Provisional text
OPINION OF ADVOCATE GENERAL
MEDINA
delivered on 21 May 2026 (1)
Case C‑230/25
Mihail Mihaylov Stefanov
Criminal proceedings
other party to the proceedings
Sofiyska apelativna prokuratura
(Request for a preliminary ruling from the Apelativen sad – Sofia (Court of Appeal, Sofia, Bulgaria))
( Reference for a preliminary ruling – Area of freedom, security and justice – Judicial cooperation in criminal matters – Values and objectives of the European Union – Rule of law – Principles of independence and irremovability of judges – Court ruling on a criminal case and being a defendant in a civil action for damages )
I.      Introduction
1.        The present Opinion concerns a request for a preliminary ruling from the Apelativen sad – Sofia (Court of Appeal, Sofia, Bulgaria). That court asks the Court of Justice
about the detailed rules for the application of the right to legal aid, which is enshrined, in particular, in Directive (EU) 2016/1919 of the European Parliament and of the Council of 26 October 2016 on legal aid for suspects and accused persons in criminal proceedings and for requested persons in European arrest warrant proceedings (OJ 2016 L 297, p. 1). More specifically, it raises the question of the conditions under which a Member State may seek to recover the costs which it has incurred in respect of that legal aid from the person who received that aid and who was ultimately convicted of a criminal offence.
2.        The right to legal aid is, as the European Court of Human Rights has long emphasised, (2) at times indispensable for an effective access to the courts. In practice, that right is based on the two complementary pillars of, on the one hand, the assistance of a lawyer and, on the other hand, the financing of that assistance. While legal aid appears, at first sight, to be merely a practical aspect of the organisation of judicial proceedings, it is in fact an indispensable vehicle for giving concrete expression to the right to judicial protection in a legal system. By ensuring that the litigant receives the assistance of a lawyer, it enables him or her to have access to the courts and thus safeguards the fairness of proceedings. Legal aid therefore guarantees the effectiveness of the right to judicial protection provided for in Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’), which is itself a condition for the implementation of the rule of law, a founding value of the European Union, enshrined in Article 2 TEU.
3.        In the present case, it is in the specific context of criminal proceedings which take place before a number of Bulgarian courts that the matter of legal aid must be considered. The Court is in particular asked to determine whether, and to what extent, it is possible to seek recovery of the costs associated with legal aid from a person who has received that aid. In order to answer that question, it will be necessary to interpret, in particular, Directive 2016/1919, which, following careful consideration by the legislature on that subject, defined the common minimum rules with which the Member States are required to comply as regards the right to legal aid in criminal proceedings.
II.    Legal framework
A.      European Union law
4.        Recitals 1, 2, 8, 17 and 30 of Directive 2016/1919 are worded as follows:
‘(1)      The purpose of this Directive is to ensure the effectiveness of the right of access to a lawyer as provided for under Directive 2013/48/EU of the European Parliament and of the Council[, of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty (OJ 2013 L 294, p. 1)], by making available the assistance of a lawyer funded by the Member States for suspects and accused persons in criminal proceedings …
(2)      By establishing common minimum rules concerning the right to legal aid for suspects, accused persons …, this Directive aims to strengthen the trust of Member States in each other’s criminal justice systems and thus to improve mutual recognition of decisions in criminal matters.
…
(8)      Legal aid should cover the costs of the defence of suspects, accused persons … When granting legal aid, the competent authorities of the Member States should be able to require that suspects, accused persons or requested persons bear part of those costs themselves, depending on their financial resources.
…
(17)      In accordance with Article 6(3)(c) ECHR, suspects and accused persons who lack sufficient resources to pay for the assistance of a lawyer are to have the right to legal aid when the interests of justice so require. This minimum rule allows Member States to apply a means test, a merits test, or both. The application of those tests should not limit or derogate from the rights and procedural safeguards that are ensured under the Charter and the ECHR, as interpreted by the Court of Justice and by the ECtHR.
…
(30)      This Directive lays down minimum rules. Member States should be able to extend the rights laid down in this Directive in order to provide a higher level of protection. …. The level of protection provided for by Member States should never fall below the standards provided by the Charter or by the ECHR, as interpreted by the Court of Justice and by the ECtHR.’
5.        Article 2 of that directive, entitled ‘Scope’, provides:
‘1.      This Directive applies to suspects and accused persons in criminal proceedings who have a right of access to a lawyer pursuant to Directive 2013/48/EU and who are:
(a)      deprived of liberty;
(b)      required to be assisted by a lawyer in accordance with Union or national law …’
…
6.        Article 4 of that directive, entitled ‘Legal aid in criminal proceedings’, provides:
‘1.      Member States shall ensure that suspects and accused persons who lack sufficient resources to pay for the assistance of a lawyer have the right to legal aid when the interests of justice so require.
2.      Member States may apply a means test, a merits test, or both to determine whether legal aid is to be granted in accordance with paragraph 1.
3.      Where a Member State applies a means test, it shall take into account all relevant and objective factors, such as the income, capital and family situation of the person concerned, as well as the costs of the assistance of a lawyer and the standard of living in that Member State, in order to determine whether, in accordance with the applicable criteria in that Member State, a suspect or an accused person lacks sufficient resources to pay for the assistance of a lawyer.
4.      Where a Member State applies a merits test, it shall take into account the seriousness of the criminal offence, the complexity of the case and the severity of the sanction at stake, in order to determine whether the interests of justice require legal aid to be granted. In any event, the merits test shall be deemed to have been met in the following situations:
(a)      where a suspect or an accused person is brought before a competent court or judge in order to decide on detention at any stage of the proceedings within the scope of this Directive; and
(b)      during detention.
…’
7.        Article 9 of that directive, entitled ‘Vulnerable persons’, is worded as follows:
‘Member States shall ensure that the particular needs of vulnerable suspects, accused persons and requested persons are taken into account in the implementation of this Directive.’
8.        Article 11 of Directive 2016/1919 provides:
‘Nothing in this Directive shall be construed as limiting or derogating from any of the rights and procedural safeguards that are ensured under the Charter, the ECHR, or other relevant provisions of international law or the law of any Member State which provides a higher level of protection.’
B.      Bulgarian law
9.        Article 94 of the Nakazatelno-protsesualen kodeks (Code of Criminal Procedure; ‘the NPK’) provides as follows:
‘(1)      In criminal proceedings, the involvement of a lawyer shall be mandatory where:
…
6.      … the accused person is deprived of liberty;
…
8.      the case is tried in the absence of the accused person;
9.      The accused person is unable to pay a lawyer’s fees, wishes to benefit from the services of a lawyer and the interests of justice so require.
…
(3)      Where the involvement of a lawyer is mandatory, the competent authority shall appoint a defence lawyer …’
10.      Article 189(3) of the NPK states:
‘Where the defendant is found guilty, the court shall order him or her to pay the costs, including lawyers’ fees and other expenses of the court-appointed lawyer, as well as the costs incurred by the private prosecutor and the civil party, if they have applied for costs. Where more than one person is convicted, the court shall determine the share that each of them must pay.’
11.      Article 23 of the Zakon za pravnata pomosht (Law on legal aid) provides:
‘(1)      The legal aid system … covers cases in which the law requires that the defence be provided by a lawyer, substitute lawyer or representative.
(2)      The legal aid system also covers cases in which the defendant, the accused person or the party to criminal, civil or administrative proceedings does not have the necessary resources to pay for the assistance of a lawyer, wishes to have such assistance and the interests of justice so require. In such cases, the person is not required to repay the costs of the legal aid granted.’
12.      Article 25(1) of that law states:
‘… the decision to grant legal aid shall be taken … at the request of the person concerned, or under the law, by explaining in writing, by means of a statement in accordance with the model drawn up by the Legal Aid Office, that, in the event of a judgment or conviction against the person concerned, he or she shall be required to repay the costs of legal aid, except in the cases referred to in Article 23(2). Reasons must be given for any refusal to grant legal aid, and such a refusal may be subject to appeal in accordance with the appropriate procedures.’
III. The facts giving rise to the dispute, the main proceedings, the questions referred for a preliminary ruling and the proceedings before the Court of Justice
13.      First, in a first set of legal proceedings, the appellant in the main proceedings, Mr Mihail Mihaylov Stefanov, who had previously been remanded in custody on 3 June 2018 and who was represented by a court-appointed lawyer who had been automatically provided to him, was sentenced by the Spetsializiran nakazatelen sad (Specialised Criminal Court, Bulgaria) to a term of imprisonment of one year and 10
months, execution of which was suspended for a probation period of four-years, for having committed two offences under the Nakazatelen kodeks (Bulgarian Criminal Code). The appellant in the main proceedings brought an appeal against that judgment before the Apelativen spetsializiran nakazatelen sad (Specialised Criminal Court of Appeal, Bulgaria), which set aside that judgment on the ground of a procedural defect and referred the case back to the Spetsializiran nakazatelen sad (Specialised Criminal Court) for a ruling on the substance, while the appellant in the main proceedings had been released from custody on 14 March 2019.
14.      At the same time, the appellant in the main proceedings filed a civil liability suit against the Spetsializiran nakazatelen sad (Specialized Criminal Court) and the Apelativen spetsializiran nakazatelen sad (Specialised Criminal Court of Appeal) before the Sofiyski gradski sad (Sofia City Court, Bulgaria), alleging various damages related to his period of detention
15.      Next, in a second set of legal proceedings, the Spetsializiran nakazatelen sad (Specialised Criminal Court) handed down a fresh conviction against the appellant in the main proceedings, who brought an appeal against that judgment before the Apelativen spetsializiran nakazatelen sad (Specialised Criminal Court of Appeal). The Apelativen spetsializiran nakazatelen sad (Specialised Criminal Court of Appeal) dismissed that application, while setting aside in part the judgment of the Spetsializiran nakazatelen sad (Specialised Criminal Court), against which the appellant in the main proceedings brought an appeal on a point of law before the Varhoven kasatsionen sad (Supreme Court of Cassation, Bulgaria). The Varhoven kasatsionen sad (Supreme Court of Cassation) set aside the judgment on appeal and the judgment at first instance and referred the case back to the Spetsializiran nakazatelen sad (Specialised Criminal Court).
16.      Finally, in a third set of judicial proceedings, new charges were brought to comply with the judgment of the Varhoven kasatsionen sad (Supreme Court of Cassation) and the case was assigned to the Spetsializiran nakazatelen sad (Specialised Criminal Court). The appellant in the main proceedings requested the recusal of the judge responsible for that case and the recusal of all the judges of the Spetsializiran nakazatelen sad (Specialised Criminal Court) on grounds comparable to those he had relied on in his previous application, made in the course of the second set of judicial proceedings. However, since the Bulgarian legislature had decided to abolish specialised criminal courts, including the Spetsializiran nakazatelen sad (Specialised Criminal Court), the case was transferred to the Sofiyski gradski sad (Sofia City Court). At the same time, the case relating to the civil liability action which had been brought before the Sofiyski gradski sad (Sofia City Court) was referred back to the Okrazhen sad – Sofia (Regional Court, Sofia, Bulgaria). In that context, the appellant in the main proceedings applied for the recusal of the judges of the Sofiyski gradski sad (Sofia City Court), claiming that they were not impartial. That application was rejected and the appellant in the main proceedings was convicted.
17.      The appellant in the main proceedings
lodged an appeal against that judgment before the referring court, whilst also applying for the recusal of the criminal judges who make up that court.
18.      First, the referring court states
that the handling of the various cases described in points 13 to 17 of this Opinion raises issues relating to the assessment of the impartiality of the judges sitting in all the courts involved in those cases, including within the referring court itself. In that regard, on the one hand, the referring court explains that the appellant in the main proceedings disputes that impartiality on the ground that those courts are defendants in the civil liability action which he brought following his detention. On the other hand, as regards the case in the main proceedings, the referring court states that it is necessary only to examine the merits of the appeal brought by the appellant in the main proceedings against the judgment by which the Sofiyski gradski sad (Sofia City Court) found him guilty of committing the criminal offences of which he was accused. By contrast, questions relating to the lawfulness of his pre-trial detention, as well as to the assessment of the existence of non-material damage and possible compensation, fall within the jurisdiction of the Okrazhen sad – Sofia (Regional Court, Sofia) in the context of the civil liability action.
19.      Secondly, the referring court states that, during the second set of judicial proceedings, the appellant in the main proceedings was informed of the dates of the hearings before the Sofiyski gradski sad (Sofia City Court) and of the fact that the case would be tried in his absence if he did not appear without a valid reason. He stated that he did not intend to appear at those hearings because he was wanted in connection with another criminal case and would be remanded in custody. The proceedings before that court were conducted in the presence of a court-appointed lawyer. At the latter hearing, the appellant in the main proceedings appeared in order to request that all the examinations of witnesses and experts which had already taken place be repeated, which the Sofiyski gradski sad (Sofia City Court) refused. The appellant in the main proceedings consequently left the courtroom. The Sofiyski gradski sad (Sofia City Court) delivered its judgment in the presence of the court-appointed lawyer and in the absence of the appellant in the main proceedings. The referring court is uncertain as to the legal classification of such conduct, in particular in the light of recital 35 of Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings (OJ 2016 L 65, p. 1).
20.      Thirdly, the referring court explains that, in the Bulgarian criminal justice system, Article 94(1)(6) of the NPK provides that an accused person who is deprived of liberty must be defended by a lawyer. Similarly, Article 94(1)(8) of that code provides that, where a case is tried in the absence of the accused person, that person must also be defended by a lawyer. Those two provisions do not provide for any prior examination of that person’s financial capacity to pay a lawyer. Furthermore, it follows from Article 94(1)(9) of that code that, where an accused person wishes to be represented by a lawyer, does not have sufficient resources to pay such a lawyer and the interests of justice require that he or she be represented, a lawyer is to be appointed by the court. In the latter situation, legal aid is therefore granted on the initiative of that person and after his or her lack of financial capacity to pay a lawyer has been examined. In addition, the referring court explains that, under Article 25(1) of the Law on legal aid, the person concerned, if convicted, is required to repay in full the costs of the legal aid granted to him or her, except in the case referred to in Article 23(2) of that law, namely if the legal aid was granted because the defendant, the accused person or the party to a criminal case who lacked the necessary resources had expressed the wish to be assisted by a lawyer and the interests of justice required that such assistance be provided.
21.      In the present case, the referring court observes that, during certain stages of the judicial proceedings described in points 13 to 17 of this Opinion, the appellant in the main proceedings was granted legal aid alternately under Article 94(1)(6) and (8) of the NPK, which fall within the scope of Article 2(1)(a) and (b) of Directive 2016/1919. However, that court states that it was subsequently established that the appellant in the main proceedings lacked sufficient resources to instruct a lawyer, but that this had not been verified at the time when he was granted legal aid on the basis of Article 94(1)(6) and (8) of the NPK.
22.      In that context, the referring court raises the question of whether, where an accused person has received legal aid because he or she was deprived of liberty, without prior verification of his or her financial capacity to pay a lawyer, and where it was subsequently established that his or her resources were insufficient in that regard, Article 25(1) of the Law on legal aid should be disapplied if that person were to be convicted. The referring court states, in essence, that the doubts which it has in that regard arise in particular from the fact that, in the Bulgarian judicial system, an accused person who receives legal aid on account of having insufficient financial resources cannot, conversely, be subject to the requirement laid down in that provision to repay the costs of legal aid if he or she is convicted. Consequently, the referring court asks whether, in a situation such as that at issue in the main proceedings, the accused person should be treated in the same way as an accused person who received legal aid because he or she lacked sufficient financial resources to pay a lawyer.
23.      In addition, the referring court also raises the question of the compatibility of Article 25(1) of the Law on legal aid with recital 8 of Directive 2016/1919, in so far as that recital provides, in essence, that Member States should be able to require that accused persons bear part of the costs of legal aid themselves, depending on their financial resources, whereas Article 25(1) of the Law on legal aid concerns the requirement to bear not part of the costs of legal aid, but all of those costs.
24.      Fourthly, the referring court states that, throughout the three sets of proceedings described in points 13 to 17 of this Opinion, various lawyers were appointed by the court to defend the appellant in the main proceedings by way of legal aid. The appellant in the main proceedings requested the replacement of several of those lawyers, even though they had discharged their duty to help illuminate the questions of fact and law to his benefit, while seeking to take into account the line of defence which he intended to adopt. In that context, the referring court is uncertain as to the measures to be adopted in order to ensure the continuity of legal representation of a suspect or an accused person throughout criminal proceedings. More specifically, it asks whether, and in what circumstances, Member States are required to guarantee the right of suspects and accused persons to have the lawyer providing legal aid services to them replaced, where the circumstances so justify.
25.      In those circumstances, the Apelativen sad – Sofia (Court of Appeal, Sofia) decided to stay the proceedings and to refer six questions to the Court of Justice for a preliminary ruling. In accordance with the Court’s request, the present Opinion will deal only with the fourth and fifth questions, which are worded as follows:
‘…
4.      Must Article 2(1)(a) and (b) and Article 4(1) and (4) of Directive [2016/1919], read in conjunction with recitals 8 and 17 of that directive, be interpreted as meaning that accused persons and defendants who are deprived of liberty, irrespective of whether they have sufficient resources to pay for the assistance of a lawyer, are to be treated in the same way as suspects and accused persons who lack such resources and to whom legal aid is granted because the interests of justice so require?
5.      If the fourth question is answered in the affirmative, is national legislation pursuant to which, where legal aid is granted on the basis of a law which provides for mandatory representation by a lawyer, as is the case where the accused person or defendant is deprived of liberty, that person must repay the costs of the legal aid granted, without a test being applied as to whether he or she had sufficient means to pay for the assistance of a lawyer, compatible with recital 8 of Directive [2016/1919]?
…’
26.      The request for a preliminary ruling was lodged at the Court Registry on 25 March 2025. Written observations were submitted by appellant in the main proceedings, the Czech Government and the European Commission within the period prescribed by Article 23 of the Statute of the Court of Justice of the European Union. All of those parties attended the hearing that was held on 25 February 2026.
IV.    Analysis
27.      I propose to analyse together (3) the two questions which are to be examined in this Opinion, even though the second is raised only in the event that the first is answered in the affirmative. By those questions, the referring court seeks, in essence, to ascertain whether Article 2(1)(a) and (b) and Article 4(1) and (4) of Directive 2016/1919, read in conjunction with recital 8 thereof, preclude national legislation which provides that an accused person who has received legal aid because he or she was remanded in custody may be required to repay the costs of that aid without prior verification of his or her financial resources, whereas an accused person who has received that aid precisely because he or she lacks sufficient resources cannot be subject to such a requirement.
A.      Preliminary observations
28.      As a preliminary point, it is useful to recall the historical context of the present case. Prior to the adoption of the Treaty of Lisbon, consideration was given to problems concerning the safeguarding of procedural rights in criminal proceedings in the European Union. (4) The consideration of those problems inspired the implementation of increasingly extensive safeguards which was ultimately intended to promote the approximation of the laws of the Member States with a view to enabling the implementation of the key principles of mutual recognition of decisions in criminal matters and mutual trust. Those objectives were notably formalised in the Resolution of the Council on a Roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings. (5) The latter was integrated into the guidelines defined in the ‘Stockholm Programme’ on the ‘area of freedom, security and justice’, according to which ‘the achievement of a European area of justice must be consolidated so as to move beyond the current fragmentation’. (6)
29.      The ambition described in the preceding point of this Opinion progressively materialised through the adoption of a first series of three directives. (7) Those directives were subsequently supplemented by three new directives in 2016. (8) In essence, those six directives adopted on the basis of Article 82(2) TFEU seek, (9) first, to establish a ‘Community’ model of criminal justice based on a common system of procedural rights and, second, to preserve a form of harmony by counterbalancing the progress previously made in the field of judicial and police cooperation relating to measures to facilitate prosecution. (10)
30.      It is important to note, at this stage, that the outline provided by the six abovementioned directives represents merely a framework of common minimum rules which Member States are required to observe in relation to procedural guarantees. They are, moreover, largely based on rights enshrined in the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’), and in particular Article 6 thereof. In that regard, it is apparent from the Explanations relating to the Charter (11) that that article of the ECHR corresponds to the second and third paragraphs of Article 47 and to Article 48 of the Charter. The Court must, accordingly, ensure that its interpretation of those provisions ensures a level of protection which does not disregard that guaranteed by Article 6 ECHR, as interpreted by the European Court of Human Rights. (12)
31.      In the case in the main proceedings, the questions raised by the referring court concern the issue of legal aid. That right is, by its very nature, closely linked to the right of access to a lawyer defined in Directive 2013/48, the effectiveness of which is dependent on access to legal aid. (13) However, legal aid is specifically covered by Directive 2016/1919. Even before the adoption of Directive 2016/1919, both the need to set minimum rules on the right to legal aid and the difficulties of doing so were discussed extensively. Commission staff had thus highlighted, in a summary of the impact assessment carried out in the course of preparing the proposal for a directive of 27 November 2013, the shortcomings arising from the variation between national legal aid systems for the purpose of the effective protection of the right to a fair trial. (14) At the same time, the financial implications of implementing a directive in that regard were also highlighted by the Commission in its proposal for a Directive of the European Parliament and of the Council of 27 November 2013 on provisional legal aid for suspects or accused persons deprived of liberty and legal aid in European arrest warrant proceedings. (15)
32.      It follows from all the foregoing that the right to legal aid is one of the essential components of the criminal justice system which the Member States are required to implement, since it ensures effective access to that justice. It is with those considerations in mind that the referring court’s questions must be answered.
B.      The scope of the right to legal aid
33.      The referring court’s questions arise as a result of the situation of the appellant in the main proceedings who, in the main proceedings, received legal aid because he was in custody and without any prior examination of his financial resources. In order to answer those questions, it is necessary to examine the provisions of Directive 2016/1919 which define the common minimum rules which the Member States are required to observe when giving effect to the right to legal aid.
1.      The wording of Directive 2016/1919
34.      Article 2 of Directive 2016/1919 provides that that directive applies inter alia to suspects and accused persons in criminal proceedings who have a right of access to a lawyer pursuant to Directive 2013/48 where they are deprived of liberty or are required to be assisted by a lawyer in accordance with national law. It is apparent from the explanations given by the referring court that that is the case for the appellant in the main proceedings.
35.      As regards the granting of legal aid, Article 4(1) of Directive 2016/1919 lays down a clear obligation for Member States to ensure that suspects and accused persons are granted legal aid where two cumulative conditions are met, namely that they lack sufficient resources to pay for the assistance of a lawyer and that the interests of justice require legal aid to be granted.
36.      The detailed rules for the application of the right to legal aid are then set out in paragraph 2 of that article, which defines the discretion enjoyed by the Member States in giving effect to that right. They may apply a means test, a merits test, or both in order to determine whether legal aid is to be granted. Paragraphs 3 (means test) and 4 (merits test) then clarify how each of those two tests should be interpreted. In essence, the means test is met where the suspect or accused person lacks sufficient resources to pay for the assistance of a lawyer. The merits test seeks to determine whether the interests of justice require legal aid to be granted. The merits test must, in any event, be deemed to have been met when a decision on detention needs to be made or during detention.
37.      In the light of the foregoing, I note that the wording of Article 4 of Directive 2016/1919 is not unambiguous, in so far as it is not clear whether the two cumulative conditions laid down first of all in paragraph 1 of that article differ from the two tests subsequently referred to in paragraphs 2, 3 and 4 of that article. However, I consider that the Commission rightly pointed out at the hearing that the concepts of ‘sufficient resources’ and ‘interests of justice’ referred to in paragraph 1 essentially correspond to the ‘means’ test and ‘merits’ test referred to in paragraphs 2, 3 and 4 of that article.
38.      Consequently, it follows, in my view, from the wording of Article 4 of Directive 2016/1919 that Member States are required, inter alia, to grant legal aid to any suspect or accused person where, first, that suspect or accused person lacks sufficient resources to pay for the assistance of a lawyer and, second, a decision must be taken on his or her detention or during his or her detention. However, it is stated that Member States may decide to apply only one of those two tests, provided that the abovementioned common minimum rule (namely that aid is to be granted if both tests are met) is observed. In other words, this means, in practice, that, where one of the two relevant tests is met, a Member State may decide to grant legal aid to any person without applying the other test, but that it cannot refuse to grant such aid to a suspect or accused person where both tests are met.
2.      The context of Directive 2016/1919
39.      It follows from the considerations set out above that Directive 2016/1919 establishes a compulsory system whereby Member States are to grant legal aid where the two conditions relating to ‘sufficient means’ and ‘interests of justice’ are met. That system gives concrete expression to the implementation of common minimum rules which the Member States intended to adopt in order to approximate their laws and regulations, in accordance with Article 82(2) TFEU.
40.      The context of that directive supports that interpretation.
41.      In essence, the legislature states in recital 17 of that directive that, first, the right to legal aid follows from Article 6(3)(c) ECHR and, secondly, that it is a minimum rule and the application of one or both of those two relevant tests cannot limit or derogate from the rights and procedural safeguards that are ensured under the Charter and the ECHR, as interpreted by the Court of Justice and by the European Court of Human Rights.
42.      The fact that Directive 2016/1919 lays down minimum rules is, moreover, then recalled in recitals 30 and 31 and in Article 1 of that directive, while the need to respect the fundamental right to legal aid, as provided for by the Charter and by the ECHR, is also emphasised in recital 30 of that directive.
43.      All those considerations make it possible, in my view, to ensure coherence as regards the relationship between Directive 2016/1919 and the earlier Directive 2013/48, the effectiveness of which Directive 2016/1919 seeks to ensure, (16) since Article 11 of Directive 2013/48, entitled ‘Legal aid’, provides that that directive must be interpreted without prejudice to national law on legal aid, which applies in accordance with the Charter and the ECHR.
44.      In that regard, it is also important to recall that, as stated in point 30 of this Opinion, the right to legal aid forms part of the fundamental right to an effective remedy enshrined in Article 47 of the Charter, which itself corresponds to Article 6 ECHR. As is consistent with the foregoing considerations, it is apparent, in particular from the case-law of the European Court of Human Rights, that, in the ECHR system, the right of a person charged with a criminal offence to free legal assistance is one element of the concept of a ‘fair trial in criminal proceedings’, which is subject to two conditions: lack of ‘sufficient means to pay for legal assistance’ and the ‘interests of justice’. (17)
3.      The aims of Directive 2016/1919
45.      In accordance with recital 1 in its preamble, the purpose of Directive 2016/1919 is to ensure the effectiveness of the right of access to a lawyer as provided for under Directive 2013/48. By their combined action, those two directives therefore contribute to the fulfilment of the right to an effective remedy enshrined in the first paragraph of Article 47 of the Charter since the grant of legal aid facilitates the right of access to a lawyer. (18)
46.      Recital 2 of Directive 2016/1919 indicates the method used to achieve this, namely the establishment of common minimum rules to strengthen the trust of the Member States in each other’s criminal justice systems and thus to improve mutual recognition of decisions in criminal matters, which is also recalled in recital 31 of that directive.
47.      The statement of such objectives is consistent with the concerns expressed in the context of the Resolution of the Council of 30 November 2009, ‘Measure C’ of which stated that ‘the right to legal aid should ensure effective access to the … right to legal advice’.
48.      Similarly, it follows from Article 1 of Directive 2016/1919 that the purpose of that directive is to lay down common minimum rules concerning the right to legal aid, inter alia for accused persons in criminal proceedings. Therefore, that directive does not seek to carry out exhaustive harmonisation of criminal procedure in this area, (19) and is not intended to lay down all the conditions for granting legal aid to a suspect or accused person. (20)
C.      The possibility of seeking recovery of the costs of legal aid
49.      It follows from all the foregoing that the right to legal aid is well established within the European Union. The questions referred to the Court by the national court relate, however, to a specific aspect of its implementation, namely that of the possible recovery of the costs of that aid, after it has been granted, from the person who received it.
1.      Recital 8 of Directive 2016/1919
50.      Directive 2016/1919 does not include any article on the recovery of costs incurred by a Member State in respect of legal aid. That issue is, however, addressed in recital 8 of that directive, which provides that ‘when granting legal aid, the competent authorities of the Member States should be able to require that suspects, accused persons or requested persons bear part of those costs themselves, depending on their financial resources’. The following observations may be made in that regard.
51.      First of all, it is important to recall that, although a recital of a directive may be used to clarify a provision of that directive and constitutes an important element for the purposes of interpretation which may clarify the intentions of the author of that act, (21) it has no binding legal value and cannot be relied on alone to establish rights or obligations in the absence of equivalent or complementary provisions in the body of the directive. (22)
52.      In those circumstances, although it is indeed apparent from the wording of recital 8 of Directive 2016/1919 that, first, Member States may require persons who receive legal aid to bear part of the costs and that, second, the discretion to do so must take account of the financial resources of those persons, those considerations cannot, in themselves, establish any direct obligation for the Member States.
53.      Furthermore, it is clear that the absence of a provision expressly concerning recovery of the costs of legal aid in the body of Directive 2016/1919 is the result of a choice made by the legislature. It is apparent from the Commission’s proposal for a directive that it initially included Article 4(5), which was specifically devoted to the issue of the possibility of recovering legal aid costs, (23) and was the subject of discussions and proposals for amendments during the legislative procedure before being removed from the final version of that directive. In those circumstances, the absence of such a provision necessarily results from the concrete expression of a compromise solution found during the drafting of Directive 2016/1919 and not from negligence. Accordingly, it must necessarily be inferred that the legislature did not intend the question of the possible arrangements for the recovery of legal aid to be harmonised within the Member States.
54.      Lastly, it follows from the foregoing that, in the context of the minimum harmonisation described in point 48 of this Opinion and in the absence of any provision governing the issue of the recovery of legal aid costs, the Member States are free to decide whether or not they intend to implement a system for the recovery of legal aid costs from the recipient of that aid.
55.      However, as I have indicated in points 21, 41 and 44 of the present Opinion, the right to legal aid in criminal proceedings provided for in Directive 2016/1919 builds on the third paragraph of Article 47 of the Charter, which itself corresponds to Article 6 ECHR. (24) Moreover, the EU legislature clearly indicated, in recitals 17 and 30 of that directive, its intention to interpret the directive and the rights provided for therein in accordance with the case-law of the Court of Justice and of the European Court of Human Rights relating to those two provisions. In those circumstances, it is essential to ensure that the interpretation of Directive 2016/2019 and of the third paragraph of Article 47 of the Charter ensures a level of protection which does not disregard that guaranteed by Article 6 ECHR, as interpreted by the European Court of Human Rights. (25) Consequently, the discretion enjoyed by Member States as to whether or not to implement a system for the recovery of legal aid costs must
be exercised in accordance with the rights explicitly provided for in Directive 2016/1919.
2.      The case-law of the European Court of Human Rights
56.      Although a case raising the question of the compatibility, with Directive 2016/1919 or with the Charter, of a practice consisting of requiring the recipient of legal aid to repay that aid has never been brought before the Court of Justice, comparable issues have, on the other hand, been raised on several occasions before the European Court of Human Rights.
57.      In the decision of 6 May 1982, X v. Federal Republic of Germany, (26) the former European Commission of Human Rights had held, in essence, that it was not incompatible with Article 6(3)(c) ECHR to require a convicted person to repay the costs of the legal aid which he or she had received, provided that he or she had the means to do so.
58.      In the judgment of 25 September 1992, Croissant v. Germany, (27) the European Court of Human Rights recalled that the right enshrined in Article 6(3)(c) ECHR is not absolute, since free legal assistance is to be provided only if the accused does not have sufficient means to pay for it. In that context, it considered, first, that a national system for the granting of legal aid would not be compatible with that provision if it adversely affected the fairness of the proceedings. Secondly, the European Court of Human Rights stated that it was not required to decide whether the State concerned in that case could have sought to recover the costs at issue if the applicant had established, during the proceedings, that he lacked the financial means to pay them. However, it nevertheless stated that, in that case, the amounts claimed were not excessive and that it was standard practice for such costs to be reduced or even waived when the judgment is enforced. In such a situation, it was not unreasonable to require the person concerned to prove a lack of sufficient financial means to make the required repayment.
59.      In the judgment of 26 February 2002, Morris v. United Kingdom, (28) the European Court of Human Rights held that there was no violation of Article 6(3)(c) ECHR where a person is required to pay a contribution to the costs of legal assistance and has sufficient means to do so. In that context, it also stated that the sum claimed did not appear to be either arbitrary or unreasonable in the light of the applicant’s means. It seems possible to infer implicitly from this that that would not have been the case if the person in question had not had the means to pay a contribution to those costs. Similar conclusions may, in essence, be drawn from an examination of the judgment of 17 February 2011, Ognyan Asenov v. Bulgaria. (29)
60.      In the light of the foregoing considerations, I note that the discretion of the States that are parties to the ECHR to seek recovery of the costs of legal aid is clearly governed by the case-law of the European Court of Human Rights. First of all, the exercise of that discretion must not jeopardise the fairness of judicial proceedings. Next, although it is not, in itself, incompatible with Article 6(3) ECHR to seek to recover those costs, that step must nevertheless be assessed specifically in the light of the amount claimed and the financial resources of the person concerned. Lastly, in that situation, it is legitimate that the person claiming to lack the means to repay those costs should bear the burden of proving that to be the case.
D.      Application to the present case
61.      The referring court’s concerns arise in the specific factual and legal context of the Bulgarian criminal justice system. That court explains that, under the Bulgarian criminal justice system, legal aid may be granted according to various procedures. First, it may be granted ex officio and without prior verification of the financial resources of the person receiving it, on the ground that a question relating to custody has arisen and that representation by a lawyer is therefore mandatory. Second, it may be granted where a person meets two criteria which correspond, in essence, to the means test and merits test provided for in Article 4 of Directive 2016/1919. That requires, in particular, a prior examination of that person’s resources.
62.      In that regard, the referring court states that an accused person or a suspect who receives legal aid because of a lack of sufficient resources cannot be subject to a requirement to repay the costs of legal aid a posteriori. By contrast, a person who is in the situation of the
appellant in the main proceedings, namely that of receiving legal aid on the basis, inter alia, of Article 94(1)(6) or (8) of the NPK, which lays down a requirement to be represented without a prior examination of financial resources, is required to repay in full the costs of the legal aid granted to him or her under Article 25(1), read in conjunction with Article 23(1), of the Law on legal aid.
63.      In the first place, it is very clear from the explanations given by the referring court, as summarised in points 61 and 62 of this Opinion, that, in the Bulgarian criminal justice system, an accused person or a suspect may be granted legal aid on the ground that, in essence, the interests of justice require that legal aid be granted because that person is in custody or absent while his or her case is being tried and the involvement of a lawyer is mandatory.
64.      In such a situation, the Republic of Bulgaria therefore appears to have opted for one of the alternatives provided for in Article 4(2) of Directive 2016/1919, namely to apply only the merits test in order to determine whether legal aid must be granted. Such a choice is, as stated in point 38 of this Opinion, perfectly consistent with that provision in so far as legal aid is also granted to suspects and accused persons who are in a situation in which the two tests laid down in that provision are met. That appears, moreover, to be the case, according to the explanations given by the referring court.
65.      In any event, it follows from the foregoing considerations that, since a Member State may choose to apply either a means test or a merits test, or both, to determine whether legal aid is to be granted, those two tests are necessarily distinct and they cannot be conflated. When a Member State decides to apply only one of these two tests, legal aid may therefore be granted to an individual without verifying whether they meet the other test; however, this does not mean that they would not have met both tests had that Member State chosen to apply them jointly.
66.      In the second place, although the two abovementioned categories of beneficiaries of legal aid are not to be conflated, it must be determined whether the difference in treatment between them, with regard to the possible imposition of an obligation to reimburse legal aid, is consistent with EU law.
67.      In that regard, I would recall that the principle of equality before the law is guaranteed by Article 20 of the Charter and requires that similar situations must not be treated differently and that different situations must not be treated in the same manner, unless such different treatment is objectively justified. Member States are required, in accordance with Article 51(1) of the Charter, to comply with that provision when implementing EU law. The requirement that situations must be comparable, for the purpose of determining whether there is a breach of the principle of equal treatment, must be assessed in the light of all the elements that characterise them and, in particular, in the light of the subject matter and purpose of the act that makes the distinction in question, while the principles and objectives of the field to which the act relates must also be taken into account. (30)
68.      In the present case, the national legislation at issue in the main proceedings falls within the scope of Directive 2016/1919, as, moreover, the referring court states. It is therefore necessary to assess whether, in the light of the subject matter and purpose of the recovery of legal aid, the situation of a person who receives legal aid because he or she is in custody and representation by a lawyer is mandatory, without his or her financial resources having been verified, is comparable to that of a person who receives legal aid because he or she has applied for it, does not have the means to pay a lawyer, and the interests of justice require legal aid to be granted.
69.      I note in that regard that, in both situations, the legal aid which has been paid is intended to enable the persons concerned to be represented by a lawyer remunerated by the Member States in order to guarantee the right to effective judicial protection. The only distinction between those two situations lies in the fact that legal aid beneficiaries in one of those categories have their financial resources examined, whereas those in the other category do not. In the Bulgarian criminal justice system, the requirement to repay that aid arises, according to the referring court, only as a consequence of a criminal conviction at the end of those proceedings. In that context, the two situations therefore seem to me to be comparable, since they differ only as a result of a procedure entirely provided for by the national legislation at issue, and not from the factual situation of the persons concerned.
70.      In those circumstances and subject to the verifications which should be carried out by the referring court, as regards recovery of the costs associated with legal aid, I fail to see how it is possible to justify treating persons to whom legal aid has been granted because they lack sufficient resources to pay a lawyer differently from those who have received that aid because they were in custody, but they too lack sufficient resources to pay for a lawyer.
71.      In the third place, it is necessary, in my view, to bear in mind the arguments set out in points 34
and 55 of this Opinion, the main lessons of which may be summarised as follows:
–        Member States are required to comply with a common minimum rule that legal aid is to be granted to any suspect or accused person who satisfies the two conditions laid down in Article 4(1) of Directive 2016/1919, namely the lack of sufficient resources to be represented by a lawyer and the fact that the interests of justice require legal aid to be granted;
–        that right to legal aid forms part of the fundamental right to an effective remedy enshrined in Article 47 of the Charter, which is itself directly inspired by the right to a fair trial provided for in Article 6 ECHR. Generally, the level of protection provided for by Member States must not fall below the standards provided
by the Charter or by the ECHR, as interpreted by the Court of Justice and by the ECtHR;
–        Directive 2016/1919 does not lay down any obligation or prohibition regarding the recovery of costs associated with legal aid. The Member States are therefore free to implement a mechanism for the recovery of those costs, provided that it does not infringe the rights provided for in Directive 2016/1919, or in Article 47 of the Charter or in Article 6 ECHR, as interpreted by the Court of Justice and the European Court of Human Rights respectively.
72.      First, as regards the compatibility between a mechanism for the recovery of legal aid costs, such as that at issue in the main proceedings, and Article 47 of the Charter, I note in relation to that article that it expressly refers to ‘those who lack sufficient resources’. In addition, the Court has pointed out that the inclusion of the provision relating to the grant of legal aid in the article of the Charter relating to the right to an effective remedy indicates that the assessment of the need to grant that aid must be made on the basis of the right of the actual person whose rights and freedoms as guaranteed by EU law have been violated, rather than on the basis of the public interest of society, even if that interest may be one of the criteria for assessing the need for the aid. (31)
73.      It follows from the foregoing that, first, the financial resources of the person concerned obviously constitute a key issue in the context of legal aid and, second, the specific situation of that person is fundamental when giving effect to that right. It may be inferred that, where a person’s financial situation prevents him or her from having recourse to the assistance of a lawyer to represent him or her, requiring that person to repay the costs of that assistance when his or her financial situation has not improved runs counter to the very essence of Article 47 of the Charter.
74.      Second, as regards Article 6(3)(c) ECHR, and as set out in points 57
to 59 of this Opinion, the case-law of the European Court of Human Rights provides clear guidance in that regard. It is also consistent with the analysis set out in the preceding point of this Opinion concerning Article 47 of the Charter. First, a mechanism for the recovery of the costs of legal aid granted to a person who has been convicted must not undermine either the fairness of the judicial proceedings in question or that person’s access to the courts. In that sense, the European Court of Human Rights makes a clear link between the question of recovery of legal aid costs and the actual effectiveness of the right to that aid. Secondly, the compatibility of such a mechanism with Article 6(3)(c) ECHR must be assessed, inter alia, in the light of the reasonableness of the amount claimed and the financial resources of that person at the time when he or she is required to pay that amount, which also requires a specific examination of his or her financial situation.
75.      In the present case, the risk that a mechanism for the recovery of legal aid costs such as that at issue in the main proceedings might negatively influence the decision of a suspect or an accused person to exercise his or her right of appeal for fear of having to repay additional costs without having the means to do so, cannot, in my view, be overlooked.
76.      Furthermore, it is apparent from the explanations given by the referring court that, as regards the recovery mechanism at issue in the main proceedings, the financial resources of suspects or accused persons are never examined before recovery of legal aid costs is sought from them in the event of a conviction. However, as stated in points 60
and 74 of this Opinion, it is clear from the case-law of the European Court of Human Rights that the authorities are required, before claiming such recovery, to assess both the reasonableness of the amount claimed and the ability of the person concerned to pay it.
77.      That also seems to me to be consistent with the objectives pursued by Directive 2016/1919. The purpose of that directive is not only to ensure that a person concerned receives the assistance of a lawyer, but also to ensure that the costs of that assistance are financed by the Member States. In those circumstances, while it does not appear unreasonable to require a person with sufficient financial resources to contribute to that financing, the discretion to impose that requirement must be exercised by those Member States in a proportionate manner and within the limits described in points 71
to 74 of this Opinion.
78.      Moreover, as regards the argument raised by the Commission at the hearing, according to which a person who does not have the means to finance the assistance of a lawyer may be treated in the same way as a vulnerable person, within the meaning of Article 9 of Directive 2016/1919, that argument does not seem to me to be relevant. There is nothing in the wording of that directive to support that view and it is, moreover, clear from the case-law that there is no presumption of vulnerability on the part of accused persons and that a person’s ability to pay for legal representation and their vulnerability are separate issues. (32)
V.      Conclusion
79.      In the light of all the foregoing considerations, I propose that the Court should answer the fourth and fifth questions referred for a preliminary ruling by the Apelativen sad – Sofia (Court of Appeal, Sofia, Bulgaria) as follows:
Article 2(1)(a) and (b) and Article 4(1) and (4) of Directive (EU) 2016/1919 of the European Parliament and of the Council of 26 October 2016 on legal aid for suspects and accused persons in criminal proceedings and for requested persons in European arrest warrant proceedings, read in conjunction with recital 8
of that directive,
must be interpreted as precluding national legislation which provides that an accused person who has received legal aid because he or she was remanded in custody may be required to repay the costs of that aid without prior verification of his or her financial resources. Such a practice is, moreover, liable to be discriminatory if an accused person who has received that aid specifically because he or she lacks sufficient resources would not be subject to such a requirement.
1      Original language: French.
2      Judgment of the ECtHR of 9 October 1979,
Airey v. Ireland (CE:ECHR:1979:1009JUD000628973, § 26).
3      See judgments of 17 July 1997, Krüger (C‑334/95, EU:C:1997:378, paragraphs 22 and 23), of 28 November 2000, Roquette Frères (C‑88/99, EU:C:2000:652, paragraph 18), and of 3 June 2025, Kinsa (C‑460/23, EU:C:2025:392, paragraph 34 and the case-law cited).
4      See, inter alia, the Green Paper from the Commission on Procedural Safeguards for Suspects and Defendants in Criminal Proceedings throughout the European Union [COM(2003)
75
final) of 19 February 2003, and the Proposal for a Council framework decision on certain procedural rights in criminal proceedings throughout the European Union
(COM(2004)
328 final), of 28 April 2004.
5      Council Resolution of 30 November 2009 (OJ 2009 C 295, p. 1;
‘the Council Resolution of 30 November 2009’).
6      The Stockholm Programme – An open and secure Europe serving and protecting citizens (OJ 2010 C 115, p. 1).
7      Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings (OJ 2010 L 280, p. 1); Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings (OJ 2012 L 142, p. 1); and Directive 2013/48.
8      Directive 2016/343; Directive (EU) 2016/800 of the European Parliament and of the Council of 11 May 2016 on procedural safeguards for children who are suspects or accused persons in criminal proceedings (OJ 2016 L 132, p. 1);
and
Directive 2016/1919.
9      For more detailed explanation, see Opinion of Advocate General Ćapeta in M.S. and Others (Procedural rights of minors) (C‑603/22, EU:C:2024:157, points 26 to 31).
10      See, in that regard, recital 10 of the Resolution of the Council of 30 November 2009.
11      OJ
2007 C 303, p. 17.
12      See, to that effect, judgment of 15 September 2022, HN (Trial of an accused person removed from the territory) (C‑420/20, EU:C:2022:679, paragraphs 54 and 55 and the case-law cited). I would further recall that it is settled case-law that, in accordance with Article 52(3) of the Charter, the rights contained therein have the same meaning and scope as the corresponding rights guaranteed by the ECHR, which does not preclude EU law from affording more extensive protection. When interpreting the rights guaranteed by the second paragraph of Article 47 and Article 48(2) of the Charter, the Court must, for example, take account of the corresponding rights guaranteed by Article 6 ECHR, as interpreted by the European Court of Human Rights, as the minimum threshold of protection. See judgment of 22 June 2023, K.B. and F.S. (Raising ex officio of an infringement in criminal proceedings) (C‑660/21, EU:C:2023:498, paragraph 41).
13      See, to that effect, judgment of 8 May 2025, Barało (C‑530/23, EU:C:2025:322, paragraphs 58 and 59 and the case-law cited).
14      Commission Staff Working Document of 27 November 2011, Executive Summary of the Impact Assessment accompanying the document Directive of the European Parliament and of the Council on provisional legal aid for suspects or accused persons deprived of liberty and legal aid in European arrest warrant proceedings (SWD(2013)
477
final).
15      COM(2013)
824
final.
16      See recital 1 of Directive 2016/1919.
17      Judgment of the ECtHR,
25 September 1992, Pham Hoang v. France (CE:ECHR:1992:0925JUD 001319187, § 39).
18      Judgment of 8 May 2025, Barało (C‑530/23, EU:C:2025:322, paragraph 97 and the case-law cited).
19      See, by analogy, judgment of 15 September 2022, HN (Trial of an accused person removed from the territory) (C‑420/20, EU:C:2022:679, paragraph 41 and the case-law cited).
20      See, by analogy, order of 12 February 2019, RH (C‑8/19 PPU, EU:C:2019:110, paragraph 59 and the case-law cited).
21      See judgment of 19 December 2019, Puppinck and Others v Commission (C‑418/18 P, EU:C:2019:1113, paragraph 75 and the case-law cited).
22      See judgment of 21 March 2024, LEA (C‑10/22, EU:C:2024:254, paragraph 51 and the case-law cited).
23      Proposal for a Directive of the European Parliament and of the Council on provisional legal aid for suspects or accused persons deprived of liberty and legal aid in European arrest warrant proceedings,
COM(2013) 0824 final, of 27 November 2013.
24      See, to that effect, judgment of 15 September 2022, HN (Trial of an accused person removed from the territory) (C‑420/20, EU:C:2022:679, paragraph 54 and the case-law cited).
25      See, to that effect, judgment of 15 September 2022, HN (Trial of an accused person removed from the territory) (C‑420/20, EU:C:2022:679, paragraph 55 and the case-law cited).
26      Decision of the ECtHR, 6 May 1982, X v. the Federal Republic of Germany, (CE:ECHR:1982:0506DEC000936581).
27      Judgment of the ECtHR, 25 September 1992, Croissant v. Germany, (CE:ECHR:1992:0925JUD001361188).
28      Judgment of the ECtHR, 26 February 2002, Morris v. The United Kingdom (CE:ECHR:2002:0226JUD003878497).
29      Judgment of the ECtHR, 17 February 2011, Ognyan Asenov v. Bulgaria, (CE:ECHR:2011:0217JUD003815704). A relatively similar line of reasoning is also followed in the judgment of the ECtHR,
21 June 2011, Orlov v. Russia (CE:ECHR:2011:0621JUD002965204).
30      See, to that effect, judgment of 6 June 2023. O.G. (European arrest warrant issued against a third-country national) (C‑700/21, EU:C:2023:444, paragraphs 40 to 43 and the case-law cited).
31      Judgment of 22 December 2010, DEB (C‑279/09, EU:C:2010:811, paragraph 42).
32      See, to that effect, judgment of 8 May 2025, Barało (C‑530/23, EU:C:2025:322, paragraphs 61 to 71 and the case-law cited).