62023CO0131
ORDER OF THE COURT (Ninth Chamber)
9 January 2024 (
*1
)
(Reference for a preliminary ruling – Article 99 of the Rules of Procedure of the Court of Justice – Acte éclairé – Decision 2006/928/EC – Mechanism for cooperation and verification of progress in Romania to address specific benchmarks in the areas of judicial reform and the fight against corruption – Legal nature and effects – Binding on Romania – Direct effect of the benchmarks – Obligation to combat corruption in general and high-level corruption in particular – Obligation to provide for dissuasive and effective criminal penalties – Limitation period for criminal liability – Decision of a constitutional court which has declared invalid a provision of national legislation governing the grounds for interrupting that period – Systemic risk of impunity – Principle that offences and penalties must be defined by law – Requirements of foreseeability and precision of criminal law – Principle of the retroactive application of the more lenient criminal law (lex mitior) – Principle of legal certainty – National standard of protection of fundamental rights – Obligation of the courts of a Member State to disapply decisions of the constitutional court and/or the supreme court of that Member State in the event that they are incompatible with EU law)
In Case C‑131/23,
REQUEST for a preliminary ruling under Article 267 TFEU from the Curtea de Apel Braşov (Court of Appeal, Braşov, Romania), made by decision of 2 March 2023, received at the Court on 3 March 2023, in the criminal proceedings against
C.A.A.,
C.V.,
other parties:
Parchetul de pe lângă Înalta Curte de Casaţie şi Justiţie – Direcţia Naţională Anticorupţie – Serviciul Teritorial Braşov,
Unitatea Administrativ Teritorială Judeţul Braşov,
THE COURT (Ninth Chamber),
composed of O. Spineanu-Matei, President of the Chamber, C. Lycourgos (Rapporteur), President of the Fourth Chamber, acting as Judge of the Ninth Chamber, and L.S. Rossi, Judge,
Advocate General: M. Campos Sánchez-Bordona,
Registrar: A. Calot Escobar,
having decided, after hearing the Advocate General, to rule by reasoned order, pursuant to Article 99 of the Rules of Procedure of the Court of Justice,
makes the following
Order
1
This request for a preliminary ruling concerns the interpretation of the second subparagraph of Article 19(1) TEU, Article 325(1) TFEU, Article 2(1) of the Convention drawn up on the basis of Article K.3 of the Treaty on European Union, on the protection of the European Communities’ financial interests, signed in Brussels on 26 July 1995 (OJ 1995 C 316, p. 49; ‘the PFI Convention’), Commission Decision 2006/928/EC of 13 December 2006 establishing a mechanism for cooperation and verification of progress in Romania to address specific benchmarks in the areas of judicial reform and the fight against corruption (OJ 2006 L 354, p. 56), the last sentence of Article 49(1) of the Charter of Fundamental Rights of the European Union (‘the Charter’), and Article 53 thereof, as well as the principle of the primacy of EU law.
2
The request has been made in connection with extraordinary appeals brought by C.A.A. and C.V., seeking to have set aside the final judgments convicting them of the offences of influence peddling, accepting bribes, and abuse of office, in the case of C.A.A., and abuse of office, in the case of C.V.
Legal context
European Union law
3
Decision 2006/928 was adopted, in the context of the planned accession of Romania to the European Union on 1 January 2007, on the basis, in particular, of Articles 37 and 38 of the Act concerning the conditions of accession of the Republic of Bulgaria and Romania and the adjustments to the Treaties on which the European Union is founded (OJ 2005 L 157, p. 203), which entered into force on 1 January 2007.
4
Recitals 1 to 6 and recital 9 of that decision are worded as follows:
‘(1)
The European Union is founded on the rule of law, a principle common to all Member States.
(2)
The area of freedom, security and justice and the internal market, created by the Treaty on European Union and the Treaty establishing the European Community, are based on the mutual confidence that the administrative and judicial decisions and practices of all Member States fully respect the rule of law.
(3)
This implies for all Member States the existence of an impartial, independent and effective judicial and administrative system properly equipped, inter alia, to fight corruption.
(4)
On 1 January 2007, Romania will become a Member of the European Union. The [European] Commission, whilst noting the considerable efforts to complete Romania’s preparations for membership, has identified remaining issues in its Report of 26 September 2006, in particular in the accountability and efficiency of the judicial system and law enforcement bodies, where further progress is still necessary to ensure their capacity to implement and apply the measures adopted to establish the internal market and the area of freedom, security and justice.
(5)
Article 37 of the Act of Accession empowers the Commission to take appropriate measures in case of imminent risk that Romania would cause a breach in the functioning of the internal market by a failure to implement the commitments it has undertaken. Article 38 of the Act of Accession empowers the Commission to take appropriate measures in case of imminent risk of serious shortcomings in Romania in the transposition, state of implementation, or application of acts adopted under Title VI of the EU Treaty and of acts adopted under Title IV of the EC Treaty.
(6)
The remaining issues in the accountability and efficiency of the judicial system and law enforcement bodies warrant the establishment of a mechanism for cooperation and verification of the progress of Romania to address specific benchmarks in the areas of judicial reform and the fight against corruption.
…
(9)
The present Decision should be amended if the Commission’s assessment points at a need to adjust the benchmarks. The present Decision should be repealed when all the benchmarks have been satisfactorily fulfilled.’
5
Article 1 of Decision 2006/928 provides:
‘Romania shall, by 31 March of each year, and for the first time by 31 March 2007, report to the Commission on the progress made in addressing each of the benchmarks provided for in the Annex.
The Commission may, at any time, provide technical assistance through different activities or gather and exchange information on the benchmarks. In addition, the Commission may, at any time, organise expert missions to Romania for this purpose. The Romanian authorities shall give the necessary support in this context.’
6
The annex to that decision is worded as follows:
‘Benchmarks to be addressed by Romania, referred to in Article 1:
1.
Ensure a more transparent, and efficient judicial process notably by enhancing the capacity and accountability of the Superior Council of Magistracy. Report and monitor the impact of the new civil and penal procedures codes.
2.
Establish, as foreseen, an integrity agency with responsibilities for verifying assets, incompatibilities and potential conflicts of interest, and for issuing mandatory decisions on the basis of which dissuasive sanctions can be taken.
3.
Building on progress already made, continue to conduct professional, non-partisan investigations into allegations of high-level corruption.
4.
Take further measures to prevent and fight against corruption, in particular within the local government.’
Romanian law
The Romanian Constitution
7
The principle of the retroactive application of the more lenient criminal law (lex mitior) is laid down in Article 15(2) of the Constituția României (Romanian Constitution), which provides that ‘the law shall have legal effect only for the future, with the exception of the more lenient criminal or administrative law’.
8
Article 147(1) and (4) of the Romanian Constitution states:
‘1.   The provisions of laws and ordinances currently in force, as well as those of regulations, that are found to be unconstitutional shall cease to have legal effect 45 days after the publication of the decision of the Curtea Constituțională [(Constitutional Court, Romania)] if, during that period, the Parliament or the Government, as appropriate, fails to bring the unconstitutional provisions into line with the provisions of the Constitution. Throughout that period, the provisions that have been found to be unconstitutional shall be suspended by law.
…
4.   The decisions of the Curtea Constituțională [(Constitutional Court)] shall be published in the Monitorul Oficial al României. As from the date of publication, those decisions shall be generally binding and shall have legal effect only for the future.’
Criminal legislation
9
On 1 February 2014, Legea nr. 286/2009 privind Codul penal (Law No 286/2009 establishing the Criminal Code) of 17 July 2009 (Monitorul Oficial al României, Part I, No 510 of 24 July 2009; ‘the Criminal Code’) entered into force.
10
The scope of the principle of the retroactive application of the more lenient criminal law (lex mitior), a principle which is set out in Article 15(2) of the Romanian Constitution, is specified in Article 5(1) of the Criminal Code, according to which:
‘If, between the commission of an offence and final judgment in the case, one or more criminal laws are passed, the more lenient law shall apply.’
11
Article 154(1) of the Criminal Code provides:
‘The limitation periods for criminal liability are as follows:
(a)
15 years, where the offence committed is punishable by life imprisonment or by a term of imprisonment of more than 20 years;
(b)
10 years, where the offence committed is punishable by a term of imprisonment of not less than 10 years and not more than 20 years;
(c)
8 years, where the offence committed is punishable by a term of imprisonment of not less than 5 years and not more than 10 years;
(d)
5 years, where the offence committed is punishable by a term of imprisonment of not less than 1 year and not more than 5 years;
(e)
3 years, where the offence committed is punishable by a term of imprisonment of not more than 1 year or by a fine’.
12
Before the entry into force of the Criminal Code, the provision governing the interruption of limitation periods in criminal matters provided as follows:
‘The limitation period laid down in Article 122 shall be interrupted by the performance of any act which, by law, must be notified to the suspect or defendant in the course of criminal proceedings.’
13
Article 155(1) of the Criminal Code, in the version resulting from Law No 286/2009, provided:
‘The limitation period for criminal liability shall be interrupted by the performance in the proceedings of any procedural act.’
14
Article 155(1) of the Criminal Code was amended as follows by Ordonanța de urgență a Guvernului nr. 71/2022 pentru modificarea articolului 155 alineatul (1) din Legea nr. 286/2009 privind Codul penal (Government Emergency Order No 71/2022 amending Article 155(1) of Law No 286/2009 establishing the Criminal Code) of 30 May 2022 (Monitorul Oficial al României, Part I, No 531 of 30 May 2022; ‘OUG No 71/2022’):
‘The limitation period for criminal liability shall be interrupted by the performance in the proceedings of any procedural act which, by law, must be notified to the suspect or defendant.’
15
Article 426 of Legea nr. 135/2010 privind Codul de procedură penală (Law No 135/2010 establishing the Code of Criminal Procedure) of 1 July 2010 (Monitorul Oficial al României, Part I, No 486 of 15 July 2010), in the version applicable to the dispute in the main proceedings, entitled ‘Cases in which an extraordinary appeal may be brought’, provides, in point (b) thereof:
‘An extraordinary appeal may be brought against final decisions in criminal proceedings in the following cases:
…
(b)
where the defendant has been convicted despite there being evidence of a ground for discontinuance of the criminal proceedings.’
The dispute in the main proceedings and the questions referred for a preliminary ruling
16
By a criminal judgment of 30 April 2020 of the Tribunalul Brașov (Regional Court, Brașov, Romania), which became final following a criminal judgment of the Curtea de Apel Brașov (Court of Appeal, Brașov, Romania) of 1 February 2022, C.A.A. and C.V. were found guilty, respectively, of accepting bribes, influence peddling, and abuse of office, in the case of C.A.A., and of abuse of office, in connection with procedures for the award of public contracts in Romania, in the case of C.V. C.A.A. was sentenced to a term of imprisonment of 7 years and 10 months, together with an ancillary penalty prohibiting him from exercising certain rights for a period of 5 years. C.V. was sentenced to a term of imprisonment of 2 years, that sentence being suspended and C.V. kept under supervision for a period of 3 years.
17
On 1 February 2022, on the basis of the decision convicting C.A.A., the Tribunalul Brașov (Regional Court, Brașov) issued a warrant for the enforcement of the prison sentence imposed on C.A.A.
18
In its request for a preliminary ruling, the referring court alludes to national case-law relating to Article 155(1) of the Criminal Code, in the version resulting from Law No 286/2009, which may have decisive effect on the situation of the appellants in the main proceedings.
19
That court states, first, that the Curtea Constituțională (Constitutional Court), by Decision No 297 of 26 April 2018, published on 25 June 2018 (‘Decision No 297/2018 of the Curtea Constituțională (Constitutional Court)’), upheld a plea of unconstitutionality concerning that provision inasmuch as it provided for the limitation period for criminal liability to be interrupted by the performance of ‘any procedural act’.
20
The Curtea Constituțională (Constitutional Court) found, inter alia, that that provision lacked foreseeability and that it was in breach of the principle that offences and penalties must be defined by law, given that the expression ‘any procedural act’ also covered acts which had not been notified to the suspect or defendant, thus preventing him or her from becoming aware of the fact that a new limitation period for his or her criminal liability had begun to run.
21
It also found that Article 155(1) of the Criminal Code, in the version thereof prior to the entry into force of Law No 286/2009, satisfied the conditions of foreseeability imposed by the relevant constitutional provisions, as it provided that only the performance of an act which, by law, had to be notified to the suspect or defendant was capable of interrupting the limitation period for criminal liability.
22
Secondly, it is apparent from the explanations provided by the referring court that, for several years, the national legislature did not take action, following Decision No 297/2018 of the Curtea Constituțională (Constitutional Court), to replace the provision held to be unconstitutional, namely Article 155(1) of the Criminal Code.
23
Thirdly, the referring court states that the Curtea Constituțională (Constitutional Court), by Decision No 358 of 26 May 2022, published on 9 June 2022 (‘Decision No 358/2022 of the Curtea Constituțională (Constitutional Court)’), upheld a further plea of unconstitutionality concerning Article 155(1) of the Criminal Code. In that decision, the Curtea Constituțională (Constitutional Court) clarified that Decision No 297/2018 had the legal status of a ‘simple’ decision finding unconstitutionality. Emphasising the lack of action by the legislature since Decision No 297/2018 and the fact that the combined effect of that decision and of that lack of action had given rise to a new situation which lacked clarity and foreseeability as regards the rules applicable to the interruption of the limitation period for criminal liability, which had resulted in inconsistent judicial practice, the Curtea Constituțională (Constitutional Court) stated that, between the date of publication of Decision No 297/2018 and the entry into force of a legislative measure determining the applicable rule, ‘[Romanian] positive law [did] not provide for any ground for interrupting the limitation period for criminal liability’.
24
Fourthly, it is apparent from the request for a preliminary ruling that, on 30 May 2022, that is to say, after Decision No 358/2022 of the Curtea Constituțională (Constitutional Court) had been handed down, but before it had been published, the Romanian Government, acting on the basis of its delegated legislative powers, adopted OUG No 71/2022, which entered into force on the same date and by which Article 155(1) of the Criminal Code has been amended so that the limitation period for criminal liability is interrupted by any procedural act which has to be notified to the suspect or defendant.
25
Fifthly, the referring court states that, by Decision No 67/2022 of 25 October 2022, published on 28 November 2022, the Înalta Curte de Casație și Justiție (High Court of Cassation and Justice, Romania) stated that, under Romanian law, the rules relating to the interruption of the limitation period for criminal liability fall within the scope of substantive criminal law and that, consequently, they are subject to the principle of non-retroactivity of criminal law, without prejudice to the principle of retroactive application of the more lenient criminal law (lex mitior), as guaranteed, inter alia, in Article 15(2) of the Romanian Constitution.
26
Consequently, the Înalta Curte de Casație și Justiție (High Court of Cassation and Justice) held that a final conviction may, in principle, be the subject of an extraordinary appeal based on the effects of Decisions No 297/2018 and No 358/2022 of the Curtea Constituțională (Constitutional Court) as a more lenient criminal law (lex mitior). That possibility is, however, precluded where the appeal court has already examined the issue of the limitation period for criminal liability in the course of the proceedings which gave rise to that final conviction.
27
C.A.A. and C.V. each brought before the Curtea de Apel Brașov (Court of Appeal, Brașov), which is the referring court, on the basis of Article 426(b) of Law No 135/2010 establishing the Code of Criminal Procedure, in the version applicable to the dispute in the main proceedings, an extraordinary appeal seeking to have set aside the criminal judgment of 30 April 2020, referred to in paragraph 16 of the present order, explaining that they had been convicted despite there being evidence of a ground for discontinuance of the criminal proceedings, namely the expiry of the limitation period for their criminal liability. On the date on which his extraordinary appeal was brought, 21 June 2022, C.A.A. was incarcerated.
28
In support of their extraordinary appeals, those appellants claim, on the basis of the principle of the retroactive application of the more lenient criminal law (lex mitior), that their criminal liability is time-barred following Decisions No 297/2018 and No 358/2022 of the Curtea Constituțională (Constitutional Court).
29
The appellants argue, in essence, that, between the date of publication of Decision No 297/2018 of the Curtea Constituțională (Constitutional Court), namely 25 June 2018, and the date of publication of Decision No 358/2022, namely 9 June 2022, Romanian law did not provide for any ground for interrupting the limitation period for criminal liability.
30
The fact that, during the period between those dates, positive law did not provide for any ground for interrupting the limitation period for criminal liability constitutes, in itself, more lenient criminal law which should be applied to them in accordance with the principle of the retroactive application of the more lenient criminal law (lex mitior), which is enshrined in, inter alia, the Romanian Constitution.
31
If such an interpretation were to be accepted, the referring court finds that, having regard to the date on which the offences leading to the conviction of the appellants in the main proceedings were committed, the limitation period laid down for those offences would have expired before the decision convicting those appellants became final, which would entail the discontinuance of the criminal proceedings and would render their conviction impossible.
32
It is in that context that the referring court questions the compatibility with EU law of the interpretation put forward by the appellants in the main proceedings. That court observes, first of all, that that interpretation would have the effect of exempting those appellants from their criminal liability for offences of corruption even though Decision 2006/928 requires Romania to combat such offences effectively and dissuasively.
33
It further observes that the case in the main proceedings concerns both offences of corruption stricto sensu, namely offences of accepting bribes and influence peddling, in connection with procedures for the award of public contracts, and offences equated with offences of corruption, namely abuse of office offences also committed in connection with public contracts, by civil servants, one of whom held a particularly senior post within a territorial administrative unit.
34
Next, the referring court states that the interpretation put forward by the appellants in the main proceedings, which would have the effect of exempting those appellants from their criminal liability, must also be examined in the light of the second subparagraph of Article 19(1) TEU, Article 325(1) TFEU and Article 2(1) of the PFI Convention. Those provisions, which concern the protection of the European Union’s financial interests, apply in this instance because the offences at issue in the main proceedings were committed in connection with procedures for the award of public contracts, which were financed using public funds and resulted in the application of value added tax (VAT).
35
That court adds, in that regard, that the budget of the European Union is financed, inter alia, by the sums paid by Member States corresponding to a percentage of their gross domestic product. Accordingly, acts which adversely affect the national budget have an impact on the amount of the Member State’s contribution to the budget of the European Union, thereby indirectly adversely affecting the financial interests of the European Union.
36
Lastly, the referring court claims that its request for a preliminary ruling must also be examined in the light of the last sentence of Article 49(1) of the Charter and of Article 53 thereof, because, depending on the response given by the Court of Justice, the national court could be led to apply the principle of the more lenient criminal law and to verify whether the national standards of protection arising from the effects attributed to the decisions of the Curtea Constituțională (Constitutional Court) are compatible with the primacy of EU law.
37
The referring court explains that the effects of Decisions No 297/2018 and No 358/2022 of the Curtea Constituțională (Constitutional Court) on the limitation period for criminal liability led to the discontinuance of criminal proceedings in a particularly large number of cases, causing significant damage, and to the reopening of cases that had been finally adjudicated over the period from 25 June 2018, the date of publication of Decision No 297/2018 of the Curtea Constituțională (Constitutional Court), to 30 May 2022, the date on which OUG No 71/2022 entered into force, undermining the effectiveness of the entirety of the judicial system, which is deprived of a crucial component in the fight against corruption.
38
In addition, in its report of 22 November 2022 to the European Parliament and the Council on Progress in Romania under the Cooperation and Verification Mechanism (COM(2022) 664 final), the Commission referred to its concerns regarding the significant impact of that case-law on ongoing criminal cases, in particular in cases of corruption.
39
In those circumstances, the Curtea de Apel Brașov (Court of Appeal, Brașov) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1)
Should the second subparagraph of Article 19(1) [TEU], Article 325(1) TFEU, Article 2(1) of the PFI Convention and [Decision 2006/928] be interpreted as precluding the application of a decision of [the Curtea Constituțională (Constitutional Court)] finding, retroactively, that there were no cases of interruption of the limitation period, despite the existence of a body of generalised, long-standing case-law of the national courts, including [the Înalta Curte de Casație și Justiție (High Court of Cassation and Justice)], where the application of that decision would entail a systemic risk of impunity as a result of the re-opening of a significant number of criminal cases in which final judgment has been given and the delivery, in extraordinary appeal proceedings, of a decision to discontinue criminal proceedings as a result of a finding that the limitation period has expired?
(2)
Does the principle of the primacy of EU law, with reference to [Decision 2006/928] and the third sentence of Article 49(1) of [the Charter] (the principle of the retroactivity of the more lenient criminal law), preclude any re-examination, at the stage where a sentence is being enforced, in extraordinary appeal proceedings, of the limitation period for criminal liability, where the lodging of the extraordinary appeal is a consequence of a decision of the Curtea Constituțională (Constitutional Court), delivered after the judgment passing sentence has become final, which overturns a body of generalised and long-standing case-law of the national courts and where the dissuasiveness and effectiveness of the sentence and the certainty and stability of legal relations are thereby affected?
(3)
Does the principle of the primacy of EU law, with reference to Article 53 of [the Charter], permit the application of national standards of protection, such as that at issue in the main proceedings, guaranteed by the national law of the Member State and arising from the effects attributed to decisions of the Curtea Constituțională (Constitutional Court), where the effective application of EU law in the Member State is thereby undermined?’
Procedure before the Court
40
By a decision of the President of the Court of 30 March 2023, the proceedings in the present case were stayed pending delivery of the judgment in Lin (C‑107/23 PPU).
41
The Court delivered its judgment in Lin (C‑107/23 PPU, EU:C:2023:606) on 24 July 2023 and, on the same day, the President of the Court ordered the resumption of the proceedings.
42
The referring court, to which the Registry had communicated that judgment, informed the Court that it intended to maintain its request for a preliminary ruling.
43
In its request for a preliminary ruling, the referring court requested that the Court deal with the present case under the expedited procedure provided for in Article 105 of the Rules of Procedure of the Court of Justice.
44
In view of the Court’s decision to rule by reasoned order pursuant to Article 99 of the Rules of Procedure, there is no longer any need to adjudicate on that request.
Admissibility of the request for a preliminary ruling
45
It should be noted that, according to settled case-law, in the context of the cooperation between the Court and the national courts provided for in Article 267 TFEU, it is solely for the national court before which a dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted by the national court concern the interpretation of EU law, the Court is, in principle, bound to give a ruling (judgment of 21 March 2023, Mercedes-Benz Group (Liability of manufacturers of vehicles fitted with defeat devices), C‑100/21, EU:C:2023:229, paragraph 52 and the case-law cited).
46
It follows that questions relating to EU law enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court for a preliminary ruling only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgment of 21 March 2023, Mercedes-Benz Group (Liability of manufacturers of vehicles fitted with defeat devices), C‑100/21, EU:C:2023:229, paragraph 53 and the case-law cited).
47
In this instance, the first question submitted by the referring court concerns, inter alia, the interpretation of Article 325(1) TFEU and Article 2(1) of the PFI Convention, which concern the protection of the European Union’s financial interests.
48
It should be noted that the dispute in the main proceedings concerns, as is apparent from paragraph 16 of the present order, offences of accepting bribes, influence peddling, and abuse of office committed in connection with procedures for the award of public contracts in Romania.
49
However, unlike the offences of corruption at issue in some of the disputes at issue in the case which led to the judgment of 21 December 2021, Euro Box Promotion and Others (C‑357/19, C‑379/19, C‑547/19, C‑811/19 and C‑840/19, EU:C:2021:1034), which had been committed in connection with procedures for the award of public contracts financed in part by European funds, there is nothing in the documents before the Court to indicate that the European Union’s financial interests have been adversely affected by the offences forming the subject of the dispute in the main proceedings.
50
In particular, the fact that VAT was applied in connection with the procedures for the award of public contracts concerned cannot suffice to regard the financial interests of the European Union as having been adversely affected. Similarly, it cannot be sufficient that, as has been stated by the referring court, the offences committed were such as to adversely affect the national budget, which could have an impact on the amount of Romania’s contribution to the budget of the European Union.
51
It follows from the foregoing that the first question, in so far as it concerns the interpretation of Article 325(1) TFEU and Article 2(1) of the PFI Convention, bears no relation to the actual facts of the main action or its purpose. It is therefore, to that extent, manifestly inadmissible.
Consideration of the questions referred
52
Under Article 99 of its Rules of Procedure, the Court may at any time, on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide to rule by reasoned order where the reply to a question referred to the Court for a preliminary ruling may be clearly deduced from existing case-law.
53
It must also be recalled that the judicial cooperation provided for by Article 267 TFEU is based on a clear separation of functions between the Court and the national courts. On the one hand, the Court is empowered not to apply rules of EU law to a particular case, but only to rule on the interpretation of the Treaties and of acts of the EU institutions, bodies, offices and agencies (see, to that effect, judgment of 18 May 2021, Asociaţia Forumul Judecătorilor din România and Others, C‑83/19, C‑127/19, C‑195/19, C‑291/19, C‑355/19 and C‑397/19, EU:C:2021:393, paragraph 201 and the case-law cited). On the other hand, in accordance with paragraph 11 of the recommendations of the Court of Justice of the European Union to national courts and tribunals in relation to the initiation of preliminary ruling proceedings (OJ 2019 C 380, p. 1), it is for the national courts or tribunals to draw case-specific conclusions from the elements of interpretation provided by the Court in the proceedings pending before them (see, to that effect, judgment of 25 October 2018, Roche Lietuva, C‑413/17, EU:C:2018:865, paragraph 43).
54
In this instance, despite the doubts expressed by the referring court, the Court considers that the interpretation of EU law sought by that court may be clearly deduced from the judgments of 21 December 2021, Euro Box Promotion and Others (C‑357/19, C‑379/19, C‑547/19, C‑811/19 and C‑840/19, EU:C:2021:1034), and of 24 July 2023, Lin (C‑107/23 PPU, EU:C:2023:606). It is therefore appropriate to apply Article 99 of the Rules of Procedure in the present case.
55
As is apparent from paragraph 53 of the present order, it will be for the referring court to draw case-specific conclusions, in the dispute in the main proceedings, from the elements of interpretation arising from that case-law of the Court.
56
The questions submitted by the referring court, which it is appropriate to examine together, concern – in so far as they are admissible – the interpretation of the second subparagraph of Article 19(1) TEU, the last sentence of Article 49(1) of the Charter and Article 53 thereof, and Decision 2006/928.
57
However, it is apparent from the grounds for the order for reference that the doubts on the part of the referring court which have given rise to those questions concern, in essence, the interpretation, first, of the provisions of EU law requiring the Member States to combat corruption effectively and, secondly, of the guarantees stemming from the principle that offences and penalties must be defined by law.
58
In those circumstances, it is necessary to examine the questions only in the light of Decision 2006/928, as well as Article 49(1) and Article 53 of the Charter.
59
It follows that, by its questions, the referring court asks, in essence, whether the provisions of EU law referred to in the preceding paragraph are to be interpreted as meaning that the courts of a Member State are required to disapply (i) decisions of the constitutional court of that Member State declaring invalid the national legislative provision which governs the grounds for interrupting the limitation period in criminal matters, as a result of a breach of the principle that offences and penalties must be defined by law, as to its requirements relating to the foreseeability and precision of criminal law, and (ii) a decision of the supreme court of that Member State, from which it follows that the rules governing those grounds for interruption, as derived from that constitutional case-law, may be applied retroactively as a more lenient criminal law (lex mitior) in order to call into question final convictions, it being understood that, as a consequence of those decisions, a considerable number of criminal cases – including cases relating to offences of corruption – will be discontinued because of the expiry of the limitation period for criminal liability.
Breach of the obligation on Romania to combat corruption effectively
60
The Court has already had occasion to hold that Decision 2006/928 is, as long as it has not been repealed, binding in its entirety on Romania, and that the benchmarks in the annex to that decision, which are intended to ensure that Romania complies with the value of the rule of law, set out in Article 2 TEU, are binding on it, to the effect that Romania is required to take the appropriate measures to meet those benchmarks, taking due account, under the principle of sincere cooperation laid down in Article 4(3) TEU, of the reports drawn up by the Commission on the basis of that decision, and in particular the recommendations made in those reports (judgment of 21 December 2021, Euro Box Promotion and Others, C‑357/19, C‑379/19, C‑547/19, C‑811/19 and C‑840/19, EU:C:2021:1034, paragraph 175).
61
The benchmarks set out in the annex to Decision 2006/928 include: ‘building on progress already made, continue to conduct professional, non-partisan investigations into allegations of high-level corruption’ (third benchmark) and ‘take further measures to prevent and fight against corruption, in particular within the local government’ (fourth benchmark).
62
It follows from those benchmarks, which are binding on Romania, that Decision 2006/928 establishes the obligation, for Romania, effectively to combat corruption in general and high-level corruption in particular, especially within local government. In that regard, it is apparent from the order for reference that C.A.A. held an important leadership post within a local public authority in Romania.
63
In order to comply with the requirements of that decision, under which corruption such as that referred to in the preceding paragraph must be prevented and combatted, Romania is obliged to provide for criminal penalties that are effective and that act as a deterrent (see, to that effect, judgment of 21 December 2021, Euro Box Promotion and Others, C‑357/19, C‑379/19, C‑547/19, C‑811/19 and C‑840/19, EU:C:2021:1034, paragraphs 190 and 191).
64
In addition, it is for Romania to ensure that its rules of criminal law and of criminal procedure allow for the effective prosecution of offences of corruption. Thus, even though the penalties provided for and the criminal proceedings initiated in order to counter such infringements fall within the competence of Romania, that competence is limited not only by the principles of proportionality and equivalence, but also by the principle of effectiveness, which requires that those penalties are effective and act as a deterrent. That requirement of effectiveness necessarily covers both the prosecutions of and the penalties for offences of corruption and the enforcement of the penalties imposed, since unless they are enforced effectively penalties cannot be effective and act as a deterrent (see, to that effect, judgment of 21 December 2021, Euro Box Promotion and Others, C‑357/19, C‑379/19, C‑547/19, C‑811/19 and C‑840/19, EU:C:2021:1034, paragraph 192).
65
In this instance, it is apparent from the explanations provided by the referring court, as summarised in paragraphs 18 to 26 of the present order, that (i) pursuant to Decisions No 297/2018 and No 358/2022 of the Curtea Constituțională (Constitutional Court), during the period from 25 June 2018, the date of the publication of Decision No 297/2018, to 30 May 2022, the date on which OUG No 71/2022 entered into force, Romanian law did not provide for any ground allowing the limitation period for criminal liability to be interrupted, and (ii) according to Decision No 67/2022 of the Înalta Curte de Casație și Justiție (High Court of Cassation and Justice), the rule stemming from that constitutional case-law can be relied on as a more lenient criminal law (lex mitior), including to challenge final convictions.
66
As regards the case-specific effects that might result from that case-law, the referring court states that, in the dispute in the main proceedings, the application, as a more lenient criminal law (lex mitior), of the rule laid down in Decisions No 297/2018 and No 358/2022 of the Curtea Constituțională (Constitutional Court), according to which, during the period referred to in the preceding paragraph, Romanian law did not provide for any ground for interrupting the limitation period of criminal liability, would have the result that the limitation period laid down for the offences at issue in the main proceedings would have expired before the conviction of the appellants in the main proceedings became final, which would entail the discontinuance of the criminal proceedings and would render their conviction impossible.
67
The referring court has also emphasised that Decisions No 297/2018 and No 358/2022 of the Curtea Constituțională (Constitutional Court) are likely to affect a ‘particularly large number of cases’, including cases closed by delivery of final convictions, which could be challenged by means of extraordinary appeals such as those at issue in the main proceedings.
68
In addition, the data presented by the Commission in its report as referred to in paragraph 38 of the present order, drawn up pursuant to Article 2 of Decision 2006/928, confirm the existence of a risk that numerous cases of corruption may no longer be penalised because of the expiry of the corresponding limitation period for criminal liability. It is apparent from that report, alluded to by the referring court, that Decisions No 297/2018 and No 358/2022 of the Curtea Constituțională (Constitutional Court) could lead ‘to the termination of criminal proceedings and the removal of criminal liability in a substantial number of cases’ and that ‘the discontinuation of criminal proceedings in such a high number of corruption cases may have a significant impact on efforts to combat high-level corruption’.
69
It may be inferred from the foregoing that the legal situation resulting from the application of Decisions No 297/2018 and No 358/2022 of the Curtea Constituțională (Constitutional Court) and of Decision No 67/2022 of the Înalta Curte de Casație și Justiție (High Court of Cassation and Justice) entails a systemic risk of offences of corruption going unpunished, in particular in cases whose complexity calls for a longer investigation by the criminal authorities (see, to that effect, judgment of 24 July 2023, Lin, C‑107/23 PPU, EU:C:2023:606, paragraph 91).
70
The existence of such a systemic risk of impunity is incompatible with the requirements of Decision 2006/928, as noted in paragraphs 59 to 61 of the present order.
71
In that regard, it is primarily for the national legislature to take the measures necessary to comply with those requirements, by adopting the necessary provisions or amending the existing provisions in order to ensure that the procedural rules applicable to the prosecution and punishment of offences of corruption, including the rules governing the limitation period for criminal liability, comply with the requirements of Decision 2006/928. Those rules must be designed in such a way that no systemic risk arises, for reasons inherent in those rules, that acts that may be categorised as such offences may go unpunished, and also to ensure that the fundamental rights of accused persons are protected (see, to that effect, judgment of 24 July 2023, Lin, C‑107/23 PPU, EU:C:2023:606, paragraph 93).
72
A legal situation in which the legislation of a Member State governing the interruption of the limitation period for criminal liability has been declared invalid and, accordingly, rendered ineffective by the constitutional court of that Member State, without the national legislature having remedied that situation during a period of almost four years, is incompatible with the obligation, referred to in paragraphs 59 to 61 of the present order, to ensure that offences of corruption, committed on the national territory, are punishable by criminal penalties that are effective and that act as a deterrent. Such a situation, which concerns a provision of general application that was applicable to all criminal proceedings and in which it was not foreseeable, either by the prosecuting authorities or by the criminal courts, that that provision would not be replaced after it had been declared unconstitutional, entails the inherent risk that numerous cases of corruption will go unpunished because of the expiry of that limitation period, particularly in cases whose complexity calls for a longer investigation by the criminal authorities (see, to that effect, judgment of 24 July 2023, Lin, C‑107/23 PPU, EU:C:2023:606, paragraph 94).
The obligations of the national courts
73
It is settled case-law that, in accordance with the principle of the primacy of EU law, the national court called upon within the exercise of its jurisdiction to apply provisions of EU law is under a duty, where it is unable to interpret national law in compliance with the requirements of EU law, to give full effect to the requirements of EU law in the dispute brought before it, by disapplying, as required, of its own motion, any national rule or practice, even if adopted subsequently, that is contrary to a provision of EU law with direct effect, without it having to request or await the prior setting aside of that national rule or practice by legislative or other constitutional means (judgment of 24 July 2023, Lin, C‑107/23 PPU, EU:C:2023:606, paragraph 95).
74
In this instance, the benchmarks set out in the annex to Decision 2006/928 are formulated in clear and precise terms and are not subject to any conditions, and they therefore have direct effect (see, to that effect, judgment of 21 December 2021, Euro Box Promotion and Others, C‑357/19, C‑379/19, C‑547/19, C‑811/19 and C‑840/19, EU:C:2021:1034, paragraph 253).
75
Accordingly, it is, in principle, for the national courts to give full effect to the obligations under that decision and to disapply national provisions which, in connection with proceedings concerning offences of corruption, prevent the application of effective penalties that act as a deterrent in order to counter such offences (see, to that effect, judgment of 21 December 2021, Euro Box Promotion and Others, C‑357/19, C‑379/19, C‑547/19, C‑811/19 and C‑840/19, EU:C:2021:1034, paragraph 194).
76
It thus appears that, in principle, the national courts are required, in accordance with Decision 2006/928, to disapply Decisions No 297/2018 and No 358/2022 of the Curtea Constituțională (Constitutional Court), from which it follows that, during the period from 25 June 2018, the date of publication of Decision No 297/2018, to 30 May 2022, the date on which OUG No 71/2022 entered into force, Romanian law did not provide for any ground for interrupting the limitation period for criminal liability, in so far as those decisions have the effect that criminal liability is time-barred in a large number of cases of corruption and, accordingly, as has been noted in paragraph 66 of the present order, of creating a systemic risk of such offences going unpunished (see, to that effect, judgment of 24 July 2023, Lin, C‑107/23 PPU, EU:C:2023:606, paragraph 98).
77
Similarly, the national courts are required, in principle, in accordance with the provisions of that decision, to disapply Decision No 67/2022 of the Înalta Curte de Casație și Justiție (High Court of Cassation and Justice), in so far as that decision makes it possible to rely on the expiry of the limitation period for criminal liability, on the basis of the effects of Decisions No 297/2018 and No 358/2022 of the Curtea Constituțională (Constitutional Court) as a more lenient criminal law (lex mitior), in cases of corruption and, accordingly, increases the systemic risk of such offences going unpunished (see, to that effect, judgment of 24 July 2023, Lin, C‑107/23 PPU, EU:C:2023:606, paragraph 99).
78
However, it remains necessary to ascertain whether the obligation to disapply such decisions conflicts, in a situation such as that at issue in the main proceedings, with the protection of fundamental rights (judgment of 24 July 2023, Lin, C‑107/23 PPU, EU:C:2023:606, paragraph 100).
79
In that regard, it should be noted, in the first place, that proceedings concerned with offences of corruption amount to an implementation of the obligations on Romania under Decision 2006/928 and, therefore, under EU law, within the meaning of Article 51(1) of the Charter. The fundamental rights guaranteed by the Charter to the persons concerned in the main proceedings must therefore be respected (see, to that effect, judgment of 21 December 2021, Euro Box Promotion and Others, C‑357/19, C‑379/19, C‑547/19, C‑811/19 and C‑840/19, EU:C:2021:1034, paragraph 204).
80
In addition, it must be observed that, as the Court held in paragraph 109 of the judgment of 24 July 2023, Lin (C‑107/23 PPU, EU:C:2023:606), the obligation for national courts to disapply Decisions No 297/2018 and No 358/2022 of the Curtea Constituțională (Constitutional Court), as well as Decision No 67/2022 of the Înalta Curte de Casație și Justiție (High Court of Cassation and Justice), is not such as to undermine either the principle of foreseeability, precision and non-retroactivity of offences and penalties or the principle of the retroactive application of the more lenient criminal law (lex mitior), as guaranteed in Article 49(1) of the Charter.
81
In the second place, it must be borne in mind that, where, as in this instance, a court of a Member State is called upon to review whether fundamental rights are complied with by a national provision or measure which, in a situation where action of the Member States is not entirely determined by EU law, implements the latter for the purposes of Article 51(1) of the Charter, national authorities and courts remain free to apply national standards of protection of fundamental rights, provided that the level of protection provided for by the Charter, as interpreted by the Court, and the primacy, unity and effectiveness of EU law are not thereby compromised (judgment of 24 July 2023, Lin, C‑107/23 PPU, EU:C:2023:606, paragraph 110).
82
In paragraph 111 of the judgment of 24 July 2023, Lin (C‑107/23 PPU, EU:C:2023:606), the Court found that the solutions adopted in Decisions No 297/2018 and No 358/2022 of the Curtea Constituțională (Constitutional Court) and in Decision No 67/2022 of the Înalta Curte de Casație și Justiție (High Court of Cassation and Justice) are based on the principle that offences and penalties must be defined by law and on the principle of the retroactive application of the more lenient criminal law (lex mitior), as guaranteed by the Romanian Constitution, with those principles having to be regarded as national standards of protection of fundamental rights.
83
It follows, in essence, from paragraph 118 of the judgment of 24 July 2023, Lin (C‑107/23 PPU, EU:C:2023:606), that the Romanian courts are not required to disapply the national case-law referred to in the preceding paragraph, in accordance with Decision 2006/928, notwithstanding the existence of a systemic risk of offences of corruption going unpunished, in so far as that national case-law is based on the principle that offences and penalties must be defined by law, as protected under national law, as to its requirements relating to the foreseeability and precision of criminal law, including the rules on limitation periods for criminal offences.
84
However, in view of the need to weigh the national standard of protection relating to the principle of the retroactive application of the more lenient criminal law (lex mitior) against the provisions of Decision 2006/928, the application of that standard by a national court in order to call into question the interruption of the limitation period for criminal liability by procedural acts which took place before 25 June 2018, the date of publication of Decision No 297/2018 of the Curtea Constituțională (Constitutional Court), must be regarded as being liable to compromise the primacy, unity and effectiveness of EU law, within the meaning of the case-law referred to in paragraph 76 of the present order (see, to that effect, judgment of 24 July 2023, Lin, C‑107/23 PPU, EU:C:2023:606, paragraph 123).
85
Consequently, it must be held that the national courts cannot, in the context of judicial proceedings seeking to impose criminal penalties for offences of corruption, apply the national standard of protection relating to the principle of the retroactive application of the more lenient criminal law (lex mitior), as referred to in paragraph 62 of the present order, in order to call into question the interruption of the limitation period for criminal liability by procedural acts which took place before 25 June 2018, the date of publication of Decision No 297/2018 of the Curtea Constituțională (Constitutional Court) (see, to that effect, judgment of 24 July 2023, Lin, C‑107/23 PPU, EU:C:2023:606, paragraph 124).
86
In those circumstances, the answer to the questions raised is that Decision 2006/928 must be interpreted as meaning that the courts of a Member State are not required to disapply the decisions of the constitutional court of that Member State declaring invalid the national legislative provision which governs the grounds for interrupting the limitation period in criminal matters as a result of a breach of the principle that offences and penalties must be defined by law, as protected under national law, as to its requirements relating to the foreseeability and precision of criminal law, even if, as a consequence of those decisions, a considerable number of criminal cases – including cases relating to offences of corruption – will be discontinued because of the expiry of the limitation period for criminal liability. However, this must be interpreted as meaning that the courts of that Member State are required to disapply a national standard of protection relating to the principle of the retroactive application of the more lenient criminal law (lex mitior) which makes it possible, including in the context of appeals brought against final decisions, to call into question the interruption of the limitation period for criminal liability in such cases by procedural acts which took place before such a declaration of invalidity.
Costs
87
Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court.
On those grounds, the Court (Ninth Chamber) hereby orders:
Commission Decision 2006/928/EC of 13 December 2006 establishing a mechanism for cooperation and verification of progress in Romania to address specific benchmarks in the areas of judicial reform and the fight against corruption
must be interpreted as meaning that the courts of a Member State are not required to disapply the decisions of the constitutional court of that Member State declaring invalid the national legislative provision which governs the grounds for interrupting the limitation period in criminal matters as a result of a breach of the principle that offences and penalties must be defined by law, as protected under national law, as to its requirements relating to the foreseeability and precision of criminal law, even if, as a consequence of those decisions, a considerable number of criminal cases – including cases relating to offences of corruption – will be discontinued because of the expiry of the limitation period for criminal liability.
However, this must be interpreted as meaning that the courts of that Member State are required to disapply a national standard of protection relating to the principle of the retroactive application of the more lenient criminal law (lex mitior) which makes it possible, including in the context of appeals brought against final decisions, to call into question the interruption of the limitation period for criminal liability in such cases by procedural acts which took place before such a declaration of invalidity.
[Signatures]
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*1
)	Language of the case: Romanian.