Opinion of the Advocate General — ECLI:EU:C:2022:974
Date: 2022-12-08
Language of the case: German
Subject matter: Judicial cooperation in criminal matters;Police cooperation;Area of freedom, security and justice
Procedure: Preliminary reference - urgent procedure
Origin: Germany

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Translation C-583/22 PPU – 1 
Case C-583/22 PPU 
Request for a preliminary ruling 
Date lodged: 
7 September 2022 
Referring court: 
Bundesgerichtshof (Germany) 
Date of the decision to refer: 
29 June 2022 
Accused person: 
MV 
  
BUNDESGERICHTSHOF (FEDERAL COURT OF JUSTICE, GERMANY) 
ORDER 
[…] 
of 
29 June 2022 
in the criminal proceedings 
against 
MV, born on 21 January 1958 in St. Chamond (France), 
for seriously aggravated rape 
Other party to the proceedings: 
Generalbundesanwalt beim Bundesgerichtshof (Federal Public Prosecutor General 
at the Federal Court of Justice) […] 
EN 
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On 29 June 2022, the First Criminal Chamber of the Federal Court of Justice 
made the following order: 
[…] The following questions concerning the interpretation of Council 
Framework Decision 2008/675/JHA of 24 July 2008 on taking account of 
convictions in the Member States of the European Union in the course of 
new criminal proceedings (OJ 2008 L 220, p. 32) are referred to the Court of 
Justice of the European Union for a preliminary ruling pursuant to the third 
paragraph of Article 267 of the Treaty on the Functioning of the European 
Union (TFEU): 
1. In view of the principle of equal treatment under Article 3(1) of 
Framework Decision 2008/675/JHA, and against the background of 
Article 3(5) of that decision, in the case of an actually existing 
situation of a cumulative sentence involving convictions handed down 
in Germany and in another EU Member State, can a sentence be 
imposed for the offence committed in Germany even where a notional 
inclusion of the sentence imposed in the other EU Member State 
would mean that the maximum permissible level under German law 
for a cumulative sentence for non-life custodial sentences is exceeded? 
2. If the first question is answered in the affirmative: 
Must the taking into account of the sentence imposed in the other EU 
Member State, as provided for under the second sentence of 
Article 3(5) of Framework Decision 2008/675/JHA, take place in such 
a way that the disadvantage resulting from the impossibility to form a 
subsequent cumulative sentence is to be specifically documented and 
justified in the sentencing for the offence committed in Germany, in 
accordance with the principles governing the formation of cumulative 
sentences under German law? 
[…] [information on the national proceedings] 
Grounds: 
1 The First Criminal Chamber of the Bundesgerichtshof (Federal Court of Justice) is 
called on to rule on the appeal on a point of law brought by the accused person 
against a judgment of the Landgericht Freiburg im Breisgau (Regional Court, 
Freiburg im Breisgau), which imposed on the accused person a custodial sentence 
of six years for seriously aggravated rape. 
I. 
2 1. The preliminary ruling proceedings are based on the following facts established 
by the Regional Court: 
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3 (a) On 10 October 2003, at approximately 12:30 a.m., in the grounds of the 
University of Freiburg im Breisgau (Federal Republic of Germany), the accused 
person held a 20-year-old female student at knifepoint and took her to a secluded 
forest area by vehicle. There, he engaged in anal and vaginal sexual intercourse 
with her in the vehicle, against her will, for several hours. At approximately 4:45 
a.m., the student managed to escape. 
4 (b) The accused person is a French national; he has no previous convictions in the 
Federal Republic of Germany. His French criminal record contains 25 entries. The 
five convictions listed below were committed after 10 October 2003, the date of 
the offence that is the subject of the present proceedings. They relate to offences 
committed by the accused person in France in the period from August 2002 to 
September 2003. 
5 On 30 September 2004, the Tribunal de grande instance de Guéret (Regional 
Court, Guéret) imposed a custodial sentence of two years on the accused person. 
6 The Cour d’assises du Loir-et-Cher (Assize Court, Loir-et-Cher) in Blois imposed 
a custodial sentence of 15 years on the accused person by judgment of 
29 February 2008. The accused person’s further convictions, resulting in a 
custodial sentence of six years imposed by the Cour d’assises de Loire-Atlantique 
(Assize Court, Loire-Atlantique) in Nantes on 16 May 2008 and a custodial 
sentence of one year and six months imposed by the Cour d’appel de Grenoble 
(Court of Appeal, Grenoble) on 23 April 2012, were included in that sentence. 
7 Most recently, the Cour d’assises du Maine-et-Loire (Assize Court, Maine-et-
Loire) in Angers imposed a further custodial sentence of seven years on the 
accused person on 24 January 2013. 
8 (c) On 20 October 2003, the accused person was arrested in the Netherlands on 
foot of a French arrest warrant and, after almost seven months of detention 
pending extradition, was transferred to France on 17 May 2004. There, he was 
imprisoned without interruption until 23 July 2021; of the abovementioned 
custodial sentences, 17 years and nine months were executed. The accused person 
was subsequently transferred to the German authorities; he has been detained on 
remand in custody pending trial in the Federal Republic of Germany since 23 July 
2021 on foot of an arrest warrant issued by the Amtsgericht Freiburg im Breisgau 
(Local Court, Freiburg im Breisgau) on 23 July 2004. 
9 2. In determining the sentence, the Regional Court, Freiburg im Breisgau, 
proceeded on the basis of a sentence of seven years, which was commensurate to 
the degree of guilt per se, and, since the subsequent formation of a cumulative 
sentence together with the French sentences referred to in section 1.1.(b) is not 
possible, it deducted one year in order to compensate for the associated 
disadvantage. On that basis, the Regional Court imposed a custodial sentence of 
six years in the case to be ruled on. 
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10 3. By his appeal on a point of law (‘Revision’), the accused person challenges the 
conviction and alleges an infringement of substantive law. 
II. 
11 The present Chamber considers that an answer to the questions referred is 
necessary to enable it to rule on the appeal on a point of law. It therefore submits 
those questions to the Court of Justice of the European Union for a preliminary 
ruling pursuant to the third paragraph of Article 267 TFEU. 
12 1. The relevant legal framework is as follows: 
13 (a) EU law 
14 The provisions of Article 3(1) and (5) of Framework Decision 2008/675/JHA, 
which lay down the conditions under which, in the course of criminal proceedings 
in a Member State against a person, previous convictions handed down against the 
same person for different facts are taken into account (see Article 1(1) of 
Framework Decision 2008/675/JHA), are relevant to the questions referred in the 
context of EU law. 
15 Article 3(1) of the Framework Decision provides that previous convictions handed 
down against the same person for different facts in other Member States are taken 
into account to the extent that previous national convictions are taken into 
account, and that equivalent legal effects are attached to them as to previous 
national convictions. 
16 According to the first sentence of Article 3(5) of Framework Decision 
2008/675/JHA, if the offence for which the new proceedings being conducted was 
committed before the previous conviction had been handed down or fully 
executed, Article 3(1) of that decision is not to have the effect of requiring 
Member States to apply their national rules on imposing sentences, where the 
application of those rules to foreign convictions would limit the judge in imposing 
a sentence in the new proceedings; however, the Member States are required to 
ensure that in such cases their courts can otherwise take into account previous 
convictions handed down in other Member States (second sentence of Article 3(5) 
of Framework Decision 2008/675/JHA). 
17 The principle that the Member States should attach to a conviction handed down 
in other Member States effects equivalent to those attached to a conviction handed 
down by their own courts in accordance with national law should be affirmed, 
whether those effects be regarded by national law as matters of fact or of 
procedural or substantive law; in that respect, the obligation to take into account 
previous convictions handed down in other Member States exists only to the 
extent that previous national convictions are taken into account under national law 
(recital 5 of Framework Decision 2008/675/JHA). 
18 (b) National (German) law 
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19 The relevant provisions governing the formation of a cumulative sentence from 
several individual sentences are contained in Paragraphs 53 to 55 of the German 
Strafgesetzbuch (Criminal Code; ‘the StGB’). 
20 Paragraph 53 of the StGB (Multiple offences committed by multiple acts) 
provides as follows, in subparagraph 1: 
‘(1) Where a person has committed several offences which are tried together and 
has thereby incurred several custodial sentences or several fines, a cumulative 
sentence shall be imposed.’ 
21 Paragraph 54 of the StGB (Formation of the cumulative sentence) contains the 
following provisions in subparagraphs 1 and 2: 
‘(1) Where one of the individual sentences is life imprisonment, the cumulative 
sentence shall be life imprisonment. In all other cases, the cumulative sentence is 
formed by increasing the largest sentence imposed, and, in the case of sentences 
of different types, by increasing the sentence which is most severe by nature. In 
that respect, the person of the offender and the individual offences are assessed in 
summarised form. 
(2) The cumulative sentence may not amount to the sum of the individual 
sentences. It may not exceed fifteen years in the case of non-life custodial 
sentences and seven hundred and twenty daily fines in the case of a fine.’ 
22 Paragraph 55 of the StGB (Subsequent formation of the cumulative sentence) 
provides as follows in subparagraph 1: 
‘(1) Paragraphs 53 and 54 shall also apply where a person who has been finally 
convicted is convicted, before the sentence imposed on him or her has been 
executed, become time-barred or has been remitted, of another offence which he 
or she committed prior to the previous conviction. A previous conviction shall be 
deemed to be the conviction in previous proceedings in which the underlying 
findings of fact could be examined for the last time.’ 
23 2. The decision on the accused person’s appeal on a point of law depends on the 
answer to the questions referred. 
24 (a) The first question: 
25 Whether it is at all possible for a further enforceable custodial sentence to be 
imposed on the accused person in Germany for the rape which is the subject 
matter of the present proceedings – in addition to the sentences imposed in 
France – depends on the interpretation of the principle of equal treatment of 
national convictions and those handed down in other Member States in 
Article 3(1) of Framework Decision 2008/675/JHA (‘equivalent legal effects’), in 
conjunction with the first sentence of Article 3(5) of that framework decision. 
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26 (aa) The sentences for the French convictions referred to in section 1.1.(b) could, 
if treated like German convictions, in principle be included in the cumulative 
sentence; they could have been tried at the same time because the rape that is now 
the subject of the proceedings was committed before the French convictions. 
Accordingly, if German criminal law were applied, a subsequent cumulative 
sentence would have to be formed in accordance with Paragraph 55(1) of the 
StGB. Under Paragraph 55(1) of the StGB, the court ruling on the substance must 
form a subsequent cumulative sentence in its judgment where a person who has 
been finally convicted is convicted of another offence that is eligible for inclusion 
in the cumulative sentence before the sentence imposed on him or her has been 
executed, become time-barred or has been remitted. The court ruling on the 
substance is obliged to apply Paragraph 55 of the StGB where the requirements 
are met (see, inter alia, Federal Court of Justice, order of 7 April 2020, 3 StR 
630/19, ECLI:DE:BGH:2020:070420B3STR630.19.0, paragraph 2). 
27 However, when determining the cumulative custodial sentence to be formed, the 
maximum sentence of 15 years would have to be observed in accordance with the 
second sentence of Paragraph 54(2) of the StGB; this means that, although an 
individual sentence could be imposed for the rape that is the subject of the present 
proceedings, the result would be that, if that individual sentence were included, 
a – newly formed – cumulative sentence of 15 years would remain and thus no 
further execution would be possible. The maximum permissible cumulative non-
life custodial sentence under German law would already have been reached with 
the custodial sentence of 15 years imposed by the Assize Court, Loir-et-Cher, in 
Blois on 29 February 2008. 
28 However, the formation of a cumulative sentence together with foreign sentences 
is ruled out because such formation is impermissible for reasons of international 
law, due to the associated interference with the binding nature of the foreign 
conviction and the foreign State’s sovereignty with regard to execution (settled 
case-law; see Federal Court of Justice, orders of 4 July 2018, 1 StR 599/17, 
ECLI:DE:BGH:2018:040718B1STR599.17.0, paragraph 5, and of 23 April 2020, 
1 StR 15/20, ECLI:DE:BGH:2020:230420B1STR15.20.0, paragraph 13). 
29 (bb) Having regard to the absence of a possibility of forming a cumulative 
sentence [in the case of] a national conviction and one handed down in another 
EU Member State, Article 3(1) of Framework Decision 2008/675/JHA requires 
the Member States to ensure that, in the course of new criminal proceedings 
against a person, previous convictions handed down against the same person for 
different facts in other Member States are, first, taken into account to the extent 
that previous national convictions are taken into account, and that, second, 
equivalent legal effects are attached to them as to previous national convictions, in 
accordance with national law, whether those effects be regarded as matters of fact 
or of procedural or substantive law. According to the case-law of the Court of 
Justice of the European Union, this is intended to prevent the person concerned 
from being treated less favourably than if the previous criminal conviction in 
question had been a national conviction (CJEU, judgment of 15 April 2021, 
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C-221/19, EU:C:2021:278, paragraphs 49, 50, 57, 58; see also, to that effect, 
CJEU, judgment of 21 September 2017, C-171/16, EU:C:2017:710, paragraph 26, 
and CJEU, judgment of 5 July 2018, C-390/16, EU:C:2018:532, paragraph 28). 
However, under the first sentence of Article 3(5) of Framework Decision 
2008/675/JHA, Article 3(1) of that framework decision is not to have the effect of 
requiring Member States to apply their national rules […] on imposing sentences, 
where the application of those rules to foreign convictions would limit the judge 
in imposing a sentence in the new proceedings. 
30 (cc) Accordingly, the present Chamber takes the view that the imposition of a 
sentence for the offence that is the subject matter of the proceedings would be 
permissible only if the first sentence of Article 3(5) of Framework Decision 
2008/675/JHA were to be interpreted as meaning that the principle of equal 
treatment provided for in Article 3(1) of that framework decision would have no 
effect (even) where a notional inclusion of the sentence handed down in the other 
EU Member State would result in the maximum permissible cumulative (non-life) 
custodial sentence of 15 years under the second sentence of Paragraph 54(2) of the 
StGB being exceeded. However, such an understanding is not obvious, as it would 
run counter to the basic tenet of Article 3(1) of Framework Decision 
2008/675/JHA and the decisions of the Court of Justice cited above, in so far as, 
contrary to the principle of equal treatment provided for in that provision, it would 
be permissible to exceed the maximum level laid down in the second sentence of 
Paragraph 54(2) of the StGB. 
31 (b) The second question: 
32 Should the Court of Justice answer the first question in the affirmative, the present 
Chamber takes the view that the further question referred – as to whether the 
taking into account of the sentence handed down in the other EU Member State, 
as provided for under the second sentence of Article 3(5) of Framework Decision 
2008/675/JHA, must take place in such a way that the disadvantage resulting from 
the impossibility to form a subsequent cumulative sentence is to be specifically 
documented and justified in the sentencing for the domestic offence – becomes 
relevant to the decision to be given. 
33 (aa) In accordance with the second sentence of Article 3(5) of Framework 
Decision 2008/675/JHA, the Member States are required to ensure that, in the 
cases referred to in the first sentence of Article 3(5) thereof, their courts can 
otherwise take into account previous convictions handed down in other Member 
States. When transposing Framework Decision 2008/675/JHA into German law, 
the German legislature did not see any need for transposition with regard to 
Article 3 of the Framework Decision; the reason given for this was that the 
approach that previous foreign convictions cannot be formally integrated into the 
sentencing (via a subsequent formation of the cumulative sentence), but that, to 
the greatest extent possible, the convicted person should nevertheless not be 
placed at a disadvantage as a result, corresponds to the compensation for hardship 
which is applied also to previous foreign convictions in the German case-law […]. 
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34 According to the existing case-law of the Federal Court of Justice referred to in 
that respect, the disadvantage that arises from the impossibility to form a 
subsequent cumulative sentence together with convictions handed down in 
another EU Member State is usually taken into account in the sentencing by 
means of a – non-quantified – compensation for hardship, which is at the 
discretion of the court ruling on the substance (see, most recently, BGH, order of 
26 January 2022, StR 461/21, ECLI:DE:BGH:2022:260122B3STR461.21.0). In 
that connection, it is ultimately considered sufficient that the court ruling on the 
substance takes into account the impossibility to form a subsequent cumulative 
sentence – in addition to other sentencing factors to be taken into account – as a 
factor in favour of the accused person in the determination of the new sentence. 
35 (bb) However, that case-law does not sufficiently take into account the provisions 
of Paragraphs 54 and 55 of the StGB and the provisions of Framework Decision 
2008/675/JHA. This is because there is a risk that the compensation for hardship 
will amount to nothing more than a dead letter. The present Chamber therefore 
considers that the question as to whether Article 3(1) and (5) of Framework 
Decision 2008/675/JHA must be interpreted as meaning that the disadvantage 
resulting from the impossibility to form a subsequent cumulative sentence from 
previous convictions handed down in other EU Member States and those handed 
down by national courts is to be specifically documented by way of a notional 
inclusion of the sentence from the other EU Member State, and justified in detail 
in terms of its quantification, requires clarification and is relevant to the decision 
to be given. 
36 (cc) The present Chamber takes the view that only a comprehensibly justified and 
quantified compensation for disadvantage will be compliant with the regulatory 
content of Article 3(1) and (5) of Framework Decision 2008/675/JHA. 
37 It follows from the case-law of the Court of Justice of the European Union on 
Framework Decision 2008/675/JHA, as outlined above, that the manner in which 
previous convictions handed down in other EU Member States are taken into 
account should be as similar as possible to that in which previous national 
convictions are taken into account. The present Chamber takes the view that, in 
order to come as close as possible to a (subsequent) formation of a cumulative 
sentence, in which, under German law, a cumulative sentence, which must also be 
specifically quantified, is formed from specifically quantified individual 
sentences, by increasing the largest individual sentence (Paragraphs 54 and 55 of 
the StGB), it is necessary specifically to identify a disadvantage resulting from the 
impossibility to form a cumulative sentence and to deduct it from the new 
(cumulative) sentence to be imposed. That situation – which corresponds to the 
first sentence of Paragraph 55 of the StGB – also differs significantly from other 
cases in which the facts have been definitively established (such as sentences 
which have been executed in full), in which the granting of unquantified 
compensation for hardship is sufficient because a cumulative sentence is no longer 
a possibility. 
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38 It is true that in cases of convictions handed down in different States – unlike in 
cases of domestic convictions – the sentence included does not cease to be an 
independently enforceable decision (see Federal Court of Justice, order of 
26 January 2022, 3 StR 461/21, ECLI:DE:BGH:2022:260122B3STR461.21.0, 
paragraph 9 et seq., in particular paragraph 14, also concerning the fact that 
Framework Decision 2008/675/JHA does not necessarily require the specific 
quantification of the compensation for disadvantage); however, a comprehensible 
justification of the compensation and its quantification appears to be indispensable 
for reasons of transparency, but in particular for reasons pertaining to the 
possibility for the court ruling on the appeal on a point of law to review the 
sentencing as an essential part of the decision of the court ruling on the substance. 
39 This is also supported in particular by the fact that the formation of the cumulative 
sentence – as follows from the third sentence of Paragraph 54(1) of the StGB – is 
an independent act of assessment specific to the cumulative sentence (settled case-
law; see Federal Court of Justice, order of 12 November 2019, 1 StR 415/19, 
ECLI:DE:BGH:2019:121119B1STR415.19.0, paragraph 3; judgment of 
24 August 2016, 2 StR 504/15, ECLI:DE:BGH:2016:240816U2STR504.15.0, 
paragraph 20; with further references in each case). That requirement cannot be 
met simply by taking into account unquantified compensation for hardship as a 
mere sentencing factor in favour of the accused person, because the measure is in 
no way reviewable, with the result that a decisive part of the decision of the court 
ruling on the substance is ultimately removed from the scope of judicial review 
under the law governing appeals on points of law. 
40 (dd) The present Chamber takes the view that the manner in which the court ruling 
on the substance determines the compensation in concrete terms is left to the 
discretion of that court. It can directly take into account the fact that a cumulative 
sentence cannot be formed together with the previous sentence when determining 
the new sentence – by quantifying the part to be deducted – or it can also proceed 
on the basis of a ‘notional cumulative sentence’, formed by taking into account the 
foreign sentence, and reduce it by the foreign sentence. The only requirement is 
that it grant appropriate compensation and comprehensibly justify and quantify it 
in the grounds of its judgment – in a manner comparable to the formation of a 
cumulative sentence under Paragraphs 54 and 55 of the StGB. 
41 (ee) In its sentencing decision, the Regional Court did not take into account the 
fact that, by imposing a custodial sentence of six years, the maximum limit for a 
cumulative custodial sentence of 15 years under German law was factually 
exceeded; moreover, it did not specify any appropriate criteria as to how it took 
the convictions in another EU Member State into account in accordance with the 
second sentence of Article 3(5) of Framework Decision 2008/675/JHA, with the 
result that it appears questionable whether sufficient account was taken of 
requirements under EU law. 
42 (c) The interpretation of Framework Decision 2008/675/JHA is a matter for the 
Court of Justice of the European Union alone. It has not yet ruled on this issue and 
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there is therefore no acte éclairé. Nor is the interpretation so obvious as to leave 
no scope for reasonable doubt, in the sense of an acte clair (see, regarding the 
requirements for an acte clair, CJEU, judgment of 6 October 1982, CILFIT and 
Others, 283/81, EU:C:1982:335). 
43 […] [information on the national proceedings] 
III. 
44 The present Chamber requests an order requiring the preliminary ruling 
proceedings to be given priority pursuant to Article 53(3) of the Rules of 
Procedure of the Court of Justice of the European Union, in conjunction with the 
fourth paragraph of Article 267 TFEU. The questions referred are relevant to the 
decision to be given in pending criminal proceedings, to which the right of the 
accused person detained on remand pending trial to have the case decided within a 
reasonable period of time, which derives from Article 5(3) of the Convention for 
the Protection of Human Rights and Fundamental Freedoms (ECHR), applies in 
particular. 
[…] [details regarding the composition of the court and the previous instance]