C-107/23 PPU

24.07.2023

Article 2, Article 4(3) and the second subparagraph of Article 19(1) TEU, Article 267, Article 325(1) TFEU, the last sentence of Article 49(1) of the Charter of Fundamental Rights of the European Union (‘the Charter’) and Article 2(1) of the Convention drawn up on the basis of Article K.3 of the Treaty on European Union, on the protection of the European Communities’ financial interests, signed in Brussels on 26 July 1995 and annexed to the Council Act of 26 July 1995 (OJ 1995 C 316, p. 48; ‘the PFI Convention’), Articles 2 and 12 of Directive (EU) 2017/1371 of the European Parliament and of the Council of 5 July 2017 on the fight against fraud to the Union’s financial interests by means of criminal law (OJ 2017 L 198, p. 29; ‘the PFI Directive’), Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1), Commission Decision 2006/928/EC of 13 December 2006 establishing a mechanism for cooperation and verification of progress in Romania to address specific benchmarks in the areas of judicial reform and the fight against corruption (OJ 2006 L 354, p. 56) and the principle of the primacy of EU law

Judgment of 12 January 2023, MV (Formation of a cumulative sentence), C 583/22 PPU, EU:C:2023:5, Judgment of 21 March 2023, Mercedes-Benz Group (Liability of manufacturers of vehicles fitted with defeat devices), C 100/21, EU:C:2023:229, Judgment of 21 March 2023, Mercedes-Benz Group (Liability of manufacturers of vehicles fitted with defeat devices), C 100/21, EU:C:2023:229, Judgments of 19 December 2019, Dobersberger, C 16/18, EU:C:2019:1110, and of 27 April 2023, M.D. (Ban on entering Hungary), C 528/21, EU:C:2023:341, Judgments of 31 January 2023, Puig Gordi and Others, C 158/21, EU:C:2023:57, Euro Box Promotion and Others, C 357/19, C 379/19, C 547/19, C 811/19 and C 840/19, EU:C:2021:1034, Judgment of 5 December 2017, M.A.S. and M.B., C 42/17, EU:C:2017:936, Judgment of 26 February 2019, Rimšēvičs and ECB v Latvia, C 202/18 and C 238/18, EU:C:2019:139,  Judgement of March 2022, Commission v United Kingdom (Action to counter undervaluation fraud), C 213/19, EU:C:2022:167, Judgment of 2 May 2018, Scialdone, C 574/15, EU:C:2018:295, Judgments of 9 March 1978, Simmenthal, 106/77, EU:C:1978:49, of 24 June 2019, Popławski, C 573/17, EU:C:2019:530, and of 22 February 2022, RS (Effect of the decisions of a constitutional court), C 430/21, EU:C:2022:99, Judgment of 17 January 2019, Dzivev and Others, C 310/16, EU:C:2019:30, Judgement of 11 June 2020, Prokuratura Rejonowa w Słupsku, C 634/18, EU:C:2020:455, Judgment of 11 June 2020, Prokuratura Rejonowa w Słupsku, C 634/18, EU:C:2020:455, Judgment of 7 August 2018, Clergeau and Others, C 115/17, EU:C:2018:651, Judgment of 8 September 2015, Taricco and Others, C 105/14, EU:C:2015:555, Judgment of 26 February 2013, Åkerberg Fransson, C 617/10, EU:C:2013:105, judgments of 28 March 2017, Rosneft, C 72/15, EU:C:2017:236, and of 16 February 2022, Hungary v Parliament and Council, C 156/21, EU:C:2022:97, Judgment of 18 May 2021, Asociația ‘Forumul Judecătorilor din România’ and Others, C 83/19, C 127/19, C 195/19, C 291/19, C 355/19 and C 397/19, EU:C:2021:393, Judgments of 3 February 1977, Benedetti, 52/76, EU:C:1977:16, paragraph 26, and of 22 February 2022, RS (Effect of the decisions of a constitutional court), C 430/21, EU:C:2022:99, Judgement of 13 July 2023, YP and Others (Lifting of a judge’s immunity and his or her suspension from duties), C 615/20 and C 671/20, EU:C:2023:562

For the first and second questions - Pursuant to judgments No 297/2018 and No 358/2022 of the Romanian Constitutional Court during the period from 25 June 2018, the date of publication of judgment No 297/2018, to 30 May 2022, the date on which Government Emergency Ordinance No 71/2022 entered into force, Romanian law did not provide for any ground allowing the limitation period for criminal liability to be interrupted, and that, secondly, according to judgment No 67/2022 of the Romanian High Court of Cassation and Justice, that constitutional case-law can be invoked as a more lenient criminal law (lex mitior), including to challenge final convictions, thus as the Romanian law did not provide for any ground for interrupting the limitation period for criminal liability, this would have the result that the 10-year limitation period laid down for the offences at issue in the main proceedings would have expired before the conviction of the appellants in the main proceedings became final, which would entail the discontinuation of the criminal proceedings and would render impossible the conviction. It may be inferred from the foregoing that the legal situation resulting from the application of judgments No 297/2018 and No 358/2022 of the Romanian Constitutional Court and of judgment No 67/2022 of the Romanian High Court of Cassation and Justice entails a systemic risk of offences of serious fraud affecting the financial interests of the European Union going unpunished, in particular in cases whose complexity calls for a longer investigation by the criminal authorities. After analysing the national provisions, the Court concludes that it is apparent from the order for reference that the application of that first national standard of protection is liable to exacerbate the systemic risk that serious fraud affecting the financial interests of the European Union will escape any criminal penalty, in breach of Article 325(1) TFEU and Article 2(1) of the PFI Convention. In the view of the need to weigh the latter national standard of protection against the provisions of Article 325(1) TFEU and Article 2(1) of the PFI Convention, the application of that standard by a national court in order to call into question the interruption of the limitation period for criminal liability by procedural acts which took place before 25 June 2018, the date of publication of judgment No 297/2018 of the Romanian Constitutional Court, must be regarded as being liable to compromise the primacy, unity and effectiveness of EU law, within the meaning of the case-law referred to in paragraph 110 above (see, to that effect, judgment of 21 December 2021, Euro Box Promotion and Others, C 357/19, C 379/19, C 547/19, C 811/19 and C 840/19, EU:C:2021:1034, paragraph 212). Consequently, it must be held that the national courts cannot, in the context of judicial proceedings seeking to impose criminal penalties for serious fraud offences affecting the financial interests of the European Union, apply the national standard of protection relating to the principle of the retroactive application of the more lenient criminal law (lex mitior), in order to call into question the interruption of the limitation period for criminal liability by procedural acts which took place before 25 June 2018, the date of publication of judgment No 297/2018 of the Romanian Constitutional Court. Therefore, the answer to the first and second questions is that Article 325(1) TFEU and Article 2(1) of the PFI Convention must be interpreted as meaning that the courts of a Member State are not required to disapply the judgments of the constitutional court of that Member State invalidating the national legislative provision governing the grounds for interrupting the limitation period in criminal matters as a result of a breach of the principle that offences and penalties must be defined by law, as protected under national law, as to its requirements relating to the foreseeability and precision of criminal law, even if, as a consequence of those judgments, a considerable number of criminal cases, including cases relating to offences of serious fraud affecting the financial interests of the European Union, will be discontinued because of the expiry of the limitation period for criminal liability. However, those provisions of EU law must be interpreted as meaning that the courts of that Member State are required to disapply a national standard of protection relating to the principle of the retroactive application of the more lenient criminal law (lex mitior) which makes it possible, including in the context of appeals brought against final judgments, to call into question the interruption of the limitation period for criminal liability in such cases by procedural acts which took place before such a finding of invalidity.

The third question - In accordance with the Court’s settled case-law, the principle of the primacy of EU law establishes the pre-eminence of EU law over the law of the Member States. That principle therefore requires all Member State bodies to give full effect to the various EU provisions, and the law of the Member States may not undermine the effect accorded to those various provisions in the territory of those States (judgment of 18 May 2021, Asociația ‘Forumul Judecătorilor din România’ and Others, C 83/19, C 127/19, C 195/19, C 291/19, C 355/19 and C 397/19, EU:C:2021:393, paragraph 244 and the case-law cited). As regards, more specifically, the disciplinary liability that judges may incur, under the legislation of a Member State, in the event of failure to comply with the decisions of the constitutional court and of the supreme court of that Member State, the fact that a national court performs the tasks entrusted to it by the Treaties and fulfils its obligations under the Treaties, by giving effect – in accordance with the principle of the primacy of EU law – to a provision of EU law such as Article 325(1) TFEU or Article 2(1) of the PFI Convention and to the interpretation given to it by the Court, cannot, by definition, be regarded as a disciplinary offence on the part of judges sitting in that court without that provision and that principle being infringed ipso facto (see, to that effect, judgments of 21 December 2021, Euro Box Promotion and Others, C 357/19, C 379/19, C 547/19, C 811/19 and C 840/19, EU:C:2021:1034, paragraph 260, and of 13 July 2023, YP and Others (Lifting of a judge’s immunity and his or her suspension from duties), C 615/20 and C 671/20, EU:C:2023:562, paragraph 85 and the case-law cited). It follows from the foregoing that the principle of primacy of EU law must be interpreted as precluding national legislation or a national practice under which the ordinary national courts of a Member State are bound by the decisions of the constitutional court and by those of the supreme court of that Member State and cannot, for that reason and at the risk of incurring the disciplinary liability of the judges concerned, disapply of their own motion the case-law resulting from those decisions, even if they consider, in the light of a judgment of the Court, that that case-law is contrary to provisions of EU law having direct effect.