Opinion of the Advocate General — ECLI:EU:C:2025:420
Date: 2025-06-05
Language of the case: Portuguese
Procedure: Reference for a preliminary ruling
Origin: Portugal

Translation  C-215/24 – 1 
Case C-215/24 [Fira] i 
Request for a preliminary ruling 
Date lodged:  
20 March 2024 
Referring court:  
Tribunal Judicial da Comarca do Porto – Juízo Local Criminal de 
Vila Nova de Gaia (Portugal) 
Date of the decision to refer:  
19 March 2024 
Applicant:  
Ministério Público 
Defendant:  
YX 
  
Tribunal Judicial da Comarca do Porto (District Court, Oporto, Portugal) 
Juízo Local Criminal de Vila Nova de Gaia (Local Criminal Court, Vila Nova 
de Gaia, Portugal ) – Juiz 2 (Judge No 2) 
Ordinary procedure (Single Judge) 
1 Judge No 2 from the Juízo Local Criminal de Vila Nova de Gaia (Local Criminal 
Court, Vila Nova de Gaia, Portugal) within the Tribunal Judicial da Comarca do 
Porto (District Court, Oporto, Portugal) has submitted the present request for a 
preliminary ruling in criminal proceedings No 4860/13.7TB VNG brought by the 
Ministério Público (Office of the Public Prosecutor), which resulted in the 
conviction of YX […]. 
I. Introduction 
2 On 9 October 2018, YX was sentenced to six months’ imprisonment, replaced by 
a sentence of 180 day-fines, for having committed the offence of tax fraud 
 
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 
REQUEST FOR A PRELIMINARY RULING OF 19. 3. 2024 – CASE C-215/24 
 
2  
established and sanctioned – at the time of the events – by Article 23(1) and (4) of 
Decreto-Lei n.º 20-A/90 (Decree-Law No 20-A/90) of 15 January 1990. This 
decision can be explained by the fact that Portuguese law requires a balancing of 
interests and an analysis of the appropriateness of imposing an alternative 
sentence when an individual is given a custodial sentence that meets the formal 
requirements for such an alternative sentence and is likely, in abstracto, to be the 
subject of such a decision. Alternative sentences include, in particular, sentencing 
in the form of fines, as provided for in Article 45 of the Portuguese Criminal 
Code: ‘1. If a prison sentence of up to one year is imposed, this sentence shall be 
replaced by a fine or another applicable non-custodial sentence, unless the need 
to prevent future offences being committed requires that the prison sentence be 
served.’ 
3 As the fine had not been paid, the enforcement of the principal sentence of six 
months’ imprisonment was ordered in accordance with Article 45(2) of the 
Portuguese Criminal Code, which provides that ‘if the fine is not paid, the 
convicted individual shall serve the prison sentence imposed in the judgment. The 
provisions of Article 49(3) of that Code shall apply by analogy’. 
4 Article 49(3) of the Portuguese Criminal Code states that: ‘Enforcement of the 
alternative prison sentence may be suspended, for a period of one to three years, 
if the convicted individual demonstrates that the fine has not been paid for 
reasons for which he or she is not responsible, provided that this suspension is 
contingent upon fulfilment of obligations or rules of conduct that are not 
economic or financial in nature. The alternative prison sentence shall be served if 
the obligations or rules of conduct are not fulfilled, and shall be declared 
extinguished if they have been fulfilled.’ 
5 Because the convicted individual YX did not prove that the non-payment of the 
fine was not his fault, the court revoked the alternative sentence and ordered that 
the custodial sentence be served by issuing the corresponding arrest warrants. 
6 However, this warrant could not be served because the individual concerned went 
abroad, which led to him being declared a fugitive from justice for the purposes of 
the sentence imposed. 
7 Steps taken to locate the individual concerned revealed that he was living in 
Spain. 
8 A European arrest warrant (‘EAW’) was then issued on 22 February 2022 with a 
view to obtaining the surrender of the individual concerned, so that he could serve 
the six-month custodial term to which he had been sentenced. 
9 When this EAW was served, the Spanish judicial authorities refused to surrender 
the individual concerned on the grounds that he was legally resident in Spain and 
wished to serve his sentence in that country, but undertook to recognise the 
(Portuguese) sentence handed down and to enforce it in Spain. 
FIRA 
 
3 
10 In this respect, the Spanish authorities have complied with Article 4 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 2008 L 327, p. 27, ‘Framework 
Decision 2008/909’), issuing a declaration in which they state that they recognise 
the sentence imposed by the Portuguese court, thus preventing the impunity of the 
convicted individual. 
11 However, on 11 October 2023, in accordance with Article 80 of the Spanish 
Criminal Code, which allows the court to impose a suspended sentence of 
between two and five years in the case of a custodial sentence of less than two 
years in criminal proceedings under Spanish law, the Juzgado Central de lo Penal 
n.° 1 de Madrid (Central Criminal Court No 1, Madrid, Spain) suspended for a 
period of two years the enforcement of the sentence of six months’ imprisonment 
imposed on YX for having committed the offence in question. 
12 As the Portuguese Public Prosecutor’s Office could not agree with the Spanish 
court’s decision, that office requested that a question be referred to the Court of 
Justice of the European Union for a preliminary ruling on the following grounds: 
II. Grounds 
13 The provisions of Framework Decision 2008/909 and of Council Framework 
Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the 
surrender procedures between Member States – Statements made by certain 
Member States on the adoption of the Framework Decision (OJ 2002 L 190, p. 1, 
‘Framework Decision 2002/584’) are applicable to the present case. 
14 According to the Court’s settled case-law, a framework decision is binding on 
national authorities, including national courts, even if it has no direct effect, 
imposing on national courts an obligation to interpret national law in conformity 
with EU law. When those courts apply domestic law, they are therefore bound to 
interpret it in the light of the wording and the purpose of the framework decision 
concerned (judgments of 29 June 2017, Popławski, C-579/15, EU:C:2017:503, 
paragraph 31, and of 8 November 2016, Ognyanov, C-554/14, EU:C:2016:835, 
paragraphs 62 to 64). 
15 Furthermore, in interpreting a provision of EU law, it is necessary to consider not 
only its wording but also the context in which it occurs and the objectives pursued 
by the rules of which it is part (judgment of 16 July 2015, Lanigan, 
C-237/15 PPU, EU:C:2015:474, paragraph 35). 
16 According to Article 1(2) of Framework Decision 2002/584, 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. 
REQUEST FOR A PRELIMINARY RULING OF 19. 3. 2024 – CASE C-215/24 
 
4  
17 Article 4(6) of Framework Decision 2002/584 lays down a ground for optional 
non-execution of a European arrest warrant whereby the executing judicial 
authority may refuse to execute such a warrant that has been issued for the 
purposes of executing a custodial sentence, where the requested person ‘is staying 
in, or is a national or a resident of, the executing Member State’ and that State 
undertakes to ensure that that sentence is enforced in accordance with its domestic 
law. 
18 Furthermore, Article 25 of Framework Decision 2008/909 states that the 
provisions of that framework decision shall apply, to the extent they are 
compatible with the provisions of Framework Decision 2002/584, to enforcement 
of sentences in cases where a Member State undertakes to enforce the sentence in 
cases pursuant to Article 4(6) of that framework decision. In this case, the Spanish 
judicial authorities invoked the ground for optional non-execution of the EAW 
based on the fact that the requested person is resident in that country, and 
undertook to enforce the sentence. 
19 Article 8 of Framework Decision 2008/909 lays down the limited conditions 
under which the competent authority of the executing State may adapt the 
sentence imposed in the issuing State. In the light of the spirit and substance 
underlying this framework decision, these conditions appear to be the sole 
exceptions to the obligation imposed on the executing authority to recognise the 
judgment forwarded to it and to enforce the sentence, which is to correspond in its 
length and nature to the sentence imposed in the judgment delivered in the issuing 
State. 
20 This court considers that the executing State cannot retroactively modify the 
decision of the court in the issuing State, ultimately substituting its own decision 
for that of the court that handed down the sentence. Consequently, the authority of 
the executing State that is competent to enforce the sentence cannot suspend 
enforcement, even if this possibility exists for domestic judgments. A decision to 
the contrary could undermine the objectives sought by Framework 
Decision 2008/909, including observance of the principle of mutual recognition, 
which is the cornerstone of judicial cooperation in criminal matters in the 
European Union. 
21 Indeed, the fact that a national court in the executing State grants a suspension of 
the actual custodial sentence (even though that suspension is in accordance with 
the provisions of its domestic law governing decisions of its courts) after having 
recognised the sentencing judgment delivered by a court in the [issuing] State, 
where the competent authorities of the issuing State have not suspended that 
sentence under their domestic law, would undermine the special mutual trust that 
the Member States have in each other’s judicial systems. 
22 This court considers that the Court of Justice recognised this impossibility, at least 
implicitly, in paragraph 65 of the judgment of 11 March 2020, SF (European 
arrest warrant – Guarantee of return to the executing State) (C-314/18, 
FIRA 
 
5 
EU:C:2020:191), which states that the provisions of Article 8 of Framework 
Decision 2008/909 lay down strict conditions governing the adaptation, by the 
competent authority of the executing State, of the sentence imposed in the issuing 
State, ‘those conditions being the sole exceptions to the obligation imposed on 
that authority, in principle, to recognise the judgment forwarded to it and to 
enforce the sentence, which is to correspond in its length and nature to the 
sentence imposed in the judgment delivered in the issuing State (see, to that effect, 
judgment of 8 November 2016, Ognyanov, C-554/14, EU:C:2016:835, 
paragraph 36)’. This position is also confirmed in paragraph 35 of the judgment 
of 15 April 2021, AV (Aggregate Sentence) (C-221/19, EU:C:2021:278). 
23 As the Court held in paragraph 2 of the operative part of the judgment of 
11 March 2020, SF (European arrest warrant – Guarantee of return to the 
executing State) (C-314/18, EU:C:2020:191): ‘Article 25 of Framework Decision 
2008/909, as amended by Framework Decision 2009/299, must be interpreted as 
meaning that, when the execution of a European arrest warrant issued for the 
purposes of criminal proceedings is subject to the condition set out in Article 5(3) 
of Framework Decision 2002/584, as amended by Framework Decision 2009/299, 
the executing Member State can, in order to enforce the execution of a custodial 
sentence or a detention order imposed in the issuing Member State on the person 
concerned, adapt the duration of that sentence or detention only within the strict 
conditions set out in Article 8(2) of Framework Decision 2008/909, as amended 
by Framework Decision 2009/299’. 
24 This court believes that the same reasoning must be followed in the present case. 
25 The adaptation or modification of the sentence by the competent authority of the 
Spanish court (by suspending the sentence) other than in the cases provided for in 
Article 8 of Framework Decision 2008/909, applicable by virtue of Article 25 of 
that decision, cannot be accepted since, if it were to be accepted, the principle of 
mutual recognition would be infringed. 
26 This court also considers that, although Article 17 of Framework 
Decision 2008/909 provides that the enforcement of a sentence is governed by the 
law of the executing State, it refers only to measures intended to ensure the 
material enforcement of a custodial sentence. There is no basis for interpreting the 
provisions of that article as meaning that its material scope includes a decision to 
suspend enforcement of a custodial sentence to which the requested person has 
been sentenced. 
27 In short, the Spanish court undertook to enforce the decision because it invoked its 
right to refuse to execute the EAW on the basis that the convicted individual was 
resident in Spain. Following that undertaking, the criminal conviction delivered by 
the Portuguese court was forwarded to it for recognition and enforcement, in 
accordance with Framework Decision 2008/909. The Spanish court may not 
invoke its domestic legislation to review or alter the nature of the sentence 
imposed on the sentenced individual other than in accordance with the conditions 
REQUEST FOR A PRELIMINARY RULING OF 19. 3. 2024 – CASE C-215/24 
 
6  
and limitations resulting from Articles 8(2) and (4), 17(2) and 19(2) of Framework 
Decision 2008/909/EC. 
28 As the Court of Justice held in the judgment of 29 June 2017, Popławski (C-79/15, 
EU:C:2017: 503, paragraph 22), any refusal to execute an EAW under Article 4(6) 
of Framework Decision 2002/584 presupposes an actual undertaking on the part 
of the executing Member State to execute the sentence imposed on the requested 
person in the issuing State, because any execution of an EAW must be preceded 
by the executing judicial authority’s examination of whether it is actually possible 
to enforce the sentence. Consequently, if the executing Member State is not able 
to guarantee that the sentence will be enforced, it is required to avoid the impunity 
of the requested person and must execute the EAW by surrendering that individual 
to the issuing Member State. 
29 When Spain refused to execute the EAW, it therefore declared its willingness to 
take on the enforcement of the sentence in its entirety, without the possibility of 
transforming the custodial sentence into an alternative measure (as the strict 
conditions for doing so had not been met). Such a transformation would require 
the decision of the court in the issuing State to be modified, which Framework 
Decision 2008/909 does not allow. 
30 Furthermore, this court considers that, in accordance with the provisions of the 
abovementioned international instruments, the Spanish judicial authorities should 
in any event have informed the issuing State in advance of the possibility that the 
custodial sentence might be suspended, in order to allow the issuing State to 
respond in accordance with Articles 12 and 13 of the framework decision. 
* 
31 In the light of the foregoing, the factual framework at issue in the present case 
involves the application of rules of Union law. This context makes it difficult for 
this court to decide whether to pursue or close the case. Given this situation, it is 
essential that a detailed analysis of the facts and the relevant legal provisions be 
carried out. 
32 In accordance with Article 19(3)(b) of the Treaty of Lisbon, the Court of justice’s 
task is to ‘give preliminary rulings, at the request of courts or tribunals of the 
Member States, on the interpretation of Union law or the validity of acts adopted 
by the institutions’. 
33 Similarly, Article 267 TFEU provides that ‘the Court of Justice of the European 
Union shall have jurisdiction to give preliminary rulings concerning: […] (b) the 
validity and interpretation of acts of the institutions, bodies, offices or agencies of 
the Union’ and that ‘where such a question is raised before any court or tribunal 
of a Member State, that court or tribunal may, if it considers that a decision on the 
question is necessary to enable it to give judgment, request the Court to give a 
ruling thereon’. 
FIRA 
 
7 
34 Since the conditions laid down by Union law have been met, a preliminary ruling 
is, unless this court is mistaken, relevant and necessary in order to ensure its 
primacy. 
35 This case raises a reasonable doubt as to the interpretation and application of 
Union law, which has crucial consequences for the final outcome of the case. 
Referral to the Court of Justice of the European Union is therefore necessary in 
order to avoid divergent interpretations of the provisions of Union law in question. 
In addition, having consulted the national case-law and the case-law of the Court 
of Justice, this court considers that the question at issue does not appear to have 
been the subject of an in-depth analysis that could dispel the doubt raised and that 
the interpretation of the rules laid down still creates difficulties. 
36 The Court of Justice therefore has jurisdiction to give preliminary rulings on 
the interpretation of the Treaty and any court or tribunal of a Member State 
may, when such a question is raised before it, request that the Court give a 
ruling if it considers that a decision on the question is necessary to enable it to 
give judgment. This is the well-known mechanism of referral for preliminary 
rulings from national courts to European courts. The first and principal function of 
this mechanism is to obtain an interpretation and, through that interpretation, a 
uniform application of Union law in all the Member States so that its effectiveness 
is always the same. 
37 The decision to request a preliminary ruling rests solely with the court, which may 
do so of its own motion. Similarly, it is up to the judge to formulate the 
questions to be submitted to the Court of Justice. 
38 In the present case, this court considers that the Court’s reply is essential in order 
to decide on the next steps in the proceedings. 
III. QUESTIONS REFERRED FOR A PRELIMINARY RULING 
For these reasons, Judge No 2 from the Local Criminal Court in Vila Nova de 
Gaia (Portugal) within the Oporto District Court hereby decides to stay the 
proceedings until the Court of Justice of the European Union has given a 
preliminary ruling on the following questions, in accordance with the first 
paragraph of Article 267(b) TFEU: 
1. After having refused to execute a European arrest warrant pursuant to 
Article 4(6) of Framework Decision 2002/584 on the ground of the place of 
residence of the convicted individual, and after having recognised the 
sentencing judgment, may the executing State rely on the application of its 
domestic law and its jurisdiction as the executing State to suspend the actual 
custodial sentence imposed by the issuing State, when the procedure for 
enforcement of that judgment has already begun? 
REQUEST FOR A PRELIMINARY RULING OF 19. 3. 2024 – CASE C-215/24 
 
8  
2. May the judicial authority of the executing State amend the decision of 
the judicial authority of the issuing State where that decision has become res 
judicata, other than in the cases provided for in Article 8 and Article 17(1) 
and (2) of Framework Decision 2008/909? 
3. Should Article 17(1) of Framework Decision 2008/909 be interpreted as 
meaning that it allows the executing State to grant a suspension of the actual 
custodial sentence, by applying the conditions of its domestic law, where the 
competent authorities of the issuing State have not done so in accordance 
with their law? 
In the event that the previous questions are answered in the affirmative: 
4. In view of the provisions of Articles 12, 13 and 17(3) of Framework 
Decision 2008/909, should the Spanish judicial authorities (the executing 
State) have informed the issuing State in advance of their views on the 
possibility of suspending the custodial sentence imposed on the requested 
person? 
IV. URGENT PRELIMINARY RULING PROCEDURE 
Article 107(1) of the Rules of Procedure of the Court of Justice states as follows: 
‘1. A reference for a preliminary ruling which raises one or more questions in the 
areas covered by Title V of Part Three of the Treaty on the Functioning of the 
European Union may, at the request of the referring court or tribunal or, 
exceptionally, of the Court’s own motion, be dealt with under an urgent procedure 
derogating from the provisions of these Rules. 2. The referring court or tribunal 
shall set out the matters of fact and law which establish the urgency and justify the 
application of that exceptional procedure and shall, in so far as possible, indicate 
the answer that it proposes to the questions referred. […]’ 
There is no doubt that the case in question falls within the scope of Title V of Part 
Three of the Treaty on the Functioning of the European Union, and more 
specifically Chapter 4 thereof, entitled ‘Judicial Cooperation in Criminal Matters’. 
The article that opens this chapter – Article 82 TFEU – enshrines the principle of 
mutual recognition of judgments and judicial decisions between Member States. 
Furthermore, the present reference for a preliminary ruling arises in the context of 
a refusal to surrender in execution of an EAW in which the Spanish judicial 
authorities, having taken account of the convicted individual’s lawful residence in 
Spain and his wish to serve the sentence in that country, undertook to recognise 
and enforce the sentence handed down, but decided to apply their domestic law by 
suspending the sentence. The urgent procedure should therefore be applied, as the 
questions raised are crucial for the assessment of the convicted individual’s legal 
situation in the context of the ongoing proceedings. 
FIRA 
 
9 
Accordingly, this court proposes that the questions referred for a preliminary 
ruling should be answered as follows: 
1. This Court considers that the principle of mutual recognition means that a 
judicial decision taken by the judicial authorities of a Member State in accordance 
with its law may be directly enforced by the judicial authorities of another 
Member State with effects at least equivalent to those of a decision taken by a 
national judicial authority. In the event of a refusal to execute the EAW, as in the 
present case, the executing State is therefore required to agree to enforce the 
sentence under conditions identical to those under which it was enforced in the 
issuing State. 
2. The referring court considers that the question should be answered in the 
negative, since Articles 8 and 17(2) of Framework Decision 2008/909 lay down 
the strict circumstances in which the issuing State may adapt the sentence. Thus, 
‘the power to adapt the sentence can only be used very restrictively […] – because 
of the general objective of mutual recognition’, ‘which is, in the final analysis, to 
give a final decision full and direct effect throughout the Union, because 
recognising the effects of a foreign decision also means recognising it as valid 
where it concerns citizens – and appropriate, if account is taken of the mutual 
trust placed in each of the different legal and judicial systems, which is motivated 
by their legal and cultural proximity and by their common subordination to the 
protection of fundamental rights’ (judgment of the Third Chamber of the Supremo 
Tribunal de Justicia (Supreme Court, Portugal) of 13 April 2011, Case No 53/10.3 
YREVR.S2). 
3. Article 17 of Framework Decision 2008/909 should be interpreted as 
meaning that it does not allow the actual custodial sentence imposed in the issuing 
State to be modified by an alternative sentence, more specifically by suspension of 
the sentence on the basis of the requirements of the domestic law of the executing 
State, where the competent authorities of the issuing State have not done so in 
accordance with their law. 
4. With regard to the final question, this court considers that the preceding 
questions must be answered in the negative. However, in the event that the Court 
of Justice does not share that view, this court proposes to reply that the executing 
State should inform the issuing State of its views on the possibility of suspending 
the custodial sentence to which the defendant has been sentenced before adapting 
that sentence in accordance with its domestic law, under Article 12(1) and for the 
purposes of Articles 13 and 17(3) of Framework Decision 2008/909, since in that 
case the issuing State could either accept the application of those provisions or 
withdraw the certificate. 
[…] [Considerations relating to the national proceedings] 
* 
Vila Nova de Gaia, 
REQUEST FOR A PRELIMINARY RULING OF 19. 3. 2024 – CASE C-215/24 
 
10  
The Trainee Judge 
Done and electronically signed on 19 March 2024