# C_2022359EN.01003501.xml

| 19.9.2022 | EN | Official Journal of the European Union | C 359/35 |
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19.9.2022

EN

Official Journal of the European Union

C 359/35

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Request for a preliminary ruling from the Kammergericht Berlin (Germany) lodged on 15 June 2022 — Generalstaatsanwaltschaft Berlin

(Case C-397/22)

(2022/C 359/40)

Language of the case: German

Referring court

Kammergericht Berlin

Parties to the main proceedings

Applicant: Generalstaatsanwaltschaft Berlin

Other party: LM

Questions referred

| 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/JHA, (1) as amended by Framework Decision 2009/299/JHA, (2) 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? |
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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/JHA, (1) as amended by Framework Decision 2009/299/JHA, (2) 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/JHA, as amended by Framework Decision 2009/299/JHA, 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? |
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2.

Where appeal proceedings have been conducted, is the concept of ‘trial’ in Article 4a(1) of Framework Decision 2002/584/JHA, as amended by Framework Decision 2009/299/JHA, 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 Gesetz über die internationale Rechtshilfe in Strafsachen (Law on international mutual legal assistance in criminal matters), even though Article 4a(1) of Framework Decision 2002/584/JHA, as amended by Framework Decision 2009/299/JHA, provides only for an optional ground for refusal in that regard? |
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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 Gesetz über die internationale Rechtshilfe in Strafsachen (Law on international mutual legal assistance in criminal matters), even though Article 4a(1) of Framework Decision 2002/584/JHA, as amended by Framework Decision 2009/299/JHA, provides only for an optional ground for refusal in that regard?

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(1)  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).

(2)  Council Framework Decision 2009/299/JHA of 26 February 2009 amending Framework Decisions 2002/584/JHA, 2005/214/JHA, 2006/783/JHA, 2008/909/JHA and 2008/947/JHA, thereby enhancing the procedural rights of persons and fostering the application of the principle of mutual recognition to decisions rendered in the absence of the person concerned at the trial (OJ 2009 L 81, p. 24).

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