Provisional text
JUDGMENT OF THE COURT (Seventh Chamber)
21 December 2023 (*)
(Reference for a preliminary ruling – Police and judicial cooperation in criminal matters – Framework Decision 2002/584/JHA – European arrest warrant – Article 4a(1) – Surrender procedure between Member States – Conditions for execution – Grounds for optional non-execution – Exceptions – Mandatory execution – Sentence handed down in absentia – Concept of ‘trial resulting in the decision’ – Person concerned not having appeared in person either at first instance or on appeal – National legislation imposing an absolute prohibition on surrender of the person concerned in the case of a decision rendered in absentia – Obligation to interpret national law in conformity with EU law)
In Case C‑397/22,
REQUEST for a preliminary ruling under Article 267 TFEU from the Kammergericht Berlin (Higher Regional Court, Berlin, Germany), made by decision of 14 June 2022, received at the Court on 15 June 2022, in the proceedings relating to the execution of the European arrest warrant issued against
LM
intervening party:
Generalstaatsanwaltschaft Berlin,
THE COURT (Seventh Chamber),
composed of F. Biltgen (Rapporteur), President of the Chamber, N. Wahl and M.L. Arastey Sahún, Judges,
Advocate General: P. Pikamäe,
Registrar: A. Calot Escobar,
having regard to the written procedure,
after considering the observations submitted on behalf of:
– the German Government, by J. Möller, P. Busche, M. Hellmann and R. Kanitz, acting as Agents,
– the Polish Government, by B. Majczyna, acting as Agent,
– the European Commission, by S. Grünheid and H. Leupold, acting as Agents,
having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,
gives the following
Judgment
1 This request for a preliminary ruling concerns the interpretation of Article 4a(1) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (OJ 2002 L 190, p. 1), as amended by Council Framework Decision 2009/299/JHA of 26 February 2009 (OJ 2009 L 81, p. 24) (‘Framework Decision 2002/584’).
2 The request has been made in proceedings relating to the execution, in Germany, of the European arrest warrant issued against a Polish national with a view to executing a custodial sentence in Poland.
Legal context
European Union law
3 Article 1 of Framework Decision 2002/584, entitled ‘Definition of the European arrest warrant and obligation to execute it’, provides:
1. The European arrest warrant is a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order.
2. Member States shall execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of this Framework Decision.
3. This Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 [TEU].’
4 Article 4a(1) of that framework decision, entitled ‘Decisions rendered following a trial at which the person did not appear in person’, is worded as follows:
‘The executing judicial authority may also refuse to execute the European arrest warrant issued for the purpose of executing a custodial sentence or a detention order if the person did not appear in person at the trial resulting in the decision, unless the European arrest warrant states that the person, in accordance with further procedural requirements defined in the national law of the issuing Member State:
(a) in due time:
(i) either was summoned in person and thereby informed of the scheduled date and place of the trial which resulted in the decision, or by other means actually received official information of the scheduled date and place of that trial in such a manner that it was unequivocally established that he or she was aware of the scheduled trial;
and
(ii) was informed that a decision may be handed down if he or she does not appear for the trial;
…’
German law
5 Paragraph 83(1)(3) of the Gesetz über die internationale Rechtshilfe in Strafsachen (Law on international mutual legal assistance in criminal matters), of 23 December 1982 (BGBl. 1982 I, p. 2071), in the version published on 27 June 1994 (BGBl. 1994 I, p. 1537) (‘the IRG’), provides:
‘Extradition shall not be authorised where:
…
3. in the event of a request for the purpose of executing a sentence, the convicted person did not appear in person at the hearing of the trial which resulted in the conviction …’
Polish law
6 Article 139(1) of the Kodeks postępowania karnego (Polish Code of Criminal Procedure) provides, in essence, for the possibility of effecting service at the known address of a person who has not notified his or her new address.
7 Under Article 75(1) of that code of criminal procedure, the accused person is required to notify his or her new address in the event of a change of residence in the course of the criminal proceedings.
The dispute in the main proceedings and the questions referred for a preliminary ruling
8 The Kammergericht Berlin (Higher Regional Court, Berlin, Germany), which is the referring court, received a request from the Polish authorities for the execution of a European arrest warrant issued on 26 July 2021 against a Polish national by the Sąd Okręgowy w Poznaniu (Regional Court, Poznań, Poland). That European arrest warrant seeks the arrest and surrender of the person concerned to those authorities for the purposes of executing a six-month custodial sentence imposed by the Sąd Rejonowy w Pile (District Court, Piła, Poland), by a judgment of 25 February 2020, of which 5 months and 29 days still remain to be served by him.
9 By judgment of 16 June 2020, the Sąd Okręgowy w Poznaniu (Regional Court, Poznań) dismissed the person concerned’s appeal against the judgment of 25 February 2020, without examining the merits of the case.
10 It is common ground that the person concerned did not appear in person either at his trial at first instance or on appeal, and nor was he represented by a lawyer.
11 The person concerned took receipt of the summons to appear at first instance and the grounds for the judgment at first instance, at the address which he had indicated to the competent Polish authorities at the time of his arrest as being his permanent residence. By contrast, the summons to the appeal hearing, sent to that same address, was not received by the person concerned who had lodged an appeal, but by his partner who was also resident at that address. The Polish authorities were unable to prove that she had in fact passed the summons on to him.
12 On 25 August 2021, the person concerned was arrested in Berlin (Germany) and remanded in custody on the basis of the European arrest warrant at issue in the main proceedings. He then stated that he did not consent to a simplified surrender procedure to the Polish authorities.
13 On 1 September 2021, the referring court ordered that the person concerned be detained with a view to his surrender to the Polish authorities.
14 After obtaining from the issuing judicial authority concerned details of the exact circumstances in which he had been summoned, the Generalstaatsanwaltschaft Berlin (General Prosecutor’s Office, Berlin, Germany) released the person concerned and requested the referring court to annul the arrest warrant issued for extradition purposes and to declare the surrender of the person concerned unlawful, on the ground that Paragraph 83(1)(3) of the IRG, which transposes Article 4a of Framework Decision 2002/584 into German law, precludes such surrender.
15 By order of 24 September 2021, the referring court discharged the arrest warrant issued for the purposes of the extradition of the person concerned, who had already been released. While it found that the condition of double criminality to which such surrender is subject, which consists in verifying that the conduct complained of constitutes an offence in the two Member States required to cooperate, was satisfied in the present case, the referring court decided to stay the proceedings concerning the application to declare the surrender of the person concerned unlawful.
16 In the first place, the referring court is uncertain whether the fact that the summons to the appeal hearing addressed to the person concerned was received by his partner satisfies the requirements laid down in Article 4a(1)(a)(i) of Framework Decision 2002/584.
17 It considers that the Court’s case-law arising from the judgment of 24 May 2016, Dworzecki (C‑108/16 PPU, EU:C:2016:346), according to which the receipt of a summons to appear by an adult member of the household of the person concerned is sufficient only if it can be ascertained from the European arrest warrant issued whether and, if so, when that adult actually passed that summons on to the person concerned, is too restrictive. According to the referring court, it should on the contrary be presumed that, as a general rule, the adult members of the same household pass on to other members of that household delivered items intended for the latter, and that the law enforcement authorities, being unaware of the inner workings of the household concerned cannot therefore prove that the summons was actually passed on to the person concerned. In the absence of such a presumption, the impediment to such a surrender constituted by a conviction in absentia would be ‘insurmountable’.
18 The referring court therefore considers that proof that the person concerned actually had knowledge of the summons served on him or her should be regarded as established where that summons was handed over to an adult in the same household as the person concerned, unless the latter plausibly demonstrates the contrary.
19 In the second place, the referring court is uncertain whether the concept of ‘trial resulting in the decision’, in Article 4a(1) of Framework Decision 2002/584, must be interpreted as relating to the trial which preceded the decision at first instance if the appeal brought by the person concerned was dismissed without any examination of its merits.
20 The referring court recalls the case-law of the Court of Justice arising from the judgment of 10 August 2017, Tupikas (C‑270/17 PPU, EU:C:2017:628), according to which, in the case of a criminal procedure involving several degrees of jurisdiction, the concept of ‘trial resulting in the decision’ relates to the trial which finally ruled on the guilt of the person concerned and imposed a penalty on him or her following a re-examination, in fact and in law, of the merits of the case, that is to say, the most recent hearing of a court ruling on the merits.
21 The referring court infers from this that, in the present case, it would be the proceedings before the court ruling on appeal, in which the person concerned did not participate, which are decisive for the purposes of applying Article 4a(1) of Framework Decision 2002/584 and that, since the person concerned did not appear in person in those proceedings, his surrender must be declared unlawful and execution of the European arrest warrant at issue in the main proceedings must be refused.
22 However, the referring court expresses doubts as to the applicability of the case-law arising from that judgment to a situation such as that at issue in the main proceedings, where the person concerned allegedly failed to give effect to his summons to the hearing in the appeal.
23 In that regard, the referring court considers, first, that the concept of ‘trial’, within the meaning of Article 4a(1) of Framework Decision 2002/584, covers only proceedings which have given rise to an examination of the merits of the case. There are differences in the organisation of the appeal procedure in the various Member States, in particular as regards the obligation for the national court to carry out such an examination where the person concerned is absent.
24 Second, the referring court considers that if the appeal is dismissed without an examination of the merits, the judgment handed down at first instance becomes final and is therefore enforceable, which would mean that the surrender of the person concerned is, in actual fact, sought for the purposes of enforcing that judgment. It infers from this that Article 4a(1) of Framework Decision 2002/584 must be interpreted as meaning that the concept of ‘trial’, within the meaning of that provision, refers to the decision to be executed.
25 In the third place, the referring court asks whether the principle of the primacy of EU law precludes national legislation, such as Paragraph 83(1)(3) of the IRG, which makes a conviction in absentia an ‘absolute impediment’ to the surrender of a person who is the subject of a European arrest warrant, whereas Article 4a(1) of Framework Decision 2002/584, which that legislation transposes into German law, provides only for an optional ground for refusal in that regard.
26 According to the referring court, the latter provision has not been fully transposed into German law, since Paragraph 83(1)(3) of the IRG does not provide for an executing judicial authority to be able to exercise discretion in the event of a conviction in absentia.
27 The referring court notes that, in the judgment of 24 June 2019, Popławski (C‑573/17, EU:C:2019:530, paragraphs 69, 72, 73 and 76), the Court held that although Framework Decision 2002/584 is precluded from being directly applied, since it does not have direct effect, the fact remains that an executing judicial authority is required to interpret national law in conformity with that framework decision in order to achieve the result sought by it, an interpretation of that national law contra legem being excluded, however.
28 The referring court considers that it is not in a position to interpret Paragraph 83(1)(3) of the IRG as meaning that, in examining the impediment to the surrender of the person concerned, that provision confers upon it a discretion which would allow it to declare that surrender lawful notwithstanding the exceptions provided for in Paragraph 83(2) to (4). It considers that, pursuant to Article 4a(1)(a) to (d) of Framework Decision 2002/584 and the discretion which it is meant to enjoy in that regard, it should be entitled to take the view that, in the light of the circumstances of the case, the person concerned’s right to be heard was duly respected, even though he did not appear in person in the appeal proceedings, and that his surrender is, therefore, lawful.
29 In those circumstances the Kammergericht Berlin (Higher Regional Court, Berlin) decided to stay proceedings and to refer the following questions to the Court of Justice for preliminary ruling:
‘(1) In the case where a summons is served on an adult member of the addressee’s household, is Article 4a(1)(a)(i) of [Framework Decision 2002/584], still to be interpreted as meaning that the issuing judicial authority must prove that the person concerned actually received the summons, or is that provision to be interpreted as meaning that service on the adult member of the addressee’s household proves actual knowledge where the person concerned does not plausibly demonstrate that (and explain why) he or she did not obtain knowledge of the summons?
(2) Where appeal proceedings have been conducted, is the concept of ‘trial’ in Article 4a(1) of [Framework Decision 2002/584], to be interpreted as relating to the trial which preceded the decision at first instance if only the requested person lodged an appeal and it was dismissed without examination of the merits?
(3) Is it compatible with the primacy of EU law for the German legislature to have configured the case of conviction in absentia as an absolute impediment to surrender in Paragraph 83(1)(3) of the [IRG], even though Article 4a(1) of [Framework Decision 2002/584] provides only for an optional ground for refusal in that regard?’
Consideration of the questions referred
The first question
30 By its first question, the referring court seeks, in essence, to ascertain whether Article 4a(1)(a)(i) of Framework Decision 2002/584 must be interpreted as meaning that, where a summons to appear is served on the person concerned by handing it over to an adult member of his or her household, the person concerned must be considered to have had actual knowledge of that summons unless he or she plausibly demonstrates otherwise, or whether it is for the issuing judicial authority concerned to provide proof that the person concerned actually received that summons.
31 In that regard, the Court has held that the fact that the summons was handed over to a third party who undertook to pass it on to the person concerned does not allow it to be unequivocally established either that the person concerned actually received the information relating to the date and place of his or her trial or, where appropriate, the precise time when that information was received (judgment of 24 May 2016, Dworzecki, C‑108/16 PPU, EU:C:2016:346, paragraph 47).
32 Thus, a summons which was not served directly on the person concerned but was handed over, at the latter’s address, to an adult belonging to the household concerned, who undertook to pass it on to him or her does not in itself, when it cannot be ascertained from the European arrest warrant whether and, if so, when that adult actually passed that summons on to the person concerned, satisfy the conditions set out in Article 4a(1)(a)(i) of Framework Decision 2002/584 (judgment of 24 May 2016, Dworzecki, C‑108/16 PPU, EU:C:2016:346, paragraph 54).
33 The referring court considers that it is appropriate to depart from the case-law arising from that judgment, which it regards as too restrictive. It reasons that a presumption should instead be established, based on the fact that the adult belonging to the household of the person concerned actually passes on to that person the summons addressed to the latter, which could be rebutted if the person concerned demonstrates that that was not in fact the case. In the absence of such a presumption, the impediment to the surrender of the person concerned constituted by a conviction in absentia would, in the referring court’s view, be ‘insurmountable’.
34 It should be noted that that presumption is contrary to the objective of Article 4a(1) of Framework Decision 2002/584, which is to protect the person summoned, by ensuring that he or she has the information relating to the date and place of his or her trial. The Court has repeatedly held that, in order to achieve that objective, it must be unequivocally established that that third party actually passed the summons on to the person concerned (judgment of 24 May 2016, Dworzecki, C‑108/16 PPU, EU:C:2016:346, paragraphs 46 and 48).
35 In any event, the case-law arising from that judgment cannot be regarded as being too restrictive.
36 Indeed, it is apparent from that case-law that a summons handed over to an adult belonging to the household of the person concerned, who undertook to pass it on to that person, satisfies the conditions set out in Article 4a(1)(a)(i) of Framework Decision 2002/584 only where it can be ascertained from the European arrest warrant issued that that adult actually passed that summons on to the person concerned and when.
37 It is, therefore, for the issuing judicial authority to indicate, in the European arrest warrant issued, the evidence on the basis of which it found that the person concerned actually received official information relating to the date and place of his or her trial (judgment of 24 May 2016, Dworzecki, C‑108/16 PPU, EU:C:2016:346, paragraphs 46 and 49).
38 Furthermore, the Court has accepted that, where an executing judicial authority satisfies itself that the conditions laid down in Article 4a(1)(a) of Framework Decision 2002/584 are satisfied, it may also rely on other circumstances that enable it to be assured that the passing on of the summons to the person concerned does not mean a breach of his or her rights of defence, in particular the conduct of the person concerned. It is at this stage of the surrender procedure that particular attention might be paid to any manifest lack of diligence on the part of the person concerned, notably where it transpires that he or she sought to avoid service of the information addressed to him or her (judgment of 24 May 2016, Dworzecki, C‑108/16 PPU, EU:C:2016:346, paragraphs 50 and 51).
39 It follows that the fact that the person concerned did not take receipt of the summons to appear in person does not constitute an ‘absolute impediment’ to the execution of the European arrest warrant issued against him or her. Moreover, it cannot be ruled out that an executing judicial authority may reach the conclusion, on the basis of the information provided by the issuing judicial authority concerned in the European arrest warrant issued against the person concerned, that such a summons complies, in any event, with the conditions laid down in Article 4a(1) of Framework Decision 2002/584 or that, having regard to the circumstances of the case concerned, the rights of defence of the person concerned were, despite the aforementioned circumstance, duly respected and that the surrender of the person concerned is, therefore, lawful.
40 Consequently, the answer to the first question is that Article 4a(1)(a)(i) of Framework Decision 2002/584 must be interpreted as meaning that, where a summons to appear is served on the person concerned by handing it over to an adult member of his or her household, it is for the issuing judicial authority concerned to provide proof that the person concerned actually received that summons.
The second question
41 By its second question, the referring court seeks, in essence, to ascertain whether Article 4a(1) of Framework Decision 2002/584 must be interpreted as meaning that the concept of ‘trial resulting in the decision’ in that provision relates to the trial which resulted in the decision at first instance, where the appeal lodged by the person concerned was dismissed without examination of the merits of the case.
42 In other words, the referring court asks whether, where, as in the present case, the person concerned did not appear in the appeal proceedings which resulted in a judgment confirming the decision handed down at first instance, without the merits of the case having been re-examined, those proceedings fall within the concept of ‘trial resulting in the decision’, within the meaning of Article 4a(1) of Framework Decision 2002/584.
43 It must be borne in mind, in that regard, that, according to the settled case-law of the Court, the concept of ‘trial resulting in the decision’, within the meaning of Article 4a(1) of Framework Decision 2002/584, must be regarded as an autonomous concept of EU law and interpreted uniformly throughout the European Union, irrespective of classifications in the Member States (see, to that effect, judgments of 10 August 2017, Tupikas, C‑270/17 PPU, EU:C:2017:628, paragraph 67, and of 22 December 2017, Ardic, C‑571/17 PPU, EU:C:2017:1026, paragraph 63).
44 That concept must be understood as referring to the proceeding that led to the judicial decision which finally sentenced the person whose surrender is sought in connection with the execution of a European arrest warrant (judgments of 10 August 2017, Tupikas, C‑270/17 PPU, EU:C:2017:628, paragraph 74, and of 23 March 2023, Minister for Justice and Equality (Lifting of the suspension), C‑514/21 and C‑515/21, EU:C:2023:235, paragraph 52).
45 It is the judicial decision finally disposing of the case on the merits, in the sense that there are no further avenues of ordinary appeal available, which is decisive for the person concerned, since it directly affects his or her personal situation with regard to the finding of guilt and, where appropriate, the determination of the custodial sentence to be served (judgment of 10 August 2017, Tupikas, C‑270/17 PPU, EU:C:2017:628, paragraph 83).
46 Accordingly, it is at that procedural stage that the person concerned must be able to fully exercise his or her rights of defence in order to assert his or her point of view in an effective manner and thereby to influence the final decision which could lead to the loss of his or her personal freedom. The outcome of that procedure is irrelevant in that context (judgment of 10 August 2017, Tupikas, C‑270/17 PPU, EU:C:2017:628, paragraph 84).
47 With regard, more specifically, to a case such as that at issue in the main proceedings, in which the trial took place at two successive instances, namely a first instance followed by appeal proceedings, the Court has held that it is the instance which led to the decision on appeal which is solely relevant for the purposes of Article 4a(1) of Framework Decision 2002/584, provided that those proceedings led to the final decision which is no longer subject to an ordinary appeal and which, accordingly, finally disposes of the case on the merits (judgment of 10 August 2017, Tupikas, C‑270/17 PPU, EU:C:2017:628, paragraph 90).
48 It follows that the decisive factor for the purposes of classifying proceedings as falling within the concept of a ‘trial resulting in the decision’, within the meaning of Article 4a(1) of Framework Decision 2002/584, is the fact that those proceedings resulted in a judgment constituting a final conviction and which, consequently, finally disposes of the case on the merits.
49 It must be stated that appeal proceedings such as those at issue in the main proceedings, which gave rise to a judgment confirming the decision handed down at first instance, without an examination of the merits of the case having been carried out, fall within that concept if they finally dispose of the case concerned, which is, however, a matter for the referring court to determine.
50 Indeed, Article 4a(1) of Framework Decision 2002/584 seeks to guarantee a high level of protection and to allow the executing judicial authority concerned to surrender the person concerned despite that person’s failure to attend the trial which led to his or her conviction, while respecting his or her rights of defence (judgment of 10 August 2017, Tupikas, C‑270/17 PPU, EU:C:2017:628, paragraph 58).
51 If appeal proceedings, which took place in the absence of the person concerned, were to fall outside the scope of Article 4a(1) of Framework Decision 2002/584, on the ground that they do not involve an examination of the merits of the case, the consequence of this would be that the proceedings at first instance would be the relevant proceedings for the purposes of applying that provision and that respect for the rights of the defence of the person concerned could be verified only in the light of the proceedings at first instance alone.
52 Such a situation cannot be accepted since, as the Court has held, where two instances are provided for, the fact that the person concerned was actually able to exercise his or her rights of defence at first instance does not automatically lead to the conclusion that that was necessarily the case on appeal, if the appeal proceedings took place in his or her absence (see, to that effect, judgment of 10 August 2017, Tupikas, C‑270/17 PPU, EU:C:2017:628, paragraph 80). In addition, the fact that a person convicted at first instance brings an appeal in order to defend his or her rights cannot have the effect of reducing the protection conferred on him or her by Framework Decision 2002/584.
53 Consequently, the answer to the second question is that Article 4a(1) of Framework Decision 2002/584 must be interpreted as meaning that the concept of a ‘trial resulting in the decision’, in that provision, relates to appeal proceedings which gave rise to a judgment confirming the decision handed down at first instance and therefore finally disposing of the case. The fact that those appeal proceedings took place without the merits of the case being examined therein is irrelevant in that regard.
The third question
54 By its third question, the referring court seeks, in essence, to ascertain whether the principle of the primacy of EU law precludes national legislation, such as that at issue in the main proceedings, transposing Article 4a(1) of Framework Decision 2002/584, under which an executing judicial authority is generally precluded from executing a European arrest warrant issued for the purposes of executing a sentence, where the person concerned did not appear in person at the trial resulting in the decision concerned.
55 It must be borne in mind, in that regard, that Framework Decision 2002/584 lays down, in Article 1(2) thereof, the rule that Member States are required 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. Except in exceptional circumstances, the executing judicial authorities may, therefore, refuse to execute such a warrant only in the exhaustively listed cases provided for by Framework Decision 2002/584. The execution of the European arrest warrant may be made subject only to one of the conditions listed exhaustively therein. Accordingly, while the execution of the European arrest warrant constitutes the rule, the refusal to execute is intended to be an exception which must be interpreted strictly (judgment of 10 August 2017, Tupikas, C‑270/17 PPU, EU:C:2017:628, paragraph 50).
56 Thus, Framework Decision 2002/584 explicitly states, on the one hand, the grounds for mandatory (Article 3) and, on the other hand, optional (Articles 4 and 4a) non-execution of a European arrest warrant. In particular, Article 4a of that framework decision restricts the possibility of refusing to execute a European arrest warrant by listing, in a precise and uniform manner, the conditions under which the recognition and enforcement of a decision rendered following a trial in which the person concerned did not appear in person may not be refused (judgment of 10 August 2017, Tupikas, C‑270/17 PPU, EU:C:2017:628, paragraph 53).
57 It is apparent from the wording of Article 4a(1) of Framework Decision 2002/584 that it provides for an optional ground for non-execution of a European arrest warrant issued for the purpose of executing a custodial sentence or a detention order, where the person concerned has not appeared in person at the trial which resulted in the conviction. That option is nevertheless accompanied by four exceptions, set out in subparagraphs (a) to (d) of that provision respectively, in which the executing judicial authority may not refuse to execute the European arrest warrant addressed to it (see, to that effect, judgment of 26 February 2013, Melloni, C‑399/11, EU:C:2013:107, paragraph 40).
58 Accordingly, an executing judicial authority is entitled to refuse to execute a European arrest warrant issued for the purpose of executing a custodial sentence or a detention order if the person did not appear in person at the trial resulting in the decision concerned, unless the European arrest warrant indicates that the conditions set out, respectively, in subparagraphs (a) to (d) of Article 4a(1) of Framework Decision 2002/584 are met (judgment of 10 August 2017, Tupikas, C‑270/17 PPU, EU:C:2017:628, paragraph 54).
59 It follows that an executing judicial authority is obliged to execute a European arrest warrant, notwithstanding the absence of the person concerned at the trial resulting in the decision concerned, where one of the situations referred to in subparagraphs (a) to (d) of Article 4a(1) of that framework decision is verified (judgment of 10 August 2017, Tupikas, C‑270/17 PPU, EU:C:2017:628, paragraph 55).
60 The Court has already held that as Article 4a provides for a case of optional non-execution of a European arrest warrant, an executing judicial authority may, in any event, even after it has found that the circumstances referred to in the preceding paragraph of the present judgment do not cover the situation of the person who is the subject of the European arrest warrant, take into account other circumstances that enable it to satisfy itself that the surrender of the person concerned does not entail a breach of his or her rights of defence (see, to that effect, judgments of 10 August 2017, Zdziaszek, C‑271/17 PPU, EU:C:2017:629, paragraph 107, and of 17 December 2020, Generalstaatsanwaltschaft Hamburg, C‑416/20 PPU, EU:C:2020:1042, paragraph 51 and the case-law cited).
61 In the context of such an assessment, an executing judicial authority may thus take into consideration the conduct of the person concerned. It is at this stage of the surrender procedure that particular attention might be paid, inter alia, to the fact that the person concerned has sought to avoid service of the information addressed to him or her (judgment of 17 December 2020, Generalstaatsanwaltschaft Hamburg, C‑416/20 PPU, EU:C:2020:1042, paragraph 52 and the case-law cited).
62 It follows that, when determining that one of the conditions laid down in Article 4a(1) of Framework Decision 2002/584 is satisfied, an executing judicial authority cannot be prevented from satisfying itself that the rights of defence of the person concerned are respected by taking due account in that regard of all the circumstances characterising the case before it, including the information which it may itself obtain.
63 In the present case, it follows from the information provided by the referring court that the German legislation at issue in the main proceedings obliges the executing judicial authority concerned, in a general manner, to refuse to execute a European arrest warrant in the event of a conviction in absentia. That legislation does not leave that executing judicial authority any discretion for the purposes of determining the existence of one of the situations referred to, respectively, in subparagraphs (a) to (d) of Article 4a(1) of Framework Decision 2002/584, on the basis of the circumstances of the case whether the rights of defence of the person concerned may be regarded as having been respected and, consequently, in deciding to execute the European arrest warrant concerned.
64 In those circumstances, it must be held that such national legislation is contrary to Article 4a(1) of Framework Decision 2002/584.
65 It must be borne in mind that the Court has held that the principle of the primacy of EU law must be interpreted as not requiring a national court to disapply a provision of national law which is incompatible with the provisions of Framework Decision 2002/584, since that decision does not have direct effect. However, the authorities of the Member States, including the courts, are 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 that framework decision (judgment of 24 June 2019, Popławski, C‑573/17, EU:C:2019:530, paragraph 109).
66 Indeed, 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. 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 concerned in order to achieve the result sought by that decision, an interpretation of national law contra legem being excluded. Thus, 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 (judgment of 24 June 2019, Popławski, C‑573/17, EU:C:2019:530, paragraphs 72 to 77).
67 It follows that it will be for the referring court, taking into consideration the whole body of its domestic law and applying the interpretative methods recognised by that law, to interpret the national legislation at issue in the main proceedings, to the greatest extent possible, in the light of the text and the purpose of Framework Decision 2002/584.
68 Consequently, the answer to the third question is that Article 4a(1) of Framework Decision 2002/584 must be interpreted as meaning that national legislation, transposing that provision, which generally precludes an executing judicial authority from executing a European arrest warrant issued for the purposes of executing a sentence, where the person concerned did not appear in person at the trial resulting in the decision concerned, is contrary to that provision of EU law. A national court is required, taking into consideration the whole body of its domestic law and applying the interpretative methods recognised by that law, to interpret that national legislation, to the greatest extent possible, in the light of the text and the purpose of that framework decision.
Costs
69 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Seventh Chamber) hereby rules:
1. Article 4a(1)(a)(i) of 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 Council Framework Decision 2009/299/JHA of 26 February 2009, must be interpreted as meaning that, where a summons to appear is served on the person concerned by handing it over to an adult member of his or her household, it is for the issuing judicial authority concerned to provide proof that the person concerned actually received that summons.
2. Article 4a(1) of Framework Decision 2002/584, as amended by Framework Decision 2009/299, must be interpreted as meaning that the concept of a ‘trial resulting in the decision’, in that provision, relates to appeal proceedings which gave rise to a judgment confirming the decision handed down at first instance and therefore finally disposing of the case. The fact that those appeal proceedings took place without the merits of the case being examined therein is irrelevant in that regard.
3. Article 4a(1) of Framework Decision 2002/584, as amended by Framework Decision 2009/299, must be interpreted as meaning that national legislation, transposing that provision, which generally precludes an executing judicial authority from executing a European arrest warrant issued for the purposes of executing a sentence, where the person concerned did not appear in person at the trial resulting in the decision concerned, is contrary to that provision of EU law. A national court is required, taking into consideration the whole body of its domestic law and applying the interpretative methods recognised by that law, to interpret that national legislation, to the greatest extent possible, in the light of the text and the purpose of that framework decision.
[Signatures]