
Legea nr. 500/2002 privind finanțele publice (Law No 500/2002 on public 
finances) 
Article 22 – Responsibilities of authorising officers 
‘1. Authorising officers shall be under an obligation to commit expenditure 
within the limits of commitment appropriations and to use financial appropriations 
only within the limits of the approved provisions and purposes, for expenditure 
relating strictly to the activities of the public entities concerned and in accordance 
with the law. 
2. Authorising officers shall be responsible by law for: 
(a) the commitment, validation and authorisation of expenditure within the 
limits of commitment appropriations and financial appropriations allocated and 
approved in accordance with Article 21; … 
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(c) the commitment and use of expenditure within the limits of commitment 
appropriations and financial appropriations in accordance with sound financial 
management; … 
(f) the organisation of the system for the supervision of the public procurement 
programme and the public investment works programme; …’. 
Article 24 – Internal preventive financial supervision 
‘1. The commitment, validation and authorisation of expenditure from public 
funds shall be approved by the authorising officer and the relevant payments shall 
be made by the head of the financial accounting department or the person 
responsible for making such payments. 
2. The commitment and authorisation of expenditure shall take place only with 
the prior approval of internal preventive financial supervision and delegated 
preventive financial supervision, depending on the case, in accordance with the 
law.’ 
Article 44 – Supervision of investment projects by Chief Authorising Officers 
‘1. Throughout the duration of budget implementation, Chief Authorising 
Officers shall supervise the implementation of the investment process, in 
accordance with the provisions of the present Law, and shall draw up quarterly 
monitoring reports … 
2. If, in the course of the investment process, problems arise in the attainment 
of an objective, the Chief Authorising Officer shall mention in the monitoring 
report the cause thereof and the measures required to remedy the problem. … 
6. Chief Authorising Officers shall be responsible for the attainment of the … 
investment objectives included in public investment programmes.’ 
Legea nr. 273/2006 privind finanțele publice locale (Law No 273/2006 on local 
public finances) 
‘Article 54 – Budget implementation 
1. In the process of budget implementation, budgetary expenditure shall pass 
through the following stages: commitment, validation, authorisation and payment. 
… 
3. The specific steps of commitment, validation and authorisation of 
expenditure shall be the responsibility of authorising officers and shall be carried 
out on the basis of the opinions of the specialised departments of public entities. 
… 
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5. Payment instruments shall be accompanied by supporting documents. Such 
documents shall certify the accuracy of the sums to be paid, the receipt of the 
goods, the performance of the services and other such relevant matters, in 
accordance with the legal commitments entered into. Payment instruments shall 
be signed by the accounting officer and by the head of the financial accounting 
department. 
6. Payments shall be made, within the limits of the approved financial 
appropriations, only on the basis of the supporting documents, drawn up in 
accordance with the law, and only after they have been committed, validated and 
authorised. 
… 
8. For certain categories of expenditure, advance payments of up to 30% may 
be made, subject to the applicable legal provisions. 
9. Sums representing advance payments, made in accordance with paragraph 8, 
but not justified by the delivery of goods or the carrying out of works or the 
provision of services by the end of the year in accordance with the terms of the 
contract shall be recovered by the public entities which made the advance 
payment and shall be paid back into the budget from which they were drawn. … 
10. Where an advance payment has been made in respect of goods, works or 
services which are then not delivered, carried out or provided, the recovery of the 
sums advanced by the public entity shall include additional charges for arrears at 
the rate applicable to budgetary revenue, calculated for the period between the 
grant of the advance payment and its recovery.’ 
Ordinul ministrului finanțelor publice nr. 1 792 din 24 decembrie 2002 pentru 
aprobarea Normelor metodologice privind angajarea, lichidarea, ordonanțarea și 
plata cheltuielilor instituțiilor publice, precum și organizarea, evidența și 
raportarea angajamentelor bugetare și legale (Order No 1 792 of 24 December 
2002 of the Minister for Public Finances approving the methodological rules 
governing the commitment, validation, authorisation and payment of expenditure 
by public entities and for the organisation, documentation and reporting of 
budgetary and legal commitments). 
Point 2 of the methodological rules reads as follows: 
‘2. Validation of expenditure 
This is the stage of the budget implementation process in which the existence of 
the commitment is verified, the sums due are determined or verified, and the 
conditions of enforceability of the legal commitment are verified on the basis of 
the supporting documents which attest to the transaction concerned. 
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The existence of the payment obligation shall be verified by checking the 
supporting documents which show the creditor’s claim and the reality of the 
“service carried out” (the goods delivered, the works carried out or the services 
provided or, where appropriate, the existence of a document justifying the 
payment: an enforceable title, a loan agreement, a grant agreement, etc.) … 
The determination or verification of the sums due to the creditor shall be carried 
out by the individual mandated by the authorising officer, on the basis of the 
information contained in the invoice and the documents drawn up by the 
acceptance committee established in accordance with the law … 
Documents which attest to the goods delivered, the works carried out or the 
services provided, or which evidence a definite payment obligation, shall be 
endorsed “passed for payment” by the authorising officer or the person mandated 
to do so, in confirmation of the following: 
‒ the acceptance of the goods supplied, specifying the date and place of 
acceptance; 
‒ the works have been carried out and the services provided; 
‒ the goods supplied have been recorded in the management accounts and 
financial accounts, specifying the management and accounting entry note; … 
The signing of the invoice and the apposition of the endorsement “passed for 
payment” thereon certifies that the service has been carried out by the supplier 
correctly and that all of the items included in the invoice have been verified. … 
The individual mandated to validate the expenditure shall personally check the 
supporting documents and shall, under his or her own responsibility, confirm that 
that check has been carried out.’ 
Hotărârea Guvernului nr. 264/2003 privind stabilirea acțiunilor și categoriilor de 
cheltuieli, criteriilor, procedurilor și limitelor pentru efectuarea de plăți în avans 
din fonduri publice, republicată, cu modificările și completările ulterioare 
(Government Decision No 264/2003 establishing expenditure actions and 
expenditure categories and the criteria, procedures and limits applicable to the 
making of advance payments from public funds, republished, as subsequently 
amended and supplemented) 
Succinct presentation of the facts and procedure in the main proceedings 
1 In an official report of 9 May 2013, the Curtea de Conturi a României – Camera 
de Conturi Călărași (Court of Auditors, Romania – Călărași Section) found, with 
regard to capital expenditure incurred by the Unitatea Administrativ Teritorială a 
Comunei Sărulești (Territorial Administrative Unit of the Municipality of 
Sărulești), that, in the period from 2009 to 2012, the municipal council of Sărulești 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-230/22 
 
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had approved, on the basis of the corresponding documentation, expenditure for 
works that had not in fact been carried out. Those works related to three 
investment objectives included in the annual programme of public investments for 
2009, namely ‘Water supply in the village of Sărulești in the municipality of 
Sărulești’ (investment objective no 1), ‘Extension of the water supply in the 
village of Sărulești-Gară in the municipality of Sărulești’ (investment objective 
no 2) and ‘Construction of a municipal stadium’ (investment objective no 3). The 
estimated value of the transactions found in the report to be irregular, that is to 
say, the payments made for works not carried out, was 635 267 Romanian lei 
(RON). 
2 On 17 March 2014 the police authorities were notified of the commission of 
criminal offences by the Territorial Administrative Unit of the Municipality of 
Sărulești as a result of which RON 635 000 had been paid from public funds for 
investments that had not been carried out. 
3 The criminal proceedings in question concluded with the accused persons KN, 
LY, OC and DW being committed for trial before the Judecătoria Lehliu-Gară 
(Court of First Instance, Lehliu-Gară), which is the referring court. 
4 KN is being prosecuted, while under judicial supervision, for the offences of 
‘abuse of office by a public official by obtaining an undue benefit for himself or 
for another’, provided for by Article 132 of Law No 78/2000, republished, in 
conjunction with Article 248 of the VCP, ‘complicity in fraud’, provided for by 
Article 26 of the VCP, in conjunction with Article 215(1), (2) and (3) of the VCP, 
‘forgery of documents under private seal’, provided for by Article 290(1) of the 
VCP, and ‘fals intelectual’ (intentionally false statement by a public official in a 
public document), provided for by Article 289(1) of the VCP. 
5 In the document instituting the proceedings, it was asserted, in substance, that, 
between 2009 and 2012, KN had, in his capacity as mayor of the Municipality of 
Sărulești and in the exercise of his duties, acted improperly in making payments 
from public funds. On the basis of progress reports and statements concerning the 
purchase of materials falsely drawn up by the construction company SC VLAD 
MAGIC SRL through its legal representative OC and confirmed by the latter, KN 
had paid the builder for works that had not been carried out and for materials that 
had not in fact been purchased. 
6 Specifically, in the light of the applicable legal provisions, it was stated that the 
accused person KN had not performed his official duties correctly, in that: (i) he 
had not verified the existence of the payment obligation by checking the 
supporting documents which must show the creditor’s claim and the reality of the 
service carried out (the goods delivered, the works carried out); (ii) he had not 
verified the sums due to the creditor on the basis of documents drawn up by an 
acceptance committee, the information included in the invoice not in itself being a 
sufficient basis for payment of the sums in question; (iii) he had not requested 
from the builder any guarantee issued in accordance with the law by a credit 
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institution or an insurance company in respect of advance payments; (iv) he had 
extended, by means of numerous addenda, the works contracts relating to the three 
investment objectives, without there being any documents to show that 
circumstances had arisen that were detrimental to their legitimate commercial 
interests and were unforeseeable at the time when the works contracts were 
concluded; (v) he had not inspected and appraised within the period stipulated in 
the contract works which were no longer visible; (vi) he had not terminated the 
contract and had not claimed compensation for loss and damage on discovering 
that the builder had culpably failed to fulfil its obligations. 
7 OC is being prosecuted, while under judicial supervision, for the offences of 
‘fraud’, provided for by Article 215(1), (2) and (3) of the VCP, ‘forgery of 
documents under private seal’, provided for by Article 290(1) of the VCP, 
‘incitement to abuse of office by a public official by obtaining an undue benefit 
for himself or for another’, provided for by Article 25 of the VCP, in conjunction 
with Article 132 of Law No 78/2000, republished. 
8 In the document instituting the proceedings, it was asserted, in substance, that, 
between 2009 and 2012, the accused person OC had, in his capacity as legal 
representative of the construction company SC Vlad Magic SRL, caused the 
accused person KN to perform his duties incorrectly in connection with the 
commitment, validation and authorisation of expenditure from public funds, and 
had caused KN to validate, without any on-site inspection or supporting 
documents, progress reports and statements concerning the purchase of materials 
which OC had falsely drawn up and which had been endorsed by the site 
supervisors LY and DW (the latter having assumed that role without any 
entitlement to do so) as proof of the completion of works and the purchase of 
materials which had not in fact been completed or purchased, and had thereby 
secured the payment to SC Vlad Magic SRL of the value of those works and 
materials. 
9 LY is being prosecuted for the offences of ‘complicity in fraud’, provided for by 
Article 26 of the VCP, in conjunction with Article 215(1), (2) and (3) of the VCP, 
‘forgery of documents under private seal’, provided for by Article 290(1) of the 
VCP, and ‘complicity in abuse of office by a public official by obtaining an undue 
benefit for himself or for another’, provided for by Article 26 of the VCP, in 
conjunction with Article 132 of Law No 78/2000, republished. 
10 In the document instituting the proceedings, it was asserted, in substance, that, 
between 2009 and 2012, LY had, in his capacity as site supervisor for the 
objectives ‘Water supply in the village of Sărulești’ and ‘Extension of the water 
supply in Sărulești-Gară’, helped the accused person OC, the legal representative 
of SC VLAD MAGIC SRL, to demonstrate the completion of works which had 
not in fact been carried out, by endorsing, without any on-site inspection, the 
progress reports falsely drawn up by OC. 
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11 DW is being prosecuted for the offences of ‘fraud’, provided for by 
Article 215(1), (2) and (3) of the VCP, ‘forgery of documents under private seal’, 
provided for by Article 290(1) of the VCP and ‘complicity in abuse of office by a 
public official by obtaining an undue benefit for himself or for another’, provided 
for by Article 26 of the VCP, in conjunction with Article 132 of Law No 78/2000, 
republished. 
12 In the document instituting the proceedings, it was asserted, in substance, that, 
between November and December 2011, DW had, in his capacity as site 
supervisor (a role which he had assumed without entitlement) for the objective 
‘Construction of a municipal stadium’, endorsed, without any on-site inspection, 
statements concerning the purchase of materials that had been falsely drawn up by 
the accused person OC for the purpose of misleading the Territorial 
Administrative Unit of the Municipality of Sărulești, the injured party. 
The essential arguments of the parties in the main proceedings 
13 KN has requested that the case be referred to the Court of Justice for a preliminary 
ruling. 
Succinct presentation of the grounds for the request for a preliminary ruling 
14 In the grounds for its request for a preliminary ruling, the referring court sets out 
KN’s arguments in support of his request that the case be referred to the Court of 
Justice. 
15 KN, who relies in this regard on Article 2 TEU and Articles 48 and 49 of the 
Charter, as well as on the judgment of the Court of Justice of 9 March 1978, 
Amministrazione delle finanze dello Stato v Simmenthal (106/77, EU:C:1978:49), 
maintains that it is not permissible for the scope of a criminal offence such as 
abuse of office to extend to acts of a general nature which are not set out in the 
content of the provision establishing the offence, since, as a consequence of the 
principle that offences and penalties must be defined by law, criminal law cannot 
be interpreted to the detriment of the accused person. 
16 KN refers to the case-law of the Court of Justice in which it has been held that an 
accused person has the right to be informed, in very clear terms, of the acts and 
omissions which may render him or her criminally liable, that, when an action is 
regarded as a criminal offence, the prosecuting authority and the courts may 
clarify what elements constitute the crime, but may not alter those elements to the 
accused person’s disadvantage, and that the way in which they will define those 
constituent elements of the criminal offence must be foreseeable to any person. 
17 According to the same case-law, the legislature is under an obligation to 
demonstrate, in the act of legislating, the observance of stricter requirements in 
order to comply with the principle that laws must be clear and predictable, the 
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strict interpretation of criminal law by prosecuting authorities and courts being a 
direct corollary of the principle of the legality of the criminal law, and, in this 
area, the legislature alone is in a position to regulate the conduct in question in 
such a way that the offence is defined clearly and not identified by means of a 
broad interpretation by those applying criminal law, which could result in abusive 
interpretations. 
18 The Court of Justice has also held that the principle that a provision of criminal 
law may not be interpreted broadly to the detriment of the accused person, which 
is a corollary of the principle that offences and penalties must be defined by law 
and of the principle of legal certainty in general, precludes the initiation of 
criminal proceedings with regard to conduct that is not defined clearly by law as 
being a criminal offence. 
19 Referring to Article 248 of the VCP, KN emphasises that the words ‘performs … 
incorrectly’ mean, as the Curtea Constituțională a României (Constitutional Court, 
Romania) held in Decision No 405/2016, ‘performs in breach of the law’. 
However, in the light of the case-law of the Court of Justice just mentioned, the 
words ‘performs in breach of the law’, which is to say, in breach of any law, do 
not expressly distinguish the acts, action and omissions which may give rise to 
criminal liability. 
20 Those words would, in practice, create a general obligation to comply with an 
unspecified number of laws, or, more precisely, with all laws, with the 
consequence that criminal penalties would be imposed without the incrimination 
of specific acts. The Constitutional Court of Romania also held, in Decision 
No 405/2016, that the use of such a phrase is the result of a deficient legislative 
technique, lacking in clarity and predictability, and consequently infringes the 
principle of legality and proportionality which governs criminal law. 
21 In so far as Article 2 TEU and Articles 48 and 49 of the Charter are concerned, the 
provisions of Article 248 of the VCP are formulated in broad, vague terms. That 
increases unpredictability and opens the way to arbitrary or haphazard 
interpretation and application and, according to the judgment of the European 
Court of Human Rights in Coëme and Others v Belgium, infringes Article 7(1) of 
the European Convention on Human Rights. 
22 In conclusion, the provisions of national law relating to the offence of abuse of 
office fail to specify the facts which give rise to criminal liability and, moreover, 
establish the same penalty regardless of the nature or gravity of the facts.