24.1.2022

Official Journal of the European Union

C 37/16

(Case C-655/21)

(2022/C 37/22)

Language of the case: Bulgarian

Referring court

Party to the main proceedings

Questions referred

1.Are the legislation and case-law in accordance with which the harm suffered by the trade mark proprietor forms part of the constituent elements of the offences referred to in Article 172b(1) and (2) of the NK consistent with the standards introduced by Directive 2004/48/EC (1) in relation to harm caused by the unlawful exercise of intellectual property rights?

2.If the first question is answered in the affirmative, is the automatic presumption, introduced by case-law in the Republic of Bulgaria, for determining the harm — in the amount of the value of the goods offered for sale, calculated on the basis of the retail prices of lawfully manufactured goods — consistent with the standards of Directive 2004/48/EC?

3.Is legislation which does not distinguish between an administrative offence (Article 127(1) of the Zakon za markite i geografskite oznacheniya (Law on trade marks and geographical indications; ‘the ZMGO’) currently in force and Article 81(1) of the ZMGO in force in 2016), the criminal offence under Article 172b(1) of the NK and, if the first question is answered in the negative, the criminal offence under Article 172b(2) of the NK compatible with the principle of legality of criminal offences, as enshrined in Article 49 of the Charter of Fundamental Rights of the European Union?

4.Are the penalties provided for in Article 172b(2) of the NK (custodial sentence of 5 to 8 years and a fine of BGN 5 000 to 8 000) consistent with the principle established in Article 49(3) of the Charter of Fundamental Rights of the European Union (the severity of penalties must not be disproportionate to the criminal offence)?

* Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights (OJ 2004 L 157, p. 45).