CROSS-BORDER TRANSFER OF PRISONERS IN THE LIGHT OF THE CASE-LAW OF THE COURT OF JUSTICE OF THE EUROPEAN UNION Текст научной статьи по специальности «Право»

НОВЫЕ РЕШЕНИЯ В ПРАВОТВОРЧЕСТВЕ NEW SOLUTIONS IN LAW-MAKING

DOI: 10.33693/2223-0092-2021-11-6-129-155

Cross-border Transfer of Prisoners

in the Light of the Case-law

of the Court of Justice of the European Union

L. Klimek ©

Matej Bel University,

Banska Bystrica, Slovak Republic

E-mail: [email protected]

Abstract. A set of cases of the Court of Justice of the European Union have been adopted, supplementing the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty. In five sections the paper analyses relevant cases. In each case at the outset a reference for a preliminary ruling is mentioned. Further, dispute in the main proceedings and the question(s) referred for a preliminary ruling are analysed. The most important parts of analyses are considerations by the Court of Justice and its rulings.

Key words: transfer of prisoners at European level, mutual recognition, case-law, Court of Justice of the European Union, case C-554/14 -Atanas Ognyanov, case C-289/15 - Jozef Grundza, case C-573/17 - Daniel Adam Poptawski ("Poptawski I"), case C-314/18 - SF, Case C-221/19 - AV

Acknowledgments. The contribution was elaborated as a part of the research project VEGA No. 1/0004/20 "Implementation of Mutual Recognition of Judicial Decisions in Criminal Matters into the Legal Order of the Slovak Republic" [Slovak: Zavedenie vzajomneho uznavania justicnych rozhodnuti v trestnych veciach do pravneho poriadku Slovenskej republiky], funded by the Scientific Grant Agency of the Ministry of Education, Science, Research and Sport of the Slovak Republic and the Slovak Academy of Sciences. The funding was awarded to the Matej Bel University in Banska Bystrica, Slovak Republic.

DOI: 10.33693/2223-0092-2021-11-6-129-155

Трансграничное регулирование передачи заключенных в рамках прецедентного права Суда Европейского Союза

Л. Климек ©

Университет Матея Бела,

Банска Быстрица, Республика Словакия

E-mail: [email protected]

Аннотация. В статье рассмотрены вопросы принятых решений Суда Европейского Союза, дополняющих Рамочное решение 2008/909/JHA, о взаимном признании приговоров о наказании в виде лишения свободы. Статья содержит пять основных разделов, которые подробно анализируют решения по данной теме. В каждом рассматриваемом кейсе автор приводит ссылку

на оригинал судебного акта. Далее анализируется спор в рамках основного разбирательства и вопросы, переданные для вынесения решения суда. Наиболее важными результатами исследования статьи являются анализ проблемы и выводы Суда.

Ключевые слова: передача заключенных между странами ЕС, прецедентное право, Суд Европейского Союза, дело C-554/14 -Атанас Огнянов, дело C-289/15 - Юзеф Грундза, дело C-573/17 - Даниэль Адам Поплавский («Поплавский I»), дело C-314/18 - SF, дело C-221/19 - AV

Благодарности. Статья была подготовлена в рамках исследовательского проекта VEGA № 1/0004/20 «Внедрение взаимного признания судебных решений по уголовным делам в правопорядок Словацкой Республики», финансируемого Агентством научных грантов Министерства образования, науки, исследований и спорта Словацкой Республики и Словацкой Академии наук. Финансирование было предоставлено Университету Матея Бела в Банска-Бистрице, Словацкая Республика.

ДЛЯ ЦИТИРОВАНИЯ: Климек Л. Трансграничное регулирование передачи заключенных в рамках прецедентного права Суда Европейского Союза // Социально-политические науки. 2021. Т. 11. № 6. С. 129-155. 001: 10.33693/22230092-2021-11-6-129-155

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INTRODUCTION

Mutual recognition of judicial decisions is considered as a cornerstone of judicial co-operation in criminal matters in the European Union (hereinafter the "EU").

In order to establish the rules under which a Member State of the EU, with a view to facilitating the social rehabilitation of the sentenced person, can recognise a judgment and enforce the sentence from the other Member State, was adopted the Framework Decision 2008/909/ JHA on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the EU1 (hereinafter the "Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty"); its unofficial name is the Framework Decision 2008/909/ JHA on the transfer of prisoners.2

Despite the fact that the system established by the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty is operational, it is not perfect. The interpretation of polemic issues is needed, since its real application covers also transnational aspects. The contribution deals with

1 Council Framework Decision 2008/909/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union as amended by the Framework Decision 2009/299/JHA. Official Journal of the European Union, L 327/27 of 5 December 2008. Details see, for example: [10].

2 See, for example: European Commission (2014): "Report from

the Commission to the European Parliament and the Council on the implementation by the Member States of the Framework Decisions 2008/909/JHA, 2008/947/JHA and 2009/829/JHA on the mutual recognition of judicial decisions on custodial sentences or measures involving deprivation of liberty, on probation decisions and alternative sanctions and on supervision measures as an alternative to provisional detention", C0M(2014)57 final, p. 3; European Commission (2014): "Tables State of play and Declarations accompanying the document Report from the Commission to the European Parliament and the Council on the implementation by the Member States of the Framework Decisions 2008/909/JHA, 2008/947/JHA and 2009/829/JHA on the mutual recognition of judicial decisions on custodial sentences or measures involving deprivation of liberty, on probation decisions and alternative sanctions and on supervision measures as an alternative to provisional detention", Commission staff working document, SWD(2014) 34 final, p. 3; Council of the European Union (2014): "Council Framework Decision 2008/909/JHA", 9885/14, p. 1.

the case-law of the Court of Justice of the European Union dealing with application aspects of the mechanism (in some aspects in combination with the Framework Decision 2002/584/JHA on the European arrest warrant and the surrender procedures between Member States3 (hereinafter the "Framework Decision 2002/584/JHA on the European arrest warrant").

JUDGMENT OF THE COURT OF JUSTICE

OF THE EUROPEAN UNION OF 8 NOVEMBER 2016 -

CASE C-554/14 - ATANAS OGNYANOV

Reference for a Preliminary Ruling

The request for a preliminary ruling concerns the interpretation of article 17 (1) and (2) of the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty.

The request has been made in proceedings relating to the recognition of a judgment in a criminal case and the enforcement, in Bulgaria, of a custodial sentence imposed on Mr Atanas Ognyanov by a Danish court.

Dispute in the Main Proceedings

and the Questions Referred for a Preliminary Ruling

By judgment of 28 November 2012, Mr Ognyanov, a Bulgarian national, was sentenced to a total period of 15 years imprisonment for murder and aggravated robbery by Danish Court of Glostrup (Retten i Glostrup).

Mr Ognyanov was initially remanded in custody in Denmark from 10 January until 28 November 2012, the date when his conviction and the sentence imposed on him became res judicata. He then served part of his period of imprisonment in Denmark, from 28 November 2012 until 1 October 2013, when he was transferred to the Bulgarian authorities.

While imprisoned in Denmark, Mr Ognyanov worked from 23 January 2012 until 30 September 2013.

It is stated in the order for reference that, for the purposes of transferring Mr Ognyanov to the Bulgarian authorities, the Danish authorities relied on the Framework

3 Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States as amended by the Framework Decision 2009/299/JHA. Official Journal of the European Communities, L 190/1 of 18 July 2002. [10].

Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty. They sent to the Bulgarian authorities a request for information concerning the sentence that the latter anticipated being able to enforce and the rules applicable in Bulgaria on early release. Further, the Danish authorities expressly stated that Danish legislation did not permit any reduction in a custodial sentence on the ground that work was carried in the course of the enforcement of that sentence.

On a date that is not specified in the order for reference, Bulgarian Public Prosecutor's Office of the City of Sofia (Sofiyska gradska prokuratura) brought an action before the referring court, under article 457 of Bulgarian Code of Criminal Procedure (Nakazatelno protsesualen ko-deks), seeking a ruling on issues related to the enforcement of the judgment delivered by the Danish court with respect to Mr Ognyanov.

In the light of the approach in the interpretative judgment, the referring court has doubts as to whether, in order to determine the length of the sentence still to be served by Mr Ognyanov, it ought to take account of the period that he worked in a Danish prison. If it were to do so, Mr Ognyanov would qualify for a reduction in sentence not of one year, eight months and 20 days, but of two years, six months and 24 days, which would result in his being released earlier. The referring court adds that the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty makes no provision for such a reduction in sentence.

The referring court sets out, in its order, the reasons why it has concluded that Bulgarian law does not comply with the relevant provisions of the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty.

The referring court considers, first, that article 17 (1) of the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty empowers the competent authorities of the executing State to decide how a custodial sentence "shall" be enforced, but not to undertake a further legal assessment of the sentence already enforced in the issuing State. Accordingly, in the view of that court, the competent authorities of the executing State cannot grant a reduction in sentence with respect to the balance of sentence still to be served, on the ground that work was carried out by the sentenced person in a prison of the issuing State.

The referring court considers, second, that article 17 (2) of the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty obliges the executing State to deduct the full period of the custodial sentence already served by the sentenced person in the issuing State on the date of transfer, and that such an objective cannot be achieved if the competent authorities of that executing State deduct a period that is either shorter or longer than the sentence enforced in accordance with the law of the issuing State. That court considers that the deduction of a period longer than the actual period of deprivation of liberty would be contrary to that provision.

Further, in the view of that court, the other two provisions of the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty that provide for the possibility of a reduction

in sentence, namely article 8 (2) and article 10 (1) thereof, are manifestly not applicable in the case pending before it.

In those circumstances the Sofia City Court (Sofiys-ki gradski sad) decided to stay the proceedings and refer the following questions to the Court of Justice for a preliminary ruling:4

1. Do the provisions of the Framework Decision 2008/909/ JHA on mutual recognition of custodial sentences and deprivation of liberty preclude the executing State, in the course of the transfer procedure, from reducing the duration of the sentence of deprivation of liberty imposed by the issuing State, on account of work undertaken while that sentence was being served in the issuing State, as follows:

a) Reduction of the sentence in application of the law of the executing State on the enforcement of the sentence in accordance with article 17 (1) of the Framework Decision 2008/909/JHA: does that provision permit the law of the executing State on the enforcement of the sentence to be applied even at the stage of the transfer procedure in respect of matters (namely work undertaken in prison in the issuing State) which occurred while the sentenced person was under the jurisdiction of the issuing State?

b) Reduction of the sentence as a result of a deduction made in accordance with article 17 (2) of the Framework Decision 2008/909/JHA: does that provision permit the deduction of a period that is longer than the period of deprivation of liberty determined in accordance with the law of the issuing State, where the law of the executing State is applied and, as a result, a fresh legal assessment is made of matters which occurred in the issuing State (namely work undertaken in prison in the issuing State)?

2. In the event that these or other provisions of the Framework Decision are applicable to the reduction in sentence at issue, is the issuing State required to be notified if it has made a specific request to that effect, and is the transfer procedure to be discontinued if the issuing State objects? If there is a notification requirement, what should the nature of that notification be: should it be in general and abstract terms as regards the applicable law, or should it relate to the specific reduction in sentence which the court will impose on a particular sentenced person?

3. (supplementary question) In the event that the Court of Justice of the European Union should rule that the provisions of article 17 (1) and (2) of the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty preclude a reduction of sentence by the executing State on the basis of its domestic law (on account of work undertaken in the issuing State), is the national court's decision nevertheless to apply its national law, owing to the fact that it is more favourable than article 17 of the Framework Decision 2008/909/JHA, compatible with EU law?

4 Request for a preliminary ruling from the Sofia City Court (Sofiyski gradski sad) (Bulgaria) lodged on 3 December 2014 - Criminal proceedings against Atanas Ognyanov (Case C-554/14).

Consideration by the Court of Justice:5 The First Question

By its first question, the referring court seeks, in essence, to ascertain whether article 17 (1) and (2) of the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty must be interpreted as precluding a national rule being interpreted in such a way that it permits the executing State to grant to a sentenced person a reduction in the sentence by reason of work which he carried out during his detention in the issuing State, although the competent authorities of the issuing State did not, in accordance with the law of that State, grant such a reduction in the sentence.

In order to answer that question, it must be recalled that the Court has consistently held that, in interpreting a provision of EU law, it is necessary to consider not only its wording but also the context in which it occurs and the objectives pursued by the rules of which it is part (judgment in case C-237/15 PPU, Lanigan, par. 35).

As regards the wording of article 17 (1) and (2) of the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty, it must be observed that, while article 17 (1) provides that "the enforcement of a sentence shall be governed by the law of the executing State", it does not however clarify, whether that means the enforcement of the sentence from the moment the judgment is delivered in the issuing State or merely from the moment the person concerned is transferred to the executing State.

As regards article 17 (2) of the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty, it provides that "the competent authority of the executing State shall deduct the full period of deprivation of liberty already served in connection with the sentence in respect of which the judgment was issued from the total duration of the deprivation of liberty to be served". That provision, which starts from the premise that a sentenced person is liable to serve part of his sentence in the issuing State before his transfer, does not answer the question whether the executing State can apply a reduction in the sentence which takes account of work carried out by the sentenced person during his period of imprisonment in the issuing State.

The background to article 17 of the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty must therefore be taken into consideration. In that regard, it must be observed that article 17 is to be found in chapter II of the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty, that chapter being headed "Recognition of judgments and enforcement of sentences". That chapter, containing articles 4 to 25, sets out a series of general rules in a chronological order.

Articles 4 to 14 of the Framework Decision 2008/909/ JHA on mutual recognition of custodial sentences and deprivation of liberty begin by establishing the rules which the Member States must follow in order to effect the transfer of a sentenced person. Accordingly, articles 4 to 6 of that Framework Decision define, first, the procedures for the forwarding of the judgment and the certificate to the execu-

5 See also: Opinion of Advocate General Bot delivered on 3 May 2016 -Case C-554/14 - Criminal proceedings against Atanas Ognyanov.

ting State. Articles 7 to 14 of that Framework Decision then establish the general rules applicable to decisions recognising a judgment and decisions enforcing a sentence.

In particular, article 8 of the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty lays down strict conditions governing the adaptation, by the competent authority of the executing State, of the sentence imposed in the issuing State, those conditions being the sole exceptions to the obligation imposed on that authority, in principle, to recognise the judgment forwarded to it and to enforce the sentence, which is to correspond in its length and nature to the sentence imposed in the judgment delivered in the issuing State.

Further, it is stated in article 13 of the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty that the issuing State is to retain its competence with respect to the enforcement of a sentence for as long as "the enforcement of the sentence in the executing State has not begun".

Article 15 of the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty then goes on to establish the procedures applicable to the transfer of the sentenced person and article 16 thereof lays down specific provisions in the event of the transit of the sentenced person through the territory of another Member State.

Article 17 of the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty follows on from the provisions that precede it, in that it establishes the general rules applicable to the enforcement of the sentence once the sentenced person has been transferred to the competent authority of the executing State.

It follows that article 17 of the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty must be interpreted as meaning that only the law of the issuing State is applicable, not least on the question of any grant of a reduction in sentence, to the part of the sentence served by the person concerned on the territory of that State until his transfer to the executing State. The law of the executing State can apply only to the part of the sentence that remains to be served by that person, after that transfer, on the territory of the executing State.

That interpretation is also indicated by the template certificate, to be found in Annex I to the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty.

In that regard, it must be observed that the template certificate constitutes a standard form that has to be completed by the competent authority of the issuing State, then forwarded, with the judgment passing sentence, to the competent authority of the executing State. In accordance with article 8 (1) of the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty, the competent authority of the executing State is to recognise the judgment passing sentence and to rely on the information provided, in that certificate, by the competent authority of the issuing State.

It is clear from section (i) 2.2 of the template certificate, on the information to be provided on the length of the sentence, that the issuing State is required to state,

in days, the full period of deprivation of liberty already served in connection with the sentence in respect of which the judgment was issued. In section (i) 2.3 of that template, the issuing State must state the number of days to be deducted from the total length of the sentence for reasons other than that referred to in section (i) 2.2 of that template. A non-exhaustive list of those other reasons is also to be found in section (i) 2.3 thereof, those reasons including a pardon or clemency decision already granted with respect to the sentence. Accordingly, section (i) 2.3 enables the issuing State to supply additional information when particular circumstances, such as for example work carried out in detention by the sentenced person, have already brought about a reduction in sentence.

It follows from all the foregoing that, before the recognition of the judgment passing sentence by the executing State and the transfer of the sentenced person to the executing State, it falls to the issuing State to determine the reductions in sentence that pertain to the period of detention served on its territory. The issuing State alone is competent to grant a reduction in sentence for work carried out before the transfer and, where appropriate, to inform the executing State of that reduction in the certificate referred to in article 4 of the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty. Consequently, the executing State cannot, retroactively, substitute its law on the enforcement of sentences and, in particular, its rules on reductions in sentence, for the law of the issuing State with respect to that part of the sentence which has already been served by the person concerned on the territory of the issuing State.

In this case, it is clear from the documents submitted to the Court that, when Mr Ognyanov was transferred to the competent Bulgarian authorities, the Danish authorities expressly stated that Danish legislation did not permit any reduction in a custodial sentence on the ground that work was carried out by the sentenced person during the period of his detention. Consequently, an authority in the executing State that is competent with respect to matters concerning enforcement of the sentence, such as the referring court, cannot grant a reduction in sentence that relates to the part of the sentence that has already been served by the sentenced person on the territory of the issuing State, when no such reduction in sentence was granted by the authorities of the issuing State, in accordance with their national law.

An interpretation to the contrary would be likely, last, to undermine the objectives pursued by the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty, those objectives including respect for the principle of mutual recognition, which constitutes, as stated in Recital No. 1 of the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty, read in the light of article 82 (1) the Treaty on the Functioning of the European Union, the "cornerstone" of judicial co-operation in criminal matters within the European Union (see, to that effect, judgment in joined cases C-404/15 and C-659/15 PPU, Aranyosi & Caldararu, par. 79).

In that regard, Recital No. 5 of the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty states that that co-operation

is founded on a special mutual confidence of the Member States in their respective legal systems.

Yet were it to occur that a national court of the executing State granted, in accordance with its national law, after it had recognised the judgment passing sentence delivered by a court of the issuing State and after the sentenced person had been transferred to the authorities of the executing State, a reduction in sentence that related to the part of the sentence served by that person on the territory of the issuing State, although no such reduction in sentence was granted by the competent authorities of the issuing State, on the basis of its national law, that would jeopardise the special mutual confidence of Member States in their respective legal systems.

In such a situation, the national court of the executing State would then be applying, retroactively, its national law to the part of the sentence served on territory subject to the jurisdiction of the court of the issuing State. The former court would thus be re-examining the period of detention served on the territory of the issuing State, which would be in breach of the principle of mutual recognition.

Moreover, it follows from article 3 (1) of the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty that recognition of a judgment and enforcement of a sentence by a Member State other than that where that judgment was delivered is intended to facilitate the social rehabilitation of the sentenced person. Accordingly, to disregard the principle of mutual recognition would also jeopardise that objective.

Consideration by the Court of Justice: The Second Question

By its second question, the referring court seeks, in essence, to ascertain whether, in the event that article 17 of the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty permits the competent authority of the executing State to apply a reduction in sentence, such as that in the main proceedings, that relates to the part of the sentence already served by the sentenced person on the territory of the issuing State, the executing State is required to inform the issuing State, which made an explicit request for such information, of the application of a reduction. If the answer to that question is that it is so required, the referring court has doubts as to the nature of the information that should then be sent.

In view of the reply given to the first question, there is no need to examine the second question.

Consideration by the Court of Justice: The Third Question

By its third question, the referring court seeks, in essence, to ascertain, whether EU law must be interpreted as precluding a national court from applying a national rule, such as that at issue in the main proceedings, even though that rule is in breach of article 17 (1) and (2) of the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty, on the ground that the national rule is more lenient than that provision of EU law.

It must be stated immediately that the allusion by the re -ferring court to the principle of the retroactive application

of the more lenient criminal law rests on the premise that Bulgarian law - in particular the provisions of that law relating to reduction in sentence - is capable of also applying to the period of detention served by Mr Ognyanov in Denmark before his transfer to Bulgaria. However, as is clear from the answer given to the first question, that premise is mistaken.

That said, it must further be observed that, contrary to what seems to be suggested by both the referring court and the European Commission, the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty has no direct effect. That is because that Framework Decision was adopted on the basis of the former third pillar of the European Union, in particular, under article 34 (2) (b) of the Treaty on European Union. That provision states, first, that framework decisions are binding on the Member States as to the result to be achieved, but leave to the national authorities the choice of form and methods, and, second, that framework decisions are not to entail direct effect.

In that regard, it is important to point out that, in accordance with article 9 of Protocol (No. 36) on transitional provisions, annexed to the treaties, the legal effects of the acts of the institutions, bodies, offices and agencies of the Union adopted on the basis of the Treaty on European Union prior to the entry into force of the Treaty of Lisbon are to be preserved until those acts are repealed, annulled or amended in implementation of the treaties. Since the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty has not been subject to any such repeal, annulment or amendment, it continues therefore to have the legal effect attributed to it under article 34 (2) (b) of the Treaty on European Union.

It is also settled case-law that although framework decisions may not entail direct effect, as laid down in article 34 (2) (b) of the Treaty on European Union, their binding character nevertheless places on national authorities, and in particular on national courts, an obligation to interpret national law in conformity with EU law (see judgment in case C-42/11, Lopes Da Silva Jorge, par. 53 and the case-law cited).

When national courts apply domestic law they are therefore bound to interpret it, so far as possible, in the light of the wording and the purpose of the framework decision concerned in order to achieve the result sought by it. This obligation to interpret national law in conformity with EU law is inherent in the system of the Treaty on the Functioning of the European Union, since it permits national courts, for the matters within their jurisdiction, to ensure the full effectiveness of EU law when they rule on the disputes before them (see judgment in case C-42/11, Lopes Da Silva Jorge, par. 54 and the case-law cited).

Further, it is stated in the order for reference that, on the date of that order, the Framework Decision 2008/909/ JHA on mutual recognition of custodial sentences and deprivation of liberty had not yet been transposed into Bulgarian law, although, in accordance with article 29 of that Framework Decision, that transposition should have taken place before 5 December 2011.

In that regard, it must be observed that the referring court is bound to respect the principle of interpreting national law in conformity with EU law as from the date

of expiry of the period for the transposition of that Framework Decision (see, by analogy, judgment in case C-212/04, Adeneler and Others, pars. 115 and 124).

However, it must be borne in mind that the principle of interpreting national law in conformity with EU law has certain limitations.

Thus, the obligation on a national court to refer to the content of a framework decision when it interprets and applies the relevant rules of its national law is limited by the general principles of law, in particular, the principles of legal certainty and non-retroactivity (see judgments in case C-05/03, Pupino, par. 44, and in case C-42/11, Lopes Da Silva Jorge, par. 55).

In particular, those principles preclude that obligation from leading to the criminal liability of individuals being determined or aggravated, on the basis of a framework decision alone, absent any legislation implementing its provisions, where they are in breach of those provisions (see judgment in case C-105/03, Pupino, par. 45).

However, in this case, the obligation to interpret national law in conformity with EU law would mean that Mr Ognyanov cannot qualify, under Bulgarian law, for a reduction in sentence by reason of work carried out during his period of detention in Denmark, because that matter is wholly within the competence of Denmark. That obligation would not, however, cause the criminal liability of Mr Ognyanov to be determined or aggravated, or alter, to his disadvantage, the length of the sentence imposed on him in the judgment delivered on 28 November 2012 by the Court of Glostrup (Retten i Glostrup).

The obligation to interpret national law in conformity with EU law ceases, moreover, when the former cannot be applied in a way that would lead to a result compatible with that envisaged by that Framework Decision. In other words, that principle cannot serve as the basis for an interpretation of national law contra legem. That principle does, however, require that the national court consider, where necessary, the whole body of national law in order to assess how far it can be applied in such a way as not to produce a result contrary to that envisaged by the framework decision (see judgments case C-105/03, Pupino, par. 47, and case C-42/11, Lopes Da Silva Jorge, pars. 55 and 56).

Against that background, it must be made clear that the requirement to interpret national law in conformity with EU law includes the obligation, on national courts, including those ruling as courts of last instance, to alter, where necessary, settled case-law if that case-law is based on an interpretation of national law that is incompatible with the objectives of a framework decision (see, by analogy, judgments in case C-441/14, DI, par. 33, and in case C-614/14, Ognyanov, par. 35).

In this case, it is apparent from the documents submitted to the Court that the national rules at issue in the main proceedings, to the effect that work in the general interest carried out, in the issuing State, by the Bulgarian prisoner who was sentenced and transferred must be taken into account by the competent authority of the executing State with a view to reduction in the sentence, stems from an interpretation of article 457 (5) of the Code of Criminal Procedure (Nakazatelno protsesualen kodeks), read together with article 41 (3) of the Criminal Code, adopted by the Supreme Court of Appeal (Varhoven kasatsionen sad) in its interpretative judgment.

Consequently, the referring court cannot, in the main proceedings, validly claim that it is impossible for it to interpret the provision of national law at issue in a manner that is compatible with EU law, for the sole reason that that provision has been interpreted, by the Supreme Court of Appeal (Varhoven kasatsionen sad), in a way that is not compatible with EU law (see, to that effect, case C-441/14, DI, par. 34).

In those circumstances, it is for the referring court to ensure that the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty is given full effect, and if necessary to disapply, on its own authority, the interpretation adopted by the Supreme Court of Appeal (Varhoven kasatsionen sad), since that interpretation is not compatible with EU law (see, to that effect, judgment in in case C-614/14, Ognyanov, par. 36).

Rulings

The Court of Justice in answer to the questions referred to it rules:

1. Article 17 (1) and (2) of the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty, must be interpreted as precluding a national rule being interpreted in such a way that it permits the executing State to grant to the sentenced person a reduction in sentence by reason of work he carried out during the period of his detention in the issuing State, although no such reduction in sentence was granted by the competent authorities of the issuing State, in accordance with the law of the issuing State.

2. EU law must be interpreted as meaning that a national court is bound to take into consideration the whole body of rules of national law and to interpret them, so far as possible, in accordance with the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty, in order to achieve the result sought by that Framework Decision, and if necessary to disapply, on its own authority, the interpretation adopted by the national court of last resort, if that interpretation is not compatible with EU law.

JUDGMENT OF THE COURT OF JUSTICE

OF THE EUROPEAN UNION OF 11 JANUARY 2017 -

CASE C-289/15 - JOZEF GRUNDZA

Reference for a Preliminary Ruling

The request for a preliminary ruling concerns the interpretation of articles 7 (3) and 9 (1) (d) of the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty.

The request has been made in proceedings concerning the recognition of a criminal judgment and the enforcement, in Slovakia, of a custodial sentence imposed by a Czech court on Mr Joszef Grundza.

Dispute in the Main Proceedings

and the Question Referred for a Preliminary Ruling

On 3 October 2014, Czech District Court in Cheb (Okresnisoud v Chebu) imposed a cumulative custodial sentence of 15 months on Mr Grundza, a Slovak national, for burglary and obstruction of the implementation of a deci-

sion of a public body, namely breach of a temporary ban on driving imposed on him by decision of the Municipality of Prerov (Magistrat mesta Prerov) on 12 February 2014.

The judgment of 3 October 2014, together with the certificate referred to in Annex I to the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty, was sent to Slovak Regional Court in Presov (Krajsky sud v Presove) for the purpose of recognition of the judgment and enforcement of the sentence in Slovakia.

In its order for reference, that court states that the offences at issue in the main proceedings were not regarded by the judicial body of the issuing State, namely the Czech Republic, as offences for the purposes of article 7 (1) of the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty, so that enforcement of the 15-month cumulative sentence is subject to it being established that the acts covered by the judgment of 3 October 2014 also constitute offences under Slovak law.

That court is in some doubt as to whether the condition of double criminality is met with regard to the act described as "the offence of thwarting the implementation of the decision of a public authority".

The referring court states in that regard that article 348 (1) (d) of the Slovak Criminal Code (Trestny zakon), which concerns the offence of thwarting the implementation of an official decision, refers only to decisions of the judicial authorities or of another "Slovak" body which are enforceable in "Slovak territory".

Thus, according to the referring court, it is clear from the assessment of the act for which Mr Grundza was convicted in the Czech Republic that that act does not in fact constitute an "offence" for the purposes of article 348 (1) (d) of the Slovak Criminal Code, as it does not correspond to the factual constituent elements of the offence of thwarting the implementation of an official decision within the meaning of that provision. Mr Grundza was convicted of thwarting a decision adopted by a body of the Czech Republic, a decision which has effect only in the territory of that Member State.

The referring court is also uncertain whether, having regard to the purpose of the Framework Decision 2008/909/ JHA on mutual recognition of custodial sentences and deprivation of liberty, namely to facilitate the social rehabilitation of a sentenced person by, inter alia, developing co-operation between Member States when enforcing criminal judgments, in a case such as that in the main proceedings, in which an interest protected by the legal order of the issuing State has been infringed, it may not be necessary to examine double criminality in abstracto, that is, as if an interest protected under the legal system of the executing State had been infringed.

In those circumstances, the Regional Court in Presov (Krajsky sud v Presove) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling: On a proper interpretation of articles 7 (3) and 9 (1) (d) of the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty, is the condition of double criminality to be considered satisfied only where the act to which the decision to be recognised refers constitutes an offence in concreto, i.e. on the basis of a concrete

assessment of the facts (whatever its constituent elements or however it is described) also in the law of the executing State, or is that condition sufficiently satisfied where the act generally constitutes (in abstracto) an offence also in the legal order of the executing State?6

Consideration by the Court of Justice7

By its question, the referring court seeks to ascertain, in essence, whether articles 7 (3) and 9 (1) (d) of the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty are to be interpreted as meaning that the condition of double criminality is met in a situation, such as that in the main proceedings, in which recognition of a judgment and enforcement of a sentence are sought in respect of acts which are classified in the issuing State as a "criminal offence consisting in thwarting the implementation of an official decision committed in the territory of the issuing State", and for which a criminal offence, similarly classified, exists in the law of the executing State, but a national rule of the executing State requires, for such an offence to occur, the official decision to have been issued by one of the authorities operating in its own territory.

It should be noted at the outset that, for the purpose of providing a useful answer to that question, it is not appropriate to base the analysis on an in concreto or an in abstracto assessment of the condition of double criminality.

It should be observed in that regard, first, that the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty, which is an instrument providing for a minimal level of harmonisation, and in particular article 7 thereof, which concerns the condition of double criminality, makes no mention of those notions.

Second, Member States have adopted different positions as regard the precise meaning of those notions in the context of double criminality.

For the purpose of answering the question thus reformulated, it should be recalled that, under article 7 (3) of the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty, with regard to offences other than those included in the list of 32 offences set out in article 7 (1), it is open to the executing State to make recognition of the judgment and enforcement of the sentence subject to the condition that it relates to acts which also constitute an offence under the law of the executing State, whatever its constituent elements or however it is described. In other words, that provision allows the executing State to make recognition of the judgment and enforcement of the sentence subject to the requirement that the condition of double criminality is met.

Correspondingly, article 9 of the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty, concerning grounds for non-recognition and non-enforcement, provides in par. 1 (d) thereof that it is possible for the competent authority of the ex-

6 Request for a preliminary ruling from the District Court in Presov (Krajsky sud v Presove) (Slovak Republic) lodged on 15 June 2015 -Jozef Grundza (Case C-289/15).

7 See also: Opinion of Advocate General Bobek delivered on 28 July 2016 - Case C-289/15 - Grundza.

ecuting State to refuse to recognise the judgment handed down in the issuing State and to enforce the sentence imposed in that State if the condition of double criminality is not met.

It is apparent from the order for reference that the acts for which Mr Grundza was convicted, in particular the thwarting of the implementation of a decision of a public authority, were not regarded by the competent authority of the issuing State, namely the Czech Republic, as offences falling within article 7 (1) of the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty.

Accordingly, in accordance with article 7 (3) of the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty, the recognition of the judgment of 3 October 2014 and enforcement of the 15-month cumulative sentence are subject to the competent Slovak authority finding that the acts covered by that judgment also constitute an offence under Slovak law, whatever its constituent elements or however it is described in the issuing State.

That having been established, it should be noted that it is that Court's established case-law that, in interpreting a provision of EU law, it is necessary to consider not only its wording, but also the context in which it occurs and the objectives pursued by the rules of which it forms part (judgment in case C-237/15 PPU, Lanigan, par. 35, and in case C-554/14, Ognyanov, par. 31).

With regard, first, to the wording of article 7 (3) of the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty, it should be noted, that that provision circumscribes the scope of the assessment of double criminality in that it requires the competent authority of the executing State to verify whether the acts in question "also constitute an offence" under the national law of that State, "whatever its constituent elements or however it is described".

As is apparent from the very wording of article 7 (3) of the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty, the necessary and sufficient condition for the purpose of assessing double criminality resides in the fact that the acts giving rise to the sentence imposed in the issuing State also constitute an offence in the executing State. It follows that the offences do not need to be identical in the two Member States concerned.

That interpretation is borne out by the words "whatever [the] constituent elements" of the offence as laid down in the executing State and "however it is described", which make it clear, that there does not have to be an exact match between the constituent elements of the offence, as defined in the law of the issuing State and the executing State, respectively, or between the name given to or the classification of the offence under the national law of the respective States.

Accordingly, that provision advocates a flexible approach by the competent authority of the executing State when assessing the condition of double criminality, both as regards the constituent elements of the offence and its description.

Thus, the relevant factor when assessing double criminality, for the purposes of article 7 (3) of the Framework Decision 2008/909/JHA on mutual recognition of custodial

sentences and deprivation of liberty, are that (i) the factual elements underlying the offence, as reflected in the judgment handed down in the issuing State, and (ii) how the offence is defined under the law of the executing State, should be congruent.

It follows from the foregoing considerations that, when assessing double criminality, the competent authority of the executing State is required to verify whether the factual elements underlying the offence, as reflected in the judgment handed down by the competent authority of the issuing State, would also, per se, be subject to a criminal penalty in the executing State if they were present in that State.

Second, the context of article 7 (3) and article 9 (1) (d) of the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty also militates in favour of such an assessment of double criminality.

It should be observed that, as provided for in article 26 thereof, the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty replaces, as regards relations between Member States, a number of instruments of international law in order to further develop co-operation, as stated in Recital No. 5 of the decision, in the enforcement of criminal judgments.

Unlike those instruments of international law, the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty is based primarily on the principle of mutual recognition, which constitutes, as stated in Recital No. 1 of the decision, read in the light of article 82 (1) the Treaty on the Functioning of the European Union, the "cornerstone" of judicial co-operation in criminal matters within the European Union, which, according to Recital No. 5 of the decision, is founded on a special mutual confidence of the Member States in their respective legal systems (see, to that effect, judgment in case C-554/14, Ognyanov, pars. 46 and 47).

The principle of mutual recognition means, in accordance with article 8 (1) of the Framework Decision 2008/909/ JHA on mutual recognition of custodial sentences and deprivation of liberty, that, in principle, the competent authority of the executing State is to recognise a judgment which has been forwarded to it and forthwith take all the necessary measures for the enforcement of the sentence.

The principle of mutual recognition has led to, among other things, the establishment, in article 7 (1) of the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty, of a list of criminal offences in respect of which the review of the condition of double criminality has been done away with.

Moreover, it should be noted that, even as regards offences which do not appear on that list, article 7 (3) of the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty merely provides Member States with the option of making recognition of a judgment and enforcement of a sentence subject to the requirement that the condition of double criminality be met.

In that context, that option enables Member States, to decline to recognise a judgment and enforce a sentence in respect of conduct which they do not consider to be morally wrong and which does not, therefore, constitute an offence.

It follows from the foregoing considerations that the condition of double criminality is an exception to the general rule of recognition of judgments and enforcement of sentences. Accordingly, the scope of the grounds for refusing to recognise a judgment or enforce a sentence, on the basis of lack of double criminality, as provided for in article 9 (1) (d) of the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty, must be interpreted strictly in order to limit cases of non-recognition and non-enforcement.

Accordingly, the purpose of the assessment of double criminality by the competent authority of the executing State, to which article 7 (3) of the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty refers, is to verify whether the factual elements underlying the offence, as reflected in the judgment handed down by the competent authority of the issuing State, would also, per se, be subject to a criminal penalty in the territory of the executing State if they were present there.

In that regard, the referring court has stated that the offence at issue in the main proceedings constitutes an infringement of an official decision adopted by a Czech public body and, therefore, an infringement of an interest protected by the Czech Republic, so that the condition of double criminality cannot, in any event, be considered to have been met.

Nevertheless, in assessing double criminality, the competent authority of the executing State must ascertain, not whether an interest protected by the issuing State has been infringed, but whether, in the event that the offence at issue were committed in the territory of the executing State, it would be found that a similar interest, protected under the national law of that State, had been infringed.

Third, it should be recalled that article 3 (1) of the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty states that the purpose of that decision is to establish the rules under which a Member State, with a view to facilitating the social rehabilitation of the sentenced person, is to recognise a judgment and to enforce a sentence.

A strict interpretation of article 9 (1) (d) of the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty contributes to the attainment of that objective of facilitating the social rehabilitation of the sentenced person, inter alia in a situation, such as that in the main proceedings, in which that person is a national of the executing State.

In this instance, it is apparent from the documents submitted to the Court that Mr Grundza was convicted by the competent Czech judicial authority for, among other things, driving a motor vehicle in the territory of that Member State notwithstanding the fact that he had been banned from so doing by a decision issued by a Czech public authority.

For the purpose of determining whether the condition of double criminality was met in the proceedings before it, the referring court, which is called upon to recognise and enforce the sentence, is thus required to ascertain whether, in the event that those factual elements - that is, the driving of a motor vehicle notwithstanding the existence a ban imposed by an official decision - were present in the territory of the Member State to which that court belongs, they

would be subject to a criminal penalty under the domestic law of that State. If that is the case, it must be concluded that the condition of double criminality is met.

Rulings

The Court of Justice in answer to the questions referred to it rules - article 7 (3) and article 9 (1) (d) of the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty, must be interpreted as meaning that the condition of double criminality must be considered to be met, in a situation such as that in the main proceedings, where the factual elements underlying the offence, as reflected in the judgment handed down by the competent authority of the issuing State, would also, per se, be subject to a criminal sanction in the territory of the executing State if they were present in that State.

JUDGMENT OF THE COURT OF JUSTICE OF THE EUROPEAN UNION OF 24 JUNE 2019 -CASE C-573/17 - DANIEL ADAM POPtAWSKI ("POPtAWSKI II")

Reference for a Preliminary Ruling

This request for a preliminary ruling concerns the interpretation of the principle of the primacy of EU law and of article 28 (2) of the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty.

The request has been made in connection with the execution in the Netherlands of a European arrest warrant issued by Polish District Court in Poznan (Sqd Rejonowy w Poznaniu) against Mr Daniel Adam Poplawski with a view to enforcing a custodial sentence in Poland.

Dispute in the Main Proceedings

and the Questions Referred for a Preliminary Ruling

By a judgment of 5 February 2007, which became final on 13 July 2007, the District Court in Poznan (Sqd Rejonowy w Poznaniu) imposed a one-year suspended custodial sentence on Mr Poplawski, who is a Polish national. By decision of 15 April 2010, that court ordered the execution of that sentence.

On 7 October 2013, that court issued an European arrest warrant against Mr Poplawski for the purposes of executing that sentence.

In the main proceedings relating to the execution of that European arrest warrant, Dutch District Court in Amsterdam (Rechtbank Amsterdam) asked whether it had to apply article 6 (2) and (5) of the Law on Surrender (L'Overlever-ingswet) which provides an automatic ground for non-execution of an European arrest warrant in favour of, inter alia, persons residing in the Netherlands, as is the case with Mr Poplawski.

By a decision of 30 October 2015, the referring court made a first request for a preliminary ruling to the Court of Justice, in the context of which it observed that, under article 6 (3) of the Law on Surrender, in the version applicable until the entry into force of the Law on the Mutual Recognition and Enforcement of Custodial and Suspended Sentences, where the Kingdom of the Netherlands refuses, pursuant to article 6 (2) and (5) of the Law on Surren-

der, to execute an European arrest warrant, it must state that it is "willing" to take over the execution of the sentence on the basis of a convention in force between it and the issuing Member State. It stipulated that, in accordance with the provisions of the convention applicable to relations between the Republic of Poland and the Kingdom of the Netherlands, enforcement of the sentence in the Netherlands had to be preceded by a request to that effect made by the Republic of Poland and that Polish legislation precluded such a request being made in respect of Polish nationals.

In that decision, the referring court observed that, in such a situation, a refusal to surrender could lead to the impunity of the person to whom the European arrest warrant applies. After pronouncement of the judgment refusing the surrender, it may prove impossible to take over execution of the sentence, because there has been no request to that end from the Polish authorities.

The referring court also expressed doubts as to whether article 6 (2) to (4) of the Law on Surrender is compatible with article 4 (6) of the Framework Decision 2002/584/JHA on the European arrest warrant which permits a refusal to surrender only if the executing Member State "undertakes" to execute the sentence in accordance with its domestic law.

By its judgment in case C-579/15, Poplawski ("Poplawski I"), the Court of Justice held that article 4 (6) of the Framework Decision 2002/584/JHA on the European arrest warrant must be interpreted as meaning that it precludes legislation of a Member State implementing that provision which, in a situation where the surrender of a foreign national in possession of a residence permit of indefinite duration in the territory of that Member State is sought by another Member State in order to execute a custodial sentence imposed on that national by a decision which has become final, first, does not authorise such a surrender, and secondly, merely lays down the obligation for the judicial authorities of the first Member State to inform the judicial authorities of the second Member State that they are willing to take over the enforcement of the judgment, where, on the date of the refusal to surrender, the execution has not in fact been taken over and where, furthermore, in the event that taking over that execution subsequently proves to be impossible, such a refusal may not be challenged.

In the same judgment, the Court held that the provisions of the Framework Decision 2002/584/JHA on the European arrest warrant do not have direct effect. However, it observed that the competent national court, by taking the whole body of domestic law into consideration and applying the interpretative methods recognised by it, is obliged to interpret the provisions of national law concerned, so far as is possible, in the light of the wording and the purpose of that Framework Decision, which in the present case means that, in the event of a refusal to execute an European arrest warrant issued with a view to the surrender of a person who has been finally judged in the issuing Member State and given a custodial sentence, the judicial authorities of the executing Member State are themselves required to ensure that the sentence pronounced against that person is actually executed [judgment in case C-579/15, Poplawski ("Poplawski I")].

In the order for reference, the referring court states that it is apparent from that judgment that article 6 (2), (3) and (5) of the Law on Surrender is contrary to article 4 (6) of the Framework Decision 2002/584/JHA on the European arrest warrant.

According to the referring court, it also follows from the judgment I case C-579/15, Poplawski ("Poplawski I"), that EU law does not preclude an interpretation of article 6 (3) of the Law on Surrender, in the version applicable until the entry into force of the Law on the Mutual Recognition and Enforcement of Custodial and Suspended Sentences, according to which article 4 (6) of the Framework Decision 2002/584/JHA on the European arrest warrant provides the legal basis required by that national provision for enforcement of the sentence, bearing in mind that article 4 (6), unlike international conventions applicable to relations with the Republic of Poland, does not require a request for enforcement from the authorities which issued the European arrest warrant, in the present case the Polish authorities, and that therefore such an interpretation of article 6 (3) of the Law on Surrender would make it possible to ensure that the custodial sentence is actually enforced in the Netherlands.

However, Dutch Minister of Security and Justice (Minister van Veiligheid en Justitie), who is the competent organ of State under Netherlands law for enforcement of the sentence, considered that the Framework Decision 2002/584/ JHA on the European arrest warrant was not a convention for the purposes of article 6 (3) of the Law on Surrender in the version applicable until the entry into force of the Law on the Mutual Recognition and Enforcement of Custodial and Suspended Sentences.

The referring court considers that, irrespective of whether the Minister's interpretation is correct, it cannot, in those circumstances, conclude that that interpretation will ensure that the sentence pronounced against Mr Poplawski will actually be enforced in the Netherlands.

The referring court is therefore unsure whether, under the principle of the primacy of EU law, it can disapply the provisions of Netherlands law which are incompatible with the provisions of a framework decision, even if the latter provisions do not have direct effect. It states that, if it disapplied article 6 (2) and (5) of the Law on Surrender, there would no longer be any ground for refusing to surrender Mr Poplawski to the Polish authorities.

Moreover, the referring court is unsure whether article 6 (3) of the Law on Surrender, as amended by the Law on the Mutual Recognition and Enforcement of Custodial and Suspended Sentences, may be applied to the dispute in the main proceedings, bearing in mind that, since that amendment, that provision no longer refers to a basis in the convention for the actual enforcement of the sentence in the Netherlands.

It is true that that court states that, by virtue of article 5:2 (3) of the Law on the Mutual Recognition and Enforcement of Custodial and Suspended Sentences, its provisions, which transpose the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty, do not apply to court decisions which became final before 5 December 2011, as is the case with the decision which imposed a custodial sentence on Mr Poplawski. The referring court states,

however, that article 5:2 (3) of the Law on the Mutual Recognition and Enforcement of Custodial and Suspended Sentences (Wet wederzijdse erkenning en tenuitvoerlegging vrijheidsbenemende en voorwaardelijke sancties) implements the declaration made by the Netherlands pursuant to article 28 (2) of the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty and that the Court of Justice has not ruled on the validity of that declaration, in particular on the fact that it might have been out of time, in so far as that declaration was not made until after that Framework Decision was adopted.

That court states that, if that declaration were found to be invalid, the national provisions transposing the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty, including article 6 of the Law on Surrender, as amended by the Law on the Mutual Recognition and Enforcement of Custodial and Suspended Sentences, would apply, in accordance with article 26 of that Framework Decision, to the enforcement of the European arrest warrant issued against Mr Poplawski.

However, the application of those national provisions to the dispute in the main proceedings assumes that article 5:2 (3) of the Law on the Mutual Recognition and Enforcement of Custodial and Suspended Sentences may be interpreted in accordance with the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty and, conversely, that that court may disapply that provision by virtue of the principle of the primacy of EU law. In addition, it should be ascertained that, in the event of a refusal to surrender based on article 6 of the Law on Surrender, as amended by the Law on the Mutual Recognition and Enforcement of Custodial and Suspended Sentences, the sentence would actually be executed in the Netherlands.

If so, it could refuse to surrender Mr Poplawski and the sentence could be executed in the Netherlands, in accordance with article 6 (2) and (5) of the Law on Surrender and with article 4 (6) of the Framework Decision 2002/584/ JHA on the European arrest warrant.

It was in those circumstances that District Court in Amsterdam (Rechtbank Amsterdam) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:8

1. If the executing judicial authority cannot interpret the national provisions implementing a framework decision in such a way that their application leads to an outcome in conformity with the framework decision, must it then, in accordance with the primacy principle, disapply those national provisions not in conformity with that Framework Decision?

2. Does a declaration of a Member State within the meaning of article 28 (2) of the Framework Decision 2008/909/ JHA on mutual recognition of custodial sentences and deprivation of liberty, which it did not make "on the adoption of this Framework Decision", but at a later date, have legal effect?

8 Request for a preliminary ruling from the District Court in Amsterdam (Rechtbank Amsterdam) (Netherlands) lodged on 28 September 2017 - Openbaar Ministerie versus Daniel Adam Poplawski (Case C-573/17).

Consideration by the Court of Justice-? The Second Question (2 yp)

By its second question, which it is appropriate to examine first, the referring court asks, in essence, whether article 28 (2) of the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty must be interpreted as meaning that a declaration made pursuant to that provision by a Member State after that Framework Decision was adopted is capable of producing legal effects.

According to article 3 (1), the purpose of the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty is to set the rules which make it possible for a Member State, with a view to facilitating the social rehabilitation of the sentenced person, to recognise a judgment and enforce the sentence pronounced by a court in another Member State. It follows from article 25 of that Framework Decision that it applies, mutatis mutandis in so far as its provisions are compatible with the provisions of the Framework Decision 2002/584/JHA on the European arrest warrant, to the enforcement of sentences in cases where a Member State undertakes to enforce the sentence pursuant to article 4 (6) of that Framework Decision.

In accordance with article 26, as of 5 December 2011 the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty replaces the provisions of the conventions on the transfer of sentenced persons referred to in that article, applicable in relations between the Member States. It is also apparent from article 28 (1) of that Framework Decision that requests for the recognition and enforcement of a sentence received as from 5 December 2011 are no longer to be governed by existing legal instruments on the transfer of sentenced persons, but by the rules adopted by the Member States pursuant to that Framework Decision.

However, article 28 (2) of the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty allows each Member State, at the time of the adoption of that Framework Decision, to make a declaration indicating that it will continue to apply, as an issuing and an executing State, the existing legal instruments on the transfer of sentenced persons applicable before 5 December 2011 in cases where the final sentence was pronounced before the date which that Member State sets, provided that that date is not later than 5 December 2011. Where a Member State makes such a declaration, those instruments will apply in cases covered by that declaration to all the other Member States, whether or not those Member States have made the same declaration.

The Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty was adopted on 27 November 2008. On 24 March 2009, the Kingdom of the Netherlands sent a declaration to the Council pursuant to article 28 (2) of that Framework Decision, in which that Member State indicated that it would apply the existing legal instruments on the trans -fer of sentenced persons applicable before 5 December 2011 for all cases where the final sentence is pronounced before that date.

9 See also: Opinion of Advocate General Sánchez-Bordona delivered on 27 November 2018 - Case C-573/17 - Openbaar Ministerie versus Daniel Adam Poptawski.

It is apparent from the information provided by the referring court that, after the submission of the request for a preliminary ruling examined in the present case, that declaration was withdrawn by the Kingdom of the Netherlands with effect from 1 June 2018. Nevertheless, the referring court considered that it was necessary to retain its second question on the ground, inter alia, that the Republic of Poland had itself made a declaration under article 28 (2) of the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty after the date on which that Framework Decision was adopted, meaning that that declaration might also have been out of time.

In that regard, it should be recalled that it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of a rule of EU law, the Court is in principle bound to give a ruling (judgment in case C-621/18, Wightman and Others, par. 26 and the case-law cited).

It follows that questions relating to EU law enjoy a presumption of relevance. The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgment in case C-621/18, Wightman and Others, par. 27 and the case-law cited).

In the present case, despite the withdrawal of the declaration made under article 28 (2) of the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty by the Kingdom of the Netherlands, the conditions which may lead the Court to refuse to rule on the question referred have not been met.

Suffice it to state that the question whether the declaration made by the Republic of Poland produces legal effects may be important in the dispute in the main proceedings, given that, in accordance with article 28 (2) of the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty, such a declaration requires other Member States, in their relations with the Republic of Poland, to continue to apply, in the cases laid down by that declaration, the existing legal instruments on the transfer of sentenced persons applicable before 5 December 2011.

As to the substance, it should be stated that article 28 (2) of the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty derogates from the general arrangements laid down in article 28 (1) of that Framework Decision and that the implementation of that derogation is, moreover, unilaterally entrusted to each Member State. It follows that that provision must be given a strict interpretation (see, to that effect, judgment in case C-582/15, van Vemde, par. 30).

It is apparent from the actual wording of that provision that the declaration to which it refers must be made by the Member State on the date that Framework Decision

is adopted. It follows that a declaration made after that date does not satisfy the conditions expressly laid down by the EU legislature for that declaration to produce legal effects.

Such an interpretation is supported by the general scheme of the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty. Where the EU legislature intended to allow a declaration to be made, not only when that Framework Decision is adopted, but also subsequently, such a power was expressly laid down by that Framework Decision, as is illustrated by article 4 (7) and article 7 (4) thereof.

It should also be observed that, contrary to what the Netherlands Government argues in its written observations, the mere fact that a Member State, when that Framework Decision is adopted or sometime before it is drawn up, expresses its intention to make a declaration in accordance with article 28 (2) of that Framework Decision does not amount to a declaration for the purposes of that provision. Such a declaration, unlike a mere declaration of intent, must reveal unambiguously the date of delivery of the final sentences which the Member State concerned intends to have excluded from the application of that Framework Decision.

Consideration by the Court of Justice: The First Question

By its first question, the referring court asks in essence whether the principle of the primacy of EU law must be interpreted as meaning that it imposes an obligation on a Member State court to disapply a provision of the law of that State which is incompatible with the provisions of a framework decision.

It is apparent from the documents before the Court that the referring court wishes to ascertain in particular whether it is possible to disregard the application of national provisions which it considers to be contrary to the Framework Decision 2002/584/JHA on the European arrest warrant and the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty.

In order to answer that question, it should be noted, in the first place, that EU law is characterised by the fact that it stems from an independent source of law, the Treaties, by its primacy over the laws of the Member States and by the direct effect of a whole series of provisions which are applicable to their nationals and to the Member States themselves. These essential characteristics of EU law have given rise to a structured network of principles, rules and mutually interdependent legal relations linking the EU and its Member States, and its Member States with each other (see, inter alia, Opinion 2/13, pars. 166 and 167; judgment in case C-621/18, Wightman and Others, par. 45; and Opinion 1/17, par. 109).

The principle of the primacy of EU law establishes the pre-eminence of EU law over the law of the Member States (judgment in case 6/64, Costa, pp. 1159 and 1160).

That principle therefore requires all Member State bodies to give full effect to the various EU provisions, and the law of the Member States may not undermine the effect accorded to those various provisions in the territory of those States (see, to that effect, judgments in case C-399/11, Melloni, par. 59, and in case C-378/17, Minister for Justice and Equality, point 39).

In that regard, it should be pointed out that the principle that national law must be interpreted in conformity with EU law, by virtue of which the national court is required, to the greatest extent possible, to interpret national law in conformity with the requirements of EU law, is inherent in the system of the treaties, since it permits the national court, within the limits of its jurisdiction, to ensure the full effectiveness of EU law when it determines the dispute before it [judgments in case C-84/12, Koushkaki, pars. 75 and 76; in case C-554/14, Ognyanov, par. 59; and in case C-579/15, Poplawski ("Poplawski I"), par. 31].

Similarly, the full effectiveness of EU rules would be impaired and the protection of the rights which they grant would be weakened if individuals were unable to obtain reparation when their rights are infringed by a breach of EU law for which a Member State can be held responsible (judgment in joined cases C-6/90 and C-9/90, Francovich and Others, par. 33).

It follows from the foregoing that, in order to ensure the effectiveness of all provisions of EU law, the primacy principle requires, inter alia, national courts to interpret, to the greatest extent possible, their national law in conformity with EU law and to afford individuals the possibility of obtaining redress where their rights have been impaired by a breach of EU law attributable to a Member State.

It is also in the light of the primacy principle that, where it is unable to interpret national law in compliance with the requirements of EU law, the national court which is called upon within the exercise of its jurisdiction to apply provisions of EU law is under a duty to give full effect to those provisions, if necessary refusing of its own motion to apply any conflicting provision of national legislation, even if adopted subsequently, and it is not necessary for that court to request or await the prior setting aside of such provision by legislative or other constitutional means (see, to that effect, judgment in case C-378/17, Minister for Justice and Equality, par. 35 and the case-law cited).

That said, account should also be taken of the other essential characteristics of EU law and, more particularly, the fact that only some of the provisions of that law have direct effect.

Thus, the principle of the primacy of EU law cannot have the effect of undermining the essential distinction between provisions of EU law which have direct effect and those which do not and, consequently, of creating a single set of rules for the application of all of the provisions of EU law by the national courts.

In that regard, it should be pointed out that any national court, hearing a case within its jurisdiction, has, as an organ of a Member State, the obligation to disapply any provision of national law which is contrary to a provision of EU law with direct effect in the case pending before it (see, to that effect, judgments in case C-409/06, Winner Wetten, par. 55 and the case-law cited; in case C-282/10, Dominguez, par. 41; and in joined cases C-569/16 and C-570/16, Bauer & Willmeroth, par. 75).

On the other hand, a provision of EU law which does not have direct effect may not be relied on, as such, in a dispute coming under EU law in order to disapply a provision of national law that conflicts with it.

Thus the national court is not required, solely on the basis of EU law, to disapply a provision of national law which is incompatible with a provision of the Charter

of Fundamental Rights of the European Union which, like article 27, does not have direct effect. Similarly, reliance on a provision of a directive which is not sufficiently clear, precise and unconditional to confer on it direct effect may not, solely on the basis of EU law, lead to a provision of national law being disapplied by a court of a Member State. In addition, according to settled case-law, a directive cannot of itself impose obligations on an individual and cannot therefore be relied on as such against that individual before a national court.

It should be recalled that, in accordance with the third paragraph of article 288 the Treaty on the Functioning of the European Union, the binding nature of a directive, which constitutes the basis for the possibility of relying on it, exists only in relation to "each Member State to which it is addressed" and that the European Union has the power to enact, in a general and abstract manner, obligations for individuals with immediate effect, only where it is empowered to adopt regulations.

It follows from the foregoing that, even a clear, precise and unconditional provision of a directive does not allow a national court to disapply a provision of its national law which conflicts with it, if, in doing so, an additional obligation were to be imposed on an individual.

As confirmed by the case-law, a national court's obligation to disapply a provision of its national law which is contrary to a provision of EU law, if it stems from the primacy afforded to the latter provision, is nevertheless dependent on the direct effect of that provision in the dispute pending before that court. Therefore, a national court is not required, solely on the basis of EU law, to disapply a provision of its national law which is contrary to a provision of EU law if the latter provision does not have direct effect.

It should be stated, in the second place, that neither the Framework Decision 2002/584/JHA on the European arrest warrant nor the Framework Decision 2008/909/ JHA on mutual recognition of custodial sentences and deprivation of liberty has direct effect. That is because those framework decisions were adopted on the basis of the former third pillar of the European Union, in particular, under article 34 (2) (b) of the Treaty on European Union. That provision stated, first, that framework decisions are binding on the Member States as to the result to be achieved, but leave to the national authorities the choice of form and methods, and, second, that framework decisions are not to entail direct effect [judgments in case C-554/14, Ognyanov, par. 56, and in case C-579/15, Poptawski ("Poplawski I"), par. 26].

In that regard, it is important to point out that, in accordance with article 9 of Protocol (No. 36) on transitional provisions, annexed to the treaties, the legal effects of the acts of the institutions, bodies, offices and agencies of the Union adopted on the basis of the Treaty on European Union prior to the entry into force of the Treaty of Lisbon are to be preserved until those acts are repealed, annulled or amended in implementation of the treaties. Since the Framework Decision 2002/584/JHA on the European arrest warrant and the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty have not been subject to any such repeal, annulment or amendment, they continue therefore to have the legal effect attributed to them under article 34 (2) (b)

of the Treaty on European Union (judgment in case C-554/14, Ognyanov, par. 57).

Since those framework decisions do not have direct effect under the EU Treaty itself, it follows that a court of a Member State is not required, solely on the basis of EU law, to disapply a provision of its national law which is contrary to those framework decisions.

In the third place, it should be recalled that, although the framework decisions cannot have direct effect, their binding character nevertheless places on national authorities an obligation to interpret national law in conformity with EU law as from the date of expiry of the period for the transposition of those framework decisions (judgment in case C-554/14, Ognyanov, pars. 58 and 61).

When applying national law, those authorities are therefore required to interpret it, to the greatest extent possible, in the light of the text and the purpose of the framework decision in order to achieve the result sought by that decision [see, to that effect, judgments case C-105/03, Pupi-no, par. 43; in case C-42/11, Lopes Da Silva Jorge, par. 54; in case C-554/14, Ognyanov, par. 59; and in case C-579/15, Poplawski ("Poplawski I"), par. 31].

However, the principle of interpreting national law in conformity with EU law has certain limits.

Thus, the general principles of law, in particular the principles of legal certainty and non-retroactivity, preclude inter alia that obligation to interpret national law in conformity with EU law from leading to the criminal liability of individuals being determined or aggravated, on the basis of a framework decision alone, in the absence of any legislation implementing its provisions, where they committed an infringement [judgments in case C-554/14, Ognyanov, pars. 63 to 64 and the case-law cited, and case C-579/15, Poplawski ("Poplawski I"), par. 32].

Similarly, the principle of conforming interpretation cannot serve as the basis for an interpretation of national law contra legem [judgment in case C-579/15, Poplawski ("Poplawski I"), par. 33 and the case-law cited]. In other words, the obligation to interpret national law in conformity with EU law ceases when the former cannot be applied in a way that leads to a result compatible with that envisaged by the framework decision concerned (judgment in case C-554/14, Ognyanov, par. 66).

That being so, the principle that national law must be interpreted in conformity with EU law requires that the whole body of domestic law be taken into consideration and that the interpretative methods recognised by domestic law be applied, with a view to ensuring that the framework decision concerned is fully effective and to achieving an outcome consistent with the objective pursued by it [see, to that effect, judgments in case C-42/11, Lopes Da Silva Jorge, par. 56; in case C-579/15, Poplawski ("Poplawski I"), par. 34; and in case C-492/18 PPU, TC, par. 68].

In that context, the Court has already held that the obligation to interpret domestic law in conformity with EU law requires national courts to change established case-law, where necessary, if it is based on an interpretation of domestic law that is incompatible with the objectives of a framework decision and to disapply, on their own authority, the interpretation adopted by a higher court which it must follow in accordance with its national law, if that interpretation is not compatible with the framework decision concerned [see, to that effect, judgments case C-441/14, DI,

par. 33, and in case C-579/15, Poplawski ("Poplawski I"), pars. 35 and 36].

Consequently, a national court cannot validly claim that it is impossible for it to interpret a provision of national law in a manner that is consistent with EU law merely because that provision has consistently been interpreted in a manner that is incompatible with EU law (judgments in case C-554/14, Ognyanov, par. 69, and in case C-684/16, Max-Planck-Gesellschaft zur Förderung der Wissenschaften, par. 60) or is applied in such a manner by the relevant national authorities.

In the present case, with regard to the obligation to interpret Netherlands law, and more particularly the Law on Surrender, in conformity with the Framework Decision 2002/584/JHA on the European arrest warrant, the following should be noted.

In par. 37 of the judgment in case C-579/15, Poplawski ("Poplawski I"), the Court found that the national court's obligation to ensure the complete effectiveness of the Framework Decision 2002/584/JHA on the European arrest warrant brings with it the obligation for the Kingdom of the Netherlands to execute the European arrest warrant at issue in the main proceedings or, in the event of a refusal, the obligation to ensure that the sentence pronounced in Poland against Mr Poplawski is actually executed in the Netherlands.

It should be observed that the impunity of the requested person would be incompatible with the objective pursued both by the Framework Decision 2002/584/JHA on the European arrest warrant [see, to that effect, judgments in case C-579/15, Poplawski ("Poplawski I"), par. 23, and in case C-514/17, Sut, par. 47] and by article 3 (2) of the Treaty on European Union, under which the European Union offers its citizens an area of freedom, security and justice without internal frontiers, in which the free movement of persons is ensured in conjunction with appropriate measures, in particular with respect to external border controls and the prevention and combating of crime (judgment in case C-220/18 PPU, Generalstaatsanwaltschaft, par. 86).

The Court also stated that, since the obligation has no bearing on the determination of Mr Poplawski's criminal liability which stems from the judgment pronounced against him on 5 February 2007 by the District Court in Poznan (Sqd Rejonowy w Poznaniu) it cannot, a fortiori, be regarded as aggravating that liability [judgment case C-579/15, Poplawski ("Poplawski I"), par. 37].

It is apparent from the documents before this Court that the referring court, unless it resorts to an interpretation contra legem, seems to rule out the possibility that the Law on Surrender may be applied in such a way that the European arrest warrant at issue in the main proceedings is enforced and that Mr Poplawski is surrendered to the Polish judicial authorities.

Therefore, if the outcome of an interpretation of national law is that the enforcement of the European arrest warrant issued against Mr Poplawski actually proves to be impossible, which is a matter for the referring court to establish, it falls again to that court to interpret the relevant Netherlands legislation, and in particular article 6 of the Law on Surrender, upon which Mr Poplawski's surrender to the Polish authorities is refused, to the greatest extent possible in such a way that the application of that legislation makes it possible, by the sentence pro-

nounced against Mr Poplawski actually being executed in the Netherlands, to avoid his impunity and thus to produce a solution that is compatible with the objective pursued by the Framework Decision 2002/584/JHA on the European arrest warrant.

In that regard, as the Court stated in par. 23 of its judgment in case C-579/15, Poplawski ("Poplawski I"), legislation of a Member State, such as article 6 of the Law on Surrender, which implements the ground for optional non-execution of an European arrest warrant in order to execute a custodial sentence or detention order contained in article 4 (6) of the Framework Decision 2002/584/JHA on the European arrest warrant by providing that the judicial authorities of that Member State are, in any event, obliged to refuse to execute an European arrest warrant if the requested person resides in that State, without those authorities having any margin of discretion and without that Member State actually undertaking to execute the custodial sentence pronounced against that requested person, thereby creating a risk of impunity of that person, cannot be regarded as compatible with that Framework Decision.

In those circumstances, it should be stated that the Court, when called on to provide answers that are of use to the national court in the context of a reference for a preliminary ruling, may offer clarification intended to provide the national court with guidance and indicate to it which interpretation of national law would fulfil its obligation to interpret that law in conformity with EU law (judgment in case C-167/17, Klohn, par. 68).

In the present case, with regard, first of all, to the obligation, laid down in article 4 (6) of the Framework Decision 2002/584/JHA on the European arrest warrant, to ensure, in the event of a refusal to execute the European arrest warrant, that the custodial sentence is actually enforced by the executing Member State, it should be pointed out that that obligation presupposes an actual undertaking on the part of that State to execute the custodial sentence imposed on the requested person, even though, in any event, the mere fact that that Member State declares itself "willing" to execute the sentence could not be regarded as justifying such a refusal. It follows that any refusal to execute an European arrest warrant must be preceded by the executing judicial authority's examination of whether it is actually possible to execute the sentence in accordance with its domestic law [judgment case C-579/15, Poplawski ("Poplawski I"), par. 22].

It is apparent from par. 38 of the judgment in case C-579/15, Poplawski ("Poplawski I"), that, according to the referring court, the declaration, in which Dutch Public Prosecutor (Openbaar Ministerie) informed the issuing judicial authority that, pursuant to article 6 (3) of the Law on Surrender in the version applicable until the entry into force of the Law on the Mutual Recognition and Enforcement of Custodial and Suspended Sentences, it was willing to take over the execution of the sentence on the basis of the European arrest warrant at issue in the main proceedings, cannot be interpreted as constituting an actual undertaking on the part of the Kingdom of the Netherlands to execute that sentence, unless article 4 (6) of the Framework Decision 2002/584/JHA on the European arrest warrant can be regarded as a formal legal basis, for the purposes of article 6 (3) of the Law on Surrender, for the actual execution of such a sentence in the Netherlands.

Although it falls to the referring court to assess whether Netherlands law may be interpreted as meaning that the Framework Decision 2002/584/JHA on the European arrest warrant may be treated as a formal legal basis for the purposes of applying article 6 (3) of the Law on Surrender in the version applicable until the entry into force of the Law on the Mutual Recognition and Enforcement of Custodial and Suspended Sentences, the Court has already held that EU law does not preclude such treatment.

First, as is apparent from the Court's case-law, according to Recitals No. 5, 7 and 11 and article 1 (1) and (2) of the Framework Decision 2002/584/JHA on the European arrest warrant, in relations between Member States, that decision replaces all the previous instruments concerning extradition, including the conventions which existed between the different Member States. In addition, given that that Framework Decision coexists, whilst having its own legal arrangements defined by EU law, with the extradition conventions in force between the various Member States and third States, it is not inconceivable that that Framework Decision could be placed on the same footing as such a convention [see, to that effect, judgments in case C-579/15, Poplawski ("Poplawski I"), par. 41, and in case C-216/18 PPU, Minister for Justice and Equality, par. 39].

Secondly, the Court also held that the Framework Decision 2002/584/JHA on the European arrest warrant does not contain any provision which leads to the conclusion that it precludes the term "another applicable convention" in article 6 (3) of the Law on Surrender, in the version applicable until the entry into force of the Law on the Mutual Recognition and Enforcement of Custodial and Suspended Sentences, from being interpreted as meaning that it also covers article 4 (6) of that Framework Decision, provided that such an interpretation would ensure that the discretionary power of the executing judicial authority to refuse to execute the European arrest warrant is exercised only on condition that the sentence pronounced against Mr Poplawski is in fact executed in the Netherlands, and a solution that is compatible with the purpose of that Framework Decision is thus achieved [judgment in case C-579/15, Poplawski ("Poplawski I"), par. 42].

It is apparent from the request for a preliminary ruling that the referring court confirms that such treatment would make it possible, according to its interpretation of Netherlands law, to ensure that the sentence handed down to Mr Poplawski is actually executed in the Netherlands. Nevertheless, it states that the Minister, called on to intervene in the main proceedings by virtue of article 6 (4) of the Law on Surrender, considers that the Framework Decision 2002/584/JHA on the European arrest warrant was not a convention for the purposes of article 6 (3) of the Law on Surrender in the version applicable until the entry into force of the Law on the Mutual Recognition and Enforcement of Custodial and Suspended Sentences.

In that regard, it should be recalled first that, the obligation to interpret national law in conformity with the Framework Decision 2002/584/JHA on the European arrest warrant binds all Member State authorities, including, in the present case, the Minister. The Minister, like the judicial authorities, is therefore required to interpret Netherlands law, to the greatest extent possible, in the light of the text and the purpose of the framework decision, in such a way that, by the sentence pronounced

against Mr Poplawski being enforced in the Netherlands, the effectiveness of the Framework Decision 2002/584/JHA on the European arrest warrant is preserved, which is guaranteed by the interpretation of article 6(3) of the Law on Surrender in the version applicable until the entry into force of the Law on the Mutual Recognition and Enforcement of Custodial and Suspended Sentences.

Secondly, the fact that an interpretation of national law which is incompatible with EU law is endorsed by the Minister in no way impedes the referring court's obligation to interpret domestic law in conformity with EU law.

This is all the more so since the Framework Decision 2002/584/JHA on the European arrest warrant creates a mechanism for co-operation between the judicial authorities of the Member States and the decision on the execution of the European arrest warrant must be taken by a judicial authority that meets the requirements inherent in effective judicial protection, including the guarantee of independence, so that the entire procedure provided for by the framework decision is carried out under judicial supervision (see, to that effect, judgment in case C-216/18 PPU, Minister for Justice and Equality, par. 56). It follows that, since the Minister is not a judicial authority for the purposes of the framework decision (see, to that effect, judgment in case C-77/16 PPU, Kovalkovas, par. 45), the decision on the execution of the European arrest warrant made against Mr Poplawski cannot depend on the Minister's interpretation of article 6 (3) of the Law on Surrender.

Consequently, the referring court cannot, in the main proceedings, validly claim that it is impossible for it to interpret article 6 (3) in a manner that is compatible with EU law, for the sole reason that that provision has been interpreted, by the Minister, in a way that is not compatible with EU law (see, by analogy, judgment in case C-554/14, Ognyanov, par. 69).

It follows from the foregoing that, although the referring court concluded that the Framework Decision 2002/584/JHA on the European arrest warrant, in accordance with the methods of construction recognised by Netherlands law, may be treated as a convention for the purposes of the application of article 6 (3) of the Law on Surrender in the version applicable until the entry into force of the Law on the Mutual Recognition and Enforcement of Custodial and Suspended Sentences, it is required to apply that provision, as interpreted, to the dispute in the main proceedings, without having regard to the fact that the Minister is opposed to that interpretation.

Next, with regard to the obligation, laid down in article 4 (6) of the Framework Decision 2002/584/JHA on the European arrest warrant, to ensure that the executing judicial authority has a margin of discretion in the implementation of the ground for optional non-execution of the European arrest warrant provided for in that provision, it should be recalled, first of all, that that authority must be able to take into consideration the objective pursued by the ground for optional non-execution set out in that provision, which, according to the Court's well-established case-law, means enabling the executing judicial authority to give particular weight to the possibility of increasing the requested person's chances of reintegrating into society when the sentence imposed on him expires [judgment in case C-579/15, Poplawski ("Poplawski I"), par. 21].

It follows that the option conferred on the executing judicial authority to refuse, on the basis of article 4 (6), to surrender the requested person may be exercised only if that authority, after having ascertained, first, that the person is staying in, or is a national or a resident of the executing Member State and, second, that the custodial sentence passed in the issuing Member State against that person can actually be enforced in the executing Member State, considers that there is a legitimate interest which would justify the sentence imposed in the issuing Member State being enforced in the executing Member State (judgment in case C-514/17, Sut, par. 37).

Therefore, it falls primarily to the referring court to interpret its national law, to the greatest extent possible, in conformity with the requirement set out in the preceding paragraph.

At the very least, that court should interpret its national law in a way that makes it possible for it to reach a solution which, in the main proceedings, is not contrary to the objective pursued by the Framework Decision 2002/584/JHA on the European arrest warrant. The obligation to interpret national law in conformity with EU law persists for as long as the former can be applied in a way that leads to a result which is compatible with that envisaged by that Framework Decision (see, to that effect, judgment in case C-554/14, Ognyanov, par. 66).

In that regard, it is apparent from the conditions governing the implementation of the ground for optional non-execution of the European arrest warrant, provided for in article 4 (6) of the Framework Decision 2002/584/ JHA on the European arrest warrant, that the EU legislature wanted to avoid any risk of impunity of the requested person (see, to that effect, judgment in case C-514/17, Sut, par. 47), in accordance with the general purpose of that Framework Decision.

An interpretation of article 6 of the Law on Surrender by which the referring court may not, under any circumstances, execute the European arrest warrant issued against Mr Poplawski does not necessarily preclude the removal of any risk of impunity as regards Mr Poplawski and there -fore the fulfilment of both the objective pursued by that Framework Decision and the obligation which it imposes, in the present case on the Kingdom of the Netherlands.

On the other hand, the existence of a requirement, in order for the interpretation of article 6 of the Law on Surrender to be considered compatible with EU law, that that provision should give the referring court a margin of discretion enabling it to execute the European arrest warrant issued against Mr Poplawski, if it considers that no legitimate interest justifies the sentence which he received being executed in the Netherlands, would lead to a risk, if national law could not be interpreted in accordance with such a requirement, of making it impossible, in view of the lack of direct effect of the Framework Decision 2002/584/JHA on the European arrest warrant, not only to surrender Mr Poplawski to the Polish judicial authorities, but also to have his sentence actually executed in the Netherlands.

Such an outcome would provide for the impunity of the requested person and would run counter to the purpose of the Framework Decision 2002/584/JHA on the European arrest warrant and the obligation which it imposes, in the present case on the Netherlands.

In those circumstances, the referring court would adopt an interpretation of Netherlands law in conformity with the objectives pursued by the Framework Decision 2002/584/JHA on the European arrest warrant if it interpreted that law in such a way that the refusal to execute the European arrest warrant at issue in the main proceedings, issued by the Republic of Poland, is subject to the guarantee that the custodial sentence which Mr Poplawski received will actually be enforced in the Netherlands, even if Netherlands law provides that that refusal occurs automatically.

In view of the information provided in the order for reference, such an interpretation of Netherlands in conformity with article 4 (6) of the Framework Decision 2002/584/ JHA on the European arrest warrant seems possible, and therefore the execution in the Netherlands of the custodial sentence which Mr Poplawski received in Poland appears to be permissible, a matter which must, however, be verified by the referring court.

Rulings

The Court of Justice in answer to the questions referred to it rules:

1. Article 28 (2) of the Framework Decision 2008/909/ JHA on mutual recognition of custodial sentences and deprivation of liberty must be interpreted as meaning that a declaration made pursuant to that provision by a Member State, after that Framework Decision was adopted, is not capable of producing legal effects.

2. The principle of the primacy of EU law must be interpreted as meaning that it does not require a national court to disapply a provision of national law which is incompatible with the provisions of a framework decision, such as the framework decisions at issue in the main proceedings, the legal effects of which are preserved in accordance with article 9 of Protocol (No. 36) on transitional provisions, annexed to the treaties [the Treaty on European Union and the Treaty on the Functioning of the European Union], since those provisions do not have direct effect. The authorities of the Member States, including the courts, are nevertheless required to interpret their national law, to the greatest extent possible, in conformity with EU law, which enables them to ensure an outcome that is compatible with the objective pursued by the framework decision concerned.

JUDGMENT OF THE COURT OF JUSTICE OF THE EUROPEAN UNION OF 11 MARCH 2020 -CASE C-314/18 - SF

Reference for a Preliminary Ruling

The request for a preliminary ruling concerns the interpretation of article 1 (3) and article 5 (3) of the Framework Decision 2002/584/JHA on the European arrest warrant, as well as that of articles 1 (a) and (b), 3 (3) and (4), 8 (2) and 25 of the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty.

The request has been submitted in the context of proceedings relating to the execution, in the Netherlands, of a European arrest warrant issued by a judge at the Crown Court in Canterbury (United Kingdom) for the purposes of criminal proceedings against SF, a Netherlands national.

Dispute in the Main Proceedings

and the Questions Referred for a Preliminary Ruling

On 3 March 2017, a judge at Canterbury Crown Court issued a European arrest warrant against SF, a Netherlands national, seeking surrender of the latter for the purposes of criminal proceedings relating to two offences, namely conspiracy to import 4 kg of heroin and 14 kg of cocaine into the United Kingdom.

On 30 March 2017, Dutch Public Prosecutor (Officier van justitie) requested the issuing judicial authority to supply the guarantee referred to in article 5 (3) of the Framework Decision 2002/584/JHA on the European arrest warrant and in article 6 (1) of the Law on Surrender (L'Overleveringswet).

By letter of 20 April 2017, the Home Office (United Kingdom) answered as follows: The United Kingdom undertakes that, should SF receive a custodial sentence in the United Kingdom, he will, in accordance with section 153C of the Extradition Act 2003, be returned to the Netherlands as soon as is reasonably practicable after the sentencing process in the United Kingdom has been completed and any other proceedings in respect of the offence for which extradition was sought are concluded. Full details of any sentence imposed on SF will be provided when he is returned to the Netherlands. It is considered that a transfer under the Framework Decision 2002/584/JHA on the European arrest warrant does not allow the Netherlands to alter the duration of any sentence imposed by a [United Kingdom] court."

After being requested to clarify the procedures covered by the expression "any other proceedings" within the meaning of section 153C of the Extradition Act 2003, the United Kingdom Home Office replied as follows in an email of 19 February 2018: "I can advise that the "other proceedings" process may include:

a) Consideration of confiscation;

b) The procedure for setting any period of imprisonment which will fall to be served in default of payment of any financial penalty;

c) The exhaustion of any available avenues of appeal;

d) The expiry of any period for payment of a confiscation order or financial penalty."

The referring court notes at the outset that, according to SF, that guarantee to return SF does not satisfy the conditions imposed by both the Framework Decision 2002/584/ JHA on the European arrest warrant and the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty and that, consequently, the District Court in Amsterdam (Rechtbank Amsterdam) should refuse to surrender him to the competent authority in the United Kingdom. The referring court is uncertain, in that context, as to whether certain aspects of that guarantee are compatible with the Framework Decision 2002/584/JHA on the European arrest warrant and the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty.

First, as regards the passage in the letter from the United Kingdom Home Office of 20 April 2017, according to which "the United Kingdom undertakes that, should SF receive a custodial sentence in the United Kingdom, he will, in accordance with section 153C of the Extradition Act 2003, be returned to the Netherlands as soon as is reasonably practicable after the sentencing process in the United

Kingdom has been completed and any other proceedings in respect of the offence for which extradition was sought are concluded," the referring court considers that this raises the question as to the time at which the issuing Member State must implement the guarantee to return the person requested to the executing Member State in order that that person may there serve the custodial sentence or detention that has been imposed.

In this respect, the referring court invokes the judgment in case C-582/15, van Vemde to support its view that such an obligation to return the person to the executing Member State cannot exist before a decision imposing a custodial sentence or detention order has become final.

However, that court is unsure whether the Member State which issues a European arrest warrant for the purposes of criminal proceedings, as the Member State in which the judgment will subsequently be delivered, can, under the guarantee provided for in article 5 (3) of the Framework Decision 2002/584/JHA on the European arrest warrant, make the return of the person concerned to the executing Member State subject to the condition, not only that the decision imposing a custodial sentence or detention order has become final, but also that any other proceedings relating to the offence in respect of which surrender was requested, such as confiscation proceedings, have been definitively closed.

According to the referring court, it can be argued that the objective of facilitating the social rehabilitation of the sentenced person, pursued both by article 5 (3) of the Framework Decision 2002/584/JHA on the European arrest warrant and by the Framework Decision 2008/909/ JHA on mutual recognition of custodial sentences and deprivation of liberty, requires that the person concerned should be returned to the executing Member State as soon as a custodial sentence or a detention order has become final, without awaiting the outcome of other proceedings relating to the offence in respect of which surrender was requested.

According to that court, it can also be argued that the return of the person concerned to the executing Member State, as soon as the custodial sentence or detention order has become final, may undermine the objective of seeking, pursuant to article 67 (1) and (3) the Treaty on the Functioning of the European Union, to ensure a high level of protection within an area of freedom, security and justice by measures to combat crime. The referring court observes in this regard that, if the Member State which issues a European arrest warrant for the purposes of criminal proceedings, as the Member State in which the judgment will subsequently be delivered, were to conduct confiscation proceedings in the absence of the person concerned, that Member State might be confronted with practical and evidential problems attributable to that absence, which might compel it to waive such proceedings.

Second, as regards the passage in the United Kingdom Home Office's letter of 20 April 2017 stating that "a transfer under the Framework Decision 2002/584/JHA on the European arrest warrant does not allow the Netherlands to alter the duration of any sentence imposed by a [United Kingdom] court", the referring court considers that this raises the question as to whether the executing Member State, once it has surrendered the person concerned on the basis of the guarantee set out in article 5 (3) of Framework

Decision 2002/584/JHA, can, on the basis of article 25 of the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty, adapt the custodial sentence or detention imposed on that person in the issuing Member State beyond what is allowed under article 8 (2) of the Framework Decision 2008/909/JHA.

The referring court adds, in this regard, that it is apparent from the parliamentary proceedings which preceded the adoption of the Law on the Mutual Recognition and Enforcement of Custodial and Suspended Sentences that, according to the Netherlands legislature, article 25 of the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty provides for the possibility to maintain the policy adopted in respect of Netherlands nationals prior to the implementation of that Framework Decision, by virtue of which foreign criminal sentences were converted into a sentence normally applicable in the Netherlands for a similar offence, that policy being currently enshrined in article 2:11 (5) of that law. According to the referring court, the objective is to achieve equal treatment between a Netherlands national who must be surrendered and who could also have been tried in the Netherlands, and a Netherlands national who is tried in the Netherlands. The referring court is unsure whether article 25 of the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty can be interpreted as having that meaning.

In those circumstances, the District Court in Amsterdam (Rechtbank Amsterdam) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:10

1. Must articles 1 (3) and 5 (3) of the Framework Decision 2002/584/JHA on the European arrest warrant and articles 1 (a) and (b), 3 (3) and (4) and 25 the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty be interpreted as meaning that the issuing Member State, in its capacity as issuing State, in a case in which the executing Member State has made the surrender of one of its own nationals for the purpose of prosecution subject to the guarantee set out in article 5 (3) of the Framework Decision 2002/584/JHA, providing that the person concerned, after being heard, is to be returned to the executing Member State in order to serve there the custodial sentence or detention order passed against him in the issuing Member State, is in fact required - after the conviction involving a custodial sentence or detention order has become legally enforceable - to return the person concerned only once "any other proceedings in respect of the offence for which extradition was sought" - such as confiscation proceedings - "are concluded"?

2. Must article 25 of the Framework Decision 2008/909/ JHA on mutual recognition of custodial sentences and deprivation of liberty be interpreted as meaning that a Member State, when it has surrendered one of its own nationals on the basis of the guarantee referred

10 Request for a preliminary ruling from the District Court in Amsterdam (Rechtbank Amsterdam) (Netherlands) lodged on 8 May 2018 -Openbaar Ministerie versus SF (Case C-314/18).

to in article 5 (3) of the Framework Decision 2002/584/ JHA on the European arrest warrant, may, in its capacity as the executing State for the recognition and execution of the judgment delivered against that person - in derogation from article 8 (2) of the Framework Decision 2008/909/JHA - consider whether the custodial sentence imposed on that person corresponds to the sentence which it would itself have imposed for the offence concerned and, if necessary, may adjust that imposed custodial sentence accordingly?

Consideration by the Court of Justice:1 Preliminary Observations

In order to answer the questions referred, it should first of all be recalled that EU law is based on the fundamental premiss that each Member State shares with all the other Member States, and recognises that they share with it, a set of common values on which the European Union is founded, as stated in article 2 of the Treaty on European Union. That premiss implies and justifies the existence of mutual trust between the Member States that those values will be recognised, and therefore that the EU law that implements them will be respected (judgments in case C-216/18 PPU, Minister for Justice and Equality, par. 35, and in case C-128/18, Dorobantu, par. 45).

Both the principle of mutual trust between the Member States and the principle of mutual recognition, which is itself based on the mutual trust between the latter, are, in EU law, of fundamental importance, given that they allow an area without internal borders to be created and maintained (in case C-216/18 PPU, Minister for Justice and Equality, par. 36, and in case C-128/18, Dorobantu, par. 46).

As a preliminary matter, it should be noted that the purpose of the Framework Decision 2002/584/JHA on the European arrest warrant, as is apparent in particular from its article 1 (1) and (2), read in the light of Recital No. 5 thereof, is to replace the multilateral system of extradition based on the European Convention on Extradition, signed in Paris on 13 December 1957, with a system of surrender between judicial authorities of convicted or suspected persons for the purpose of enforcing judgments or of conducting prosecutions, the system of surrender being based on the principle of mutual recognition (see, to that effect, judgments in case C-216/18 PPU, Minister for Justice and Equality, par. 39, and in case C-514/17, Sut, par. 26 and the case-law cited).

In that context, the Framework Decision 2002/584/ JHA on the European arrest warrant seeks, by the establishment of a new simplified and more effective system for the surrender of persons convicted or suspected of having infringed criminal law, to facilitate and accelerate judicial co-operation with a view to contributing to the attainment of the objective set for the European Union of becoming an area of freedom, security and justice, and has as its basis the high level of trust which must exist between the Member States (judgments in case C-216/18 PPU, Minister for Justice and Equality, par. 40, and in case C-514/17, Sut, par. 27 and the case-law cited).

In the field governed by the Framework Decision 2002/584/JHA on the European arrest warrant, the principle

11 See also: Opinion of Advocate General Pikamae delivered on 16 May 2019 - Case C-314/18 - Openbaar Ministerie versus SF.

of mutual recognition, which, as is apparent, in particular, from Recital No. 6 of that Framework Decision, constitutes the "cornerstone" of judicial co-operation in criminal matters, is put into practice in article 1 (2) of that Framework Decision, which lays down the rule that Member States are to execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of that Framework Decision. Executing judicial authorities may therefore, in principle, refuse to execute such a warrant only on the grounds for non-execution exhaustively listed by the Framework Decision 2002/584/JHA on the European arrest warrant. Similarly, execution of the arrest warrant may be made subject only to one of the conditions exhaustively laid down in article 5 of that Framework Decision. Accordingly, while execution of the European arrest warrant constitutes the rule, refusal to execute is intended to be an exception which must be interpreted strictly (see, to that effect, judgments in case C-216/18 PPU, Minister for Justice and Equality, par. 41, in case C-514/17, Sut, par. 28, and in case C-128/18, Dorobantu, par. 48).

the Framework Decision 2002/584/JHA on the European arrest warrant thus explicitly sets out the grounds for mandatory non-execution (article 3) and optional non-execution (articles 4 and 4a) of a European arrest warrant, as well as the guarantees to be given by the issuing Member State in particular cases (article 5). Although the system established by the Framework Decision 2002/584/JHA on the European arrest warrant is based on the principle of mutual recognition, that recognition does not mean that there is an absolute obligation to execute the arrest warrant that has been issued (see, to that effect, judgments in case C-306/09, B., par. 50, and in case C-514/17, Sut, pars. 29 and 30 and the case-law cited).

The Framework Decision 2002/584/JHA on the European arrest warrant allows, in specific situations, the competent authorities of Member States to decide that a sentence imposed in the issuing Member State must be enforced in the territory of the executing Member State. That is the case, in particular, under articles 4 (6) and 5 (3) of that Framework Decision (see, to that effect, judgments in case C-306/09, B., pars. 51 and 52, and in case C-514/17, Sut, par. 30 and the case-law cited). That latter provision states, as a guarantee to be given by the issuing Member State in particular cases, inter alia such as that at issue in the main proceedings, that the person who is the subject of a European arrest warrant for the purposes of prosecution is a national or resident of the executing Member State, surrender may be subject to the condition that the person, after being heard, is returned to the executing Member State in order to serve there the custodial sentence or detention order to be imposed on him in the issuing Member State.

Consideration by the Court of Justice: The First Question

By its first question the referring court asks, in essence, whether article 5 (3) of the Framework Decision 2002/584/ JHA on the European arrest warrant, read in combination with article 1 (3) thereof, as well as with articles 1 (a), 3 (3) and (4) and 25 of the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty, must be interpreted as meaning that, when

the executing Member State makes the return of a person who, being a national or resident of that Member State, is the subject of a European arrest warrant for the purposes of criminal prosecution, subject to the condition that that person, after being heard, will be returned to that Member State in order to serve there the custodial sentence or detention order to be imposed on him in the issuing Member State, the latter is under an obligation to return that person only from the moment at which not only the sentencing of the person concerned has there become final, but also any other procedural step coming within the scope of the criminal proceedings relating to the offence underlying the European arrest warrant, has been definitively closed.

It must be noted that article 5 (3) of the Framework Decision 2002/584/JHA on the European arrest warrant does not specify the time at which the person who is the subject of a European arrest warrant, the enforcement of which is subject to the provision of a guarantee within the meaning of that provision, must be returned to the executing Member State in order to serve there the custodial sentence or detention order which might be imposed on him in the issuing Member State.

The wording of that provision merely provides in this regard that the return of the person concerned to the executing Member State to serve there the custodial sentence or detention order which might be passed against him in the issuing Member State is to take place after the person concerned, being a national or resident of the executing Member State, has been heard in the issuing Member State.

It is therefore appropriate, in accordance with settled case-law, to interpret article 5 (3) of the Framework Decision 2002/584/JHA on the European arrest warrant by taking into account its context and the objectives pursued by that Framework Decision.

In the first place, it should be borne in mind in this regard that, the Framework Decision 2002/584/JHA on the European arrest warrant seeks to establish a new simplified and more effective system for the surrender of persons convicted or suspected of having infringed criminal law. In accordance with article 1 (1) of that Framework Decision, the aim of the mechanism of the European arrest warrant is to enable the arrest and surrender of a requested person, in the light of the objective pursued by the framework decision, so that the crime committed does not go unpunished and that that person is prosecuted or serves the custodial sentence ordered against him (judgment in case C-551/18, IK, par. 39).

However, the EU legislature has also attached, in article 5 (3) ofthe Framework Decision 2002/584/JHA on the European arrest warrant, particular weight to the possibility of increasing the chances of social reintegration of the national or resident of the executing Member State by allowing him to serve, in its territory, the custodial sentence or detention order which, after his surrender, under a European arrest warrant, would be imposed in the issuing Member State (see, to that effect, judgments in case C-123/08, Wolzenburg, par. 62, and in case C-306/09, B., par. 52).

In the second place, it is necessary to take account of the provisions of the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty, article 25 of which provides that those

provisions are to apply, mutatis mutandis, to the extent that they are compatible with the provisions of the Framework Decision 2002/584/JHA on the European arrest warrant, to the enforcement of sentences, in particular when, under article 5 (3) of that Framework Decision, a Member State imposes, as a condition for the execution of a European arrest warrant, the return of the person concerned to that State in order to serve there the custodial sentence or detention order to be imposed on him in the issuing Member State.

In that regard, it is clear from article 3 (1) of the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty that the latter seeks to establish the rules which make it possible for a Member State, with a view to facilitating the social rehabilitation of the sentenced person, to recognise a judgment and enforce the sentence pronounced by a court in another Member State.

Thus, the co-ordination provided for by the EU legislature between the Framework Decision 2002/584/JHA on the European arrest warrant and the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty must contribute to achieving the objective of facilitating the social rehabilitation of the person concerned. Moreover, such rehabilitation is in the interest not only of the convicted person but also of the European Union in general (see, to that effect, judgments in case C-145/09, Tsakouridis, par. 50, and in joined cases C-316/16 and C-424/16, B & Vomero, par. 75).

Moreover, it should be noted that, according to the first sentence of article 3 (3) of the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty, the latter applies only to the recognition of judgments and the enforcement of sentences within the meaning of that Framework Decision (judgment in case C-582/15, van Vemde, par. 23). article 1 (a) of the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty defines a "judgment" as a final decision of a court of the issuing State imposing a sentence on a natural person. The fact that that provision refers to the "final" character of the judgment in question underlines the particular importance attached to the unchallengeable nature of that judgment, to the exclusion of decisions which are subject to appeal (see, to that effect, judgment in case C-582/15, van Vemde, pars. 23, 24 and 27).

It follows that, where the executing judicial authority, acting under article 5 (3) of the Framework Decision 2002/584/JHA on the European arrest warrant, has imposed the condition, for the enforcement of the European arrest warrant, that the person who is subject to it and who is a national or resident of the executing Member State be returned to that latter State in order to serve there the custodial sentence or detention order to be imposed on him in the issuing Member State, that return by the latter may occur only after that decision has become final, within the meaning of the case-law cited.

Moreover, the objective of facilitating the social rehabilitation of the person concerned, pursued both in article 5 (3) of that Framework Decision and by the provisions of the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty, applicable pursuant to article 25 thereof, requires, when

the guarantee provided under article 5 (3) of the Framework Decision 2002/584/JHA on the European arrest warrant is implemented, that the return of the person concerned to the executing Member State should occur as soon as possible after that sentencing decision has become final.

This interpretation is supported by the second sentence of article 3 (3) of the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty, which provides that the fact that, in addition to the sentence, a fine or confiscation order has been imposed, which has not yet been paid, recovered or enforced, is not to prevent a judgment from the issuing Member State from being forwarded to the executing Member State, within the meaning of article 1 (c) and (d) of that Framework Decision.

However, in a situation in which it might transpire that the person on whom a custodial sentence of detention order has been imposed in the issuing Member State, while the decision which imposed that custodial sentence or detention order can no longer be appealed, is required to be present in that Member State by reason of other procedural steps forming part of the criminal proceedings relating to the offence underlying the European arrest warrant, such as the determination of a penalty or an additional measure, the objective of facilitating the social rehabilitation of the person concerned, pursued by article 5 (3) of the Framework Decision 2002/584/JHA on the European arrest warrant, must be balanced against both the effectiveness of the criminal prosecution for the purpose of ensuring a complete and effective punishment of the offence underlying the European arrest warrant and the safeguarding of the procedural rights of the person concerned.

It should also be borne in mind that, as is evident from article 1 (3) of the Framework Decision 2002/584/ JHA on the European arrest warrant and article 3 (4) of the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty, those framework decisions cannot have the effect of modifying the obligation to respect fundamental rights and principles guaranteed in the legal system of the European Union.

In accordance with settled case-law of the Court, the rules of secondary legislation of the European Union must be interpreted and applied in compliance with fundamental rights, an integral part of which is respect for the rights of the defence, flowing from the right to a fair trial, enshrined in articles 47 and 48 of the Charter of Fundamental Rights of the European Union and in article 6 of the European Convention of Human Rights, signed in Rome on 4 November 1950 (judgment in case C-270/17 PPU, Tupikas, par. 60).

Thus, under the balancing exercise, it is a matter for the issuing judicial authority to assess whether concrete grounds relating to the safeguarding of the rights of defence of the person concerned or the proper administration of justice make his presence essential in the issuing Member State, after the sentencing decision has become final and until such time as a final decision has been taken on any other procedural steps coming within the scope of the criminal proceedings relating to the offence underlying the European arrest warrant.

By contrast, it is not open to the judicial authority of the issuing Member State, under the guarantee provided under article 5 (3) of the Framework Decision 2002/584/JHA on the European arrest warrant, read in the light of the objective of facilitating the social rehabilitation of the convicted person, systematically and automatically to postpone the return of the person concerned to the executing Member State until the time at which the other procedural steps coming within the scope of the criminal proceedings relating to the offence underlying the European arrest warrant have been definitively closed.

In that context, the issuing judicial authority must take into account, for the purposes of the balancing exercise that it is required to carry out, the possibility of applying co-operation and mutual assistance mechanisms provided for in the criminal field under EU law (see, by analogy, judgment in case C-182/15, Petruhhin, par. 47). In this respect, it should be noted, inter alia, that, as is apparent from the third sentence of article 3 (3) of the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty, the recognition and enforcement of fines and confiscation orders in another Member State are to be carried out in accordance, in particular, with the Framework Decision 2005/214 on mutual recognition to financial penalties12 and the Framework Decision 2006/783 mutual recognition to confiscation orders.13 Moreover, the Directive 2014/41/EU on the European investigation order,14 the objective of which is to facilitate and accelerate judicial co-operation between Member States on the basis of the principles of mutual trust and mutual recognition (judgment in case C-324/17, Gavanozov, par. 35), provides, in article 24, for the issuance of a European Investigation Order for the purpose of hearing a suspected or accused person by videoconference or other audio-visual transmission, with the issuing authority and the executing authority agreeing on the practical arrangements.

Consideration by the Court of Justice: The Second Question

By its second question, the referring court asks, in essence, whether article 25 of the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty must be interpreted as meaning that, when the execution of a European arrest warrant issued for the purposes of criminal proceedings is subject to the condition set out in article 5 (3) of the Framework Decision 2002/584/JHA on the European arrest warrant,

12 Council Framework Decision 2005/214/JHA of 24 February

2005 on the application of the principle of mutual recognition to financial penalties. Official Journal of the European Union, L 76/16 of 22 March 2005.

13 Council Framework Decision 2006/783/JHA of 6 October

2006 on the application of the principle of mutual recognition to confiscation orders. Official Journal of the European Union, L 328/59 of 24 November 2006. In 2018 replaced and repealed by the Regulation (EU) 2018/1805 of the European Parliament and of the Council of 14 November 2018 on the mutual recognition of freezing orders and confiscation orders. Official Journal of the European Union, L 303/1 of 28 November 2018.

14 Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the European Investigation Order in criminal matters. Official Journal of the European Union, L 130/1 of 1 May 2014.

the executing Member State, in order to enforce the custodial sentence or detention order imposed in the issuing Member State on the person concerned, can, by way of derogation from article 8 (2) of the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty, adapt the duration of that sentence to make it correspond to the sentence that would have been imposed for the offence in question in the executing Member State.

It should be recalled in this regard that article 8 (2) of the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty permits the competent authority of the executing Member State to adapt the sentence imposed in the issuing Member State, where that sentence is incompatible with the law of the executing Member State. However, that authority can decide to adapt such a sentence only where it exceeds the maximum penalty provided for similar offences under its national law, and the adapted sentence must not be less than the maximum penalty provided for similar offences under the law of the executing Member State. In that context, article 8 (4) of the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty states that the adapted sentence must not aggravate the sentence passed in the issuing Member State, particularly in terms of its duration.

Article 8 of the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty therefore lays down strict conditions governing the adaptation, by the competent authority of the executing State, of the sentence imposed in the issuing State, those conditions being the sole exceptions to the obligation imposed on that authority, in principle, to recognise the judgment forwarded to it and to enforce the sentence, which is to correspond in its length and nature to the sentence imposed in the judgment delivered in the issuing State (see, to that effect, judgment in case C-554/14, Og-nyanov, par. 36).

It follows that the interpretation put forward by the Netherlands Government, to the effect that article 25 of the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty allows, in the case of a person who has been surrendered to the issuing Member State in return for a guarantee that he will be returned, an adaptation of the sentence by the executing Member State outside of the situations contemplated under article 8 of that Framework Decision cannot be accepted, as otherwise that provision and, in particular, the principle of mutual recognition of judgments and enforcement of sentences enshrined in article 8 (1), would be rendered entirely ineffective.

Consequently, the executing Member State cannot, by reason of the mere fact that the issuing Member State issues, in the guarantee which it provides under article 5 (3) of the Framework Decision 2002/584/JHA on the European arrest warrant, a reservation with regard to the possibility for the first of those Member States to adapt the sentence that may be imposed in the second Member State, beyond the situations contemplated in article 8 of the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty, refuse to surrender the person concerned.

Klimek L. Rulings

The Court of Justice in answer to the questions referred to it rules:

1. Article 5 (3) of the Framework Decision 2002/584/JHA on the European arrest warrant, read in combination with article 1 (3) thereof, as well as with article 1 (a), article 3 (3) and (4) and article 25 of the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty, must be interpreted as meaning that, when the executing Member State makes the return of a person who, being a national or resident of that Member State, is the subject of a European arrest warrant for the purposes of criminal prosecution, subject to the condition that that person, after being heard, is returned to that Member State in order to serve there the custodial sentence or detention order imposed on him in the issuing Member State, that Member State must return that person as soon as the sentencing decision has become final, unless concrete grounds relating to the rights of defence of the person concerned or to the proper administration of justice make his presence essential in the issuing Member State pending a definitive decision on any procedural step coming within the scope of the criminal proceedings relating to the offence underlying the European arrest warrant.

2. Article 25 of the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty, must be interpreted as meaning that, when the execution of a European arrest warrant issued for the purposes of criminal proceedings is subject to the condition set out in article 5 (3) of F the Framework Decision 2002/584/JHA on the European arrest warrant, the executing Member State can, in order to enforce the execution of a custodial sentence or a detention order imposed in the issuing Member State on the person concerned, adapt the duration of that sentence or detention only within the strict conditions set out in article 8 (2) of the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty.

JUDGMENT OF THE COURT OF JUSTICE OF THE EUROPEAN UNION OF 15 APRIL 2021 -CASE C-221/19 - AV

Reference for a Preliminary Ruling

The request for a preliminary ruling concerns the interpretation of article 3 (3) of the Framework Decision 2008/675/JHA on taking account of convictions in the Member States of the European Union in the course of new criminal proceedings15 (hereinafter the "Framework Decision 2008/675/JHA on convictions"), as well as that of article 8 (2) to (4), the first sentence of article 17 (1), and article 19 of the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty.

15 Council Framework Decision 2008/675/JHA of 24 July 2008 on taking account of convictions in the Member States of the European Union in the course of new criminal proceedings. Official Journal of the European Communities, L 220/32 of 15 August 2008.

The request was made in proceedings concerning the delivery of an aggregate sentence in respect of AV covering, inter alia, a sentence involving deprivation of liberty delivered by a court in another Member State, recognised for the purposes of its enforcement in Poland.

Dispute in the Main Proceedings

and the Questions Referred for a Preliminary Ruling

On 31 July 2018, AV, a Polish national, brought an application before the referring court, Polish Regional Court in Gdansk (Sqd Okr^gowy w Gdansku), seeking an aggregate sentence comprising two prison sentences imposed on AV, namely, first, that imposed by German Regional Court in Lüneburg (Landgericht Lüneburg) by judgment of 15 February 2017, recognised for the purposes of its enforcement in Poland by order of the referring court of 12 January 2018, which AV was required to serve from 1 September 2016 to 29 November 2021 and, second, that imposed by the referring court, by judgment of 24 February 2010, which AV is to serve from 29 November 2021 to 30 March 2030.

The referring court states that the legal classification of the acts which gave rise to the judgment of the Regional Court in Lüneburg (Landgericht Lüneburg)corresponds to that under Polish law and that the duration of the custodial sentence to be enforced in Poland, as a result of the recognition of that judgment, is identical to the duration of the sentence imposed by the German court, that is to say five years and three months.

In his application for an aggregate sentence, AV submits that, since the judgment delivered by the Regional Court in Lüneburg (Landgericht Lüneburg) was recognised for the purposes of its enforcement in Poland, the conditions for the delivery of an aggregate sentence covering that conviction are satisfied.

The referring court states that an aggregate sentence sits on the border between a judgment on the substance of the case and the enforcement of a conviction and that it covers convictions that have become final, in order to "adjust the legal response" to the offences committed, which could have been the subject of a single trial, and thus "rationalise the penalties imposed". It points out that an aggregate sentence does not constitute interference with the individual judgments concerned, since it does not infringe the essential elements of those judgments, in particular the determination of the guilt of the perpetrator of a given offence, but makes it possible to assess the overall criminal activity of a person who has been the subject of several convictions, and that only the duration of those convictions may be changed. That court also states that, where the conditions are met, it is mandatory to make an aggregate sentence.

However, according to the referring court, article 85 (4) of the Criminal Code, in the version applicable to the dispute in the main proceedings, read in conjunction with article 114a of that code, prohibits the issue of an aggregate sentence covering convictions handed down in Poland and convictions handed down in other Member States, recognised for the purpose of their enforcement in Poland.

In the view of the referring court, such a prohibition means that a person who has been sentenced several times in a single Member State is in a better position than

a person who has been sentenced in different Member States. By contrast, taking into account, in an aggregate sentence, convictions handed down in another Member State and recognised, in accordance with the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty where the aggregate sentence is delivered, would ensure, at EU level, equal treatment for persons in a similar situation and would strengthen mutual trust between the Member States.

In those circumstances, the Regional Court in Gdansk (Sqd Okrggowy w Gdansku) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:16

1. Should article 3 (3) of the Framework Decision 2008/675/JHA on convictions which provides that the taking into account of previous convictions handed down in other Member States, as provided for in paragraph 1, shall not have the effect of interfering with, revoking or reviewing previous convictions or any decision relating to their execution by the Member State conducting the new proceedings, be interpreted as meaning that interference for the purposes of that provision is to be taken to mean not only the inclusion in an aggregate sentence of a conviction handed down by a judgment delivered in a State of the European Union but also the inclusion in the aggregate sentence of such a conviction which was taken over for execution in another State of the European Union, together with a conviction handed down in the latter State, within the framework of the aggregate sentence?

2. In light of the provisions of the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty which are laid down in article 8 (2) to (4) thereof and concern the principles of the exequatur procedure, and also in the light of article 19 (1) and (2) thereof - which provides that an amnesty or pardon may be granted by the issuing State and also by the executing State (par. 1); only the issuing State may decide on applications for review of the judgment imposing the sentence to be enforced under this Framework Decision (par. 2) - and of the first sentence of article 17 (1) thereof - which provides that the enforcement of a sentence is to be governed by the law of the executing State - is it possible to pass an aggregate sentence which would include the sentences imposed by a judgment delivered in a State of the European Union that was taken over for execution in another State of the European Union, together with a conviction handed down in the latter State, within the framework of the aggregate sentence?

Consideration by the Court of Justice:17 Preliminary Observations

It should be noted at the outset that, although, in principle, criminal law and national rules of criminal procedure governing an aggregate sentence fall within the competence of the Member States, they are required to exercise

16 Request for a preliminary ruling from the Regional Court in Gdansk (Sqd Okrgwy w Gdansku) (Poland) lodged on 11 March 2019 -Criminal proceedings against AV (Case C-221/19).

17 See also: Opinion of Advocate General Jean Richard De La Tour delivered on 8 October 2020 - Case C-221/19 - AV.

that power in accordance with EU law (see, to that effect, judgment in joined cases C-202/18 and C-238/18, Rimsevics & ECB versus Latvia, par. 57).

It follows from the request for a preliminary ruling that, under Polish law, an aggregate sentence must be issued where the conditions are met for imposing a cumulative sentence concerning several convictions which have become definitive. It is also apparent that an aggregate sentence does not affect the finding of guilt made by those convictions, which has become final, but modifies the quantum of the penalty or penalties imposed.

Furthermore, it is apparent from the case file put before the Court that an aggregate sentence, such as that at issue in the main proceedings, consisting of commuting into a single sentence one or more sentences imposed previously on the person concerned, necessarily leads to a more favourable result for the person concerned. Following several convictions, the person concerned may receive a cumulative sentence, the quantum of which is less than that resulting from the sum of the different sentences deriving from separate previous convictions. In such a case, the court has discretion in determining the level of the sentence by taking into consideration the situation or personality of the person concerned, or even mitigating or aggravating circumstances.

In those circumstances, such an aggregate sentence must be distinguished from the methods for executing a custodial sentence (see, to that effect, judgment in case C-271/17 PPU, Zdziaszek, par. 85).

In the present case, AV's application for an aggregate sentence, inter alia, concerns the custodial sentence of five years and three months, imposed on him by judgment of the Regional Court in Lüneburg (Landgericht Lüneburg) of 15 February 2017, which was recognised for the purposes of its execution in Poland by order of the referring court.

Since the recognition of that judgment by the referring court and the execution in Poland of the sentence imposed on AV are governed by the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty, by virtue of the combined provisions of article 1 and article 3 (3) thereof, the second question, which concerns the interpretation of that Framework Decision, must be examined firSt.

Consideration by the Court of Justice: The Second Question

Framework decision, amnesty and pardon are to terminate the enforcement of a sentence. An aggregate sentence, does not have the object of terminating the enforcement of a sentence.

Second, under article 19 (2) of the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty, only the issuing State may decide on applications for review of the judgment imposing the sentence or custodial measure which, under that Framework Decision, is to be enforced in another Member State. An aggregate sentence, as described in pars. 25 and 26 of this judgment, cannot have either the object or effect of reviewing convictions handed down in other Member States, which are enforced, under that Framework Decision, in the Member State in which that aggregate sentence is delivered.

It follows that article 19 of the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty must be interpreted as permitting an aggregate sentence to cover one or more sentences handed down in other Member States, which are enforced, pursuant to that Framework Decision, in the Member State in which that aggregate sentence is delivered, provided that it does not result in a review of those sentences.

Consideration by the Court of Justice: The First Question

By its first question, the referring court asks, in essence, whether article 3 (3) of the Framework Decision 2008/675/ JHA on convictions, read in the light of Recital No. 14 thereof, must be interpreted as meaning that it allows the issue of an aggregate sentence covering not only one or more previous convictions handed down against the person concerned in the Member State in which that aggregate sentence is delivered, but also one or more convictions handed down against him or her in another Member State, which are enforced, under the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty, in the first Member State, as long as that aggregate sentence does not have the effect of interfering with the convictions handed down in that second Member State or with any decision relating to its enforcement, revoking or reviewing it, within the meaning of that provision of the Framework Decision 2008/675/JHA on convictions.

In that regard, it should be noted at the outset that the purpose of the Framework Decision 2008/675/JHA on convictions, pursuant to article 1 (1) thereof, is to determine the conditions under which previous convictions handed down in one Member State in respect of a person, within the meaning of article 2 of that Framework Decision, must be taken into account in the course of new criminal proceedings brought against the same person in another Member State for different facts (see, to that effect, judgments in case C-171/16, Beshkov, par. 25, and in case C-390/16, Lada, par. 27). As is apparent from Recital No. 2, the purpose of that Framework Decision is to make it possible to assess the past criminal record of the person concerned.

It is therefore not the objective of the Framework Decision 2008/675/JHA on convictions, as stated in Recital No. 6, to bring about the execution, in a Member State, of judicial decisions taken in other Member States (judgment in case C-171/16, Beshkov, par. 45).

As is apparent from Recitals No. 5 to 8, that Framework Decision seeks to ensure that each Member State seeks to attach to previous criminal convictions handed down in another Member State legal effects equivalent to those attached to previous national convictions in accordance with its own national law.

In accordance with that objective, article 3 (1) of that Framework Decision, read in the light of Recital No. 5, obliges Member States to ensure that, where new criminal proceedings are brought against a person, previous convictions handed down in other Member States against him or her for different facts, in respect of which information has been obtained under applicable instruments on mutual legal assistance or on the exchange of information extracted from criminal records, are taken into account

to the extent that previous national convictions are taken into account under national law, and that the legal effects attached to them are equivalent to those attached to previous national convictions, in accordance with national law, whether in relation to questions of fact or questions of substantive or procedural law (see, to that effect, judgments in case C-171/16, Beshkov, par. 26, and in case C-390/16, Lada, par. 28).

Article 3 (2) of the Framework Decision 2008/675/ JHA on convictions states that that obligation is to apply at the pre-trial stage, at the trial stage itself and at the time of execution of the conviction, in particular with regard to the applicable rules of procedure, including those relating to the definition of the offence, the type and level of the sentence, and the rules governing the execution of the decision (judgments in case C-171/16, Beshkov, par. 27, and in case C-390/16, Lada, par. 29).

The Court has previously held that Framework Decision 2008/675/JHA on convictions is applicable to a national procedure that is concerned with the imposition, for the purposes of execution, of an overall custodial sentence that takes into account the sentence imposed on that person by a national court and also that imposed following a previous conviction handed down by a court of another Member State against the same person for different facts (judgment in case C-171/16, Beshkov, par. 29).

In that context, in accordance with article 3 (3) of the Framework Decision 2008/675/JHA on convictions, the taking into account, in new criminal proceedings, of previous convictions handed down in another Member State may not have the effect either of interfering with those previous convictions or with any decision relating to their execution in the Member State in which the new criminal proceedings are conducted, or of revoking or reviewing those convictions, which must be taken into account in the terms in which they were handed down (see, to that effect, judgments in case C-171/16, Beshkov, par. 44, and in case C-390/16, Lada, par. 39).

In that regard, Recital No. 14 of the Framework Decision 2008/675/JHA on convictions states that "interference" with a judgment or its execution, within the meaning of article 3 (3), covers, inter alia, "situations where, according to the national law of the second Member State, the sanction imposed in a previous judgment is to be absorbed by or included in another sanction, which is then to be effectively executed, to the extent that the first sentence has not already been executed or its execution has not been transferred to the second Member State".

It is thus apparent from article 3 (3) of the Framework Decision 2008/675/JHA on convictions, read in the light of Recital No. 14 thereof, that, first, situations in which a cumulative sentence is imposed are not excluded as such from the scope of that Framework Decision and, second, the imposition of a cumulative sentence is capable of interfering with the previous conviction or its execution where the first sentence has not yet been executed or has not been transferred to the second Member State for the purpose of its execution.

Consequently, since a previous criminal conviction, such as that at issue in the main proceedings, delivered in one Member State, was forwarded and recognised, in accordance with the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation

of liberty, the fact that that conviction is taken into account in that paragraph for the purposes of issuing an aggregate sentence cannot have the effect of "interfering" with that conviction or its execution, or "revoking or "reviewing" it, within the meaning of article 3 (3) of the Framework Decision 2008/675/JHA on convictions, provided that that aggregate sentence, in so far as concerns that conviction, observes the conditions and limits arising from article 8 (2) to (4), article 17 (2) and article 19 (2) of the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty.

It follows from the foregoing considerations that, in order to ensure that previous convictions handed down in another Member State are recognised as having effects equivalent to those attached to previous national convictions, the court hearing the case in new criminal proceedings, such as the aggregate sentencing procedure at issue in the main proceedings, is, in principle, required to take into account the previous conviction handed down by a court of another Member State in the same way as it would take into consideration a previous conviction handed down by a court of the Member State in which that court is situated, subject to compliance with the conditions and limits.

That interpretation is borne out by the objective pursued by the Framework Decision 2008/675/JHA on convictions, of preventing, as far as possible, the person concerned from being treated less favourably than if the previous criminal conviction at issue had been a national conviction.

Rulings

The Court of Justice in answer to the questions referred to it rules:

1. The combined provisions of article 8 (2) to (4), article 17 (1) and (2) and article 19 of the Framework Decision 2008/909/JHA on mutual recognition of custodial sentences and deprivation of liberty must be interpreted as permitting the issue of an aggregate sentence covering not only one or more previous sentences handed down against the person concerned in the Member State in which that aggregate sentence is delivered, but also one or more sentences handed down against him or her in another Member State, which are enforced under that Framework Decision in the first Member State. Such an aggregate sentence cannot, however, lead to an adaptation of the duration or nature of those sentences which goes beyond the strict limits laid down in article 8 (2) to (4) of that Framework Decision, a breach of the obligation, imposed by article 17 (2) of that Framework Decision, to deduct the full period of deprivation of liberty already served, where appropriate, by the sentenced person in the issuing State, from the total duration of the deprivation of liberty to be served in the executing Member State, or to a review of the sentences imposed in another Member State, in breach of article 19 (2) of that Framework Decision.

2. Article 3 (3) of the Framework Decision 2008/675/JHA on convictions, read in the light of Recital No. 14 thereof, must be interpreted as permitting the issue of an aggregate sentence covering not only one or more previous convictions handed down against the person concerned

in the Member State in which that aggregate sentence is delivered, but also one or more convictions handed down against him in another Member State and which are enforced, under the Framework Decision 2008/909/ JHA on mutual recognition of custodial sentences and deprivation of liberty, in the first Member State, on condition that that aggregate sentence observes, in so far as concerns the latter convictions, the conditions and limits arising from article 8 (2) to (4), article 17 (2) and article 19 (2) of that Framework Decision 2008/909/JHA.

REFERENCES

1. Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States as amended by the Framework Decision 2009/299/JHA. Official Journal of the European Communities. L 190/1 of 18 July 2002.

2. Council Framework Decision 2005/214/JHA of 24 February

2005 on the application of the principle of mutual recognition to financial penalties. Official Journal of the European Union. L 76/16 of 22 March 2005.

3. Council Framework Decision 2006/783/JHA of 6 October

2006 on the application of the principle of mutual recognition to confiscation orders. Official Journal of the European Union. L 328/59 of 24 November 2006. In 2018 replaced and repealed by the Regulation (EU) 2018/1805 of the European Parliament and of the Council of 14 November 2018 on the mutual recognition of freezing orders and confiscation orders. Official Journal of the European Union. L 303/1 of 28 November 2018.

4. Council Framework Decision 2008/675/JHA of 24 July 2008 on taking account of convictions in the Member States of the European Union in the course of new criminal proceedings. Official Journal of the European Communities. L 220/32 of 15 August 2008.

5. Council Framework Decision 2008/909/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union as amended by the Framework Decision 2009/299/JHA. Official Journal of the European Union. L 327/27 of 5 December 2008.

6. Council of the European Union (2014): "Council Framework Decision 2008/909/JHA", 9885/14.

7. Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the European Investigation Order in criminal matters. Official Journal of the European Union. L 130/1 of 1 May 2014.

8. European Commission (2014): "Report from the Commission to the European Parliament and the Council on the implementation by the Member States of the Framework Decisions 2008/909/JHA, 2008/947/JHA and 2009/829/JHA on the mutual recognition of judicial decisions on custodial sentences or measures involving deprivation of liberty, on probation decisions and alternative sanctions and on supervision measures as an alternative to provisional detention", COM (2014) 57 final.

9. European Commission (2014): "Tables State of play and Declarations accompanying the document Report from the Commission to the European Parliament and the Council on the implementation by the Member States of the Framework Decisions 2008/909/JHA, 2008/947/JHA and 2009/829/ JHA on the mutual recognition of judicial decisions on custodial sentences or measures involving deprivation of liberty, on probation decisions and alternative sanctions and on supervision measures as an alternative to provisional detention", Commission staff working document, SWD (2014) 34 final.

10. Klimek L. Mutual Recognition of Judicial Decisions in European Criminal Law. Cham: Springer, 2017. 742 p.

11. Opinion of Advocate General Bobek delivered on 28 July 2016. Case C-289/15 - Grundza.

12. Opinion of Advocate General Bot delivered on 3 May 2016. Case C-554/14 - Criminal proceedings against Atanas Ognyanov.

13. Opinion of Advocate General Jean Richard De La Tour delivered on 8 October 2020. Case C-221/19 - AV.

14. Opinion of Advocate General Pikamäe delivered on 16 May 2019. Case C-314/18 - Openbaar Ministerie versus SF.

15. Opinion of Advocate General Sánchez-Bordona delivered on 27 November 2018. Case C-573/17 - Openbaar Ministerie versus Daniel Adam Poplawski.

16. Request for a preliminary ruling from the District Court in Amsterdam (Rechtbank Amsterdam) (Netherlands) lodged on 28 September 2017. Openbaar Ministerie versus Daniel Adam Poplawski (Case C-573/17).

17. Request for a preliminary ruling from the District Court in Amsterdam (Rechtbank Amsterdam) (Netherlands)

lodged on 8 May 2018. Openbaar Ministerie versus SF (Case C-314/18).

18. Request for a preliminary ruling from the District Court in Presov (Krajsky sud v Presove) (Slovak Republic) lodged on 15 June 2015. Jozef Grundza (Case C-289/15).

19. Request for a preliminary ruling from the Regional Court in Gdansk (S^d Okr^gowy w Gdansku) (Poland) lodged on 11 March 2019. Criminal proceedings against AV (Case C-221/19).

20. Request for a preliminary ruling from the Sofia City Court (Sofiyski gradski sad) (Bulgaria) lodged on 3 December 2014. Criminal proceedings against Atanas Ognyanov (Case C-554/14).

Статья проверена программой Антиплагиат

Статья поступила в редакцию 11.10.2021, принята к публикации 13.11.2021 The article was received on 11.10.2021, accepted for publication 13.11.2021

ABOUT THEAUTHOR

Libor Klimek, Associate Professor at the Department of Criminal Law, Criminology, Criminalistics and Forensic Disciplines; Director of the Criminology and Criminal-istics Research Centre at the Faculty of Law of the Matej Bel University, Banska Bystrica, Slovak Republic; Visiting Professor at the Faculty of Law of the Leipzig University in Germany. ORCID ID: 0000-0003-3826-475X; Scopus Author ID: 55620115400; E-mail: [email protected]

СВЕДЕНИЯ ОБ АВТОРЕ

Климек Либор, доцент юридического факультета Университета Матея Бела. Банска Быстрица, Республика Словакия; приглашенный профессор юридического факультета Лейпцигского университета (Германия). ORCID ID: 0000-0003-3826-475X; Scopus Author ID: 55620115400; E-mail: [email protected]