Opinion of the Advocate General — ECLI:EU:C:2016:766
Date: 2016-10-12
Language of the case: Dutch
Subject matter: Judicial cooperation in criminal matters;Area of freedom, security and justice;Judicial cooperation in civil matters
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary — Judgment of the Court (Fifth Chamber), 25 January 2017 1. Judicial cooperation in criminal matters — Framework Decision 2008/909 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 — Definitions — Concept of judgment — Independent and uniform interpretation (Council Framework Decision 2008/909, Art. 1(a)) 2. Judicial cooperation in criminal matters — Framework Decision 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 — Transitional provisions — Declaration by a Member State permitting it to apply the existing legal instruments on the transfer of sentenced persons— Condition — Concept of ‘issue of the final judgment — Scope (Council Framework Decision 2008/909, Arts 1(a), 3(1) and 28(1) and (2)) 1. See the text of the decision. (see paras 25, 26) 2. The first sentence of Article 28(2) of 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 must be interpreted as covering only judgments which have become final before the date specified by the Member State concerned. That interpretation is supported by the definition of ‘judgment’ in Article 1(a) of the framework decision. In that connection, the fact that both Article 1(a) and Article 28(2) refer to the ‘final’ nature of the judgment concerned underlines the particular importance, for the purpose of the application of the latter provision, given to the unchallengeable nature of that judgment and, therefore, the date on which finality is acquired. Furthermore, since the definitions of ‘judgment’ and ‘issue’ of that judgment, in Article 28(2) of the Framework Decision 2008/909, must be given an independent and uniform interpretation in the EU, the scope of those definitions and, therefore, of that provision cannot depend either on the domestic criminal proceedings of the issuing Member State or that of the enforcing State. Therefore, an interpretation of Article 28(2) of Framework Decision 2008/909 according to which its application depends on the date on which a judgment is regarded as having been ‘issued’ within the meaning of the national law concerned, independently of the date on which it became final, must be excluded. Finally, regarding the scheme and the objectives pursued by the legislation of which the relevant provision is part, it must be recalled, as the Advocate General observes in points 45 to 48 of his Opinion, that Article 28(2) of Framework Decision 2008/909 constitutes an exception to the general scheme of Article 28(1) thereof, which provides that requests for the enforcement of a judgment and enforcement of a sentence received after 5 December 2011 are to be governed by the rules adopted by Member States pursuant to that framework decision. As an exception to the general scheme, the first of those provisions must be strictly interpreted. By limiting the number of cases which continue to be covered by legal instruments existing before the entry into force of Framework Decision 2008/909 and, therefore, by increasing the number of cases which fall within the rules adopted by the Member States in implementation of that framework decision, a strict interpretation of Article 28(2), to the effect that that provision covers only judgments which became final by 5 December 2011 at the latest, is the most appropriate in order to guarantee the objective pursued by that framework decision. As is clear from Article 3(1) thereof, that objective consists in enabling the Member States to recognise the judgments and enforce the sentences they contain, with a view to facilitating the social rehabilitation of a sentenced person. (see paras 27-31, 33, operative part)