(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)
SOURCE: Court of Justice of the European Union, Annual report 2019
On 24 June 2019, in the judgment in Popławski 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 of EU law, disapply national provisions which are incompatible with a framework decision. It also provided guidance on the legal effects of a declaration made by a Member State pursuant to Article 28(2) of Framework Decision 2008/909 after the adoption of that framework decision. Under that provision, a Member State ‘may, on the adoption of [that] Framework Decision, 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 that 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 held, inter alia, that Article 4(6) of the Framework Decision on the European arrest warrant, which lays down a ground for optional nonexecution of a European arrest warrant, must be interpreted as precluding 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 enforce a custodial sentence imposed on that national by a decision which has become final, (i) does not authorise such a surrender, and (ii) 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 that judgment, where, on the date of the refusal to surrender, the enforcement has not in fact been taken over and where, furthermore, in the event that taking over that enforcement subsequently proves to be impossible, such a refusal may not be challenged.
In the second Popławski judgment, the Court first of all held, 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 the adoption of that framework decision is not capable of producing legal effects.
Next, it recalled the scope of the obligation that the principle of primacy of EU law places on a national court in a situation in which a provision of its national law contravenes provisions of EU law that, like the Framework Decision on the European arrest warrant and Framework Decision 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 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 complies with the general principles of law, in particular, the principles of legal certainty and non-retroactivity. With regard to the obligation to interpret Netherlands law in conformity with the Framework Decision on the European arrest warrant, the Court observed that in its previous judgment of 29 June 2017, Popławski, it had found that the national court’s obligation to ensure the full effectiveness of that framework decision 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 was actually executed in the Netherlands.
In the second place, the Court also set out the correct interpretation of Article 4(6) of the Framework Decision on the European arrest warrant. In that respect, it observed that, in relation to, first, the obligation imposed by that provision on the executing Member State to ensure, in the event of a refusal to execute the European arrest warrant, that the custodial sentence against the requested person is actually enforced, that obligation presupposes an actual undertaking on the part of that Member State to execute the sentence. Thus, the mere fact that that Member State declares itself ‘willing’ to have that sentence enforced cannot 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. In those circumstances, it falls to the referring court to assess, in that case, whether Netherlands law may be interpreted, without resorting to an interpretation contra legem, meaning that the Framework Decision on the European arrest warrant 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 the Framework Decision 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 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 the Framework Decision on the European arrest warrant and enjoyed by the executing judicial authority in the implementation of the ground for optional non-execution of a 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 that person 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 — having ascertained that (i) that the person is staying in or is a national or a resident of the executing Member State and (ii) 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 on the European arrest warrant. If that proves 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 that framework decision and which therefore makes it possible to avoid Mr Popławski’s impunity. That would be the case if the court were to interpret 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.