Provisional text
OPINION OF ADVOCATE GENERAL
CAMPOS SÁNCHEZ-BORDONA
delivered on 23 April 2026 (1)
Case C‑321/25 [Gidzhinov] (i)
Criminal proceedings
against
А,
B,
V,
G,
D,
intervener:
Sofiyska gradska prokuratura
(Reference for a preliminary ruling from the Sofiyski gradski sad (Sofia City Court, Bulgaria))
( Preliminary ruling proceedings – Area of freedom, security and justice – Judicial cooperation in criminal matters – Combatting organised crime – Protection of the financial interests of the European Union – Article 325(1)
TFEU – PFI Convention – Framework Decision 2008/841/JHA – Obligation to combat fraud affecting the financial interests of the European Union through effective deterrent measures – Obligation to provide for criminal penalties – Serious VAT fraud – Maximum penalties – Principle of proportionality – Limitation period )
1.        In the course of criminal proceedings against persons accused of having run or participated in a criminal organisation engaged in value added tax (VAT) fraud, the
Sofiyski gradski sad (Sofia City Court, Bulgaria) has referred to the Court of Justice for a preliminary ruling two questions that are very different in nature, concerning the absolute limitation period for criminal prosecutions (Question 1) and the relationship between the penalties imposed for agreements to commit an offence and those imposed for the offence itself (Question 2).
2.        The provisions of EU law the interpretation of which is the subject of the questions referred for a preliminary ruling are Article 325(1) TFEU, the Convention on the protection of the European Communities’ financial interests (2) and Framework Decision 2008/841/JHA. (3)
I.      Legislative framework
A.      European Union law
1.      PFI Convention
3.        Article 1 (‘General provisions’) provides:
‘1.      For the purposes of this Convention, fraud affecting the European [Union’s] financial interests shall consist of:
…
(b)      in respect of revenue, any intentional act or omission relating to:
–        the use or presentation of false, incorrect or incomplete statements or documents, which has as its effect the illegal diminution of the resources of the general budget of the European [Union] or budgets managed by, or on behalf of, the European [Union],
–        non-disclosure of information in violation of a specific obligation, with the same effect,
–        misapplication of a legally obtained benefit, with the same effect.
…’
4.        Article 2
(‘Penalties’) provides:
‘1.      Each Member State shall take the necessary measures to ensure that the conduct referred to in Article 1, and participating in, instigating, or attempting the conduct referred to in Article 1(1), are punishable by effective, proportionate and dissuasive criminal penalties, including, at least in cases of serious fraud, penalties involving deprivation of liberty which can give rise to extradition, it being understood that serious fraud shall be considered to be fraud involving a minimum amount to be set in each Member State. This minimum amount may not be set at a sum exceeding [EUR]
50 000.
…’
2.      Framework Decision 2008/841
5.        Article 1 (‘Definitions’) reads:
‘For the purposes of this Framework Decision:
1.      “criminal organisation” means a structured association, established over a period of time, of more than two persons acting in concert with a view to committing offences which are punishable by deprivation of liberty or a detention order of a maximum of at least four years or a more serious penalty, to obtain, directly or indirectly, a financial or other material benefit;
2.      “structured association” means an association that is not randomly formed for the immediate commission of an offence, nor does it need to have formally defined roles for its members, continuity of its membership, or a developed structure.’
6.        Article 2 (‘Offences relating to participation in a criminal organisation’) is worded as follows:
‘Each Member State shall take the necessary measures to ensure that one or both of the following types of conduct related to a criminal organisation are regarded as offences:
(a)      conduct by any person who, with intent and with knowledge of either the aim and general activity of the criminal organisation or its intention to commit the offences in question, actively takes part in the organisation’s criminal activities, including the provision of information or material means, the recruitment of new members and all forms of financing of its activities, knowing that such participation will contribute to the achievement of the organisation’s criminal activities;
(b)      conduct by any person consisting in an agreement with one or more persons that an activity should be pursued, which if carried out, would amount to the commission of offences referred to in Article 1, even if that person does not take part in the actual execution of the activity.’
7.        Article 3 (‘Penalties’) states:
‘1.      Each Member State shall take the necessary measures to ensure that:
(a)      the offence referred to in Article 2(a) is punishable by a maximum term of imprisonment of at least between two and five years; or
(b)      the offence referred to in Article 2(b) is punishable by the same maximum term of imprisonment as the offence at which the agreement (4) is aimed,
or by a maximum term of imprisonment of at least between two and five years.
2.      Each Member State shall take the necessary measures to ensure that the fact that offences referred to in Article 2, as determined by this Member State, have been committed within the framework of a criminal organisation, may be regarded as an aggravating circumstance.’
B.      Bulgarian law
1.      Nakazatelen kodeks (Criminal Code)
8.        Article 23(1) provides:
‘Where a number of offences are committed by a single act or where a person has committed a number of different offences before being convicted of one of those offences by a final judgment, the court, after setting a penalty for each of those offences separately, shall impose the most severe of those penalties.’
9.        Pursuant to Article 80:
‘(1)      Prosecution shall be time-barred where it is not initiated within:
…
2.      15 years, in the case of acts punishable by a custodial sentence of more than 10 years;
3.      ten years, in the case of acts punishable by a custodial sentence of more than three years;
…
(3)      The limitation period for prosecution starts to run from the commission of the offence; in the case of the attempted commission or preparation for the commission of an offence, from the day on which the last act was committed; and, in the case of uninterrupted and continuing offences, from when those offences cease.’
10.      Article 81
provides:
‘(1)      The limitation period shall be suspended where the commencement or continuation of criminal prosecution depends on the resolution by final judgment of a preliminary question.
(2)      The limitation period shall be interrupted by any act of the competent authorities carried out for the purposes of prosecution and only in respect of the person against whom the prosecution is brought. Where the act which interrupted the limitation period has concluded, a new limitation period shall start to run.
(3)      Notwithstanding the suspension or interruption of the limitation period, criminal prosecution is time-barred where a period has elapsed which exceeds half of that provided for in the preceding article.’
11.      Article 93
reads:
‘The following terms and expressions are used in this code with the following meanings:
…
20.      “organised crime group”: a long-term, structured association of three or more persons aimed at committing in concert, on national territory or abroad, offences which are punishable by a custodial sentence of more than three years. An association is deemed to be structured even if it does not have formally assigned roles for its members, long-term membership or a developed structure.
…’
12.      In accordance with Article 255:
‘(1)      Anyone who evades the setting or payment of high-value tax debts by:
…
7.      wrongly deducting the input tax paid,
… shall be punished by a custodial sentence of one to six years and a fine of up to 2 000 [leva (BGN)].
…
(3)      Where a particularly high amount of tax is due, the penalty will be three to eight years’ imprisonment and confiscation of all or some of the offender’s assets.
…’
13.      In accordance with Article 321:
‘(1)      The creation or running of an organised crime group is punishable by a custodial sentence of three to ten years.
(2)      Participation in that group is punishable by a custodial sentence of one to six years.
(3)      If the group is set up …
for the purpose of enrichment, […] the penalty shall be:
1.      in the case of the offences referred to in paragraph 1: a custodial sentence of five to fifteen years;
2.      in the case of the offences referred to in paragraph 2: a custodial sentence of three to ten years.
…’
2.      Nakazatelno protsesualen kodeks (Code of criminal procedure)
14.      Article 24
is worded:
‘(1)      Proceedings shall not be commenced, or, if they have already commenced, shall be discontinued, if:
…
3.      criminal liability has lapsed as a result of expiry of the period laid down by law;
[…]
(2)      In the cases referred to in paragraph 1(2), (3) and
(9), criminal proceedings shall not be closed if the person charged or referred to a criminal court so requests. An amnesty or time-barring shall not prevent the reopening of a criminal case if the convicted person requests it or if the prosecutor lodges a motion for acquittal.
…’
15.      Pursuant to Article 258:
‘(1)      The matter will be tried by the same panel of judges from the beginning to the end of the hearing.
(2)      If a member of the court is unable to continue to be involved in the examination of the case and must be replaced, that examination shall recommence from the beginning.’
16.      Article 289
reads:
‘(1)      The court shall close criminal proceedings in the cases referred to in Article 24(1)(2) to
(10), and 24(5).
(2)      If any of the grounds referred to in Article 24(1)(2) and (3) emerge at the trial and the accused requests that the proceedings continue, the court shall give its decision by criminal judgment.
…’
II.    Facts, dispute and questions referred for a preliminary ruling
17.      In 2015, criminal proceedings were commenced in Bulgaria against five persons for the commission of a number of crimes relating to VAT. In those proceedings:
–        A. and B. were accused of having run an organised crime group, within the meaning of Article 321(3) of the Criminal Code, between March 2011 and November 2012. That conduct is punished by a custodial sentence of five to fifteen years.
–        V., G. and D. were accused of having participated, during the same period, in the crime group organised by A. and B. That conduct is punished by a custodial sentence of three to ten years.
18.      In addition to those charges, the accused were charged with the following offences, defined in Article 255(3) of the Criminal Code and punished by a custodial sentence of three to eight years, together with confiscation of all or some of an offender’s assets:
–        Three counts of making a false VAT declaration, in the amount of EUR 633 525.
–        14 counts of issuing false invoices, in the amount of EUR 1 130 568.
–        Tax evasion, in the amount of EUR 1 022 583.
–        Unlawful deductions totalling EUR 1 244 274.
19.      The case was originally assigned to a court composed of one judge and two court assessors, which held 48 hearings between 2015 and 2021. In 2021, the proceedings had to be recommenced from the beginning due to the appointment of a new judge replacing the first judge, who ceased to hold office.
20.      The new court, comprising a second judge and two other court assessors, held 18 hearings between 2022 and 2025, most of which were postponed, while no evidence-gathering measures were adopted.
21.      The proceedings had to be re-allocated a third time as a result of the retirement of the second judge. The proceedings were assigned to a third judge and two new court assessors, who make up the composition of the referring court.
22.      In that connection, the referring court sets out the following considerations:
–        ‘…
it is objectively impossible to complete criminal proceedings at three levels of jurisdiction before the dates when the absolute limitation period for prosecuting most of the offences expires (not those connected to the running of a criminal organisation). Even if the referring court were to decide on the merits of the case before then, the absolute limitation period would certainly expire before any appeals lodged were decided at second and/or third instance.’ (5)
–        The prosecution of two of the accused as leaders of a criminal organisation entails a maximum sentence of 15 years’ imprisonment. Therefore, the absolute limitation period is 22 and a half years and it expires on 14 May 2035. That limitation period for prosecuting the individuals named as leaders of the criminal organisation would suffice for the conduct of criminal proceedings, even at three levels of jurisdiction.
–        In relation to the penalties laid down for the conduct at issue, the provision pursuant to which
‘… agreeing to commit an offence would be penalised more severely than actually committing the offence …
would be contrary to the principle of proportionality, since the criminal nature of the agreement … stems solely from the criminal nature of the offences which the agreement was formed to commit and which may be committed in future.’ (6)
23.      That being so, the Sofiyski gradski sad (Sofia City Court) decided to refer the following questions to the Court of Justice for a preliminary ruling:
‘1)      Do Article 325
[TFEU] and Article 2(1) of the [PFI] Convention … preclude a national law which provides for criminal prosecution to become time-barred in respect of acts directed against the EU’s financial interests and for which the limitation period is
determined solely by reference to the maximum potential penalty applicable to an offence and not by reference to the factual and legal complexity of the case, and which takes no account of the possibility of a coincidental occurrence making it necessary to restart the criminal proceedings anew, such that the application of national law may lead to impunity?
2)      Does Article 3(1)(b) of Council Framework Decision 2008/841 preclude a national law under which the offence referred to in Article 2(b)of that Decision
is punishable by a higher maximum term of imprisonment than the offence which the agreement referred to in Article 2(b) concerns?’
III. Procedure before the Court of Justice
24.      The request for a preliminary ruling was received at the Registry of the Court on
8 May 2025.
25.      Written observations were lodged by V., the Austrian Government and the European Commission.
26.      The Court did not consider it necessary to hold a hearing.
IV.    Analysis
27.      The referring court submits two separate questions:
–        The first concerns the limitation rules for prosecution laid down by the Bulgarian legislature and whether those rules are appropriate for ensuring the effective punishment of VAT fraud.
–        The second concerns the justification, from the perspective of the principle of proportionality, for national legislation which, in certain circumstances provides for more severe punishment for those who agree to commit an offence than for those who actually commit the offence.
A.      Question 1
28.      The referring court asks whether Article 325 TFEU and Article 2(1) of the PFI Convention preclude national legislation pursuant to which ‘the limitation period is
determined solely by reference to the maximum potential penalty applicable to an offence and not by reference to the factual and legal complexity of the case, and which takes no account of the possibility of a coincidental occurrence making it necessary to restart the criminal proceedings anew’. The referring court adds that that national law could
‘lead to impunity’.
29.      As the Commission has observed, (7) the protection of the European Union’s financial interests through the imposition of criminal penalties is a shared competence between the European Union and the Member States, within the meaning of Article 4(2) TFEU. Since limitation periods and the rules relating to their interruption and suspension have not undergone detailed harmonisation at EU level, the establishment of those periods is, in principle, the responsibility of the Member States. (8)
30.      Article 325(1) TFEU
requires the Member States to counter fraud and any other illegal activity affecting the financial interests of the European Union through effective deterrent measures. (9)
31.      Inter alia, Member States are required to take the necessary measures to ensure the effective, full collection of own resources, including revenue from the application of a uniform rate to the harmonised VAT assessment bases. (10)
32.      The Member States have freedom to choose the applicable penalties – which may take the form of administrative penalties, criminal penalties or a combination of the two – in order to ensure that all VAT revenue is collected and, in so doing, that the financial interests of the European Union are protected. Criminal penalties may be essential to combat certain serious cases of VAT evasion in an effective and dissuasive manner. (11)
33.      The conduct at issue in the main proceedings may constitute criminal offences of tax evasion and criminal organisation in relation to VAT. The amounts of VAT with which the proceedings are concerned come to an approximate total amount of EUR 4 000 000, which is much higher than the minimum amount laid down by Article 2(1) of the PFI Convention for the purposes of classifying fraud affecting the European Union’s financial interests
as ‘serious’.
34.      Accordingly, the conduct at issue in the main proceedings falls within the scope of Article 325(1) TFEU and Article 2(1) of the PFI Convention.
35.      The Court has previously held that the effectiveness and deterrent effect of the measures adopted by Member States to safeguard the European Union’s financial interests do not depend solely on the severity of the criminal penalties imposed for conduct
prejudicial to those interests, but also on the limitation period applicable to such offences.
36.      As for the national legislature, its
‘task [is] to ensure that the national rules on limitation in criminal matters do not lead to impunity in a significant number of cases of serious VAT fraud’. (12)
37.      In this case, it is important to note that:
–        It is not disputed (the referring court raises no uncertainties in that regard) that Bulgarian law lays down effective and dissuasive criminal penalties for criminal offences affecting the European Union’s financial interests.
–        Nor is it disputed that, in the abstract, the limitation periods for bringing a prosecution referred to in Bulgarian law are appropriate, that is to say, they do not undermine the effectiveness and dissuasiveness of the corresponding penalties. Those periods exceed the minimum periods laid down in Article 12
of Directive (EU) 2017/1371, (13) although that directive is not applicable, rationetemporis, to offences committed in 2011 and 2012.
38.      The referring court’s question concerns rules on the time-barring of prosecutions which inevitably apply after a certain number of years have elapsed since the offences at issue were perpetrated. That absolute limitation period is set on the basis of the maximum sentence laid down for the offence at issue, and no extension of the period is possible under any circumstances.
39.      The Court has ruled on the setting of reasonable limitation periods in relation to the imposition of penalties by the national authorities, where the fields concerned fall within the scope of EU law. (14) In that connection, the Court held:
–        ‘… national rules laying down limitation periods must be devised in such a way as to strike a balance between, on the one hand, the objectives of providing legal certainty and ensuring that cases are dealt with within a reasonable time as general principles of EU law and, on the other, the effective and efficient application of [EU law]’. (15)
–        ‘In order to determine whether national rules on limitation strike such a balance, all elements of those rules must be taken into consideration …, which may include, inter alia, the date from which the limitation period begins to run, the duration of that period and the rules for suspending or interrupting it.’ (16)
–        The complexity of the analysis required by the case may also be included as an important element. (17)
40.      Proceeding on that basis, it is first of all necessary to dispel the doubts concerning the validity of an absolute limitation period as such. That type of limitation period is included, for example, in Regulation (EC, Euratom) No 2988/95, (18) which concerns the protection of the European Union’s financial interests.
41.      The fourth subparagraph of Article 3(1) of Regulation No 2988/95 lays down an
‘… absolute limitation period [which] helps to reinforce the legal certainty of the economic operators by preventing the limitation period of legal proceedings in respect of an irregularity from being extended indefinitely …’ (19)
42.      I agree with the Commission that, in the absence of more detailed harmonisation, EU law is not infringed merely by the absence from the national law of a rule making the applicability of the absolute limitation period for prosecution conditional on the complexity of the legal proceedings.
43.      Logically, that limitation period must be long enough to enable the offence to be tried by a court, taking into account, inter alia, the average duration of legal proceedings. (20)
44.      In my opinion, an absolute limitation period of 15 years, like that laid down in Bulgarian law, is reasonable and sufficient. That is the case even though calculation of that period covers from the commencement of criminal proceedings to the final judgment, that is, it includes all levels of jurisdiction. (21) In 15 years, it is possible to reach the end of a prosecution for offences of the kind at issue in this case. As the Commission states, that period is considerably longer than the corresponding limitation period provided for in Directive 2017/1371. (22)
45.      Nonetheless, having agreed that the limitation period is reasonable in the abstract, it is necessary to ensure that its implementation does not foster impunity and, as a result, does not reduce the effectiveness and dissuasiveness of measures to guarantee the protection of the European Union’s financial interests.
46.      In that connection, the Court has examined whether the application of the national provisions on the limitation period for prosecution has the effect that, in a considerable number of cases, acts constituting serious fraud will go unpunished. That may occur if the offences will usually be time-barred before the criminal penalty laid down by law can be imposed by a final judicial decision. In those circumstances, the measures laid down by national law to combat fraud and any other illegal activity affecting the financial interests of the European Union may be neither effective nor dissuasive. (23)
47.      However, there is nothing to suggest that the limitation period at issue in these proceedings usually leads to effective impunity in a considerable number of criminal prosecutions conducted before the Bulgarian courts in respect of criminal offences affecting the European Union’s financial interests.
48.      Rather, all the indications are that, in this case, the time-barring of prosecution concerns only some of the offences tried by the national court (24) and that the possibility that (some of) those offences may go unpunished is linked to particular factors, associated with circumstantial problems and difficulties affecting the referring court itself.
49.      The sequence of events described in the order for reference, to which I referred above, (25) makes clear that the delayed conduct of these criminal proceedings is due, as the Commission argues, to a certain ‘systemic inefficiency’ on the part of the court. (26)
50.      There is no information in the case file suggesting that, if not the majority of Bulgarian courts hearing similar criminal cases, then, at the very least, a significant number of such courts find the limitation rules for prosecution a systemic obstacle to giving final judgment on offences affecting the European Union’s financial interests.
51.      In those circumstances, I believe that the conditions laid down by the Court’s case-law are not met for a finding that there is a systemic risk that offences of serious fraud affecting the European Union’s financial interests may go unpunished. Question 1 must therefore be answered in the negative.
B.      Question 2
52.      The referring court is uncertain whether Article 3(1)(b) of Framework Decision 2008/841 permits an ‘agreement’ to commit an offence, within the meaning of Article 2(b) of that framework decision, to be punished more severely (up to fifteen years in prison) than the commission of the offence which that agreement concerns (up to eight years in prison).
53.      It should be recalled that the national proceedings are to determine the criminal liability of:
–        A. and B., accused of leading a criminal organisation formed with the aim of committing VAT fraud, an offence punishable by a term of imprisonment of between five and fifteen years;
–        V., G. and D., accused of participating in that criminal organisation, an offence punishable by a custodial sentence of between three and ten years.
54.      The five persons on trial are also charged with committing tax fraud, which is punishable by a term of imprisonment of three to eight years.
55.      Article 2
of Framework Decision
2008/841 imposes on Member States the obligation to classify as offences one or both of the following types of conduct related to a criminal organisation:
–        active participation in the organisation’s criminal activities;
–        an agreement
‘with one or more persons that an activity should be pursued, which if carried out, would amount to the commission of offences referred to in Article 1 [of the Framework Decision] …’
Such offences are those ‘punishable by deprivation of liberty … of a maximum of at least four years or a more serious penalty …’ (27)
56.      For its part, Article 3(1) of Framework Decision 2008/841 requires Member States to take the necessary measures to ensure that:
–        The offence referred to in Article 2(a) is punishable by a maximum term of imprisonment of ‘at least between two and five years’.
–        The offence referred to in Article 2(b) is punishable ‘by the same maximum term of imprisonment as the offence at which the agreement is aimed, or by a maximum term of imprisonment of at least between two and five years.’
57.      The Bulgarian legislature took the second option provided by Article 3(1)(b): the maximum term of imprisonment laid down in the Criminal Code for VAT fraud is eight years, while that laid down for creating or running a criminal group set up for the purpose of committing VAT fraud is up to 15 years.
58.      That being so, two questions arise:
–        first, whether Article 3(1)(b) of Framework Decision 2008/841 permits an agreement to commit VAT fraud to be punished by a higher sentence (fifteen years) than that laid down for the commission of that tax offence (eight years);
–        second, whether, in any event, national legislation may lay down a maximum
sentence of more than five years for that agreement, since the second alternative laid down in Article 3(1)(b) refers to a maximum term of imprisonment of ‘at least between two and five years.’
1.      The ‘maximum term of imprisonment of at least between two and five years’ referred to in Article 3(1)(b) of Framework Decision 2008/841
59.      Framework Decision 2008/841 is an act adopted on the basis of Article 31(1) TEU, the provisions of which were reproduced in the first subparagraph of Article 83(1) TFEU. That framework decision contains minimum provisions on penalties applicable to criminal offences in the area of organised crime. (28)
60.      As EU law currently stands, the criminal law of the Member States is not the subject of general harmonisation measures. Specifically, the assessment
of the seriousness of a crime ‘… must be carried out taking into account the choices made, within the framework of the criminal system of the Member State concerned, as regards the identification of the crimes which most seriously undermine the legal order of the community’. (29)
61.      The Austrian Government has referred to the difficulties which the differences between national legal traditions and criminal justice systems have raised in discussions which have taken place within the Council concerning the many EU legislative acts in the field of substantive criminal law. (30) Those difficulties are at the heart of the basic position adopted by the Council in its ‘Conclusions on the approach to apply regarding approximation of penalties’. (31)
62.      According to that document, which formalises the approach taken by the Council in a number of framework decisions preceding the Lisbon Treaty:
–        The approximation of penalties should not prevent the Member States from preserving the coherence of their national systems. (32)
–        Where proposals for (future) legal instruments contain provisions establishing the minimum constituent elements of offences, the possibility must be considered of setting a minimum level for the maximum penalties applicable to the offences concerned under national law. (33)
63.      To that end, the Council established a system of penalty levels, (34) specifying that these were minimum levels and that nothing prevented the Member States from going further than those levels in their national law. (35)
64.      That system of minimum maximum penalties, which, as the Commission argues, is compatible with the principle of minimum approximation, in accordance with Article 83(1) TFEU, (36) has been used regularly by the Council in many framework decisions. (37) It is apparent from the spirit and practice of that system that the Member States are free to establish in their respective national systems maximum penalties higher than those laid down in Framework Decision 2008/841.
65.      I feel it is important to note, however, that the language used by the legislature is not particularly helpful.
66.      The phrase ‘maximum term of imprisonment of at least between two and five years’, (38) used in Article 3(1) of Framework Decision 2008/841, barely stands up to logical rigour, as the referring court’s uncertainties show. (39)
67.      Where a ‘maximum penalty’ is modified by ‘at least’, that leaves open the possibility that it may be increased beyond the threshold, which cannot be a maximum penalty. Accordingly, the Member States may increase that penalty.
68.      If the modifier ‘at least’ is immediately qualified by reference not to a specific period but rather to a timeframe within which the extension of the penalty must fit, that penalty may not be increased beyond the upper limit of the timeframe, which would then (for the purposes of the penalty) constitute the permitted maximum level. Accordingly, the Member States may provide for the penalty to be increased only within the parameters of the timeframe, while not exceeding the upper limit.
69.      However, as the Austrian Government has suggested, (40) the minimum limit imposed on the maximum penalty may be taken to be the period covered by the timeframe (‘between two and five years’) and, therefore, the penalty may be taken to extend beyond that timeframe. Member States may thus increase the maximum penalty by adding longer periods of time.
70.      That interpretation, while admittedly convoluted, is the one which best accords with the principle of minimum approximation of EU law in the field of criminal law. It is also, to a certain extent, the interpretation which best accords with the right granted to Member States to have the final decision on the maximum limit for the penalties they wish to establish.
71.      EU law allows Member States to fulfil their obligation to set a maximum limit by enabling that maximum limit, in the situation at issue, to be only two years or any other period up to five years. Naturally, that does not restrict their ability to choose any other period which is longer than that defined by the timeframe ‘between two and five years’.
72.      Accordingly, in my view, Article 3(1)(b) of Framework Decision 2008/841 does not preclude national legislation which punishes the agreement referred to in Article 2(b) of the framework decision by a maximum custodial sentence higher than that laid down in respect of the offence to which the agreement in question relates.
73.      In any event, account must be taken of the settled case-law of the Court: a national court is not required to disapply a provision of national law which is incompatible with the provisions of a framework decision which do not have direct effect. (41)
2.      The difference between the penalties imposed for an agreement to commit a crime and for the commission of the crime to which that agreement relates. Proportionality
74.      Lastly, it remains to be determined whether it is compatible with Article 3(1)(b) of Framework Decision 2008/841 for an agreement to commit VAT fraud to be punished in Bulgarian law by a sentence (fifteen years) higher than that established for the commission of that tax offence (eight years).
75.      The referring court takes the view that an affirmative answer would be contrary to the principle of proportionality. (42)
76.      I do not agree with that position.
77.      Admittedly, at first sight, it may appear disproportionate that an agreement to commit an offence (understood as an act preparatory to a subsequent offence) should be punished more severely than the actual commission of that offence. (43)
78.      However, Article 2(b) of Framework Decision 2008/841, which concerns organised crime, refers to the case of ‘an agreement … that an activity should be pursued, which if carried out, would amount to the commission of offences’. (44)
79.      In the context of the fight against organised crime, which, I stress, is covered by Framework Decision 2008/841, it is reasonable that the creation of organisational structures aimed at the systematic pursuit of criminal activities should receive the most severe punishment.
80.      An
isolated agreement to commit a single offence is not the same as an agreement to commit, on a permanent, organised basis, criminal acts by means of a structured association of a number of persons, over a certain period of time.
81.      Without it being necessary to ‘take part in the actual execution of the [criminal] activity’, for the purposes of Article 2(b) of Framework Decision 2008/841, anyone who agrees with others to set up a criminal organisation:
–        May be liable for crimes committed by others under cover of that organisation, either indirectly or as the instigator of those crimes.
–        Is, in any event, liable, directly and principally, for the offence consisting of the creation of a structure aimed at enabling the effective commission of criminal acts which it may not have been possible to carry out if the perpetrators of those acts had not had the support of a criminal organisation.
82.      In abstract terms, therefore, I believe that an agreement to create a criminal organisation may warrant a higher penalty than that imposed for the commission of specific offences within the sphere of that organisation.
83.      The determination of the scope of that penalty is a matter for the national legislature, within the parameters considered above. The national legislature’s view on the proportionality of the penalty to the offence must prevail unless it clearly exceeds the limits of rationality.
84.      In any event, I agree with the Commission that the assessment of the proportionality of a particular penalty must be conducted in the light of the specific circumstances of each case. (45)
85.      It falls to the national court to determine whether, having regard, on the one hand, to the characteristics of the criminal organisation created as a result of the agreement between A. and B., and, on the other hand, to the degree to which the existence of that organisation was a necessary condition for the commission of the offences of which V., G. and D. are accused, the conduct of A. and B. warrants a more severe criminal penalty than that established for the other three accused. Furthermore, that assessment must take account of the fact that A. and B. are also accused of running the criminal organisation created as a result of the agreement concluded between the two of them.
V.      Conclusion
86.      In the light of the foregoing considerations, I propose that the answers to the questions referred by the
Sofiyski gradski sad (Sofia City Court, Bulgaria) should be:
‘1)      Article 325 TFEU and Article 2(1) of the Convention on the protection of the European Communities’ financial interests
must be interpreted as meaning that
they do not preclude a national law which lays down an absolute limitation period for the prosecution of crimes against the European Union’s financial interests, which is determined solely by the maximum penalty laid down for the offence in question, with the result that that limitation period is fifteen years for acts punishable by a custodial sentence of more than ten years and ten years for acts punishable by a custodial sentence of more than three years.
2)      Article 3(1)(b) of Council Framework Decision 2008/841/JHA of 24 October 2008 on the fight against organised crime
must be interpreted as meaning that
it does not preclude a national law pursuant to which conduct by a person consisting in an agreement to pursue an activity which, if carried out, would amount to the commission of offences referred to in Article 1 of that framework decision is punishable by a maximum custodial sentence higher than that laid down for the commission of one of those offences.’
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      Drawn up by the Council Act of 26 July 1995 on the basis of Article K.3 of the Treaty on European Union (OJ 1995 C 316, p. 48); ‘the PFI Convention’.
3      Council Framework Decision of 24 October 2008 on the fight against organised crime (OJ 2008 L 300, p. 42).
4      The use of the term ‘conspiración’ (conspiracy) in the Spanish version
does not match the other language versions I have looked at. Those versions use the words
‘accord’ (French), ‘agreement’ (English), ‘intesa’ (Italian), ‘acordo’ (Portuguese), ‘acordul’ (Romanian), ‘Vereinbarung» (German), ‘overeengekomen’ (Dutch). Therefore, the term ‘conspiración’
in the Spanish version must be taken to mean ‘acuerdo’ (agreement), which is the term used in Article 2(b) of Framework Decision 2008/841.
5      Paragraph 29
of the order for reference.
6      Paragraph 52
of the order for reference.
7      Paragraph 9 of the Commission’s written observations.
8      When they exercise that power, the Member States are required to respect the obligations incumbent on them under EU law. See, in that connection, judgment of
26 February 2019, Rimšēvičs and ECB v Latvia
(C‑202/18 and
C‑238/18; EU:C:2019:139, paragraph 57).
9      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 181
and the case-law cited).
10      Judgment of
5 December 2017, M. A. S. and M. B. (C‑42/17, ‘the judgment in
M. A. S. and M. B.’, EU:C:2017:936,
paragraphs 31
and 32
and the case-law cited).
11      Judgment of
8 September 2015, Taricco and Others (C‑105/14,
‘the judgment in
Taricco’, EU:C:2015:555, paragraph 39
and the case-law cited).
12      The judgment in
M. A. S. and M. B., paragraph 41.
13      Directive of the European Parliament and of the Council of 5 July 2017 on the fight against fraud to the Union’s financial interests by means of criminal law (OJ 2017 L 198, p. 29).
14      Judgment of
21 January 2021, Whiteland Import Export (C‑308/19, ‘the judgment in Whiteland Import Export’,
EU:C:2021:47, paragraph 48). That case concerned a breach of competition rules.
15      The judgment in Whiteland Import Export, paragraph 49.
16      The judgment in Whiteland Import Export, paragraph 50.
17      The judgment in Whiteland Import Export, paragraph 51.
18      Council Regulation of 18 December 1995 on the protection of the European Communities financial interests (OJ 1995 L 312, p. 1).
19      Judgment of
6 February 2025, Emporiki Serron – Emporias kai Diathesis Agrotikon Proionton (C‑42/24, EU:C:2025:56, paragraph 40
and the case-law cited).
20      Paragraph 17
of the Commission’s written observations.
21      Paragraph 18
of the Commission’s written observations.
22      Paragraph 19
of the Commission’s written observations.
23      The judgment in
Taricco, paragraph 47.
24      According to the referring court, the remaining period (until 2035) is sufficient to try, at three levels of jurisdiction, the case against the accused as leaders of the criminal organisation.
25      Points 19
to 21 of the present Opinion.
26      The Commission’s written observations, paragraph 20.
27      Contrary to the referring court’s position (paragraphs 47
and 48 of the order for reference), the Commission submits that the purpose of the ‘agreement’ referred to in Article 2(b)
of Framework Decision
2008/841 is the commission of offences and not necessarily the creation of a criminal organisation (paragraph 30
of the Commission’s written observations). If that were the case, A. and B.’s conduct would instead be that referred to in Article 2(a) of Framework Decision 2008/841, such that the application of Article 3(1)(b) of that framework decision, the interpretation of which is the subject of Question 2, would be unnecessary. In my view, regardless of whether, as the Commission accepts, the ‘agreement’ may also be the agreement to create a criminal organisation, the important point is that, either by way
of point
(a) or by way of point (b) of Article 2
of Framework Decision 2008/841, Article 3(1)(a) and
(b) enables an agreement to create a criminal organisation, or to commit an offence, to be punished more severely than the commission of the offence to which the agreement relates.
28      Judgment of
28 November 2024, PT (Agreement concluded between the prosecutor and the perpetrator of an offence) (C‑432/22, EU:C:2024:987, paragraph 38).
29      In that connection, see judgment of
6 July 2023, Staatssecretaris van Justitie en Veiligheid (Particularly serious crime) (C‑402/22, EU:C:2023:543, paragraph 38).
30      Paragraph 24
of the Austrian Government’s written observations.
31      Council Document No 9141/02 of 27 May 2002; the ‘Council Conclusions’.
32      Council Conclusions, point 3, fourth subparagraph: ‘When considering how to approximate criminal sanctions in certain areas it is necessary to keep in mind that legal traditions differ in the Member States. In order to allow Member States to preserve the coherence of their national penalty systems, a certain flexibility is needed when approximating criminal sanctions’.
33      Council Conclusions, point 3, fifth subparagraph: ‘Where proposals for legal instruments to be adopted under Title VI of the TEU contain provisions establishing minimum constituent elements in respect of criminal offences, the possible need for establishing a minimum level for the maximum penalties for the offences concerned under national law is considered’.
34      That system, which is set out in point 3, eighth subparagraph, of the Council Conclusions, is divided into four levels:
Level 1: penalties of a maximum of at least between one and three years’ imprisonment.
Level 2: penalties of a maximum of at least between two and five years’ imprisonment.
Level 3: penalties of a maximum of at least between five and ten years’ imprisonment.
Level 4: penalties of a maximum of at least 10 years’ imprisonment (cases in which very serious penalties are required).
35      Council Conclusions, point 3, ninth subparagraph: ‘… It is noted that the levels referred to are minimum levels, and that nothing prevents the Member States from going further than those levels in their national law’.
36      Paragraph 34
of the Commission’s written observations.
37      Among the many referred to by the Austrian Government in footnote 37
of its written observations, it is appropriate to cite Article 4(2) of Council Framework Decision 2003/568/JHA of 22 July 2003 on combating corruption in the private sector (OJ 2003 L 192, p. 54), and Article 3(2) of Council Framework Decision 2008/913/JHA of 28 November 2008 on combating certain forms and expressions of racism and xenophobia by means of criminal law (OJ 2008 L 328, p. 55).
38      Language which, while it makes absolute sense in relation to establishing minimum penalties, is not the best, in my view, where maximum penalties are concerned.
39      Paragraphs 56
to 74 of the order for reference.
40      Paragraph 32
of the Austrian Government’s written observations.
41      Judgment of
24 June 2019, Poplawski (C‑573/17, EU:C:2019:530, point 2
of the operative part).
42      Paragraph 52
of the order for reference, transcribed in point 22
of the present Opinion.
43      Conspiracy to commit an offence tends to be punished, as a general rule, by a lower penalty than the offence in question. However, it is necessary to differentiate between conspiracy to commit an offence in particular and an offence consisting of the creation or running of an association for the purpose of committing crimes, the organisation of which has a certain consistency and permanence.
44      Emphasis added.
45      Paragraph 39
of the Commission’s written observations.