ECLI:EU:C:2025:994•Opinion of Advocate General Campos Sánchez-Bordona delivered on 18 December 2025.#Criminal proceedings against M.G.D.#Request for a preliminary ruling from the Înalta Curte de Casaţie şi Justiţie.#Reference for a preliminary ruling – Protection of the financial interests of the European Union – Article 325(1) TFEU – 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 – Article 2(1) – Obligation to counter fraud affecting the financial interests of the Union by taking effective deterrent measures – Obligation to provide for criminal penalties – Serious fraud affecting the financial interests of the Union – Concept – Limitation period for criminal liability – National standard of protection relating to the principle of the retroactive application of the more lenient criminal law (lex mitior principle) – Obligation for the courts of a Member State to disapply case-law of the supreme court of that Member State which is not in line with EU law – Application of the judgment of 24 July 2023, Lin (C‑107/23 PPU, EU:C:2023:606) – Constitutional prohibition on applying lex tertia – Limitation period already expired – Foreseeability of the conditions laid down by that judgment – Compatibility of that judgment with Article 7 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950.#Case C-280/25.
Opinion of Advocate General Campos Sánchez-Bordona delivered on 18 December 2025.#Criminal proceedings against M.G.D.#Request for a preliminary ruling from the Înalta Curte de Casaţie şi Justiţie.#Reference for a preliminary ruling – Protection of the financial interests of the European Union – Article 325(1) TFEU – 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 – Article 2(1) – Obligation to counter fraud affecting the financial interests of the Union by taking effective deterrent measures – Obligation to provide for criminal penalties – Serious fraud affecting the financial interests of the Union – Concept – Limitation period for criminal liability – National standard of protection relating to the principle of the retroactive application of the more lenient criminal law (lex mitior principle) – Obligation for the courts of a Member State to disapply case-law of the supreme court of that Member State which is not in line with EU law – Application of the judgment of 24 July 2023, Lin (C‑107/23 PPU, EU:C:2023:606) – Constitutional prohibition on applying lex tertia – Limitation period already expired – Foreseeability of the conditions laid down by that judgment – Compatibility of that judgment with Article 7 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950.#Case C-280/25.
ECLI:EU:C:2025:994Eu CjeuDec 18, 2025
Full text
Provisional text
OPINION OF ADVOCATE GENERAL
CAMPOS SÁNCHEZ-BORDONA
delivered on 18 December 2025 (1)
Case C‑280/25 [Lin II (i)]
Parchetul de pe lângă Curtea de Apel Oradea
Criminal proceedings
v
M. G.D.,
intervening parties:
Statul român – Agenția Națională de Administrare Fiscală prin Direcția Generală Regională a Finanțelor Publice Cluj-Napoca, prin Administrația Județeană a Finanțelor Publice Satu Mare
(Request for a preliminary ruling from the Înalta Curte de Casație și Justiție (High Court of Cassation and Justice, Romania))
( Reference for a preliminary ruling – Protection of the financial interests of the European Union – Article 325(1) TFEU – ‘PFI’ Convention – Article 2(1) – Obligation to combat fraud affecting the financial interests of the European Union with dissuasive and effective measures – Concept of serious fraud – Limitation period for criminal liability – Systemic risk of impunity – Protection of fundamental rights – Article 49(1) of the Charter of Fundamental Rights of the European Union – Principle of the legality of criminal offences and penalties – Requirements of foreseeability and precision of criminal law – Principle of the retroactive application of the more lenient criminal law (lex mitior) – National standard of protection of fundamental rights – Application of the judgment in Lin I – Limits to the principle of the primacy of EU law – National final judgments having the force of res judicata – Cases in which the limitation period for criminal liability expired before the judgment in Lin I, but where that expiry is not recognised by a final judgment – National principle prohibiting the creation of a lex tertia in applying the more lenient criminal law – Lack of foreseeability and precision of the criterion for systemic risk of impunity )
1. In the judgment in Lin, (2) the Court of Justice interpreted Article 325(1) TFEU and Article 2(1) of the PFI Convention (3) as follows:
‘… 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.’
2. Now, a judicial formation of the Criminal Division (‘the Criminal Division’) of the Înalta Curte de Casație și Justiție (High Court of Cassation and Justice, Romania) has written to the Court, setting out certain difficulties it has encountered in applying the judgment in Lin I, and it is to the content of that judgment that the questions referred for a preliminary ruling relate.
I. Legal framework
A. European Union law
3. The provisions of EU law transcribed in the judgment in Lin I (namely, the relevant provisions of the PFI Convention and of Directive (EU) 2017/1371 (4)) are equally applicable to this reference for a preliminary ruling.
B. Romanian law
1. Legislation on criminal matters
4. In the judgment in Lin I, the provisions of Romanian law (Romanian Constitution, Criminal Code of 1968, as amended in 1996, (5) Criminal Code of 2009, (6) as amended by Decree-Law No 71, of 30 May 2022, (7) Code of Criminal Procedure (8) and Law No 241/2005) (9) applicable to the proceedings are also transcribed.
2. Romanian case-law prior to the judgment in Lin I, concerning limitation in criminal matters (10)
(a) Constitutional Court judgment No 297/2018
5. By judgment No 297/2018, of 26 April 2018, published on 25 June 2018, the Constitutional Court, upholding a plea of unconstitutionality, found that the interruption of the limitation period for criminal liability on account of the performance in the proceedings of any procedural act, as provided for in Article 155(1) of the Criminal Code of 2009, was unconstitutional.
6. According to the Constitutional Court, that provision of the Criminal Code of 2009 lacked foreseeability and infringed the principle of the legality of criminal offences and penalties, since the expression ‘any procedural act’ in that provision also covered acts which are not notified to the suspect or defendant. That circumstance prevented the suspect or defendant from knowing that the limitation period had been interrupted and that a new limitation period for criminal liability had begun to run. (11)
7. The Romanian legislature did not take steps to amend Article 155(1) of the Criminal Code of 2009 in the manner prescribed by the Constitutional Court, resulting in a body of inconsistent case-law of the ordinary courts on the interruption of limitation periods for criminal liability.
(b) Constitutional Court judgment No 358/2022
8. By judgment No 358/2022, of 26 May 2022, published on 9 June 2022, the Constitutional Court, upholding a further plea of unconstitutionality, found that Article 155(1) of the Criminal Code of 2009 was unconstitutional.
9. The Constitutional Court made the following observations:
– The legislature had not taken steps, as required by Article 147(1) of the Constitution, to bring the provisions found to be unconstitutional in judgment No 297/2018 into line with the Constitution and to enact provisions governing cases in which the limitation period for criminal liability is interrupted.
– In the absence of such legislative action, the judicial authorities could not themselves define the grounds for interrupting that limitation period. The application of Article 155(1) of the Criminal Code of 2009 lacked clarity and foreseeability, resulting in inconsistent judicial practice. The existing legal framework did not provide the legislative tools necessary to ensure the foreseeable application of Article 155(1) of the Criminal Code of 2009 following judgment No 297/2018.
– Consequently, positive Romanian law did not provide for any ground for interrupting the limitation period for criminal liability between the date of publication of judgment No 297/2018 and the entry into force of an enactment of the legislature expressly governing the grounds for interrupting that period. (12)
(c) Judgment No 67/2022 of the High Court of Cassation and Justice
10. By judgment No 67/2022, of 25 October 2022 (‘judgment No 67/2022’), published on 28 November 2022, the High Court of Cassation and Justice, made the following findings:
– The provisions on the interruption of limitation periods are rules of substantive criminal law. From the perspective of their temporal application, they are subject to the principle of non-retroactivity of offences and penalties, laid down in Article 3 of the Criminal Code of 2009, with the exception of more lenient provisions, in accordance with the lex mitior principle set out in Article 15(2) of the Romanian Constitution and Article 5 of the Criminal Code of 2009.
– Between 25 June 2018 (the date of publication of judgment No 297/2018, as clarified by judgment No 358/2022) and 30 May 2022, Article 155(1) of the Criminal Code of 2009 did not provide for any ground for interrupting the limitation period for criminal liability.
– A court adjudicating on an extraordinary appeal, based on the consequences of judgments No 297/2018 and No 358/2022, may not re-examine the limitation period for criminal liability if the appellate court has discussed and considered the effect of that ground for discontinuance of the criminal proceedings in the course of proceedings prior to Constitutional Court judgment No 358/2022.
3. Romanian case-law following the judgment in Lin I
11. The High Court of Cassation and Justice, in two expanded judicial formations, (13) has given judgments No 37, of 17 June 2024 (‘judgment No 37/2024’) and No 16, of 16 September 2024 (‘judgment No 16/2024’), in which it examines the impact of the judgment in Lin I on the subject matter of this reference for a preliminary ruling.
12. While I may examine their content in more detail further on, [in essence] those two judgments of the High Court of Cassation and Justice oppose the disapplication by the Romanian courts of the national case-law relating to the application of the lex mitior principle to the interruption of the limitation period for criminal liability.
II. Facts, dispute and questions referred for a preliminary ruling
13. The facts in the criminal proceedings, as they are transcribed in the order for reference, were, essentially, as follows.
14. Between 3 May 2012 and 23 January 2014, in his capacity as director of two commercial companies and for the same criminal purpose, M. G.D. repeatedly and deliberately provided B.V., the co-defendant in the same proceedings, with 12 tax invoices relating to fictitious purchases.
15. B.V. entered the invoices in the accounts of another commercial company, with the aim of reducing its tax base and causing a loss to the tax authorities. The loss caused to the tax authorities amounted to 268 536 Romanian lei (RON) (equivalent to EUR 59 304), of which VAT amounted to RON 163 656 (equivalent to EUR 36 142).
16. On 24 February 2022, the Tribunalul Bihor (Regional Court, Bihor, Romania) convicted M. G.D., on the basis of the acts of which he was accused, of facilitating the offence of tax evasion.
17. On 21 March 2024, the Curtea de Apel Oradea (Court of Appeal, Oradea, Romania) allowed the appeal brought by M. G.D. against the judgment given at first instance.
18. The judgment of 21 March 2024 ordered the discontinuance of the criminal proceedings against M. G.D., after it was found that the limitation period for criminal liability for the continuing offence of complicity in tax evasion, as defined in Article 9(1)(c) of Law No 241/2005, had expired. (14)
19. The public prosecution service lodged an appeal on a point of law against the judgment of 21 March 2024. In that appeal, it submits that the criminal proceedings should not have been discontinued, as the judgment in Lin I (15) was applicable and, therefore, the limitation period for criminal liability had not expired. (16)
20. The referring court observes that, having been given subsequent to the judgment in Lin I, the [judgment of 21 March 2024] applies the national standard relating to the application of the more lenient criminal law, as had been established by the High Court of Cassation and Justice in judgment No 67/2022 and upheld (in judicial formations different from those requesting the preliminary ruling) in judgments No 37/2024 and No 16/2024, which are binding on national courts.
21. Against that background, the Criminal Division of the High Court of Cassation and Justice referred the following questions to the Court of Justice for a preliminary ruling:
‘(1) In interpreting and applying Article 325 [TFEU], Article 1(1)(a) and Articles 2 and 9 of the [PFI] Convention [and] Article 49 of the [Charter of Fundamental Rights of the European Union (‘the Charter’)], in the absence of a provision of domestic law establishing a minimum amount for a case of fraud affecting the financial interests of the European Union to be considered serious, must the provisions of EU law be interpreted as meaning that fraud is considered serious only if it involves an amount exceeding EUR 50 000?
(2) If the answer to the previous question is in the negative, must the provisions of Article 2 and Article 4(2) and (3) TEU, Article 2(2) and Article 325(1) TFEU and Article 2(1) of the [PFI] Convention, as interpreted by the judgment of the Court [in Lin I’], [and] of Article 49(1), Article 52(3) and Article 53 of the Charter be interpreted as meaning that, in criminal proceedings concerning offences relating to [value added tax (VAT)], the national court must disapply the national standard of protection relating to the principle of the retroactive application of the more lenient criminal law (lex mitior), as [established by] the binding case-law of the highest court of that Member State, a standard according to which procedural acts taking place before the national legislative provision governing the causes of interruption of the limitation periods for criminal liability was invalidated do not have the effect of interrupting a limitation period, where:
(a) the disapplication of that national standard is incompatible with the prohibition on applying lex tertia – a principle of constitutional rank;
(b) in application of that national case-law, it can be considered that the general limitation period for criminal liability had expired before [the judgment in Lin I] was delivered;
(c) the disapplication, on the basis of EU law, of that national standard [could result] in a level of protection of the fundamental rights enshrined in the Charter that is not equivalent or comparable to the protection guaranteed by Article 7 of the European Convention on Human Rights [(ECHR)];
(d) national law does not lay down specific criteria to be applied by the court of the Member State to assess, at a preliminary stage, the systemic risk of impunity arising from the application of that national standard in cases of serious fraud affecting the financial interests of the European Union?
III. Procedure before the Court
22. The request for a preliminary ruling was received at the Court on 10 April 2025. It has been dealt with under the expedited procedure, in accordance with Article 105 of the Rules of Procedure of the Court of Justice.
23. Written observations were submitted by the Romanian Government and the European Commission. Both of them took part in the hearing held on 7 October 2025.
IV. Assessment
A. First question referred
24. The referring court wishes to know, in short, whether, in the absence of a provision of domestic law establishing a minimum amount for a case of fraud affecting the financial interests of the European Union to be considered serious, fraud relating to VAT is to be regarded as serious only if it involves an amount exceeding EUR 50 000.
25. The provisions of EU law for which the referring court requires an interpretation are Article 325 TFEU and Article 1(1) and Articles 2 and 9 of the PFI Convention, in light of the principle of the legality of criminal offences and penalties, enshrined in Article 49 of the Charter.
1. Article 325 TFEU
26. Article 325(1) TFEU requires Member States to counter fraud and any other illegal activities affecting the financial interests of the European Union through effective deterrent measures. (17) That provision does not limit such measures to serious fraud, but rather simply refers to fraud, without any qualifying adjectives, affecting the financial interests of the European Union.
27. Article 325 TFEU, I reiterate, does not mention the concept of serious fraud, which does, however, appear in the PFI Convention (Article 2).
28. The interpretation of Article 325 TFEU, then, does not provide a specific response to the first question of the referring court.
2. PFI Convention
29. Article 1 of the PFI Convention defines, for the purposes of that convention, the conduct that constitutes fraud affecting the financial interests of the European Union.
30. Article 2 of the PFI Convention obliges Member States to take the necessary measures to ensure that the conduct referred to in Article 1 is punishable by effective, proportionate and dissuasive criminal penalties, including, at least in cases of serious fraud, penalties involving deprivation of liberty which can give rise to extradition.
31. According to that same provision (Article 2(1) and (2) of the PFI Convention):
‘1. … serious fraud shall be considered to be fraud involving a minimum amount to be set in each Member State. This minimum amount may not be set at a sum exceeding [EUR] 50 000.
2. However in cases of minor fraud involving a total amount of less than [EUR] 4 000 and not involving particularly serious circumstances under its laws, a Member State may provide for penalties of a different type from those laid down in paragraph 1.’
32. The Court has held that Article 2(1) of the PFI Convention is formulated in clear and precise terms and is not subject to any conditions, and it therefore has direct effect. (18)
33. Thus, the distinction between the categories of fraud affecting the financial interests of the European Union is inherent in the PFI Convention. According to Article 2 of that convention:
– Cases of fraud involving an amount of less than EUR 4 000 and not involving particularly serious circumstances are regarded as minor fraud. The Member States may punish such cases of minor fraud with administrative penalties, although there is nothing to prevent them from applying criminal penalties.
– Cases of fraud which are not minor, but which are not necessarily serious either, are those involving an amount greater than EUR 4 000 and where there are particular circumstances. The Member States are to punish them with effective and dissuasive criminal penalties.
– Cases of serious fraud are those involving an amount greater than EUR 4 000, where there are particularly serious circumstances and where the harm caused to the financial interests of the European Union reaches ‘a minimum amount to be set in each Member State’. That minimum amount may not be set at a sum exceeding EUR 50 000. The Member States are to punish cases of serious fraud with effective and dissuasive criminal penalties, which must include penalties involving deprivation of liberty which can give rise to extradition.
34. The PFI Convention, according to Article 9 of that convention, does not prevent Member States from adopting internal legal provisions which punish fraud affecting the financial interests of the European Union more severely.
35. Member States may, then, decide that all categories of fraud should be punishable by penalties involving the deprivation of liberty. They may also set an amount of less than EUR 50 000 [as the threshold] for classifying fraud affecting the financial interests of the European Union as serious, or they may simply not set a threshold at all. (19)
36. The enactment of criminal penalties to protect the financial interests of the European Union is a matter in which there is shared competence between the European Union and the Member States, within the meaning of Article 4(2) TFEU. (20)
37. Certainly, some of the Court’s case-law has referred to serious fraud affecting the financial interests of the European Union, in order to emphasise the primacy of EU law over national provisions that made it difficult to punish. (21) In other rulings, however, it has mentioned only fraud, without adding any qualifying adjectives. (22)
38. In my opinion, those differences are not significant and are due to the type and scale of the fraudulent activities at issue in the proceedings that gave rise to the questions referred.
39. It follows from the foregoing that EU law grants the Member States the freedom to define the concept of serious fraud, with the requirement that, if they define it on the basis of a quantitative threshold, the minimum amount set by each Member State may not exceed EUR 50 000.
3. Romanian legislation
40. Romania has enacted domestic legislation which, according to the information appearing in the record, has taken advantage of the possibility afforded by the PFI Convention to make punishment of fraud affecting the financial interests of the European Union more severe.
41. Article 9(1) of Law No 241/2005, as in force at 23 January 2014, lists the categories of acts constituting tax evasion offences punishable with a penalty involving deprivation of liberty, irrespective of the total amount of the loss caused.
42. Article 9(2) and (3) of Law No 241/2005 sets minimum thresholds for the losses caused, but only for the purpose of increasing the minimum and maximum limits of penalties involving deprivation of liberty.
43. The legislative choice made by Romania seems to me to be compatible with Article 325 TFEU and with the PFI Convention.
44. In the absence of a national provision establishing a minimum threshold in respect of the loss caused, it is for the national courts to determine whether or not there are circumstances which, in accordance with the ordinary national legislation, make the acts of fraud committed serious in nature. Such circumstances may include the continuing nature of the offence, (23) whether it is a repeat offence, the level of organisation of the fraud, membership of an association of wrongdoers or a criminal organisation, and the total amount involved in the fraud.
4. Classification of the fraud in the main proceedings
45. In this case, the total loss caused to the tax authorities was RON 268 536 (equivalent to EUR 59 304), of which VAT amounted to RON 163 656 (equivalent to EUR 36 142).
46. Given their nature and effects, the facts tried (24) could, in principle, constitute fraud within the meaning of Article 325 TFEU and Article 1(1)(b) of the PFI Convention. (25)
47. The concept of ‘fraud’ as defined in the PFI Convention (26) covers revenue derived from applying a uniform rate to the harmonised VAT assessment bases determined according to EU rules. It is irrelevant that the VAT is not collected directly for the account of the European Union. (27) Moreover, the total amount involved in the fraud must be taken into account, given the difficulty of determining, precisely, its impact on the budget of the European Union and on the budget of the Member State. (28)
48. While it is a matter for the referring court to determine, everything appears to indicate that:
– The total amount of the damage (that is, not only that caused to the financial interests of the European Union) exceeds the threshold of EUR 50 000, established by [Article 2(1)] of the PFI Convention for the purpose of classifying fraud as serious.
– The fraud was organised and it took place over a period of nearly two years.
– An offence of that kind was, at the material time, punishable by the applicable Romanian law with a custodial sentence.
49. From the perspective of EU law, then, there is nothing to prevent the referring court, on the basis of the above circumstances and any others it may assess in accordance with domestic law (whether it is a repeat offence, membership of a criminal organisation, and so on), classifying the offence as serious fraud affecting the financial interests of the European Union.
5. Interim conclusion
50. In summary, Article 325(1) TFEU and Articles 1, 2 and 9 of the PFI Convention must be interpreted as meaning that the Member States may classify fraud affecting the financial interests of the European Union as serious even when the amount involved does not exceed EUR 50 000.
B. Second question referred
51. The formulation of the second question referred is complex.
52. Formally, the referring court requests the interpretation of Article 2 and Article 4(2) and (3) TEU, Article 2(2) and Article 325(1) TFEU, Article 2(1) of the PFI Convention and Article 49, Article 52(3) and Article 53 of the Charter.
53. The referring court wishes to know whether the abovementioned provisions must be interpreted ‘… as meaning that, in criminal proceedings concerning offences relating to [VAT], the national court must disapply the national standard of protection relating to the principle of the retroactive application of the more lenient criminal law (lex mitior), as [established by] the binding case-law of the highest court of [a] Member State’.
54. The response to the second question requires, above all, consideration of the situation created in Romania by the judgment in Lin I. That situation is examined in part 1 of this section,
– I shall refer to the Opinion I delivered in the judgment in Lin I (part 2);
– I shall address the difficulties arising in applying the judgment in Lin I to offences for which the limitation period has expired, with or without a final judgment (part 3);
– I shall address the problems arising from the application of the national principle prohibiting the creation of a lex tertia (part 4); and
– finally, I shall examine the foreseeability and precision of the criterion which, according to the judgment in Lin I, allows the national standard of protection to be disapplied (part 5).
1. Situation created in Romania by the judgment in Lin I
55. The judgment in Lin I was given on 24 July 2023. In it, as I have already mentioned, the Court held that:
– The national standard of protection relating to the foreseeability of criminal law (resulting from judgment No 297/2018 of the Constitutional Court) and the national standard of protection relating to the principle of the retroactive application of more lenient criminal law (resulting from judgment No 67/2022 of the High Court of Cassation and Justice) could create a systemic risk of impunity to the benefit of those committing acts of serious fraud affecting the financial interests of the European Union.
– Both standards are, in principle, incompatible with Article 325(1) TFEU and Articles 1 and 2 of the PFI Convention. They constituted guarantees that went beyond the rights protected by Article 49 of the Charter and, consequently, Article 7 ECHR. Nevertheless, the national courts are not required to disapply the judgments of the Constitutional Court relating to the first standard.
56. Indeed, the judgment in Lin I, following the precedent set by the judgment in M.A.S. and M.B., accepted an external limit on the primacy of EU law: the Romanian courts were not required to disapply the national case-law established by judgments No 297/2018 and No 358/2022 of the Constitutional Court, notwithstanding the existence of a systemic risk of offences of serious fraud affecting the financial interests of the European Union going unpunished, in so far as those judgments are based on the principle that offences and penalties must be defined by law, which is protected under national law, as to its requirements concerning the foreseeability and precision of criminal law.
57. However, the judgment in Lin I did not accept that external limit on the primacy of Article 325(1) TFEU and Articles 1 and 2 of the PFI Convention in respect of the national standard for the lex mitior principle. [The Court] held that the courts of a 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.
58. The case-law established in Lin I was confirmed by the Court in two orders of 9 January 2024. (29)
59. The High Court of Cassation and Justice (at least, in some of its formations) does not appear to accept the case-law of Lin I, to the extent that it concerns the disapplication of the national standard relating to the retroactive application of the more lenient criminal law That reluctance has, fundamentally, been expressed in its judgments No 37/2024 and No 16/2024, the content of which I shall examine next.
(a) Judgment No 37/2024 of the High Court of Cassation and Justice
60. In that judgment, the High Court of Cassation and Justice holds that limitation periods in respect of criminal liability – inseparable from their interruption – are, in Romanian law, an institution forming part of substantive law and are subject, inter alia, to the lex mitior principle. Starting from that premiss, it concludes that:
– The national standard of protection relating to the retroactive application of the more lenient criminal law – including in relation to the interruption of the limitation period for criminal liability – gives concrete expression to the principle of the legality of criminal offences and penalties, as governed by Article 7 ECHR and Article 49 of the Charter, and guarantees more extensive protection by requiring its application as a matter of priority.
– The obligation imposed on national courts by the judgment in Lin I ensures a level of protection which is neither equivalent nor comparable to that afforded by Article 7 ECHR. When assessing the compatibility of national legal rules with EU law in the area of the protection of the financial interests of the European Union, the Court took into account the information and explanations provided by the referring court, which inadequately and, in some respects, incorrectly reflected the legal situation resulting from the national judgments relating to the principle of the legality of criminal offences and penalties and the effects of the judgments of the Constitutional Court.
– The disapplication of the case-law established in judgment No 67/2022 would be contrary to the fundamental principle of the legality of criminal offences and penalties, as reflected in the national legal system, and also to legal certainty, by creating the conditions for the differentiated application of the legal treatment of the concurrence of laws over time, depending on the type of offence, based on whether an offence affects the financial interests of the European Union or is another type of offence.
(b) Judgment No 16/2024 of the High Court of Cassation and Justice
61. In that judgment, the High Court of Cassation and Justice holds that:
– Procedural acts taking place before 25 June 2018 (date of publication in the Monitorul Oficial al României of judgment No 297/2018 of the Constitutional Court) have the effect of interrupting the limitation period for criminal liability, regardless of the amount of the damage and without it being necessary to assess in concrete terms a systemic risk of impunity, in all cases involving offences against the financial interests of the European Union and corruption offences, only if the more lenient criminal law determined overall in accordance with judgment No 265 of 6 May 2014 of the Constitutional Court (‘judgment No 265/2014’) is the Criminal Code or special criminal legislation, in the version in force between 1 February 2014 and 24 June 2018. (30)
– In accordance with the case-law of the European Court of Human Rights (ECtHR), it is for the courts to determine and apply the provisions of the ECHR and the relevant case-law of the European Court of Human Rights relating to the interpretation of inalienable rights, where, in relation to those rights, there is a disparity between the standard of protection conferred by the Charter, as interpreted by the Court of Justice, on the one hand, and that conferred by the European Court of Human Rights, on the other, in the sense that the former is inferior to the latter.
– The principles of the legality of criminal offences, the retroactive application of the more lenient criminal law and the non-retroactivity of a more severe criminal law fall within the category of inalienable rights, which are inherent in the constitutional traditions of the Member States.
– As regards how the more lenient criminal law is to be applied in national law, the Constitutional Court held (judgment No 265/2014) that the more lenient criminal law must be applied as a whole, which implies the choice – among successive laws and applying the criterion of specific assessment – of a single applicable criminal law, namely, the one that is most lenient.
– Only by that means is it possible to avoid imposing differential legal treatment in the event of concurrent offences (for example, where there are found to be grounds for interruption of the limitation period for criminal liability in relation to VAT fraud, but, at the same time, the absence of such grounds in relation to corporation tax fraud, which has no connection with the EU budget), or the creation of a double standard in relation to fundamental rights, resulting in the imposition of an unlawful penalty.
– Consequently, even after the judgment in Lin I, in order to determine which procedural acts have the effect of interrupting the limitation period before 25 June 2018, Romanian courts must determine the more lenient criminal law overall and avoid applying a lex tertia.
– As an institution of substantive criminal law, limitation periods in respect of criminal liability constitute one of the criteria to be taken into account in applying the more lenient criminal law overall and must be assessed in the context of the mechanism created by judgment No 265/2014.
– Given that, in the period between 25 June 2018 and 30 May 2022, the limitation periods for criminal liability ran without any possibility of interruption, disapplying the case-law of the Constitutional Court would – by virtue of a subsequent more severe criminal law – have the effect of reactivating criminal liability after the expiry of the applicable limitation periods, thereby infringing Article 7(1) ECHR.
2. Opinion delivered in Lin I (31)
62. It would not be appropriate for me to restate, at length, those views set out in the Opinion in Lin I which the Court did not agree with.
63. Interpreted as proposed in that Opinion, Article 49 of the Charter would, by way of a limit to the primacy of EU law, have allowed the Romanian courts to apply, as the more lenient criminal law, that determined by the judgments of the Constitutional Court and the High Court of Cassation and Justice, concerning the interruption of limitation periods for criminal liability.
64. The same outcome would have been achieved by extending the case-law of the judgment in M.A.S. and M.B. to Lin I, that is, by giving preference to the application of the national standard of protection of the lex mitior principle (a higher standard than that of Article 49 of the Charter) over Article 325 TFEU, with the aim of maximising the protection of fundamental rights as opposed to the safeguarding of the financial interests of the European Union in cases of serious fraud.
65. The Court now has the opportunity (which, in my view, it should take) to reconsider the part of the judgment in Lin I relating to the disapplication of the higher national standard of protection of the lex mitior principle.
66. The loyalty owed by Advocates General to the Court obliges them to point out what they consider to be weaknesses in a judgment that has already been given, so that it may either be explained better (even if that is in a manner at odds with their Opinion) and a judicial response given which is, as far as possible, unassailable, (32) or it may be qualified (or even rectified), as in fact occurred with the judgment in M.A.S. and M.B. in relation to the prior judgment in Taricco, in the context of the dialogue maintained with the highest national courts.
67. From that perspective, I believe that there are two points in particular in the judgment in Lin I that need further explanation.
68. The first concerns the statement appearing in paragraph 108 of the judgment in Lin I: ‘… it follows from the Court’s case-law that the rules governing limitation periods in criminal matters do not fall within the scope of Article 49(1) of the Charter (see, to that effect, [the judgment in Taricco], paragraphs 54 to 57).’
69. Now, it cannot be inferred categorically from those paragraphs of the judgment in Taricco that the rules on limitation periods in criminal matters are excluded from the scope of Article 49(1) of the Charter. If the Court wishes to maintain that exclusion, it should find a stronger basis.
70. The second point which, in my opinion, requires either further explanation, or, preferably, rectification, concerns the ‘increase’ in the systemic risk of impunity for serious offences against the financial interests of the European Union, as a key argument for rejecting the national standard relating to the retroactive application of the more lenient criminal law. For the reasons I shall set out later, that argument presents a significant number of difficulties. (33)
71. In any event, as Advocate General, I have to consider the possibility that the Court will maintain the case-law established in the judgment in Lin I and examine the obstacles encountered by the referring court in applying it in Romania.
3. Application of the judgment in Lin I to offences for which the limitation period has expired
72. In point (b) of the second question referred, the referring court takes as its premiss that ‘in application of [the] national case-law … the general limitation period for criminal liability had expired before [the judgment in Lin I] was delivered’.
73. If the expiry of the limitation period for criminal liability had, in accordance with judgment No 67/2022 of the High Court of Cassation and Justice, occurred prior to the judgment in Lin I, could the latter judgment have a bearing on criminal proceedings concerning offences for which the limitation period had already expired? To answer that question, it is necessary to establish whether the expiry of the limitation period for criminal liability has been declared, or not, in a final judgment having the force of res judicata.
(a) Final judgments having the force of res judicata
74. It is settled case-law of the Court that respect for the right to effective judicial protection does not mean that Member States are obliged to provide for extraordinary remedies which allow, following a preliminary ruling on interpretation, the reopening of proceedings closed by a final judgment.
75. EU law does not require a judicial body automatically to go back on a judgment having the authority of res judicata in order to take into account the interpretation of a relevant provision of EU law adopted by the Court after delivery of that judgment. (34)
76. The principle of res judicata ensures both stability of the law and legal relations and the sound administration of justice. It is for that reason that decisions of courts or tribunals which have become definitive after all rights of appeal have been exhausted or after expiry of the time limits provided for in that connection can no longer be called into question. (35)
77. Accordingly, EU law does not require a national court to disapply domestic rules of procedure conferring finality on a judgment, even if to do so would make it possible to remedy a domestic situation which is incompatible with EU law. (36)
78. In the absence of EU legislation in this area, the rules implementing the principle of res judicata are a matter for the national legal order, in accordance with the procedural autonomy of the Member States, but must be consistent with the principles of equivalence and effectiveness. (37)
79. In accordance with the above case-law, while it is for the referring court to make determinations regarding its domestic law, it is my understanding that the application of the judgment in Lin I cannot entail the setting aside of final judicial decisions. That legal impossibility extends to final judgments given (prior to the judgment in Lin I) applying the higher national standard of protection of the lex mitior principle, even if that gives rise to serious offences against the financial interests of the European Union going unpunished.
80. I cannot see, in this case, any of the exceptional circumstances in which the case-law of the Court of Justice puts the primacy of the EU rules before the force of res judicata of national final judgments. The primacy of the EU rules must, therefore, give way to the obligation to respect the force of res judicata of national final judgments. (38)
(b) Non-final judgments
81. In the present case, the expiry of the limitation period for criminal liability is established in a judgment on appeal, against which a further appeal on a point of law has been brought.
82. The Court of Justice has given an autonomous interpretation of the concept of final judgment used in the last sentence of Article 49(1) of the Charter. (39) A conviction, it held, cannot be regarded as final where it may be the subject of an ordinary appeal, that is to say, any appeal which forms part of the normal course of an action and which, as such, constitutes a procedural development which any party must reasonably expect. (40)
83. By definition, a judgment in criminal matters is not final where a further appeal on a point of law is admissible and such an appeal has been lodged within the relevant time limit. In principle, then, the High Court of Cassation and Justice could apply the judgment in Lin I without being obliged to respect the force of res judicata, which, I reiterate the judgment given on appeal lacks.
84. However, the question arises as to what happens where the tax evasion took place long before the judgment in Lin I (in this case, between 2012 and 2014) and a court of appeal declared, in 2024, that the limitation period for criminal liability had expired because a period of eight years had elapsed, calculated without interruption, applying the national standard of protection of the lex mitior principle. In such a situation, does the judgment in Lin I require criminal liability to be reactivated?
85. My response to that question is in the negative, as I shall now explain.
86. It could be argued that Article 325 TFEU and Articles 1 and 2 of the PFI Convention have, since their entry into force (respectively, 1 December 2009 and 1 January 2008) been binding on Romania and that the judgment in Lin I interprets those provisions with ex tunc effect.
87. The Romanian standard of protection of the lex mitior principle resulting from judgment No 67/2022 of the High Court of Cassation and Justice would, then, be incompatible with the rules of EU law from the moment those rules (which have direct effect) entered into force for Romania. The primacy of EU law would result in criminal liability for serious fraud relating to VAT subsisting where, applying the Romanian standard for the lex mitior principle prior to the judgment in Lin I, the relevant limitation period had expired without that (expiry) having been declared in a final judgment.
88. I believe, however, that the case-law of the European Court of Human Rights – which, in accordance with Article 52(3) of the Charter, is applicable in the context of Article 49 of the Charter – requires such an interpretation to be ruled out.
89. According to the European Court of Human Rights:
– Where criminal responsibility has been revived after the expiry of a limitation period, it would be deemed incompatible with the overarching principles of legality (nullum crimen, nulla poena sine lege) and foreseeability enshrined in Article 7 ECHR.
– Where a criminal offence under domestic law is subject to a statute of limitation, and becomes time-barred so as to exclude criminal responsibility, Article 7 ECHR would preclude the revival of a prosecution in respect of such an offence on account of the absence of a valid legal basis. To hold otherwise would be tantamount to accepting ‘the retrospective application of the criminal law to an accused’s disadvantage’. (41)
– The ECHR does not require States Parties not to apply an applicable limitation period and thereby effectively to revive an expired limitation period. There are situations where it is impossible to reopen criminal proceedings and one such situation is where the criminal proceedings became time-barred on account of the statute of limitation set out in the national legislation. The reopening of such criminal proceedings may raise issues concerning legal certainty and may thus have a bearing on a defendant’s rights under Article 7 ECHR. (42)
– Where no limitation period is to apply to an offence, there must be a sufficiently clear and foreseeable legal basis, (43) whether that is in national law or international law. (44)
90. The application of the judgment in Lin I leads, in reality, to the ‘reopening’ of limitation periods which, according to Romanian law as interpreted by its highest courts, had expired. Similarly, it reactivates the criminal prosecution of VAT fraud committed before the judgment in Lin I was given and for which the limitation period had already expired.
91. Notwithstanding the fact that, like all judgments of the Court of Justice, the judgment in Lin I has to be complied with, it can hardly be regarded as a sufficiently clear and foreseeable legal basis (45) for disapplying the rules on limitation periods for criminal liability laid down in judgment No 67/2022 of the High Court of Cassation and Justice. (46)
92. Various reasons allow me to reach this interim conclusion, given that the judgment in Lin I:
– Does not declare that no limitation period is applicable to offences of serious VAT fraud affecting the financial interests of the European Union. (47)
– Has introduced the impossibility of relying on the Romanian standard of protection of the lex mitior principle (higher than that of EU law) in terms that require greater clarity. It has done so, moreover, based on a premiss which, according to the national courts, does not correctly reflect domestic law, since the national standard of protection relating to the principle of the retroactive application of the more lenient criminal law (lex mitior), even with regard to the interruption of limitation periods for liability, is an inseparable expression of the principle of the legality of criminal offences and penalties.
– Has given rise to divergent interpretations, as highlighted by judgments No 37/2024 and No 16/2024 of the High Court of Cassation and Justice, and also this request for a preliminary ruling. The reference for a preliminary ruling reveals that, even within Romania’s highest court, significant disagreements remain regarding the application of the judgment in Lin I, depending on which judicial formation of that court is called on to adjudicate. (48)
– Moves away from the approach established in the judgment in M.A.S. and M.B., in relation to the rules on limitation periods in criminal matters in Italy. The disapplication of the Romanian standard relating to the lex mitior principle makes it possible to punish certain persons with criminal penalties that they would have avoided if the national standard had been applied, just as happened in Italy. (49)
– Acknowledges (as was logical in light of the judgment in M.A.S. and M.B.) that the external limit on the primacy of EU law applies in respect of the principle of the legality of criminal offences and penalties, but, at the same time, rejects it in respect of the lex mitior principle. The latter principle, however, according to the High Court of Cassation and Justice, forms an inseparable part of the principle of the legality of criminal offences and penalties in Romania.
– After determining that the application of both national standards gave rise to a systemic risk of impunity, states that the second (relating to the lex mitior principle) led to that risk being more prolonged. (50) However, that assessment is not borne out by the available statistics. For the High Court of Cassation and Justice, the influence of the principle of the legality of criminal offences and penalties is identical in the case of both national standards and so is the risk of impunity.
93. The lack of foreseeability of the judgment in Lin I, in relation to the application of the national standard for the lex mitior principle to the interruption of limitation periods in criminal matters, is even more noticeable given that it rests on the postulate that the rules relating to limitation periods are to be regarded as procedural law and not as substantive criminal law. That postulate, however, is not derived from EU law (51) and, moreover, in the case of Romania, is contrary to the settled case-law of that country’s highest courts.
94. At the material time, the limitation rules applicable to VAT-related criminal proceedings had not been harmonised by the EU legislature. (52) Accordingly, Member States were free to provide that, in their legal systems, the treatment of limitation periods for criminal liability (including as regards their interruption) was to fall under substantive criminal law. That, I reiterate, is the position of Romania’s highest courts.
95. The choice by the Court to attribute a procedural nature to the rules on limitation periods for criminal liability (53) was, therefore, at odds with the judgment in Taricco and had to be qualified in the judgment in M.A.S. and M.B. The latter judgment, as I have already set out, accepted a limitation on the primacy of EU law, after accepting the substantive nature of the rules on limitation periods in Italian law. (54)
96. In other cases, the Court has itself acknowledged the substantive and not procedural nature of the limitation periods established by the rules of EU law. Thus, in the judgment in Volvo and DAF Trucks, the Court held that ‘… unlike procedural time limits, the limitation period, by resulting in the extinction of the legal action, is a matter of substantive law since it affects the enforceability of a subjective right which the person concerned can no longer effectively assert before the courts’. (55) For that reason, it acknowledged the substantive and not the procedural nature of Article 10 (‘Limitation periods’) of Directive 2014/104. (56)
97. In my view, then, the rules of EU law referred to in the second question referred:
– Do not require final judgments in criminal matters, with the force of res judicata, to be reviewed, if, in such judgments, on the basis of the national standard of protection relating to the more lenient criminal law, it has been determined that the limitation period for criminal liability had expired before the judgment in Lin I was given.
– Do not preclude the application of the national standard of protection relating to the more lenient criminal law to offences committed before the judgment in Lin I was given, inasmuch as that judgment does not constitute a clear and foreseeable legal basis for reviving criminal liability where the Romanian courts have declared the limitation periods for the relevant offences to have expired, even where that declaration was not made in a final judgment.
4. Prohibition on applying a lex tertia
98. The referring court states (in point (a) of the second question referred) that ‘the prohibition on applying lex tertia [is] a principle of constitutional rank’.
99. Based on that statement, the referring court asks whether it is appropriate to disapply the national standard of protection relating to the lex mitior principle, when its disapplication is incompatible with the constitutional principle prohibiting a lex tertia. (57)
100. In accordance with judgment No 265/2014 of the Constitutional Court, the retroactive application of the more lenient criminal law must be done using the overall comparison method and not the differential comparison method. Thus, where successive legal regimes are in force at the same time:
– The law which, overall, ensures a more favourable situation for the defendant must be chosen and applied.
– However, the favourable provisions of the different laws in force cannot be combined to create, by judicial means, a lex tertia, which would imply conferring on the courts the ability to make criminal rules, contrary to Article 61 of the Romanian Constitution.
– The determination of the more lenient criminal law must take into account a certain number of elements, such as the nature and amount of the penalties, the requirements for arraignment, the bases for excluding criminal liability, the influence of aggravating, mitigating or exculpatory factors, the rules on participation, attempted offences, repeated offences and so on. (58)
101. If I have understood correctly, the prohibition on creating a lex tertia prevents the national courts, when faced with a succession of different legal regimes, from mixing elements from one of them (for example, those relating to the definition of offences and penalties) with elements from another (for example, the rules governing the limitation periods for criminal liability). The courts are thereby prevented from ‘constructing’ the more lenient criminal law.
102. The referring court, in answer to the Court’s questions regarding that prohibition, states that, if the judgment in Lin I were applied, the more lenient criminal law would be the result of combining various provisions of the different laws in force. At the hearing, the Romanian Government confirmed that statement.
103. Thus, in respect of the interruption of the limitation period in the case of serious fraud relating to VAT, committed on 1 January 2016, which is subject to a limitation period of 10 years in Romanian law, the following would apply, successively:
– The rules laid down in Article 155(1) of the Criminal Code of 2009, in force until judgment No 297/2018 of the Constitutional Court declared it invalid. Under those rules, any procedural act interrupted the limitation period, whether it was notified to the accused or not.
– The rules resulting from the case-law of the Constitutional Court and the High Court of Cassation and Justice, applicable from 25 June 2018 to 30 May 2022. According to those rules, there were no grounds in Romanian law for interrupting the limitation period for criminal liability. The absence of those grounds for interruption extends, retroactively, to acts committed during the period prior to 2018, as the more lenient criminal rule.
– The rules resulting from the amendment of Article 155(1) of the Criminal Code of 2009 by Decree-Law No 71/2022, applicable from 30 May 2022. Under those rules, procedural acts notified to the accused interrupt the limitation period.
104. In this example, different regimes for the interruption of the limitation period for criminal liability would apply to serious fraud relating to VAT, which, if the criterion established in the judgment in Lin I were followed, would have to be combined. Conversely, the Romanian standard of protection of the lex mitior principle ensures that only the most favourable regime for the interruption of the limitation period is applied, including to all procedural acts occurring between 1 January 2016 and 30 May 2022.
105. The application of the judgment in Lin I in determining the more lenient criminal law would, therefore, create a lex tertia. That would not be the case with the solution adopted by the High Court of Cassation and Justice in its judgments No 67/2022, No 16/2024 and No 37/2024.
106. In my opinion, even if the consequence of applying the judgment in Lin I were as I have just described, the principle prohibiting the application of a lex tertia in order to identify the lex mitior does not differ significantly from the higher national standard of protection which the judgment in Lin I has already examined.
107. If, in the judgment in Lin I, the Court did not follow the precedent established in the judgment in M.A.S. and M.B. and rejected the notion of the Romanian courts applying their higher standard of protection, as regards the lex mitior principle, I cannot see any reason to change that strand of case-law in order to respect the constitutional requirement not to create a lex tertia.
108. Indeed, the prohibition on creating a lex tertia is really just another of the national rules (albeit one of constitutional rank) which, in Romania, permeate the implementation of the principle of retroactive application of the criminal laws that are most favourable to the defendant. The judgment in Lin I rejects that principle, as a whole, by declaring that the Romanian courts are required to disapply the relevant national standard of protection, in order avoid the risk of fraud affecting the financial interests of the European Union going unpunished.
109. With regard to the difference in treatment between the rules on limitation periods applicable (in accordance with the judgment in Lin I) to fraud affecting the financial interests of the European Union and those in respect of other offences, it certainly exists. It implies that different rules relating to the interruption of limitation periods for criminal liability would apply to a defendant, depending on whether the offences concerned related to VAT or to corporation tax, for example.
110. However, that difference:
– On the one hand, does not imply the application of a lex tertia in respect of the lex mitior principle, but rather is derived from the scope of EU law, in particular Article 325 TFEU.
– On the other hand, implies that cases of fraud relating to taxes to which Article 325 TFEU does not apply would benefit from the Romanian standard of protection of the principle of the more lenient criminal law.
5. Systemic risk of impunity: extent and uncertainty
111. The referring court starts from the premiss that national law does not lay down specific criteria to enable a court to assess the systemic risk of impunity referred to by the judgment in Lin I (point (d) of the second question referred).
112. In the judgment in Lin I, the Court held that the legal situation resulting from judgments No 297/2018 and No 358/2022 of the Constitutional Court and judgment No 297/2022 of the 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.’ (59)
113. Such a situation, it added, ‘… entails the inherent risk that numerous cases of serious fraud affecting the financial interests of the European Union will go unpunished because of the expiry of that limitation period, particularly in cases whose complexity calls for a longer investigation …’ (60)
114. Clearly, in the judgment in Lin I, the Court determined for itself that the application of the case-law of the highest national courts implied a systemic risk of impunity for those committing acts of serious fraud, to the detriment of the financial interests of the European Union. Therefore, that assessment must no longer be made by the Romanian courts when they apply the judgment in Lin I, but rather they must take it as a given.
115. Further problems are posed by the distinction made by the Court between: (a) the systemic risk of impunity resulting from the application of Romanian case-law relating to the foreseeability of criminal law; and (b) that same risk in relation to the lex mitior principle. (61)
116. The Court’s reasoning regarding that distinction (62) leads to the conclusion that, only in the second case (that is, if the national court adheres to the national standard for the lex mitior principle in relation to procedural acts occurring before 25 June 2018) are the primacy, unity and effectiveness of EU law compromised.
117. In other words, the judgment in Lin I tolerates the systemic risk of impunity for acts of serious fraud against the financial interests of the European Union committed between 25 June 2018 and 30 May 2022, where that is the result of applying the national standard of protection relating to the foreseeability of criminal law, but it does not accept that risk when it extends to cases prior to 25 June 2018 in which the national standard of protection of the lex mitior principle (another component of the same principle of the legality of criminal offences and penalties) is applied.
118. In my view, the judgment in Lin I does not offer sufficient arguments to show why the systemic risk of impunity differs according to whether one national standard or another is applied.
119. First, the national standard of protection of the lex mitior principle has a limited impact with regard to the elimination of criminal liability. It does not entail the decriminalisation of offences of serious fraud affecting the financial interests of the European Union. It is limited to avoiding the interruption of limitation periods in criminal law having effect between 1 February 2014 and 25 June 2018, extending backwards the regime applicable between 25 June 2018 and 30 May 2022, which was validated by the judgment in Lin I.
120. In cases such as the present one, the judgment given on appeal, applying the national standard relating to the lex mitior principle, has declared the criminal liability of one defendant (an accomplice in the offence, with a limitation period of eight years) to have been extinguished, but not that of another (the perpetrator of the offence, with a limitation period of 10 years). The national standard for the lex mitior principle merely extends, retroactively, the non-existence of procedural acts capable of interrupting the relevant limitation period; it does not, I reiterate, decriminalise acts of serious fraud relating to VAT, nor does it shorten the limitation period for prosecuting them.
121. Second, the increase in the risk of impunity on account of the application of the national standard of protection of the lex mitior principle, relative to the application of the national standard relating to the principle of [the legality of criminal offences and penalties] seems to be more of a conjecture than an established fact, since:
– The number of offenders who have benefited from the non-existence of interruptions of the limitation periods for criminal liability between 25 June 2018 and 30 May 2022, which the judgment in Lin I tolerates in the interests of protecting the foreseeability of criminal law, is not known for certain.
– The real impact of applying the lex mitior principle to the interruption of limitation periods for criminal liability in relation to cases prior to 25 June 2018 – which, according to the judgment in Lin I, implies a risk to the unity, primacy and effectiveness of EU law – is not known either.
122. The data provided at the hearing by the Romanian Government, while they are not broken down exhaustively, suggest that the number of criminal cases involving tax evasion discontinued in the period from 2014 to 2025, on the basis of the expiry of the relevant limitation period for criminal liability on account of the application of the more lenient law, is very small. They do not support the fear of a systemic risk of impunity for conduct of that kind.
123. In the judgment in M.A.S. and M.B., the Court ruled on the alteration of limitation periods for criminal liability in Italy. It held that the national court has to ascertain whether the disapplication of the national rules in that regard, on account of the effect of a judgment of the Court, ‘leads to a situation of uncertainty in the [national] legal system as regards the determination of the applicable limitation rules, which would be in breach of the principle that the applicable law must be precise.’ (63)
124. Thus, in view of the uncertainty created by a judgment of the Court of Justice, it was accepted that the national court was not obliged to disapply the national provisions at issue in that case. That same case-law may be extrapolated to the judgment in Lin I, with regard to cases of fraud detrimental to the financial interests of the European Union, occurring in Romania prior to 25 June 2018.
125. Indeed, the situation created by the judgment in Lin I generates uncertainty for the Romanian courts (when applying the national standard of protection of the lex mitior principle) comparable to that caused in Italy by the application of the judgment in Taricco. Accordingly, for that reason as well, it is reasonable to accept an external limit on the primacy of EU law, just as it was accepted by the Court in the judgment in M.A.S. and M.B.
V. Conclusion
126. In light of the foregoing considerations, I suggest that the first question of the Criminal Division of the Înalta Curte de Casație și Justiție (High Court of Cassation and Justice, Romania) should be answered as follows:
Article 325(1) TFEU and Articles 1, 2 and 9 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,
are to be interpreted as meaning that the Member States may classify fraud against the financial interests of the European Union as serious when the amount involved does not exceed EUR 50 000.
127. I also suggest to the Court that, in view of the decisions of the national courts of last instance, it should reconsider the pronouncements of the judgment of 24 July 2023, Lin (C‑107/23 PPU, EU:C:2023:606), with regard to the obligation to disapply the national standard of protection relating to the principle of the retroactive application of the more lenient criminal law and declare that:
Article 325(1) TFEU and Articles 1, 2 and 9 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,
do not require final judgments in criminal matters, with the force of res judicata, to be reviewed, if, in such judgments, on the basis of the national standard of protection relating to the more lenient criminal law, it has been determined that the limitation period for criminal liability had expired before the judgment in Lin was given;
do not preclude the application of the national standard of protection relating to the more lenient criminal law to offences committed before the judgment in Lin was given, inasmuch as that judgment does not constitute a clear and foreseeable legal basis for reviving criminal liability where the Romanian courts have declared the limitation periods for the relevant offences to have expired, even where that declaration was not made in a final judgment.
128. If the Court maintains the pronouncements of the judgment in Lin in their entirety, the answer to the second question of the Criminal Division of the Înalta Curte de Casație și Justiție (High Court of Cassation and Justice) could be as follows:
The courts of a Member State are not at liberty to make decisions that are incompatible with the judgment in Lin.
Accordingly, those courts:
are required to disapply a standard of protection relating to the principle of the retroactive application of the more lenient criminal law, without that obligation changing by reason of a national rule prohibiting the application of a lex tertia;
must not ignore the fact that the judgment in Lin I has determined the existence of a systemic risk of impunity for serious fraud affecting the financial interests of the European Union, where the national standard of protection of the principle relating to the more lenient criminal law is applied, and, consequently, it is not essential for those courts to assess, in each case, the existence of such a risk.
1 Original language: Spanish.
i The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings.
2 Judgment of 24 July 2023, Lin (C‑107/23 PPU, EU:C:2023:606; ‘the judgment in Lin I’).
3 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. 49; ‘the PFI Convention’).
4 Directive of the European Parliament and of the Council of 5 July 2017 on the fight against fraud to the Union’s financial interests by means of criminal law (OJ 2017 L 198, p. 29; ‘the PFI Directive’).
5 Codul Penal din 21 iulie 1968, republicat (Criminal Code of 21 July 1968, republished) (Monitorul Oficial al României, Part I, No 65, of 16 April 1997). That criminal code is the result of the text as recast by Lege nr. 140/1996, pentru modificarea și completarea Codului penal (Law No 140/1996 amending the Criminal Code) (Monitorul Oficial al României, Part I, No 289, of 14 November 1996) and was in force until 1 February 2014 (‘the Criminal Code of 1968’).
6 Legea nr. 286/2009 privind Codul penal (Law No 286/2009 on the Criminal Code), of 17 July 2009 (Monitorul Oficial al României, Part I, No 510, of 24 July 2009) (‘the Criminal Code of 2009’). In force since 1 February 2014.
7 Ordonanță de urgență a Guvernului nr. 71 din 30 mai 2022 pentru modificarea articolului 155 alineatul (1) din Legea nr. 286/2009 privind Codul penal (Decree-Law No 71 of 30 May 2022 amending Article 155(1) of Law No 286/2009 on the Criminal Code) (Monitorul Oficial al României, Part I, No 531, of 30 May 2022) (‘Decree-Law No 71/2022’).
8 Legea nr. 135/2010 privind Codul de procedură penală (Law No 135/2010 on the Code of Criminal Procedure) (Monitorul Oficial al României, Part I, No 486, of 15 July 2010).
9 Legea nr. 241/2005 (Law No 241/2005) (Monitorul Oficial al României, Part I, No 672, of 27 July 2005), as amended by Legea nr. 50/2013 (Law No 50/2013) (Monitorul Oficial al României, Part I, No 146, of 19 March 2013) – version in force on 23 January 2014.
10 In the following points, I transcribe the analysis of the judgments that I set out in my Opinion in Lin I (EU:C:2023:532). From here on, I shall use the expressions ‘High Court of Cassation and Justice’ and ‘Constitutional Court’ when referring to those bodies.
11 By contrast, the Constitutional Court held that the previous legislative approach (enshrined in the first paragraph of Article 123 of the Criminal Code of 1968) satisfied the foreseeability requirements imposed by the Constitution, since it provided that only the performance of an act which, by law, had to be notified to the accused could interrupt the limitation period for criminal liability.
12 That enactment was passed shortly after publication of judgment No 358/2022 of the Constitutional Court. Decree-Law No 71/2022 amended Article 155 of the Criminal Code of 2009. Paragraph 1 of that article has since been worded as follows: ‘The limitation period for criminal liability shall be interrupted by the performance in the proceedings of any procedural act which, by law, must be notified to the suspect or defendant.’
13 Respectively, the formation for the unification of case-law and the formation for the determination of final-instance appeals in the interest of the law.
14 The order for reference (paragraph 8) describes that judgment as ‘final’, although it notes that a further appeal brought against it has been declared admissible (paragraph 6). At the hearing, it was clarified that the adjective ‘final’ does not preclude a further appeal on a point of law being lodged against the judgment on appeal.
15 The public prosecution service asks that the binding nature of the interpretation of EU law established in the judgment in Lin I be taken into account and, accordingly, that its appeal on a point of law be allowed.
16 In its opinion, there were procedural acts which interrupted the limitation period, both before the date of publication of judgment No 297/2018 of the Constitutional Court and after the date of publication of judgment No 358/2022 of that court.
17 The judgment in Lin I, paragraph 83, and 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; ‘the judgment in Euro Box Promotion’), paragraph 181.
18 The judgment in Lin I, paragraph 96, and the judgment in Euro Box Promotion, paragraph 253.
19 See, in that regard, the Explanatory Report on the Convention on the protection of the European Communities’ financial interests (OJ 1997 C 191, p. 1), section III, Article 2: ‘Apart from cases of fraud involving a minimum amount to be set in each Member State but not in excess of [EUR] 50 000, the Convention leaves it to Member States to define according to their own legal traditions the factual circumstances which define certain fraudulent conduct as elements constituting serious fraud. … However, each Member State is free to provide for penalties involving deprivation of liberty in the other cases of fraud.’
20 The judgment in Lin I, paragraph 80, and judgment of 5 December 2017, M.A.S. and M.B. (C‑42/17, EU:C:2017:936; ‘the judgment in M.A.S. and M.B.’), paragraph 43.
21 The judgment in Lin I, paragraph 97; the judgment in Euro Box Promotion, paragraph 213; the judgment in M.A.S. and M.B., paragraph 39; and judgment of 5 June 2018, Kolev and Others (C‑612/15, EU:C:2018:392, paragraph 76).
22 Judgment of 8 September 2015, Taricco and Others (C‑105/14, EU:C:2015:555; ‘the judgment in Taricco’), paragraph 58. In relation to offences of corruption, neither the judgment in Euro Box Promotion, paragraphs 194, 203, 212 and 213, nor the order of 9 January 2024, Unitatea Administrativ Teritorială Județul Brașov (C‑131/23, EU:C:2024:42, paragraphs 75 and 85), uses the adjective ‘serious’.
23 Order for reference, paragraph 57.
24 The defendant is accused of a continuing offence of complicity in tax evasion, as defined in Article 9(1)(c) of Law No 241/2005.
25 As the acts of which he is accused occurred between 2012 and 2014, the PFI Convention is applicable to them, since the PFI Directive applies from 6 July 2019.
26 ‘Any intentional act or omission relating to … the use or presentation of false, incorrect or incomplete statements or documents, which has as its effect the illegal diminution of the resources of the general budget of the European [Union] or budgets managed by, or on behalf of, the European [Union].’
27 The judgment in Taricco, paragraph 41, and also judgment of 2 May 2018, Scialdone (C‑574/15, EU:C:2018:295, paragraphs 37 to 39).
28 That approach is expressly endorsed by recital 4 of the PFI Directive.
29 Cases Parchetul de pe lângă Tribunalul Brașov (C‑75/23, EU:C:2024:44) and Unitatea Administrativ Teritorială Județul Brașov (C‑131/23, EU:C:2024:42).
30 In judgment No 16/2024, the High Court of Cassation and Justice also holds that ‘procedural acts for which there is a legal obligation to notify the suspect or defendant after 30 May 2022 interrupt the limitation period for criminal liability only in respect of acts committed on or after 30 May 2022 or, with regard to acts committed previously, only if the more lenient criminal law determined overall in accordance with [judgment No 265/2014] is the Criminal Code or special criminal legislation, in the version in force at 30 May 2022.’
31 Opinion in Lin I (C‑107/23 PPU, EU:C:2023:532).
32 Among the authors who are critical of the judgment in Lin I, see Alonso García, R., ‘Límites y contra-límites en la aplicación nacional de la CDFUE, y “preeminencia” del derecho de la UE (STJUE 24 julio 2023, C‑107/23 PPU, asunto Lin)’, Revista Española de Derecho Europeo, No 1, 2024, pp. 149 to 167; Caiola, A., ‘La continuité d’une évolution jurisprudentielle. À la recherche de l’équilibre entre la protection des intérêts financiers de l’Union européenne et le respect du principe de légalité des délits et des peines’, Revue des affaires européennes, No 3, 2023, p. 783; Dimitrakopulos, I., ‘Statutes of limitations and scope of Article 49(1) of the EU Charter of Fundamental Rights: weaknesses of the ECJ’s approach in Taricco and Lin’, European Law Review, No 2, 2025, pp. 221 to 228; and Bonelli, M, ‘Growing pains: Direct effect, primacy and fundamental rights after Lin’, Common Market Law Review, No 4, 2024, pp. 1045 to 1076.
33 Bonelli, M., in ‘Growing pains: Direct effect, primacy and fundamental rights after Lin’, Common Market Law Review, No 4, 2024, p. 1075, states: ‘Whereas the Opinion of the Advocate General suggested opting for a high level of protection of fundamental rights that could ultimately act as a limit to the duty to set aside national case-law, the Court opted for a much more primacy-oriented and effectiveness-oriented judgment, with limited consideration for the fundamental rights concerns expressed by the Advocate General. What is regrettable is not necessarily the outcome of the Court’s ruling, especially when one considers that ultimately the Court did accept certain limitations to primacy and effectiveness in so far as it saw the [Romanian Constitutional Court] judgments as expressions of a legitimate higher standard of protection. But rather the problem lies with the limited engagement with the question of how to define the EU standard of fundamental rights protection, and most notably with the lack of explanation of why the Romanian lex mitior standard as expressed in the Cassation Court decision could not be upheld.’
34 Judgments of 9 April 2024, Profi Credit Polska (Reopening of proceedings concluded with a final judicial decision) (C‑582/21, EU:C:2024:282; ‘the judgment in Profi Credit Polska’), paragraphs 35 and 36; of 6 October 2015, Târșia (C‑69/14, EU:C:2015:662, paragraph 38); and of 10 July 2014, Impresa Pizzarotti (C‑213/13, EU:C:2014:2067, paragraph 60).
35 The judgment in Profi Credit Polska, paragraph 37; and judgment of 17 May 2022, Ibercaja Banco (C‑600/19, EU:C:2022:394, paragraph 41).
36 The judgment in Profi Credit Polska, paragraph 38; judgments of 17 May 2022, Ibercaja Banco (C‑600/19, EU:C:2022:394, paragraph 42); of 2 April 2020, CRPNPAC and Vueling Airlines (C‑370/17 and C‑37/18, EU:C:2020:260, paragraph 89); of 11 September 2019, Călin (C‑676/17, EU:C:2019:700, paragraph 27); and of 6 October 2015, Târșia (C‑69/14, EU:C:2015:662, paragraph 29).
37 The judgment in Profi Credit Polska, paragraphs 39 and 40; judgments of 24 October 2018, XC and Others (C‑234/17, EU:C:2018:853, paragraph 21); and of 10 July 2014, Impresa Pizzarotti (C‑213/13, EU:C:2014:2067, paragraph 54).
38 Judgments of 2 April 2020, CRPNPAC and Vueling Airlines (C‑370/17 and C‑37/18, EU:C:2020:260, paragraphs 96 and 97), and of 3 September 2009, Fallimento Olimpiclub (C‑2/08, EU:C:2009:506, paragraphs 29 to 31).
39 Judgment of 1 August 2025, BAJI Trans (C‑544/23, EU:C:2025:614, paragraphs 100 to 107).
40 Judgment of 1 August 2025, BAJI Trans (C‑544/23, EU:C:2025:614, paragraph 102).
41 ECtHR, advisory opinion P16-2021-001, of 26 April 2022, on the applicability of statutes of limitation to prosecution, conviction and punishment in respect of an offence constituting, in substance, an act of torture, § 77 (‘ECtHR, advisory opinion on statutes of limitation in respect of acts of torture’); judgments of 18 June 2020, Antia and Khupenia v. Georgia (CE:ECHR:2020:0618JUD000752310), §§ 38 to 43, and of 22 September 2015, Borcea v. Romania (CE:ECHR:2015:0922DEC005595914), § 65.
42 ECtHR, advisory opinion on statutes of limitation in respect of acts of torture, § 66, and judgment of 12 March 2019, Taşdemir v. Türkiye (CE:ECHR:2019:0312DEC005253809), § 14.
43 In the case of Armenia, its Criminal Code did not provide for no limitation period to apply to torture, but the absence of such a limitation period was derived from the application in Armenian law of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and from conclusions and recommendations of the Committee Against Torture. Accordingly, in the abovementioned opinion, the ECtHR held that it was for the national court to determine whether there was a sufficiently clear and foreseeable legal basis to regard torture as an offence that was not subject to a statute of limitation.
44 ECtHR, advisory opinion on statutes of limitation in respect of acts of torture, § 78. The definition of an offence in the Criminal Code as not being subject to a statute of limitation does not imply a relaxation of the general rule that an offence for which the limitation period has expired cannot be prosecuted again, because such a result would be contrary to the principle of the legality of criminal offences and penalties. The absence of a limitation period applies to particularly serious offences, such as torture, the punishment of which is required by mandatory international rules. In such cases, there is no limitation period in respect of criminal liability and subsequent reactivation of prosecution: put simply, criminal liability for such offences subsists indefinitely, without being influenced by the passage of time.
45 The ECtHR accepts, logically, in my view, that, when it comes to foreseeable judicial interpretations of criminal rules, there is a requirement, arising from Article 7 ECHR, for the legal basis for reactivating a criminal prosecution in respect of facts for which the relevant limitation period has expired to be foreseeable. See judgments of 21 October 2013, Del Rio Prada v. Spain (CE:ECHR:2013:1021JUD004275009), §§ 93, 112, 115 and 117, and of 15 April 2025, Bădescu and Others v. Romania (CE:ECHR:2025:0415JUD002219818), § 125. However, it considers unforeseeable judicial interpretations that make criminal penalties more severe to be a violation of Article 7 ECHR; see judgment of 3 December 2019, Parmark and Bakir v. Türkiye (CE:ECHR:2019:1203JUD002242907), §§ 73 to 77, in which it rejected an interpretation of the Turkish courts which included moral coercion in the offence of terrorism.
46 Bonelli, M., ‘Growing pains: Direct effect, primacy and fundamental rights after Lin’, Common Market Law Review, No 4, 2024, p. 1046: ‘in general, the approach of the Court until Lin had proved difficult to predict and understand’.
47 Fraud against the financial interests of the European Union is not comparable to the offence of torture, to which no limitation period applies on account of its status as a jus cogens international norm, recognised in international treaties.
48 Some judicial formations of the Criminal Division appear to disagree with the case-law of the expanded formations of the High Court of Cassation and Justice that have jurisdiction to determine appeals relating to the unification of case-law and final-instance appeals in the interest of the law. The doubts are also raised in Case C‑496/25, Lin III, which is pending before the Court of Justice.
49 The judgment in M.A.S. and M.B., paragraph 60, and the judgment in Taricco, paragraph 53.
50 The judgment in Lin I, paragraph 122.
51 Nor is it necessarily derived from the ECHR. The ECtHR had tended, in its case-law, to regard those rules as being procedural in nature, in so far as they do not define offences or the penalties which they attract, but merely lay down a precondition for the investigation of the case (ECtHR, judgments of 22 June 2000, Coëme and Others v. Belgium, CE:ECHR:2000:0622JUD003249296, § 149; of 12 February 2013, Previti v. Italy, CE:ECHR:2013:0212DEC000184508, § 80; and of 22 September 2015, Borcea v. Romania, CE:ECHR:2015:0922DEC005595914, § 64). However, the ECtHR has found that Article 7 ECHR is violated where a defendant is convicted of an offence which is already time-barred, which implies recognising the substantive, and not merely procedural, nature of limitation periods (ECtHR, advisory opinion on statutes of limitation in respect of acts of torture, §§ 72 to 77; and judgment of 18 June 2020, Antia and Khupenia v. Georgia, CE:ECHR:2020:0618JUD000752310, §§ 38 to 43).
52 Subsequently, Article 12 of the PFI Directive has partially harmonised the rules on limitation periods applicable to offences of that kind, but it has not clarified whether the rules on limitation periods for criminal liability are substantive or procedural in nature.
53 The judgment in Taricco, paragraphs 55 to 57.
54 The judgment in M.A.S. and M.B., paragraph 45: ‘The Italian Republic was thus, at that time, free to provide that in its legal system those rules [(the rules on limitation periods applicable to VAT-related criminal offences)], like the rules on the definition of offences and the determination of penalties, form part of substantive criminal law, and are thereby, like those rules, subject to the principle that offences and penalties must be defined by law.’
55 Judgment of 22 June 2022, Volvo and DAF Trucks (C‑267/20, EU:C:2022:494, paragraph 46).
56 Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union (OJ 2014 L 349, p. 1).
57 The Court of Justice requested certain clarifications from the referring court on this point, which was discussed at the hearing.
58 Judgment No 265/2014 of the Constitutional Court, paragraphs 31 and 32.
59 The judgment in Lin I, paragraph 91.
60 The judgment in Lin I, paragraph 94.
61 The judgment in Lin I, paragraphs 122 and 123.
62 The judgment in Lin I, paragraphs 122: ‘Contrary to the national standard of protection relating to the foreseeability of criminal law, which, according to the referring court, is limited to neutralising the interrupting effect of procedural acts which occurred during the period from 25 June 2018, the date of publication of judgment No 297/2018 of the Curtea Constituțională (Constitutional Court), to 30 May 2022, the date on which Decree-Law [No 71/2022] entered into force, the national standard of protection relating to the principle of the retroactive application of the more lenient criminal law (lex mitior) permits, at least in certain cases, the neutralisation of the interrupting effect of procedural acts which took place even before 25 June 2018 but after the entry into force of the Criminal Code on 1 February 2014, that is to say, during a period of more than four years.’
63 The judgment in M.A.S. and M.B., paragraph 59: ‘… it is for the national court to ascertain whether the finding, required by paragraph 58 of the Taricco judgment, that the provisions of the Criminal Code at issue prevent the imposition of effective and deterrent criminal penalties in a significant number of cases of serious fraud affecting the financial interests of the Union leads to a situation of uncertainty in the Italian legal system as regards the determination of the applicable limitation rules, which would be in breach of the principle that the applicable law must be precise. If that is indeed the case, the national court is not obliged to disapply the provisions of the Criminal Code at issue.’
Continue your research in ChatGPT or Claude
Connect Omnilex to search the legal corpus from your AI assistant.