19.

Expressing doubts, therefore, as to whether Article 6(2) to (4) of the OLW is in conformity with Article 4(6) of Framework Decision 2002/584, which allows the executing Member State to refuse surrender only if it ‘undertakes’ to execute the sentence in accordance with its domestic law, the Rechtbank Amsterdam (District Court, Amsterdam) decided to stay the proceedings and refer the following questions to the Court of Justice for a preliminary ruling: ‘1. May a Member State transpose Article 4(6) of Framework Decision 2002/584/JHA in its domestic law in such a way that: — its executing judicial authority is, without more, obliged to refuse surrender, for purposes of executing a sentence, of a national or resident of the executing Member State, — by operation of law, that refusal gives rise to the willingness to take over the execution of the custodial sentence imposed on the national or resident, — the decision to take over execution of the sentence is [however] taken only after refusal of surrender for purposes of executing the sentence, and a positive decision is dependent on (1) a legal basis for the decision in a treaty or convention which is in force between the issuing Member State and the executing Member State, (2) the conditions set by that treaty or convention, and (3) the cooperation of the issuing Member State by, for example, making a request to that effect, with the result that there is a risk that, following refusal of surrender for purposes of executing the sentence, the executing Member State cannot take over execution of that sentence, while that risk does not affect the obligation to refuse surrender for purposes of executing the sentence? 2. If the answer to Question 1 is in the negative: (a) Can the national courts apply the provisions of Framework Decision 2002/584/JHA directly even though, under Article 9 of Protocol (No 36) on transitional provisions [annexed to the Treaties], the legal effects of that framework decision are preserved after the entry into force of the Treaty of Lisbon until that framework decision is repealed, annulled or amended? (b) If so, is Article 4(6) of Framework Decision 2002/584/JHA sufficiently precise and unconditional to be applied by the national courts? 3. If the answers to Questions 1 and 2(b) are in the negative, may a Member State whose national law requires that the taking-over of the execution of the foreign custodial sentence must be based on an appropriate treaty or convention transpose Article 4(6) of Framework Decision 2002/584/JHA in its national law in such a way that Article 4(6) of Framework Decision 2002/584/JHA itself provides the required conventional basis, in order to avoid the risk of impunity associated with the national requirement of a conventional basis? 4. If the answers to Questions 1 and 2(b) are in the negative, may a Member State transpose Article 4(6) of Framework Decision 2002/584/JHA in its national law in such a way that, for refusal of surrender for purposes of executing a sentence in respect of a resident of the executing Member State who is a national of another Member State, it sets the condition that the executing Member State must have jurisdiction in respect of the offences cited in the European arrest warrant and that there must be no actual obstacles in the way of a (possible) criminal prosecution in the executing Member State of that resident in respect of those offences (such as the refusal by the issuing Member State to hand over the case-file to the executing Member State), whereas it does not set such a condition for refusal of surrender for purposes of executing a sentence in respect of a national of the executing Member State?’