Opinion of the Advocate General — ECLI:EU:C:2023:997
Date: 2023-12-14
Language of the case: Bulgarian
Procedure: Reference for a preliminary ruling
Origin: Bulgaria

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 June 2022 
Referring court:  
Spetsializiran nakazatelen sad (Bulgaria) 
Date of the decision to refer:  
28 June 2022 
Accused person in the main proceedings: 
PT 
SD 
Other party in the main proceedings:  
Spetsializirana prokuratura 
      
Subject matter of the main proceedings 
Charges against 41 persons for running and participating in a criminal 
organisation engaged in the possession and distribution of drugs. 
Subject matter and legal basis of the request 
The referring court requests that the Court of Justice interpret Article 5 of 
Framework Decision 2004/757, Article 4 of Framework Decision 2008/841 and 
Article 47 of the Charter of Fundamental Rights of the European Union in order to 
enable the referring court to assess whether and under what conditions it may rule 
on a request of the parties for approval of an agreement between the public 
prosecutor and some of the co-accused persons under which the latter are to plead 
guilty and reduce their sentences. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-432/22 
 
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Questions referred for a preliminary ruling 
In the context of criminal proceedings concerning charges brought for offences 
coming within the scope of EU law, is it compatible with the second sentence of 
Article 19(1) TEU and the first and second paragraphs of Article 47 of the Charter 
for a national law to impose a requirement under which a court other than the one 
hearing the case and before which all the evidence has been taken is to examine 
the substance of an agreement entered into between the public prosecutor and an 
accused person, whereby the reason behind that requirement is the fact that there 
are other co-accused persons who have not entered into an agreement? 
Is a national law under which an agreement discontinuing criminal proceedings is 
to be approved only with the consent of all other co-accused persons and their 
defence counsel compatible with Article 5 of Framework Decision 2004/757, 
Article 4 of Framework Decision 2008/841, the second sentence of Article 19(1) 
TEU and Article 52 of the Charter, in conjunction with Article 47 thereof? 
Does the second paragraph of Article 47 of the Charter require a court, after 
having examined and approved an agreement, to decline to examine the charges 
against the other co-accused persons where it has ruled on that agreement in such 
a manner that it does not make any statement as to their involvement or express an 
opinion as to their guilt? 
Provisions of European Union law and case-law relied on 
Treaty on European Union 
Charter of Fundamental Rights of the European Union 
Council Framework Decision 2004/757/JHA of 25 October 2004 laying down 
minimum provisions on the constituent elements of criminal acts and penalties in 
the field of illicit drug trafficking (OJ 2004 L 335, p. 8) 
Council Framework Decision 2008/841/JHA of 24 October 2008 on the fight 
against organised crime (OJ 2008 L 300, p. 42) 
Judgment in Case С-377/18, EU:C:2019:670 
Judgment in Case С-38/18, EU:C:2019:628 
Judgment in Joined Cases С-558/18 and С-563/18, EU:C:2020:234 
Judgment in Case С-569/20, EU:C:2022:401 
Judgment in Joined Cases С-585/18, С-624/18 and С-625/18, EU:C:2019:982 
Order in Case С-709/18, EU:C:2020:411 
PT 
 
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Judgment in Case С-467/19, EU:C:2019:776 
Judgment in Case С-406/15, EU:C:2017:198 
Judgment in Joined Cases C-411/10 and C-493/10, EU:C:2011:865 
Judgment in Case С-498/14, EU:C:2015:3 
Provisions of national law relied on 
National substantive law 
Nakazatelen kodeks (Criminal Code; ‘the NK’) – Article 55(1) (imposition of a 
penalty which is more lenient than the most lenient one provided for by law), 
Article 321 (participation in a criminal organisation), Article 354a(1) (possession 
of drugs with intent to distribute) 
National procedural law [Nakazatelno-protsesualen kodeks (Code of Criminal 
Procedure; ‘the NPK’)] – Article 18 (principle of the direct adduction of 
evidence), Article 381 (agreement entered into between the public prosecutor and 
the accused person), Article 382 (court’s approval of the agreement) 
The agreement 
If the accused person pleads guilty to the offence with which he or she is charged, 
his or her defence counsel may enter into an agreement with the public 
prosecutor – Article 381(1) of the NPK. In the case of multiple co-accused 
persons, each of them may enter into such an agreement separately and 
independently – Article 381(7) of the NPK. 
That agreement replaces the judgment on the merits. The agreement is to govern 
all the points that would have to be stated in the judgment on the merits (in the 
judgment in criminal proceedings), that is to say, it must state the offence 
committed by the accused person and its legal classification, as well as the nature 
and extent of the penalty (amongst other points) – Article 381(5) of the NPK. 
It is often the case that the penalty agreed is more lenient than the penalty that 
would have been imposed if the case had been heard under the ordinary 
procedure – Article 381(4) of the NPK. 
The agreement is to be signed by the public prosecutor and the defence counsel. If 
the accused person consents to the agreement, he or she must also sign it; he or 
she also waives the right to have the case heard under the ordinary procedure – 
Article 381(6) of the NPK. 
The parties then request the court to approve that agreement – Article 382(1) of 
the NPK. If the court considers that the agreement is lawful, it is to approve it – 
Article 382(7) of the NPK. 
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The court is also entitled to propose amendments to its content – Article 382(5) of 
the NPK. If the parties do not agree to them, the court is to presume that the 
agreement is contrary to the law and accepted principles of morality, and it is not 
to approve it. In that eventuality, the case is to be continued under the ordinary 
procedure – Article 382(8) of the NPK. 
There is a special clause as provided for in Article 384. If the agreement is 
entered into after the court proceedings have been instituted, its approval by the 
court requires that an additional condition is met, namely the consent of all the 
other co-accused persons. 
In the present case, specifically, Article 384(3) of the NPK requires the consent of 
the other 39 co-accused persons and their defence counsel in order for the 
agreement to be approved (there are no other parties to the proceedings). 
There is a second special clause as provided for in Article 384a. If only some of 
the co-accused persons have entered into an agreement and the others have not, a 
panel of judges other than that hearing the case must rule on those agreements. 
Article 384a NPK is a new provision, which was introduced in 2017. The reason 
for this was that settled case-law had established that the agreement is to specify 
not only the full name and personal identification number of the accused person 
who is pleading guilty and entering into the agreement, but also the same details 
of the other persons whom the public prosecutor considers to be accomplices. 
Thus, those who had pleaded guilty and those who had not pleaded guilty were 
identified in the same way. The court approving the agreement therefore also 
expressed an opinion on the guilt of the co-accused persons who had not entered a 
guilty plea (this circumstance was discussed in Case С-377/18, EU:C:2019:670). 
It [was] considered to be unlawful for the same chamber that had approved the 
agreement to continue hearing the case, since, in approving the agreement, it had 
already expressed an opinion on the guilt of the co-accused persons who had not 
entered a guilty plea. That chamber thus lost its objectivity and impartiality. As a 
result, the trial had to be repeated from the very beginning, with all the witnesses 
being re-examined. 
Therefore, a solution to that problem was found in 2017. An agreement entered 
into by one of several co-accused persons must now be ruled on by another 
chamber, specially assigned for that purpose. That other chamber approves the 
agreement, which specifies the full names and personal identification numbers of 
the remaining co-accused persons who did not enter into such an agreement. It 
thus expresses an opinion on their guilt. However, this does not prevent the 
chamber initially seised from continuing to hear the case with regard to the 
remaining co-accused persons who did not enter into an agreement, as it has not 
expressed an opinion on their guilt. 
PT 
 
5 
Succinct presentation of the facts and procedure in the main proceedings 
1 The Spetsializirana prokuratura (Specialised Public Prosecutor’s Office, Bulgaria) 
brought charges against 41 persons before the referring court on 25 March 2020 
for running and participating in a criminal organisation which sought to enrich 
itself through the distribution of drugs (cocaine, heroin, marijuana, amphetamine, 
methamphetamine, MDMA). One of those persons is PT and another is SD. 
2 For procedural reasons, the case was referred back to the public prosecutor’s 
office on 19 August 2020 so that it could remedy defects in the bill of indictment. 
3 During the pre-trial phase of the criminal proceedings, the public prosecutor and 
SD’s defence counsel entered into an agreement on 26 August 2020, in which SD 
pleaded guilty in exchange for a more lenient penalty. That agreement specifies 
the full names and personal identification numbers of the other 40 co-accused 
persons (as well as other persons being prosecuted separately). 
4 The consent of those 40 co-accused persons was not obtained for the purposes of 
approval of the agreement. 
5 The court (not the referring court) approved the agreement on 1 September 
[2020]. 
6 On 28 August 2020, the Specialised Public Prosecutor’s Office filed a new, 
corrected version of the bill of indictment. The court proceedings were reopened. 
7 On 17 November 2020, the public prosecutor and PT’s defence counsel also 
entered into an agreement in which PT pleaded guilty; he was given a suspended 
custodial sentence. Subsequently, the text of the agreement was amended with due 
regard to the judgment in Case С-377/18 (EU:C:2019:670), with the result that it 
no longer specified the full names and personal identification numbers of the other 
co-accused persons. Instead, it specified only the number of co-accused persons 
involved. The corrected version still specified the date 17 November 2020. 
8 On 14 January 2021, SD was examined as a witness. He testified in relation to his 
contact with some of the other accused persons in connection with the criminal 
offences to which he had pleaded guilty and of which he had been convicted as a 
result of the agreement. His testimony could be material to the court’s decision as 
to whether or not the criminal charges brought against those accused persons are 
well-founded. 
9 At the hearing held on 14 January 2021, the referring court obtained the other co-
accused persons’ views on whether they agreed to PT’s agreement. Some of them 
objected to the agreement, in that they did not consent to it. 
10 Their statements were made immediately after SD had been examined at the same 
hearing. 
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11 In accordance with national law, the referring court forwarded that agreement to 
the President of the Court on 18 January 2021 in order to have another chamber of 
the same court assigned the task of ruling on it. 
12 On 21 January 2021, that other chamber refused to approve the agreement in so 
far as some of the co-accused persons had not consented to PT entering into an 
agreement with the public prosecutor. It therefore considered that it would be 
unlawful to examine the substance of the agreement. 
13 The trial phase of the case was continued and numerous witnesses were examined. 
Some of those witnesses testified in relation to PT’s actions, referring to him by 
name; that testimony could be material to the determination of his criminal 
liability, including the nature and extent of the penalty in the event that he is found 
guilty. 
14 On 10 May 2022, the public prosecutor and PT’s defence counsel once again 
entered into the same agreement. That agreement did not specify the names and 
personal identification numbers of the other co-accused persons, but only how 
many of them had run and participated in the organisation; such personal data 
were specified in relation to SD, who had already been finally convicted. 
15 This time, however, citing the case-law of the Court of Justice of the European 
Union in Case C-38/18, they requested that the agreement be ruled on by the court 
hearing the case. They also requested, citing provisions of EU law, that the 
consent of the other co-accused persons not be obtained for the purposes of 
approval of the agreement. 
16 That agreement was filed at the court registry on 11 May 2022; it was notified to 
the court’s head of administration, who effected a random assignment, from which 
the judge of the referring court was specifically excluded. The reason for this was 
national law, which precludes the court hearing a case on the merits from ruling 
on an agreement entered into by only one of several co-accused persons … 
17 The agreement was assigned to another chamber, which considered it on 18 May 
2022. It held that that agreement must not be ruled on by the referring court, 
which is already hearing the main case, but by another chamber. It also held that 
the consent of the other parties is required for the approval of the agreement and 
that, for that reason, approval should be refused (without informing the other 39 
co-accused persons of the agreement and obtaining their consent). That other 
chamber relied on national law. It held that EU law is not relevant in that respect. 
18 On the same day, immediately following the refusal to approve the agreement, the 
parties concerned – the public prosecutor, PT and his defence counsel – confirmed 
to the referring court that they wished to enter into such an agreement. They 
confirmed, in particular, that they wished the referring court – before which all the 
evidence had been taken – to rule on the agreement, and they also confirmed their 
view that the consent of the other co-accused persons was not required for the 
approval of that agreement. 
PT 
 
7 
19 The public prosecutor points out that PT’s role in the commission of the offences 
was subordinate to that of the other co-accused persons and that the law maintains 
that subordination in the court proceedings in so far as it requires their consent in 
order for him to enter into an agreement. At the same time, he expresses the 
concern that, if the referring court were to rule on the substance of that agreement, 
it might lose its impartiality and be unable to proceed with the case. 
20 The defence submits that the impossibility for PT to enter into an agreement 
violates his rights under the ECHR. 
21 At that hearing, the referring court established that the parties in the main 
proceedings are adhering to their agreement of 10 May 2022. It is therefore for the 
referring court to determine whether or not the other 39 co-accused persons in fact 
consent to the agreement (such determination had been made in respect of the 
agreement of 17 November 2020 but not in respect of the agreement of 10 May 
2022). 
22 However, this requires clarification of the question referred, namely whether such 
consent is required at all. That question also comes within the competence [of the 
referring court]. 
23 The referring court therefore considers that it is required to seek clarification with 
regard to that question. On 18 May 2022, within the framework of the legal 
possibilities under national law – Article 15 of the [Zakon za sadebnata vlast, Law 
on the judiciary] ZSVl – it referred to the Varhoven kasatsionen sad (Supreme 
Court of Cassation, Bulgaria) the question as to whether Article 384(3) of the 
NPK, under which the consent of the other parties is required in order to enter into 
an agreement, infringes certain provisions of the Bulgarian Constitution, and it 
proposed that the Supreme Court of Cassation exercise its right to refer the matter 
to the Konstitutsionen sad (Constitutional Court, Bulgaria). The referring court 
does not have such power. 
24 No response to that question has been received as at the date of the order for 
reference. The referring court does not expect to receive a response. 
25 It therefore considers that it should exercise its right under Article 267 TFEU and 
make the present request for a preliminary ruling. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
26 The first and third questions referred concern the referring court’s competence to 
rule on the substance of both PT’s agreement and, subsequently, the charges 
brought against the other 39 co-accused persons. 
27 The second question referred relates to a procedural requirement that must be met 
in order to be able to examine the agreement entered into at all. That requirement 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-432/22 
 
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is the consent of the other parties concerned (in the main proceedings, the consent 
of the other 39 co-accused persons and their defence counsel). 
28 Those questions referred are therefore procedural questions concerning the ruling 
on the substance. The ruling itself concerns substantive issues that come within 
the ‘fields covered by Union law’ in accordance with the second sentence of 
Article 19(1) TEU, namely participation in an criminal organisation and 
distribution of drugs – acts which come within the scope of EU law, namely 
Framework Decision 2008/841 and Framework Decision 2004/757. 
29 [The fact that the determination of the competent national court which is to rule on 
the substance comes within the scope of the second sentence of Article 19(1) 
TEU] is the case in so far as certain characteristics of the present court, namely 
participation in the evidence-gathering procedure (first question) and loss of 
impartiality (third question), are elements of an effective remedy under the second 
sentence of Article 19(1) TEU and the first paragraph of Article 47 of the Charter. 
30 The first question 
31 This question seeks to determine whether a national law which does not permit the 
court hearing the case – which has itself already taken the evidence on the basis of 
which it can form a judgment as to the guilt of the accused person and the penalty 
to be imposed on him or her – to examine the substance of an agreement, and 
which instead prescribes that that [examination] be carried out by another court 
not hearing the case (Article 384a(2) of the NPK), is compatible with EU law. 
32 In particular, the question seeks to determine whether that national law is 
compatible with the second sentence of Article 19(1) TEU and the first paragraph 
of Article 47 of the Charter – under which effective remedies must be 
guaranteed – and with the right to a fair trial provided for in the second paragraph 
of Article 47 of the Charter. 
33 In the present case, the conclusion of an agreement on PT’s guilty plea must be 
examined. PT is not claiming to be innocent, but has an interest in receiving a 
lighter sentence, such as, in the present case, a suspended sentence. However, the 
defence considers that it still has a legal interest in having that agreement ruled on 
by the court that took the evidence in its presence and under its control, and not by 
another court. 
34 The new provision of Article 384a of the NPK departs from the general principle 
of immediacy and was created for a specific purpose, namely to prevent the case 
from having to be reinstituted before another court. 
35 The second question 
36 This question concerns the question as to whether a national provision which 
prescribes that the consent of the other co-accused persons is required for the 
approval of an agreement entered into by one of them is compatible with EU law. 
PT 
 
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37 The Court of Justice addressed that question in its judgment in Case C-467/19, 
EU:C:2019:776, in which it held that Article 7 of Directive 2016/343 does not 
impose any obligation on the Member States to ensure a reduction in the penalty 
in the event that an accused person cooperates with the prosecution 
(paragraph 34). 
38 The question must now be reassessed in the light of Article 5(1) of Framework 
Decision 2004/757, in conjunction with Article 4(1) thereof, as well as Article 4 
of Framework Decision 2008/841, in conjunction with Article 3 thereof, since 
those provisions regulate measures that lead to a reduction of the penalty in the 
event that the accused person carries out certain acts that can in essence be 
classified as assistance in the investigation. 
39 The Court of Justice of the European Union has ruled as follows: Where EU law 
does not contain precise rules with regard to the establishment of penalties, 
‘Member States are empowered to choose the penalties which seem to them to be 
appropriate. They must, however, exercise that power in accordance with 
European Union law and its general principles’ (C-210/10, EU:C:2012:64, 
paragraphs 22-23, C-430/05, EU:C:2007:410, paragraph 53, and С-707/17, 
EU:C:2018:574, paragraph 26). 
40 That legal position should also apply to the rules under which an agreement made 
in implementation of Article 5(1) of Framework Decision 2004/757, in 
conjunction with Article 4(1) thereof, as well as Article 4 of Framework Decision 
2008/841, in conjunction with Article 3 thereof, is entered into. 
41 An accused person who has entered into an agreement becomes a witness in the 
proceedings. He or she is examined as a witness and testifies as to what he or she 
knows about the offences of the other co-accused persons. Thus, his or her 
testimony is often of decisive importance for the subsequent conviction of the 
other co-accused persons. 
42 Before that person has entered into an agreement, he or she has the status of an 
accused person and can therefore not be compelled to testify in relation to those 
circumstances. He or she has the right not to make self-incriminating statements. 
43 The national rules on the entering into of the agreement therefore reflect the 
transposition of Article 5 of Framework Decision 2004/757 and Article 4 of 
Framework Decision 2008/841. 
44 This approach has proved to be successful at the pre-trial stage. 
45 This is the situation of [SD], who entered into an agreement after the case had 
been referred back to the public prosecutor’s office, with the result that the 
consent of the other co-accused persons and their defence counsel was not 
required (see paragraph 3 above). He then gave testimony that could be material to 
the criminal liability of some of the co-accused persons (see paragraph 8 above). 
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46 However, that approach cannot be effective at the trial stage in so far as the co-
accused persons who fear PT’s testimony refuse to consent to the court examining 
the substance of the agreement entered into by the prosecution and PT’s defence 
(see paragraph 9 above). 
47 Thus, Article 5 of Framework Decision 2004/757 and Article 4 of Framework 
Decision 2008/841 lose their practical effect. The question therefore arises as to 
whether Article 384(3) of the NPK is compatible with the regulatory objective of 
those provisions. 
48 There is no doubt that EU law does not impose any rules on the agreement. 
However, it requires, in Article 3 of Framework Decision 2008/841 and Article 4 
of Framework Decision 2004/757, penalties that are effective, proportionate and 
dissuasive. It also provides for the possibility to impose a more lenient penalty 
under the conditions that would be present if the agreement had just been entered 
into – Article 5(a) and (b)(ii) of Framework Decision 2004/757 and 
Article 4(b)(ii) of Framework Decision 2008/841. 
49 It should also be noted that the agreement is a form of legal remedy for the 
accused person PT. By entering into the agreement and having it approved by the 
court, he achieves the end result he seeks, namely to receive a more lenient 
penalty than the penalty he would have received under the ordinary procedure. 
Accordingly, the first paragraph of Article 47 of the Charter is applicable. 
50 In this case, the consent of the other co-accused persons and their defence counsel, 
which is required as a procedural condition for the examination of the substance 
of the agreement, has the effect of restricting access to a remedy recognised by 
law. This is because the absence of such approval makes it impossible for the 
court to examine the content of such an agreement, with the result that PT is in 
fact deprived of the benefit of the agreement (see paragraphs 12 and 17 above). 
51 A restriction of a right recognised in the Charter is permissible under the 
conditions of Article 52 of the Charter. 
52 The principle of proportionality has not been taken into account in the present 
case, as the requirement under Article 384(3) of the NPK applies to all other 
parties, irrespective of whether the agreement sought by PT concerns offences 
which are related to their offences and irrespective of whether or not the testimony 
he will give as a witness after having entered into the agreement concerns them. 
53 By the second question referred, the referring court seeks to ascertain whether the 
restriction of the right to enter into an agreement, as provided for in national law 
by Article 384(3) of the NPK, is compatible with EU law in the following 
respects: 
54 - whether it is compatible with Article 5(a) and (b)(ii) of Framework 
Decision 2004/757 and with Article 4(b)(ii) of Framework Decision 2008/841 in 
so far as it facilitates or hinders the attainment of their objective; 
PT 
 
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55 - whether it is compatible with the second sentence of Article 19(1) TEU in 
so far as it provides society with effective legal protection against criminal 
offences within the meaning of Framework Decision 2004/757 and Framework 
Decision 2008/841; 
56 - whether it is compatible with Article 52 of the Charter, in conjunction with 
the first and second paragraphs of Article 47 thereof, in so far as it restricts the 
application of an effective remedy, provided for by national law in 
implementation of the framework decisions under EU law, and therefore calls into 
question the fairness of the proceedings. 
57 The third question 
58 This question concerns whether, under the second paragraph of Article 47 of the 
Charter, it is necessary for the referring court, after having ruled on the substance 
of PT’s agreement and, if appropriate, approved it, to refuse to hear the case 
against the other 39 accused persons, since it is to be feared that it has already 
formed a judgment on their guilt and has therefore lost its impartiality. 
59 This would mean that the case would have to be reinstituted before a different 
judge, effectively rendering invalid the examination of dozens of witnesses who 
have been examined since August 2020. 
60 The agreement proposed by the Specialised Public Prosecutor’s Office and PT’s 
defence does not specify the names and personal identification numbers of the 
other co-accused persons in respect of whom the proceedings are continuing (see 
paragraph 14 above). It specifies only the name and the personal identification 
number of [SD], who has already been convicted by final judgment (see 
paragraph 3 above). 
61 According to the Court of Justice, that approach is lawful, provided that it respects 
the presumption of innocence of the remaining co-accused persons – С-377/18 
(EU:C:2019:670, paragraph 47). The referring court considers that, in the present 
case, it is not necessary, in order to examine the substance of PT’s agreement and 
to approve it, to specify the full names and personal identification numbers of the 
other co-accused persons against whom the criminal proceedings are still being 
conducted. It is sufficient to specify how many there are. 
62 In view of the above, in accordance with the order of the Court of Justice in Case 
С-709/18 (EU:C:2020:411, operative part), it cannot be assumed that the court 
which approved PT’s agreement should refuse to continue with the proceedings in 
order to guarantee the other co-accused persons’ right to an impartial judge under 
the second paragraph of Article 47 of the Charter.