Provisional text
JUDGMENT OF THE COURT (Fifth Chamber)
21 May 2026 (*)
( Reference for a preliminary ruling – Judicial cooperation in criminal matters – 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 – Exceptions – Mandate conferred by the person concerned on a legal counsellor to defend that person at his or her trial and accept service of documents addressed to that person – 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 – Discretion of the competent authority of the executing Member State – Obligation to interpret national law in conformity with EU law )
In Case C‑447/24 [Höldermann], (i)
REQUEST for a preliminary ruling under Article 267 TFEU from the Kammergericht (Higher Regional Court, Berlin, Germany), made by decision of 21 June 2024, received at the Court on 25 June 2024, in the proceedings
Staatsanwaltschaft Berlin,
other party:
SO,
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: M. Siekierzyńska, Administrator,
having regard to the written procedure and further to the hearing on 15 May 2025,
after considering the observations submitted on behalf of:
–        SO, by K. Bobisch, Rechtsanwalt,
–        the Polish Government, by B. Majczyna and J. Sawicka, 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 9(1)(i) 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 Council Framework Decision 2009/299/JHA of 26 February 2009 (OJ 2009 L 81, p. 24) (‘Framework Decision 2008/909’).
2        The request has been made in proceedings concerning the recognition and enforcement, in Germany, of a judgment imposing a custodial sentence on a German national handed down by a Polish court following a trial at which that person did not appear in person.
Legal context
European Union law
Framework Decision 2002/584
3        Article 4a 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 Framework Decision 2009/299 (‘Framework Decision 2002/584’), 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
4        Under Article 1 of Framework Decision 2008/909, entitled ‘Definitions’:
‘For the purposes of this Framework Decision:
(a)      “judgment” shall mean a final decision or order of a court of the issuing State imposing a sentence on a natural person;
(b)      “sentence” shall mean any custodial sentence or any measure involving deprivation of liberty imposed for a limited or unlimited period of time on account of a criminal offence on the basis of criminal proceedings;
(c)      “issuing State” shall mean the Member State in which a judgment is delivered;
(d)      “executing State” shall mean the Member State to which a judgment is forwarded for the purpose of its recognition and enforcement.’
5        Article 3 of that framework decision, entitled ‘Purpose and scope’, provides, in paragraph 1 thereof:
‘The purpose of this Framework Decision is to establish the rules under which a Member State, with a view to facilitating the social rehabilitation of the sentenced person, is to recognise a judgment and enforce the sentence.’
6        Article 4 of that framework decision, entitled ‘Criteria for forwarding a judgment and a certificate to another Member State’, provides, in paragraph 1 thereof:
‘Provided that the sentenced person is in the issuing State or in the executing State, and provided that this person has given his or her consent where required under Article 6, a judgment, together with the certificate for which the standard form is given in Annex I, may be forwarded to one of the following Member States:
(a)      the Member State of nationality of the sentenced person in which he or she lives; …
…’
7        Article 8 of that framework decision, entitled ‘Recognition of the judgment and enforcement of the sentence’, provides, in paragraph 1 thereof:
‘The competent authority of the executing State shall recognise a judgment which has been forwarded in accordance with Article 4 and following the procedure under Article 5, and shall forthwith take all the necessary measures for the enforcement of the sentence, unless it decides to invoke one of the grounds for non-recognition and non-enforcement provided for in Article 9.’
8        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;
…’
Framework Decision 2009/299
9        Recitals 1, 4, 6, 8 and 15 of Framework Decision 2009/299 state:
‘(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’.
10      Article 1 of Framework Decision 2009/299, 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] …’
11      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
12      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.’
13      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.’
German law
14      Paragraph 84b of the Gesetz über internationale Rechtshilfe in Strafsachen (Law on international mutual legal assistance in criminal matters) in the version published on 27 June 1994 (BGB1. 1994 I, p. 1537), as amended by the Law of 19 December 2022 (BGB1. 2022 I, p. 2632) (‘the IRG’), entitled ‘Additional conditions governing permissibility’, provides:
‘(1)      Enforcement is not permissible if:
…
2.      the sentenced person did not appear in person at the trial which led to the decision,
…
(3)      By way of derogation from subparagraph (1)(2), enforcement shall also be permissible if:
1.      the sentenced person, in due time,
(a)      was summoned in person to appear at the trial which resulted in the decision, or
(b)      by other means actually received official information of the scheduled date and place of the trial which resulted in the decision in such a manner that it was unequivocally established that the sentenced person was aware of the hearing scheduled for the trial, and
(c)      was informed that a decision may also be handed down in absentia,
…
3.      the sentenced person, being aware of the hearing scheduled for the trial, mandated a lawyer to defend him or her at the hearing and was in fact defended by that lawyer at that trial.
(4)      By way of derogation from subparagraph (1)(2), enforcement shall furthermore be permissible if, following service of the decision, the sentenced person:
1.      has expressly stated that he or she will not contest the decision handed down; or
2.      did not request a retrial or lodge an appeal
within the applicable time limits.
Sentenced persons must first be expressly instructed about their right to a retrial or to an appeal on points of fact and law in which they have a right to participate and in which the merits of the case, including fresh evidence, may be re-examined and which may lead to the original decision being quashed.’
The main proceedings and the questions referred
15      By judgment handed down on 5 August 2019, the Sąd Okręgowy w Zielonej Górze (Regional Court, Zielona Góra, Poland) sentenced SO to a one-year custodial sentence for participation in an organised crime group.
16      By judgment of 24 March 2022, the Sąd Apelacyjny w Poznaniu (Court of Appeal, Poznań, Poland) dismissed the appeal brought against that judgment by SO’s defence counsel.
17      By order of 30 January 2023, the Sąd Okręgowy w Zielonej Górze (Regional Court, Zielona Góra) granted SO’s application to have the custodial sentence enforced in Germany on the ground that he was a German national, that his centre of interests was in Berlin (Germany) and that his family also lived in that Member State.
18      By letter of 2 February 2023, to which that order, the certificate referred to in Article 4(1) of Framework Decision 2008/909, the judgment of 5 August 2019 delivered at first instance, the judgment of 24 March 2022 delivered on appeal, together with the notification of SO’s application in Polish and German were annexed, that court asked the Staatsanwaltschaft Berlin (Public Prosecutor’s Office, Berlin, Germany), as the competent German authority, to assume responsibility for enforcing the sentence imposed on SO.
19      The Public Prosecutor’s Office, Berlin, thus filed an application with the chamber responsible for the enforcement of sentences of the Landgericht Berlin (Regional Court, Berlin, Germany) seeking a declaration that enforcement of the custodial sentence handed down in the judgment of 5 August 2019 was permissible.
20      Before that chamber responsible for the enforcement of sentences, SO objected to the application filed by the Public Prosecutor’s Office, Berlin, claiming, inter alia, that he had appeared in person at only 2 of the 28 hearings of his trial in Poland, which, according to him, at first instance spanned over four and a half years, and that he had also not appeared in person at the appeal hearing. SO states that he does not know whether he had been defended at first instance during the other 26 days of the hearing and at the appeal.
21      Since the chamber responsible for the enforcement of sentences had requested additional information from the Sąd Okręgowy w Zielonej Górze (Regional Court, Zielona Góra), the latter stated, by letter of 31 July 2023, that SO had appeared at first instance at three hearings in 2012 and 2014, submitted observations on the substance, and requested that other hearings be held in absentia in the event of his absence. SO had been informed of his right to attend the trial and of his obligations to communicate a change of his address for service and to designate an address for service in Poland. However, SO did not appear in person at the appeal, but was assisted by a defence counsel, who attended the hearings at both instances. Under Polish law, it is not obligatory for either the accused person or defence counsel to attend the appeal proceedings. The summons to attend the appeal had been served at the Polish address for service designated by SO, namely the law firm of his defence counsel.
22      By letter dated 19 September 2023, the Sąd Okręgowy w Zielonej Górze (Regional Court, Zielona Góra), following a further request from the chamber responsible for the enforcement of sentences of the Landgericht Berlin (Regional Court, Berlin), provided additional information concerning the trial at first instance.
23      By decision of 24 November 2023, the chamber responsible for the enforcement of sentences of the Landgericht Berlin (Regional Court, Berlin) rejected the application made by the Public Prosecutor’s Office, Berlin, seeking a declaration that enforcement of SO’s sentence in Germany was permissible, since, according to the information provided by the Sąd Okręgowy w Zielonej Górze (Regional Court, Zielona Góra), SO had not been summoned to a number of trial hearings, it being specified that there was no indication that proceedings that took place at those trial hearings at first instance concerned only the co-defendants, or that SO had received that information by other means. Nor had a defence counsel participated in those hearings on his behalf.
24      The Public Prosecutor’s Office, Berlin, brought an appeal against that decision before the Kammergericht (Higher Regional Court, Berlin, Germany), which is the referring court. In support of that action, it submits that the appearance of SO at certain hearings, during which he expressed his views on the merits and requested that he be tried even in his absence, is sufficient, since it was his independent decision not to take part in the proceedings on other days. Moreover, SO, acting through his defence counsel, had himself filed an application with the Sąd Okręgowy w Zielonej Górze (Regional Court, Zielona Góra) for his sentence to be enforced in Germany, thereby waiving the protection afforded by Paragraph 84b(1)(2) of the IRG.
25      According to a statement made by SO’s defence counsel, he was not aware of the appeal proceedings. A summons had not been served at his German address. Consequently, nor could he have given a mandate to a defence counsel to defend him at that trial while being aware of the hearing scheduled for that trial.
26      Following a request from the referring court, SO’s defence counsel before the Polish courts, by declaration dated 28 February 2024, stated that his powers extended both to the proceedings at first instance and to the appeal proceedings, that SO had designated the address of his law firm as the address to which service could be effected on him in Poland and to which letters could be validly served on him in accordance with Polish law and that, in the appeal proceedings, a colleague substituted for him. It was likely that he did not inform SO of the date of the hearing, since SO’s presence at the hearing was not mandatory and a colleague substituted for him.
27      In the first place, the referring court is uncertain whether a summons served on an agent appointed by the sentenced person to accept service, without the sentenced person having appeared himself or herself, satisfies the requirements of the first indent of Article 9(1)(i)(i) of Framework Decision 2008/909, so that it must recognise and enforce the judgment sentencing that person.
28      In that regard, that court considers that the concept of ‘trial resulting in the decision’ in Article 9(1)(i) of Framework Decision 2008/909 must be understood in the same way as the identical concept in Article 4a of Framework Decision 2002/584, which the Court has previously interpreted in the judgments of 10 August 2017, Tupikas (C‑270/17 PPU, EU:C:2017:628), and of 21 December 2023, Generalstaatsanwaltschaft Berlin (Conviction in absentia) (C‑397/22, EU:C:2023:1030), since the wording of those two provisions is identical, they were amended by the same framework decision and there is no reason to treat cases of surrender for the purposes of executing a European arrest warrant differently from cases of assuming responsibility for the enforcement of a sentencing judgment. Therefore, that concept should cover, where criminal proceedings comprise several instances, only the instance at which a final decision has been taken, after a fresh examination of the facts and law, on the guilt of the person concerned and his or her sentence. In the present case, that would be the appeal hearing of 24 March 2022 before the Sąd Apelacyjny w Poznaniu (Court of Appeal, Poznań) and not the trial at first instance taken into consideration by the chamber responsible for the enforcement of sentences of the Landgericht Berlin (Regional Court, Berlin).
29      The referring court is inclined to take the view that an answer in the negative to the question referred follows from the judgments of 24 May 2016, Dworzecki (C‑108/16 PPU, EU:C:2016:346), and of 21 December 2023, Generalstaatsanwaltschaft Berlin (Conviction in absentia) (C‑397/22, EU:C:2023:1030), concerning the provision drafted in identical terms in Article 4a(1)(a)(i) of Framework Decision 2002/584, in which the Court held that a summons handed to an adult belonging to the household of the person concerned, who has undertaken to hand it over to the person concerned, fulfils the conditions set out in that provision only if the European arrest warrant makes it possible to ascertain whether and, if so, when that person actually passed it on to the person concerned. An issuing judicial authority should therefore indicate in the European arrest warrant the evidence on which it based its finding that the person concerned actually received official information about the date and place of his or her trial. That case-law is likely to be transferable to the certificate provided for under Article 4(1) of Framework Decision 2008/909, which, in the present case, does not contain such information.
30      That being said, the facts of the dispute in the main proceedings differ from those which were examined in the cases which gave rise to those judgments in so far as, in the present case, the person on whom service was effected had been expressly designated by SO before the competent judicial authorities as the agent authorised to accept service by providing the defence counsel’s address as the address at which service could be effected. It could be inferred from this that SO wished service effected on the authorised service agent to be treated in the same way as service effected on him personally.
31      In the second place, in the event that the first question is answered in the negative, the referring court considers that it is necessary to examine whether the sentenced person who did not appear in person himself or herself was represented on appeal in such a way as to eliminate the ground for refusal to recognise and enforce the judgment sentencing that person. It therefore wishes to know whether the conditions for applying Article 9(1)(i)(ii) of Framework Decision 2008/909 are satisfied if that person, at the time he or she gives a mandate to his or her defence counsel to represent him or her, is aware not of the date of the trial, but only that a trial will take place.
32      That court states that, under that provision, the scheduling of the trial hearing must precede the granting of the mandate to a defence counsel. However, that does not necessarily apply to appeal proceedings. That court notes that, as a general rule, a person convicted at first instance who instructs his or her defence counsel to lodge an appeal will also grant his or her defence counsel a mandate to defend him or her at the appeal proceedings even in his or her absence, in so far as national law so permits and the presence of that person at the appeal proceedings is not mandatory. The same court observes that that person knows for certain that an appeal trial will take place, since he or she is lodging an appeal, but is not yet aware of the precise date on which the court of appeal will schedule the trial hearing.
33      According to the referring court, the mere fact of knowing that appeal proceedings will take place is sufficient, since, in the further course of the proceedings, it will be for the sentenced person who did not appear in person himself or herself at first instance to decide whether or not to maintain contact with the court and his or her defence counsel so as to be informed of the scheduled date for the appeal proceedings.
34      The referring court adds that, even in cases where the defence counsel lodges an appeal without the client’s knowledge, where, in the absence of contact with the client, he or she seeks, as a precautionary measure, to comply with the time limit for lodging the appeal, the appeal proceedings will not be continued without consulting the person concerned and obtaining his or her confirmation. Therefore, that court infers from the interventions by the chosen defence counsel and the lawyer who substituted him before the Sąd Apelacyjny w Poznaniu (Court of Appeal, Poznań) that consultation with SO did take place and that SO was therefore certainly aware that appeal proceedings were imminent, even if the date of the hearing had not yet been fixed at the time of that consultation.
35      In the third place, in the event that the first question is answered in the negative and the second question is answered to the effect that the trial hearing must already have been scheduled and that the person concerned must be aware of it at the time when the mandate is given to his or her defence counsel, the referring court notes that the assumption of responsibility for enforcement would not be permissible under Paragraph 84b(1)(2) of the IRG, since the derogation provided for in Paragraph 84b(3)(3) of the IRG, which transposes into German law Article 9(1)(i)(ii) of Framework Decision 2008/909, would not apply.
36      However, that court observes that, while Article 9(1) of Framework Decision 2008/909 grants discretion to the competent authority of the executing Member State, Paragraph 84b(1)(2) of the IRG provides for an absolute ground for refusal of recognition and enforcement. That court considers that it is not possible for it to interpret that provision contra legem, that is to say as meaning that, when examining the ground for refusal, it has a discretionary power which extends beyond the exceptions provided for in Paragraph 84b(3) and (4) of the IRG.
37      The referring court states that, if it had discretion, the assumption of responsibility for enforcement of the sentence would be deemed permissible. Despite the appeal that he lodged, SO did not maintain sufficient contact with the Polish judicial authorities and with his defence counsel, whose law firm address he had indicated as the address for service. He was clearly therefore not particularly interested in attending the appeal proceedings himself. Moreover, it was SO himself who had requested that responsibility for the enforcement of his sentence be assumed in Germany. In the light of those circumstances, that court finds no legitimate interest on SO’s part in a refusal to enforce his sentence in that Member State.
38      That leads the referring court to ask the Court of Justice about the compatibility of the German legislation with the principle of the primacy of EU law, even if an answer to the effect that it is incompatible may be inferred from the judgment of 21 December 2023, Generalstaatsanwaltschaft Berlin (Conviction in absentia) (C‑397/22, EU:C:2023:1030), in which the Court held that German law was incompatible with Article 4a(1) of Framework Decision 2002/584, the wording of which is identical to that of Article 9(1) of Framework Decision 2008/909.
39      In the fourth place, the referring court asks whether the sentenced person who did not appear himself or herself may waive the protection afforded by Article 9(1)(i) of Framework Decision 2008/909 and, if so, whether the application made by that person to the competent authority of the issuing Member State for the sentence to be enforced in his or her home Member State constitutes such a waiver.
40      SO’s conduct, in the present case, is contradictory since, on the one hand, he applied in Poland, without expressing any reservations or objections to the sentence, for the sentence to be enforced in Germany and, on the other, he is now raising objections in that regard in Germany, at the stage of enforcement. The referring court considers that that factor should be taken into account in the exercise of the discretion which it should be afforded to recognise and enforce a judgment sentencing a person who did not appear himself or herself. However, national law does not confer such discretion on it.
41      Even though Framework Decision 2008/909 does not contain any legal basis from which it could infer that the sentenced person who did not appear himself or herself may waive the protection arising from Article 9(1)(i) thereof, that court notes that that provision also covers situations in which the sentenced person can decide, through his or her own conduct during the proceedings, whether he or she wishes to rely on the protection against recognition and enforcement of a decision handed down in absentia. Point (iii) of that provision provides for the possibility for that person to waive the right to contest such a decision. If the enforceability of that decision could, to that extent, depend on the wishes of the sentenced person who did not appear himself or herself, it is also conceivable that the further enforcement of that decision depends on that same intention, which, in the present case, was expressed by SO when he applied to the Sąd Okręgowy w Zielonej Górze (Regional Court, Zielona Góra) for the sentence to be enforced in Germany.
42      In those circumstances the Kammergericht (Higher Regional Court, Berlin) decided to stay the proceedings and to refer the following questions to the Court of Justice for preliminary ruling:
‘(1)      Does a summons served on [an addressee for service in Poland mandated] by the sentenced person satisfy the requirements of the first indent of Article 9(1)(i)(i) of [Framework Decision 2008/909]?
(2)      Is Article 9(1)(i)(ii) of [Framework Decision 2008/909] to be understood as meaning that the trial must already have been scheduled at the time the mandate is given and that the person concerned must be aware of the scheduled date, or is it sufficient that the person concerned gives or confirms the mandate in the certain knowledge that a trial will take place?
(3)      Is it compatible with the primacy of [EU] law that the German legislature has framed the case of conviction in absentia as an absolute ground of non-admissibility under Paragraph 84(1)(2) of the [IRG], even though Article 9(1)(i) of [Framework Decision 2008/909] provides only for an optional ground for refusal in that respect?
(4)      Can the person concerned waive the protection afforded by Article 9(1)(i) of [Framework Decision 2008/909] and thus enable a decision rendered in absentia to be enforced even if the conditions laid down in Article 9(1)(i)(i) [to] (iii) of the framework decision are not met? Does making an application to the competent authority of the issuing State for enforcement in the home State constitute such a waiver?’
Consideration of the questions referred
Preliminary observations
43      It must be borne in mind that, like Framework Decision 2002/584, Framework Decision 2008/909 gives concrete expression, in criminal matters, to the principles of mutual trust and mutual recognition. That framework decision further develops judicial cooperation concerning the recognition and enforcement of criminal judgments where persons were sentenced to a custodial sentence or a measure involving deprivation of liberty in another Member State, with a view to facilitating their social rehabilitation (judgment of 4 September 2025, C.J. (Enforcement of a sentence further to an EAW), C‑305/22, EU:C:2025:665, paragraph 45 and the case-law cited).
44      Under Article 3(1) of Framework Decision 2008/909, the purpose of that framework decision is to establish the rules under which a Member State, with a view to facilitating the social rehabilitation of the sentenced person, is to recognise a judgment and enforce the sentence handed down by a court of another Member State.
45      To that end, Article 4(1)(a) of Framework Decision 2008/909 provides for the possibility that a judgment, together with the certificate for which the standard form is given in Annex I to that framework decision, is forwarded to the Member State of nationality of the sentenced person in the territory in which he or she lives.
46      In that context, Article 8(1) of Framework Decision 2008/909 provides that the competent authority of the executing Member State is, in principle, required to grant the request seeking recognition of a judgment and enforcement of a custodial sentence or measure involving deprivation of liberty handed down in another Member State, which has been forwarded to it in accordance with Articles 4 and 5 of that framework decision. That authority may, in principle, refuse to give effect to such a request only on the grounds for non-recognition and non-enforcement exhaustively listed in Article 9 of Framework Decision 2008/909 (judgment of 9 November 2023, Staatsanwaltschaft Aachen, C‑819/21, EU:C:2023:841, paragraph 20).
47      In particular, under Article 9(1)(i) of Framework Decision 2008/909, which is the subject of the request for a preliminary ruling, 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 the decision concerned.
48      In that regard, it must be borne in mind that the Court has held, in respect of Article 4a of Framework Decision 2002/584, that the concept of ‘trial resulting in the decision’, within the meaning of that provision, must be understood as referring to the proceedings that led to the judicial decision which finally sentenced the person whose surrender is sought in connection with the execution of a European arrest warrant (see, in particular, judgment of 21 December 2023, Generalstaatsanwaltschaft Berlin (Conviction in absentia), C‑398/22, EU:C:2023:1031, paragraph 29 and the case-law cited).
49      With regard, more specifically, to a case such as that at issue in the main proceedings, in which the trial took place at two successive instances, namely a first instance followed by appeal proceedings, the Court has held that it is the instance which led to the decision on appeal which is solely relevant for the purposes of Article 4a(1) of Framework Decision 2002/584, provided that those proceedings led to the final decision which is no longer subject to an ordinary appeal and which, accordingly, finally disposes of the case on the merits (see, in particular, judgment of 21 December 2023, Generalstaatsanwaltschaft Berlin (Conviction in absentia), C‑398/22, EU:C:2023:1031, paragraph 32 and the case-law cited).
50      As the Advocate General noted in point 45 of his Opinion, that interpretation of the concept of ‘trial resulting in the decision’ in Article 4a(1) of Framework Decision 2002/584 may be applied to Article 9(1)(i) of Framework Decision 2008/909, since those two provisions, which were inserted into the two Framework Decisions in question by the same EU act, namely by Framework Decision 2009/299, in particular by Article 2(1) and Article 5(1) of the latter framework decision respectively, have similar, or even identical, wording and have similar objectives concerning, inter alia, the right of the person concerned to appear in person at his or her trial and respect for the rights of the defence of the person concerned 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.
51      The same applies, for identical reasons, to the interpretation of other concepts set out in Article 4a(1) of Framework Decision 2002/584, as carried out by the Court in its case-law relating to that provision, in particular the interpretation concerning the concepts and expressions which are the subject of points (a) to (c) of that provision, including the terms corresponding exactly to those in points (i) to (iii) of Article 9(1)(i) of Framework Decision 2008/909, which are the subject of the questions referred.
52      It is in the light of the foregoing preliminary observations that those questions must be answered.
The first question
53      According to settled case-law, in the procedure laid down by Article 267 TFEU providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to determine the case before it. To that end, the Court should, where necessary, reformulate the questions referred to it. In that regard, it is for the Court to extract from all the information provided by the national court, in particular from the grounds of the order for reference, the points of EU law which require interpretation, having regard to the subject matter of the dispute (judgment of 5 June 2025, Nuratau, C‑349/24, EU:C:2025:397, paragraph 23 and the case-law cited).
54      In the present case, it is clear from the wording of the first question that it refers expressly to the situation covered in Article 9(1)(i)(i) of Framework Decision 2008/909. That situation concerns a situation in which, 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 the sentencing judgment but, in due time, in accordance with the first indent of that provision, either was summoned in person and thereby informed of the scheduled date and place of the trial which resulted in that judgment 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, in accordance with the second indent of that provision, was informed that a decision may be handed down if he or she did not appear for the trial.
55      It follows, however, from the order for reference that, in the case in the main proceedings, the referring court is not called upon to rule on a situation in which the person concerned was informed that a decision may be handed down if he or she did not appear, but on a situation in which the person concerned had given a mandate to a legal counsellor and was indeed defended by that counsellor at the trial, which is referred to in Article 9(1)(i)(ii) of that framework decision.
56      Therefore, the first question must be understood as inviting the Court to determine whether the latter provision must be interpreted as meaning that the condition of awareness of the scheduled trial set out in that provision is satisfied where a summons was not directly served on the person concerned, but on a legal counsellor who was given a mandate by the person concerned to defend him or her at the trial and who he or she has designated in the issuing Member State to accept service.
57      Under Article 9(1)(i) of Framework Decision 2008/909, the competent authority of the executing Member State may refuse to recognise and enforce a sentencing judgment 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 decision, unless that certificate states that the person concerned, in accordance with further procedural requirements defined in the national law of the issuing State, satisfies the conditions for applying one of the situations referred to in points (i), (ii) or (iii) of Article 9(1)(i).
58      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 decision, if the conditions for applying one of the situations referred to in points (i), (ii) or (iii) of Article 9(1)(i) of Framework Decision 2008/909 are satisfied (see, by analogy, judgment of 24 May 2016, Dworzecki, C‑108/16 PPU, EU:C:2016:346, paragraph 35).
59      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).
60      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 the person concerned, in due time, 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 Member State, to defend him or her at the trial, and was indeed defended by that counsellor at the trial.
61      Indeed, it is apparent from the Court’s case-law concerning Article 9(1)(i)(i) of Framework Decision 2008/909, which refers, in essence, as stated in paragraph 54 above, to the situation where the person concerned did not appear in person at the trial resulting in his or her conviction, but was summoned in person or by other means actually received official information of the scheduled date and place of the trial, that, as regards, inter alia, the wording of the first indent of that provision, according to which it must be unequivocally established that the person concerned ‘was aware of the scheduled trial’, the fact that the summons was handed over to a third party who undertook to pass it on to the person concerned does not allow it to be unequivocally established either that the person concerned actually received the information relating to the date and place of his or her trial or, where appropriate, the precise time when that information was received (see, by analogy, judgments of 24 May 2016, Dworzecki, C‑108/16 PPU, EU:C:2016:346, paragraph 47, and of 21 December 2023, Generalstaatsanwaltschaft Berlin (Conviction in absentia), C‑397/22, EU:C:2023:1030, paragraph 31).
62      However, the situation is different, as the Advocate General noted in point 53 of his Opinion, where a summons was served on a legal counsellor to whom the person concerned has given a mandate to defend him or her at the trial and who he or she designated in the issuing Member State to accept service.
63      The sending, by the competent authority of the issuing Member State, of that summons to the address of the firm of the legal counsellor for the person concerned is tantamount to informing the person concerned himself or herself, the latter being deemed, in that situation, to have received the summons (see, by analogy, judgment of 20 May 2025, Kachev, C‑135/25 PPU, EU:C:2025:366, paragraph 37 and the case-law cited).
64      Consequently, the answer to the first question is that Article 9(1)(i)(ii) of Framework Decision 2008/909 must be interpreted as meaning that the condition of awareness of the scheduled trial set out in that provision is satisfied where a summons was not directly served on the person concerned, but on a legal counsellor who was given a mandate by the person concerned to defend him or her at the trial and who he or she has designated in the issuing Member State to accept service.
The second question
65      By its second question, the referring court asks, in essence, whether Article 9(1)(i)(ii) of Framework Decision 2008/909 must be interpreted as meaning that the application of that provision is subject to the person concerned being aware of the scheduled date of the hearing for his or her trial when he or she gave a mandate to a legal counsellor to defend him or her at that trial.
66      It must be stated, at the outset, that under that provision, the competent authority of the executing Member State, in accordance with the case-law set out in paragraphs 57 to 59 above, is required to recognise and enforce a sentencing judgment where the person concerned did not appear in person at the trial resulting in that decision if the person concerned, 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 at that trial.
67      In order to answer the second question, it is necessary therefore 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 the national law of the Member States, 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).
68      In that regard, 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).
69      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 exact scheduled hearing date for the trial resulting in his or her conviction.
70      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’.
71      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 exact 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).
72      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’.
73      It must therefore be stated that it is apparent from the very wording of Article 9(1)(i)(i) of Framework Decision 2008/909 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.
74      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.
75      That interpretation is supported by the provisions 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’, 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).
76      In that regard, it must be borne in mind that, under Article 8(2) of Directive 2016/343, 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.
77      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).
78      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.
79      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).
80      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, alternatively, that it is such as to establish that the person concerned has voluntarily and unequivocally waived the right to appear at that trial.
81      In that context, it must again be stated that, contrary to what the wording of Article 9(1)(i)(ii) of Framework Decision 2008/909 could suggest, that provision cannot be understood as requiring that the information regarding the scheduled date and place of the hearing for the trial of the person concerned precedes the grant by that person of the mandate to the legal counsellor to defend him or her during that trial, in order not to impose excessive formal requirements, as the Advocate General stated in point 106 of his Opinion, such as the need to confirm or renew that mandate for the purpose of the appeal, even though that mandate was originally granted to cover the entirety of the proceedings.
82      In so far as that information seeks to enable the person concerned to appear in person at his or her trial, it is not important that he or she received that information before or after having given a mandate to a legal counsellor. Moreover, it must be noted that where the person concerned gives a mandate to a legal counsellor to lodge an appeal and to represent him or her in the context of the proceedings concerned, that mandate necessarily precedes the information as regards the scheduled date and place for the appeal proceedings which, by definition, are not yet known at that stage.
83      It thus follows from the foregoing that the requirement at the start of point (ii) of Article 9(1)(i) of Framework Decision 2008/909 requires the person concerned to be informed, in due time, of the scheduled date and place of the hearing for that trial without it being necessary for that person to have received that information before or after he or she gave a mandate to a legal counsellor to defend him or her during the trial.
84      Consequently, the answer to the second question is that Article 9(1)(i)(ii) of Framework Decision 2008/909 must be interpreted as meaning that the application of that provision is subject to the person concerned being informed, in due time, of the scheduled date of the hearing for his or her trial but not that the person concerned has that information before a mandate is given to a legal counsellor to defend him or her at that trial.
The third question
85      By its third question, the referring court asks, in essence, whether Article 9(1)(i) of Framework Decision 2008/909 must be interpreted as precluding national legislation which requires the competent authority of an executing Member State to refuse to recognise and enforce a sentencing judgment handed down in the issuing Member State where the conditions for applying the situations referred to in points (i) to (iii) of that provision are not satisfied.
86      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 Article 9(1)(i)(ii) 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 and enforce the sentencing judgment 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 that provision 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 58 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 that judgment, 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, in particular the conduct of that person, 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, paragraphs 76 and 78 and the case-law cited).
91      In the present case, it is apparent from the order for reference that the national legislation at issue in the main proceedings 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 applying the situations referred to in points (i), (ii) or (iii) of Article 9(1)(i) of Framework Decision 2008/909 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.
92      In those circumstances, it is apparent that such national legislation is contrary to Article 9(1)(i) of Framework Decision 2008/909.
93      In that regard, 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 the 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).
94      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).
95      It follows that, 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 in 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 the light of the wording and purpose of Framework Decision 2008/909, 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      Consequently, the answer to the third question is that Article 9(1)(i) of Framework Decision 2008/909 must be interpreted as precluding national legislation which requires the competent authority of an executing Member State to refuse to recognise and enforce a sentencing judgment handed down in the issuing Member State where none of the conditions for applying the situations referred to in points (i) to (iii) of that provision is satisfied.
The fourth question
97      By its fourth question, the referring court asks, in essence, whether Article 9(1)(i) of Framework Decision 2008/909 must be interpreted as meaning that the competent authority of the executing Member State may, where it finds that the conditions for applying the situations referred to in points (i) to (iii) of that provision are not satisfied, take into account the fact that the person concerned applied to the competent authority of the issuing Member State to have the sentence enforced in the Member State in which he or she is a national and where that person has his or her centre of interests in order to decide that that enforcement does not involve a breach of his or her rights of defence.
98      From the outset, it must be stated that the answer to that question, like the answer to the third question, is useful in the context of the main proceedings only where the referring court finds that, in the light of the answer to the second question, the conditions for applying the situation referred to in Article 9(1)(i)(ii) of that framework decision are not satisfied in the circumstances of the case in the main proceedings.
99      As has been noted in paragraphs 57 to 59 above, Article 9(1)(i) of that framework decision sets out in points (i) to (iii) thereof the conditions under which the person concerned must be deemed to have voluntarily and unequivocally waived his or her right to be present at the trial so that the competent authority of the executing Member State is required to recognise and enforce the sentencing judgment handed down following such a trial.
100    As the referring court observes in the order for reference, such a waiver may result from the conduct of the person concerned where, in accordance with the situation referred to in point (iii) of Article 9(1)(i), that person expressly stated that he or she did not contest the decision handed down following a trial at which he or she did not appear in person or that he or she did not apply for a retrial or an appeal within the prescribed time limit.
101    However, as the Advocate General stated in points 129 and 130 of his Opinion, the fact that the person concerned requested, as in the case in the main proceedings, the competent authority of the issuing Member State to enforce the sentence imposed on him or her following the trial at which he or she did not appear in person in the Member State of which he or she is a national and where that person has his or her centre of interests does not, as such, as the referring court correctly suggests in its fourth question, satisfy the conditions set out in that provision, since nothing prevents the person concerned from making such an application while reserving the right to challenge the sentencing judgment which imposed that sentence and to apply for a retrial.
102    That said, it must be borne in mind that it follows from the case-law set out in paragraph 90 above that the competent authority of the executing Member State may, after having found that the conditions for applying one of the situations referred to in points (i) to (iii) of Article 9(1)(i) of Framework Decision 2008/909 are not satisfied, take into account other circumstances that enable it to satisfy itself that the recognition and enforcement of the sentencing judgment concerned do not entail a breach of the rights of the defence of the person concerned, in particular the conduct of that person.
103    In those circumstances, the competent authority of the executing Member State may take into account an application, such as that made in the case in the main proceedings, to have the sentence enforced in the Member State in which the person concerned is a national and in which that person has his or her centre of interests, in order to decide that that enforcement does not involve 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 the conditions for applying the situations referred to in points (i) to (iii) of that provision are not satisfied.
104    Consequently, the answer to the fourth question is that Article 9(1)(i) of Framework Decision 2008/909 must be interpreted as meaning that the competent authority of the executing Member State may, where it finds that the conditions for applying the situations referred to in points (i) to (iii) of that provision are not satisfied, take into account the fact that the person concerned applied to the competent authority of the issuing Member State to have the sentence enforced in the Member State in which he or she is a national and where that person has his or her centre of interests in order to decide that that enforcement does not involve a breach of his or her rights of defence.
Costs
105    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 9(1)(i)(ii) 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 the condition of awareness of the scheduled trial set out in that provision is satisfied where a summons was not directly served on the person concerned, but on a legal counsellor who was given a mandate by the person concerned to defend him or her at the trial and who he or she has designated in the issuing Member State to accept service.
2.      Article 9(1)(i)(ii) of Framework Decision 2008/909, as amended by Framework Decision 2009/299,
must be interpreted as meaning that the application of that provision is subject to the person concerned being informed, in due time, of the scheduled date of the hearing for his or her trial but not that the person concerned has that information before a mandate is given to a legal counsellor to defend him or her at that trial.
3.      Article 9(1)(i) of Framework Decision 2008/909, as amended by Framework Decision 2009/299,
must be interpreted as precluding national legislation which requires the competent authority of an executing Member State to refuse to recognise and enforce a sentencing judgment handed down in the issuing Member State where none of the conditions for applying the situations referred to in points (i) to (iii) of that provision is satisfied.
4.      Article 9(1)(i) of Framework Decision 2008/909, as amended by Framework Decision 2009/299,
must be interpreted as meaning that the competent authority of the executing Member State may, where it finds that the conditions for applying the situations referred to in points (i) to (iii) of that provision are not satisfied, take into account the fact that the person concerned applied to the competent authority of the issuing Member State to have the sentence enforced in the Member State in which he or she is a national and where that person has his or her centre of interests in order to decide that that enforcement does not involve a breach of his or her rights of defence.
[Signatures]
*      Language of the case: German.
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.