Opinion of the Advocate General — ECLI:EU:C:2020:815
Date: 2020-10-08
Language of the case: Polish
Subject matter: Judicial cooperation in criminal matters;Police cooperation;Area of freedom, security and justice;Judicial cooperation in civil matters
Procedure: Reference for a preliminary ruling
Origin: Poland

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Translation C-221/19 — 1 
Case C-221/19 
Request for a preliminary ruling 
Date lodged: 
11 March 2019 
Referring court: 
Sąd Okręgowy w Gdańsku (Poland) 
Date of the decision to refer: 
15 February 2019 
Criminal proceedings against: 
AV 
  
EN 
REQUEST FOR A PRELIMINARY RULING OF 15 FEBRUARY 2019 — CASE C-221/19 
 
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Request for a preliminary ruling 
1. The following questions are referred to the Court of Justice of the European 
Union for a preliminary ruling pursuant to Article 267 of the Treaty on the 
Functioning of the European Union: 
a. Should Article 3(3) of Council Framework Decision 2008/675/JHA of 
24 July 2008 on taking account of convictions in the Member States of the 
European Union in the course of new criminal proceedings, which provides 
that the taking into account of previous convictions handed down in other 
Member States, as provided for in paragraph 1, shall not have the effect of 
interfering with, revoking or reviewing previous convictions or any decision 
relating to their execution by the Member State conducting the new 
proceedings, be interpreted as meaning that interference for the purposes of 
that provision is to be taken to mean not only the inclusion in an aggregate 
sentence of a conviction handed down by a judgment delivered in a State of 
the European Union but also the inclusion in the aggregate sentence of such 
a conviction which was taken over for execution in another State of the 
European Union, together with a conviction handed down in the latter State, 
within the framework of the aggregate sentence? 
b. In light of 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 which are laid down in Article 8(2) to (4) thereof and 
concern the principles of the exequatur procedure, and also in the light of 
Article 19(1) and (2) thereof – which provides that an amnesty or pardon 
may be granted by the issuing State and also by the executing State 
(paragraph 1); only the issuing State may decide on applications for review 
of the judgment imposing the sentence to be enforced under this Framework 
Decision (paragraph 2) – and of the first sentence of Article 17(1) thereof – 
which provides that the enforcement of a sentence is to be governed by the 
law of the executing State – is it possible to pass an aggregate sentence 
which would include the sentences imposed by a judgment delivered in a 
State of the European Union that was taken over for execution in another 
State of the European Union, together with a conviction handed down in the 
latter State, within the framework of the aggregate sentence? 
GROUNDS 
I. Legal framework.  
1. EU law: 
POMORSKI WYDZIAŁ ZAMIEJSCOWY DEPARTAMENT DO SPRAW PRZESTĘPCZOŚCI ZORGANIZOWANEJ I KORUPCJI PROKURATURY 
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a. Provisions of the Treaty on the Functioning of the European Union […] 
(‘the TFEU’): 
b. [Or. 2] Council Framework Decision 2008/675/JHA of 24 July 2008 on 
taking account of convictions in the Member States of the European Union 
in the course of new criminal proceedings (OJ 2008 L 220, p. 32); 
c. Council Framework Decision 2008/909/JHA of 27 November 2008 on the 
application of the principle of mutual recognition to judgments in criminal 
matters imposing custodial sentences or measures involving deprivation of 
liberty for the purpose of their enforcement in the European Union (OJ 2008 
L 327, p. 27). 
2. National law: 
a. Article 85(4) of the kodeks karny (Penal Code), which provides that 
aggregate sentences shall not extend to the sentences imposed by the 
judgments referred to in Article 114a of the Penal Code; 
Article 114a of the Penal Code, which provides: 
1. A final conviction for a criminal offence handed down by a court having 
jurisdiction in criminal matters in a Member State of the European Union 
is also a conviction, unless pursuant to Polish criminal law the act in 
question is not a criminal offence, the offender is not subject to punishment 
or a sentence not provided for in Polish criminal law has been handed 
down. 
2. In the event of a conviction by the court referred to in paragraph 1, in 
cases: 
(1) concerning application of a new criminal law which entered into force 
after the conviction; 
(2) concerning cancellation of the conviction in the criminal record, 
- the law of the place of conviction shall apply. Article 108 shall not apply. 
3. Paragraph 1 shall not apply if the information obtained from the criminal 
record or from a court of a Member State of the European Union is not 
sufficient to establish a conviction or the sentence imposed is liable to be 
remitted in the State where the conviction was handed down. 
II. The facts and the main proceedings 
On 31 July 2018, the Sąd Okręgowy w Gdańsku (Regional Court, Gdańsk) 
received an application from AV’s defence counsel requesting that an aggregate 
sentence be imposed on AV. 
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It follows from the convicted person’s current conviction record, the case files and 
the copies of judgments included in the present case file that in total he has been 
convicted by four individual judgments, of which three: 
- the judgment of the Sąd Rejonowy w Wejherowie (District Court, Wejherowo, 
Poland) of 23 October 1998 […]; 
- the judgment of the Regional Court, Gdańsk, of 24 February 2010 […]; 
- the judgment of the Sąd Rejonowy w Gdyni (District Court, Gdynia, Poland) of 
23 November 2011 […]; 
[Or. 3] were handed down by Polish courts, while one judgment, of the 
Landgericht Lüneburg (Regional Court, Lüneburg, Germany) of 15 February 2017 
[…], was handed down by a German court. 
In the course of the proceedings concerning the aggregate sentence, it was 
established that the judgment of the Regional Court, Lüneburg, of 15 February 
2017 […] was taken over for execution in Poland by the order of 12 January 2018 
[…] of the Regional Court, Gdańsk. In the order, the legal classification of AV’s 
offences under Polish law was indicated and it was also indicated that a total 
sentence of 5 years and 3 months’ imprisonment was to be executed; this sentence 
is identical in duration to that imposed by the judgment of the Regional Court, 
Lüneburg. 
Currently, the sentences to be enforced are as follows: 
- the sentence handed down by the Regional Court, Gdańsk […], which AV is to 
serve from 29 November 2021 until 30 March 2030; 
- the sentence handed down by the Regional Court, Lüneburg, of 15 February 
2017, which was taken over for execution in Poland by the order [of 12 January 
2018] […], which AV is serving from 1 September 2016 until 29 November 2021. 
In the application for an aggregate sentence to be imposed, AV’s defence counsel 
argued that, since the aforementioned German sentence had been taken over for 
execution in Poland, the conditions for an aggregate sentence to be imposed had 
been met. This would include the above sentence, with the shorter sentence being 
fully absorbed into the longer one. 
By decision of 5 November 2018, after evidence had been gathered, a hearing was 
set for 10 December 2018 at which the aggregate sentence would be passed. The 
prosecutor did not appear at that hearing. In addition, the defence counsel 
requested an adjournment in order to establish which institution had received the 
letter from AV containing his request that the time spent on remand in Poland and 
Germany be credited towards the aggregate sentence. Due to these circumstances, 
the court postponed the hearing until 10 January 2019. At the hearing on 
10 January 2019, the defence counsel applied for the admission of evidence from 
POMORSKI WYDZIAŁ ZAMIEJSCOWY DEPARTAMENT DO SPRAW PRZESTĘPCZOŚCI ZORGANIZOWANEJ I KORUPCJI PROKURATURY 
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the files in case IV K 228/13 concerning the fact that in that case the judgment 
handed down by a German court was taken over for execution in Poland and 
included in the aggregate sentence. 
The court included the aforementioned files in the evidence. It follows from those 
files that in its judgment of 29 January 2014, handed down in case IV K 228/13, 
the Regional Court, Gdańsk, aggregated with the judgment of the Polish court, 
inter alia, the custodial sentence of convict Z. K. imposed by judgment of the 
Landgericht Göttingen (Regional Court, Göttingen, Germany) of 13 March 2012, 
which was taken over for execution in Poland. 
That judgment was appealed against by Z. K.’s defence counsel. At the appeal 
hearing on 7 May 2014, the Sąd Apelacyjny w Gdańsku (Court of Appeal, 
Gdańsk), pursuant to Article 3 of the ustawa o Trybunale Konstytucyjnym (Law 
on the Constitutional Court), asked the Trybunał Konstytucyjny (Constitutional 
Court) whether Article 92a of the Penal Code, which prohibits the inclusion in an 
aggregate sentence of convictions handed down in other Member States of the 
European Union, is consistent with Article 32 [Or. 4] of the Konstytucja 
Rzeczypospolitej Polskiej (Constitution of the Republic of Poland) and Article 20 
of the Charter of Fundamental Rights of the European Union. As a result of 
amendments to the Penal Code, the question was modified by order of 29 July 
2015. 
In its order of 23 November 2016, the Court of Appeal decided not to hear the 
appeal lodged by the defence counsel, due to its withdrawal by the latter with the 
convict’s consent. As a result, in its order of 15 December 2016, the 
Constitutional Tribunal discontinued the proceedings in the case, since they were 
no longer relevant owing to the change in the procedural situation. 
The above means that the judgment in case IV K 228/13 is a final judgment and 
one of the aggregate sentences it imposes is a custodial sentence that includes a 
judgment of a German court (Regional Court, Göttingen) which was taken over 
for execution in Poland. 
At the hearing on 10 January 2019, the referring court postponed the judgment 
until 14 January 2019, and at that hearing it resumed court proceedings in order to 
consider referring a question for a preliminary ruling to the Court of Justice of the 
European Union. 
III. Admissibility of the question referred. 
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IV.  [Or. 5] Consideration of the question referred for a preliminary 
ruling. 
The referring court points out that the essence of the case before it is to determine 
the correct interpretation of the provisions of EU law as set out in the two 
aforementioned framework decisions: the issue is whether their content, including 
without limitation the provisions highlighted in the question referred, in fact 
precludes the inclusion in an aggregate sentence of sentences handed down in one 
State of the European Union and taken over for execution in another State of the 
European Union together with sentences handed down in that other State, where 
the convict serves the sentence taken over for execution within the framework of 
the aggregate sentence. This issue is not clear-cut and the Court has not ruled 
thereon to date. 
Article 85(4) of the Polish Penal Code sets out a condition which precludes an 
aggregate sentence from being passed — an aggregate sentence is not to extend to 
sentences imposed by the judgments referred to in Article 114a of the Penal Code, 
i.e. final convictions for an offence handed down by a court having jurisdiction in 
criminal matters in a Member State of the European Union. 
The aforementioned provision is equivalent to the solution which had been in 
force prior to the amendment of Article 92a of the Penal Code, whose function 
was subsequently taken over by Article 85(4) of the Penal Code. 
Article 92a of the Penal Code was introduced into the Polish legal order by the 
Law of 20 January 2011 and became effective as of 8 May 2011. It constitutes 
implementation by the Republic of Poland of Framework Decision […] 2008/675 
[…]. 
The explanatory memorandum to the draft law states that its purpose was to 
enable Polish courts to take into account in criminal proceedings convictions 
handed down in Member States of the European Union in respect of criminal 
offences committed by the offender. 
Pursuant to the ustawa z dnia 20 lutego 2015 roku o zmianie ustawy Kodeks karny 
oraz niektórych innych ustaw (Law of 20 February 2015 amending the Penal Code 
and certain other laws) […], Articles 92 to 93 of the Penal Code were repealed (by 
Article 1(54) of the Law of 20 February 2015). Article 1(46) of the 
aforementioned law introduced new regulations concerning the rules for passing 
aggregate sentences, giving a new wording to Article 85 of the Penal Code, 
paragraph 4 of which provides that aggregate sentences are not to extend to the 
convictions referred to in Article 114a of the Penal Code. Thus, the prohibition on 
giving such rulings remains in force as regards the inclusion in aggregate 
sentences of judgments handed down in Poland and in another State of the 
European Union. 
The referring court considers, first of all, that it is important to decide how 
Article 3(3) of Framework Decision […] 2008/675 […] should be interpreted with 
POMORSKI WYDZIAŁ ZAMIEJSCOWY DEPARTAMENT DO SPRAW PRZESTĘPCZOŚCI ZORGANIZOWANEJ I KORUPCJI PROKURATURY 
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respect to the possibility of passing an aggregate sentence that would include a 
sentence taken over for execution in another State of the European Union and a 
sentence passed in the executing State within the framework of an aggregate 
sentence. 
[Or. 6] The referring court has no doubt that the taking into account of 
convictions referred to in Framework Decision […] 2008/675 […] may not in any 
way lead to these convictions being interfered with, revoked or reviewed as laid 
down in Article 3(3) thereof in the sense that one State of the European Union has 
no power to interfere with a judgment issued in another State of the European 
Union. 
This also follows from recital 14 of Framework Decision […] 2008/675 […], 
which states that interference with a judgment or its execution covers, inter alia, 
situations where, according to the national law of the second Member State, the 
sanction imposed in a previous judgment is to be absorbed by or included in 
another sanction, which is then to be effectively executed, to the extent that the 
first sentence has not already been executed or its execution has not been 
transferred to the second Member State. This recital clearly distinguishes matters 
related to the execution of a sentence from sentencing (in the Member State 
concerned), which is always a matter for the State where the judgment is issued. 
However, the problem that arises in the present case is of a different nature. Once 
the exequatur procedure has been completed, a judgment which was handed down 
in a State of the European Union is no longer […] merely a judgment issued in 
another State of the European Union; it becomes the basis for all procedural 
decisions and decisions concerning execution which the courts in the State where 
it is to be executed are both entitled and obliged to make. It is precisely this issue 
which gives rise to doubts in connection with the procedure concerning the 
imposition of the aggregate sentence, since from the moment a sentence is taken 
over for execution in another State of the European Union, a new factual situation 
arises. The taking over results in the sentence which has been taken over 
becoming part of the national legal order, and it should be enforced in accordance 
with that order, as is also clear from Article 17(1) of Framework Decision […] 
2008/909 […]. 
Therefore, the question arises as to whether Article 3(3) of Framework Decision 
[…] 2008/675 […] only concerns judgments that are handed down and executed 
in one State of the European Union but have never been taken over for execution 
in another State of the European Union and as such are to be taken into account in 
the manner provided for in the provisions of the aforementioned decision, or 
whether it also covers judgments which have been taken over for execution in 
another State of the European Union. 
Framework Decision […] 2008/909 […] [Or. 7] includes an extensive procedural 
mechanism for taking over the execution of a custodial sentence. 
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Pursuant to Article 17(1) thereof, the enforcement of a sentence is governed by the 
law of the executing State, which means that if a judgment given in one State in 
the European Union has been transferred for execution to another State of the 
European Union, it becomes, pursuant to that provision, a judgment enforced 
under the law of that latter State, and hence it in fact becomes in a certain sense — 
with respect to its enforcement — a judgment governed by the law of that State. 
While the question of sentencing remains with the convicting State (which is in 
line with Article 3(3) of Framework Decision […] 2008/675 […]), the question of 
enforcement is fully transferred to the State where the sentence is to be enforced. 
In Article 8(2) to (4), Framework Decision […] 2008/909 […] lays down rules for 
the exequatur procedure from which it follows that, while in principle no 
interference with the transferred sentence is permitted, it may be reduced to the 
maximum penalty provided for in the national system or the nature of the penalty 
may be adapted in the case of discrepancies. 
Therefore, the question arises as to whether a modification of the duration of a 
sentence (or possibly its nature) under the exequatur procedure essentially 
constitutes a modification of the same type as under aggregate sentence 
proceedings, which de facto may also only modify the duration of the sentence. 
The referring court considers that a certain analogy may be drawn between the 
arrangement described in Article 8(2) to (4) of [Framework] Decision [2008/909] 
and an aggregate sentence, which does not interfere with the substance of 
individual judgments but only modifies the duration of the sentence. An aggregate 
sentence cannot be considered to constitute a much more far-reaching interference 
in a judgment taken over for execution, since it also merely modifies the duration 
of the sentence. 
It appears that the possibility of passing an aggregate sentence in such 
circumstances should be a natural consequence of taking over the sentence for 
execution: since such a sentence becomes part of the national legal order, there are 
no reasonable grounds for not combining the sentence already taken over for 
execution and adapted to the national law with another sentence or with other 
sentences served in the executing country. That would amount to a certain 
disregard for the principle of mutual recognition of judgments, especially since, 
given the nature of the aggregate sentence, it is appropriate to pass it as it 
constitutes a summed up assessment of the criminal activities of the offender in 
question and there are no reasonable grounds for leaving his criminal activities in 
another State of the European Union outside the scope of this assessment where a 
sentence is taken over for execution. 
[Or. 8] Under the principle of mutual recognition of judgments a foreign 
judgment should be treated as a national one, and hence, it would seem, passing 
an aggregate sentence in a situation where a sentence has been taken over for 
execution and is enforced according to the regulations in force in the executing 
POMORSKI WYDZIAŁ ZAMIEJSCOWY DEPARTAMENT DO SPRAW PRZESTĘPCZOŚCI ZORGANIZOWANEJ I KORUPCJI PROKURATURY 
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State would give full expression to this principle and contribute to building a 
common area of justice. 
One should also take note of Article 19 of Framework Decision […] 2008/909 
[…], which provides that, although only the issuing State may decide on 
applications for review of the judgment, which is reasonable and consistent with 
Article 3(3) of Framework Decision […] 2008/675 […], an amnesty or pardon 
may be granted by the issuing State and also by the executing State (Article 
19(1)). It is therefore a provision which gives broad powers to the executing State, 
and it appears beyond dispute that both the decisions mentioned (amnesty and 
pardon) may be much more far-reaching modifications of a court ruling (with 
respect to the sentence) than an aggregate sentence, and in fact they take place — 
similarly as in the case of an aggregate sentence —after the conviction has 
become final. 
As regards the very arrangement constituted by aggregate sentences, it should be 
pointed out that it is a special one, sitting on the border between substantive ruling 
and enforcement, since proceedings concerning the imposition of an aggregate 
sentence take place only after the convictions which are examined in terms of the 
possibility of combining the sentences imposed by them have become final. 
The aggregate sentence is not an arrangement peculiar to Polish law. There are 
other countries in the European Union which also have this arrangement in their 
legal systems. They include, inter alia, Italy (continuazione in esecuzione) and 
Germany, where the aggregate sentence (Gesamtstrafenurteil) is regulated in 
Articles 53 to 55 of the German Strafgesetzbuch (Penal Code). The arrangement 
has also been recognised in the case-law of the Court of Justice of the European 
Union, namely in the judgment of 10 August 2017 in Zdziaszek (C-271/17 PPU). 
An aggregate sentence is intended to ‘adjust’, in a manner of speaking, the legal 
response to the offences committed for which the offender could have potentially 
been sentenced in a single trial. Therefore, it serves to rationalise the penalties 
imposed. Not only does the passing of an aggregate sentence which includes the 
sentence taken over for execution not undermine the purpose of such proceedings 
concerning the imposition of an aggregate sentence, but, on the contrary, it serves 
this purpose. It should also be borne in mind that where the conditions for 
imposing an aggregate sentence are met, the imposition of such a sentence is 
mandatory. 
In the opinion of the referring court, the aggregate sentence does not interfere with 
any individual judgment in the sense that it does not undermine its essence, since 
the most important elements of the judgment such as the determination of guilt 
and of the offender remain unchanged. The main purpose of the aggregate 
sentence is to prevent the offender [Or. 9] from reoffending. The aggregate 
sentence should be an effective response which takes into account all of the 
offender’s criminal activities. In the eyes of the public, it is of a technical nature 
and does not arouse such strong feelings as sentencing for an individual crime. 
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Given this nature of the aggregate sentence, taking into account the sentences 
passed in States of the European Union and taken over for execution in another 
State of the European Union together with the sentences passed in the latter State 
within the framework of an aggregate sentence provides an opportunity to assess 
the criminal activity of an offender in its entirety and sums it up, which is 
desirable. It would certainly not be a distortion of the common area of justice, but 
would rather serve to reinforce mutual trust and the common area of justice at EU 
level. As already indicated, a sentence taken over for execution becomes part of 
the enforcement system of the State in which it is enforced and is fully subject to 
the regulations of that State. 
Summing up, it should be pointed out that Article 19(1) of the Treaty on European 
Union […] provides that Member States are to provide remedies sufficient to 
ensure effective legal protection in the fields covered by EU law. 
In the opinion of the referring court, one remedy which ensures effective legal 
protection is the possibility of imposing an aggregate sentence which includes 
convictions from various States of the European Union if these are taken over for 
execution in another State together with national judgments within the framework 
of the aggregate sentence, since effective protection precisely means the equal 
treatment of citizens in similar situations at EU level. Since a sentence taken over 
for execution becomes part of the legal order of the State in which it is to be 
enforced, just like a national judgment, the inability to pass an aggregate sentence 
in such a situation would mean that a citizen who has been convicted twice (or 
more) in one State would be in a better position than a citizen who has been 
convicted in different States of the European Union and his two (or more) 
sentences are being enforced in one State. 
The referring court considers that the case-law of the Court to date does not 
provide an answer to the questions raised in the case at issue. A ruling on the 
correct interpretation of the provisions of EU secondary law indicated in the 
request for a preliminary ruling is essential if the proceedings pending before the 
national court are to be resolved. 
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