Opinion of the Advocate General — ECLI:EU:C:2018:957
Date: 2018-11-27
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 of the extent and limitations of the obligation to interpret domestic law in conformity with EU law, the referring court should be invited once again to endeavour by all interpretative means available to it to implement Article 6(2), (3) and (5) of the OLW in a manner consistent with the objective of Article 4(6) of Framework Decision 2002/584. It must strive equally in relation to Article 5:2(3) of the WETS, in order to achieve an interpretation consistent with Framework Decision 2008/909. Indeed, the primacy of framework decisions over national law must give rise first and foremost to an obligation on national courts to interpret their domestic law in conformity with those framework decisions. 72. Before providing the referring court with guidance in that regard, it is necessary to clarify how Framework Decision 2002/584 and Framework Decision 2008/909 should interrelate. 3. The relationship between Framework Decision 2002/584 and Framework Decision 2008/909 73. Article 25 of Framework Decision 2008/909, ‘Enforcement of sentences following an [EAW]’, describes how Framework Decision 2002/584 and Framework Decision 2008/909 interrelate, establishing that ‘without prejudice to Framework Decision [2002/584], provisions of this Framework Decision shall apply, mutatis mutandis to the extent they are compatible with provisions under that Framework Decision, to enforcement of sentences in cases where a Member State undertakes to enforce the sentence in cases pursuant to Article 4(6) of [Framework Decision 2002/584] or where, acting under Article 5(3) of that Framework Decision, it has imposed the condition that the person has to be returned to serve the sentence in the Member State concerned, so as to avoid impunity of the person concerned.’ (34) 74. That article must, for its part, be read in the light of recital 12 of Framework Decision 2008/909, from which it is apparent that applying that framework decision, mutatis mutandis, to the enforcement of sentences in the situations under Article 4(6) of Framework Decision 2002/584 ‘means, inter alia, that, without prejudice to that Framework Decision, the executing State could verify the existence of grounds for non-recognition and non-enforcement as provided in Article 9 of this Framework Decision, including the checking of double criminality to the extent that the executing State makes a declaration under Article 7(4) of this Framework Decision, as a condition for recognising and enforcing the judgment with a view to considering whether to surrender the person or to enforce the sentence in cases pursuant to Article 4(6) of Framework Decision [2002/584].’ 75. We can infer from those provisions that, provided the regime under Framework Decision 2008/909 applies to the enforcement of a sentence, where the executing Member State does not intend to rely on a ground for non-recognition and non-enforcement under Article 9 of that framework decision and where, furthermore, the executing judicial authority believes that executing the sentence in that Member State would facilitate the social reinsertion of the sentenced person, there is nothing to prevent that Member State from giving a firm and final undertaking to execute that sentence. The requirements for the executing judicial authority to be entitled to refuse surrender are accordingly satisfied. The interest in the sentenced person being reinserted in society thereby converges with the interest in ensuring that a custodial sentence does not remain unexecuted. The need to reconcile those two interests makes it all the more compelling for the referring court to seek an interpretation of its domestic law that gives full effect to Article 4(6) of Framework Decision 2002/584. 4. An interpretation of domestic law in conformity with Framework Decision 2002/584 and Framework Decision 2008/909 76. As the Court of Justice noted in the Popławski judgment, it does not have jurisdiction to interpret the domestic law of a Member State. (35) It is therefore for the referring court alone to assess whether Netherlands law can be interpreted in conformity with Article 4(6) of Framework Decision 2002/584 and with Article 28 of Framework Decision 2008/909. 77. However, the Court of Justice, when ‘called on to provide answers that are of use to the national court in context of a reference for a preliminary ruling, may provide guidance, based on the file in the main proceedings and on the written and oral observations which have been submitted to it, in order to enable the national court to give judgment’. (36) 78. In the present case, applying Article 6(2), (3) and (5) of the OLW in the main proceedings in conformity with Article 4(6) of Framework Decision 2002/584 presupposes, in my view, that the domestic provision in question can be interpreted as follows. 79. First, it must be possible to interpret Article 6(2), (3) and (5) of the OLW as meaning that it establishes a ground for optional refusal to execute an EAW in respect of a requested person, in such a way that the judicial authority of the executing Member State has a margin of discretion to execute or refuse to execute that EAW. 80. In its request for a preliminary ruling the referring court seems to doubt whether any such interpretation of domestic law is possible, even though it is at the same time apparent from the other considerations it expresses that this is not, to its mind, the most significant obstacle to achieving an outcome in conformity with Article 4(6) of Framework Decision 2002/584. 81. Secondly, going to the nub of the referring court’s questions, if Article 6(2), (3) and (5) of the OLW is to satisfy the requirements of Article 4(6) of Framework Decision 2002/584, it must be possible to interpret it as meaning that the executing judicial authority’s power to refuse to execute the EAW can only be exercised on condition that it ensures that the sentence imposed on Mr Popławski will effectively be executed in the Netherlands. 82. In that regard, any discussion of whether, where a Member State makes taking over execution of a custodial sentence subject to there being a legal basis in an international convention, Article 4(6) of Framework Decision 2002/584 can itself be the formal basis required by domestic law, has become redundant. 83. As I stated above, the Kingdom of the Netherlands has in fact withdrawn the declaration it made under Article 28(2) of Framework Decision 2008/909, with effect from 1 June 2018. The effect of withdrawing that declaration is that the provisions of that framework decision must to my mind apply, ratione temporis, to a request for execution of a sentence in a case where a Member State undertakes to execute that sentence in accordance with Article 4(6) of Framework Decision 2002/584. 84. I would call to mind, in that regard, that Framework Decision 2008/909 was implemented in Netherlands law by the WETS. Since that legislation came into force, Article 6(3) of the OLW has no longer mentioned the need for a basis in convention in order to execute a sentence where surrender has been refused. That redrafting makes sense in so far as, as Article 26(1) of Framework Decision 2008/909 states, that framework decision has, from 5 December 2011, replaced the corresponding provisions of several European conventions applicable in relations between the Member States. 85. The referring court is therefore entitled to take the view that application of the national rules adopted to implement Framework Decision 2008/909 is capable of ensuring that the sentence imposed on Mr Popławski can effectively be executed in the Netherlands. 86. Nevertheless, applying those national rules in the present case encounters an obstacle in Article 5:2(3) of the WETS, in so far as that article, as stated above, provides that those rules do not apply to judicial decisions that became final before 5 December 2011. 87. Since there is no declaration made by the Kingdom of the Netherlands under Article 28(2) of Framework Decision 2008/909, that provision must be found to be incompatible with Article 28(1) of that framework decision that, likewise as I stated above, provides that requests received after 5 December 2011 are governed by the rules adopted by the Member States to implement that framework decision, and the date on which the judgment in question became final is completely irrelevant for that purpose. 88. Enlisting all its domestic law and the interpretative methods available to it, the referring court is, to my mind, in a position to find that, because the Kingdom of the Netherlands chose to withdraw the declaration it had made under Article 28(2) of Framework Decision 2008/909, the national provision intended to implement that declaration in domestic law is consequently deprived of any legal basis. In so far as the Kingdom of the Netherlands expressed its intention unambiguously, it must in my view be easy to reduce the scope of Article 5:2(3) of the WETS on the basis of domestic law alone without the referring court coming up against any contra legem interpretation. 89. Having in that way clarified how the referring court can arrive at an interpretation of its domestic law in conformity with Framework Decision 2002/584 and Framework Decision 2008/909, I need to set out specifically how the national rules implementing both those framework decisions fit together in a situation such as that in the main proceedings. 90. The starting point here should be that, since the regime derived from Framework Decision 2008/909 applies to a request for the sentence delivered in Poland against Mr Popławski to be executed in the Netherlands and since any uncertainty arising earlier from application of the regime derived from the relevant European conventions has been dispelled, the executing Member State is in a position to give a firm and final undertaking to execute that sentence, as Article 4(6) of Framework Decision 2002/584 requires. 91. I am also of the view that, once the requirements of Article 4(6) are satisfied, a refusal by the Member State that issued the EAW to forward the judgment together with the certificate under Annex I of Framework Decision 2008/909 cannot be allowed to prevent execution of the sentence in the executing Member State. 92. I do not share the Republic of Poland’s view that unless it requests or agrees to execution of the sentence imposed on Mr Popławski in the Netherlands, that execution cannot take place. Indeed, that position would ultimately render ineffective the ground for optional non-execution under Article 4(6) of Framework Decision 2002/584, which the executing Member State chose to implement in its domestic law. The Republic of Poland’s position, which effectively precludes any firm and final undertaking by the executing Member State to execute the sentence, also runs counter to the objective of enhancing the possibility of social rehabilitation of the sentenced person, pursued not only by Framework Decision 2002/584 but also by Framework Decision 2008/909, as Article 3(1) of that decision expressly states. (37) It needs emphasising, in that respect, that the Court of Justice has already held that ‘the social rehabilitation of the Union citizen in the State in which he has become genuinely integrated is not only in his interest but also in that of the … Union in general’. (38) 93. Contrary to the Republic of Poland’s assertions, the issuing Member State cannot rely on Article 4(5) of Framework Decision 2008/909 to object to forwarding the judgment together with the certificate in Annex I of that framework decision. 94. Article 4(5) does admittedly provide that ‘the executing State may, on its own initiative, request the issuing State to forward the judgment together with the certificate’ and that ‘requests made under this paragraph shall not create an obligation of the issuing State to forward the judgment together with the certificate.’ 95. However, as I stated above, it is Article 25 of Framework Decision 2008/909 that governs the execution of sentences following an EAW, as the heading of that article furthermore makes expressly apparent. That article therefore constitutes a lex specialis as opposed to the general regime governing the execution of sentences contained in that framework decision. 96. I would repeat here that, according to Article 25, the provisions of Framework Decision 2008/909 apply to the execution of judgments in the context of Article 4(6) of Framework Decision 2002/584 ‘without prejudice’ to Framework Decision 2002/584 and only ‘to the extent they are compatible’ with the provisions of that framework decision. In short, this means that application of Framework Decision 2008/909 cannot adversely affect the ability to rely on the ground for optional non-execution in Article 4(6) of Framework Decision 2002/584 provided, in accordance with Article 4(6), the executing Member State undertakes to execute the sentence in question. It would indeed be paradoxical and, to be honest, inconsistent to believe that the EU legislature intended to allow the issuing Member State to invoke the rules contained in Framework Decision 2008/909, which seeks, I would repeat, to facilitate the social reinsertion of the sentenced person, in order to impede the application of rules adopted by the executing Member State in order to implement Article 4(6) of Framework Decision 2002/584, which pursues exactly the same aim. (39) 97. In practical terms, I infer from the foregoing that, where the executing Member State undertakes to execute a sentence, in accordance with the requirements of Article 4(6) of Framework Decision 2002/584, the issuing Member State is bound to grant the executing State’s request to forward it the judgment together with the certificate in Annex I of Framework Decision 2008/909. 98. That interpretation of the scheme of Framework Decision 2008/909 and of how it relates to Framework Decision 2002/584 is therefore completely consistent with the objective of facilitating the social reinsertion of the sentenced person and, at the same time, ensures effective execution of the sentence. 99. It also needs noting, in support of the approach I am advocating that, ‘as provided for in Article 26 thereof, Framework Decision 2008/909 replaces, as regards relations between Member States, a number of instruments of international law in order to further develop cooperation, as stated in recital 5 of the decision, in the enforcement of criminal judgments.’ (40) 100. Unlike those instruments of international law, Framework Decision 2008/909 is based, above all, on the principle of mutual recognition, which, according to recital 1 of that framework decision, read in conjunction with Article 82(1) TFEU, is the ‘cornerstone’ of judicial cooperation in criminal matters within the European Union, which in turn, according to recital 5, is based on the Member States’ special mutual confidence in their respective legal systems. (41) Cooperation by the issuing Member State in order to enable a sentence to be executed in the executing Member State in the situation under Article 4(6) of Framework Decision 2002/584 is the concrete expression of that mutual confidence. 101. As emerges from the foregoing, processing the EAW issued against Mr Popławski, in accordance with the procedure I have just described, nevertheless presupposes that the referring court must be able to interpret its domestic law in conformity with Framework Decision 2002/584 and Framework Decision 2008/909. 102. Indeed, because framework decisions do not have direct effect, the national courts cannot apply them directly without the intermediary of domestic law. 103. I therefore have to envisage a situation in which the referring court finds itself unable to interpret its domestic law in conformity with Framework Decision 2002/584 and Framework Decision 2008/909 even though, in the light of what I have said above, that court can in my view reach an interpretation of that law in conformity with those framework decisions. I also note that the arguments in the request for a preliminary ruling and in the referring court’s order of 10 July 2008 bear out the referring court’s intention so far as possible to seek an interpretation of its domestic law in conformity with those framework decisions, in order to reconcile the aims of preventing impunity and of facilitating the social reinsertion of the sentenced person once the sentence has been served. 5. Disapplication of conflicting domestic law pursuant to the principle of the primacy of EU law 104. In general terms, I believe that, whilst framework decisions undeniably do not have direct effect, their effect on national law cannot however be reduced merely to an obligation on national authorities to interpret domestic law in conformity with EU law. 105. Indeed, it is important to understand that if a national provision intended to implement a framework decision cannot, despite the efforts of the competent national court, be interpreted so that it is in conformity with that framework decision, this means that the framework decision remains incompatible with domestic law, even though framework decisions are binding. This is fundamentally at odds with the principle of the primacy of EU law. From that perspective, the only way to resolve the contradiction in question is to require the competent national court to refrain from applying the national provision that conflicts with a framework decision. 106. Therefore if, ultimately, the exercise of interpreting Netherlands law in conformity with Framework Decision 2002/584 and Framework Decision 2008/909, which I invite the referring court to undertake, proves impossible, in particular because the interpretation reached would be contra legem, the obligation on national courts to ensure the complete effectiveness of those framework decisions (42) in my view requires the referring court to refrain from applying the national provisions that are contrary to them. 107. In his Opinions in Popławski (43) and in Lada, (44) Advocate General Bot set out the reasons why, according to him, even though framework decisions are not directly effective, it should be possible to rely on them in order to preclude application of national provisions that conflict with them. I agree with the reasoning set out in those opinions, to which I refer. (45) 108. I would add that the Court of Justice itself, in the Popławski judgment, seems not to have ruled out the possibility that a framework decision can give rise to an obligation on national courts to refrain from applying national provisions that are contrary to that framework decision. 109. Indeed, in that judgment the Court noted that ‘in accordance with [its] settled case-law, Member States must take all appropriate measures, whether general or particular, to ensure fulfilment of their obligations under a framework decision’. (46) 110. The Court of Justice then stated that ‘in particular, it is clear from [its] settled case-law, that the binding character of a framework decision places on national authorities, including national courts, an obligation to interpret national law in conformity with EU law.’ (47) 111. Although the Court in that way emphasised the obligation on national courts to interpret national law in conformity with EU law, in line with the precedence that it, in my view correctly, gives to the ability to rely on EU law in that way, the reminder that framework decisions are binding and mention of the fact that the binding effect of framework decisions results ‘in particular’ in an obligation on national courts to interpret national law in conformity with EU law, seems to me to leave the way open, where those courts cannot arrive at an interpretation of their domestic law in conformity with a framework decision, to their being bound to disapply domestic law. 112. Nor do I believe that accepting that a provision of a framework decision can be relied upon by or before a national court with a view to the disapplication of national law that conflicts with that framework decision means that the provision in question must satisfy the requirements in order to be capable of having direct effect, that is to say, that it must be sufficiently clear, precise and unconditional. 113. The present case also clearly illustrates the fact that such a requirement would undermine the binding nature of framework decisions, and the fact that, contrary to the Commission’s contention, there is indeed a genuine difference between direct effect and the fact that a framework decision can be relied upon with a view to the disapplication of national law that conflicts with it. 114. To my mind, Article 4(6) of Framework Decision 2002/584 does not in fact satisfy the requirements in order to have direct effect. I note, in that respect, that Article 4(6) sets out a ground for optional non-execution of the EAW, which implies, on the one hand, as is apparent from the case-law of the Court of Justice, that the Member States can choose whether or not to transpose that provision into domestic law (48) and, on the other, that the executing judicial authority must have a margin of discretion as to whether or not it is appropriate to refuse to execute the EAW. (49) 115. Accordingly, even if framework decisions were capable of having direct effect, in my view Article 4(6) of Framework Decision 2002/584 does not in any event have direct effect. In other words, a national court cannot under any circumstances apply that article directly irrespective of or instead of the national rule that implements it. This means that, if a national rule does not correctly implement Article 4(6) of Framework Decision 2002/584 and it proves impossible to interpret that national rule in a manner in conformity with Article 4(6), the national court must — only — refrain from applying that national rule, and its doing so will under no circumstances have the effect of applying Article 4(6) of Framework Decision 2002/584 instead of that rule. 116. Under those circumstances and since nothing here calls into question the prohibition on the direct effect of framework decisions that the drafters of the Treaties intended, I believe that denying that Article 4(6) of Framework Decision 2002/584 can have the effect of ousting conflicting national law amounts purely and simply to allowing the Member States to implement incorrectly a ground for non-execution of the EAW and to undermining the requirement that framework decisions be applied uniformly within the European Union, and the principles of mutual trust and recognition. (50) To my mind, an area of freedom, security and justice can only be constructed if the incorrect application of EU law can be effectively neutralised by the national courts which, it should be recalled, play a primordial role in that regard. 117. I would emphasise, furthermore, that the Court of Justice’s most recent case-law on the effects that directives have on national law corroborates the thesis that direct effect must be distinguished from the ousting effect of directives, which is a consequence of the principle of the primacy of EU law. Accordingly, in its judgment of 4 October 2018, Link Logistik N&N, (51) the Court found, initially, that a provision of a directive did not satisfy the requirements in order to have direct effect, (52) but that fact did not prevent it, subsequently, from holding, in relation to the same provision, that ‘if … an interpretation [in conformity with EU law] is not possible the national court must fully apply EU law and protect the rights which EU law confers on individuals, disapplying if necessary any [national] provision in so far as its application would, in the circumstances of the case, lead to a result contrary to EU law’. (53) 118. I will now indicate what the consequences would be of refraining from applying Article 6(2), (3) and (5) of the OLW, to the extent that it conflicts with Article 4(6) of Framework Decision 2002/584. 119. If the referring court refrains from applying Article 6(2), (3) and (5) of the OLW the effect will be, in the absence in national law of any ground for optional non-execution corresponding to Article 4(6) of Framework Decision 2002/584, that the EAW issued on 7 October 2013 against Mr Popławski by the Sąd Rejonowy w Poznaniu (Poznań Regional Court) for execution of the sentence imposed by that court must be executed. At the hearing, the public prosecutor, in particular, confirmed that there is indeed a basis in Netherlands legislation for surrendering Mr Popławski. 120. I would emphasise in that respect that, in the Popławski judgment, the Court of Justice stated very clearly that ‘where the conditions laid down in Article 4(6) of Framework Decision 2002/584 have not been satisfied, Article 1(2) of that framework decision requires Member States to execute any EAW on the basis of the principle of mutual recognition.’ (54) That statement would be meaningless if national legislation incorrectly transposing Article 4(6) of Framework Decision 2002/584 and that cannot be interpreted in a manner in conformity with that article could present an immovable obstacle to execution of an EAW. In other words, in such a situation, I can see no way of complying with the rule that the EAW must, in principle, be executed other than by the executing judicial authority disapplying such national legislation. 121. I note in that regard that, as the Court of Justice has also recently stated, ‘the principle of mutual recognition is applied in Article 1(2) of [Framework Decision 2002/584], which lays down the rule that Member States are required to execute any [EAW] on the basis of the principle of mutual recognition and in accordance with the provisions of [that] Framework Decision. Executing judicial authorities may therefore, in principle, refuse to execute such a warrant only on the grounds for non-execution exhaustively listed in [that] Framework Decision. Accordingly, while execution of the [EAW] constitutes the rule, refusal to execute is intended to be an exception which must be interpreted strictly’. (55) 122. The solution proposed by the Kingdom of the Netherlands, that of waiting until the national legislation is amended, is therefore unacceptable. Nor, moreover, have I discovered any reason concerning legal certainty that could prevent the referring court from ensuring the complete effectiveness of Framework Decision 2002/584. I would add that the Commission’s argument that Article 6(2), (3) and (5) of the OLW cannot be disapplied in so far as doing so would be to the detriment of the person concerned is, to my mind, irrelevant. Indeed, in the light of the case-law I have just set out, such a consideration cannot prevent execution of an EAW where the national court cannot rely on a ground for optional non-execution in conformity with Framework Decision 2002/584. 123. Furthermore, I would note that, as this Court held in the Popławski judgment, ‘the national court’s obligation to ensure the complete effectiveness of [that Framework Decision] … has no bearing on the determination of Mr Popławski’s criminal liability which stems from the judgment pronounced against him on 5 February 2007 by the Sąd Rejonowy w Poznaniu (District Court, Poznań) and, a fortiori, cannot be regarded as aggravating that liability’. (56) 124. The only consequence of refraining from applying Article 5:2(3) of the WETS, in the event that it proved impossible to interpret the Netherlands legislation in accordance with Framework Decision 2008/909, would be to remove a limitation on the application ratione temporis of the national rules adopted to implement that framework decision. I would emphasise here that a solution consisting of denying that the referring court is authorised to remove such a time limit would amount to prolonging the effects of the declaration that the Kingdom of the Netherlands made under Article 28(2) of Framework Decision 2008/909, whereas that declaration has been withdrawn and, in any event, probably had no legal effects. (57) 125. In the light of the foregoing, I therefore propose in answer to the first question that a national court that is unable to interpret national provisions adopted to implement a framework decision in a manner that leads to an outcome in conformity with that framework decision must, in accordance with the principle of the primacy of EU law, disapply those provisions not in conformity with that framework decision. IV. Conclusion 126. In the light of all the foregoing, I suggest that the Court of Justice should reply as follows to the questions referred by the Rechtbank Amsterdam (District Court, Amsterdam, Netherlands) for a preliminary ruling: (1) Where a Member State’s declaration concerning Article 28 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 was made after that framework decision was adopted, contrary to the requirement in Article 28(2) of that framework decision, that declaration is not capable of having legal effects. (2) A national court with jurisdiction to rule on execution of a European arrest warrant that intends to rely on the ground for optional non-execution under Article 4(6) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European Arrest Warrant and the surrender procedures between Member States must, taking the whole body of domestic law into consideration and applying the interpretative methods recognised by it, interpret the national provisions adopted to implement that framework decision and Framework Decision 2008/909, to the fullest extent possible, in a manner such as to reconcile the aims of combating impunity and of facilitating the social reinsertion of sentenced persons. (3) A national court that is unable to interpret national provisions adopted to implement a framework decision in a way that leads to an outcome in conformity with that framework decision must, in accordance with the principle of the primacy of EU law, disapply those provisions not in conformity with that framework decision. 1 Original language: French. 2 C‑579/15, EU:C:2017:503, ‘the Popławski judgment’. 3 OJ 2002 L 190, p. 1. 4 OJ 2008 L 327, p. 27. 5 Stb. 2004, No 195, ‘the OLW’. 6 Stb. 2012, No 333, ‘the WETS’. 7 Stb. 1986, No 593. 8 It is common ground that Mr Popławski has proven that he has resided legally and uninterruptedly in the Netherlands for at least five years. 9 Paragraph 24 of that judgment. 10 Paragraph 43 of that judgment. 11 Paragraph 43 of that judgment. 12 See paragraph 42 of that judgment. 13 C‑582/15, EU:C:2016:766. 14 See points 21 to 29 of that Opinion. 15 C‑582/15, EU:C:2017:37. 16 OJ 2018 L 163, p. 19. 17 C‑579/15, EU:C:2017:116. 18 See points 54 and 55 of his Opinion. 19 See, by analogy, on the validity of the declaration made by the Kingdom of the Netherlands, Opinion of Advocate General Bot in van Vemde (C‑582/15, EU:C:2016:766, points 21 to 29). 20 OJ 2011 L 146, p. 21. See, in that regard, the Commission’s observations in Popławski (C‑579/15) (footnote 7, p. 12). 21 I would have to make the same finding in relation to the declaration by the Kingdom of the Netherlands had it not been withdrawn. 22 See the Popławski judgment (paragraph 20). 23 See the Popławski judgment (paragraph 21 and the case-law cited). 24 See the Popławski judgment (paragraph 23). 25 See the Popławski judgment (paragraph 22). 26 See the Popławski judgment (paragraph 23). 27 See the Popławski judgment (paragraph 24). 28 See, amongst others, the Popławski judgment (paragraph 31 and the case-law cited). 29 See, amongst others, the Popławski judgment (paragraph 32 and the case-law cited). 30 See, amongst others, the Popławski judgment (paragraph 33 and the case-law cited). 31 See, amongst others, the Popławski judgment (paragraph 34 and the case-law cited). 32 See, amongst others, the Popławski judgment (paragraph 35 and the case-law cited). 33 See, amongst others, the Popławski judgment (paragraph 36 and the case-law cited). 34 My italics. 35 See, amongst others, the Popławski judgment (paragraph 39 and the case-law cited). 36 See, amongst others, the Popławski judgment (paragraph 40 and the case-law cited). 37 See, amongst others, the Popławski judgment (paragraph 21). 38 See, amongst others, judgment of 17 April 2018, B and Vomero (C‑316/16 and C‑424/16, EU:C:2018:256, paragraph 75 and the case-law cited). 39 See, in the same vein, the Opinion of Advocate General Bot in Sut (C‑514/17, EU:C:2018:672), in which he states that Article 25 of Framework Decision 2008/909 attests the EU legislature’s intention that Framework Decision 2008/909 should not have the effect of ‘diminishing the spirit and force of the [EAW] mechanism established by Framework Decision 2002/584’ (point 36, see, also, point 81). 40 See judgment of 11 January 2017, Grundza (C‑289/15, EU:C:2017:4, paragraph 40). My italics. 41 See, amongst others, judgment of 11 January 2017, Grundza (C‑289/15, EU:C:2017:4, paragraph 41 and the case-law cited). 42 See the Popławski judgment (paragraph 37). 43 C‑579/15, EU:C:2017:116. 44 C‑390/16, EU:C:2018:65. 45 See Opinion of Advocate General Bot in Popławski (C‑579/15, EU:C:2017:116, points 76 to 91) and in Lada (C‑390/16, EU:C:2018:65, points 106 to 118). 46 See the Popławski judgment (paragraph 30 and the case-law cited). 47 See the Popławski judgment (paragraph 31 and the case-law cited). 48 See, in that respect, judgment of 5 September 2012, Lopes Da Silva Jorge (C‑42/11, EU:C:2012:517, paragraph 35), and the Popławski judgment (paragraph 21). 49 See the Popławski judgment (paragraphs 21 and 23). 50 I would observe, in that respect, that the Court of Justice, in its judgment of 26 February 2013, Melloni (C‑399/11, EU:C:2013:107), held that ‘allowing a Member State … to make the surrender of a person convicted in absentia conditional upon the conviction being open to review in the issuing Member State, a possibility not provided for under [Council Framework Decision 2009/299/JHA of 26 February 2009 amending Framework Decisions 2002/584/JHA, 2005/214/JHA, 2006/783/JHA, 2008/909/JHA and 2008/947/JHA, thereby enhancing the procedural rights of persons and fostering the application of the principle of mutual recognition to decisions rendered in the absence of the person concerned at the trial (OJ 2009 L 81, p. 24)], … would undermine the principles of mutual trust and recognition which that decision purports to uphold and would, therefore, compromise the efficacy of that framework decision’ (paragraph 63). 51 C‑384/17, EU:C:2018:810. 52 See paragraph 56 of that judgment. 53 See paragraph 61 of that judgment. Paragraph 62 of the same judgment shows very clearly the distinction between direct effect, on the one hand, and an interpretation in conformity with EU law and the ousting effect, on the other. 54 See the Popławski judgment (paragraph 29). 55 See judgment of 19 September 2018, R O (C‑327/18 PPU, EU:C:2018:733, paragraph 37 and the case-law cited). See also the Popławski judgment (paragraph 19). 56 See the Popławski judgment (paragraph 37). 57 I refer, on that point, to the Opinion of Advocate General Bot in van Vemde (C-582/15, EU:C:2016:766, points 21 to 29).