Provisional text
OPINION OF ADVOCATE GENERAL
JEAN RICHARD DE LA TOUR
delivered on 18 September 2025 (1)
Case C‑95/24 [Khuzdar] (i)
ATAU
Criminal proceedings
the other party being
Procura generale presso la Corte d’appello di Napoli
(Request for a preliminary ruling from the Corte d’appello di Napoli (Court of Appeal, Naples, Italy))
( Reference for a preliminary ruling – Judicial cooperation in criminal matters – Framework Decision 2002/584/JHA – European arrest warrant – Surrender procedure between Member States – Grounds for optional non-execution – Article 4(6) – Undertaking by the executing Member State to enforce
the sentence
in accordance with its domestic law – Framework Decision 2008/909/JHA – Grounds for non-recognition and non-enforcement of the sentencing judgment – Article 9(1)(i) – Person who has not appeared in person at the trial resulting in the decision – Exceptions – Conditions relating to awareness of the scheduled trial – Information about the date and time set for the trial – Abscondment of the person concerned – Voluntary and unequivocal waiver by the person concerned of the right to be present at his or her trial – Discretion of the competent authority of the executing Member State – Obligation to interpret national law in conformity with EU law )
I.      Introduction
1.        The right to a fair trial is one of the basic principles in a democratic society. The right of suspects and accused persons to be present at the trial is based on that right and should be ensured throughout the European Union. (2) However, that right is not absolute. Under certain conditions, suspects and accused persons should be able, expressly or tacitly, but unequivocally, to waive that right. (3)
2.        In that context, the present request for a preliminary ruling concerns the interpretation of 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, (4) and of Article 9(1)(i) and Article 25
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, (5) as amended by Framework Decision 2009/299. (6)
3.        The request was made in proceedings relating to the enforcement, in Italy, of a judgment delivered in Slovakia imposing a custodial sentence on a person who absconded before his trial was held.
4.        The present case invites the Court, in particular, to clarify what is to be understood by the expression ‘being aware of the scheduled trial’, in Article 9(1)(i)(ii) of Framework Decision 2008/909, and the discretion which the competent authorities enjoy when implementing the ground for non-recognition and non-execution of a European arrest warrant, referred to in Article 9(1)(i) of that framework agreement. I would emphasise, in that regard, that there are certain differences between this case and that in Höldermann (C‑447/24), in which I also deliver my Opinion today. (7) In particular, unlike that case, the present case concerns the execution of a European arrest warrant.
II.    Legal framework
A.      European Union law
1.      Framework Decision 2002/584
5.        Article 4 of Framework Decision 2002/584, entitled ‘Grounds for optional non-execution of the European arrest warrant’, provides, in point 6 thereof:
‘The executing judicial authority may refuse to execute the European arrest warrant:
…
6.      if the European arrest warrant has been issued for the purposes of execution of a custodial sentence or detention order, where the requested person is staying in, or is a national or a resident of the executing Member State and that State undertakes to execute the sentence or detention order in accordance with its domestic law.’
6.        Article 4a of that framework decision, entitled ‘Decisions rendered following a trial at which the person did not appear in person’, provides, in paragraph 1:
‘The executing judicial authority may also refuse to execute the European arrest warrant issued for the purpose of executing a custodial sentence or a detention order if the person did not appear in person at the trial resulting in the decision, unless the European arrest warrant states that the person, in accordance with further procedural requirements defined in the national law of the issuing Member State:
(a)      in due time:
(i)      either was summoned in person and thereby informed of the scheduled date and place of the trial which resulted in the decision, or by other means actually received official information of the scheduled date and place of that trial in such a manner that it was unequivocally established that he or she was aware of the scheduled trial;
and
(ii)      was informed that a decision may be handed down if he or she does not appear for the trial;
or
(b)      being aware of the scheduled trial, had given a mandate to a legal counsellor, who was either appointed by the person concerned or by the State, to defend him or her at the trial, and was indeed defended by that counsellor at the trial;
or
(c)      after being served with the decision and being expressly informed about the right to a retrial, or an appeal, in which the person has the right to participate and which allows the merits of the case, including fresh evidence, to be re-examined, and which may lead to the original decision being reversed:
(i)      expressly stated that he or she does not contest the decision;
or
(ii)      did not request a retrial or appeal within the applicable time frame;
or
(d)      was not personally served with the decision but:
(i)      will be personally served with it without delay after the surrender and will be expressly informed of his or her right to a retrial, or an appeal, in which the person has the right to participate and which allows the merits of the case, including fresh evidence, to be re-examined, and which may lead to the original decision being reversed;
and
(ii)      will be informed of the time frame within which he or she has to request such a retrial or appeal, as mentioned in the relevant European arrest warrant.’
2.      Framework Decision 2008/909
7.        Article 9 of Framework Decision 2008/909, entitled ‘Grounds for non-recognition and non-enforcement’, provides, in paragraph 1(i) thereof:
‘The competent authority of the executing State may refuse to recognise the judgment and enforce the sentence, if:
…
(i)      according to the certificate provided for in Article 4, the person did not appear in person at the trial resulting in the decision, unless the certificate states that the person, in accordance with further procedural requirements defined in the national law of the issuing State:
(i)      in due time:
–        either was summoned in person and thereby informed of the scheduled date and place of the trial which resulted in the decision, or by other means actually received official information of the scheduled date and place of that trial in such a manner that it was unequivocally established that he or she was aware of the scheduled trial,
and
–        was informed that a decision may be handed down if he or she does not appear for the trial;
or
(ii)      being aware of the scheduled trial had given a mandate to a legal counsellor, who was either appointed by the person concerned or by the State, to defend him or her at the trial, and was indeed defended by that counsellor at the trial;
or
(iii)      after being served with the decision and being expressly informed of the right to a retrial, or an appeal, in which the person has the right to participate and which allows the merits of the case, including fresh evidence, to be re-examined, and which may lead to the original decision being reversed:
–        expressly stated that he or she does not contest the decision,
or
–        did not request a retrial or appeal within the applicable time frame.’
8.        Article 25 of that framework decision is worded as follows:
‘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 that Framework Decision, 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.’
B.      Italian law
9.        Article 6(1a)(b) of legge n. 69 – Disposizioni per conformare il diritto interno alla decisione quadro 2002/584/GAI del Consiglio, del 13 giugno 2002, relativa al mandato d’arresto europeo e alle procedure di consegna tra Stati membri (Law No 69,
provisions to bring national law into line with Council Framework Decision
[2002/584]), (8) of 22 April 2005, in the version applicable in the main proceedings, provides:
‘Where issued for the purposes of executing a custodial sentence or a custodial measure adopted following a trial at which the person concerned did not appear in person, the European arrest warrant must … contain an indication of at least one of the following conditions:
…
(b)      the person concerned, having been informed of the proceedings against him or her, was represented in the trial resulting in the aforementioned
decision by a legal counsellor, appointed either by the person concerned or by the State’.
10.      Under
Article 18a(2) of that law:
‘Where the European arrest warrant has been issued for the purposes of execution of a custodial sentence or a detention order, the corte d’appello [court of appeal, Italy]
may refuse the surrender of the Italian citizen or of a person who has been lawfully and actually resident or staying in Italian territory continuously for at least five years …
provided that it orders such custodial sentence or detention to be executed in Italy in accordance with its domestic law.’
11.      Article 13 of Decreto legislativo n. 161 – Disposizioni per conformare il diritto interno alla Decisione quadro 2008/909/GAI relativa all’applicazione del principio del reciproco riconoscimento alle sentenze penali che irrogano pene detentive o misure privative della libertà personale, ai fini della loro esecuzione nell’Unione europea (Legislative Decree No 161/2010 laying down provisions to bring domestic law into line with Council Framework Decision [2008/909]), (9) of 7 September 2010, in the version applicable in the main proceedings (‘Legislative Decree No 161/2010’), provides, in paragraph 1(i) thereof:
‘The appeal court shall refuse to recognise the sentencing judgment in one of the following cases:
…
(i)      where the person concerned did not appear in person at the trial resulting in the judgment to be enforced, unless the certificate states:
(1)      either that he or she was notified in person in due time and was thus informed of the date and place set for the trial or where he or she was officially notified by other means, of such a kind as to establish unequivocally that he or she was aware of the date and place of the trial and was informed that a decision could be rendered in the event of non-appearance; or that
(2)      being aware of the date set for the trial, he or she gave a mandate to a legal counsellor, appointed
either by the person concerned or by the State, by whom he or she was actually defended during the trial; or that
(3)      after being notified of the decision and having been expressly informed of his or her right to a retrial or to an appeal, in which the person concerned has the right to participate which allows the merits of the case, including fresh evidence, to be re-examined, he or she expressly stated that he or she did not dispute the decision or did not request a retrial or an appeal within the period prescribed for that purpose.’
12.      Article 24 of Legislative Decree No 161/2010 provides that, where the appeal court refuses the surrender requested by means of a European arrest warrant based on a criminal conviction and orders that the sentence
be enforced
in Italian territory, it must at the same time recognise, for the purposes of such enforcement in Italy, the foreign criminal conviction that forms the basis of the European arrest warrant, where the relevant conditions are satisfied.
III. The facts of the main proceedings and the questions referred for a preliminary ruling
13.      On 5 October 2015, the Okresný súd Dunajská Streda (District Court, Dunajská Streda, Slovakia) issued a European arrest warrant for the purposes of the enforcement of a judgment delivered by that court on 23 August 2010, (10) convicting
ATAU
and sentencing him to five years’ imprisonment. ATAU was located and arrested in Italy on 19 June 2023.
14.      The Corte d’appello di Napoli (Court of Appeal, Naples, Italy), the referring court, is required to examine the request for surrender submitted by the Slovakian judicial authorities by means of that European arrest warrant. It states that it has lifted the
precautionary coercive measure of house arrest imposed on ATAU on 20 June 2023.
15.      During the proceedings before the referring court, ATAU stated
and proved that he had been actually and lawfully resident in Italy for more than five years. He therefore asked the court to refuse to surrender him and, by recognising the judgment of 23 August 2010, order that his sentence be served in Italy.
16.      In order to assess that request, the referring court requested that the Slovakian authorities supplement the certificate previously sent, by specifying the procedural safeguards applied to ATAU.
17.      By letter of 2 November 2023, the Okresný súd Dunajská Streda (District Court, Dunajská Streda) replied that ATAU had not personally participated in the proceedings resulting in the judgment of 23 August 2010. However, he had been assisted and represented by a lawyer during the proceedings. Furthermore, although he had never been informed of the date and place of the forthcoming trial, he was aware of the proceedings pending against him. In fact, he had been arrested and placed in pre-trial detention in Slovakia on 28 September 2009 for the same offence, then, on 15 December 2009, he had been released and placed in a refugee camp in Slovakian territory. He had then absconded, had not returned and had not elected an address for service, and it had therefore not been possible to inform him of the date and place set for the trial or of the fact that the decision would be handed down even if he failed to appear.
18.      The referring court explains, first, that under Italian law, where the appeal court
decides to refuse a surrender and orders that a foreign judgment be enforced in Italy, it must recognise that judgment, which it can do only where the conditions of such
recognition are satisfied. In this instance, that is not the case. The referring court observes that ATAU did not receive the information referred to in Article 13(1)(i) of Legislative Decree No 161/2010, in particular the date and place set for his trial.
19.      Second, the referring court states that, in Italian law, the surrender of the convicted person, on the basis of a European arrest warrant, is accepted on the sole condition that that person was informed that a trial was pending against him or her and that he or she was represented by a legal counsellor at that
trial. Conversely, recognition of a sentencing judgment in Italy is accepted on the stricter condition that the person convicted, assisted by a legal counsellor, was informed of the date set for the trial.
20.      Consequently, it follows from Italian law that ATAU could be surrendered to the Slovakian authorities, because he was informed that a trial was pending against him and was assisted by a legal counsellor, but that, although he has been actually resident in Italian territory for more than five years and had requested that he serve his sentence in Italy, it would not be possible to refuse to surrender him and order that he serve his sentence in Italian territory because he was not informed of the date set for the trial.
21.      According to the referring court, that would have the consequence, paradoxically, that the fact that the procedural safeguard provided for the convicted person as regards the recognition of a sentencing judgment
is greater than that provided for that person as regards his surrender in execution of a European arrest warrant operates against that person instead of in his or her favour. The distinction in Italian law leads, moreover, to the paradoxical conclusion that the same sentencing judgment cannot be recognised in Italy for the purposes of its enforcement, although it may give rise to a European arrest warrant that would have to be executed.
22.      The referring court therefore asks
whether EU law may be interpreted as meaning that the surrender may be refused, following recognition of the judgment, in order for the sentence
to be served in the executing Member State, even though the procedural safeguard provided for such recognition (being informed of the date set for the trial) was not afforded, but that the procedural safeguard provided for the surrender under the European arrest warrant (being informed that a trial is pending) was afforded.
23.      In addition, the referring court notes that Italian law, in particular Article 13(1)(i) of Legislative Decree No 161/2010, provides that, where the convicted person was not informed of the date of the trial, the national court ‘shall refuse to recognise’ (11) the judgment. Conversely, EU law, in particular Article 9(1)(i) of Framework Decision 2008/909, provides that, in such a case, the court of the executing State ‘may refuse to recognise’ (12) the judgment. Consequently, even though, under Italian law, the court of appeal would be required to refuse to recognise the judgment, under EU law the court of appeal would have the possibility, but not the obligation, to refuse such recognition.
24.      Thus, in the present case, under
Italian law, it would not be possible to recognise the judgment of 23 August 2010 for the purposes of enforcement
in Italy because ATAU was not informed of the date set for the trial, so that the referring court would have to surrender him to the Slovak Republic, even though he is entitled to serve his sentence in Italy and has requested to do so. Conversely, under
EU law, the referring court would have discretion as to whether or not to recognise the foreign sentencing judgment
and to refuse the surrender and order that the sentence be served in Italy.
25.      In those circumstances, the Corte d’appello di Napoli (Court of Appeal, Naples) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘Must the combined provisions of Article 4(6) of Framework Decision [2002/584] [and of] Article 9(1)(i) and Article 25 of Framework Decision [2008/909] be interpreted as meaning that:
(a)      the court of the executing Member State, requested to recognise a foreign criminal conviction, has discretionary power, not the obligation, to refuse recognition of the judgment, where it appears that the trial resulting in that judgment has not afforded the defendant any of the procedural safeguards provided for in Article 9(1)(i) of Framework Decision [2008/909];
(b)      the court of the executing Member State, requested to order the surrender based on a European arrest warrant issued to enforce a judgment, when the conditions for ordering the surrender of the convicted person to the sentencing State have all been satisfied, simultaneously ordering that the sentence be carried out on the territory of the executing State, has the power to refuse the surrender, recognise the judgment and order the enforcement of that judgment in its territory, even if the trial resulting in the recognised judgment has not afforded the accused any of the procedural safeguards provided for by Article 9(1)(i) of Framework Decision [2008/909]?’
26.      ATAU, the Italian and Romanian Governments, and the European Commission lodged written observations and participated in the hearing on 15 May 2025, at which they answered the questions for oral answer put by the Court.
IV.    Analysis
A.      Admissibility
27.      The Italian Government maintains that the question referred for a preliminary ruling is inadmissible on account of its hypothetical nature, in so far as, in seeking recognition of the sentencing judgment in Italy, ATAU has accepted the conviction handed down
in his absence. The competent court of the executing Member State is therefore required to recognise that judgment for the purposes of the enforcement of the sentence
in Italy. The Italian Government refers, in that connection, to Article 13(1)(i)(3) of Legislative Decree No 161/2010, which transposes into Italian law Article 9(1)(i)(iii) of Framework Decision 2008/909. It follows from that provision that the competent authority of the executing Member State cannot refuse to recognise the sentencing judgment and to enforce the sentence
where the person concerned, after being notified of the decision and being expressly informed of his or her right to a retrial or an appeal, in which he or she has the right to participate and which allows the merits of the case, including fresh evidence, to be re-examined, and which may lead to the original decision being reversed, he or she expressly stated that he or she did not dispute the decision or did not request a retrial or appeal within the applicable time frame.
28.      The question whether the fact that the convicted person requested the Member State in which he or she was convicted that the sentence be enforced in another Member State corresponds to the scenario
referred to in Article 9(1)(i)(iii) of Framework Decision 2008/909 goes to the substance rather than to the admissibility of the request for a preliminary ruling. I note, moreover, that that question was raised by the referring court in Höldermann (C‑447/24). I therefore refer, on that point, to my Opinion delivered today in that case.
B.      Substance
29.      By its questions, which I propose should be examined together, the referring court is asking
the Court, in essence, to rule on
whether Article 4(6) of Framework Decision 2002/584 and Article 9(1)(i) and Article 25 of Framework Decision 2008/909 must be interpreted as meaning that, in the context of the implementation of the ground for optional non-execution of a European arrest warrant, referred to in the first of those provisions, where the person who is the subject of that warrant did not appear in person at his or her trial, the competent authority of the executing Member State has the possibility, but not the obligation, to refuse to recognise the judgment and to enforce
the sentence where none of the exceptions provided for in the second of those provisions is applicable.
30.      Among the grounds for optional non-execution of a European arrest warrant, I recall that Article 4(6) of Framework Decision 2002/584 states that the executing judicial authority may refuse to execute a European arrest warrant if the warrant has been issued for the purposes of execution of a custodial sentence or detention order, where the requested person is staying in, or is a national or a resident of the executing Member State and that State undertakes to enforce
the sentence or detention order in accordance with its domestic law.
31.      The Court has held that it followed from the use of the verb ‘may’ that the executing judicial authority must have a margin of discretion, in particular in order
to take account of the objective of that provision, which is to increase the requested person’s chances for
social rehabilitation when the sentence imposed on him or her expires. (13)
32.      Thus, the application of the ground for optional non-execution of the European arrest warrant provided for in that provision is subject to two conditions being met, namely, first, that the requested person is staying in the executing Member State, is a national or a resident of that Member State and, second, that that State undertakes to enforce, in accordance with its domestic law, the sentence or detention order in respect of which the European arrest warrant has been issued. (14)
33.      As regards the first of those conditions, the Court has already held that a requested person is ‘resident’ in the executing Member State when that person has established his or her actual place of residence there, and is ‘staying’ there when, following a stable period of presence in that Member State, he or she has acquired connections with that State which are of a similar degree to those resulting from residence. (15)
34.      As regards the second of those conditions, it follows from the wording of Article 4(6) of Framework Decision 2002/584 that any refusal to execute a European arrest warrant presupposes an actual undertaking on the part of the executing Member State to enforce the custodial sentence imposed on the requested person. In so far as that person has been sentenced in the issuing Member State, that necessarily implies that the authorities of the executing Member State recognise the sentencing judgment handed down in respect of that person in accordance with the provisions of Framework Decision 2008/909. (16) Therefore, the mere fact that that State declares itself ‘willing’ to enforce
the sentence could not be regarded as justifying such a refusal. It follows that any refusal to execute a European arrest warrant must be preceded by the executing judicial authority’s examination of whether it is actually possible to enforce
the sentence in accordance with its domestic law. (17)
35.      It is also necessary to ensure that the possibility for the executing judicial authority to refuse to execute the European arrest warrant is exercised only on condition that the sentence handed down
against the requested person is in fact enforced
in the executing Member State and a solution that is compatible with the purpose of Framework Decision 2002/584 is thus achieved. (18)
36.      In that regard, it should be borne in mind that, in the words of Article 25 of Framework Decision 2008/909, ‘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 that Framework Decision, 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’. The Court has stated, in particular, that the coordination provided for by the EU legislature between Framework Decision 2002/584 and Framework Decision 2008/909 must contribute to achieving the objective of facilitating the social rehabilitation of the person concerned and that such rehabilitation is in the interest not only of the convicted person but also of the European Union in general. (19)
37.      With that in mind, recital 12 of Framework Decision 2008/909 states that that framework decision ‘should also, mutatis mutandis, apply to the enforcement of sentences in the cases under Articles 4(6) and 5(3) of … Framework Decision [2002/584]. This 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 …, 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]’. The EU legislature therefore emphasises, by way of example, the verification by the executing Member State of the existence of grounds for non-recognition and non-execution laid down in Article 9 of Framework Decision 2008/909.
38.      In the context of the present case, that verification concerns the ground for non-recognition and non-execution laid down in Article 9(1)(i) of that framework decision. The existence of such a ground might preclude the implementation of the ground for optional non-execution of the European arrest warrant laid down in Article 4(6) of Framework Decision 2002/584. In other words, the refusal to execute the European arrest warrant based on Article 4(6) of that framework decision assumes that the sentence may be enforced in the executing Member State, which is not the case if the executing judicial authority considers that the ground for non-recognition and non-enforcement laid down in Article 9(1)(i) of Framework Decision 2008/909 is applicable. In that context, the interpretation of Article 4(6) of Framework Decision 2002/584 must be aimed at guaranteeing both the objective of facilitating the social rehabilitation of the convicted person and that of combating impunity. At the same time, the taking into account of the ground for non-recognition and non-execution referred to in Article 9(1)(i) of Framework Decision 2008/909 must also lead to the taking into account of the right of the person concerned to appear in person at his or her trial.
39.      In fact, that provision sets out a ground for optional non-recognition of a judgment transmitted by another Member State and for non-execution of the sentence imposed by that Member State, if the convicted person did not appear in person at the trial that resulted in the conviction. That option is, however, subject to three exceptions, listed in points (i) to (iii) of that provision, which deprive the competent authority of the executing Member State of the possibility of refusing to recognise and enforce the judgment sent to it.
40.      The questions put by the referring court are based on a number of findings.
41.      First, the Italian Republic transposed Article 4a(1)(b) of Framework Decision 2002/584
and Article 9(1)(i)(ii) of Framework Decision 2008/909 into national law in different ways, although those two provisions are drafted in identical terms. Whereas, in the former case, Italian law requires that the person concerned has been informed of the proceedings against him or her, in the latter case it requires that the person concerned was aware of the date set for the trial.
42.      Second, having regard to the latter requirement, the exception that prevents the competent authority of the executing Member State from relying on the ground for non-recognition and non-execution referred to in Article 9(1)(i)(ii) of Framework Decision 2008/909 would not be applicable in the present case. In fact, ATAU was not aware of the date and place set for his trial.
43.      Third, in so far as that exception would not be applicable, the competent authority of the executing Member State would be required, under Italian law, to refuse to recognise the judgment and to execute the sentence. Since the ground for optional non-execution of the European arrest warrant consequently could not be applied, ATAU would have to be surrendered to the Slovakian authorities for the purpose of the enforcement of his sentence.
44.      In the light of the findings
thus put forward by the referring court, it is appropriate to examine, in the first place, whether the condition relating to awareness of the scheduled trial, which is set out in Article 9(1)(i)(ii) of Framework Decision 2008/909, requires that the person concerned be informed of the date and place set for his or her trial. In the second place, it must be determined whether, where that condition is not met, national law may require that the competent authority of the executing Member State refuse to recognise the judgment or to enforce the sentence.
1.      Awareness of the scheduled trial requires that the person concerned be informed of the date and place set for the trial
45.      For the reasons which I have set out in my Opinion in Höldermann (C‑447/24), delivered today and to which I make reference, I take the view that the condition relating to awareness of the scheduled trial, which is referred to in Article 9(1)(i)(ii) of Framework Decision 2008/909, requires that the person concerned be informed of the date and place set for the trial. Having regard to the difference in transposition into Italian law of that provision and of Article 4a(1)(b) of Framework Decision 2002/584, I would state that, in my opinion, that difference should not exist since I consider that, in so far as the wording of those two provisions is identical, the same interpretation should be adopted in so far as concerns the latter provision.
2.      Verification of the conditions laid down in Article 9(1)(i)(ii) of Framework Decision 2008/909
(a)    The first condition: cases in which the person concerned is deemed to have received sufficient information
46.      In order to ascertain whether the first condition laid down by Article 9(1)(i)(ii) of Framework Decision 2008/909
is met, it is appropriate in my view to take account of the case-law relating to Directive 2016/343. In that context, the Court has identified certain situations in which the person concerned must be deemed to have been informed that his or her trial was to take place.
47.      Thus, with a view to ascertaining whether the first condition in Article 8(2)(a) and (b) of Directive 2016/343 is met, the Court has stated that, as is clear from recital 38 of that directive, it is necessary to pay particular attention, first, to the diligence exercised by the public authorities in order to inform the person concerned of the trial and, second, to the diligence exercised by that person in order to receive the information relating thereto. Consequently, according to the Court, any precise and objective indicia that that person, while having been officially informed that he or she is accused of having committed a criminal offence, and therefore being aware that he or she is going to be brought to trial, takes deliberate steps to avoid receiving officially the information regarding the date and place of the trial are relevant for the purpose of assessing that same condition. Such precise and objective indicia may, for example, be found to exist where that person has deliberately communicated an incorrect address to the competent authorities or is no longer at the address that he or she communicated to them. (20) Thus, the fact that the person concerned deliberately prevented the State from informing him or her is a relevant circumstance for the purpose of determining the sufficiency of the information sent to him or her.
48.      The Court has held that a person convicted in absentia will inter alia be regarded as having sufficient information to know that he or she was going to be brought to trial if he or she received a preliminary indictment, the content of which corresponds, as regards the alleged acts and their legal classification, to the content of the final indictment ultimately drawn up in his or her regard. (21)
49.      It follows that, where the person concerned has
absconded after receiving such a preliminary indictment, Member States are entitled to take the view that the dispatch in due time, by the competent authorities, of an official document indicating the date and place of the trial to the address which that person communicated to those authorities during the pre-trial investigation of the case, and the evidence adduced that that document was actually delivered to that address, are tantamount to informing the person of that date and place, in accordance with Article 8(2) of Directive 2016/343. However, that holds true only if those authorities have made reasonable efforts to locate that person and to summon him or her in person or, by other means, provide him or her with official information about the date and place of the trial, as envisaged
in recital 36 of that directive. In that scenario, the person concerned is deemed to have been informed of the trial. (22) The lack of diligence on the part of the person concerned, on account of the fact that he or she absconded, may thus lead to the legal fiction that he or she was duly informed of the date and place of the trial.
50.      In the light of those factors, it is for the referring court to ascertain whether ATAU must be deemed to have been informed of the date and place of his trial. To that end, that court will have to identify any precise and objective indicia that ATAU, while having been officially informed that he was accused of having committed a criminal offence and being aware that he was going to be brought to trial, deliberately sought to avoid officially receiving the information relating to the date and place of that trial.
51.      From that perspective, I would recall that, according to the information supplied by the referring court, although he had never been informed of the date and place of the forthcoming trial, ATAU was aware of the trial pending against him. He had been arrested and placed in pre-trial detention in Slovakia on 28 September 2009 for the same offence, then, on 15 December 2009, he had been released and placed in a refugee camp in Slovakian territory. He had then absconded, without returning and without electing an address for service, with the result that it had not been possible to inform him of the date and place set for the trial or of the fact that the decision would be handed down
even in the event of non-appearance.
52.      On the basis of those factors, it is for the referring court, after seeking, where appropriate, information from the issuing judicial authority, to verify whether it was after becoming aware of the charge against him that ATAU absconded, without returning and without electing an address for service. In so far as ATAU had been arrested and placed in pre-trial detention in Slovakia, it is likely – and it is for the referring court to ascertain this – that he received that information at that stage of the criminal investigation. It is apparent, therefore, that there is a precise and objective indication that ATAU, aware that he would be brought to trial, deliberately sought to avoid officially receiving the information relating to the date and place of that trial. In order for ATAU to be regarded as having received that information, it is nonetheless necessary for the Slovakian authorities to have made reasonable efforts to locate and summons him in person or to inform him officially, by other means, of the date and place of that trial.
(b)    The second condition: a mandate given to a legal counsellor who defended the person concerned at the trial
53.      In so far as concerns representation by a mandated lawyer, the Court has made clear that, in order for there to be a ‘mandate’ within the meaning of Article 8(2)(b) of Directive 2016/343, the person concerned must himself or herself have entrusted a lawyer, as the case may be a court-appointed lawyer, with the task of representing him or her at the trial. (23) It follows that the mere fact that a person convicted in absentia was defended by a court-appointed lawyer throughout the judicial proceedings conducted in his or her absence is not sufficient to satisfy the second condition laid down in that provision. (24)
54.      According to the Court, representation by a lawyer demonstrates that a person tried in his or her absence voluntarily and unequivocally waived the right to be present at the trial only if that person deliberately left it to that lawyer to mount his or her defence before the trial court, which presupposes that he or she appointed the lawyer specifically to represent him or her, in his or her absence, during the trial. (25) Consequently, contact between the person convicted in absentia and a court-appointed lawyer which occurred solely over the course of the pre-trial stage cannot be regarded as sufficient to show that that person was represented during his or her trial in absentia ‘by a mandated lawyer’ within the meaning of Article 8(2)(b) of Directive 2016/343. (26) It therefore falls to the referring court to determine whether, on the basis of the information available to it, the person concerned unequivocally entrusted the court-appointed lawyer with the task of representing him, in his absence, before the trial court. (27)
55.      On the basis of those factors, which to my mind should inform the examination of the second condition laid down in Article 9(1)(i)(ii) of Framework Decision 2008/909, it is for the referring court to ascertain whether that condition is satisfied. From that perspective, I recall that, according to the information provided by the referring court, although ATAU had not taken part in person in the proceedings that gave rise to the judgment of 23 August 2010, he had, however, been assisted and represented by a lawyer during the proceedings.
56.      If the referring court were to reach the conclusion that the conditions for the application of the exception provided for in Article 9(1)(i)(ii) of Framework Decision 2008/909
are satisfied, recognition of the judgment and enforcement of the conviction in Italy could not be refused. There would thus be no barrier, in the context of the implementation of the ground for optional refusal provided for in Article 4(6) of Framework Decision 2002/584, to Italy undertaking to enforce the custodial sentence imposed on ATAU.
57.      In any event, even if the referring court were to find that those conditions are not satisfied, it should be emphasised that it would not be obliged, under its national law, to refuse to recognise the judgment and to enforce the sentence. It would have discretion to decide whether or not to apply the ground for non-recognition and non-execution provided for in Article 9(1)(i) of Framework Decision 2008/909.
58.      It is in that context and on the basis of the foregoing considerations that it is now appropriate to provide a more direct answer to the questions put by the referring court.
3.      The optional nature of the ground for non-recognition and non-execution provided for in Article 9(1)(i) of Framework Decision 2008/909 and the discretion which the competent authority of the executing Member State must have
59.      The referring court asks the Court whether Article 9(1)(i) of Framework Decision 2008/909
requires the competent authorities of the executing Member State to refuse to recognise and enforce a sentencing judgment where it finds that none of the exceptions set out in that provision is applicable. In other words, it wonders whether that finding precludes it from exercising discretion in order to determine whether or not it should refuse to recognise the sentencing judgment.
60.      In order to answer that question, it should be observed that, as in the case of Article 4a(1)
of Framework Decision 2002/584, the EU legislature decided, in the context of the mechanism for the recognition and enforcement of judgments in criminal matters, to attach specific importance to the right of the accused to appear in person at his or her trial by introducing, in Article 9(1)(i) of Framework Decision 2008/909, a ground for optional non-recognition and non-execution specially devoted to the protection of such a right. (28) Furthermore, such a ground must be interpreted in a manner that is consistent with the requirements arising from the second and third paragraphs of Article 47 and from Article 48 of the Charter of Fundamental Rights of the European Union. (29)
61.      The Court has held that it is apparent from the wording of Article 4a(1)
of Framework Decision 2002/584
that it provides for an optional ground for non-execution of a European arrest warrant issued for the purpose of executing a custodial sentence or a detention order, where the person concerned has not appeared in person at the trial which resulted in the conviction. That option is nonetheless accompanied by four exceptions, set out in subparagraphs
(a) to
(d), respectively, of that provision, in which the executing judicial authority may not refuse to execute the European arrest warrant addressed to it. (30)
62.      Accordingly, an executing judicial authority is entitled to refuse to execute a European arrest warrant issued for the purpose of executing a custodial sentence or a detention order if the person did not appear in person at the trial resulting in the decision concerned, unless the European arrest warrant indicates that the conditions set out in subparagraphs
(a) to
(d), respectively, of Article 4a(1) of Framework Decision 2002/584 are met. (31) In that regard, the Court has observed that Article 4a thus restricts the possibility of refusing to execute the European arrest warrant by listing, in a precise and uniform manner, the conditions under which the recognition and enforcement of a decision rendered following a trial at which the person concerned did not appear in person may not be refused. (32)
63.      It follows that an executing judicial authority is obliged to execute a European arrest warrant, notwithstanding the absence of the person concerned at the trial resulting in the decision concerned, where one of the situations referred to in subparagraphs
(a) to
(d), respectively, of Article 4a(1) of that framework decision is verified. (33)
64.      The Court has already held that, in so far as Article 4a provides for a ground for optional non-execution of a European arrest warrant, an executing judicial authority may, in any event, even after it has found that the circumstances referred to in the preceding point of the present Opinion do not cover the situation of the person who is the subject of the European arrest warrant, take into account other circumstances that enable it to satisfy itself that the surrender of the person concerned does not entail a breach of his or her rights of defence. (34)
65.      In that regard, the Court relied on the actual wording of Article 4a(1)
of Framework Decision 2002/584, in particular of the statement that the executing judicial authority ‘may … refuse’ to execute the European arrest warrant, to infer that that authority must have some discretion as to whether or not to refuse to execute the warrant in such a case where the warrant does not contain any of the statements mentioned in subparagraphs (a) to (d) of that provision. (35)
66.      According to the Court, that interpretation is supported by the general scheme of that framework decision. The execution of a European arrest warrant constitutes the rule laid down by that framework decision, the grounds for refusal of recognition and enforcement being exceptions. Making it impossible for the executing judicial authority to take into account any circumstances specific to each individual case that might lead it to consider that the conditions for refusing surrender have not been satisfied would have the effect of replacing the mere option, provided for in Article 4a of that framework decision, with a genuine obligation, thus transforming the refusal to surrender from an exception into a general rule. (36)
67.      Thus, where none of the conditions set out in subparagraphs (a) to (d), respectively, of Article 4a(1)
of Framework Decision 2002/584
is met, the executing judicial authority cannot be required to refuse to execute the European arrest warrant, without having the opportunity to take into account the circumstances specific to each case. (37)
68.      Therefore, the executing judicial authority may, with that in mind, take into account other circumstances that enable it to satisfy itself that the surrender of the person concerned does not entail a breach of his or her rights of defence and thus surrender that person to the issuing Member State. This may include, inter alia, the conduct of the person concerned, in particular the fact that he or she sought to avoid service of the information addressed to him or her or to avoid any contact with his or her lawyers. (38)
69.      It follows that, when determining that one of the conditions laid down in Article 4a(1) of Framework Decision 2002/584 is satisfied, an executing judicial authority cannot be prevented from satisfying itself that the rights of defence of the person concerned are respected by taking due account in that regard of all the circumstances characterising the case before it, including the information which it may itself obtain. (39)
70.      That said, I note that the rules relating to proceedings in absentia set out in Framework Decisions 2002/584 and 2008/909 have the same origin, namely Framework Decision 2009/299, and pursue the same objective, which seeks, inter alia, to strengthen the rights of defence of the persons concerned by ensuring that their fundamental right to a fair criminal trial is guaranteed, (40) while improving mutual recognition of judicial decisions between Member States. (41) Furthermore, in so far as they were, respectively, amended and inserted by Framework Decision 2009/299, the present wording of Article 9(1)(i) of Framework Decision 2008/909
and that of Article 4a(1)
of Framework Decision 2002/584
overlap, which, as is apparent from recitals 4 and 6 of Framework Decision 2009/299, reflects the EU legislature’s desire to determine, in a precise and uniform manner, the conditions under which the recognition and enforcement of a decision rendered following a trial at which the person concerned did not appear in person may not be refused. (42)
71.      In the light of those factors, I take the view that the information derived from the case-law of the Court relating to Article 4a(1)
of Framework Decision 2002/584
should be applied, by analogy, to the ground for optional non-recognition and non-execution provided for in Article 9(1)(i) of Framework Decision 2008/909.
72.      This means that, if the conditions for the application of the exceptions set out in that provision are not satisfied, the competent authority of the executing Member State has discretion to determine, on a case-by-case basis, whether it is appropriate to rely on that ground for non-recognition and non-execution. It is then the principle of optional non-execution that applies. Thus, the competent authority of the executing Member State may, in any event, take into account other circumstances that enable it to satisfy itself that the recognition of a judgment and the enforcement of a sentence do not entail a breach of the rights of defence of the person concerned. That authority must therefore have the opportunity to take into account the conduct of the person concerned, including circumstances showing that he or she sought to avoid service of the information addressed to him or her or that he or she avoided any contact with his or her lawyers.
73.      By exercising its discretion, the competent authority of the executing Member State may thus ensure a balance between the objectives seeking to combat impunity, to facilitate the social rehabilitation of the convicted person and to guarantee his or her rights of defence. I consider that it is also appropriate to take account, in the context of the balance that must be struck between the various interests involved, of the fact that the convicted person has requested that his or her sentence be executed in the executing Member State. (43)
74.      In the present case, it follows from the information supplied by the referring court that the Italian legislation at issue in the main proceedings requires that the competent authority of the executing Member State refuse to recognise a judgment or enforce a sentence handed down in another Member State where none of the exceptions provided for in Article 9(1)(i) of Framework Decision 2008/909
is applicable. That legislation therefore leaves the competent authority no discretion for the purposes of verifying, on the basis of the circumstances of the particular case, whether the rights of defence of the person concerned may be considered to have been respected and,
accordingly, of deciding to recognise and enforce the sentencing judgment in question.
75.      In those circumstances, it is clear that such national legislation is contrary to Article 9(1)(i) of Framework Decision 2008/909.
76.      Having regard to that finding of incompatibility, it should be borne in mind that, according to the case-law of the Court, the principle of primacy of EU law must be interpreted as meaning that it does not require a national court to disapply a provision of national law that is incompatible with the provisions of Framework Decision 2002/584
or of Framework Decision 2008/909, which do not have direct effect. However, the authorities of the Member States, including the courts, are required to interpret their national law, to the greatest extent possible, in conformity with EU law, which enables them to ensure an outcome that is compatible with the objective pursued by those framework decisions. (44)
77.      Indeed, although the framework decisions cannot have direct effect, their binding character nevertheless places on national authorities an obligation to interpret national law in conformity with EU law as from the date of expiry of the period for the transposition of those framework decisions. When applying national law, those authorities are, therefore, required to interpret it, to the greatest extent possible, in the light of the wording and purpose of the framework decision concerned in order to achieve the result sought by that decision, an interpretation of national law contra legem being excluded. Thus, the principle that national law must be interpreted in conformity with EU law requires that the whole body of domestic law be taken into consideration and that the interpretative methods recognised by domestic law be applied, with a view to ensuring that the framework decision concerned is fully effective and to achieving an outcome consistent with the objective pursued by it. (45)
78.      It follows that it will be for the referring court, taking into consideration its domestic law in its entirety and applying the methods of interpretation recognised thereby, to interpret the national legislation at issue in the main proceedings, to the greatest extent possible, in the light of the wording and purpose of Framework Decisions 2002/584 and 2008/909.
V.      Conclusion
79.      Having regard to all of the foregoing considerations, I propose that the Court of Justice answer the questions for a preliminary ruling referred by the Corte d’appello di Napoli (Court of Appeal, Naples, Italy) as follows:
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, and Article 9(1)(i) and Article 25 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, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009,
must be interpreted as meaning that, in the context of the implementation of the ground for optional non-execution of a European arrest warrant referred to in the first of those provisions, where the person subject to that warrant did not appear in person at his or her trial, the competent authority of the executing Member State has the possibility, but not the obligation, to refuse to recognise the judgment or to enforce the sentence where none of the exceptions provided for in the second of those provisions is applicable.
It is for the national court, taking into consideration its domestic law in its entirety and applying the methods of interpretation recognised by domestic law, to interpret its national legislation, to the greatest extent possible, in the light of the wording
and purpose of Framework Decisions 2002/584 and 2008/909, as amended.
1      Original language: French.
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.
2      See recital 33 of Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings (OJ 2016 L 65, p. 1). See also judgment of 20 May 2025, Kachev (C‑135/25 PPU, ‘judgment in Kachev’, EU:C:2025:366, paragraph 31
and the case-law cited).
3      See recital 35
of Directive 2016/343. See also recital 1 of 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).
4      OJ 2002 L 190, p. 1.
5      OJ 2008 L 327, p. 27.
6      ‘Framework Decision 2002/584’ and ‘Framework Decision 2008/909’, respectively.
7      In that case, in which the person concerned had not absconded before his trial was held, he had indicated the address of the chambers of his legal counsellor, to whom he had given a mandate to represent him in the proceedings at first and second instance, as the address for service by the competent authorities.
8      GURI No 98, 29 April 2005, p. 6.
9      GURI No 230, 1 October 2010, p. 1.
10      ‘The judgment of 23 August 2010’.
11      Emphasis added.
12      Emphasis added.
13      See, in particular, judgments of 29 June 2017, Popławski (C‑579/15, EU:C:2017:503, paragraphs 21
and 23); of 29 April 2021, X (European arrest warrant – Ne bis in idem) (C‑665/20 PPU, EU:C:2021:339, paragraph 43
and the case-law cited);
of 6 June 2023, O.G. (European arrest warrant issued against a third-country national) (C‑700/21, ‘judgment in O.G.’, EU:C:2023:444, paragraph 49); and of 4 September 2025, C.J. (Enforcement of a sentence further to an EAW), (C‑305/22, ‘judgment in C.J.’, EU:C:2025:665, paragraph 44).
14      See, in particular, judgments in
O.G. (paragraph 46
and the case-law cited) and in C.J. (paragraph 43).
15      See, in particular, judgment in O.G. (paragraph 47
and the case-law cited).
16      See, in particular, judgments in O.G. (paragraph 48
and the case-law cited) and in C.J. (paragraph 52). As the Court states in the latter judgment, in the context of the implementation of the ground for optional non-execution provided for in Article 4(6) of Framework Decision 2002/584, the executing State’s assumption of responsibility for the enforcement of the sentence imposed by the sentencing judgment handed down in the issuing State and which justified the issue of the European arrest warrant is subject to the consent of that issuing State, in accordance with the rules laid down in Framework Decision 2008/909 (paragraph 67).
17      See, in particular, judgment
of
24 June 2019, Popławski (C‑573/17, EU:C:2019:530, paragraph 88
and the case-law cited).
18      See, in particular, judgment
of 24 June 2019, Popławski (C‑573/17, EU:C:2019:530, paragraph 92
and the case-law cited).
19      See judgment of 11 March 2020, SF (European arrest warrant – Guarantee of return to the executing State) (C‑314/18, EU:C:2020:191, paragraph 51
and the case-law cited), and judgment in C.J. (paragraph 81). In the latter judgment the Court stated, however, that if the executing State could, on the basis of that objective, refuse to execute a European arrest warrant issued for the purposes of enforcing a custodial sentence, without the consent of the issuing State to its assumption of responsibility for that enforcement, that could create a high risk of impunity for persons who attempt to evade justice after being convicted in a Member State and would ultimately jeopardise the effective functioning of the simplified system of surrender between the Member States established by Framework Decision 2002/584 (paragraph 82).
20      See, in particular, judgment in
Kachev (paragraph 35
and the case-law cited).
21      See, in particular, judgment in
Kachev (paragraph 36
and the case-law cited).
22      See, in particular, judgment in
Kachev (paragraph 37
and the case-law cited).
23      See, in particular, judgment in
Kachev (paragraph 41
and the case-law cited).
24      See judgment in Kachev (paragraph 59).
25      See judgment in Kachev (paragraph 61).
26      See judgment in Kachev (paragraph 62).
27      See judgment in Kachev (paragraph 63).
28      See, by analogy, judgment of 23 March 2023, Minister for Justice and Equality (Lifting of the suspension)
(C‑514/21 and C‑515/21, ‘judgment in Minister for Justice and Equality (Lifting of the suspension)’, EU:C:2023:235, paragraph 64).
29      See, by analogy, judgment in Minister for Justice and Equality (Lifting of the suspension) (paragraphs 60, 61 and 64).
30      See, in particular, judgment
of 21 December 2023, Generalstaatsanwaltschaft Berlin (Conviction in absentia)
(C‑396/22, ‘judgment in Generalstaatsanwaltschaft Berlin (Conviction in absentia)’,
EU:C:2023:1029, paragraph 38
and the case-law cited; ‘the judgment in Generalstaatsanwaltschaft Berlin (Conviction in absentia)’).
31      See, in particular, judgment in
Generalstaatsanwaltschaft Berlin (Conviction in absentia) (paragraph 39
and the case-law cited).
32      See, in particular, judgment in
Minister for Justice and Equality (Lifting of the suspension) (paragraph 49
and the case-law cited).
33      See, in particular, judgment in
Generalstaatsanwaltschaft Berlin (Conviction in absentia) (paragraph 40
and the case-law cited).
34      See, in particular, judgment in Generalstaatsanwaltschaft Berlin (Conviction in absentia) (paragraph 41
and the case-law cited).
35      See, in particular, judgment in
Minister for Justice and Equality (Lifting of the suspension) (paragraphs 75
and 76 and the case-law cited).
36      See judgment in Minister for Justice and Equality (Lifting of the suspension) (paragraph 77).
37      See, in particular, judgment in
Minister for Justice and Equality (Lifting of the suspension) (paragraph 76
and the case-law cited).
38      See, in particular, judgment in
Minister for Justice and Equality (Lifting of the suspension) (paragraph 78
and the case-law cited). See also judgment in Generalstaatsanwaltschaft Berlin (Conviction in absentia) (paragraph 42
and the case-law cited).
39      See, in particular, judgment in Generalstaatsanwaltschaft Berlin (Conviction in absentia) (paragraph 43
and the case-law cited).
40      See, in particular, judgment in
Minister for Justice and Equality (Lifting of the suspension) (paragraph 66
and the case-law cited).
41      See, in particular, judgment in
Minister for Justice and Equality (Lifting of the suspension) (paragraph 50).
42      See, in that regard, judgment in Minister for Justice and Equality (Lifting of the suspension) (paragraph 49
and the case-law cited).
43      In my Opinion delivered today in Höldermann (C‑447/24), I have set out the reasons why I consider that the fact that the person concerned made a request to the competent authority of the Member State in which he was convicted that his sentence be served in the executing Member State does not, as such, meet the conditions laid down in Article 9(1)(i)(iii) of Framework Decision 2008/909. Admittedly, ATAU’s attitude may seem contradictory in so far as, in requesting that his sentence be executed in Italy, he seems to accept that sentence. However, it must be emphasised that ATAU may formulate such a request while reserving the right to request a retrial. Incidentally, I note that ATAU’s representative indicated at the hearing that ATAU could still exercise such a right. Those factors form part of the circumstances that the executing judicial authority may take into account in the context of its margin of discretion.
.
44      See, in particular, judgment
of 21 December 2023, Generalstaatsanwaltschaft Berlin (Conviction in absentia) (C‑398/22, EU:C:2023:1031, paragraph 46
and the case-law cited).
45      See, in particular, judgment
of 21 December 2023, Generalstaatsanwaltschaft Berlin (Conviction in absentia) (C‑398/22, EU:C:2023:1031, paragraph 47
and the case-law cited).