1 This request for a preliminary ruling concerns the interpretation of: (i) Article 4(1) and Article 5 of Council Framework Decision 2004/757/JHA of 25 October 2004 laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking (OJ 2004 L 335, p. 8); (ii) Article 4 of Council Framework Decision 2008/841/JHA of 24 October 2008 on the fight against organised crime (OJ 2008 L 300, p. 42); (iii) Article 6(1) and (3) of 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 (iv) Article 20, the first paragraph of Article 47, Article 48(2) and Article 52(1) of the Charter of Fundamental Rights of the European Union (‘the Charter’).
2 The request has been made in criminal proceedings brought against PT and other persons, prosecuted for directing and/or participating in an organised criminal group.
3 The first paragraph of Article 47 of the Charter provides: ‘Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.’
4 Article 52(1) of the Charter is worded as follows: ‘Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the [European] Union or the need to protect the rights and freedoms of others.’
5 Article 4(1) of Framework Decision 2004/757, entitled ‘Penalties’, provides: ‘Each Member State shall take the measures necessary to ensure that the offences defined in Articles 2 and 3 are punishable by effective, proportionate and dissuasive criminal penalties. Each Member State shall take the necessary measures to ensure that the offences referred to in Article 2 are punishable by criminal penalties of a maximum of at least between one and three years of imprisonment.’
6 Article 5 of that framework decision, entitled ‘Particular circumstances’, provides: ‘Notwithstanding Article 4, each Member State may take the necessary measures to ensure that the penalties referred to in Article 4 may be reduced if the offender: (a) renounces criminal activity relating to trafficking in drugs and precursors, and (b) provides the administrative or judicial authorities with information which they would not otherwise have been able to obtain, helping them to: (i) prevent or mitigate the effects of the offence, (ii) identify or bring to justice the other offenders, (iii) find evidence, or (iv) prevent further offences referred to in Articles 2 and 3.’
7 Article 3 of Framework Decision 2008/841, entitled ‘Penalties’, provides in paragraph 1(a): ‘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; …’
8 Article 4 of that framework decision, entitled ‘Special circumstances’, provides: ‘Each Member State may take the necessary measures to ensure that the penalties referred to in Article 3 may be reduced or that the offender may be exempted from penalties if he, for example: (a) renounces criminal activity; and (b) provides the administrative or judicial authorities with information which they would not otherwise have been able to obtain, helping them to: (i) prevent, end or mitigate the effects of the offence; (ii) identify or bring to justice the other offenders; (iii) find evidence; (iv) deprive the criminal organisation of illicit resources or of the proceeds of its criminal activities; or (v) prevent further offences referred to in Articles 2 from being committed.’
9 Recitals 14 and 41 of Directive 2012/13 state: ‘(14) This Directive … lays down common minimum standards to be applied in the field of information about rights and about the accusation to be given to persons suspected or accused of having committed a criminal offence, with a view to enhancing mutual trust among Member States. This Directive builds on the rights laid down in the Charter, and in particular Articles 6, 47 and 48 thereof, by building upon Articles 5 and 6 [of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950,] as interpreted by the European Court of Human Rights. … … (41) This Directive respects fundamental rights and observes the principles recognised by the Charter. In particular, this Directive seeks to promote the right to liberty, the right to a fair trial and the rights of the defence. It should be implemented accordingly.’
10 Article 1 of that directive, entitled ‘Subject matter’, is worded as follows: ‘This Directive lays down rules concerning the right to information of suspects or accused persons, relating to their rights in criminal proceedings and to the accusation against them. …’
11 Article 6 of that directive, entitled ‘Right to information about the accusation’, provides in paragraphs 1 and 3: 1. Member States shall ensure that suspects or accused persons are provided with information about the criminal act they are suspected or accused of having committed. That information shall be provided promptly and in such detail as is necessary to safeguard the fairness of the proceedings and the effective exercise of the rights of the defence. … 3. Member States shall ensure that, at the latest on submission of the merits of the accusation to a court, detailed information is provided on the accusation, including the nature and legal classification of the criminal offence, as well as the nature of participation by the accused person.’
12 Article 381 of the Nakazatelno-protsesualen kodeks (Code of Criminal Procedure), in the version applicable to the case in the main proceedings, (‘the NPK’), entitled ‘Agreement for settlement of the case in a pre-trial procedure’, provides: ‘(1) At the end of the investigation, on the proposal of the prosecutor or the lawyer, an agreement may be drawn up between them to settle the case. … … (5) The agreement shall be in written form and include a consensus on the following questions: 1. Was an act committed, was it committed by the accused person and was it wrongful, does the act constitute a criminal offence and what is its legal classification[?] 2. What should the nature and level of the penalty be[?] … (6) The agreement shall be signed by the prosecutor and the lawyer. The accused person shall sign the agreement if he or she accepts it, after declaring that he or she waives the right to have his or her case tried according to the ordinary procedure. (7) Where the proceedings are directed against several persons or concern several offences, the agreement may be concluded by some of those persons or for some of those offences. …’
13 Article 383 of the NPK, entitled ‘The consequences of the agreement for settlement of the case’, provides, in paragraph 1 thereof: ‘The agreement approved by the court has the force of a conviction that has become final.’
14 Under Article 384 of the NPK, entitled ‘Agreement for settlement of the case in the course of the judicial proceedings’: ‘(1) According to the conditions and detailed rules set out in this chapter, the court of first instance may approve an agreement for settlement of the case negotiated after the opening of the judicial proceedings, but before the conclusion of the judicial investigation phase. … (3) In such cases, the agreement [for settlement of the case] shall be approved only once the consent of all the parties [to the proceedings] has been obtained.’
15 Article 384a of the NPK, entitled ‘Decision on an agreement entered into with one of the accused or for one of the offences’, provides: ‘1. When, after the opening of the judicial proceedings, but before the conclusion of the judicial investigation phase, an agreement has been entered into with one of the defendants or for one of the offences, the court shall stay the proceedings. 2. Another court formation shall give a ruling on the agreement entered into … 3. The formation of the court referred to in paragraph 1 shall continue to examine the case after a ruling has been given on the agreement.’
16 On 25 March 2020, the Spetsializirana prokuratura (Specialised Public Prosecutor’s Office, Bulgaria) brought charges against 41 persons, including SD and PT, before the Spetsializiran nakazatelen sad (Specialised Criminal Court, Bulgaria), for directing, and/or participating in, a criminal organisation which sought to enrich itself through the distribution of drugs. PT is charged with having participated in that criminal group and for possession of drugs with intent to distribute, under the relevant provisions of the Nakazatelen kodeks (Criminal Code).
17 On 19 August 2020, the case was referred back to the Spetsializirana prokuratura (Specialised Public Prosecutor’s Office) in order to remedy procedural errors in the indictment.
18 On 26 August 2020, during the pre-trial procedure, the public prosecutor and SD’s defence counsel entered into an agreement under which SD would receive a more lenient penalty than that provided for by law since he had pleaded guilty to all the charges against him. That agreement for settlement of the case had been approved on 1 September 2020 by a court formation other than that which initially heard the case.
19 On 28 August 2020, the Spetsializirana prokuratura (Specialised Public Prosecutor’s Office) filed a corrected version of the indictment and the trial phase of the proceedings was commenced.
20 On 17 November 2020, the public prosecutor and PT’s defence counsel entered into an agreement for settlement of the case under which that defendant, having pleaded guilty to the charges against him, would receive a three-year custodial sentence, suspended for five years.
21 On 21 January 2021, the formation of the court designated pursuant to Article 384a of the NPK, to rule on that agreement refused to approve it, on the ground that some of the defendants had not given their consent, which was required in accordance with Article 384(3) of the NPK.
22 On 10 May 2022, the prosecutor and PT’s defence counsel entered into a new agreement for settlement of the case, the content of which was identical, and asked the court hearing the case to rule on that agreement without seeking the consent of the other defendants.
23 On 18 May 2022, the formation of the court designated pursuant to Article 384a of the NPK refused to approve the agreement for settlement of the case referred to in the preceding paragraph, on the ground that that approval required the consent of the 39 other defendants, in accordance with Article 384(3) of the NPK.
24 In the light of that refusal, the public prosecutor, PT and his defence counsel confirmed, on the same date, that they wished to enter into an agreement for settlement of the case and that it would be the court before which all of the evidence had been adduced which would approve that agreement, without seeking the consent of the other defendants.
25 By decision of 28 June 2022, in order to assess the compatibility with EU law not only of Article 384(3) of the NPK, but also Article 384a of that code, in so far as the latter article requires an agreement for settlement of the case to be approved by an ad hoc court, the Spetsializiran nakazatelen sad (Specialised Criminal Court) referred a request for a preliminary ruling to the Court of Justice, which is the subject matter of the judgment delivered today in PT (Agreement between the prosecutor and the perpetrator of an offence) (C‑432/22).
26 The Sofiyski gradski sad (Sofia City Court, Bulgaria), the legal successor of the Spetsializiran nakazatelen sad (Specialised Criminal Court), which is the referring court in the present case, states, as a preliminary point, that it intends to refer the question of the compatibility of Article 384(3) of the NPK not only with Article 4(1) and Article 5 of Framework Decision 2004/757 and Article 4 of Framework Decision 2008/841, but also with Article 20 of the Charter, as interpreted by the Court in its judgment of 6 June 2023, O. G. (European arrest warrant issued against a third-country national) (C‑700/21, EU:C:2023:444), as well as with Article 6(3) of Directive 2012/13, in so far as Article 384(3) requires the consent of the other defendants where an agreement for settlement of the case is entered into during the trial phase of criminal proceedings brought against several persons, but not during the pre-trial phase of such proceedings.
27 Moreover, the referring court considers that an agreement for settlement of the case is a ‘legal remedy’ which makes it possible not only to apply a penalty which is effective, proportionate and dissuasive and to bring an end to the criminal activity of the defendant who enters into such an agreement, but also to provide the court hearing the case with evidence of the criminal activity of the other defendants. Consequently, according to the referring court, such an agreement implements, within the meaning of Article 51(1) of the Charter, the provisions of Framework Decisions 2004/757 and 2008/841 referred to in the preceding paragraph of the present judgment, with the result that the Charter is applicable to it.
28 As regards, in the first place, the judgment of 6 June 2023, O. G. (European arrest warrant issued against a third-country national), C‑700/21, EU:C:2023:444), it follows, according to the referring court, from paragraph 43 of that judgment, that the situation of the accused person during the pre-trial stage of criminal proceedings is similar to that of the defendant during the trial stage of those proceedings, even if the indictment is formulated in more detail during the latter phase. That court takes the view that the ‘unfavourable treatment of the defendant’, resulting from the requirement of the consent of the other defendants for judicial approval of the agreement for settlement of the case entered into by that defendant during that trial stage, ‘does not meet the requirement of equality laid down in Article 20 of the Charter’, since such a requirement does not apply to agreements for settlement of the case entered into during the pre-trial phase of the proceedings.
29 In the second place, according to the referring court, ‘the Court of Justice alone can assess whether the agreement [for settlement of the case], as governed by Bulgarian law’, falls within the rights of the defence under Article 48(2) of the Charter and, if so, assess whether Article 384(3) of the NPK limits the effectiveness of such a right and whether that limitation ‘is justified by a valid reason’, in accordance with Article 52(1) of the Charter. The referring court adds, first, that Article 384(3) deprives a defendant such as PT of the right to have the substance of the agreement for settlement of the case, which he entered into with a view to obtaining a more lenient penalty, examined and, second, that the restriction on entering into such an agreement arising from Article 384(3) ‘should not be justified by the need to protect the interests of the other defendants’ but should be allowed only ‘if necessary for the protection of the interests of the victim’.
30 In the third place, the referring court questions the compatibility of Article 384(3) of the NPK with Article 6(1) of Directive 2012/13, in so far as that provision of national law ‘limits the practical effect of that article of the directive’, by preventing a defendant who has exercised ‘his or her right to obtain access to the full text of the accusation under Article 6(3) of [Directive 2012/13]’ from entering into an agreement for settlement of the case without obtaining the consent of the other defendants. That court takes the view that since access to detailed information on the accusation is possible only during the trial stage of the criminal proceedings, Article 384(3) of the NPK makes the defendant who has obtained such information ‘dependent on the consent of the other defendants and their lawyers, in order for [an agreement for settlement of the case] to be examined on the merits … and, where appropriate, approved’. It infers from this that, in the present case, that provision prevents PT ‘from benefiting from the practical effect of the provision of detailed information on the accusation, a right expressly conferred on him by Article 6(3) of Directive [2012/13]’.
31 In those circumstances the Sofiyski gradski sad (Sofia City Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Is a national law which stipulates that the co-defendants and their defence counsel must give their consent in order for an agreement discontinuing criminal proceedings against a defendant to receive approval when those proceedings are at the trial stage, but under which such consent is not required when those proceedings are at the pre-trial stage, compatible with Article 4(1) and Article 5 of Framework Decision 2004/757 and Article 4 of Framework Decision 2008/841, read in conjunction with Article 20 of the Charter? (2) Is a national law that limits the possibility for a defendant to have the court examine the substance of an agreement he or she has entered into (under which he or she is to receive a more lenient penalty) - that limitation consisting of a requirement for the consent of the co-defendants to be obtained - compatible with Article 4(1) of Framework Decision 2004/757, read in conjunction with Article 48(2) and Article 52(1) of the Charter? (3) Is a national law that provides for that limitation also as a consequence of providing the defendant with detailed information on the accusation compatible with Article 6(3), read in conjunction with Article 6(1) of Directive 2012/13, in conjunction with Article 47(1) and Article 52(1) of the Charter?’
32 By its first and second questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 4(1) and Article 5 of Framework Decision 2004/757 and Article 4 of Framework Decision 2008/841, read in conjunction with Article 20, Article 48(2) and Article 52(1) of the Charter, must be interpreted as precluding a provision of national law which, in criminal proceedings brought against several defendants, makes the judicial approval of an agreement entered into by one of the defendants and the public prosecutor during the trial stage of those proceedings subject to the consent of the other defendants, who have not admitted their guilt, whereas such consent is not required for the approval of an identical agreement concluded during the pre-trial stage of those proceedings.
33 The first subparagraph of Article 4(1) of Framework Decision 2004/757 requires Member States to take the measures necessary to ensure that the offences referred to in Articles 2 and 3 of that framework decision are punishable by effective, proportionate and dissuasive penalties, whereas the second subparagraph of Article 4(1) of that framework decision specifically requires Member States to take the necessary measures to ensure that the offences referred to in Article 2 of that decision are punishable by penalties of a maximum of at least between one and three years of imprisonment. Article 3(1)(a) of Framework Decision 2008/841 contains provisions similar to those in the second subparagraph of Article 4(1) of Framework Decision 2004/757.
34 Article 5 of Framework Decision 2004/757 and Article 4 of Framework Decision 2008/841 provide, in essence, for the possibility for Member States to take, in particular circumstances, the necessary measures to ensure that the penalties referred to in Article 4 of Framework Decision 2004/757 and Article 3 of Framework Decision 2008/841 may be reduced and, in the case of that latter decision, so that the offender may be exempted from penalties.
35 It is necessary, as a preliminary point, to determine whether, as the referring court maintains, the Bulgarian legislation governing the agreement for settlement of the case implements EU law, within the meaning of Article 51(1) of the Charter, and whether, therefore, the Court has jurisdiction to interpret the provisions of the Charter which are the subject of the first and second questions.
36 Under Article 51(1) thereof, the provisions of the Charter are addressed to the Member States only when they are implementing EU law. Article 51(2) states that the provisions of the Charter do not extend in any way the powers of the European Union as defined in the Treaties.
37 Those provisions confirm the Court’s settled case-law, according to which the fundamental rights guaranteed in the legal order of the European Union are applicable in all situations governed by EU law, but not outside such situations. Consequently, in the context of a reference for a preliminary ruling under Article 267 TFEU, the Court may interpret EU law only within the limits of the powers conferred upon it (see, to that effect, judgment of 11 July 2024, Hann-Invest and Others, C‑554/21, C‑622/21 and C‑727/21, EU:C:2024:594, paragraphs 30 and 31 and the case-law cited).
38 The concept of ‘implementing Union law’, within the meaning of Article 51(1) of the Charter, presupposes a degree of connection between an act of EU law and the national measure in question, above and beyond the matters covered being closely related or one of those matters having an indirect impact on the other (see, to that effect, judgments of 6 March 2014, Siragusa, C‑206/13, EU:C:2014:126, paragraph 24, and of 29 July 2024, protectus, C‑185/23, EU:C:2024:657, paragraph 42).
39 The Court has already held that fundamental EU rights could not be applied in relation to national legislation because the provisions of EU law in the area concerned did not impose any specific obligation on Member States with regard to the situation at issue in the main proceedings (see, to that effect, judgments of 6 March 2014, Siragusa, C‑206/13, EU:C:2014:126, paragraph 26, and of 10 July 2014, Julián Hernández and Others, C‑198/13, EU:C:2014:2055, paragraph 35).
40 It is in the light of those considerations that it is necessary to examine the provisions of the EU acts in the light of which the referring court intends to assess the provisions of national law at issue in the main proceedings.
41 In the first place, Article 4(1) of Framework Decision 2004/757 and Article 3 of Framework Decision 2008/841 appear in acts adopted on the basis of Article 31(1) EU, the provisions of which were reproduced in the first subparagraph of Article 83(1) TFEU. They contain minimum provisions on penalties applicable to criminal offences in the areas of crime covered by their respective scope, namely illicit drug trafficking and organised crime.
42 As the Court points out in paragraph 39 of the judgment delivered today in PT (Agreement between the public prosecutor and the perpetrator of an offence) (C‑432/22), the implementation of those provisions implies that the Member States must adopt legislative measures falling within the scope of substantive criminal law. By contrast, in the field of criminal procedural law, within which the provisions of Bulgarian law applicable to the agreement for settlement of the case, in essence, fall, namely those of Article 384(3) of the NPK, no EU legislative act concerning that type of agreement has been adopted on the basis of Article 31 EU or Article 82 TFEU, which defines the competence of the European Union in the field of criminal procedural law.
43 It follows that the relationship between the provisions of substantive criminal law of the European Union referred to in paragraph 41 above and the provisions of Bulgarian criminal procedural law governing the agreement for settlement of the case at issue in the main proceedings does not go above and beyond the fact of the former provisions being closely related to, or having an indirect impact on, the latter provisions. In those circumstances, a degree of connection, within the meaning of the case-law referred to in paragraph 38 above, cannot be established between them.
44 In the second place, Article 5 of Framework Decision 2004/757 and Article 4 of Framework Decision 2008/841, entitled ‘Particular circumstances’ and ‘Special circumstances’, merely provide that Member States may take the necessary measures to ensure that the penalties referred to in those framework decisions may be reduced if the offender renounces criminal activity in the areas covered by those framework decisions and provides the administrative or judicial authorities with information which they would not otherwise have been able to obtain, helping them, inter alia, to identify or bring to justice the other offenders or find evidence. Those provisions of EU law do not specify the detailed rules or the conditions governing the conclusion of an agreement for settlement of the case, nor do they require the Member States to legislate in that area, contrary to what is required by the case-law referred to in paragraph 39 above in order for a degree of connection to be established between those provisions of EU law and those of Bulgarian law governing the agreement for settlement of the case.
45 It is apparent from the foregoing that the provisions of the NPK concerning the conclusion and approval of an agreement for settlement of the case, in particular Article 384(3) of the NPK, do not constitute ‘implementation’, for the purposes of Article 51(1) of the Charter, of the provisions of Framework Decisions 2004/757 and 2008/841.
46 It follows that the Court does not have jurisdiction to answer the first and second questions referred for a preliminary ruling.
47 By its third question, the referring court asks, in essence, whether Article 6(1) and (3) of Directive 2012/13, read in the light of the first paragraph of Article 47 and Article 52(1) of the Charter, must be interpreted as precluding a provision of national law which, in criminal proceedings brought against several defendants, makes the judicial approval of an agreement for settlement of the case, entered into by the public prosecutor and one of the defendants, subject to the consent of the other defendants only where such an agreement is entered into during the trial stage of those proceedings.
48 As can be seen from Article 1 of Directive 2012/13, that directive, which was adopted on the basis of Article 82(2) TFEU, establishes common minimum standards as regards providing persons suspected or accused of a criminal offence with information regarding their rights and the accusation against them. That directive, as stated in recitals 14 and 41 thereof, builds on the rights set out, inter alia, in Articles 47 and 48 of the Charter and seeks to promote those rights.
49 Article 6(1) of Directive 2012/13 requires Member States to ensure that suspects or accused persons are provided, promptly and in such detail as is necessary, with information about the criminal act they are suspected or accused of having committed. Article 6(3) provides that, at the latest on submission of the merits of the accusation to a national competent court, detailed information is provided on the accusation, including the nature and legal classification of the criminal offence, as well as the nature of participation by the accused person.
50 In any event, whenever the point in time when detailed information of the accusation is provided, in accordance with Article 6(3), the accused person and his or her lawyer must have, inter alia, with due regard for the adversarial principle and the principle of equality of arms, sufficient time to become acquainted with that information, and must be placed in a position to prepare the defence effectively, submit any observations and, when necessary, to make any application, such as an application for further investigation, that they are entitled to make under national law (see, to that effect, judgments of 5 June 2018, Kolev and Others, C‑612/15, EU:C:2018:392, paragraph 96, and of 21 October 2021, ZX (Regularisation of the indictment), C‑282/20, EU:C:2021:874, paragraph 38 and the case-law cited).
51 The provision of detailed information on the accusation to the accused person, including the nature and legal classification of the criminal offence, in due time, at a point which places that person in a position to prepare his or her defence effectively, is essential in order to enable that person to understand what he or she is being accused of, to organise the defence accordingly and - as the case may be - to contest his or her guilt, by attempting to demonstrate that one or more elements of the offence used are absent, or to choose to admit his or her guilt, voluntarily and with full knowledge of that which he or she is accused and of the legal effects attaching to that choice (see, by analogy, judgment of 9 November 2023, BK (Reclassification of the offence), C‑175/22, EU:C:2023:844, paragraph 40).
52 However, the effectiveness of the right to information about the accusation, to be provided promptly and in such detail as is necessary, as guaranteed by Article 6(1) and (3) of Directive 2012/13, is not called into question if the approval, by the competent national court, of an agreement for settlement of the case entered into by one of the defendants and the public prosecutor, is subject to the consent of the other defendants who have not pleaded guilty.
53 Whereas, as the referring court states, the requirement for that consent during the trial stage of criminal proceedings is a consequence, intended by the national legislature, of the provision to the defendant of detailed information on the accusation against him or her, having regard to the effect that that more detailed information than the information provided during the pre-trial stage of such proceedings is likely to have on the exercise, by the defendants who have not pleaded guilty, of their right to a fair trial and their rights of defence, it is not, however, established that such a requirement for consent prejudices or prevents the exercise by the defendant of the rights guaranteed by Article 6(1) and (3) of Directive 2012/13, read in the light of the first paragraph of Article 47 and Article 52(1) of the Charter.
54 In light of the foregoing, the answer to the third question is that Article 6(1) and (3) of Directive 2012/13, read in the light of the first paragraph of Article 47 and Article 52(1) of the Charter, must be interpreted as not precluding a provision of national law which, in criminal proceedings brought against several defendants, makes the judicial approval of an agreement for settlement of the case, entered into by the public prosecutor and one of the defendants, subject to the consent of the other defendants only where such an agreement is concluded during the trial stage of those proceedings.
55 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.