Criminal proceedings against Nikolay Boykov Kolev and Others.
Date: 2020-02-12
17


In point 1 of the operative part of that judgment, the Court ruled that Article 325(1) TFEU precludes national legislation that establishes a procedure for the termination of criminal proceedings, such as that provided for in Articles 368 and 369 of the Code of Criminal Procedure, in so far as that legislation is applicable in proceedings initiated with respect to cases of serious fraud or other serious illegal activities affecting the financial interests of the European Union in customs matters. It added, in the same point, that it is for the national court to give full effect to Article 325(1) TFEU, by disapplying that legislation, where necessary, while also ensuring respect for the fundamental rights of the persons accused, stating, in paragraph 70 of that judgment, that those rights include the right of those persons to have their case heard within a reasonable time.
18


The Court stated, in paragraph 67 of that judgment, that, in the event that a number of measures could conceivably give effect to the obligations deriving from Article 325(1) TFEU, it would be for the referring court to determine which of those measures to apply. In that regard, the Court in particular considered the possibility, for the referring court, provided that the prosecutor has submitted an indictment before that court within the required time limits, to open the trial phase of the proceedings and itself remedy possible irregularities committed during the pre-trial phase of those proceedings.
19


As regards respect for the right of accused persons to have their case heard within a reasonable time, the Court ruled, in paragraph 74 of the Kolev judgment, that it is also for the referring court to determine the measures to be taken in order to guarantee respect for that right, taking account of all the procedural remedies offered by its national law, taken as a whole and interpreted in the light of EU law. In the event that a number of approaches might conceivably be taken in order to give full effect to the obligations stemming from Article 325(1) TFEU, it is for that court to choose those which, of those various approaches, make it possible in the specific case to safeguard the fundamental right in question.
27


In the light of paragraphs 67 and 74 of the Kolev judgment, the referring court however considers that it is necessary to interpret its national law so that that procedural impediment does not hinder the application of EU law.
28


In that regard, the referring court states that the final decision to terminate the trial phase is procedurally significant in so far as it involves the case being referred back to the prosecutor in order to carry out procedural acts and does not, in itself, confer substantive rights on the accused persons. It considers that that decision grants those persons an advantage in so far as the case is delayed, which cannot be upheld since it leads to an infringement of the principle of examining criminal charges within a reasonable time, as referred to by the Court in paragraphs 70 to 74 of the Kolev judgment. Moreover, it notes that it would be possible, during the trial phase of the proceedings, to give effect to all the procedural rights which the accused persons derive from Directive 2012/13, as interpreted by the Court in the Kolev judgment.
37


According to the Court’s settled case-law, Article 267 TFEU requires referring courts to give full effect to the interpretation of EU law provided by the Court in judgments in preliminary ruling proceedings (see, to that effect, judgments of 3 February 1977, Benedetti, 52/76, EU:C:1977:16, paragraph 26, and of 5 July 2016, Ognyanov, C‑614/14, EU:C:2016:514, paragraph 28).
41


As regards the detailed rules for that procedure, the Court states, at most, in paragraph 98 of that judgment, that it is for the national court to ensure a fair balance between, on the one hand, respect for the rights of the defence and, on the other hand, the need to guarantee the effectiveness of the prosecution and punishment of offences affecting the financial interests of the European Union, and also the need to ensure that the proceedings are completed within a reasonable time.
43


In paragraphs 72 and 73 of the Kolev judgment, the Court again held that the reasonableness of the length of proceedings cannot be determined by reference to a precise maximum limit determined in an abstract manner, but must be appraised in the light of the specific circumstances of each case, such as the importance of the case for the person concerned, its complexity or the conduct of the competent authorities and the parties, the number of accused persons and the duration and seriousness of the allegations against those persons, since the complexity of the case or delaying tactics on the part of the defence may be deemed to justify a period that is prima facie too long.
46


On the contrary, it follows from paragraphs 41 and 67 of the Kolev judgment that the referring court had itself considered, in its order for reference, the possibility of opening the trial phase of the proceedings, notwithstanding the adoption of its order of 22 May 2015. Therefore, the Court did not examine, and still less did it reject as being contrary to EU law, the interpretation of Article 249 of the Code of Criminal Procedure provided by the appeal court.
48


In that regard, it must be stated that, as is apparent from paragraphs 67 and 74 of the Kolev judgment, the Court did not lay down specific detailed rules for the implementation of point 2 of the operative part of that judgment in the context of the main proceedings. More particularly, since the opening of the trial phase of the proceedings by the referring court in order itself to remedy the irregularities is only one possibility amongst others envisaged by the Court in that judgment, the choice of those detailed rules falls within the procedural autonomy of the Member States.
49


In those circumstances, it is for the domestic legal system of each Member State to establish those detailed rules, provided however that the national rules are not less favourable than those governing similar domestic situations (principle of equivalence) and that they do not make it excessively difficult or impossible in practice to exercise the rights conferred by EU law (principle of effectiveness) (see, to that effect, inter alia judgments of 16 December 1976, Rewe-Zentralfinanz and Rewe-Zentral, 33/76, EU:C:1976:188, paragraphs 5 and 6; of 28 September 1994, Fisscher, C‑128/93, EU:C:1994:353, paragraph 39; and of 29 July 2019, Inter-Environnement Wallonie and Bond Beter Leefmilieu Vlaanderen, C‑411/17, EU:C:2019:622, paragraph 171).
52


Secondly, as regards the principle of effectiveness, it should at the outset be noted that EU law does not preclude referring courts from being required to follow the instructions of a higher court as regards the interpretation of national procedural law for the implementation of a preliminary ruling, since those instructions do not undermine, in particular, the effectiveness of EU law as interpreted by the Court in that judgment. Therefore, the Court has in particular held that, provided that the effective protection of individual rights derived from EU law is guaranteed, it is not for it to become involved in resolving questions of jurisdiction to which the classification of certain legal situations based on EU law may give rise in the national judicial system (see, to that effect, judgment of 30 September 2003, Köbler, C‑224/01, EU:C:2003:513, paragraph 47).