CJEU Decision C-107/23 PPU: Insights on the Protection of the EU Financial Interests and the National princIple of ”Lex Mitior”
DOI:
https://doi.org/10.18662/eljpa/10.2/206Keywords:
more favourable criminal or administrative law, supremacy of the Constitution, autonomous EU standard of the principle of legality of offences and penalties, EU and national standards of protection of fundamental rights and procedural guaranteesAbstract
The request came from a Romanian court in the context of an extraordinary appeal against a previous decision of that court, in which the appellants were sentenced to imprisonment and to pay damages for tax evasion and the setting up of a criminal organisation. The extraordinary appeal is a special procedure in Romania and allows a plaintiff to seek the annulment of definitive judgements in criminal matters when a sentence was pronounced despite the existence of grounds liable to end criminal proceedings. This situation led Romanian courts to adopt non-uniform case law regarding the interruption of limitation periods. To cease the uncertainty, the RCC stressed, in 2022, that the interruption of limitation periods is part of substantive criminal law (not procedural) and is thus covered by the principle of legality and of retroactive application of the lex mitior. The RCC drew the conclusion that, following the adoption of its decision in 2018 and the failure of the legislator to put the law in line with that decision, Romanian criminal law should be understood as not providing for any ground of interruption of the limitation periods. As a result, pending criminal proceedings could be ended if a definitive judgment has not been delivered within the uninterrupted limitation period. Following the 2022 decision, the Romanian legislator adopted a normative act enumerating the grounds for interruption of the limitation periods. However, Lin concerns the effects of the 2022 decision on situations where a person has been convinced by a definitive judgement, but an extraordinary appeal is intended.
References
For explanations and developments regarding the more favorable criminal law, see also Mihai Adrian Hotca, Regula mitior lex in the light of the new Criminal Code. https://www.juridice.ro/306259/regula-mitior-lex-in-lumina-noului-cod-penal.html
This issue has sparked not only controversies in doctrine and judicial practice, but also fiery public stances. See, for example, Costică Ciocan, The advice of an old devil: Romanians in the country of those without Justice., JURIDICE.ro, https://www.juridice.ro/711712/sfaturile-unui-diavol-batran-romani-in-tara-celor-fara-justitiecu-afectiune-unchiul-tausfredelin.html
For developments regarding the effects of the decisions of the Constitutional Court in criminal matters, see also Silviu-Gabriel Barbu, Vasile Coman, The Supremacy of the Constitution, the principle of legality and their incidence on the sources of criminal law and criminal procedure, JURIDICE.ro, December 3, 2018, https://www.juridice.ro/617883/suprematia-constitutiei-principiul-legalitatii-si-incidenta-acestora-asupra-izvoarelor-dreptului-penal-si-procesual-penal.html
For developments, see Oana Lup, Effects of Constitutional Court decisions in pending cases. Jurisprudential analysis, JURIDICE.ro, May 22, 2019, https://www.juridice.ro/640512/efectele-deciziilor-curtii-constitutionale-in-cauzele-pendinte-analiza-jurisprudentiala.html
See CJEU. C-107/23 PPU | Smoothly. Combating fraud affecting the financial interests of the European Union: national rules on limitation in criminal matters must allow for effective prevention and repression. Jud. Dr. Octavia Spineanu-Matei, member of the court panel, JURIDICE.ro, July 24, 2023, https://www.juridice.ro/697060/cjue-c-107-23-ppu-lin-combaterea-fraudei-care-aduce-atingere-intereselor-financiare-ale-uniunii-europene-normele-nationale-privind-prescriptia-in-materie-penala-trebuie-sa-permita-o-prevenire-si.html
See also Liviu Iordache, Again about the arguments that determine the jurisprudential revival in the matter of prescription, JURIDICE.ro, September 6, 2023,
For developments see also Vlad Neagoe, Preliminary decision of the Court of Justice regarding the prescription of criminal liability – Decalogue of controversial issues, JURIDICE.ro, November 13, 2023,
For developments, see Olivia-Adriana Argintaru, The requirement of predictability of the law, in the light of constitutional jurisprudence regarding access to Justice, ABCJURIDIC.ro,
See, for a monographic analysis, Andrei-Răzvan Lupu, Constitution and law of the European Union. Norms, doctrine, jurisprudence, Ed. C.H. Beck, Bucharest, 2022
See Cătălin Oncescu, Interruption of the criminal liability statute of limitations [art. 155 para. (1) Criminal Code]. Decision no. 297/2018 of the Constitutional Court, lex tertia and the interpretation by analogy against the accused person,
See Decision of the Constitutional Court no. 62 of January 18, 2007, published in the Official Gazette of Romania, Part I, no. 104 of February 12, 2007, but also Decision no. 223 of March 13, 2012, published in the Official Gazette of Romania, Part I, no. 256 of April 18, 2012, Decision no. 895 of December 17, 2015, published in the Official Gazette of Romania, Part I, no. 84 of February 4, 2015, and Decision no. 51 of February 16, 2016, published in the Official Gazette of Romania, Part I, no. 190 of March 14, 2016.
See the decision of the High Court of Cassation and Justice, Panel for resolving some legal issues in criminal matters, no. 1 of February 8, 2018, published in the Official Gazette of Romania, Part I, no. 329 of April 16, 2018.
See, for example, Renata Dumitraș, Bucharest Court of Appeal. Termination of the criminal process for the non-existence of any act interrupting the general limitation period of criminal liability, JURIDICE.ro, June 30, 2022, https://www.juridice.ro/689621/curtea-de-apel-bucuresti-incetarea-procesului-penal-pentru-inexistenta-oricarui-act-de-intrerupere-a-termenului-prescriptiei-generale-a-raspunderii-penale.html
For developments, see Mihai Adrian Hotca, De lege lata, are there causes for interrupting the criminal liability limitation period?, JURIDICE.ro, https://www.juridice.ro/essentials/2821/de-lege-lata-exista-cauze-de-intrerupere-a-termenului-prescriptiei-raspunderii-penale
For considerations in this sense, see Luiza Moisescu, Prescription of criminal liability in the light of CCR and CJEU decisions. Brief considerations, JURIDICE.ro, https://www.juridice.ro/701915/prescriptia-raspunderii-penale-in-lumina-deciziilor-ccr-si-cjue-scurte-consideratii.html
For developments, see Marin Voicu, Some considerations regarding the application of the "LIFE RIGHT" doctrine in the jurisprudence of the Constitutional Court of Romania, JURIDICE.ro, https://www.juridice.ro/essentials/2757/unele-consideratii-privind-aplicarea-doctrinei-dreptului-viu-in-jurisprudenta-curtii-constitutionale-a-romaniei
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