Court of Justice of the European Communities (including Court of First Instance Decisions)

OPINION OF ADVOCATE GENERAL

PIKAMÄE

delivered on 24 March 2021 (1)(i)

Joined Cases C‑845/19 and C‑863/19

Okrazhna prokuratura – Varna

Criminal proceedings

v

DR (C‑845/19)

TS (C‑863/19)

(Request for a preliminary ruling from the Apelativen sad – Varna (Court of Appeal, Varna, Bulgaria))

(Reference for a preliminary ruling – Judicial cooperation in criminal matters – Directive 2014/42/EU – Freezing and confiscation of instrumentalities and proceeds of crime in the European Union – Scope – Confiscation of illegally obtained assets – Economic benefit derived from a criminal offence which has not been the subject of a conviction – Article 4 – Confiscation – Article 5 – Extended confiscation – Article 6 – Confiscation from a third party – Conditions – Confiscation of money allegedly belonging to a third party – Third party having no right to appear as a party in the confiscation proceedings – Article 47 of the Charter of Fundamental Rights of the European Union)

1.        In the present cases, the Court has been requested by the Apelativen sad – Varna (Court of Appeal, Varna, Bulgaria) to give a preliminary ruling concerning the interpretation of Directive 2014/42/EU of the European Parliament and of the Council of 3 April 2014 on the freezing and confiscation of instrumentalities and proceeds of crime in the European Union. (2)

2.        More specifically, the Court has been given an opportunity to provide clarification, for the first time, on key legal questions concerning the interpretation of that directive. The first question is whether the existence of a cross-border situation is necessary in order to trigger the application of the directive. The second question concerns the structure of the provisions of Directive 2014/42 which provide for various cases of confiscation. The third question concerns the scope of the right to an effective remedy of third parties who claim a right of ownership of property which has been confiscated.

I.      Legal framework

A.      The Treaty on the Functioning of the European Union

3.        Article 83(1) TFEU is worded as follows:

‘The European Parliament and the Council may, by means of directives adopted in accordance with the ordinary legislative procedure, establish minimum rules concerning the definition of criminal offences and sanctions in the areas of particularly serious crime with a cross-border dimension resulting from the nature or impact of such offences or from a special need to combat them on a common basis.

These areas of crime are the following: terrorism, trafficking in human beings and sexual exploitation of women and children, illicit drug trafficking, illicit arms trafficking, money laundering, corruption, counterfeiting of means of payment, computer crime and organised crime.

…’

B.      EU law

1.      Framework Decision 2004/757/JHA

4.        Article 2(1) of Council Framework Decision 2004/757/JHA of 25 October 2004 laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking (3) provides:

‘Each Member State shall take the necessary measures to ensure that the following intentional conduct when committed without right is punishable:

(a)      the production, manufacture, extraction, preparation, offering, offering for sale, distribution, sale, delivery on any terms whatsoever, brokerage, dispatch, dispatch in transit, transport, importation or exportation of drugs;

…

(c)      the possession or purchase of drugs with a view to conducting one of the activities listed in (a);

…’

2.      Directive 2014/42

5.        Article 1 of Directive 2014/42, entitled ‘Subject matter’, provides:

‘1.      This Directive establishes minimum rules on the freezing of property with a view to possible subsequent confiscation and on the confiscation of property in criminal matters.

2.      This Directive is without prejudice to the procedures that Member States may use to confiscate the property in question.’

6.        Article 2 of the directive, entitled ‘Definitions’, provides:

‘For the purpose of this Directive, the following definitions apply:

(1)      “proceeds” means any economic advantage derived directly or indirectly from a criminal offence; it may consist of any form of property and includes any subsequent reinvestment or transformation of direct proceeds and any valuable benefits;

(2)      “property” means property of any description, whether corporeal or incorporeal, movable or immovable, and legal documents or instruments evidencing title or interest in such property;

…

(4)      “confiscation” means a final deprivation of property ordered by a court in relation to a criminal offence;

…’

7.        Article 3 of the directive, entitled ‘Scope’, reads as follows:

‘This Directive shall apply to criminal offences covered by:

…

(g)      [Framework Decision 2004/757]

…’

8.        Article 4 of Directive 2014/42, entitled ‘Confiscation’, provides in paragraph 1 thereof:

‘Member States shall take the necessary measures to enable the confiscation, either in whole or in part, of instrumentalities and proceeds or property the value of which corresponds to such instrumentalities or proceeds, subject to a final conviction for a criminal offence, which may also result from proceedings in absentia.’

9.        Article 5 of the directive, entitled ‘Extended confiscation’, provides in paragraph 1 thereof:

‘Member States shall adopt the necessary measures to enable the confiscation, either in whole or in part, of property belonging to a person convicted of a criminal offence which is liable to give rise, directly or indirectly, to economic benefit, where a court, on the basis of the circumstances of the case, including the specific facts and available evidence, such as that the value of the property is disproportionate to the lawful income of the convicted person, is satisfied that the property in question is derived from criminal conduct.’

10.      Article 6 of the same directive, entitled ‘Confiscation from a third party’, provides:

‘1.      Member States shall take the necessary measures to enable the confiscation of proceeds, or other property the value of which corresponds to proceeds, which, directly or indirectly, were transferred by a suspected or accused person to third parties, or which were acquired by third parties from a suspected or accused person, at least if those third parties knew or ought to have known that the purpose of the transfer or acquisition was to avoid confiscation, on the basis of concrete facts and circumstances, including that the transfer or acquisition was carried out free of charge or in exchange for an amount significantly lower than the market value.

2.      Paragraph 1 shall not prejudice the rights of bona fide third parties.’

11.      In accordance with Article 8 of the directive, entitled ‘Safeguards’:

‘1.      Member States shall take the necessary measures to ensure that the persons affected by the measures provided for under this Directive have the right to an effective remedy and a fair trial in order to uphold their rights.

…’

C.      Bulgarian law

1.      The Criminal Code

12.      Article 53 of the Nakazatelen kodeks (‘the Criminal Code’) states:

‘1.      Irrespective of criminal liability, the following shall be confiscated in favour of the State:

(a)      property belonging to the offender which was intended or served for the purpose of committing a deliberate criminal offence; where such property no longer exists or has been disposed of, its equivalent value shall be determined [(supplemented, DV No 7 of 2019)];

(b)      property belonging to the offender which has been the subject matter of a deliberate criminal offence, in the cases expressly provided for in the Special Part of the present code.

2.      The following shall also be confiscated in favour of the State [(new, DV No 28 of 1982)]:

(a)      property which has been the subject matter or instrument of a criminal offence and the possession of which is prohibited, and

(b)      the direct and indirect proceeds of a criminal offence, where these are not subject to return or recovery; where such proceeds no longer exist or have been disposed of, their equivalent value shall be determined [(amended, DV No 7 of 2019)].

3.      For the purposes of paragraph 2(b) [(new, DV No 7 of 2019)]:

(1)      “direct proceeds” shall mean any economic advantage arising as an immediate consequence of an offence;

(2)      “indirect proceeds” shall mean any economic advantage arising from the disposal of direct proceeds, as well as any property resulting from the subsequent conversion, in whole or in part, of direct proceeds, including where the latter have been intermingled with property acquired from a legitimate source; property up to the value of the direct proceeds incorporated shall be liable to confiscation, as well as any increase in the property directly linked to the disposal or conversion of the direct proceeds or to the incorporation of the direct proceeds in the property.’

13.      Article 354a (first published: DV No 95 of 1975; amended: DV No 28 of 1982, No 10 of 1993, No 62 of 1997, No 21 of 2000, No 26 of 2004 and No 75 of 2006) of the Criminal Code provides:

‘1.      Any person who, without the appropriate authorisation, produces, processes, acquires or possesses narcotics or analogues thereof for the purpose of distribution, or who distributes narcotics or analogues thereof, shall be subject, in the case of highly dangerous narcotics or analogues thereof, to a term of imprisonment of between two and eight years and a fine of [between 5 000 and 20 000 leva (BGN) (approximately EUR 2 500 and 10 000)] and, in the case of dangerous narcotics or analogues thereof, to a term of imprisonment of between one and six years and a fine of [between BGN 2 000 and 10 000 (approximately EUR 1 000 and 5 000)]. …

…

3.      Any person who, without the appropriate authorisation, acquires or possesses narcotics or analogues thereof shall be subject:

(1)      in the case of highly dangerous narcotics or analogues thereof, to a term of imprisonment of between one and six years and a fine of [between BGN 2 000 and 10 000 (approximately EUR 1 000 and 5 000)];

(2)      in the case of dangerous narcotics or analogues thereof, to a term of imprisonment of up to five years and a fine of [between BGN 1 000 and 5 000 (approximately EUR 500 to 2 500)].

…’

2.      The Code of Criminal Procedure

14.      Article 306(1)(1) of the Nakazatelno-protsesualen kodeks (Code of Criminal Procedure; DV No 86 of 28 October 2005) provides:

‘1.      The court may also rule by way of order on the following matters:

(1)      the imposition of an aggregate sentence pursuant to Articles 25 and 27 as well as the application of Article 53 of the [Criminal Code].’

II.    The facts giving rise to the disputes, the main proceedings and the questions referred for a preliminary ruling

15.      The defendants in the main proceedings, individually and as joint perpetrators, were found guilty of having committed, on 21 February 2019, in the city of Varna (Bulgaria), a criminal offence under Article 354a of the Criminal Code, specifically that of possessing, without authorisation and for the purpose of resale, highly dangerous narcotics. By criminal judgment delivered on 28 June 2019, DR was sentenced to a term of imprisonment of one year and given a fine of BGN 2 500 (approximately EUR 1 250). TS was sentenced to a term of imprisonment of two years, suspended for four years, and given a fine of BGN 5 000 (approximately EUR 2 500).

16.      In the course of a search of the premises where DR lived with his mother and grandparents, and a search of his car, carried out by the competent authorities in the course of pre-trial proceedings, those authorities found a sum of money, amounting to BGN 4 447.06 (approximately EUR 2 200).

17.      In the course of a search of the premises where TS lived with his mother, also carried out in the context of pre-trial proceedings, the competent authorities discovered a sum of money amounting to BGN 9 324.25 (approximately EUR 4 800).

18.      After the criminal conviction of DR and TS, the Public Prosecutor’s Office applied to the Okrazhen sad Varna (Regional Court, Varna, Bulgaria) for the confiscation of those sums of money in favour of the State, in accordance with Article 306(1)(1) of the Code of Criminal Procedure. The Okrazhen sad Varna (Regional Court, Varna) examined that application at a public hearing attended by a public prosecutor, DR and TS and their two lawyers.

19.      In the course of those legal proceedings, DR claimed that the sum of money in question belonged to his grandmother, who had obtained it under a bank loan. He also provided written evidence which showed that, in December 2018, his grandmother had withdrawn the sum of BGN 7 000.06 (approximately EUR 3 500) from her bank account. DR’s grandmother did not take part in the proceedings under Article 306(1)(1) of the Code of Criminal Procedure before the Okrazhen sad Varna (Regional Court, Varna), since Bulgarian law does not permit her to take part as a separate party. Nor was she heard as a witness.

20.      In the course of those same legal proceedings, TS claimed that the sum of money in question belonged to his mother and his sister. He also provided written evidence which established that, in March 2018, his mother had taken out a consumer loan from DSK Bank EAD for the sum of BGN 17 000 (approximately EUR 8 500). He also produced copies of his mother’s and sister’s passports which showed that they had made a trip to Turkey between 19 and 21 April 2019. TS’s mother was unable to attend the proceedings before the Okrazhen sad Varna (Regional Court, Varna). She was, however, heard as a witness concerning the sum of money that had been found at the premises where she lived with her son.

21.      The Okrazhen sad Varna (Regional Court, Varna) refused to authorise confiscation of the sums of money in question, taking the view that the criminal offence of which DR and TS had been convicted, namely that of possessing narcotics for the purposes of resale, was not such as to generate an economic advantage. The court held in that regard that, although there was evidence, namely witness statements, indicating that, in the cases in question, DR and TS had been selling narcotics, the conditions permitting confiscation in favour of the State referred to in Article 53(2) of the Criminal Code were not met, since the Public Prosecutor had not formulated that specific charge and the said trafficking had not been confirmed by the subsequent convictions.

22.      The Regional Public Prosecutor’s Office brought an appeal against the judgment of the Okrazhen sad Varna (Regional Court, Varna) before the referring court, arguing that the Okrazhen sad Varna (Regional Court, Varna) had not applied Article 53(2) of the Criminal Code in the light of Directive 2014/42. DR’s and TS’s lawyers do not share the prosecution’s view and argue that only material property which is directly derived from the offence of which a defendant has been convicted may be confiscated.

23.      In those circumstances, the Apelativen sad – Varna (Court of Appeal, Varna) decided to stay the proceedings and to refer the following questions, which are worded identically in Cases C‑845/19 and C‑863/19, to the Court of Justice for a preliminary ruling:

‘(1)      Are [Directive 2014/42] … and the Charter of Fundamental Rights of the European Union applicable with respect to a criminal offence consisting in the possession of narcotics for the purpose of their distribution, committed by a Bulgarian national in the territory of the Republic of Bulgaria, even where any possible economic advantage is also realised and located in Bulgaria?

(2)      If the first question is answered in the affirmative, how is the concept of “economic advantage derived … indirectly from a criminal offence” in Article 2(1) of [Directive 2014/42] to be understood, and can a sum of money found in and seized at the home of the convicted person and his or her family and from the private car used by that individual constitute such an economic advantage?

(3)      Is Article 2 of [Directive 2014/42] to be interpreted as precluding a legal provision such as that in Article 53(2) of the [Criminal Code] which does not provide for the confiscation of an “economic advantage derived … indirectly from a criminal offence”?

(4)      Is Article 47 of the Charter of Fundamental Rights of the European Union to be interpreted as precluding a legal provision such as that in Article 306(1)(1) of the [Code of Criminal Procedure] which allows for the confiscation in favour of the State of a sum of money which is claimed to belong to a person other than the person who committed the criminal offence, without that third party being able to appear as a party in those proceedings or having direct access to the courts?’

III. Procedure before the Court

24.      Written observations on these questions were submitted by the Prosecutor’s Office, the Bulgarian Government and the European Commission.

25.      Those same parties and the Austrian Government were heard at the hearing held on 13 January 2021.

IV.    Analysis

A.      The first question

26.      By its first question, the referring court seeks, in substance, to establish whether Directive 2014/42 and the Charter of Fundamental Rights of the European Union (‘the Charter’) apply in the case of an offence, such as the possession of narcotics for the purpose of their distribution, when all the elements inherent in the commission of that offence are confined within a single Member State.

27.      It is clear from that question that the referring court takes it as read that the existence of a cross-border situation must be regarded as a condition sine qua non of the application of Directive 2014/42. The Bulgarian Government has disputed that premiss, both in its written observations and at the hearing, taking the view that the application in a Member State of the rules laid down in that directive is independent of the possibility of identifying a cross-border situation in the case pending before a court of that Member State.

28.      With that in mind, I shall first of all respond – in the negative – to that argument of the Bulgarian Government and accordingly propose that Directive 2014/42 cannot apply if the criminal offence has no cross-border dimension (Section 1). Next, I shall explain how that dimension is to be characterised (Section 2) and apply my analysis to the cases at hand (Section 3). Lastly, I shall suggest to the Court an answer to the first question (Section 4), noting that the applicability of the Charter is dependent on the applicability of Directive 2014/42. (4)

1.      The requirement for the existence of a cross-border situation

29.      In support of the interpretation which it proposes, the Bulgarian Government refers to the judgment in Moro, (5) in which the Court held, with regard to Directive 2012/13/EU on the right to information in criminal proceedings, (6) that the application in a Member State of the rules laid down by that directive is independent of the existence of any cross-border situation in the context of a dispute arising in that Member State. The reasoning which led the Court to that conclusion is, according to the Bulgarian Government, applicable in the present cases.

30.      It is appropriate to summarise that reasoning. (7) First of all, the Court observed that the legal basis of Directive 2012/13 is Article 82(2) TFEU, the first subparagraph of which reads as follows: ‘to the extent necessary to facilitate mutual recognition of judgments and judicial decisions and police and judicial cooperation in criminal matters having a cross-border dimension, the European Parliament and the Council may, by means of directives adopted in accordance with the ordinary legislative procedure, establish minimum rules. Such rules shall take into account the differences between the legal traditions and systems of the Member States.’ Next, the Court observed, with reference to the wording of Directive 2012/13, that Articles 1 and 2 of that directive, which define its subject matter and scope, respectively, do not restrict the application of the directive to situations having a cross-border dimension. Lastly, the Court held, in substance, that, with regard to the objectives of Directive 2012/13, it was apparent from its recitals that the establishment of common minimum rules governing the right to information in criminal proceedings was intended to increase the mutual confidence of the Member States in their respective criminal justice systems, and so contributed to the mutual recognition of decisions of the judicial authorities even where those decisions concerned purely internal situations. Within that framework, when the need for cross-border cooperation arose, the police and judicial authorities of a Member State could then effectively regard the decisions of the judicial authorities of the other Member States as equivalent to their own.

31.      I am convinced that that reasoning cannot be followed when the question of whether a cross-border dimension is necessary is asked with reference to the applicability of Directive 2014/42, because neither the literal interpretation nor the teleological interpretation considered in the judgment in Moro (8) can be applied by analogy to the latter directive, and that is for the reasons which I shall now explain.

32.      First of all, as regards the wording of Directive 2014/42, it must be noted that, by contrast with the wording of Directive 2012/13, it does seem to limit the criminal offences which are covered by the directive to those having a cross-border dimension, inasmuch as recital 1 of Directive 2014/42 explains the need for competent authorities to be given the means to trace, freeze, manage and confiscate the proceeds of crime by reference to the fact that ‘the main motive for cross-border organised crime … is financial gain’. (9) The requirement for a cross-border dimension in order for Directive 2014/42 to apply is also reflected by the explanatory memorandum to the Commission proposal which resulted in that directive, (10) in particular, by point 1.1, which states that ‘this proposal for a Directive aims to make it easier for Member States’ authorities to confiscate and recover the profits that criminals make from cross-border serious and organised crime. … Organised crime groups are illegal enterprises designed to generate profit. They engage in a multitude of cross-border criminal activities – such as drug trafficking, trafficking in human beings, illicit arms trafficking, and corruption – generating very large earnings’. (11)

33.      Second, as regards the objectives of Directive 2014/42, I do not think that the mutual recognition of judicial decisions has the same place in that directive as has been attributed to it, according to the Court, in Directive 2012/13.

34.      It is important in this connection to note that the legal basis for Directive 2014/42 does not fully correspond to that used for Directive 2012/13. Indeed, as regards Directive 2014/42, Article 83(1) TFEU, which provides the legal basis for the harmonisation of substantive criminal law, supplements Article 82(2) TFEU. In addition, the proposal for a directive states that Article 83(1) TFEU must be regarded as the ‘main legal basis’ for the proposal.

35.      It is unequivocally clear from the wording of the first subparagraph of Article 83(1) TFEU that, in contrast to Article 82(2) TFEU, the establishment of harmonised substantive provisions is not conditional on their being necessary in order to facilitate the mutual recognition of judicial decisions and cross-border police and judicial cooperation. (12)

36.      On the contrary, the first subparagraph of Article 83(1) TFEU expressly provides that, in addition to the particularly serious nature of the areas of crimes considered, such harmonisation is strictly conditional on the crimes in question having a cross-border dimension resulting from the nature or impact they have or from a special need to combat them on a common basis. These areas of crime are, according to the second subparagraph of Article 83(1) TFEU, terrorism, trafficking in human beings and sexual exploitation of women and children, illicit drug trafficking, illicit arms trafficking, money laundering, corruption, counterfeiting of means of payment, computer crime and organised crime. As is clear from the wording of Article 3 of Directive 2014/42, the latter applies solely to criminal offences covered by secondary legislation harmonising substantive criminal law in the areas I have just mentioned or, better put, in areas having a cross-border dimension.

37.      Moreover, the fact that the applicability of Directive 2014/42 is dependent on the existence of a cross-border dimension is confirmed, conclusively, by a further interpretive element. I note, in fact, that Article 14(1) of Directive 2014/42 defines the relationship between that directive and certain legislative provisions which it is meant to replace, in particular in Council Framework Decision 2005/212/JHA of 24 February 2005 on Confiscation of Crime-Related Proceeds, Instrumentalities and Property, (13) as follows: ‘the first four indents of Article 1 and Article 3 of [Framework Decision 2005/212], are replaced by this Directive’, which means that, a contrario, Article 2 (‘Confiscation’), (14) Article 4 (‘Legal remedies’), (15) and Article 5 (‘Safeguards’) (16) of that framework decision remain in force. Moreover, point 2.3 of the proposal for a directive states that, given the limitation of the scope of the proposed directive to the areas of crime listed in Article 83(1) TFEU, Articles 2, 4 and 5 of Framework Decision 2005/212 are to be kept in force, in order to maintain a degree of harmonisation with respect to criminal activities ‘which fall outside the scope of this Directive’ (17) and which, accordingly, have no cross-border dimension.

2.      The characterisation of the existence of a ‘cross-border dimension’

38.      The referring court raises doubts as to the existence of a cross-border dimension in the case before it, noting that none of the elements inherent in the commission of the offence in question occurred outside Bulgarian territory.

39.      I would immediately state that those doubts seem to me to arise from a misunderstanding of the way in which the existence of a cross-border situation triggering the application of EU legislation based mainly or solely on Article 83 TFEU is established.

40.      As I have mentioned, the wording of that provision of the Treaty in fact refers to a ‘cross-border dimension’, not to a ‘cross-border element’. That choice of wording is not, to my mind, fortuitous. Quite the contrary, it shows that fulfilment of that condition is not dependent on any assessment of the factual circumstances of a given case, but merely on the fact that the criminal offence under consideration comes within one of the areas of crime amenable to harmonisation under the second subparagraph of Article 83(1) TFEU, and that it comes within the scope of the secondary legislation adopted on the basis of Article 83(1) TFEU and governing such an area. (18) Where that is the case, the criminal offence under consideration is ipso facto regarded as fulfilling the condition of having a cross-border dimension, as well as the condition of being particularly serious. It follows that the question of whether one or other of the elements inherent in the commission of the offence in question, such as the nationality of the perpetrator, the place where the offence was committed or the location of the proceeds of the crime, is of a cross-border nature, is entirely irrelevant.

3.      The existence of a cross-border dimension in the case at hand

41.      Turning now to the case at hand, it must be recalled that Article 3 of Directive 2014/42 lists exhaustively the criminal offences to which the provisions of that directive apply, which is to say those covered by the secondary legislation mentioned in points (a) to (k) of that article. In accordance with Article 3(g) thereof, the directive applies to the criminal offences covered by Framework Decision 2004/757.

42.      Article 2(1)(c) of that framework decision includes among such offences ‘the possession or purchase of drugs’ with a view to conducting one of the activities listed in Article 2(1)(a), which include the distribution and sale of drugs.

43.      It therefore seems obvious to me that the criminal offence of which the defendants in the cases in the main proceedings were convicted by final judgment, consisting in the possession, for the purposes of resale, of highly dangerous narcotics, as provided for by Article 354a(1) of the Criminal Code, comes within the scope of Directive 2014/42.

44.      The contrary argument put forward by the Austrian Government at the hearing is incapable, in my view, of calling that conclusion into question. I shall attempt to paraphrase that argument. According to that government, the choice of Article 83(1) TFEU as the legal basis for Directive 2014/42 means that Article 3 of that directive, which defines its scope, must be interpreted restrictively, such that the directive does not apply to all the criminal offences covered by the secondary legislation listed in that article, but only to offences which fulfil the condition of particular seriousness and the condition of having a cross-border dimension that are laid down in Article 83(1) TFEU. It follows, according to the Austrian Government, that the offence at issue in the cases in the main proceedings does not come within the scope of Directive 2014/42.

45.      However, it seems to me that there is no support for such a restrictive reading of Article 3 of Directive 2014/42. Indeed, in that article the list of acts of secondary legislation adopted in the areas referred to in the second subparagraph of Article 83(1) TFEU is preceded by the phrase ‘this Directive shall apply to criminal offences covered by’, which can only be understood as referring to all of the criminal offences covered by each of those acts. In other words, that provision in no way stipulates that, among those criminal offences, only those which are particularly serious and have a cross-border dimension come within the scope of Directive 2014/42. Furthermore, as I have already explained, all the offences covered by those acts fulfil ipso facto the condition of particular seriousness and the condition of having a cross-border dimension.

4.      Conclusion regarding the first question

46.      In the light of the foregoing, I suggest that the Court answer the first question referred for a preliminary ruling by holding that Directive 2014/42 and the Charter are applicable in the case of a criminal offence coming within one of the areas of crime listed in the second subparagraph of Article 83(1) TFEU, such as the possession of narcotics for the purpose of their distribution, even when all the elements inherent in the commission of that offence are confined within a single Member State.

B.      The second and third questions

1.      Reformulation of the questions

47.      By its second question, the referring court asks, in substance, about the interpretation of the concept of ‘economic advantage derived … indirectly from a criminal offence’, mentioned in Article 2(1) of Directive 2014/42. More specifically, it seeks to establish whether property seized at the home of the defendants in the main proceedings and their families and from the private car used by DR constitutes such an economic advantage.

48.      By its third question, the referring court asks the Court of Justice to clarify whether Article 2 of Directive 2014/42 is to be interpreted as precluding a provision of national law, such as that in Article 53(2) of the Criminal Code, which does not provide for the confiscation of an economic advantage derived indirectly from a criminal offence.

49.      First of all, I must point out that Article 2(1) of Directive 2014/42 takes a broad approach (19) to the concept of ‘proceeds’, defining them as ‘any economic advantage derived directly or indirectly from a criminal offence’, which ‘may consist of any form of property and [include] any subsequent reinvestment or transformation of direct proceeds and any valuable benefits’. However, I note that the EU legislature did not intend, by referring expressly to direct or indirect economic advantages, to create two independent concepts. Indeed, it is clear from reading recital 11 of Directive 2014/42 that the concept of ‘proceeds’ encompasses not only property which results directly from a criminal offence, but also anything into which such property has been converted. (20) Consequently, I consider that Article 2(1) of Directive 2014/42 has been correctly transposed into Bulgarian law, because, first, Article 53(2) of the Criminal Code provides for the confiscation of ‘the direct and indirect proceeds of a criminal offence’ and, second, Article 53(3) of the Criminal Code provides that ‘“indirect proceeds” shall mean any economic advantage arising from the disposal of direct proceeds, as well as any property resulting from the subsequent conversion, in whole or in part, of direct proceeds’.

50.      That broad approach to the concept of ‘proceeds’ does not, however, include property that does not result from the criminal offence of which an individual has been convicted. Indeed, it is clear from the definition given in Article 2(1) of Directive 2014/42 that the economic advantage, be it direct or indirect, must result from a criminal offence. As regards the question of whether the sums of money seized in the cases in the main proceedings constitute ‘property’ (21) that may be confiscated, I would observe that it is apparent from the order for reference, first, that DR and TS were convicted of the criminal offence of possession for the purpose of resale of narcotics, which is not in itself such as to generate an economic advantage, and that, second, while there was evidence that DR and TS had engaged in the sale of narcotics, they were neither prosecuted nor convicted of that criminal offence. (22) It follows that, in order to rule on the merits of the application for confiscation, the referring court will need to determine whether the economic advantage may result from a criminal offence, such as the sale of narcotics, of which the individual in question has not been convicted.

51.      That being so, it appears necessary to me, in order to provide the referring court with an answer that will be of use to it in deciding the case before it, to reformulate the questions which it has referred to the Court. (23)

52.      I therefore suggest that the Court reformulate the second and third questions as follows:

‘Is Directive 2014/42 to be interpreted as meaning that confiscation necessarily presupposes that the economic advantage results from the criminal offence of which an individual has been convicted, or may confiscation relate to an economic advantage resulting from a different offence of which the individual has not been convicted?’

2.      The reformulated questions

53.      Pursuing the logic which I followed in reformulating these questions, it is appropriate to analyse the various types of confiscation for which the Member States are required to provide under Directive 2014/42 and to determine, when examining the relevant provisions, whether the specific facts of the present cases fit with one or other of those cases.

54.      Articles 4, 5 and 6 of Directive 2014/42 require the Member States to provide for the confiscation of the proceeds of crime in three sets of cases. The first, referred to in Article 4 of the directive, corresponds to ‘ordinary’ confiscation, (24) while the second and third sets, referred to in Articles 5 and 6 of Directive 2014/42, cover, respectively, extended confiscation of additional property and confiscation of property transferred to a third party by a suspected or accused person.

55.      At the outset, I consider that the facts of the cases in the main proceedings do not give grounds for confiscation from a third party as governed by Article 6 of Directive 2014/42, since application of the measure provided for by that provision requires both a transfer of property to a third party and the knowledge of the third party that the purpose of the transfer was to avoid confiscation of the property. In the order for reference, however, the referring court does not mention either of those circumstances.

56.      Article 4(1) of Directive 2014/42 requires Member States to enable, subject to a final conviction for a criminal offence, the confiscation of instrumentalities and proceeds or property the value of which corresponds to such instrumentalities or proceeds. The scope of that provision can better be understood by comparison with the case of confiscation referred to in Article 5 of the directive. The distinction between the case covered by Article 4 of Directive 2014/42 and the case governed by Article 5 of the same directive is, in my view, expressed by the words of recital 19 of the directive, according to which ‘there may be situations where it is appropriate that a criminal conviction be followed by the confiscation not only of property associated with a specific crime, but also of additional property which the court determines constitutes the proceeds of other crimes’ (25) and ‘this approach is referred to as extended confiscation’. It seems to follow from that provision that extended confiscation, as referred to in Article 5 of Directive 2014/42, covers precisely those situations where Article 4 cannot be applied because there is no link between the proceeds and the offence established by the court.

57.      Thus, in the light of the architecture of these provisions and their structure, I consider that, in order for Article 4 of Directive 2014/42 to apply, the proceeds or the property the confiscation of which is being contemplated must have been generated by the criminal offence of which the individual has been convicted. If that interpretation is accepted, it must be held that Article 4 of Directive 2014/42 cannot be applied in the cases in the main proceedings, since, according to the grounds of the order for reference, the sums of money in respect of which the application for confiscation was made could not have been generated by the offence of possessing narcotics for the purpose of resale.

58.      Article 5 of Directive 2014/42 provides for a mechanism of extended confiscation, (26) requiring, in paragraph 1 thereof, that Member States take the necessary measures to enable the confiscation, either in whole or in part, of property belonging to a person convicted of a criminal offence which is liable to give rise, directly or indirectly, to economic benefit, where a court, on the basis of the circumstances of the case, is satisfied that the property in question is derived from criminal conduct. In addition, the concept of ‘criminal offence’ for the purposes of Article 5(1) includes, at least, the offences listed in Article 5(2). It follows that, in order to determine whether the situation in any given case comes within the scope of Article 5 of Directive 2014/42, it is necessary to consider successively whether the conditions laid down in each of those paragraphs are fulfilled.

59.      In the first place, it must be determined whether, in the present cases, the criminal offence of which the individual in question has been convicted comes within the scope of Article 5(2)(e) of Directive 2014/42. That point refers to ‘a criminal offence that is punishable, in accordance with the relevant instrument in Article 3 …, by a custodial sentence of a maximum of at least four years’. While there is no question that the possession of narcotics with a view to resale is a criminal offence punishable in accordance with Article 2(1)(c) of Framework Decision 2004/757, to which Article 3(g) of Directive 2014/42 refers, it is necessary to ascertain whether that criminal offence, as characterised in the case in point, is punishable by a custodial sentence of a maximum of at least four years. Indeed, in accordance with Article 4(1) and (2) of Framework Decision 2004/757, the maximum penalty prescribed for the offence referred to in Article 2(1)(c) thereof must be between 1 and 3 years of imprisonment at least, that penalty being increased to 5 to 10 years at least where: (i) the offence involves large quantities of drugs, or (ii) it either involves those drugs which cause the most harm to health, or has resulted in significant damage to the health of a number of persons. It may be assumed that that criterion is met given that the offence of which the individuals concerned have been convicted includes the possession of highly dangerous narcotics, that description seeming to correspond to the concept which I have mentioned of ‘drugs which cause the most harm to health’.

60.      In the second place, it is necessary to determine whether the condition that the criminal offence must be ‘liable to give rise, directly or indirectly, to economic benefit’ is fulfilled in the case in point. (27) To this end, it seems essential to me, in order to give a useful answer to the referring court, to make clear what elements must be taken into account in making such an assessment. The use of the word ‘liable’ (28) renders it necessary, I think, to analyse the objective nature of the offence, as it is characterised in national criminal law. However, one might wonder whether additional criteria exist, since recital 20 of Directive 2014/42 states that, ‘when determining whether a criminal offence is liable to give rise to economic benefit, Member States may take into account the modus operandi, for example if a condition of the offence is that it was committed in the context of organised crime or with the intention of generating regular profits from criminal offences’. In the light of that wording, marked by the use of the verb ‘may’, I consider that Member States are not required to take into account the modus operandi when determining whether a criminal offence is liable to give rise to economic benefit. That interpretation is corroborated, moreover, by the second sentence of the recital, which states that taking the modus operandi into account ‘should not, in general, prejudice the possibility to resort to extended confiscation’. I infer from that that the determination of whether this condition is fulfilled is not necessarily dependent upon an examination of the modus operandi of the offence and that the national authorities may infer simply from the characterisation of an offence in national law that it is liable to procure an economic benefit.

61.      In support of that conclusion, I would add that, while Article 3(1)(a) of Framework Decision 2005/212 referred to an offence ‘committed within the framework of a criminal organisation’, that condition is included only in Article 5(2)(b) of Directive 2014/42, which shows that it is not systematically imposed as a condition in the case of the other offences referred to in the directive.

62.      Applying this reasoning to the present cases, I take the view, as does the referring court, that it is no way established that the criminal offence of possessing narcotics for the purpose of resale is liable to give rise, directly or indirectly, to economic benefit. That said, in order to rule on this question, the national court may, if its national law permits it to do so, take into consideration the modus operandi of the offence, including in particular whether it was committed in the context of organised crime or with the intention of generating regular profits from criminal offences.

63.      Lastly, assuming that, following this two-stage analysis, the offence does come within the scope of extended confiscation, the national court will, in accordance with Article 5(1) of Directive 2014/42, have to determine, on the basis of the facts and evidence submitted to it, whether the property in respect of which an application for confiscation has been made is derived from criminal conduct. The court’s conclusion must rest on the specific facts of the case which, taking the example given in that provision, may include any disproportion between the value of the property in question and the lawful income of the convicted person. (29)

64.      In the light of the foregoing considerations, I propose that the Court answer the second and third questions referred for a preliminary ruling, as reformulated, by holding that Directive 2014/42 must be interpreted as meaning that confiscation does not necessarily presuppose that the economic advantage results from the criminal offence of which an individual has been convicted, but may relate to property which, on the basis of the facts of the case, the court is satisfied is derived from other criminal conduct, provided that the criminal offence of which the individual has been found guilty is among those listed in Article 5(2) of that directive and is liable, directly or indirectly, to give rise to economic benefit.

C.      The fourth question

65.      By its fourth question referred for a preliminary ruling, the referring court asks, in substance, whether Article 47 of the Charter must be interpreted as precluding national legislation, such as that at issue in the present cases, which allows for the confiscation in favour of the State of property which is claimed to belong to a person other than the perpetrator of the criminal offence, without that third party having the possibility to appear as a party in the confiscation proceedings.

66.      I should observe as a preliminary point that, as is apparent from the case file, Article 306(1)(1) of the Code of Criminal Procedure governs the procedure by which the competent court rules, following a criminal conviction, on the lawfulness of confiscation pursuant to Article 53(2)(b) of the Criminal Code. Since a third party who considers himself or herself to be the owner of the confiscated property cannot appear as a party in such proceedings, the referring court seems to consider that the rules in question are not consistent with the right to an effective remedy, as enshrined in Article 47 of the Charter.

67.      As regards that provision of the Charter, it must be observed that, according to the Court’s settled case-law, the fundamental rights guaranteed in the legal order of the European Union, and so, essentially, the rights enshrined by the Charter, are applicable in all situations governed by EU law, but not outside such situations. (30)

68.      In the present cases, it is apparent from the order for reference that Article 53(2)(b) of the Criminal Code was inserted by the zakon za izmenenie i dopalnenie na Nakazatelnia kodeks (law amending and supplementing the Criminal Code (DV No 7 of 22 January 2019)) and that the aim of that law was to implement Directive 2014/42 in Bulgarian law, for the purposes of Article 51(1) of the Charter. The Bulgarian legislature was therefore required to observe the fundamental rights enshrined in Article 47 of the Charter and, in particular, the right of individuals to enjoy effective judicial protection of their rights under EU law. (31)

69.      The first paragraph of Article 47 of the Charter provides that everyone whose rights and freedoms guaranteed by EU law are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in that article. In order to ensure observance of that fundamental right within the European Union, the second subparagraph of Article 19(1) TEU imposes on the Member States an obligation to provide remedies sufficient to ensure effective legal protection in the fields covered by EU law. (32)

70.      Moreover, it must be noted that the right to an effective remedy is reaffirmed by Directive 2014/42 itself. (33) Article 8 of that directive provides, in paragraph 1 thereof, that Member States must take the necessary measures to ensure that the persons affected by the measures provided for under the directive have the right to an effective remedy and a fair trial in order to uphold their rights. Having regard to the general nature of its wording, there is no doubt that that provision applies equally to third parties. (34) Accordingly, the compliance of the national legislation at issue with the right to an effective remedy must be examined in the light of Article 8(1) of Directive 2014/42, read in the light of Article 47 of the Charter, which are therefore the provisions the interpretation of which should be the focus of the present question for a preliminary ruling.

71.      It is clear that national legislation offering third parties no opportunity to assert their right to property before a national court would constitute an infringement of the right to an effective remedy. Nevertheless, it must be borne in mind that, according to the settled case-law of the Court, it is only possible to arrive at such a conclusion once a comprehensive assessment of the national legal system has been made. (35) Only if that assessment results in a negative conclusion does EU law lead to the creation of a new remedy. (36)

72.      In its written observations, the Bulgarian Government emphasised in this connection that national law offers all third parties who allege that their right to property has been infringed in the course of confiscation proceedings under Article 306(1)(1) of the Code of Criminal Procedure an opportunity to bring their claim before a civil court. More specifically, such third parties may have recourse to the traditional in rem remedy of civil-law systems, which is to say, an action for recovery of ownership governed by Article 108 of the zakon za sobstvenostta (law on property). According to the Bulgarian Government, it is possible by means of this remedy to bring an enforcement action that is not subject to any limitation period and by means of which the owner of property is able to reclaim that property from any person possessing or holding it unduly.

73.      Thus, the Court will need to determine, in its forthcoming judgment, whether the existence of such a remedy in national law is capable of satisfying the requirements of the right to an effective remedy, within the meaning of Article 8 of Directive 2014/42, read in the light of Article 47 of the Charter, or whether those latter provisions require that the national legislation at issue permit third parties to appear as parties to the confiscation proceedings themselves.

74.      At the outset, it is necessary to reject the argument, put forward by the Commission at the hearing, that the second interpretation I mentioned in the preceding paragraph is necessary on the ground that Article 8 of Directive 2014/42 imposes an obligation on the Member States to provide for a remedy reserved to third parties who assert rights of ownership in confiscated property. It seems to me that that argument in fact implies that Article 8 grants such third parties the right to bring a direct action challenging a confiscation decision. Nonetheless, it follows from Article 8(6) of the directive that that possibility must be provided for solely as regards persons ‘in respect of whom confiscation is ordered’, (37) while, according to recital 33 (38) and Article 8(7) (39) of Directive 2014/42, such third parties in respect of whom confiscation is not ordered merely have the right to be heard, and the right of access to a lawyer throughout the confiscation proceedings. (40)

75.      Having said that, I shall now go on to consider the question of whether the action for recovery of ownership provided for in Bulgarian law may be regarded as an effective remedy within the meaning of Article 47 of the Charter. This, I think, must be done in two stages: first, it is necessary to assess whether that remedy is capable of directly rectifying the situation complained of; second, it is necessary to ensure that the procedural rules applicable to that remedy do not render it excessively difficult for third parties to exercise their property rights.

76.      The first stage may be inferred, in my view, from the judgment handed down by the Court in Okrazhna prokuratura – Haskovo and Apelativna prokuratura – Plovdiv. (41) In that case, the Court was called upon to rule on a question relating to the confiscation, following the conviction of an individual of the offence of smuggling, of property belonging to a third party acting in good faith. The Court held that Bulgarian legislation providing for the confiscation of all property used to commit a criminal offence and belonging to a third party acting in good faith did not meet the requirements of the right to an effective remedy. Since the only remedy available to the third-party owner of the confiscated property was an action for compensation against the individual convicted, the legislation in question did not afford the third party any opportunity to challenge the legality of the confiscation order in order to recover his or her property. (42)

77.      In the present cases, there is, I think, no doubt that the action for the recovery of ownership provided for in Bulgarian law is a remedy capable of directly rectifying the situation complained of, inasmuch as, if such an action is brought successfully, the proceedings thus initiated will result in an enforceable judgment and enable the third party concerned to recover the property that was confiscated pursuant to Article 306 of the Code of Criminal Procedure. (43) Even if the State sells the property following its confiscation, I consider that, contrary to the position expressed by the Commission during the hearing, the answer cannot be different, in so far as an action for recovery of ownership can, it seems to me, be brought not only against the State but also against any purchaser of the property. Similarly, I also disagree with the Commission’s submission, in substance, that such an action will not be effective if it cannot be brought before a confiscation order becomes final. Indeed, Article 47 of the Charter requires, as I have already indicated, that such an action put the third parties concerned in a position to recover their property, without imposing any condition that that action must be brought before that time.

78.      As regards the second stage, that calls for an analysis of the type which the Court traditionally conducts to assess observance of the principle of effectiveness, which, together with the principle of equivalence, marks the bounds of the procedural autonomy of the Member States. However, the written and oral parts of the procedure have disclosed only limited information with regard to the procedural rules which govern actions for the recovery of ownership under Bulgarian law. That information must be examined.

79.      First, the Bulgarian Government stated during the hearing that a third party bringing an action for recovery of ownership of confiscated property may choose to be represented by a lawyer or to represent himself or herself. Even though the absence of any rule requiring mandatory legal representation may support the conclusion that that remedy must be considered effective, it must be observed that the possibility of the third party’s obtaining legal aid could also be necessary in order for that conclusion to be reached, that possibility being assessed, as the Court held in its judgment in DEB, (44) by reference to the following criteria: the subject matter of the litigation; whether the applicant has a reasonable prospect of success; the importance of what is at stake for the applicant in the proceedings; the complexity of the applicable law and procedure, and the applicant’s capacity to represent himself or herself effectively. Clearly, that is an assessment that should be left to the referring court to make.

80.      Second, the Bulgarian Government stated during the hearing that the length of the civil proceedings in an action for the recovery of ownership is between two and five years. In this regard, I think it useful to refer to the case-law of the European Court of Human Rights (‘ECtHR’) concerning Article 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (‘the ECHR’), which may be taken into consideration for the purposes of interpreting Article 47 of the Charter, by virtue of the ‘homogeneity clause’ in Article 52(3) thereof. (45) According to that case-law, since the remedy must be effective in practice as well as in law, (46) the requirements of a fair trial flowing from Article 6 ECHR may be relevant in the evaluation of the effectiveness of a remedy for the purposes of Article 13 ECHR. (47) More specifically, the right to a hearing within a reasonable time may be a sound criterion for evaluating such effectiveness. (48) That said, the ‘reasonableness’ of the period must be appraised, according to the settled case-law of the Court, in the light of all of the circumstances specific to each case and, in particular, the importance of the case for the person concerned, its complexity and the conduct of the parties to the case. (49) It will be for the referring court to make that appraisal.

81.      In the light of the above considerations, I propose that the Court answer the fourth question referred for a preliminary ruling by holding that Article 8 of Directive 2014/42, read in the light of Article 47 of the Charter, must be interpreted as not precluding national legislation, such as that at issue in the present cases, which allows for the confiscation in favour of the State of property which is claimed to belong to a person other than the perpetrator of the criminal offence, without that third party having the possibility to appear as a party in the confiscation proceedings, where the third party is afforded a remedy under national law, before a civil court, which enables him or her to recover the confiscated property, provided that the procedural rules applicable to that remedy do not render it excessively difficult to exercise his or her property right.

82.      Finally, I would add that the level of protection of the right to an effective remedy so provided for would not, in my opinion, be in any way lower than that guaranteed by the ECtHR. While it is indeed true that, according to the case-law resulting from the judgment in Silickieně v. Lithuania, persons whose property is confiscated should, as a general principle, be granted the status of parties to the proceedings in which the confiscation is ordered, it is equally true that it follows from that same case-law that the factual circumstances of the case may show that the national authorities have de facto afforded the persons in question a reasonable and sufficient opportunity to protect their interests adequately. (50)

V.      Conclusion

83.      Having regard to the foregoing, I propose that the Court answer the questions referred for a preliminary ruling by the Apelativen sad – Varna (Court of Appeal, Varna, Bulgaria) as follows:

(1)      Directive 2014/42/EU of the European Parliament and of the Council of 3 April 2014 on the freezing and confiscation of instrumentalities and proceeds of crime in the European Union and the Charter of Fundamental Rights of the European Union are applicable in the case of a criminal offence, such as that at issue in the main proceedings, consisting in the possession of narcotics for the purpose of their distribution, even when all the elements inherent in the commission of that offence are confined within a single Member State.

(2)      Directive 2014/42 must be interpreted as meaning that confiscation does not necessarily presuppose that the economic advantage results from the criminal offence of which an individual has been convicted, but may relate to property which, on the basis of the facts of the case, the court is satisfied is derived from other criminal conduct, provided that the criminal offence of which the individual has been found guilty is among those listed in Article 5(2) of that directive and is liable, directly or indirectly, to give rise to economic benefit.

(3)      Article 8 of Directive 2014/42, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as not precluding national legislation, such as that at issue in the present cases, which allows for the confiscation in favour of the State of property which is claimed to belong to a person other than the perpetrator of the criminal offence, without that third party having the possibility to appear as a party in the confiscation proceedings, where the third party is afforded a remedy under national law, before a civil court, which enables him or her to recover the confiscated property, provided that the procedural rules applicable to that remedy do not render it excessively difficult to exercise his or her property right.

1      Original language: French.

i      The wording of the headwords, points 12, 13, 14, 16, 17, 18, 19, 20, 21, 22, 43, 46, 49, 50, 52, 56, 57, 58, 59, 62, 64, 68, 76, operative parts 2 and 3, as well as footnote 28 of this Opinion has been amended since it was first put online.

2      OJ 2014 L 127, p. 39, and corrigendum OJ 2014 L 138, p. 114.

3      OJ 2004 L 335, p. 8.

4      See, to that effect, judgment of 14 January 2021, Okrazhna prokuratura – Haskovo and Apelativna prokuratura – Plovdiv (C‑393/19, EU:C:2021:8, paragraph 31 and the case-law cited).

5      Judgment of 13 June 2019 (C‑646/17, EU:C:2019:489).

6      Directive of the European Parliament and of the Council of 22 May 2012 (OJ 2012 L 142, p. 1).

7      Judgment of 13 June 2019, Moro (C‑646/17, EU:C:2019:489, paragraphs 32 to 36).

8      Judgment of 13 June 2019 (C‑646/17, EU:C:2019:489).

9      My italics.

10      Proposal for a directive of the European Parliament and of the Council on the freezing and confiscation of proceeds of crime in the European Union (COM(2012) 085 final) (‘the proposal for a directive’).

11      My italics.

12      In legal theory, this harmonisation is commonly referred to as ‘autonomous’. See, in particular, Zapatero, L.A. and Muñoz de Morales Romero, M., ‘Droit pénal européen et traité de Lisbonne: le cas de l’harmonisation autonome (article 83.1 TFUE)’, in Giudicelli-Delage, G. and Lazerges, C. (eds), Le droit pénal de l’Union européenne au lendemain du Traité de Lisbonne, Société de législation comparée, Paris, 2012, p. 116, according to whom: ‘the term autonomous harmonisation shows that, for the first time, it is possible to speak of the indirect stricto sensu competences in the field of substantive criminal law which the European institutions exercise by means of the Community method and which, by contrast with competences previously recognised under the former third pillar (Article 29 TEU), are unconnected with any need for judicial cooperation.’ (My italics). Also see Wieckzorek, I., The Legitimacy of EU Criminal Law, Hart Publishing, 2020, p. 118, who notes that the proposal set out in the final report of the Working Group X on Freedom, Security and Justice – one of the working groups making up the convention entrusted with the drafting of the Treaty of Lisbon (‘Convention on the Future of Europe’) – to make the attribution of powers for harmonising substantive criminal law conditional on the need to make judicial cooperation possible was not retained by the authors of the treaty.

13      OJ 2005 L 68, p. 49.

14      Article 2(1) of Framework Decision 2005/212 provides: ‘Each Member State shall take the necessary measures to enable it to confiscate, either wholly or in part, instrumentalities and proceeds from criminal offences punishable by deprivation of liberty for more than one year, or property the value of which corresponds to such proceeds.’

15      Article 4 of Framework Decision 2005/212 provides: ‘Each Member State shall take the necessary measures to ensure that interested parties affected by measures under Articles 2 and 3 have effective legal remedies in order to preserve their rights.’

16      Article 5 of Framework Decision 2005/212 is worded as follows: ‘This Framework Decision shall not have the effect of altering the obligation to respect fundamental rights and fundamental principles, including in particular the presumption of innocence, as enshrined in Article 6 [TEU].’

17      The proposal for a directive, p. 5.

18      See, to that effect, Mitsilegas, V., EU Criminal Law after Lisbon – Rights, Trust and Transformation of Justice in Europe, Hart Publishing, London, 2016, p. 59.

19      In its proposal for a directive, the Commission noted, in point 2.6 thereof, that ‘the definition of “proceeds” has been extended as compared to the definition set out in [Framework Decision 2005/212] in order to include the possibility of confiscating all valuable benefits resulting from the proceeds of crime, including indirect proceeds’.

20      According to that recital: ‘proceeds can include any property including that which has been transformed or converted, fully or in part, into other property, and that which has been intermingled with property acquired from legitimate sources, up to the assessed value of the intermingled proceeds. It can also include the income or other benefits derived from proceeds of crime, or from property into or with which such proceeds have been transformed, converted or intermingled.’

21      In accordance with Article 2(2) of Directive 2014/42, ‘“property” means property of any description, whether corporeal or incorporeal, movable or immovable, and legal documents or instruments evidencing title or interest in such property’.

22      See points 21 and 22 of this Opinion and paragraphs 6, 7, 8 and 16 of the order for reference.

23      See, to that effect, judgment of 14 May 2020, T-Systems Magyarország (C‑263/19, EU:C:2020:373, paragraph 45 and the case-law cited).

24      For the term ‘ordinary confiscation’, see Commission Staff Working Paper – Accompanying document to the Proposal for a directive of the European Parliament and the Council on the freezing and confiscation of proceeds of crime in the European Union – Impact assessment (SWD (2012) 31 final, point 3.2).

25      My italics.

26      As recital 19 of Directive 2014/42 states, Framework Decision 2005/212 provided, in Article 3, for three different sets of minimum requirements that Member States could choose from in order to apply extended confiscation, with the result that, in the process of transposing that decision, Member States chose different solutions.

27      This check seems to me to be especially important since Article 5(2) of Directive 2014/42 covers a very wide variety of offences which, on account of their nature or classification, are not always liable to procure an economic benefit.

28      I would also point out that the link between the criminal offence and the economic benefit is characterised similarly in the Spanish version (‘que directa o indirectamente pueda dar lugar a una ventaja económica’), in the French version (‘susceptible de donner lieu, directement ou indirectement, à un avantage économique’), the Italian version (‘suscettibile di produrre, direttamente o indirettamente, un vantaggio economico’), the Estonian version (‘mis võimaldavad otseselt või kaudselt majanduslikku kasu tuua võivas kuriteos’) and the Portuguese version (‘que possa ocasionar direta ou indiretamente um benefício económico’) of that provision in Directive 2014/42.

29      On this point, I would also observe that, according to the wording of Article 5(1) of Directive 2014/42, the court must be ‘satisfied’ of the criminal source of the property in question, whereas in each of the cases of confiscation referred to in Article 3(2) of Framework Decision 2005/212, the court must be ‘fully convinced’. However, I think this word must be understood in the light of the safeguards procured by Article 8(8) of Directive 2014/42, in accordance with which, ‘in proceedings referred to in Article 5, the affected person shall have an effective possibility to challenge the circumstances of the case, including specific facts and available evidence on the basis of which the property concerned is considered to be property that is derived from criminal conduct’ (my italics). See, on this point, Boucht, J., ‘Extended Criminal Confiscation’, The Limits of Asset Confiscation – On the Legitimacy of Extended Appropriation of Criminal Proceeds, Hart Publishing, London, 2017, p. 39.

30      See judgment of 14 January 2021, Okrazhna prokuratura – Haskovo and Apelativna prokuratura – Plovdiv (C‑393/19, EU:C:2021:8, paragraph 31 and the case-law cited).

31      See judgment of 17 April 2018, Egenberger (C‑414/16, EU:C:2018:257, paragraph 49 and the case-law cited).

32      Judgment of 8 May 2019, Leitner (C‑396/17, EU:C:2019:375, paragraphs 59 and 60).

33      It must be remembered, in this connection, that third parties must be placed in a position to invoke rights of ownership in property in all the cases of confiscation provided for by Directive 2014/42, since Article 8(9) of that directive provides that ‘third parties shall be entitled to claim title of ownership or other property rights, including in the cases referred to in Article 6’ (my italics).

34      The interpretation of Article 4 of Framework Decision 2005/112 provided by the Court in its judgment of 14 January 2021, Okrazhna prokuratura – Haskovo and Apelativna prokuratura – Plovdiv (C‑393/19, EU:C:2021:8, paragraph 61), applies, in my view, by analogy, given the substantially identical content of the two provisions.

35      See judgment of 14 May 2020, Országos Idegenrendészeti Főigazgatóság Dél-alföldi Regionális Igazgatóság (C‑924/19 PPU and C‑925/19 PPU, EU:C:2020:367, paragraph 143 and the case-law cited).

36      Judgment of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council (C‑583/11 P, EU:C:2013:625, paragraph 103).

37      The second sentence of Article 8(6) of Directive 2014/42 provides: ‘Member States shall provide for the effective possibility for a person in respect of whom confiscation is ordered to challenge the order before a court.’

38      According to recital 33 of Directive 2014/42, ‘it is therefore necessary to provide for specific safeguards and judicial remedies in order to guarantee the preservation of their fundamental rights in the implementation of this Directive. This includes the right to be heard for third parties who claim that they are the owner of the property concerned, or who claim that they have other property rights (“real rights”, “ius in re”), such as the right of usufruct’.

39      The first sentence of Article 8(7) of Directive 2014/42 provides: ‘without prejudice to Directive [2012/13] and Directive 2013/48/EU [of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty (OJ 2013 L 294, p. 1)], persons whose property is affected by a confiscation order shall have the right of access to a lawyer throughout the confiscation proceedings relating to the determination of the proceeds and instrumentalities in order to uphold their rights.’

40      I note that an amendment to confer on third parties the ‘right to an impartial tribunal and an effective remedy before any final confiscation order is made’ (my italics) was tabled within the Committee on Civil Liberties, Justice and Home Affairs of the European Parliament. However, that amendment was not adopted in the final version of Directive 2014/42. See the draft report of Monica Luisa Macovei (PE494.663V01‑00) on the proposal for a directive, amendment 151.

41      Judgment of 14 January 2021 (C‑393/19, EU:C:2021:8).

42      Judgment of 14 January 2021, Okrazhna prokuratura – Haskovo and Apelativna prokuratura – Plovdiv (C‑393/19, EU:C:2021:8, paragraphs 63 and 64).

43      It seems to me that the actions in civil liability provided for in Bulgarian law and mentioned by the Commission during the hearing are different from the action for recovery of ownership, which concerns property rights and offers the possibility of obtaining restitution of the property in question.

44      Judgment of 22 December 2010 (C‑279/09, EU:C:2010:811, paragraph 61).

45      Article 52(3) of the Charter provides as follows: ‘In so far as this Charter contains rights which correspond to rights guaranteed by the [ECHR], the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.’

46      ECtHR, 27 June 2000, İlhan v. Turkey (CE:ECHR:2000:0627JUD002227793, § 97); ECtHR, 26 October 2000, Kudła v. Poland (CE:ECHR:2000:1026JUD003021096, § 157); and ECtHR, 19 April 2007, Vilho Eskelinen and Others v. Finland (CE:ECHR:2007:0419JUD006323500, § 80).

47      ECtHR, 7 June 2011, Csüllög v. Hungary (CE:ECHR:2011:0607JUD003004208, § 46).

48      ECtHR, 10 April 2008, Wasserman v. Russia (CE:ECHR:2008:0410JUD002107105, § 55), and ECtHR, 17 July 2008, Kaić and Others v. Croatia (CE:ECHR:2008:0717JUD002201404, § 37).

49      See, inter alia, judgment of 28 February 2013, Review of Arango Jaramillo and Others v EIB (C‑334/12 RX‑II, EU:C:2013:134, paragraph 28 and the case-law cited).

50      ECtHR, 10 April 2012, Silickieně v. Lithuania (CE:ECHR:2012:0410JUD002049602, §§ 47 to 50). See also ECtHR, 15 January 2015, Veits v. Estonia (CE:ECHR:2015:0115JUD001295111, §§ 57 to 60), and ECtHR, 16 April 2019, Bokova v. Russia (CE:ECHR:2019:0416JUD002787913, §§ 55 to 59).

© European Union
The source of this judgment is the Europa web site. The information on this site is subject to a information found here: Important legal notice. This electronic version is not authentic and is subject to amendment.