ECJ C-280/25 (Lin II) – AG Opinion – Member States define serious fraud, even below €50,000 threshold

On December 18, 2025, the ECJ issues the AG Opinion in the case C-280/25 (Lin II).

The Court of Justice interpreted Article 325(1) TFEU and Article 2(1) of the PFI Convention.

Summary

Context and Legal Framework: The case stems from criminal proceedings against Mr. G.D. for tax fraud, raising questions regarding the interpretation of EU law related to the protection of financial interests and the application of national criminal law principles, particularly concerning limitation periods for criminal liability.
Key Questions Presented: The High Court of Cassation and Justice in Romania referred two critical questions to the Court of Justice: (1) whether a specific monetary threshold must be established for fraud to be considered serious and (2) whether national courts must disapply certain national standards regarding the retroactive application of more lenient criminal law.
Court’s Decision and Justification: The Advocate General suggests that Member States can classify fraud affecting the EU’s financial interests as serious even if the amount involved is below €50,000, emphasizing the discretion of states in defining serious fraud while adhering to EU obligations.
Implications for National Law: The Opinion indicates that national courts are not required to retroactively apply the more lenient criminal law if it leads to the revival of criminal liability after the expiration of limitation periods, thereby respecting the principle of legal certainty and the res judicata effect of prior judgments.
Potential Reconsideration of Lin I: The Advocate General calls for a reevaluation of the Lin I judgment, particularly regarding the disapplication of national standards that protect the retroactive application of lenient laws, indicating that such standards should be maintained to avoid creating a systemic risk of impunity for serious fraud cases.

Facts and Background

Between May 3, 2012, and January 23, 2014, Mr. G.D., as the director of two commercial companies, provided B.V. with 12 tax invoices for fictitious purchases.
B.V. recorded these invoices to reduce its tax base, resulting in a loss of 268,536 Romanian lei (approximately €59,304) to the tax authorities, which included VAT of 163,656 Romanian lei (around €36,142).
On February 24, 2022, the Tribunalul Bihor convicted Mr. G.D. for facilitating tax evasion.
However, on March 21, 2024, the Curtea de Apel Oradea allowed Mr. G.D.’s appeal, discontinuing the criminal proceedings after determining that the limitation period for criminal liability had expired.
The public prosecution service then lodged an appeal, arguing that the proceedings should not have been discontinued based on the applicability of the Lin I judgment.

Questions

First Question: In interpreting and applying Article 325 TFEU, Article 1(1)(a), and Articles 2 and 9 of the PFI Convention, in the absence of a domestic law provision establishing a minimum amount for fraud affecting the EU’s financial interests to be considered serious, should fraud be classified as serious only if it involves an amount exceeding €50,000?
Second Question: If the answer to the first question is negative, should the provisions of EU law be interpreted as requiring national courts to disapply the national standard of protection regarding the retroactive application of the more lenient criminal law (lex mitior), especially in cases where procedural acts occurred before the invalidation of the national legislative provision governing the interruption of the limitation period for criminal liability? This includes considerations of:
- The prohibition on applying lex tertia.
- Whether the general limitation period had expired before the judgment in Lin I was delivered.
- The potential for inadequate protection of fundamental rights compared to the ECHR.
- The lack of specific criteria in national law to assess the systemic risk of impunity in serious fraud cases.

AG Opinion

First question:

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.

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:

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.

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.

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