Opinion of the Advocate General — ECLI:EU:C:2024:508
Date: 2024-06-13
Language of the case: Romanian
Procedure: Reference for a preliminary ruling
Origin: Romania

Summary C-305/22 – 1 
Case C-305/22 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
6 May 2022 
Referring court: 
Curtea de Apel București (Romania) 
Date of the decision to refer: 
11 April 2022 
Person who is the subject of the European arrest warrant: 
C.J. 
  
Subject matter of the main proceedings 
Opposition to enforcement lodged by the Biroul executări penale din cadrul Curții 
de Apel București – Secția a II-a penală (Office for the Execution of Sentences at 
the Court of Appeal of Bucharest – Second Criminal Division, Romania) 
concerning the enforcement of the final criminal judgment delivered by the Curtea 
de Apel București – Secția a II-a penală (Court of Appeal of Bucharest – Second 
Criminal Division, Romania), which sentenced the defendant C.J. to four years 
and two months’ imprisonment and to a three-year ban on exercising certain 
rights. 
Subject matter and legal basis of the request 
On the basis of Article 19(3)(b) TEU and Article 267 TFEU, the interpretation of 
Article 4(5) and (6) and Article 8(1)(c) of Framework Decision 2002/584/JHA 
and Article 4(2) and Article 25 of Framework Decision 2008/909/JHA is sought. 
Questions referred for a preliminary ruling 
1. Must the provisions of Article 25 of Framework Decision 2008/909/JHA be 
interpreted as meaning that the judicial authority executing a European [arrest] 
warrant, if it intends to apply Article 4(6) of Framework Decision 2002/584/JHA 
EN 
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for the purposes of recognising the judgment passing sentence, is required to 
request the [forwarding] of the judgment and the certificate issued pursuant to 
Framework Decision 2008/909/JHA and to obtain the consent of the sentencing 
State pursuant to Article 4(2) of Framework Decision 2008/909/JHA? 
2. Must the provisions of Article 4(6) of Framework Decision 2002/584/JHA, 
read in conjunction with Articles 25 and 4(2) of Framework Decision 
2008/909/JHA, be interpreted as meaning that the refusal to execute a European 
arrest warrant issued for the purposes of the execution of a custodial sentence and 
recognition of the judgment passing sentence, without its effective execution by 
imprisonment of the sentenced person following a pardon and suspension of the 
sentence, in accordance with the law of the executing State, and without obtaining 
the consent of the sentencing State in the context of the recognition procedure, 
[cause] the sentencing State to forfeit its right to enforce the sentence under 
Article 22(1) of Framework Decision 2008/909/JHA? 
3. Must Article 8(1)(c) of Framework Decision 2002/584/JHA be interpreted 
as meaning that a judgment imposing a custodial sentence on the basis of which a 
European arrest warrant has been issued, the execution of which has been refused 
under Article 4(6) [of that Framework Decision], with recognition of the judgment 
passing sentence but without its effective execution by imprisonment of the 
sentenced person following a pardon and suspension of the sentence, in 
accordance with the law of the executing State, and without obtaining the consent 
of the sentencing State in the context of the recognition procedure, is no longer 
enforceable? 
4. Must the provisions of Article 4(5) of Framework Decision 2002/584/JHA 
be interpreted as meaning that a judgment refusing to execute a European arrest 
warrant issued for the purposes of the execution of a custodial sentence and 
recognition of the judgment passing sentence pursuant to Article 4(6) of 
Framework Decision 2002/584/JHA, but without its effective execution by 
imprisonment of the sentenced person following a pardon and suspension of the 
sentence, in accordance with the law of the executing State (EU Member State), 
and without obtaining the consent of the sentencing State in the context of the 
recognition procedure, amounts to a judgment ‘by a third State in respect of the 
same acts’? 
If Question 4 is answered in the affirmative: 
5. Must the provisions of Article 4(5) of Framework Decision 2002/584/JHA 
be interpreted as meaning that a judgment refusing to execute a European arrest 
warrant issued for the purposes of the execution of a custodial sentence and 
recognition of the judgment passing sentence pursuant to Article 4(6) of 
Framework Decision 2002/584/JHA, with the suspension of the sentence in 
accordance with the law of the executing State, amounts to a sentence that ‘is 
currently being served’ where supervision of the sentenced person has not yet 
commenced? 
C.J. 
 
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Provisions of European Union law and case-law relied on 
Council Framework Decision 2002/584/JHA of 13 June 2002 on the European 
arrest warrant and the surrender procedures between Member States: Article 4(5) 
and (6) and Article 8(1)(c) 
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: Article 4(2), Article 22(1) 
and Article 25 
Judgments of 29 June 2017, Popławski, C-579/15, EU:C:2017:503, paragraph 22 
and point 2 of the operative part; of 24 June 2019, Popławski, C-573/17, 
EU:C:2019:530, paragraphs 82, 88 and 100 and point 2 of the operative part; of 
29 June 2016, Kossowski, C-486/14, EU:C:2016:483, paragraph 42; and of 
27 May 2014, Spasic, C-129/14 PPU, EU:C:2014:586, paragraphs 52, 53, 58, 63 
and 64 
Provisions of national law relied on 
Legea nr. 340/2009 privind formularea de către România a unei declarații în baza 
prevederilor articolului 35 alineatul (2) din Tratatul privind Uniunea Europeană 
(Law No 340/2009 on the submission by Romania of a declaration pursuant to 
Article 35(2) of the Treaty on European Union): Article 2 
Succinct presentation of the facts and the main proceedings 
1 On 15 October 2021, the Office for the Execution of Sentences at the Court of 
Appeal of Bucharest – Second Criminal Division lodged an objection to the 
enforcement of Criminal Judgment No 131 of 27 June 2017, delivered by the 
Court of Appeal of Bucharest – Second Criminal Division, which was varied and 
became final by means of Criminal Decision No 335/A of 10 November 2020 of 
the Înalta Curte de Casație și Justiție – Secția penală (High Court of Cassation and 
Justice – Criminal Division, Romania) (‘the criminal conviction judgment’); by 
that judgment, the defendant C.J., having been found guilty of several offences, 
was sentenced definitively to four years and two months’ imprisonment. 
2 In its capacity as executing court, the Court of Appeal of Bucharest – Second 
Criminal Division issued the warrant for the execution of custodial sentence 
No 200 of 20 November 2020 and, on 25 November 2020, issued European Arrest 
Warrant No 2 of 25 November 2020 (the ‘EAW’), as well as an international 
wanted persons notice. 
3 Following the location and detention of C.J. by police on 29 December 2020 on 
Italian territory, on 31 December 2020 the Italian Ministry of Justice informed the 
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Court of Appeal of Bucharest of his arrest, requesting that the EAW in Italian and 
any further information be forwarded to the Corte d’appello di Roma (Court of 
Appeal, Rome, Italy). The EAW was faxed on the same date, and on 5 January 
2021 it was sent to the Italian judicial authorities, in Romanian and Italian, by e-
mail and by post. 
4 On 12 January 2021, the Italian judicial authorities requested the transmission of 
the criminal conviction judgment. On 14 January 2021, the Court of Appeal of 
Bucharest forwarded that judgment to the Court of Appeal of Rome. At the same 
time, the Court of Appeal of Bucharest, in its capacity as executing court, 
indicated that it did not agree with the judgment being recognised and the 
execution of the sentence against the convicted person C.J. being taken over by 
Italy, under the procedure provided for in Article 4(6) of Framework Decision 
2002/584, and that it would follow the procedures laid down in Framework 
Decision 2008/909. 
5 After the Italian judicial authorities had requested clarification of the statement 
contained in the final part of the letter sent on 14 January 2021, the Court of 
Appeal of Bucharest stated on 20 January 2021 that, in the event of a refusal, 
pursuant to Article 4(6) of Framework Decision 2002/584, of the execution of the 
EAW issued for the purpose of executing a custodial sentence, it would not give 
its consent to the recognition of the judgment in incidental proceedings and to the 
taking over of the execution of the sentence by the Italian Republic in the context 
of those proceedings, and that it would reiterate its request on the basis of 
Framework Decision 2008/909. 
6 On 22 February 2021, pursuant to the provisions of Article 22 of Framework 
Decision 2002/584, the Italian judicial authorities were requested to provide 
information regarding the issuance of a decision to execute the EAW and to 
surrender C.J. to Romania, and, in the absence of such a decision, to provide 
information on the progress of the proceedings. 
7 On 20 May 2021, the Italian Ministry of Justice transmitted judgment No 73/2021 
of 6 May 2021 of the Court of Appeal of Rome – Second Criminal Division, 
which ordered, on the one hand, the refusal to surrender C.J. under the EAW 
issued on the basis of the criminal conviction judgment and, on the other hand, the 
recognition of that judgment and its enforcement in Italian territory; the Italian 
authorities ruled that the period of detention from 17 September 2019 to 
16 December 2019 as well as the period from 29 December 2020 to the date of 
delivery of judgment – that is, a total of 219 days – should be deducted from the 
prison sentence of four years and two months. Recognising the abovementioned 
criminal judgment, the Italian judicial authorities determined that the total 
remaining sentence was 3 years, 6 months and 21 days in jail and ordered that the 
sentence be executed in Italy in accordance with Italian domestic law. 
8 The judgment of the Court of Appeal of Rome was communicated to the Court of 
Appeal of Bucharest without any reference to the actual enforcement of the 
C.J. 
 
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recognised judgment. The judgment [of the Court of Appeal of Rome] stated that 
there were no compulsory grounds for refusal and that, since the person requested 
had his legal and actual residence in Italy, there were no grounds for imposing the 
execution of the sentence in Romania, as the execution of the same sentence in 
Italy, after the recognition of the foreign judgment, was more in line with the 
requirement of his social reintegration. 
9 After the Court of Appeal of Rome and the Italian Ministry of Justice were asked, 
on 3 June 2021, to communicate whether the manner of execution of the sentence 
had changed, as well as for information on the commencement and expiry of the 
sentence, the Italian Ministry of Justice transmitted, on 24 June 2021, a certificate 
concerning the state of execution, SIEP 754/2021, issued by the Procura della 
Repubblica di Roma – Ufficio Esecuzioni Penali [Rome Public Prosecutor’s 
Office – Office for the Execution of Sentences] on 11 June 2021; it is apparent 
from that certificate that, following the recognition by the Italian authorities of 
C.J.’s criminal conviction judgment in Romania, the three-month pre-trial 
detention (17 September 2019 to 16 December 2019) had been deducted from the 
sentence of imprisonment of four years and two months; it was also apparent that 
the legal position of the convicted person is house arrest, pursuant to 
Article 656(10) of the Italian Code of Criminal Procedure, and, as regards the 
execution status, [that it is] – Order of execution with concurrent suspension – 
house arrest issued on 20 May 2021, and that the remaining sentence to be served 
is: imprisonment of 3 years and 11 months (commencement of penalty: 
29 December 2020, and end of penalty: 28 November 2024). 
10 By letter of 28 June 2021 addressed to the Court of Appeal of Rome and to the 
Italian Ministry of Justice, the Court of Appeal of Bucharest reiterated, first, that 
the Romanian judicial authorities had not given their consent to the recognition by 
the Italian Republic of the criminal conviction judgment and to the taking over of 
the execution of the sentence imposed on the defendant C.J. and, secondly, that, 
until notice was given of the commencement of the execution of the custodial 
sentence by means of the imprisonment of the sentenced person, Romania retained 
the full right to proceed with the execution of the sentences passed in its territory, 
in accordance with Article 22(1) of Framework Decision 2008/909, with the 
warrant for the execution of custodial sentence No 200/2017 of 10 November 
2020 and the EAW remaining valid. 
11 On 14 July 2021, the Italian judicial authorities transmitted the certificate of 
execution SIEP 754/2021 issued by the Rome Public Prosecutor’s Office – Office 
for the Execution of Sentences on 1 July 2021, which has the same content as the 
certificate transmitted on 11 June 2021, but bears the following addition: 
‘Regarding the status of the house arrest, a decision on the alternative measure is 
awaited from the Tribunale di sorveglianza [Italian Court of Supervision]’. 
12 In view of the conflict existing between the way in which the Romanian and 
Italian courts interpret Framework Decision 2002/584 and Framework Decision 
2008/909, the Court of Appeal of Bucharest, First Criminal Division – the 
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referring court – is asked to rule on the validity of both the national warrant to 
proceed with the execution of the custodial sentence and of the EAW, and to make 
a reference to the Court of Justice for a preliminary ruling. 
The essential arguments of the parties in the main proceedings 
13 The Office for the Execution of Sentences at the Court of Appeal of Bucharest – 
Second Criminal Division, in support of its opposition to enforcement as well as 
its request for a reference to be made to the Court of Justice, refers to the 
Romanian court’s previous considerations. 
14 Indeed, for the recognition of a decision indirectly in proceedings relating to an 
EAW, the execution of which has been refused pursuant to Article 4(6) of 
Framework Decision 2002/584, the consent of the sentencing State is required 
pursuant to Article 25 and Article 4(2) of Framework Decision 2008/909. 
15 Moreover, such proceedings conducted in breach of Article 25 and Article 4(2) of 
Framework Decision 2008/909/JHA cannot have any legal effect, as regards the 
conviction, in the territory of Romania. 
16 Until such time as notice is given of the commencement of execution of the 
custodial sentence by means of imprisonment of the sentenced person, by virtue of 
Article 22(1) of Framework Decision 2008/909 Romania fully retains the right to 
enforce the sentences passed in its territory. 
17 Such proceedings cannot be enforced against the sentencing State by the State that 
recognised the judgment. Moreover, a decision recognising a judgment does not 
constitute a judgment ‘in respect of the same acts’, either within the meaning of 
Article 4(5) or within the meaning of Article 3(2) of Framework Decision 
2002/584. In any event, even if a decision recognising a judgment could be 
interpreted as a judgment ‘in respect of the same acts’, a custodial sentence can be 
considered as being served only once the sentenced person has been imprisoned. It 
is not sufficient to order the suspension of the sentence. 
18 There thus appears to be a conflict between the way the courts involved in these 
proceedings (of Romania and Italy) interpret the connecting provisions of the two 
Framework Decisions and the legal effects that the infringement of those 
provisions may produce. 
19 C.J. submits that the questions submitted to the Court of Justice are not relevant in 
the case at hand, since the opposition to enforcement is based on the erroneous 
premiss that he did not start serving his prison sentence in Italy. Actually, he 
started serving his sentence in accordance with the Italian Criminal Code and has 
served 1 year, 6 months and 13 days, of which 3 months and 28 days in prison, 
and the difference, of 1 year, 2 months and 15 days, under house arrest. 
C.J. 
 
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20 He states, on the one hand, that in the judgment of the Court of Appeal of Rome 
refusing his surrender and ordering the execution of the sentence in Italy in 
accordance with Italian law, it is mentioned that, for the purposes of the execution 
of the sentence in Italy, the issuance of the certificate by the requesting judicial 
authority is not necessary, in so far as he was arrested in execution of the EAW 
issued by the same judicial authority that requested his surrender. On the other 
hand, Article 4(2) of Framework Decision 2008/909 makes no reference to the 
obligation to obtain any consent from the sentencing State. 
21 The Ministerul Public (Public Prosecutor, Romania) agrees with the referral to the 
Court of Justice. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
22 In essence, the referring court is asked to examine the validity of the national 
warrant for the execution of the custodial sentence and the EAW and, more 
precisely, to assess whether the warrant for the execution of the custodial sentence 
issued by the Romanian authorities should be annulled in the event that it is 
considered that the conviction verdict has been executed, or is being executed, by 
the authorities of the Italian Republic. 
23 The referring court states that a similar objection to enforcement, brought by the 
Court of Appeal of Bucharest – First Criminal Division on 11 February 2022 in 
proceedings concerning the convicted person AR, is already pending before it. 
The only difference between those two requests for a preliminary ruling is the 
reference to Article 54 of the Convention Implementing the Schengen Agreement, 
which, however, is not applicable to the case at hand, with the result that the 
request for a preliminary ruling in the present case relates to the same provisions 
of EU law that are the subject of the request for a preliminary ruling in AR 
(C-179/22). 
24 As regards the content of the request for a preliminary ruling, that court asks the 
Court of Justice to establish, first, whether, for the purposes of recognition of a 
judgment indirectly in proceedings for the execution of an EAW – an execution 
refused on the basis of Article 4(6) of Framework Decision 2002/584 – the 
consent of the sentencing State is required under Article 25 and Article 4(2) of 
Framework Decision 2008/909 and, secondly, whether such proceedings 
conducted in breach of Article 25 and Article 4(2) of Framework Decision 
2008/909 may have any legal effect, as regards the conviction, in the territory of 
Romania, in the sense that, as long as the commencement of execution of the 
custodial sentence by means of imprisonment of the sentenced person is not 
notified, the sentencing State (Romania) fully retains the right to proceed with the 
execution of the sentences passed in its territory, in accordance with Article 22(1) 
of Framework Decision 2008/909. 
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25 In its reasoning for the request for a preliminary ruling, the referring court adopts 
the arguments set out by Office for the Execution of Sentences at the Court of 
Appeal of Bucharest – Second Criminal Division. 
26 The referring court also states that, for the purposes of recognising a criminal 
conviction judgment in the context of the procedure for the execution of an EAW, 
whose execution has been refused in accordance with Article 4(6) of Framework 
Decision 2002/584/JHA, it is necessary to consult the authorities concerned and 
obtain the prior express agreement/consent of the sentencing State to the 
recognition of the criminal judgment and the taking over of execution in the 
requested State, in accordance with the provisions of Article 4(2) and (5) of 
Framework Decision 2008/909/JHA, in so far as the legislation of the executing 
State allows a sentence to be executed in a form other than that established by the 
court of the sentencing State. However, such consent is not constituted by the 
mere fact that, in the context of the execution procedure for an EAW, a copy of 
the criminal conviction judgment has, at the request of the executing court, been 
communicated, since the sentencing State has not received any guarantee that the 
essential functions of the custodial sentence are fully satisfied and that at the same 
time the social rehabilitation and the successful reintegration into society of the 
sentenced person are facilitated. 
27 Referring to the judgments of 29 June 2017, Popławski (C-579/15) and of 24 June 
2019, Popławski (C-573/17), the referring court states that the refusal to surrender 
the requested person and the actual taking over of the custodial sentence, by the 
executing Member State, entails an obligation upon that State to ensure that that 
sentence is actually applied. The failure of the executing State to comply with 
such an obligation would guarantee the sentenced person impunity incompatible 
with Framework Decision 2002/584/JHA and Framework Decision 
2008/909/JHA.