Case C‑573/17
Daniel Adam Popławski
(Request for a preliminary ruling from the Rechtbank Amsterdam)
Judgment of the Court (Grand Chamber), 24 June 2019
(Reference for a preliminary ruling — Judicial cooperation in criminal matters — European arrest warrant — Framework Decisions — No direct effect — Primacy of EU law — Consequences — Framework Decision 2002/584/JHA — Article 4(6) — Framework Decision 2008/909/JHA — Article 28(2) — Declaration by a Member State allowing it to continue to apply existing legal instruments on the transfer of sentenced persons applicable before 5 December 2011 — Late declaration — Consequences)
1. Judicial cooperation in criminal matters — Council Framework Decision 2008/909 on the application of the principle of mutual recognition to judgments in criminal matters — Transitional provisions — Declaration by a Member State permitting it to continue to apply the existing legal instruments prior to entry into force of that framework decision on the transfer of sentenced persons — Declaration made after the date on which that framework decision was adopted — Consequence — No legal effects
(Council Framework Decision 2008/909, Arts 4(7), 7(4) and 28(1) and (2))
(see paragraphs 45-49, operative part 1)
2. Judicial cooperation in criminal matters — Framework decisions aimed at the approximation of national laws — Implementation by Member States — Legal effects of framework decisions — Obligation to disapply a national provision that is contrary to a framework decision — None — Obligation to interpret national law in conformity with EU law — Scope — Need to ensure the full effectiveness of the framework decision
(Council Framework Decision 2002/584)
(see paragraphs 68-79, 81, 82, 94, operative part 2)
3. Judicial cooperation in criminal matters — Framework decision on the European arrest warrant and the surrender procedures between Member States — Grounds for optional non-execution of the European arrest warrant — Arrest warrant issued for the purposes of enforcing a custodial sentence or detention order — Requested person staying in, or being a resident of, the executing Member State within the meaning of Article 4(6) of the framework decision — Conditions for non-execution of the arrest warrant — Member State’s undertaking to enforce the sentence — Scope — Legitimate interest justifying the enforcement of the sentence in the executing Member State
(Council Framework Decision 2002/584, Art. 4(6))
(see paragraphs 86, 88-92, 97-103, 109)
Résumé
On 25 June, in the judgment in Popławski (C‑573/17), the Court, sitting as the Grand Chamber, examined whether the judicial authority executing a European arrest warrant must, in accordance with the principle of primacy, disapply national provisions which are incompatible with a framework decision. In addition, it provided further details on the legal effects of a declaration made by a Member State pursuant to Article 28(2) of Framework Decision 2008/909 (1) after the adoption of that framework decision. Under that provision, a Member State ‘may make a declaration indicating that, in cases where the final judgment [to be enforced] has been issued before the date it specifies, it will as an issuing and an executing State, continue to apply the existing legal instruments on the transfer of sentenced persons applicable before 5 December 2011. …’. The main proceedings concerned the execution, in the Netherlands, of a European arrest warrant issued in October 2013 by a Polish court against a Polish national residing in the Netherlands for the purpose of enforcing a custodial sentence in Poland. In October 2015, in the context of the execution of the European arrest warrant, a first request for a preliminary ruling was made by the referring court, to which the Court replied by judgment of 29 June 2017, Popławski. In that judgment, the Court of Justice held, inter alia, that Article 4(6) of Framework Decision 2002/584 (2) must be interpreted to the effect 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 second Popławski judgment, the Court stated, first of all, referring inter alia to the wording of Article 28(2) of Framework Decision 2008/909 and to its general scheme, 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.
Next, it recalled the scope of the obligation which the principle of primacy places on a national court in a situation in which a provision of its national law contravenes provisions of EU law which, like Framework Decisions 2002/584 and 2008/909, do not have direct effect. In such a situation, that court is not required, solely on the basis of EU law, to disapply the provision of its national law which is contrary to the provision of EU law concerned.
However, the Court also observed 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 their transposition, provided that that interpretation is not contra legem and that it complies with the general principals of law, in particular, the principles of legal certainty and non-retroactivity. With regard to the obligation to interpret Netherlands law in conformity with Framework Decision 2002/584, the Court observed that, in its previous judgment of 29 June 2017, Popławski, it found that the national court’s obligation to ensure the complete effectiveness of Framework Decision 2002/584 brought with it the obligation for the Kingdom of the Netherlands to execute the European arrest warrant at issue or, in the event of a refusal, the obligation to ensure that the sentence pronounced in Poland against Mr Popławski is actually executed in the Netherlands.
In the second place, it set out the correct interpretation of Article 4(6) of Framework Decision 2002/584. In that respect, the Court observed that, in relation to, first, the obligation laid down in Article 4(6) of Framework Decision 2002/584 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, that obligation presupposes an actual undertaking on the part of that State to execute the custodial sentence imposed on the requested person. Thus, the mere fact that that Member State declares itself ‘willing’ to execute that sentence could not be regarded as justifying such a refusal. Consequently, any refusal to execute a European arrest warrant must be preceded by the executing judicial authority’s examination of whether it is actually possible to enforce the sentence in accordance with its domestic law. It then falls to the referring court to assess in the present case whether Netherlands law may be interpreted, without resorting to an interpretation contra legem, as meaning that Framework Decision 2002/584 may be treated as a formal legal basis for the purposes of applying the national provision at issue. In that regard, the Court made it clear that the referring court cannot, in the main proceedings, validly claim that it is impossible for it to interpret that provision of national law in a manner that is compatible with EU law, for the sole reason that that national provision has been interpreted by a minister, called on to intervene where surrender is refused, in a way that is not compatible with that law. As a consequence, although the referring court concluded that Framework Decision 2002/584, in accordance with the methods of construction recognised by Netherlands law, may be treated as a convention for the purposes of the application of the national provision concerned, 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.
Secondly, with regard to the margin of discretion, laid down in Article 4(6) of Framework Decision 2002/584, enjoyed by the executing judicial authority in the implementation of the ground for optional non-execution of the European arrest warrant provided for in that provision, the Court recalled that that authority must be able to take into consideration the objective pursued by that ground for optional non-execution, which 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. Thus, the option conferred on the executing judicial authority to refuse, on the basis of that provision, 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. Therefore, it falls primarily to the referring court to interpret its national law, to the greatest extent possible, in conformity with EU law, which enables it to ensure an outcome that is compatible with the objective pursued by the framework decision. If that proved to be impossible, that court should at the very least interpret its national law in a way that makes it possible for it to reach a solution which is not contrary to the objective of Framework Decision 2002/584 and which therefore makes it possible to avoid Mr Popławski’s impunity. That would be the case if that court interpreted that law as meaning that the refusal to execute the European arrest warrant issued against Mr Popławski is subject to the guarantee that the custodial sentence which he received in Poland will actually be enforced in the Netherlands, even if that refusal occurs automatically.