Opinion of the Advocate General — ECLI:EU:C:2025:716
Date: 2025-09-18
Language of the case: German

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Translation C-447/24 – 1 
Case C-447/24 [Höldermann] i 
Reference for a preliminary ruling 
Date of receipt: 
25 June 2024 
Referring court: 
Kammergericht Berlin 
Date of the order for reference: 
21 June 2024 
Law enforcement agency: 
Staatsanwaltschaft Berlin 
Person concerned: 
SO 
  
[…] 
KAMMERGERICHT 
(HIGHER REGIONAL COURT, BERLIN, GERMANY) 
Order 
[…] 
4 Ws 15/24-151 GWs 1/24 
In the case involving assistance in matters relating to the enforcement of a 
judgment concerning: 
the German national 
 
i The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings. 
EN 
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SO, 
born in Ukraine, 
residing in [OMISSIS] Berlin, [OMISSIS], 
the Fourth Criminal Chamber (Strafsenat) of the Kammergericht (Higher 
Regional Court) in Berlin made the following order on 21 June 2024: 
The following questions are referred to the Court of Justice of the European Union 
(‘the Court’) for a preliminary ruling pursuant to Article 267 TFEU: 
1. Does a summons served on a domestic service agent appointed by the 
sentenced person satisfy the requirements of the first indent of 
Article 9(1)(i)(i) of Council Framework Decision 2008/909/JHA, as 
amended by Council Framework Decision 2009/299/JHA? 
2. Is Article 9(1)(i)(ii) of Council Framework Decision 2008/909/JHA, as 
amended by Council Framework Decision 2009/299/JHA, to be understood 
as meaning that the trial must already have been scheduled at the time the 
mandate is given and that the person concerned must be aware of the 
scheduled date, or is it sufficient that the person concerned gives or confirms 
the mandate in the certain knowledge that a trial will take place? 
3. Is it compatible with the primacy of European Union law that the German 
legislature has framed the case of a conviction in absentia as an absolute 
ground of non-permissibility under Paragraph 84b(1)(2) of the Gesetz über 
die internationale Rechtshilfe in Strafsachen (German Law on International 
Mutual Legal Assistance in Criminal Matters, ‘the IRG’), even though 
Article 9(1)(i) of Council Framework Decision 2008/909/JHA, as amended 
by Council Framework Decision 2009/299/JHA, provides only for an 
optional ground of refusal in that respect? 
4. Can the person concerned waive the protection afforded by Article 9(1)(i) 
of Council Framework Decision 2008/909/JHA, as amended by Council 
Framework Decision 2009/299/JHA, and thus enable a decision rendered in 
absentia to be enforced even if the conditions laid down in Article 9(1)(i)(i)-
(iii) of the framework decision are not met? Does making an application to 
the competent authority of the issuing State for enforcement in the home 
State constitute such a waiver? 
G r o u n d s: 
1 A. The facts 
The subject matter of the proceedings concerns an application from the Sąd 
Okręgowy w Zielonej Górze (Regional Court, Zielona Góra, Poland) for 
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enforcement in Germany of a custodial sentence imposed on the person 
concerned, SO, a German national. 
2 1. On 5 August 2019, the Sąd Okręgowy w Zielonej Górze (Regional Court, 
Zielona Góra) […] imposed on the sentenced person a custodial sentence of one 
year for membership of a criminal organisation aimed at the illegal production of 
cigarettes with a view to committing tax offences. The sentenced person lodged an 
appeal on points of fact and law (Berufung) against that judgment through his 
defence counsel, which was rejected by judgment of the Sąd Apelacyjny w 
Poznaniu (Court of Appeal, Poznan, Poland) of 24 March 2022 […]. 
3 Acting through his defence counsel, the sentenced person applied to the Sąd 
Okręgowy w Zielonej Górze (Regional Court, Zielona Góra) requesting 
enforcement of the custodial sentence in Germany on the grounds that he is a 
German national, he has his centre of interests in Berlin and his family is also 
living in Germany. By order of 30 January 2023, the Sąd Okręgowy w Zielonej 
Górze (Regional Court, Zielona Góra) granted that application […] and, by letter 
dated 2 February 2023, enclosing the said order, the certificate pursuant to 
Article 4(1) of Council Framework Decision 2008/909/JHA, the judgments of the 
Sąd Okręgowy w Zielonej Górze (Regional Court, Zielona Góra) and the Sąd 
Apelacyjny w Poznaniu (Court of Appeal, Poznan), as well as the notification of 
the request transmitted to the sentenced person (in Polish and German in each 
case), requested the Staatsanwaltschaft Berlin (Public Prosecutor’s Office, 
Berlin) – as the competent German authority – to take charge of the enforcement. 
4 2. The procedure for the taking charge of enforcement provided for under Council 
Framework Decision 2008/909/JHA (as amended by Council Framework 
Decision 2009/299/JHA) is governed by Paragraphs 84 to 84h of the Gesetz über 
die internationale Rechtshilfe in Strafsachen (German Law on International 
Mutual Legal Assistance in Criminal Matters, ‘the IRG’), which transpose the 
framework decision. Those Paragraphs are worded as follows: 
5 ‘Paragraph 84 – Principle 
(1) Assistance in matters relating to the enforcement of decisions which is 
rendered to another Member State of the European Union under the provisions 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 (OJ L 327, 5 December 2008, 
p. 27), as amended by Council Framework Decision 2009/299/JHA (OJ L 81, 
27 March 2009, p. 24) (Framework Decision on Custodial Sentences), is governed 
by the provisions of this Subdivision. 
(2) The provisions of Part 4 and the general provisions of Part 1 and Part 7 of this 
Law apply: 
1. in the absence of special provision made under this Subdivision, or 
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2. if no request has been made under the provisions of the Framework Decision on 
Custodial Sentences. 
(3) This Subdivision takes precedence over agreements under international law as 
referred to in Paragraph 1(3), provided that exhaustive provision is made on the 
relevant matter. 
Paragraph 84a Conditions governing permissibility 
(1) By way of derogation from Paragraph 49, enforcement of a foreign decision is 
permissible under the provisions of the Framework Decision on Custodial 
Sentences only if: 
1. a court in another Member State has by final decision imposed a sanction 
involving deprivation of liberty, which: 
(a) is enforceable, and 
(b) in the cases referred to in Paragraph 84g(5), can be converted into that 
sanction provided for under German law which most closely corresponds to it, 
2. a penalty, measure of reform and prevention or an administrative fine could 
also have been imposed under German law for the offence giving rise to the 
decision, notwithstanding any procedural obstacles and, if necessary, upon a 
mutatis mutandis conversion of the facts, and 
3. the sentenced person: 
(a) is a German national or has his or her lawful and permanent habitual residence 
in the Federal Republic of Germany and no proceedings to terminate that 
residence are pending, 
(b) is in the Federal Republic of Germany or in the Member State in which the 
decision against him or her was delivered, and 
(c) has, in the event that he or she is in the Member State in which the decision 
was delivered, consented, under the provisions applicable in that Member State, to 
enforcement in the Federal Republic of Germany. 
(2) By way of derogation from subparagraph (1)(2), enforcement in tax, duties and 
customs and currency exchange matters shall also be permissible even if German 
law does not contain the same type of rules as regards taxes, duties and customs 
and exchange regulations as the law of the other Member State. 
[…] 
Paragraph 84b Additional conditions governing permissibility 
(1) Enforcement is not permissible if: 
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[…] 
2. the sentenced person did not appear in person at the trial which led to the 
decision, 
[…] 
(3) By way of derogation from subparagraph (1)(2), enforcement shall also be 
permissible if: 
1. the sentenced person, in due time, 
(a) was summoned in person to appear at the trial which resulted in the decision, 
or 
(b) by other means actually received official information of the scheduled date and 
place of the trial which resulted in the decision in such a manner that it was 
unequivocally established that the sentenced person was aware of the scheduled 
trial, and 
(c) was informed that a decision may also be handed down in absentia, 
2. the sentenced person, being aware of the proceedings being conducted against 
him or her in which a defence counsel participated, prevented a personal summons 
by absconding, or 
3. the sentenced person, being aware of the scheduled trial, mandated defence 
counsel to defend him or her at the trial and was in fact defended by counsel at the 
trial. 
(4) By way of derogation from subparagraph (1)(2), enforcement shall 
furthermore be permissible if, following service of the decision, the sentenced 
person: 
1. has expressly stated that he or she will not contest the decision handed down; or 
2. did not request a retrial or lodge an appeal on points of fact and law (Berufung) 
within the applicable time limits. 
Sentenced persons must first be expressly instructed about their right to a retrial or 
to an appeal on points of fact and law in which they have a right to participate and 
in which the merits of the case, including fresh evidence, may be re-examined and 
which may lead to the original decision being quashed. 
Paragraph 84c Documentation 
(1) Enforcement of a foreign decision under the provisions of the Framework 
Decision on Custodial Sentences is permissible only if the other Member State 
transmits the original or a certified copy of the decision together with a fully 
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completed certificate which corresponds to the form set out in Annex I of the 
Framework Decision on Custodial Sentences, as from time to time amended. 
[…] 
Paragraph 84d Obstacles to authorisation 
Authorisation for the enforcement of a decision as permitted under Paragraphs 84a 
to 84c may be refused only if: 
1. the certificate (Paragraph 84c(1)) is incomplete or manifestly does not 
correspond to the decision to be enforced and the other Member State has not 
completed or corrected those particulars, 
2. the decision is to be enforced against a German national, and 
(a) that person does not have his or her centre of vital interests in the Federal 
Republic of Germany, and 
(b) no competent authority in the other Member State has issued a final decision to 
the effect that the person concerned does not have the right of residence in its 
territorial jurisdiction and is therefore required to leave for the Federal Republic of 
Germany after discharge from prison, 
3. essential parts of the offence were committed in the Federal Republic of 
Germany or on one of the means of transport referred to in Paragraph 4 of the 
Strafgesetzbuch (German Criminal Code), 
4. less than six months of the sanction remain to be enforced at the point in time 
when the decision is received, 
5. the Staatsanwaltschaft (Public Prosecutor’s Office) or the court has established 
that the foreign decision is enforceable only in part and it was not possible to 
reach agreement with the competent authority in the other Member State 
regarding the extent to which the decision is to be enforced, or 
6. the other Member State has refused to consent to the sentenced person, 
following his or her transfer, being prosecuted, convicted or subjected to a 
measure involving deprivation of liberty in respect of another offence committed 
prior to transfer and which did not lead to the decision concerned. 
Paragraph 84e Interim authorisation decision 
(1) The decision on whether to authorise enforcement is given by the 
Staatsanwaltschaft (Public Prosecutor’s Office) with jurisdiction under the second 
sentence of Paragraph 50 and Paragraph 51. It shall give the sentenced person the 
opportunity to make a statement. This may be dispensed with if the sentenced 
person was already heard in the other Member State. 
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(2) If the Staatsanwaltschaft (Public Prosecutor’s Office) decides not to assert any 
of the obstacles to authorisation referred to in Paragraph 84d(1)-(6), it shall set out 
its reasons for that decision in its application for a court decision on 
enforceability. 
[…] 
Paragraph 84f Court procedure 
(1) It is for the Landgericht (regional court) with jurisdiction under the first 
sentence of Paragraph 50 and Paragraph 51 to decide upon application by the 
Staatsanwaltschaft (Public Prosecutor’s Office) pursuant to Paragraph 84e(2) or 
upon application by the sentenced person pursuant to the third sentence of 
Paragraph 84e(3). The Staatsanwaltschaft (Public Prosecutor’s Office) shall 
prepare the decision. 
(2) The court shall send the sentenced person a copy of the documentation 
referred to in Paragraph 84c(1), in so far as this is necessary in order for the 
sentenced person to be able to exercise his or her rights. 
(3) If the Staatsanwaltschaft (Public Prosecutor’s Office) files an application for a 
court decision on enforceability pursuant to Paragraph 84e(2), a copy of the 
decision referred to in Paragraph 84e(2) is to be served on the sentenced person 
together with the copy referred to in subparagraph (2). The sentenced person is 
requested to respond to the application filed by the Staatsanwaltschaft (Public 
Prosecutor’s Office) within a period to be determined by the court. 
[…] 
Paragraph 84g Court decision 
(1) It is for the Landgericht (regional court) to decide, by way of court order, on 
applications for a court decision pursuant to Paragraph 84e(2) and (3). 
[…] 
Paragraph 84h Authorisation following court decision 
(1) The Staatsanwaltschaft (Public Prosecutor’s Office) may authorise the 
rendering of assistance in the enforcement of decisions only if the foreign decision 
has been declared enforceable. 
(2) The Staatsanwaltschaft (Public Prosecutor’s Office) authorises the 
enforcement in accordance with the provisions of the final decision handed down 
by the court. 
(3) There is no right of appeal against the authorisation decision. 
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(4) The decision on whether to authorise enforcement is, as a general rule, to be 
issued within 90 days after the Staatsanwaltschaft (Public Prosecutor’s Office) 
receives the documentation referred to in Paragraph 84c(1). Reasons are to be 
given for any final decision not to authorise the rendering of assistance.’ 
6 3. The Staatsanwaltschaft Berlin (Public Prosecutor’s Office, Berlin) filed an 
application with the chamber responsible for the enforcement of sentences 
(Strafvollstreckungskammer) of the Landgericht Berlin (Regional Court, Berlin, 
Germany; since 1 January 2024: Landgericht Berlin I) seeking a declaration that 
enforcement of the custodial sentence handed down in the judgment of the Sąd 
Okręgowy w Zielonej Górze (Regional Court, Zielona Góra) is permissible. 
7 During the proceedings before the chamber for the enforcement of sentences, the 
sentenced person contested the application filed by the Staatsanwaltschaft Berlin 
(Public Prosecutor’s Office, Berlin). In his submissions, he claimed that he had 
been present in person at only two out of an alleged total of 28 trial days of the 
first-instance trial, which had allegedly spanned a period of more than four and a 
half years. Furthermore, he had not attended the main appeal hearing in person. 
He claimed to be unaware of whether he had been defended on the 26 other days 
of the first-instance trial or at the appeal hearing. 
8 The chamber responsible for the enforcement of sentences thereupon requested 
additional information from the Sąd Okręgowy w Zielonej Górze (Regional Court, 
Zielona Góra). By letter of 31 July 2023, the latter stated that the sentenced person 
had attended the first-instance trial on 3 December 2012, 30 January 2014 and 
22 May 2014, had made statements on the substance of the case and had requested 
that the further hearings be held in his absence if he did not attend. The sentenced 
person had been informed of his right to attend the trial and of his obligations to 
communicate a change of his address for service and to designate an address for 
service in Poland. 
9 According to the Sąd Okręgowy w Zielonej Górze (Regional Court, Zielona 
Góra), the sentenced person had not attended the appeal hearing. However, he had 
made recourse to the assistance of a defence counsel, who had been present at the 
hearings in both instances. Under Polish law, it was not mandatory for either the 
accused person or a defence counsel to attend the appeal proceedings. The 
summons to attend the appeal hearing had been served at the Polish address for 
service designated by the sentenced person, that is to say at the law firm of his 
defence counsel. 
10 In response to further enquiries from the chamber for the enforcement of 
sentences, the Sąd Okręgowy w Zielonej Górze (Regional Court, Zielona Góra) 
stated, by letter dated 19 September 2023 in reference to the first-instance trial, 
that the further hearing dates of 4, 24 and 31 March 2014 had been announced at 
the hearing held on 30 January 2014, and that a further hearing date of 26 May 
2014 had been announced at the hearing held on 22 May 2024 and that, 
accordingly, the sentenced person had been personally summoned to appear at 
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those hearings. In addition, the Sąd Okręgowy w Zielonej Górze (Regional Court, 
Zielona Góra) had served summonses to appear on the sentenced person at his 
German address, as well as at the address of his defence counsel, which he had 
designated as his address for service in Poland. Summonses for the hearings of 
8 July 2013; of 30 January, 22 and 26 May, 24 June and 16 September 2014; of 1, 
2, 15 and 16 October 2015; of 7 April, 3 June, 29 November and 16 December 
2016; as well as of 3 July, 8 September, 27 November and 29 December 2017 had 
been served at the address in Germany. Summonses for the hearings of 1, 2 and 
15 October 2015; of 7 April, 6 and 24 October, 29 November and 16 December 
2016; of 3 July, 8 September, 27 November and 29 December 2017; of 
5 February, 9 April, 21 May, 29 June, 31 August and 29 October 2018; and of 15 
and 22 July 2019 were served at the address of the defence counsel. The sentenced 
person’s defence counsel had attended the hearings of 5 December 2011; of 
3 December 2012; of 19 September 2013; of 30 January and 22 May 2014; of 
3 June 2016; of 8 September and 27 November 2017; and of 5 February 2018. On 
34 other trial days (28 May, 24 June, 16 and 17 September, 6 and 7 October and 
15 December 2014; 2 and 27 March, 16 and 26 June, 1, 2, 15 and 16 October and 
16 November 2015; 7 April, 18 July, 29 August, 6 and 24 October, 29 November 
and 16 December 2016; 17 January, 3 February, 29 September and 29 December 
2017; 9 April, 21 May, 29 June, 29 October and 16 November 2018; 15 and 
22 July 2019), the defence counsel, who had been duly summoned in each case, 
had not attended. 
11 By its decision of 24 November 2023, the chamber for the enforcement of 
sentences of the Landgericht Berlin (Regional Court, Berlin) thereupon rejected 
the application submitted by the Staatsanwaltschaft Berlin (Public Prosecutor’s 
Office, Berlin) seeking a declaration that enforcement of the sentence in Germany 
was permissible. According to the information provided by the Sąd Okręgowy w 
Zielonej Górze (Regional Court, Zielona Góra), the sentenced person had not been 
summoned to trial hearings of 17 September and 6 and 7 October 2014; of 2 and 
27 March 2015; of 17 January and 3 February 2017; and of 8 September and 
16 November 2018; in that respect, it was not apparent that the procedural acts 
that took place on those hearing days were of relevance only for co-accused 
persons and not also for the sentenced person. Nor was it apparent that the 
sentenced person had received information of those hearing dates by other means. 
Furthermore, a defence counsel had not participated in those hearings on his 
behalf. 
12 4. The Staatsanwaltschaft Berlin (Public Prosecutor’s Office, Berlin) appealed 
against that decision by means of an immediate complaint (sofortige Beschwerde) 
filed in due form and in good time. 
13 In its opinion, it suffices that the sentenced person had appeared on certain 
individual trial days – during which he made statements to the court on the 
substance of the matter and also requested that hearings be conducted even in his 
absence – as it had been his independent decision not to attend on other days. 
Furthermore, the sentenced person, acting through his defence counsel, had 
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himself filed an application with the Sąd Okręgowy w Zielonej Górze (Regional 
Court, Zielona Góra) seeking enforcement in the Federal Republic of Germany 
and had thereby waived the protection afforded by Paragraph 84b(1)(2) of the 
IRG. 
14 5. In the process of dealing with the immediate complaint, the Chamber (Senat) 
found that the Court of Justice of the European Union (‘the Court’) had ruled, in 
relation to the transfer procedure, that Article 4a of Council Framework Decision 
2002/584/JHA, as amended by Council Framework Decision 2009/299/JHA, is to 
be interpreted as meaning that the appeal hearing is decisive for the question of 
presence (CJEU, judgment of 10 August 2017 – C-270/17 PPU – 
[EU:C:2017:628]; confirmed by the judgments of 21 December 2023 – C-397/22 
and C- 398/22 – [EU:C:2023:1030 and EU:C:2023:1031]), and that, in view of the 
identical wording of Article 4a of Council Framework Decision 2002/584/JHA 
and Article 9(1)(i) of Council Framework Decision 2008/909/JHA, and having 
regard to the fact that both provisions have their origin in the amendments made 
by Council Framework Decision 2009/299/JHA, the appeal hearing before the Sąd 
Apelacyjny w Poznaniu (Court of Appeal, Poznan) – at which the sentenced 
person was, according to the file, represented by his chosen defence counsel – is 
thus also decisive for the purposes of the taking charge of enforcement. 
15 In that regard, the legal counsel representing the accused person submitted the 
following observations: The sentenced person had been unaware of the appeal 
hearing. A summons to appear had not been served at his German address (which 
was known by the Polish authorities). Ergo, he could not have given a mandate to 
a defence counsel to defend him at the main hearing while ‘being aware of the 
scheduled trial’. 
16 The Chamber then invited the [German] legal counsel to submit a declaration 
from the Polish defence counsel who had represented the sentenced person in the 
substantive main proceedings, stating that he had not informed the sentenced 
person of the date of the appeal hearing and that he had defended him at the 
appeal hearing without a mandate, failing which the Chamber would otherwise – 
in accordance with the customary legal practice – make the opposite finding. The 
[German] defence counsel then submitted a declaration by the [Polish] defence 
counsel, Mr […], dated 28 February 2024, which stated that he acted as defence 
counsel for the sentenced person and that his mandate had covered the 
proceedings at both first and second instance. The sentenced person had also 
designated the business address of the Polish defence counsel’s law firm as a 
Polish address for service, to which letters could be validly served on him under 
Polish law. At the appeal hearing before the Sąd Apelacyjny w Poznaniu (Court of 
Appeal, Poznan), Ms […] (legal counsel), had represented the sentenced person as 
a subdelegated lawyer. It was likely that he had not informed the sentenced person 
of the hearing date, since his presence at the hearing was not mandatory and he 
had been represented there by Ms […] (legal counsel). 
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17 With respect to the appointment of a domestic service agent, Article 138 of the 
Kodeks postępowania karnego (Polish Code of Criminal Procedure, ‘KPK’) 
provides as follows: 
‘A party or a person, who is not a party, but whose rights have been 
infringed and who is residing abroad, shall be required to designate a person 
within the national territory for the purposes of receiving service; if the party 
or person fails to fulfil that obligation, a procedural document shall be 
deemed to have been served if it was sent to the last known address in the 
national territory or, in the absence of such an address, if the procedural 
document has been added to the file.’ 
18 B. Grounds for the questions referred for a preliminary ruling 
1. The Chamber considers it an acte éclairé that the term ‘trial resulting in the 
decision’ in Article 9(1)(i) of Council Framework Decision 2008/909/JHA, as 
amended by Council Framework Decision 2009/299/JHA, is to be understood as 
meaning that, in criminal proceedings comprising several instances, it covers only 
the instance at which the decision was taken by which, after a new – factual and 
legal – examination of the case, a final decision was made on the guilt of the 
person concerned and on his or her sentence; in the present case, that corresponds 
to the appeal hearing of 24 March 2022 before the Sąd Apelacyjny w Poznaniu 
(Court of Appeal, Poznan) and not the first-instance trial taken into consideration 
by the chamber for the enforcement of sentences. 
19 While it is true that – in so far as can be seen – the Court has not yet ruled on that 
point as regards Article 9(1)(i) of Council Framework Decision 2008/909/JHA, as 
amended by Council Framework Decision 2009/299/JHA, it has, however, 
interpreted the term ‘trial resulting in the decision’ in Article 4a of Council 
Framework Decision 2002/584/JHA, as amended by Council Framework Decision 
2009/299/JHA in that sense (judgment of 10 August 2017, ibid.), upholding that 
interpretation in answer to the Chamber’s orders for reference of 14 June 2022 
[…] in the judgments of 21 December 2023 (ibid.). In view of the fact that 
Article 4a[(1)(a)-(d)] of Council Framework Decision 2002/584/JHA, as amended 
by Council Framework Decision 2009/299/JHA, is identical in its wording to 
Article 9(1)(i) of Council Framework Decision 2008/909/JHA, as amended by 
Council Framework Decision 2009/299/JHA, and that both amendments are based 
on the same council framework decision and there is no apparent reason to treat 
cases of transfer for enforcement pursuant to Council Framework Decision 
2002/584/JHA differently from cases of transfer for enforcement pursuant to 
Council Framework Decision 2008/909/JHA, the Chamber considers that the 
case-law relating to Article 4a of Council Framework Decision 2002/584/JHA, as 
amended by Council Framework Decision 2009/299/JHI, is unequivocally 
transferable and that there is therefore no need to make a reference to the Court 
for a preliminary ruling in that regard. 
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20 2. The Chamber is also inclined to regard as an acte éclairé the assertion that the 
summons sent to the defence counsel in his capacity as a service agent does not 
satisfy the requirements of the first indent of Article 9(1)(i)(i) of Council 
Framework Decision 2008/909/JHA, as amended by Council Framework Decision 
2009/299/JHA. This is because the Court has ruled, in relation to the identical 
wording of Article 4a(1)(a)(i) of Council Framework Decision 2002/584/JHA, as 
amended by Council Framework Decision 2009/299/JHA, that a summons handed 
to an adult belonging to the household of the person concerned, who had 
undertaken to hand it over to the person concerned, would fulfil the conditions set 
out in Article 4a(1)(a)(i) of Council Framework Decision 2002/584/JHA, as 
amended by Council Framework Decision 2009/299/JHA, only if it were possible 
to ascertain from the European arrest warrant whether, and if so when, that person 
actually handed it over to the person concerned. An issuing judicial authority is 
therefore required to set out in the European arrest warrant the evidence on which 
it based its finding that the person concerned actually received official information 
on the date and place of his trial (judgments of 24 May 2016 – C-108/16 – 
[EU:C:2016:346] and of 21 December 2023 – C-397/22 – ibid.). That case-law is 
likely to be transferable to the certificate provided for under Article 4(1) of 
Council Framework Decision 2008/909/JHA, which, in the present case, does not 
contain such information. 
21 However, the present case differs from the matters adjudicated upon by the Court 
in that the sentenced person had expressly appointed the service recipient as the 
authorised service agent by providing the service recipient’s address as the 
domestic address for service to the competent judicial authorities in accordance 
with the provisions of the first half-sentence of Article 138 of the KPK. This could 
be understood as meaning that the sentenced person had declared that he wished 
service effected on the service agent to be regarded as service effected on himself 
personally. 
22 The Chamber therefore asks: 
Does a summons served on a domestic service agent appointed by the sentenced 
person satisfy the requirements of the first indent of Article 9(1)(i)(i) of Council 
Framework Decision 2008/909/JHA, as amended by Council Framework Decision 
2009/299/JHA? 
23 3. If the sentenced person’s summons to appear at the appeal hearing that was 
effected on his defence counsel as his authorised service agent does not satisfy the 
requirements of the first indent of Article 9(1)(i)(i) of Council Framework 
Decision 2008/909/JHA, as amended by Council Framework Decision 
2009/299/JHA, it is then necessary to examine whether the sentenced person was 
represented at the appeal hearing in a form that eliminates the ground for refusal. 
It is true that he was defended by a defence counsel of his choosing (Ms […], who 
was subdelegated by his chosen defence counsel). However, it is questionable 
whether the sentenced person had, ‘being aware of the scheduled trial, given a 
mandate’ to Ms […], or respectively to Mr […] ‘… to defend [him] at the trial’, 
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and that the conditions laid down in Article 9(1)(i)(ii) of Council Framework 
Decision 2008/909/JHA, as amended by Council Framework Decision 
2009/299/JHA – transposed into German law in Paragraph 84b(3)(3) of the IRG – 
were thus fulfilled. 
24 The wording of the framework decision suggests prima facie that the scheduling 
of the trial must precede the granting of the mandate. However, such an 
interpretation does not appear to be mandatory and nor does it appear appropriate 
in the context of appeal proceedings (at least in the case of the appeal on points of 
fact and law (Berufung) filed by the accused person). When an accused person 
who has been convicted at first instance instructs his or her defence counsel to 
lodge an appeal (Berufung), he or she will generally also – in so far as permissible 
under national law and provided that the presence of the accused person at the 
appeal hearing is not mandatory – grant his or her defence counsel a mandate to 
defend him or her at the appeal hearing even in his or her absence. At that point, 
the accused person knows for certain that an appeal hearing will take place, 
because he or she is lodging an appeal, but he or she is not yet aware of the exact 
date on which the court of appeal will schedule the hearing. 
25 The Chamber regards that state of knowledge as sufficient since, during the 
further course of the proceedings, it lies solely within the discretion of the 
appealing accused person as to whether he or she maintains contact with the court 
and his or her defence counsel, so as to be informed of the date, or whether – like 
the sentenced person – he or she does not maintain such contact, or does so only 
sporadically. It appears that such an interpretation of Article 9(1)(i)(ii) of Council 
Framework Decision 2008/909/JHA, as amended by Council Framework Decision 
2009/299/JHA, would also be compatible with the wording of the provision if it is 
understood to mean that the person concerned need (only) know that the hearing 
(scheduled only after the mandate was granted) will certainly take place, but that 
he or she need not be aware of the exact date. 
26 However, (exceptional) cases are also conceivable in which a defence counsel 
would lodge an appeal (Berufung) without the accused person’s knowledge, if he 
or she is unable to contact his or her client and wishes, as a precautionary 
measure, to comply with the time limit for lodging the appeal. However, even in 
those cases – and especially in the case of defence counsel who are selected and 
paid by the accused person – the appeal proceedings would not, in any event, be 
continued without consulting the client and obtaining his or her confirmation. The 
Chamber therefore assumes from the fact that the chosen defence counsel (or, 
respectively, the defence counsel subdelegated by him) appeared before the court 
of appeal that such a consultation did take place with the sentenced person and 
that the latter had thereby acquired (at the latest) certain knowledge that an appeal 
hearing was pending – depending solely on his decision to confirm – even if the 
hearing had not yet been scheduled at the time of the consultation. 
27 The Chamber therefore asks: 
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Is Article 9(1)(i)(ii) of Council Framework Decision 2008/909/JHA, as amended 
by Council Framework Decision 2009/299/JHA, to be understood as meaning that 
the trial must already have been scheduled at the time the mandate is given and 
that the person concerned must be aware of the scheduled date, or is it sufficient 
that the person concerned gives or confirms the mandate in the certain knowledge 
that a trial will take place? 
28 4. If Article 9(1)(i)(ii) of Council Framework Decision 2008/909/JHA, as 
amended by Council Framework Decision 2009/299/JHA, is to be understood as 
meaning that the trial must already have been scheduled at the time the mandate is 
given and that the person concerned must be aware of the scheduled date, and if 
the summons effected on the service agent does not meet the requirements laid 
down in the first indent of Article 9(1)(i)(i) of Council Framework Decision 
2008/909/JHA, as amended by Council Framework Decision 2009/299/JHA, 
would taking charge of enforcement be prohibited pursuant to 
Paragraph 84b(1)(2) of the IRG in view of the fact the conditions for invoking an 
exception provided for under Paragraph 84b(3)(3) of the IRG are not met. 
29 It is true that Article 9(1) of Council Framework Decision 2008/909/JHA, as 
amended by Council Framework Decision 2009/299/JHA, provides for a 
discretion on the part of the competent authority of the executing State (‘may 
refuse to recognise the judgment and enforce the sentence’). However, that 
provision has not been fully transposed into German law in that respect. 
Paragraph 84b(1)(2) of the IRG establishes an absolute ground of non-
permissibility (‘Enforcement is not possible’), which is inapplicable only in the 
exception cases specified in Article 9(1)(i) of the framework decision as well as in 
the case – as had already been developed previously in German case-law – that the 
accused person, with knowledge of the proceedings in which a defence counsel 
participated, prevented a personal summons by absconding (Paragraph 84b(3)(2) 
of the IRG). German law does not provide for the possibility of the judicial 
authority of the executing State exercising its discretion. 
30 The Chamber is precluded from directly applying the framework decision because 
framework decisions do not have direct effect (see CJEU, judgment of 24 June 
2019 – C-573/17 – [EU:C:2019:530], paragraph 69). It is required, however, to 
interpret national law in conformity with the framework decision in order to 
achieve the result sought by that framework decision (see CJEU, ibid., 
paragraphs 72 et seq.); in that respect, however, an interpretation contra legem is 
excluded (see CJEU, ibid., paragraph 76). 
31 It is therefore not possible to interpret Paragraph 84b(1)(2) of the IRG as meaning 
that the Chamber, when examining the plea of non-permissibility, has a 
discretionary power that extends beyond the exceptions provided for in 
Paragraph 84b(3) and (4) of the IRG. Nor can the Chamber classify the present 
case as an ‘absconsion’ for the purposes of Paragraph 84b(3)(2) of the IRG, since 
the sentenced person, being a German national, had returned to Germany with the 
knowledge of the Polish judicial authorities. 
HÖLDERMANN 
 
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32 If the Chamber were entitled to make a discretionary decision as provided for in 
Article 9(1) of Council Framework Decision 2008/909/JHA, as amended by 
Council Framework Decision 2009/299/JHA, it would deem the taking charge of 
enforcement to be permissible. Despite the appeal which he lodged, the sentenced 
person did not maintain sufficient contact with the Polish judicial authorities and 
his defence counsel, whose business address he had designated as an address for 
service. He clearly had no interest in attending the appeal hearing himself. 
Moreover, he himself had filed the request for the taking charge of enforcement. 
In the light of those circumstances, the Chamber does not consider that a refusal to 
grant enforcement of the penalty in Germany would be an interest worthy of 
protection on the part of the sentenced person. 
33 The Chamber therefore asks: 
Is it compatible with the primacy of European Union law that the German 
legislature has framed the case of a conviction in absentia as an absolute ground of 
non-permissibility under Paragraph 84b(1)(2) of the Gesetz über die internationale 
Rechtshilfe in Strafsachen (German Law on International Mutual Legal 
Assistance in Criminal Matters, ‘the IRG’), even though Article 9(1)(i) of Council 
Framework Decision 2008/909/JHA, as amended by Council Framework Decision 
2009/299/JHA, provides only for an optional ground of refusal in that respect? 
34 The Chamber points out that, in the light of the Court’s judgments of 
21 December 2023 (ibid. and C-396/22 [EU:C:2023:1029]), it regards this 
question also as an acte éclairé but is nevertheless raising it as a precautionary 
measure in view of the importance of the question and the lack of a legislative 
response to the Court’s judgments of 21 December 2023. 
35 5. The Staatsanwaltschaft Berlin (Public Prosecutor’s Office, Berlin), as the 
complainant, is of the opinion that the sentenced person has deprived himself of 
the protection afforded by Article 9(1)(i) of Council Framework Decision 
2008/909/JHA, as amended by Council Framework Decision 2009/299/JHA, and, 
respectively, Paragraph 84b(1)(2) of the IRG by applying to the Sąd Okręgowy w 
Zielonej Górze (Regional Court, Zielona Góra) for enforcement of the sentence in 
Germany. 
36 The Staatsanwaltschaft (Public Prosecutor’s Office) is admittedly correct in 
asserting that the sentenced person’s conduct is contradictory, in that he has, on 
the one hand, applied in Poland for enforcement of the sentence in Germany – 
without asserting any reservations or objections against the sentence – but is, on 
the other hand, raising objections in Germany in which he contests the 
permissibility of the enforcement. The Chamber considers, however, that that 
conduct could be taken into consideration only as part of the discretion referred to 
above, which has not been conferred upon it under German law. For the purposes 
of making a finding that the protection afforded by Article 9(1) of Council 
Framework Decision 2008/909/JHA, as amended by Council Framework Decision 
2009/299/JHA, and by Paragraph 84b(1)(2) of the IRG, was waived by filing the 
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application, the Chamber cannot see any legislative basis upon which it could 
infer that the protection can be waived by the sentenced person. 
37 However, the view of the Staatsanwaltschaft Berlin (Public Prosecutor’s Office, 
Berlin) could be supported by the fact that Article 9(1)(i) of Council Framework 
Decision 2008/909/JHA, as amended by Council Framework Decision 
2009/299/JHA, also recognises situations in which the sentenced person can 
decide, though his or her own conduct during the proceedings, whether he or she 
wishes to invoke the protection against enforcement of a judgment delivered in his 
or her absence. This is because point (iii) [of Article 9(1)(i) of Council Framework 
Decision 2008/909/JHA, as amended by Council Framework Decision 
2009/299/JHA,] provides for the possibility of waiving the right to contest a 
judgement handed down in absentia. If, in that regard, the enforceability of the 
judgment can thus depend on a waiver by the sentenced person, it would be 
possible to assume that such a power of waiver existed also in respect of the 
further course of enforcement, which the convicted person would then have 
exercised in applying to the Sąd Okręgowy w Zielonej Górze (Regional Court, 
Zielona Góra) for enforcement of the sentence in Germany, thereby accepting the 
judgment. 
38 The Chamber therefore asks: 
Can the person concerned waive the protection afforded by Article 9(1)(i) of 
Council Framework Decision 2008/909/JHA, as amended by Council Framework 
Decision 2009/299/JHA, and thus enable a decision rendered in absentia to be 
enforced even if the conditions laid down in Article 9(1)(i)(i)-(iii) of the 
framework decision are not met? Does making an application to the competent 
authority of the issuing State for enforcement in the home State constitute such a 
waiver? 
[…]