Official Journal of the European Union

C 321/16

(Case C-107/23 PPU, (*) Lin (**) )

(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 counter fraud affecting the financial interests of the European Union by taking effective deterrent measures - Obligation to provide for criminal penalties - Value added tax (VAT) - Directive 2006/112/EC - Serious VAT fraud - Limitation period for criminal liability - Judgment of a constitutional court invalidating a national provision governing the grounds for interrupting that period - Systemic risk of impunity - Protection of fundamental rights - Article 49(1) of the Charter of Fundamental Rights of the European Union - Principle that offences and penalties must be defined by law - Requirements of foreseeability and precision of criminal law - Principle of the retroactive application of the more lenient criminal law (lex mitior) - Principle of legal certainty - National standard of protection of fundamental rights - Duty on the courts of a Member State to disapply judgments of the constitutional court and/or the supreme court of that Member State in the event that they are incompatible with EU law - Disciplinary liability of judges in the event of non-compliance with those judgments - Principle of the primacy of EU)

(2023/C 321/19)

Language of the case: Romanian

Referring court

Party in the main proceedings

Other party: Statul român

Operative part of the judgment

1.Article 325(1) TFEU 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

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.

2.The principle of the 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.

(*) Language of the case: Romanian.