1) This request for a preliminary ruling concerns the interpretation of the principle of the retroactive application of the more lenient criminal law, enshrined in the third sentence of Article 49(1) of the Charter of Fundamental Rights of the European Union (‘the Charter’).

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18) The Customs and Indirect Taxes Authority and FranceAgriMer brought an appeal against that judgment before the referring court; the referring court considers that the first plea introduced by FranceAgriMer raises a question of EU law concerning the interpretation of the principle of the retroactive application of the more lenient criminal law enshrined in Article 49(1) of the Charter.

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23) Finally, that court takes the view that the application of the principle of the retroactive application of the more lenient criminal law in circumstances such as those of the case in the main proceedings would have the consequence of weakening the prevention and penalisation of abuse of the financial interests of the European Union. Thus, the application of the principle referred to in Article 49(1) of the Charter could preclude compliance with Article 4(3) TEU.

24) In those circumstances the Cour de cassation (Court of Cassation, France) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling: ‘Is Article 49 of the Charter … to be interpreted as precluding a situation in which a person is convicted on the ground that he obtained export refunds, to which he was not entitled, by means of deceitful practices or the making of false declarations as to the nature of the goods in respect of which the refunds were requested, although, as a result of changes in the rules which occurred subsequent to the facts of the case, the goods that were in fact exported by that person have since become eligible for those refunds?’

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25) By its question, the referring court seeks to ascertain, in essence, whether the principle of the retroactive application of the more lenient criminal law, enshrined in the third sentence of Article 49(1) of the Charter, must be interpreted as precluding a situation in which a person is convicted on the ground that he wrongfully obtained special export refunds provided for in Regulation No 1964/82, by means of deceitful practices or the making of false statements as to the nature of the goods in respect of which the refunds were requested, although, as a result of changes in the rules which occurred subsequent to those acts, the goods that were exported by that person have since become eligible for those refunds.

26) As a preliminary point, it should be noted that the principle of the retroactive application of the more lenient criminal law, as enshrined in Article 49(1) of the Charter, is part of primary EU law. Even before the entry into force of the Treaty of Lisbon, which conferred on the Charter the same legal value as the Treaties, the Court held that that principle followed from the constitutional traditions common to the Member States and, therefore, had to be regarded as forming part of the general principles of EU law, which national courts must respect when applying national law (judgment of 6 October 2016, Paoletti and Others, C‑218/15, EU:C:2016:748, paragraph 25).

27) Thus, the fact that the offending conduct at issue in the main proceedings took place from 1987 to 1992, that is to say, before the entry into force of the Treaty of Lisbon on 1 December 2009, does not preclude, as such, the application, in the present case, of the principle of the retroactive application of the more lenient criminal law, enshrined in the third sentence of Article 49(1) of the Charter.

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30) In those circumstances, it must be held that the criminal charge provided for in Article 426(4) of the Customs Code and the main criminal proceedings at issue fall within the scope of the fundamental rights guaranteed in the legal order of the European Union within the meaning of the case-law referred to in paragraph 28 of the present judgment, with the result that the referring court must respect, in the context of that procedure, the principle of the retroactive application of the more lenient criminal law, enshrined in the third sentence of Article 49(1) of the Charter (see, by analogy, judgment of 3 May 2005, Berlusconi and Others, C‑387/02, C‑391/02 and C‑403/02, EU:C:2005:270, paragraph 69).

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32) It must therefore be determined whether, in the light of the amendment of the eligibility criteria provided for in Article 1 of Regulation No 1964/82, the principle of the retroactive application of the more lenient criminal law, enshrined in the third sentence of Article 49(1) of the Charter, must be interpreted as precluding, in circumstances such as those in the main proceedings, a situation in which a person is convicted for having made false declarations or having engaged in deceitful practices, within the meaning of Article 426(4) of the Customs Code.

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41) In the light of all the foregoing, the answer to the question referred is that the principle of the retroactive application of the more lenient criminal law, enshrined in the third sentence of Article 49(1) of the Charter, must be interpreted as not precluding a situation in which a person is convicted on the ground that he wrongfully obtained special export refunds provided for in Regulation No 1964/82, by means of deceitful practices or the making of false statements as to the nature of the goods in respect of which the refunds were requested, although, as a result of changes in those rules which occurred subsequent to the acts complained of, the goods that were exported by that person have since become eligible for those refunds.

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42) Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Fifth Chamber) hereby rules:

The principle of the retroactive application of the more lenient criminal law, enshrined in the third sentence of Article 49(1) of the Charter of Fundamental Rights of the European Union, must be interpreted as not precluding a situation in which a person is convicted on the ground that he wrongfully obtained special export refunds provided for in Commission Regulation (EEC) No 1964/82 of 20 July 1982 laying down the conditions for granting special export refunds on certain cuts of boned meat of bovine animals, by means of deceitful practices or the making of false statements as to the nature of the goods in respect of which the refunds were requested, although, as a result of changes in those rules which occurred subsequent to the acts complained of, the goods that were exported by that person have since become eligible for those refunds.