CELEX: 62021CJ0125
Action for failure to fulfil obligations
Judicial cooperation in criminal matters
Mutual recognition of judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union
Framework Decision 2008/909/JHA
Failure to adopt the measures necessary to comply with the framework decision
Failure to notify to the European Commission

By its application, the European Commission asks the Court to declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with 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 (OJ 2008 L 327, p. 27), or, in any event, by failing to notify such provisions to the Commission, Ireland has failed to fulfil its obligations under Article 29(1) and (2) of that framework decision.

Legal context
Entitled ‘Purpose and scope’, Article 3 of Framework Decision 2008/909 provides, in paragraph 1 thereof, that ‘the purpose of this Framework 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 enforce the sentence’.
Article 29 of that framework decision, entitled ‘Implementation’, provides, in paragraphs 1 to 3 thereof:
‘1.      Member States shall take the necessary measures to comply with the provisions of this Framework Decision by 5 December 2011.
2.      Member States shall transmit to the General Secretariat of the Council and to the Commission the text of the provisions transposing into their national law the obligations imposed on them under this Framework Decision. On the basis of a report established using this information by the Commission, the Council shall, no later than 5 December 2012, assess the extent to which Member States have complied with the provisions of this Framework Decision.
3.      The General Secretariat of the Council shall notify the Member States and the Commission of the notifications or declarations made pursuant to Article 4(7) and Article 23(1) or (3).’
Under Article 10(1) and (3) of Protocol (No 36) on transitional provisions, the powers of the Commission under Article 258 TFEU became applicable, with respect to acts of the European Union in the field of police cooperation and judicial cooperation in criminal matters adopted before the entry into force of the Treaty of Lisbon, only as from the expiry of a period of five years from the date of entry into force of that treaty.

Pre-litigation procedure
On 17 December 2014, the Commission services sent a letter to all the Member States to inform them of the rules applicable after the expiry of the five-year transitional period provided for in Article 10(3) of Protocol (No 36) on transitional provisions and invited them to notify to it, by 15 March 2015 at the latest, all national measures transposing acts of the Union in the field of police cooperation and judicial cooperation in criminal matters which had been adopted before the entry into force of the Treaty of Lisbon and which were applicable to them. The notification period was subsequently extended to 15 May 2015.
Since the Commission did not receive any notification from Ireland concerning the adoption of the provisions necessary to comply with Framework Decision 2008/909, the Commission sent it a letter of formal notice on 25 January 2019.
By letter of 20 March 2019, Ireland replied to the Commission that the measures transposing Framework Decision 2008/909 were being drawn up.
In the absence of any other notification concerning the transposition of Framework Decision 2008/909, the Commission sent a reasoned opinion to Ireland on 26 July 2019 inviting it to take the measures necessary to comply with the requirements of that framework decision within two months of receipt of that reasoned opinion.
By letter of 24 September 2019, Ireland replied to the Commission that it was making every available effort to enact the measures necessary to transpose Framework Decision 2008/909. Furthermore, while acknowledging that it had to effect that transposition, Ireland drew the Commission’s attention to the fact that it already had in place legislation providing for the transfer of sentenced persons between Member States, adopted on the basis of the Council of Europe Convention of 21 March 1983 on the Transfer of Sentenced Persons (‘the Convention on the Transfer of Sentenced Persons’), which it had ratified.
Considering that Ireland had not adopted the measures necessary to transpose Framework Decision 2008/909 or, in any event, notified such measures, the Commission brought the present action.

The action

Arguments of the parties
The Commission submits that, on the expiry of the period laid down in the reasoned opinion, Ireland had not adopted the provisions necessary to comply with Framework Decision 2008/909. The Commission adds that Ireland has not contested the alleged failure to fulfil obligations.
In its defence, Ireland contends that the Commission’s action should be dismissed as premature, reiterating its argument that it already has in place legislation providing for the transfer of sentenced persons between Member States, adopted on the basis of the Convention on the Transfer of Sentenced Persons. While that legislation does not address many of the technicalities of Framework Decision 2008/909, it nevertheless allows the ‘spirit’ of that framework decision to be applied in the context of Irish law. In any event, Ireland adds that the Criminal Justice (Mutual Recognition of Custodial Sentences) Bill transposing the other provisions of Framework Decision 2008/909 has already been approved by the Government of Ireland and was to be published on 3 August 2021.
The Commission replies that none of the arguments put forward by Ireland is capable of calling into question the merits of the present action for failure to fulfil obligations.
As regards the argument that the legislation adopted on the basis of the Convention on the Transfer of Sentenced Persons allows the ‘spirit’ of Framework Decision 2008/909 to be applied, the Commission submits, inter alia, that one of the fundamental changes introduced by that framework decision compared to that convention is the shift to a compulsory system of prisoner transfers for certain situations, while at the same time enabling much broader possibilities for transfers than before. That framework decision thus establishes, in accordance with the principle of mutual recognition, a simplified communication procedure between the competent authorities of the Member States. Furthermore, unlike the Convention on the Transfer of Sentenced Persons, Framework Decision 2008/909 also applies where the actual transfer of the person concerned is not required because that person is already in the territory of the executing State.
As regards the argument that a draft law ensuring the full transposition of Framework Decision 2008/909 is in the process of being adopted, the Commission recalls that, according to the case-law of the Court, the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion.

Findings of the Court
It is clear from the wording of Article 29(1) of Framework Decision 2008/909 that the Member States were to take the necessary measures to comply with the provisions of that framework decision by  5 December 2011. In addition, under Article 29(2) of that framework decision, they were to transmit the text of the provisions transposing into their national law the obligations imposed on them under that framework decision to the General Secretariat of the Council and to the Commission, and the Council was to assess, no later than 5 December 2012, on the basis of a report established using that information by the Commission, the extent to which Member States had complied with the provisions of Framework Decision 2008/909.
Lastly, in accordance with the Court’s settled case-law, in an action under Article 258 TFEU, the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in that Member State at the end of the period laid down in the reasoned opinion, and the Court cannot take account of any subsequent changes (see, to that effect, judgments of 27 November 1990,
Commission
v
Greece
, C‑200/88, EU:C:1990:422, paragraph 13, and of 16 July 2020,
Commission
v
Ireland (Anti-money laundering)
, C‑550/18, EU:C:2020:564, paragraph 30 and the case-law cited).
In the present case, it is common ground that, on the expiry of the two-month period laid down in the Commission’s reasoned opinion issued on 26 July 2019, Ireland had not adopted provisions intended to transpose Framework Decision 2008/909 in its entirety. The fact that the draft law transposing that decision in full was approved by the Government of Ireland and published on 3 August 2021 cannot be successfully relied on, since that fact is subsequent to the expiry of that period.
As regards the argument put forward by Ireland which is based, in essence, on the fact that that Member State already had in place legislation providing for the transfer of sentenced persons between Member States, it is common ground, first, that Ireland did not notify that legislation to the Commission in order to comply with its obligation under Article 29(2) of Framework Decision 2008/909.
The notification of measures transposing a framework decision must contain sufficiently clear and precise information on the substance of the national rules which transpose it in order to indicate unambiguously the laws, regulations and administrative provisions by means of which the Member State considers that it has satisfied the various requirements imposed on it by that framework decision. In the absence of such information, the Commission is not in a position to ascertain whether the Member State has genuinely implemented the framework decision in full (see, by analogy, judgments of 25 May 1982,
Commission
v
Netherlands
, 96/81, EU:C:1982:192, paragraph 8, and of 8 July 2019,
Commission
v
Belgium (Article 260(3) TFEU – High-speed networks)
, C‑543/17, EU:C:2019:573, paragraph 51).
Secondly, where a framework decision is intended to create rights for individuals, it must be borne in mind that its provisions must be implemented with unquestionable binding force and with the specificity, precision and clarity required in order to satisfy the requirement of legal certainty, under which the persons concerned must be enabled to ascertain the full extent of their rights (see, by analogy, judgments of 13 March 1997,
Commission
v
France
, C‑197/96, EU:C:1997:155, paragraph 15, and of 17 December 2020,
Commission
v
Hungary (Reception of applicants for international protection)
, C‑808/18, EU:C:2020:1029, paragraph 288).
In the present case, while Framework Decision 2008/909 is intended to create rights for sentenced persons, the national provisions adopted on the basis of the Convention on the Transfer of Sentenced Persons do not contain any reference to that framework decision. In addition, Ireland itself acknowledges, as noted in paragraph 12 of the present judgment, that the national provisions adopted on the basis of that convention do not address many of the technicalities of that framework decision, but merely allow its ‘spirit’ to be applied.
In the light of all the foregoing considerations, it must be held that, by failing to adopt, within the prescribed period, the laws, regulations and administrative provisions necessary to comply with Framework Decision 2008/909 and by failing to notify the text of such provisions to the Commission, Ireland has failed to fulfil its obligations under Article 29(1) and (2) of that framework decision.

Costs
Under Article 138(1) of the Rules of Procedure of the Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has applied for costs and Ireland has been unsuccessful, the latter must be ordered to pay the costs.
On those grounds, the Court (Eighth Chamber) hereby:
1.
Declares that, by failing to adopt, within the prescribed period, the laws, regulations and administrative provisions necessary to comply with 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 and by failing to notify the text of such provisions to the European Commission, Ireland has failed to fulfil its obligations under Article 29(1) and (2) of that framework decision;
2.
Orders Ireland to pay the costs.
Jääskinen
Jürimäe
Gavalec
Delivered in open court in Luxembourg on 24 March 2022.
A. Calot Escobar

N. Jääskinen
Registrar

President of the Eighth Chamber
*
Language of the case: English.