Provisional text
OPINION OF ADVOCATE GENERAL
CAMPOS SÁNCHEZ-BORDONA
delivered on 11 December 2025 (1)
Case C‑655/24 [Latranov] (i)
Rayonna prokuratura – grad Veliki Preslav ( District Court, Veliki Preslav, Bulgaria)
v
EZ
(Request for a preliminary ruling from the Rayonen sad – Veliki Preslav (District Court, Veliki Preslav, Bulgaria))
( Reference for a preliminary ruling – Area of freedom, security and justice – Framework Decision 2005/212/JHA – Article 2 – Directive 2014/42/EU – Articles 3 and 14 – Scope – Directive
(EU) 2024/1260 – Article 38 – Applicability – Confiscation of instrumentalities of crime – Driving a motor vehicle under the influence of alcohol – Confiscation of the vehicle or its value if the vehicle does not belong to the perpetrator of the offence – Motor vehicles as instrumentalities of crime )
1.        The Bulgarian police stopped the driver of a motor vehicle to carry out a breath test on him. Since his alcohol level exceeded the legally permitted limit, he was convicted of the criminal offence of driving a motor vehicle under the influence of alcohol.
2.        As a result of that conviction, the question has arisen as to whether the vehicle, or its equivalent value where the vehicle does not belong to the offender, should be confiscated. In this case, the vehicle belonged (as jointly owned matrimonial property) to the driver and his spouse.
3.        The court which is required to rule on confiscation has referred a number of questions to the Court of Justice for a preliminary ruling. By the first two questions, it asks essentially:
–        Whether the criminal offence of driving a motor vehicle under the influence of alcohol falls within the scope of Directive (EU) 2024/1260, (2) the Charter of Fundamental Rights of the European Union (‘the Charter’) or Framework Decision 2005/212/JHA. (3)
–        If any of the above provisions are applicable, whether the motor vehicle used may be classified as an instrumentality used to commit of the offence.
I.      Legal framework
A.      European Union law
1.      Framework Decision 2005/212
4.        Article 2 (‘Confiscation’) states:
‘1.      Each Member State shall take the necessary measures to enable it to confiscate, either wholly or in part, instrumentalities and proceeds from criminal offences punishable by deprivation of liberty for more than one year, or property the value of which corresponds to such proceeds.
…’
5.        In accordance with Article 4 (‘Legal remedies’):
‘Each Member State shall take the necessary measures to ensure that interested parties affected by measures under Articles 2 and 3 have effective legal remedies in order to preserve their rights.’
6.        Article 5 (‘Safeguards’) reads:
‘This Framework Decision shall not have the effect of altering the obligation to respect fundamental rights and fundamental principles, including in particular the presumption of innocence, as enshrined in Article 6 of the Treaty on European Union.’
2.      Directive 2014/42/EU (4)
7.        In accordance with Article 2 (‘Definitions’):
‘For the purpose of this Directive, the following definitions apply:
…
(3)      “instrumentalities” means any property used or intended to be used, in any manner, wholly or in part, to commit a criminal offence or criminal offences;
…’
8.        Article 3 (‘Scope’) provides:
‘This Directive shall apply to criminal offences covered by:
(a)      Convention drawn up on the basis of Article K.3(2)(c) of the Treaty on European Union on the fight against corruption involving officials of the European Communities or officials of the Member States of the European Union
(“Convention on the fight against corruption involving officials”);
(b)      Council Framework Decision 2000/383/JHA of 29 May 2000 on increasing protection by criminal penalties and other sanctions against counterfeiting in connection with the introduction of the euro;
(c)      Council Framework Decision 2001/413/JHA of 28 May 2001 on combating fraud and counterfeiting on non-cash means of payment;
(d)      Council Framework Decision 2001/500/JHA of 26 June 2001 on money laundering, the identification, tracing, freezing, seizing and confiscation of instrumentalities and the proceeds of crime;
(e)      Council Framework Decision 2002/475/JHA of 13 June 2002 on combating terrorism;
(f)      Council Framework Decision 2003/568/JHA of 22 July 2003 on combating corruption in the private sector;
(g)      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;
(h)      Council Framework Decision 2008/841/JHA of 24 October 2008 on the fight against organised crime;
(i)      Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA;
(j)      Directive 2011/93/EU of the European Parliament and of the Council of 13 December 2011 on combating the sexual abuse and sexual exploitation of children and child pornography, and replacing Council Framework Decision 2004/68/JHA;
(k)      Directive 2013/40/EU of the European Parliament and of the Council of 12 August 2013 on attacks against information systems and replacing Council Framework Decision 2005/222/JHA,
as well as other legal instruments if those instruments provide specifically that this Directive applies to the criminal offences harmonised therein.’
9.        Article 14 (‘Replacement of Joint Action 98/699/JHA and of certain provisions of Framework Decisions 2001/500/JHA and 2005/212/JHA’) provides:
‘1.      … the first four indents of Article 1 and Article 3 of Framework Decision 2005/212/JHA, are replaced by this Directive for the Member States bound by this Directive, without prejudice to the obligations of those Member States relating to the time limits for transposition of those Framework Decisions into national law.
…’
3.      Directive 2024/1260
10.      Article 33 (‘Transposition’) states:
‘1.      Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 23 November 2026. They shall immediately inform the Commission thereof.
…’
11.      In accordance with Article 36 (‘Replacement of Joint Action 98/699/JHA, Framework Decisions 2001/500/JHA and 2005/212/JHA, Decision 2007/845/JHA and Directive 2014/42/EU’):
‘1.      … [Framework Decision] 2005/212/JHA …
[is] replaced with regard to the Member
States bound by this Directive, without prejudice to the obligations of those Member States with regard to the date for transposition of those instruments into national law.
…’
B.      Bulgarian law: the Nakazatelen kodeks (Criminal Code)
12.      Article 53
reads:
‘(1)      Irrespective of criminal liability, the following shall be confiscated in favour of the State:
(a)      … property belonging to a convicted person which was intended to be used or was used to
deliberately commit a criminal offence; alternatively, where such property no longer exists or has been disposed of, its equivalent value shall be confiscated;
…’
13.      In accordance with the version of Article 343b applicable at the material time:
‘(1)      … Anyone who drives a motor vehicle with a duly established blood alcohol level of more than 1.2 per mille shall receive a custodial sentence of between one and three years and a fine of 200 to 1 000 leva [(BGN)].
(2)      … Anyone who drives a motor vehicle with a duly established blood alcohol level of more than 0.5 per mille, having been convicted by a final judgment of the offence referred to in paragraph 1, shall receive a custodial sentence of between one and five years and a fine of BGN 500 to 1 500.
(3)      … Anyone who drives a motor vehicle under the duly established influence of
drugs or similar substances shall receive a custodial sentence of between one and three years and a fine of BGN 500 to 1 500.
(4)      … Where a person commits the act referred to in paragraph 3 as a repeat offence, he or she shall receive a custodial sentence of
between one and five years and a fine of BGN 500 to 1 500.
(5)      … In the cases referred to in paragraphs 1 to 4, the court shall order the confiscation, in favour of the State, of the motor vehicle used to commit the offence and owned by the perpetrator of the offence, or, if the perpetrator of the offence is not the owner of the vehicle, shall sentence that person to pay a sum equivalent to its value
…’.
II.    The facts, the dispute and the questions referred for a preliminary ruling
14.      On 27 July 2024, in the city of
Veliki Preslav (Bulgaria), Mr EZ drove a motor vehicle with a blood alcohol level of 3.23 per mille. (5)
15.      On
15 August 2024, the driver reached an agreement with the Public Prosecutor’s Office. In accordance with the agreement, approved by a judgment (6) which became final on the same day, Mr EZ was given:
–         A custodial sentence of one year, suspended for three years.
–         A fine of
BGN 500.
–        A ban from driving a motor vehicle for a period of one year and eight months.
16.      The vehicle driven by Mr EZ is jointly owned matrimonial property shared with his wife. His wife did not intervene in the proceedings, since the national procedural rules in force at that time did not allow her to do so. (7)
17.      Prior to the adoption of a decision on confiscation, protective measures were ordered in respect of the 50% share in the ownership of the vehicle belonging to EZ. (8)
18.      In order to adopt a decision on confiscation of the value of the vehicle, the Rayonen sad – Veliki Preslav (District Court, Veliki Preslav, Bulgaria) considered that it was necessary to refer four questions for a preliminary ruling; I shall transcribe the first two of those questions, which
will be the subject of this Opinion, as directed by the General Court. Those questions are worded as follows:
‘(1)      Do Directive [2024/1260], the [Charter], or Framework Decision
[2005/212] apply to traffic offences committed after the consumption of alcohol and/or narcotics?
(2)      If the answer to the first question is in the affirmative, does the motor vehicle constitute an instrumentality used to commit the offence, as defined by Article 3(3) of Directive [2024/1260]?’
III. Procedure before the Court of Justice
19.      The request for a preliminary ruling was received at the Registry of the Court on
9 October 2024.
20.      Written observations were lodged by the Polish Government and the European Commission.
21.      The Bulgarian Government and the Commission appeared at the hearing, which was held on
1 October 2025.
IV.    Assessment
A.      Preliminary point
22.      Under Bulgarian law, the criminal offence of driving a vehicle under the influence of alcohol is punishable by the confiscation of the vehicle in favour of the State, if the vehicle belongs to the perpetrator; alternatively, if the vehicle does not belong to the perpetrator, confiscation is replaced by payment of the equivalent value of the vehicle to the State. (9)
23.      It follows from a reading of the order for reference and the observations of those who have participated in these proceedings that, in cases such as this, the requirement to order confiscation of the vehicle (or the equivalent sum instead, if the vehicle does not belong to the perpetrator of the offence) is absolute. (10)
B.      The first question referred
24.      The referring court asks, first, whether the EU legislation applicable to the dispute includes
Directive 2024/1260, the Charter or Framework Decision 2005/212.
25.      In accordance with Article 33(1) of Directive 2024/1260, ‘Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 23 November 2026. They shall immediately inform the Commission thereof.’
26.      The Commission states (11) that the Republic of Bulgaria has not notified it of the transposition of Directive 2024/1260. (12)
27.      In those circumstances, and in view of the fact that the driving of a vehicle under the influence of alcohol took place on
27 July 2024, Directive 2024/1260 is not applicable
ratione temporis.
28.      The dispute must be resolved, from the perspective of EU law, by relying on Framework Decision 2005/212. Although the order for reference does not refer to it, account must be taken of whether Directive 2014/42, which was in force at the material time, may also be applicable.
29.      As is well known, the Court of Justice may provide the referring court with elements of interpretation of EU law to which the latter has not referred in its order for reference. (13)
30.      Therefore, the answers to the questions referred for a preliminary ruling should not be limited to Article 2(1) of Framework Decision 2005/212, but should also examine the possible effects of Directive 2014/42.
31.      In the light of the uncertainties which have arisen regarding the application of Framework Decision 2005/212 to the offence of driving under the influence of alcohol, it is important first to examine the legal basis of that framework decision.
1.      The legal basis of Framework Decision 2005/212
32.      In addition to Article 34(2)(b) EU, Framework Decision 2005/212 also cites as its legal basis Articles 29 EU and 31(1)(c)
TEU.
33.      At the hearing, the Bulgarian Government argued that not only is Framework Decision 2005/212 inapplicable to this case, (14) but also that, if it were to apply to offences such as that at issue, it might be incompatible with EU primary law.
34.      The Commission contests that position, in my view rightly.
35.      In accordance with Article 29 TEU, the objective of ‘[providing] citizens with a high level of safety within an area of freedom, security and justice by developing common action among the Member States in the fields of … judicial cooperation in criminal matters’ ‘shall be achieved by preventing and combating crime, organised or otherwise’.
36.      In turn, Article 31(1)(c) TEU provides that common action on judicial cooperation in criminal matters is to include ‘ensuring compatibility in rules applicable in the Member States, as may be necessary to improve such cooperation’.
37.      Both provisions of EU primary law provide Framework Decision 2005/212 with a sufficient basis for it to apply to offences of a certain degree of seriousness, that is, offences punishable by a custodial sentence of more than one year, but without limiting those offences to a list or a specific category (such as organised crime).
38.      In accordance with the version of the EU Treaty which preceded the Treaty
of Lisbon, the legal basis of Framework Decision 2005/212 was linked directly to judicial cooperation in criminal matters, as the two provisions cited confirm:
–        Article 29
TEU refers explicitly to judicial cooperation in criminal matters for the purpose of combatting crime, organised or otherwise.
–        Article 31(1)(c)
TEU (15) is open-textured, that is, it enables the adoption of provisions of secondary law which lead to the compatibility of the provisions applicable in the Member States, to the extent necessary to improve judicial cooperation in criminal matters. (16)
39.      In short, the provisions of primary law which Framework Decision 2005/212 cites as a legal basis are a sufficient basis for Article 2
thereof to apply, horizontally, to the offences which the EU legislature deemed appropriate, without restricting those offences to any area of criminality in particular.
40.      Article 9
of Protocol 36 on transitional provisions of the Treaty of Lisbon, (17) which governs transitional provisions concerning acts adopted on the basis of titles V and VI of the Treaty on European Union, provides that
‘the legal effects of the acts of the institutions, bodies, offices and agencies of the Union adopted on the basis of the Treaty on European Union prior to the entry into force of the Treaty of Lisbon shall be preserved until those acts are repealed, annulled or amended in implementation of the Treaties.’
41.      The Court has held
that:
–        ‘Article 9 of the Protocol on Transitional Provisions must be understood as being intended, inter alia, to ensure that acts adopted in the context of [judicial] cooperation may continue to be applied effectively, notwithstanding the change to the institutional framework for such cooperation.’ (18)
–        ‘Given that the legality of an EU measure must be assessed on the basis of the facts and the law as they stood at the time when the measure was adopted … the legality of Article 18(2) of Decision 2008/633 must be assessed in the light of the provisions that governed, at the time that decision was adopted, the adoption of a measure such as the contested decision …’ (19)
42.      Accordingly, the examination of the provisions of Framework Decision 2005/212 must consider the legislative context in force when it was adopted, such that the references to primary law continue to be those of the EU Treaty relating to judicial cooperation in criminal matters.
43.      The adoption of
Directive 2014/42, which replaced only some of the provisions of Framework Decision 2005/212, does not alter that finding, since the provisions which remain in force do so as part of the Framework Decision. Otherwise, Directive 2014/42 would have included them within its enacting terms. (20)
44.      In any event, if the aim is to interpret Framework Decision 2005/212 in harmony with the provisions of the FEU Treaty governing judicial cooperation in criminal matters, it is important to bear in mind that, for the EU legislature, Article 82 TFEU is not limited to particularly serious crimes that have a cross-border dimension.
45.      The EU legislature has declared (specifically in relation to the recognition and enforcement of confiscation orders issued by another Member State in the course of criminal proceedings) that ‘the criminal offences covered by [Regulation (EU)
2018/1805] (21) should … not be limited to particularly serious crimes that have a cross-border dimension, as Article 82
[TFEU] does not require such a limitation for measures laying down rules and procedures for ensuring the mutual recognition of judgments in criminal matters.’ (22)
2.      Interpretation of Framework Decision 2005/212
46.      Pursuant to Article 2(1) of Framework Decision 2005/212, each Member State ‘shall take the necessary measures to enable it to confiscate, either wholly or in part, instrumentalities and proceeds from criminal offences punishable by deprivation of liberty for more than one year, or property the value of which corresponds to such proceeds.’
47.      Since, under Bulgarian law, the offence at issue is punishable by a sentence of up to three years’ imprisonment, it is covered by the wording of Article 2(1) of Framework Decision 2005/212.
48.      It is possible to put forward a stricter interpretation of Framework Decision 2005/212 (as the Bulgarian and Polish Governments argue), such that it would apply only as part of the fight against organised crime.
49.      That argument is by no means insignificant. The preamble to Framework Decision 2005/212 includes indications which, read in isolation, could suggest that its scope is limited to organised crime. A number of provisions of its enacting terms take the same line, and this is supported by a contextual interpretation.
50.      However, I believe that in this case:
–        The clear (and specific) wording of Article 2
of Framework Decision 2005/212, which rules out its limitation to offences relating to organised crime, must take precedence.
–        That article must be interpreted in conjunction with the legal bases of Framework Decision 2005/212, in particular Articles 29 EU and 31(1)(c)
TEU, which, as I have already pointed out, enable the application of the provision to offences other than organised crime.
–        Regard should be had to the aim of Framework Decision 2005/212, which is to extend judicial cooperation in criminal matters to offences of a certain degree of seriousness, as defined by the EU legislature, which chose to treat as such offences which carry a custodial sentence of more than one year.
51.      The purpose of the references to organised crime in recitals 1, 2, 4, 5 and 6 of Framework Decision 2005/212 is to express concern with the prevention and combatting of such crime. That concern justifies measures aimed, for example, at mitigation of the onus of proof regarding the source of assets held by a person in cases of offences related to particularly serious crimes.
52.      By contrast, recital 10 of Framework Decision 2005/212 affords greater clarity: ‘The aim of this Framework Decision is to ensure that all Member States have effective rules governing the confiscation of proceeds from crime, inter alia, in relation to the onus of proof regarding the source of assets held by a person convicted of an offence related to organised crime’.
53.      Therefore, the ‘organised crime’ factor is not part and parcel of the interpretation of Article 2
of Framework Decision 2005/212, although it may affect the onus of proof regarding the source of confiscated assets.
54.      The aim of Article 2
of Framework Decision 2005/212 is, I repeat, to ensure that Member States have minimum measures (of a horizontal scope) to govern confiscation, such that the corresponding national orders may be executed in other Member States, in the context of judicial cooperation in criminal matters.
55.      The Court has not hesitated to establish a connection between the aims of Framework Decision 2005/212 and those of judicial cooperation in criminal matters.
56.      Inter alia, the Court has pointed out that ‘Framework Decision 2005/212 is based on the provisions of Title VI of the EU Treaty, in the version prior to the Treaty of Lisbon, entitled “Provisions on police and judicial cooperation in criminal matters”, …’ and that its aim is ‘… to ensure, as stated in recital 10 thereof, that all Member States have effective rules governing the confiscation of the proceeds of crime.’ (23)
57.      In addition to noting the connection between Framework Decision 2005/212 and Framework Decision 2006/783/JAI, (24) the Court held that, ‘having regard to the aims and the wording of the provisions of Framework Decision 2005/212, as well as the context in which it was adopted, … that framework decision is an act intended to require Member States to establish common minimum rules for the confiscation of crime-related instrumentalities and proceeds, in order to facilitate the mutual recognition of judicial confiscation decisions adopted in criminal proceedings …’ (25)
58.      Therefore, at this juncture, there appear to be no grounds to limit those common minimum rules on confiscation to cases of organised crime (which, logically, would not include the offence of driving under the influence of alcohol).
59.      Directive 2014/42 abandoned the general approach of Framework Decision 2005/212 and replaced it with a specific list of offences, which is laid down in Article 3. The list includes offences that are clearly serious, many of which are characterised by the presence of an organisational element (organised crime).
60.      The list of offences in Article 3
of Directive 2014/42, which is exhaustive, (26) does not cover the offence of driving under the influence of alcohol.
61.      However, the provisions of Directive 2014/42 did not oust Framework Decision 2005/212 from the EU legal system. (27) The fact is that, owing to the context in which it was adopted, it must be concluded that Directive 2014/42 was intended to expand the provisions of Framework Decision 2005/212. (28)
62.      The criterion underlying Article 2
of Framework Decision 2005/212 (not limited only to offences committed by criminal organisations but also to any offence which carries a custodial sentence of more than one year) has been adopted by subsequent acts on the mutual recognition of confiscation orders.
63.      In that connection, in accordance with recital 14 of Regulation 2018/1805, that regulation ‘should cover … confiscation orders related to criminal offences covered by Directive 2014/42/EU, as well as … confiscation orders related to other criminal offences’ (emphasis added).
64.      It is logical, therefore, that the Court has interpreted the provisions of Framework Decision 2005/212 in relation to acts which did not necessarily have any connection to the activities of criminal organisations. The criterion for assessing whether Framework Decision 2005/212 should apply was, strictly, the criterion relating to the length of the custodial sentence indicated for the offence. (29)
65.      I believe that there are no grounds for diverging from the Court’s position. In accordance with that position, confiscation resulting from driving a motor vehicle under the influence of alcohol is covered by Article 2(1) of Framework Decision 2005/212, if the custodial sentence imposed in respect of that offence is for more than one year.
66.      The application of Framework Decision 2005/212 also has favourable consequences with regard to the procedural guarantees for persons made subject to the confiscation of instrumentalities of crime. It is those guarantees, in fact, which ensure that there are no impediments to judicial cooperation in criminal matters.
67.      In accordance with Article 4
of Framework Decision 2005/212, with regard to confiscation ordered in respect of any of the offences (broadly) defined in Article 2 thereof, each Member State must adopt ‘the necessary measures to ensure that interested parties affected by measures under [Article 2] have effective legal remedies in order to preserve their rights.’
Furthermore, the safeguards to which Article 5
of Framework Decision 2005/212 refers remain fully operational.
68.      That method of contact with EU secondary law means that
the Charter, pursuant to Article 51 thereof, applies to the confiscation measures
referred to in Framework Decision 2005/212.
69.      Based on that approach, the Court has held that the right to property enshrined in Article 17
of the Charter must be protected against the confiscation of property of a third party acting in good faith. (30) The Court has also read Article 47
of the Charter (right to an effective remedy) in conjunction with Article 4
of Framework Decision 2005/212. (31)
70.      From the perspective of the protection of the fundamental rights, any provisions governing confiscation in the Member States which manifestly do not respect those rights could lead to the refusal to recognise judgments, which would be impeded. (32)
71.      The part of first question in which the referring court asks whether the Charter (in general, without specifying which of its articles) is applicable may be answered on the basis of those considerations.
72.      As to the remainder, I do not believe that it is necessary to examine the possible effects on the dispute of Directive 2024/1260, to which the referring court refers, since, as I have already observed, it is not applicable
ratione temporis to the facts now being considered.
73.      If such an examination were to be conducted, it would be necessary to determine whether Directive 2024/1260 retroactively affects the interpretation of Framework Decision 2005/212, for which I cannot find sufficient reasons.
74.      The difficulty, with which the Court will, in all likelihood, be faced in the future, is that, in laying down its scope, Directive 2024/1260 appears to follow a similar technique to that which, in literal terms, was used by Directive 2014/42 (only in respect of particularly serious offences, without taking account of the sentence imposed for each offence), but, unlike Directive 2014/42, (33) it replaces all the provisions of Framework Decision 2005/212. (34)
C.      The second question referred
75.      Although the order for reference refers to Article 1 of Framework Decision 2005/212, the definition of ‘instrumentalities’ it contains had been replaced, at the material time, by the definition in Directive 2014/42.
76.      The second question therefore needs to be reformulated in order to examine whether a motor vehicle driven under the influence of alcohol is covered by the definition of ‘instrumentalities’ in
Article 2(3) of Directive 2014/42 (‘any property used or intended to be used, in any manner, wholly or in part, to commit a criminal offence or criminal offences’). (35)
77.      I agree with the Commission’s view that the definition of ‘instrumentalities’ in Directive 2014/42 is very broad and emphasises its conceptual autonomy within EU law. (36)
78.      The Court has previously agreed that a motor vehicle may be categorised as an instrumentality (which may be confiscated) for the purposes of the commission of a criminal offence of tax evasion. (37) Is it possible to apply that categorisation in cases of driving under the influence of alcohol?
79.      The specific means used to transport smuggled goods, traffic drugs or unlawfully move any other items will be an instrumentality where it is used ‘in any manner’ to perpetrate such offences. It is immaterial whether a motor vehicle or another means of transport is used.
80.      By contrast, when it comes to perpetrating the crime of driving under the influence of alcohol, the use of a motor vehicle is an essential element of the offence.
81.      Does a motor vehicle cease to be an instrumentality of crime where it is included in the description of the offence? Can that vehicle be deemed instead to be the object of such an offence?
82.      The replies given to those questions in the legal systems of the Member States (in general, through their criminal codes, which adopt divergent approaches) (38) are not uniform.
83.      In some Member States, their legislation provides that a motor vehicle is treated as an instrumentality of crime in road safety offences in general, or, specifically, in the case of driving under the influence of alcohol or
drugs. (39)
84.      However, other Member States treat a vehicle as an instrumentality in cases of reckless driving but regard it as the material object of the offence when it comes to driving under the influence of alcohol or drugs. To the same effect, as regards the latter offence, some laws treat the vehicle driven as the essential object for the purpose of commission of the offence. (40)
85.      In my view, the broad definition of ‘instrumentalities’ used in Article 2(3) of Directive 2014/42 does not preclude a national legislature from classifying as such a vehicle which a person drives under the influence of alcohol.
86.      If a motor vehicle can be regarded as an instrumentality in so far as it is a non-essential element of an offence, I see no reason why, under EU law, it should not be an instrumentality where it is the main factor in the commission of the offence.
87.      That decision of the national legislature may reflect considerations of criminal policy which are not necessarily common to all the Member States. It would be a different matter if the law of one Member State in particular were to exceed the limits of the principle of proportionality when laying down the conditions for the mandatory confiscation of vehicles, which is the subject of a different question.
V.      Conclusion
88.      In the light of the foregoing considerations, I propose that the first two questions referred for a preliminary ruling by the Rayonen sad – Veliki Preslav (District Court,
Veliki Preslav, Bulgaria) should be answered as follows:
Council Framework Decision 2005/212/JHA of 24 February 2005 on Confiscation of Crime-Related Proceeds, Instrumentalities and Property and Directive 2014/42/EU of the European Parliament and of the Council of 3 April 2014 on the freezing and confiscation of instrumentalities and proceeds of crime in the European Union
are
to be interpreted as meaning that:
–        Article 2
of Framework Decision 2005/212 is applicable to the confiscation of a motor vehicle driven under the influence of alcohol or drugs where that conduct constitutes a criminal offence which carries a custodial sentence of more than one year.
–        By the same token, the Charter of Fundamental Rights of the European Union is applicable to such confiscation.
–        There is nothing to preclude a motor vehicle from being classified as an instrumentality, within the meaning of Article 2(3) of Directive 2014/42, in relation to the commission of an offence of driving under the influence of alcohol.
1      Original language: Spanish.
i      The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings.
2      Directive of the European Parliament and of the Council of 24 April 2024 on asset recovery and confiscation (OJ L, 2024/1260).
3      Council Framework Decision of 24 February 2005 on Confiscation of Crime-Related Proceeds, Instrumentalities and Property (OJ 2005 L 68, p. 49).
4      Directive of the European Parliament and of the Council of 3 April 2014 on the freezing and confiscation of instrumentalities and proceeds of crime in the European Union (OJ 2014 L 127, p. 39).
5      Article 343b of the Bulgarian Criminal Code defines the offence of driving under the influence of alcohol on the basis of a blood alcohol level in excess of 1.2 per mille. The permitted level is reduced to 0.5 per mille if the driver is a repeat offender.
6      The order for reference does not specify which court gave that judgment.
7      At the hearing, the Bulgarian Government maintained that a subsequent legislative amendment means that such an intervention is now possible.
8      As the Bulgarian Government explained at the hearing, the protective measure is aimed at the seizure and storage of the vehicle until such time as a final decision on confiscation is given. For the purposes of execution of that decision, the vehicle is taken to public auction and the sale price is divided between the Bulgarian State and the owner who was not involved in the offence.
9      According to the Commission (paragraph 6
of its written observations), two actions for a declaration of unconstitutionality were lodged with the Constitutional Court against the new 2023 version of Article 343b(5) of the Criminal Code. The Bulgarian Government stated at the hearing that, on 17 July 2025, judgment (No 8/2025) was given finding that the provision was compatible with the Bulgarian Constitution.
10      When it was asked at the hearing whether, in its criminal justice system, confiscation is automatic for the offence of driving under the influence of alcohol, the Bulgarian Government replied that it is.
The Bulgarian Government added that the automatic nature of confiscation reflects the prior assessment carried out by the legislature when it provided for confiscation in all cases, in view of the risk created. It is for the criminal courts to determine whether an offence was committed
or not, but, in the former case, the adoption of a confiscation order is mandatory.
11      Paragraph 9
of its written observations.
12      The obligation to notify the Commission is laid down in Article 33(3) of Directive 2024/1260. The Bulgarian Government, which did not lodge written observations, did not contradict the Commission at the hearing. Therefore, it must be assumed that transposition has not taken place.
13      Judgment of
18 September 2019, VIPA (C‑222/18, EU:C:2019:751, paragraph 50 and the case-law cited).
14      On which point it agreed with the Polish Government’s written observations.
15      As was pointed out at the hearing, point c) was chosen deliberately. Had the intention been to limit Framework Decision 2005/212 to the minimum rules for combatting organised crime, point e) of Article 31(1)
TEU would have been used.
16      There was some discussion at the hearing about the degree of ‘necessity’ of the improvement of the compatibility between the laws of the Member States in the field of judicial cooperation in criminal matters. In my view, it falls to the EU legislature to examine whether that necessity arises, as it did in Framework Decision 2005/212.
17      OJ 2008 C 115, p. 322.
18      Judgment of
16 April 2015, Parliament v Council (C‑540/13, EU:C:2015:224, paragraph 44).
In relation to common positions, ‘lest Article 9 of the Protocol (36) be rendered largely redundant, the fact that the EU Treaty no longer provides for common positions but for decisions in matters relating to the CFSP does not have the effect of rendering non-existent those common positions adopted under the EU Treaty before the Treaty of Lisbon entered into force. …
In those circumstances, although the legal contexts of those two classes of legal acts are not the same, common positions not repealed, annulled or amended after the Treaty of Lisbon entered into force may be considered to correspond, for the purpose of implementing Article 215 TFEU, to the decisions adopted in accordance with Chapter 2 of Title
V of the EU Treaty to which that article refers’
(judgment of 19 July 2012, Parliament v Council
(C‑130/10, EU:C:2012:472, paragraphs 109 and 110)).
19      Judgment of
16 April 2015, Parliament v Council (C‑540/13, EU:C:2015:224, paragraph 35).
20      The continued existence of certain provisions of Framework Decision 2005/212 was examined in the post-Lisbon legislative procedure, in the context of the FEU Treaty.
21      Regulation of the European Parliament and of the Council of 14 November 2018 on the mutual recognition of freezing orders and confiscation orders (OJ 2018 L 303, p. 1).
22      Recital 14 of Regulation 2018/1805. See also judgment of 13 June 2019, Moro (C‑646/17, EU:C:2019:489, paragraphs 32 to 37).
23      Judgment of
19 March 2020, ‘Agro In 2001’ (C‑234/18, EU:C:2020:221, paragraphs 52 and 53); ‘the judgment in “Agro In 2001”’.
24      Council Framework Decision of 6 October 2006 on the application of the principle of mutual recognition to confiscation orders (OJ 2006 L 328, p. 59). In paragraph 55
of the judgment in ‘Agro In 2001’, the Court of Justice held that ‘Framework Decision 2005/212 is linked to a proposal from the Kingdom of Denmark which led to the adoption of Framework Decision 2006/783. As stated in recital 8 of that latter framework decision, its purpose is to facilitate cooperation between Member States as regards the mutual recognition and execution of orders to confiscate property so as to oblige a Member State to recognise and execute in its territory confiscation orders issued by a court competent in criminal matters of another Member State.’
25      Judgment in
‘Agro In 2001’, paragraph 56.
26      Judgment in
‘Agro In 2001’, paragraph 47.
27      Judgment in
‘Agro In 2001’, paragraph 48: ‘It is …
clear from Article 14(1) of Directive 2014/42 that that directive replaces only the first four indents of Article 1 and Article 3 of Framework Decision 2005/212 for the Member States bound by the directive, the consequence of which, as the Advocate General stated in essence in points 48 and
49 of her Opinion, [is] that Articles 2, 4 and
5 of that framework decision remain in force after the adoption of Directive 2014/42.’
28      Judgment of
28 October 2021, Komisia za protivodeystvie na koruptsiyata i za otnemane na nezakonno pridobitoto imushtestvo (C‑319/19, EU:C:2021:883, paragraph 36): ‘… given the objectives and the wording of the provisions of Directive 2014/42 and the context in which it was adopted, it must be held that that directive, like Framework Decision 2005/212 whose provisions, in accordance with recital 9 thereof, it aims to expand, is an act aimed at obliging Member States to establish common minimum rules for confiscation of crime-related instrumentalities and proceeds, in order to facilitate the mutual recognition of judicial confiscation decisions adopted in criminal proceedings.’
See also judgments in
‘Agro In 2001’, paragraph 56, and of 14 January 2021,
Okrazhna prokuratura – Haskovo and
Apelativna prokuratura – Plovdiv (C‑393/19, EU:C:2021:8, paragraph 36).
29      The judgment of
14 January 2021, Okrazhna prokuratura – Haskovo and Apelativna prokuratura – Plovdiv (C‑393/19, EU:C:2021:8) concerned an offence of aggravated smuggling, punishable by a custodial sentence of 3 to 10 years. The judgment in ‘Agro In 2001’
concerned an offence of misappropriation of funds, which carried a custodial sentence of 10 to 20 years.
30      Judgment of 25 January 2024, Sofiyski gradski sad (C‑722/22, EU:C:2024:80, paragraph 28).
31      Judgment of 14 January 2021, Okrazhna prokuratura – Haskovo and Apelativna prokuratura – Plovdiv (C‑393/19, EU:C:2021:8, point 2 of the operative part).
32      Under Article 19(1)
of Regulation 2018/1805, ‘the executing authority may decide not to recognise or execute a confiscation order only where: … (h) in exceptional situations, there are substantial grounds to believe, on the basis of specific and objective evidence, that the execution of the confiscation order would, in the particular circumstances of the case, entail a manifest breach of a relevant fundamental right as set out in the Charter, in particular the right to an effective remedy, the right to a fair trial or the right of defence.’
Emphasis added.
33      I believe that, by keeping in force Articles 2, 4 and 5
of Framework Decision 2005/212, together with the safeguards associated therewith, Directive 2014/42 complied with Article 52(1) of the Charter.
34      In accordance with recital 62 of Directive 2024/1260, ‘as this Directive provides for a
comprehensive set of rules, which would overlap with already existing legal instruments, it should replace … Framework Decision 2005/212/JHA’. The complete replacement of the provisions of Framework Decision 2005/212 by Directive 2024/1260 raises a number of questions regarding the application of the instruments of judicial cooperation in criminal matters in this area, since it leaves certain gaps in the system now in force.
35      According to the information available, there are Member States whose legislation provides that driving under the influence of alcohol or drugs is punishable by confiscation of the vehicle (Belgium, Spain, France, Croatia, Italy, Latvia, the Netherlands, Poland or Slovakia).
In others, confiscation is, rather, the result of a case-law construct (Hungary, Portugal or Romania).
36      Paragraphs 13
and 14 of the Commission’s written observations.
37      Judgment of
25 January 2024, Sofiyski gradski sad (C‑722/22, EU:C:2024:80, paragraph 22): ‘where a vehicle is used, “in any manner”, to commit such a criminal offence, that vehicle falls within the concept of “instrumentalities”, within the meaning of the third indent of Article 1 of that framework decision, without it being necessary to draw a distinction according to whether that vehicle is used as a means of transportation or as a means of holding or storing the products which are the subject of the criminal offence concerned.’ The offence penalised persons in possession of
excise goods without a tax marking.
38      Some Member States limit the confiscation measure to cases of reckless driving, repeatedly driving without a licence, or repeatedly driving under the influence of alcohol or drugs. Others leave it to the discretion of the courts to decide, with no automatic conclusion being drawn and on a case-by-case basis, the conditions in which vehicles should be confiscated. Finally, others take into account the nature of the offence perpetrated or the degree of danger which, specifically, the offence caused to people.
39      According to the information available, that appears to be the case in Belgium, Spain, France, Croatia, Italy, the Netherlands, Romania or Slovakia.
40      According to the information available, that appears to be the case in Latvia, Hungary, Poland or Portugal.