Provisional text
JUDGMENT OF THE COURT (Fifth Chamber)
21 May 2026 (*)
( Reference for a preliminary ruling – Judicial cooperation in criminal matters – Framework Decision 2002/584/JHA – European arrest warrant – Surrender procedure between Member States – Optional grounds for non-execution – Article 4(6) – Undertaking by the executing Member State to execute the sentence in accordance with its domestic law – Framework Decision 2008/909/JHA – Mutual recognition of judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty – Grounds for non-recognition and non-enforcement – Article 9(1)(i) – Person concerned who did not appear in person at the trial resulting in his or her conviction – Information regarding the scheduled date of the hearing and place of that trial – Voluntary and unequivocal waiver by the person concerned of the right to appear in person at that trial – Assessment by the competent authority of the executing Member State – Obligation to interpret national law in conformity with EU law )
In Case C‑95/24 [Khuzdar], (i)
REQUEST for a preliminary ruling under Article 267 TFEU from the Corte d’appello di Napoli (Court of Appeal, Naples, Italy), made by decision of 6 February 2024, received at the Court on 6 February 2024, in the proceedings concerning the execution of a European arrest warrant issued against
ATAU,
other party:
Procura generale presso la Corte d’appello di Napoli,
THE COURT (Fifth Chamber),
composed of M.L. Arastey Sahún, President of the Chamber, E. Regan (Rapporteur), D. Gratsias, B. Smulders and N. Fenger, Judges,
Advocate General: J. Richard de la Tour,
Registrar: C. Di Bella, Administrator,
having regard to the written procedure and further to the hearing on 15 May 2025,
after considering the observations submitted on behalf of:
–        ATAU, by L. Migliaccio, A. Scardamaglio and C. Sgariglia, avvocati,
–        the Italian Government, by S. Fiorentino and G. Palmieri, acting as Agents, and by S. Faraci and A. Trimboli, avvocati dello Stato,
–        the Romanian Government, by E. Gane, L. Ghiță and A. Wellman, acting as Agents,
–        the European Commission, by H. Leupold, F. Tomat and J. Vondung, acting as Agents,
after hearing the Opinion of the Advocate General at the sitting on 18 September 2025,
gives the following
Judgment
1        This 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 (OJ 2002 L 190, p. 1), as amended by Council Framework Decision 2009/299/JHA of 26 February 2009 (OJ 2009 L 81, p. 24) (‘Framework Decision 2002/584’) 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 (OJ 2008 L 327, p. 27), as amended by Framework Decision 2009/299 (‘Framework Decision 2008/909’).
2        The request has been made in proceedings concerning the execution of a European arrest warrant issued by a Slovak court against a person residing in Italy for the purposes of execution of a custodial sentence imposed following the trial at which that person did not appear in person.
Legal context
European Union law
Framework Decision 2002/584
3        Article 4 of Framework Decision 2002/584, entitled ‘Grounds for optional non-execution of the European arrest warrant’, provides:
‘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;
…’
4        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 thereof:
‘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.’
Framework Decision 2008/909
5        Article 9 of Framework Decision 2008/909, entitled ‘Grounds for non-recognition and non-enforcement’, provides, in paragraph 1 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;
…’
6        Article 25 of that framework decision provides:
‘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.’
Framework Decision 2009/299
7        Under recitals 1,4, 6, 8 and 15 of Framework Decision 2009/299:
‘(1)      The right of an accused person to appear in person at the trial is included in the right to a fair trial provided for in Article 6 of the [European] Convention for the Protection of Human Rights and Fundamental Freedoms [signed in Rome on 4 November 1950], as interpreted by the European Court of Human Rights. The Court has also declared that the right of the accused person to appear in person at the trial is not absolute and that under certain conditions the accused person may, of his or her own free will, expressly or tacitly but unequivocally, waive that right.
…
(4)      It is therefore necessary to provide clear and common grounds for non-recognition of decisions rendered following a trial at which the person concerned did not appear in person. This Framework Decision is aimed at refining the definition of such common grounds allowing the executing authority to execute the decision despite the absence of the person at the trial, while fully respecting the person’s right of defence. This Framework Decision is not designed to regulate the forms and methods, including procedural requirements, that are used to achieve the results specified in this Framework Decision, which are a matter for the national laws of the Member States.
…
(6)      The provisions of this Framework Decision amending other Framework Decisions set conditions under which the recognition and execution of a decision rendered following a trial at which the person concerned did not appear in person should not be refused. These are alternative conditions; when one of the conditions is satisfied, the issuing authority, by completing the corresponding section of the European arrest warrant or of the relevant certificate under the other Framework Decisions, gives the assurance that the requirements have been or will be met, which should be sufficient for the purpose of the execution of the decision on the basis of the principle of mutual recognition.
…
(8)      The right to a fair trial of an accused person is guaranteed by the [European] Convention for the Protection of Human Rights and Fundamental Freedoms, as interpreted by the European Court of Human Rights. This right includes the right of the person concerned to appear in person at the trial. In order to exercise this right, the person concerned needs to be aware of the scheduled trial. Under this Framework Decision, the person’s awareness of the trial should be ensured by each Member State in accordance with its national law, it being understood that this must comply with the requirements of that Convention. In accordance with the case-law of the European Court of Human Rights, when considering whether the way in which the information is provided is sufficient to ensure the person’s awareness of the trial, particular attention could, where appropriate, also be paid to the diligence exercised by the person concerned in order to receive information addressed to him or her.
…
(15)      The grounds for non-recognition are optional. However, the discretion of Member States for transposing these grounds into national law is particularly governed by the right to a fair trial, while taking into account the overall objective of this Framework Decision to enhance the procedural rights of persons and to facilitate judicial cooperation in criminal matters’.
8        Article 1 of that framework decision, entitled ‘Objectives and scope’, provides:
‘1.      The objectives of this Framework Decision are to enhance the procedural rights of persons subject to criminal proceedings, to facilitate judicial cooperation in criminal matters and, in particular, to improve mutual recognition of judicial decisions between Member States.
2.      This Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the [EU] Treaty, including the right of defence of persons subject to criminal proceedings, and any obligations incumbent upon judicial authorities in this respect shall remain unaffected.
3.      This Framework Decision establishes common rules for the recognition and/or execution of judicial decisions in one Member State (the executing Member State) issued by another Member State (the issuing Member State) following proceedings at which the person concerned was not present, pursuant to the provisions of Article 5(1) of Framework Decision [2002/584], … of Article 9(1)(i) of Framework Decision [2008/909] …’
9        Article 2 of Framework Decision 2009/299, entitled ‘Amendments to Framework Decision [2002/584]’ inserted, pursuant to paragraph 1 thereof, Article 4a into Framework Decision 2002/584. Article 5 of Framework Decision 2009/299, entitled ‘Amendments to Framework Decision [2008/909]’, inserted, pursuant to paragraph 1 thereof, Article 9(1)(i) into Framework Decision 2008/909.
Directive (EU) 2016/343
10      Recital 36 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) is worded as follows:
‘Under certain circumstances it should be possible for a decision on the guilt or innocence of a suspect or accused person to be handed down even if the person concerned is not present at the trial. This might be the case where the suspect or accused person has been informed, in due time, of the trial and of the consequences of non-appearance and does not, nevertheless, appear. Informing a suspect or accused person of the trial should be understood to mean summoning him or her in person or, by other means, providing that person with official information about the date and place of the trial in a manner that enables him or her to become aware of the trial. Informing the suspect or accused person of the consequences of non-appearance should, in particular, be understood to mean informing that person that a decision might be handed down if he or she does not appear at the trial.’
11      Article 8 of that directive, entitled ‘Right to be present at the trial’, provides in paragraph 2 thereof:
‘Member States may provide that a trial which can result in a decision on the guilt or innocence of a suspect or accused person can be held in his or her absence, provided that:
(a)      the suspect or accused person has been informed, in due time, of the trial and of the consequences of non-appearance; or
(b)      the suspect or accused person, having been informed of the trial, is represented by a mandated lawyer, who was appointed either by the suspect or accused person or by the State.’
Italian law
Law No 69, provisions to bring national law into line with Framework Decision 2002/584
12      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/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States) of 22 April 2005 (GURI No 98 of 29 April 2005), in the version applicable to the facts in the main proceedings, provides, in Article 6(1bis)(b), that ‘where issued for the purposes of executing a custodial sentence or a detention order imposed following a trial at which the person concerned did not appear in person, the European arrest warrant must also 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 at the trial which led to the aforementioned decision by a legal counsellor appointed either by the person concerned or by the State’.
13      Under Article 18bis(2) of Law No 69, in the version applicable to the facts in the main proceedings: ‘where the European arrest warrant was issued for the purposes of execution of a custodial sentence or a detention order, the Corte d’appello [(Court of Appeal)] may refuse the surrender of the Italian national or a person who has been lawfully and actually resident or staying in Italian territory continuously for at least five years … provided that it orders that that custodial sentence or detention order is to be executed in Italy in accordance with its domestic law.’
Legislative Decree No 161, laying down provisions to bring domestic law into line with Framework Decision 2008/909
14      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 laying down provisions to bring domestic law into line with Framework Decision 2008/909/JHA 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) of 7 September 2010 (GURI No 230 of 1 October 2010), in the version applicable to the facts in the main proceedings, provides, in Article 13 thereof:
‘The Corte d’appello [(Court of Appeal)] shall refuse to recognise the criminal judgment in 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)      that he or she was summoned in person in due time and informed of the scheduled date and place for the trial or by other means actually received official information 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 judgment may be handed down if he or she did not appear in person at the trial; or
(2)      that, being aware of the date set for the trial, he or she had given a mandate to a lawyer, appointed either by the person concerned or by the State, by whom he or she was indeed represented during the trial; or
(3)      after being served with the decision and being expressly informed of the right to a retrial, or 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 does not contest the decision or did not request a retrial or an appeal within the period prescribed for that purpose.
…’
15      Article 24 of Legislative Decree No 161, in the version applicable to the facts in the main proceedings, provides that, where the Corte d’appello (Court of Appeal) 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 that European arrest warrant, where the relevant conditions are satisfied.
The main proceedings and the questions referred
16      On 5 October 2015, the Okresný súd Dunajská Streda (District Court, Dunajská Streda, Slovakia) issued a European arrest warrant for execution of a judgment sentencing ATAU to five years’ imprisonment handed down on 23 August 2010, which was to be executed in its entirety.
17      On 19 June 2023, ATAU was arrested in Italy and it is for this reason that the Corte d’appello di Napoli (Court of Appeal, Naples, Italy), which is the referring court, is asked to examine the request for surrender of the person concerned submitted by the Slovak competent authorities by means of that European arrest warrant.
18      During the proceedings before the referring court, ATAU, who established that he had been actually and lawfully resident in Italy for more than five years, asked that court to refuse to surrender him and, by recognising the judgment sentencing him to five years’ imprisonment handed down in Slovakia, order that his sentence be served in Italy.
19      In order to assess that request, the referring court asked the Slovak competent authorities to supplement the certificate previously sent by specifying the procedural safeguards to which ATAU was entitled.
20      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 sentencing judgment imposed upon him. However, he was assisted and represented by a lawyer during those proceedings. In addition, he was never informed of the date and place of his trial, even if he was aware of the ongoing trial against him. He was arrested and was remanded into custody pending trial in Slovakia on 28 September 2009 for the offence of which he was subsequently convicted, then, on 15 December 2009, he was released and held in a refugee centre in Slovakterritory. He thereafter absconded and did not return or provide an address for service with the result that the Okresný súd Dunajská Streda (District Court, Dunajská Streda) was unable to locate him or serve the summons on him to appear at the hearing concerned.
21      Consequently, ATAU did not appear in person at that hearing. However, his trial took place in the presence of his lawyer, who represented and defended him, and that trial resulted in the judgment sentencing him to five years’ imprisonment being handed down.
22      The referring court states, therefore, that it must verify whether the conditions are satisfied to refuse the surrender of ATAU and, in accordance with his request, order the enforcement in Italy of the sentence imposed on him.
23      The referring court notes that, according to the national legislation at issue in the main proceedings, where the executing judicial authority refuses to execute a European arrest warrant issued for the purposes of execution of a sentence and orders that that sentence be enforced in Italian territory, it must recognise, for the purpose of such enforcement, the judgment imposing that sentence.
24      In that regard, under the provisions of Italian law intended to transpose Article 9(1)(i) of Framework Decision 2008/909, recognition of the judgment handed down following a trial at which the person concerned did not appear in person must be refused, except for three situations in which that person benefitted from procedural safeguards.
As regards those three situations, the referring court states that the conditions for their application set out in that provision, as laid down in the national legislation at issue in the main proceedings, are not satisfied in the present case. Although the person concerned was aware of the ongoing trial, it is apparent from the order for reference that: first, that person had not been informed of the scheduled date and place of his trial or of the fact that a decision would be rendered if that person did not appear; second, even if that person had given a mandate to a legal counsellor who did indeed defend him during that trial, he was not aware of the scheduled date for that trial; and, third, that person had not received the information to enable a finding that he had, with full knowledge of the facts, accepted the sentence imposed following that trial, at which he had not appeared in person.
25      Consequently, the referring court is of the view that, if it decided to refuse the surrender of ATAU, it could not order the execution in Italian territory of the sentence imposed on him, given that the conditions set out in the national legislation at issue in the main proceedings to recognise the judgment concerned are not satisfied.
26      As regards the procedural safeguards linked to the execution of a European arrest warrant, under the provisions of Italian law intended to transpose Article 4a(1) of Framework Decision 2002/584, the referring court states that, in accordance with the conditions set out in the national legislation concerning the surrender of the person concerned, where that person did not appear in person, that surrender is permitted if that person was informed of the fact that a trial against him or her was ongoing and that he or she was assisted by a legal counsellor.
27      Thus, in so far as the person concerned was assisted by a legal counsellor, it is possible to authorise the surrender of that person in execution of a European arrest warrant, on the sole condition that that person was informed that a trial was ongoing against him or her, without such a surrender being subject to the stricter condition, applicable to the recognition of the judgment handed down for the purposes of the enforcement of the sentence in Italian territory, that that person was informed of the scheduled date for that trial.
28      The referring court states therefore that, where the national legislation at issue in the main proceedings provides for a stricter procedural safeguard as regards the recognition of a sentencing judgment than the procedural safeguard that that legislation provides for the execution of a European arrest warrant to which the requested person is subject, such a difference is liable to result in an adverse consequence for that person since he or she could be surrendered to the issuing Member State for the purposes of the execution of that sentence, while being denied the possibility of serving his or her sentence in the Member State in which he or she resides.
29      Consequently, the referring court is uncertain whether the national legislation at issue in the main proceedings complies with EU Law, in particular with Article 4(6) of Framework Decision 2002/584 and Article 9(1)(i) and Article 25 of Framework Decision 2008/909.
30      Furthermore, that court points out that, although Article 9(1)(i) of Framework Decision 2008/909 provides for the mere option to refuse to recognise the judgment handed down where the person concerned, who did not appear in person at the trial resulting in his or her conviction, was not, inter alia, informed of the date on which that trial was scheduled, the provisions of Italian law intended to transpose that provision lay down, on the contrary, an obligation to refuse to recognise that judgment in such circumstances.
31      That difference is fundamental in the present case. The national legislation at issue in the main proceedings prevents the referring court from recognising the judgment imposing the sentence on ATAU, although, if that court had the option in that regard, it would be possible for it to recognise that judgment, using that option, and, in so doing, to refuse the surrender of the person concerned and order the enforcement in Italy of the sentence imposed on him.
32      In those circumstances, the Corte d’appello di Napoli (Court of Appeal, Naples) decided to stay the proceedings and refer the following questions to the Court of Justice for a preliminary ruling:
‘(1)      [Must Article 4(6) of Framework Decision 2002/584 and Article 9(1)(i) and Article 25 of Framework Decision 2008/909 be interpreted as meaning that] the court of the executing 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]?
(2)      [Must Article 4(6) of Framework Decision 2002/584 and Article 9(1)(i) and Article 25 of Framework Decision 2008/909 be interpreted as meaning that] the court of the executing 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 and the requirements for refusing the same have all been satisfied, simultaneously ordering that the sentence be carried out in 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]?’
Admissibility of the request for a preliminary ruling
33      The Italian Government submits that the request for a preliminary ruling is inadmissible on the ground that it is purely hypothetical. By requesting the recognition in Italy of the sentencing judgment of five years’ imprisonment handed down in Slovakia, ATAU clearly accepted the criminal conviction imposed following the trial at which he did not appear in person with the result that the referring court, in accordance with the provision of Italian law intended to transpose Article 9(1)(i)(iii) of Framework Decision 2008/909 must recognise the judgment which handed down that sentence for the purposes of its execution in Italian territory.
34      In that regard, it must be borne in mind that, according to settled case-law, in the context of the cooperation between the Court of Justice and the national courts provided for in Article 267 TFEU, it is solely for the national court, before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where questions submitted concern the interpretation of EU law, the Court is, in principle, bound to give a ruling (judgment of 12 October 2023, INTER Consulting, C‑726/21, EU:C:2023:764, paragraph 32 and the case-law cited).
35      It follows that questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining, the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of EU law that is sought is unrelated to the actual facts of the main action or its object, where the problem is hypothetical, or where the Court does not have before it the factual and legal material necessary to give a useful answer to the questions submitted to it (judgment of 12 October 2023, INTER Consulting, C‑726/21, EU:C:2023:764, paragraph 33 and the case-law cited).
36      Therefore, under the division of jurisdiction between the Courts of the European Union and the national courts, the Court must, during the assessment of the admissibility of a request for a preliminary ruling, take into account the factual and legislative context as set out in the order for reference of the questions referred for a preliminary ruling (see, to that effect, judgment of 12 October 2023, INTER Consulting, C‑726/21, EU:C:2023:764, paragraph 34 and the case-law cited).
37      In the present case, the referring court clearly stated, in the order for reference, that it considers that the conditions for applying the provision of Italian law intended to transpose Article 9(1)(i)(iii) of Framework Decision 2008/909 are satisfied in ATAU’s case. Therefore, in accordance with the case-law cited in the preceding paragraph of the present judgment,
irrespective of the criticisms made by the Italian Government of the findings of fact made by the referring court, the questions referred must be examined on the basis of those findings.
38      In addition, the referring court has provided the Court with the factual and legal material necessary to enable it to give a useful answer to the questions submitted to it and set out the reasons why it considers that the interpretation of the provisions cited in the questions referred is necessary for the purpose of adjudicating on the case pending before it. Thus, it is not apparent that those questions are unrelated to the actual facts or the object of the main proceedings or that they concern a hypothetical problem.
39      Accordingly, the request for a preliminary ruling is admissible.
Consideration of the questions referred
The second question
40      By its second question, which it is appropriate to examine in the first place, the referring court asks, in essence, 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 precluding national legislation under which, in the case of a sentence imposed without the person concerned having appeared in person at the trial which led to his or her conviction, where the conditions for refusing the surrender of that person, on the one hand, and for ordering the enforcement of that sentence in the territory of the executing State, on the other hand, are satisfied, in accordance with the provisions of that legislation transposing Framework Decision 2002/584, enforcement of that sentence may not be ordered by the court of the executing Member State on the ground that the conditions concerning the recognition of the sentencing judgment, under the provisions of that legislation transposing Framework Decision 2008/909, are not satisfied.
41      In the first place, it must be noted that, under Article 4(6) of Framework Decision 2002/584, the judicial authority of the executing Member State may refuse to execute the European arrest warrant issued for the purposes of execution of a custodial sentence where, as in the present case, the requested person is a resident of the executing Member State and that State undertakes to execute the sentence in accordance with its domestic law.
42      As regards Framework Decision 2008/909, Article 25 thereof provides that, without prejudice to Framework Decision 2002/584, provisions of Framework Decision 2008/909 are to apply, mutatis mutandis to the extent they are compatible with provisions under Framework Decision 2002/584, inter alia, 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.
43      In that regard, Article 9(1)(i) of Framework Decision 2008/909 provides a ground for non-recognition and non-enforcement of a sentencing judgment where the person concerned did not appear in person at the trial resulting in his or her conviction, subject to three situations referred to in points (i), (ii) and (iii) respectively, in which the recognition and enforcement of such a sentencing judgment may not be refused.
44      In the present case, the referring court is uncertain how to proceed where, in the event that the person concerned did not appear in person at the trial resulting in his or her conviction, the provisions of Italian law intended to transpose Article 4a(1) of Framework Decision 2002/584, concerning the conditions in which that circumstance constitutes a ground for non-execution of the European arrest warrant to which that person is subject, differ from the provisions intended to transpose Article 9(1)(i) of Framework Decision 2008/909, which relate to the conditions in which that circumstance constitutes a ground for non-recognition and non-enforcement of the judgment which imposed the sentence on that person.
45      In that regard, it should, however, be noted that Article 4a(1)(a) to (c) of Framework Decision 2002/584 and Article 9(1)(i) of Framework Decision 2008/909, which were inserted into the two framework decisions in question by the same EU act, namely Framework Decision 2009/299, in particular by Article 2(1) and Article 5(1) respectively of the latter framework decision, have similar, if not identical, wording and have analogous objectives relating, inter alia, to the right of the person concerned to appear in person at his or her trial and respect for the rights of the defence of that person where he or she did not appear in person at the trial resulting in his or her conviction, as is apparent, inter alia, from recitals 1, 4, 6 and 8 of Framework Decision 2009/299. It follows that the case-law concerning Article 4a(1) applies to Article 9(1)(i), as regards the concepts common to those two provisions (see, to that effect, the judgment delivered today, Höldermann, C‑447/24, paragraphs 50 and 51).
46      Thus, the conditions for applying the situations in which the fact that the person concerned did not appear in person at the trial resulting in his or her conviction cannot constitute a ground for non-execution of the European arrest warrant issued for the purposes of execution of a sentence, under Article 4a(1)(a) to (c) of Framework Decision 2002/584, do not differ from those for situations in which such a fact cannot constitute a ground for non-recognition or non-enforcement of the judgment imposing a sentence, in accordance with Article 9(1)(i) of Framework Decision 2008/909.
47      Accordingly, national legislation which makes such situations subject to different conditions depending on whether those situations are assessed under the national provisions intended to transpose Article 4a(1)(a) to (c) of Framework Decision 2002/584 or under those intended to transpose Article 9(1)(i) of Framework Decision 2008/909 cannot be compatible with those provisions of EU law.
48      Should the referring court find that that is the case as regards the provisions of Italian law at issue in the main proceedings, it must be borne in mind that the principle of the primacy of EU law must be interpreted as not requiring a national court to disapply a provision of national law which is incompatible with provisions of that framework decision, since those provisions 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 that framework decision (see, by analogy, judgment of 21 December 2023, Generalstaatsanwaltschaft Berlin (Conviction in absentia), C‑398/22, EU:C:2023:1031, paragraph 47 and the case-law cited).
49      Indeed, although the framework decisions cannot have direct effect, their binding character nevertheless places on national authorities of Member States 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 text and the 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 (judgment of 21 December 2023, Generalstaatsanwaltschaft Berlin (Conviction in absentia), C‑398/22, EU:C:2023:1031, paragraph 48 and the case-law cited).
50      It will accordingly be for the referring court, taking into consideration the whole body of its domestic law and applying the interpretative methods recognised by that law, to interpret the national legislation at issue in the main proceedings, to the greatest extent possible, in the light of the text and the purpose of Framework Decisions 2002/584 and 2008/909, as meaning that the provisions of Italian law intended to transpose Article 4a(1)(a) to (c) of Framework Decision 2002/584 and those intended to transpose Article 9(1)(i)(i) to (iii) of Framework Decision 2008/909 provide for the same conditions for application.
51      In the second place, it should be noted that, as follows from the information in the request for a preliminary ruling, for the purposes of the recognition and enforcement of the judgment sentencing ATAU, the questions of the referring court concern more specifically the situation referred to in Article 4a(1)(b) of Framework Decision 2002/584 and Article 9(1)(i)(ii) of Framework Decision 2008/909.
52      In accordance with the national legislation intended to transpose the first of those provisions, in so far as the person concerned had given a mandate to a legal counsellor who did indeed defend him or her during his or her trial, where that person was informed of the ongoing trial against him or her, it is not necessary to refuse to execute the European arrest warrant to which he or she is subject on the ground that he or she did not appear in person at his or her trial.
53      However, in analogous circumstances, but where, more specifically, the person concerned was not aware of the scheduled date for his or her trial, the national legislation intended to transpose the second of those provisions precludes the judgment sentencing that person from being recognised, so that it is not possible to refuse to execute the European arrest warrant and enforce in Italian territory the sentence imposed, as provided for in Article 4(6) of Framework Decision 2002/584.
54      Therefore, as regards the uncertainties that the referring court has regarding the criteria for assessing the conditions for applying the situation referred to in point (ii) of Article 9(1)(i) of Framework Decision 2008/909, it is necessary to specify the circumstances which, although the person concerned did not appear in person at the trial resulting in his or her conviction, may fall within point (ii) of that provision, which, as set out in paragraph 45 of the present judgment, may also fall within Article 4a(1)(b) of Framework Decision 2002/584.
55      Under Article 9(1)(i) of Framework Decision 2008/909, the competent authority of the executing Member State may refuse to recognise a judgment and enforce a sentence if, according to the certificate provided for in Article 4 of that framework decision, the person concerned did not appear in person at the trial resulting in that judgment, unless that certificate states that the person concerned, in accordance with further procedural requirements defined in the national law of the issuing Member State, is in one of the situations covered in points (i), (ii) or (iii) of Article 9(1)(i).
56      It follows that the competent authority of the executing Member State is in principle required to recognise and enforce a sentencing judgment, notwithstanding the person’s failure to appear in person at the trial resulting in that judgment, if the conditions for applying one of the situations referred to in points (i), (ii) or (iii) of Article 9(1)(i) of that framework decision are satisfied (see, by analogy, judgment of 24 May 2016, Dworzecki, C‑108/16 PPU, EU:C:2016:346, paragraph 35).
57      In each of the situations referred to in those points, the recognition and enforcement of a sentencing judgment do not infringe the rights of the defence of the person concerned or the right to an effective judicial remedy and to a fair trial, as enshrined in Article 47 and Article 48(2) of the Charter of Fundamental Rights of the European Union (‘the Charter’) (see, by analogy, judgment of 23 March 2023, Minister for Justice and Equality (Lifting of the suspension), C‑514/21 and C‑515/21, EU:C:2023:235, paragraph 73 and the case-law cited), since the person concerned is, in those situations, deemed to have waived, voluntarily and unambiguously, his or her right to be present at his or her trial (see, by analogy, judgment of 26 February 2013, Melloni, C‑399/11, EU:C:2013:107, paragraph 52).
58      As regards, more specifically, Article 9(1)(i)(ii) of Framework Decision 2008/909, the competent authority of the executing Member State is subject to the obligation to recognise and enforce a sentencing judgment, notwithstanding the fact that the person concerned did not appear in person at the trial resulting in that judgment, where that person, according to the requirement at the start of that provision, 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 that trial and was indeed defended by that counsellor during that trial.
59      In that context, it is necessary, first of all, to determine the scope of the requirement at the start of point (ii) of Article 9(1)(i) of Framework Decision 2008/909, relating to the person concerned’s awareness of the scheduled trial, which constitutes, in the absence of a reference to national law, an autonomous concept of EU law which must be interpreted uniformly in the territory of the European Union (see, by analogy, judgment of 24 May 2016, Dworzecki, C‑108/16 PPU, EU:C:2016:346, paragraphs 28 to 31), then, second, to specify the criteria for assessment.
60      As regards, first, the scope of that requirement, it should be borne in mind that, according to settled case-law, it is necessary, in order to interpret a provision of EU law, to consider not only its wording, but also its context and the objectives pursued by the rules of which it is part (judgments of 17 November 1983, Merck, 292/82, EU:C:1983:335, paragraph 12, and of 4 September 2025, Casa Judeţeană de Asigurări de Sănătate Mureș and Others, C‑489/23, EU:C:2025:651, paragraph 31).
61      As regards the wording of Article 9(1)(i)(ii) of Framework Decision 2008/909, it must be noted that the wording of that provision, in the various language versions, does not make it possible to determine unequivocally whether that provision requires, for the purposes of its application, that the person concerned was aware of the scheduled hearing date for the trial resulting in his or her conviction.
62      In particular, although the Italian-language version of Article 9(1)(i)(ii) of that framework decision expressly includes such a requirement, some versions, such as the English- and French- language versions, merely require ‘being aware of the scheduled trial’, whereas others, such as the German- and Hungarian-
language versions, require ‘being aware of the hearing fixed’ or, as in the Czech-, Polish- or Swedish- language versions, ‘being aware of the scheduled hearing’.
63      While it is true that those various expressions could suggest that the person concerned must, as the Italian-language version of that provision expressly provides, have been aware of the scheduled hearing date for the trial resulting in his or her conviction, the fact remains that, according to settled case-law, the wording used in one of the language versions of a provision of EU law cannot serve as the sole basis for the interpretation of it or be given priority in relation to other language versions. The provisions of EU law must be interpreted and applied uniformly, in the light of the versions existing in all the languages of the European Union. Thus, where there is divergence between the various language versions of a European Union text, the provision in question must be interpreted by reference to the context and purpose of the rules of which it forms part (see, to that effect, judgment of 23 October 2025, Naturvårdsverket (Waste treatment after take-back), C‑221/24 and C‑222/24, EU:C:2025:818, paragraph 45 and the case-law cited).
64      In that regard, so far as concerns the context of which point (ii) of Article 9(1)(i) of Framework Decision 2008/909 forms part, it must be noted that point (i) of that provision requires that the person concerned either was summoned in person and thereby informed of the ‘scheduled date and place of the trial’ which resulted in that 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’ (see the judgment delivered today, Höldermann, C‑447/24, paragraph 72).
65      It must therefore be stated that it is apparent from the very wording of Article 9(1)(i)(i) of that framework decision that the expression ‘aware of the scheduled trial’ set out therein requires that the person concerned was informed of the scheduled date of the hearing and place of the trial which resulted in his or her conviction (see judgment delivered today, Höldermann, C‑447/24, paragraph 73).
66      As part of a contextual interpretation, it is possible to infer that the corresponding requirement, at the start of point (ii) of Article 9(1)(i), may be given, on grounds of consistency, the same scope, so that that provision must be interpreted as meaning that it requires that the person concerned was informed of the scheduled date of the hearing and place of the trial which resulted in his or her conviction (see judgment delivered today, Höldermann, C‑447/24, paragraph 74).
67      That interpretation is supported by the provisions of Directive 2016/343, in particular Article 8(2) thereof, which is a relevant contextual element for the interpretation of Article 9(1)(i) of that framework decision on the basis of the functional link between those two provisions (see, to that effect, judgment of 16 January 2025, VB II (Information concerning the right to a new trial), C‑400/23, EU:C:2025:14, paragraph 48).
68      In that regard, it must be borne in mind that, under Article 8(2) of Directive 2016/343, which lays down the minimum rules concerning certain aspects of criminal proceedings, including ‘the right to be present at the trial’, Member States may provide that a trial which can result in a decision on the guilt or innocence of a suspect or accused person can be held in his or her absence, provided that, in accordance with point (a) of that provision, the suspect or accused person has been informed, in due time, of the trial and of the consequences of non-appearance, or, in accordance with point (b) of that provision, the suspect or accused person, having been informed of the trial, is represented by a mandated lawyer, who was appointed either by the suspect or accused person or by the State.
69      The Court has held that Article 8(2) of Directive 2016/343 attaches particular importance to keeping the person concerned informed, in that it expressly makes any possibility of holding a trial in absentia subject to the condition that that person has been informed of that trial. Relying, inter alia, on recital 36 of that directive, the Court has stated that the condition, set out both in points (a) and (b) of Article 8(2) thereof, under which the person concerned must be informed of his or her trial, requires that the person concerned is informed of the scheduled date of the hearing and place of that trial, in a manner that enables him or her to become aware of that trial (see, to that effect, judgment of 15 September 2022, HN (Trial of an accused person removed from the territory), C‑420/20, EU:C:2022:679, paragraphs 51 and 52).
70      The teleological interpretation of point (ii) of Article 9(1)(i) of Framework Decision 2008/909 further supports the interpretation that the requirement at the start of point (ii) necessitates that the person concerned was informed of the scheduled date of the hearing and place of the trial which resulted in his or her conviction.
71      As is expressly apparent from Article 1 of Framework Decision 2009/299, read in the light of recitals 1 and 15 thereof, Article 9(1)(i) seeks, setting out the definition of the common grounds for enforcement of a sentencing judgment despite the failure of the person concerned to attend his or her trial, to protect his or her right to appear in person at the trial, which is an essential aspect of the rights of the defence and, more generally, is of crucial importance in compliance with the right to a fair criminal trial, enshrined in the second and third paragraphs of Article 47 and in Article 48 of the Charter, while improving mutual recognition of judicial decisions between Member States (see, to that effect and by analogy, judgment of 23 March 2023, Minister for Justice and Equality (Lifting of the suspension), C‑514/21 and C‑515/21, EU:C:2023:235, paragraphs 50 and 60 and the case-law cited).
72      The interpretation of Article 9(1)(i)(ii) of Framework Decision 2008/909, according to which the person concerned must be informed of the scheduled date of the hearing and place of his or her trial, contributes to the achievement of those objectives, since it enables the person concerned to appear in person if he or she so wishes up until the point at which the trial actually takes place or, as the case may be, makes it possible to ensure that that person has voluntarily and unequivocally waived the right to appear at that trial.
73      As regards, second, the criteria for assessment of the conditions for applying the situations referred to in points (i), (ii) or (iii) of Article 9(1)(i) of that framework decision, in which, as set out in paragraph 57 of the present judgment, the person concerned must be deemed to have waived, voluntarily and unambiguously, his or her right to be present at his or her trial, the competent authority of the executing Member State must assess, when it verifies if those conditions are satisfied, whether the rights of the defence of that person have been respected by duly taking into consideration all of the circumstances characterising the case before it, which include, inter alia, the conduct of the person concerned.
74      As regards, more specifically, Article 9(1)(i)(ii) of that framework decision and, first, the requirement set out at the start of that provision, concerning the information relating to the scheduled trial, the fact that the person concerned was not directly informed, as is the case in the main proceedings, does not necessarily mean that that condition is not satisfied.
75      As the Advocate General stated in point 47 of his Opinion, with a view to establishing whether that condition is satisfied, it is necessary to pay particular attention (i) to the diligence exercised by the public authorities in order to inform the person convicted in absentia of the trial and (ii)
to the diligence exercised by that person in order to receive the information relating thereto (see, by analogy, judgment of 20 May 2025, Kachev, C‑135/25 PPU, EU:C:2025:366, paragraph 35 and the case-law cited).
76      Thus, it is apparent from the Court’s case-law that, where it is clear from precise and objective indicia that the person concerned, while having been officially informed that he or she is accused of having committed a criminal offence and, therefore 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 that trial, that person may be deemed to have satisfied that condition (see, by analogy, judgments of 19 May 2022, Spetsializirana prokuratura (Trial of an absconded accused person), C‑569/20, EU:C:2022:401, paragraph 48, and of 20 May 2025, Kachev, C‑135/25 PPU, EU:C:2025:366, paragraph 35).
77      In the present case, it is apparent, inter alia, from the information provided by the referring court that ATAU was aware of the ongoing trial against him but that he had fled and did not return to Slovak territory and did not provide an address for service. It is for the referring court to ascertain whether those circumstances constitute precise and objective indicia enabling it to be found that the person concerned must be deemed to have satisfied that condition.
78      In that regard, it must be stated that the Court considers that such indicia may, for example, be found to exist where the person concerned has deliberately provided an incorrect address to the national competent authorities or is no longer at the address that he or she provided to them (see, by analogy, judgment of 19 May 2022, Spetsializirana prokuratura (Trial of an absconded accused person), C‑569/20, EU:C:2022:401, paragraph 49). It cannot be excluded that, in the light of all of the circumstances characterising the case before the competent authorities of the executing Member State, such a finding may also result from the fact that the person concerned voluntarily did not provide such an address.
79      Furthermore, it also cannot be excluded that the person concerned may be deemed to have satisfied the condition of awareness of the scheduled trial referred to in Article 9(1)(i)(ii) of Framework Decision 2008/909 where, having provided the address of his or her legal counsellor as the address for service, that person deliberately avoided all contact with that legal counsellor.
80      That being the case, the referring must take into account, however, that that holds true only if the national competent authorities have made reasonable efforts to locate the person concerned and to inform him or her of the scheduled date and place of his or her trial (see, by analogy, judgment of 20 May 2025, Kachev, C‑135/25 PPU, EU:C:2025:366, paragraph 37 and the case-law cited).
81      As regards the condition concerning the mandate given to a legal counsellor, who was appointed either by the person concerned or by the State, to defend that person at his or her trial and as regards the fact that the person concerned was in fact defended by that counsellor during his or her trial, it must be stated that, in order for there to be a ‘mandate’ within the meaning of Article 9(1)(i)(ii) of Framework Decision 2008/909, 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 in absentia (see, by analogy, judgment of 20 May 2025, Kachev, C‑135/25 PPU, EU:C:2025:366, paragraph 41 and the case-law cited).
82      Thus, the Court has held 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. 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 (see, by analogy, judgment of 20 May 2025, Kachev, C‑135/25 PPU, EU:C:2025:366, paragraphs 59 and 61).
83      Since the referring court states that ATAU was assisted and represented by a lawyer during the proceedings and that the trial which resulted in his conviction took place in the presence of his lawyer who represented and defended him, it is for the referring court to verify, in the light of the considerations set out in paragraphs 81 and 82 of the present judgment, that it is apparent from those circumstances that the condition set out in Article 9(1)(i)(ii) of Framework Decision 2008/909, that the person concerned gave a mandate to a legal counsellor, who was appointed either by that person or by the State, to defend him or her at his or her trial and was indeed defended by that counsellor during the trial, is satisfied.
84      In the light of all the foregoing considerations, the answer to the second question is that 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:
–        precluding national legislation under which, in the case of a sentence imposed without the person concerned having appeared in person at the trial resulting in his or her conviction, where the conditions for refusing the surrender of that person, on the one hand, and for ordering the enforcement of that sentence in the territory of the executing State, on the other hand, are satisfied, in accordance with the provisions of that legislation transposing Framework Decision 2002/584, enforcement of that sentence may not be ordered by the court of the executing Member State on the ground that the conditions concerning the recognition of the sentencing judgment, under the provisions of that legislation transposing Framework Decision 2008/909, are not satisfied;
–        meaning that the requirement concerning awareness of the scheduled trial at the start of point (ii) of Article 9(1)(i) of Framework Decision 2008/909 is met where, in the light of all the relevant circumstances duly taken into account, in particular the conduct of the person concerned, that person may be deemed to have been informed of the scheduled date of the hearing and place of the trial which resulted in his or her conviction.
The first question
85      By its first question, which it is appropriate to examine in the second place, the referring court asks, in essence, 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 precluding national legislation under which, in the case of a sentencing judgment handed down without the person concerned having appeared in person at the trial which resulted in his or her conviction and without the conditions for applying the situations referred to in Article 9(1)(i), in particular the situation set out in point (ii) of that provision, being satisfied, the competent authority of the executing Member State does not have the possibility of recognising that sentencing judgment.
86      In that regard, it must be noted that that question is useful in the context of the main proceedings only if the referring court were to find, in the light of the answer to the second question, that the conditions for applying the situation referred to in point (ii) of Article 9(1)(i) of that framework decision are not satisfied in the circumstances of the case in the main proceedings.
87      It is apparent from the very wording of Article 9(1)(i), in particular the statement that the executing judicial authority ‘may’ refuse to recognise the judgment and enforce the sentence concerned, that the competent authority of the executing Member State has the right to refuse to recognise and enforce a sentencing judgment where the person concerned did not appear in person at the trial resulting in that judgment, unless the certificate provided for in Article 4 of that framework decision states that the conditions for applying the situations set out in points (i), (ii) and (iii) of Article 9(1)(i) of Framework Decision 2008/909 respectively are satisfied (see, by analogy, judgment of 21 December 2023, Generalstaatsanwaltschaft Berlin (Conviction in absentia), C‑396/22, EU:C:2023:1029, paragraphs 38 and 39 and the case-law cited).
88      Article 9(1)(i) therefore restricts the possibility of refusing to recognise and enforce a sentencing judgment by listing, in a precise and uniform manner, the conditions under which the recognition and enforcement of such a judgment following a trial at which the person concerned did not appear in person may not be refused (see, by analogy, judgment of 23 March 2023, Minister for Justice and Equality (Lifting of the suspension), C‑514/21 and C‑515/21, EU:C:2023:235, paragraph 49 and the case-law cited).
89      It follows that, as is apparent from paragraph 56 above, the competent authority of the executing Member State is required to recognise and enforce a sentencing judgment, notwithstanding the failure of the person concerned to attend the trial resulting in the decision concerned, where the conditions for applying one of the situations referred to in points (i), (ii) or (iii) of Article 9(1)(i) respectively are satisfied.
90      That being said, in the light of the fact that Article 9(1)(i) of Framework Decision 2008/909 provides an optional ground for non-recognition and non-enforcement of a sentencing judgment, the competent authority of the executing Member State may, in any event, after having found that the conditions for applying the situations referred to in points (i), (ii) or (iii) of that provision are not satisfied as regards the situation of the person subject to such a judgment, take into account all of the circumstances specific to each case that enable it to satisfy itself that the recognition and enforcement of that judgment do not entail a breach of the rights of the defence of that person (see, by analogy, judgment of 23 March 2023, Minister for Justice and Equality (Lifting of the suspension), C‑514/21 and C‑515/21, EU:C:2023:235, paragraph 76 and the case-law cited).
91      In such circumstances, as the Advocate General noted in point 68 of his Opinion, the conduct of the person concerned may, inter alia, be taken into account, in particular the fact that that person sought to avoid service of the information addressed to him or her or to avoid any contact with his or her lawyers (see, by analogy, judgment of 23 March 2023, Minister for Justice and Equality (Lifting of the suspension), C‑514/21 and C‑515/21, EU:C:2023:235, paragraph 78 and the case-law cited), irrespective of the relevance that such conduct has in order to assess, as set out in paragraphs 74 to 80 above, whether the conditions for applying the situations referred to in points (i) to (iii) of Article 9(1)(i) are satisfied.
92      Similarly, although the fact that the person concerned requested, as in the present case, that the sentence be executed in the Member State in which he or she resides and in which he or she has his or her centre of interests does not satisfy itself the conditions set out in Article 9(1)(i)(iii) of Framework Decision 2008/909, it is possible for the competent authority of the executing Member State to take into account such a request and, as the case may be, the desire not to rely on a possible right to a new judgment in order to decide that that enforcement does not entail a breach of his or her rights of defence, so that it is not necessary to apply the ground for non-recognition and non-enforcement provided for in Article 9(1)(i) of Framework Decision 2008/909, notwithstanding the fact that conditions for applying the situations referred to in points (i) to (iii) of Article 9(1)(i) are not satisfied (see, to that effect, judgment delivered today, Höldermann, C‑447/24, paragraphs 101 to 103).
93      Although Article 9(1)(i) of that framework decision provides for a discretionary power, it is apparent from the order for reference that the national legislation intended to transpose that framework decision requires the competent authority of the executing Member State to refuse to recognise and enforce a sentencing judgment handed down in the issuing Member State where the conditions for the application of the situations referred to in points (i) to (iii) of Article 9(1)(i) of that framework decision are not satisfied. That legislation thus deprives that authority of the discretion to assess, on the basis of the circumstances of the case, whether the rights of the defence of the person concerned may nevertheless be considered as having been complied with and, therefore, to decide to recognise and enforce the sentencing judgment concerned.
94      In those circumstances, it is apparent that such national legislation is contrary to Article 9(1)(i) of Framework Decision 2008/909.
95      It follows that, in the light of the considerations set out in paragraphs 48 and 49 above, should the referring court find that the conditions for applying the situations referred to in Article 9(1)(i) of Framework Decision 2008/909, in particular point (ii) of that provision, are not satisfied, it would be for that court, taking into consideration the whole body of its domestic law and applying the interpretative methods recognised by that law, to interpret the national legislation at issue in the main proceedings, to the greatest extent possible, in light of the wording and purpose of that framework decision, as meaning that it can assess, on the basis of all of the circumstances of the case, whether the rights of the defence of the person concerned may nevertheless be found to have been complied with, so that the sentencing judgment concerned must be recognised and enforced.
96      In the light of all the foregoing considerations, the answer to the first question is that 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 precluding national legislation under which, in the case of a sentencing judgment handed down without the person concerned having appeared in person at the trial which resulted in his or her conviction and without the conditions for applying the situations referred to in Article 9(1)(i), in particular the situation set out in point (ii) of that provision, being satisfied, the competent authority of the executing Member State does not have the possibility of recognising that sentencing judgment.
Costs
97      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Fifth Chamber) hereby rules:
1.      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, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009, 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 Framework Decision 2009/299,
must be interpreted as:
–        precluding national legislation under which, in the case of a sentence imposed without the person concerned having appeared in person at the trial resulting in his or her conviction, where the conditions for refusing the surrender of that person, on the one hand, and for ordering the enforcement of that sentence in the territory of the executing State, on the other hand, are satisfied, in accordance with the provisions of that legislation transposing Framework Decision 2002/584, as amended, enforcement of that sentence may not be ordered by the court of the executing Member State on the ground that the conditions concerning the recognition of the sentencing judgment, under the provisions of that legislation transposing Framework Decision 2008/909, as amended, are not satisfied;
–        meaning that the requirement concerning awareness of the scheduled trial at the start of point (ii) of Article 9(1)(i) of Framework Decision 2008/909, as amended, is met where, in the light of all the relevant circumstances duly taken into account, in particular the conduct of the person concerned, that person may be deemed to have been informed of the scheduled date of the hearing and place of the trial which resulted in his or her conviction.
2.      Article 4(6) of Framework Decision 2002/584, as amended by Framework Decision 2009/299, and Article 9(1)(i) and Article 25 of Framework Decision 2008/909, as amended by Framework Decision 2009/299,
must be interpreted as precluding national legislation under which, in the case of a sentencing judgment handed down without the person concerned having appeared in person at the trial which resulted in his or her conviction and without the conditions for applying the situations referred to in Article 9(1)(i), in particular the situation set out in point (ii) of that provision, being satisfied, the competent authority of the executing Member State does not have the possibility of recognising that sentencing judgment.
[Signatures]
*      Language of the case: Italian.
ii      The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings.