Daniel Adam Popławski.
Date: 2017-06-29
16


In that regard, the Court has already held that it must in principle confine its examination to the matters which the referring court has decided to submit to it in its request for a preliminary ruling. Thus, as regards the application of the relevant national legislation, the Court must proceed on the basis of the situation which the referring court considers to be established (judgment of 8 June 2016,Hünnebeck, C‑479/14, EU:C:2016:412, paragraph 36 and the case-law cited). It is clear from the settled case-law of the Court 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 and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance (judgment of 8 December 2016, Eurosaneamientos and Others, C‑532/15 and C‑538/15, EU:C:2016:932, paragraph 28 and the case-law cited).
19


In that regard, it is apparent, first of all, from Article 1(2) of framework decision 2002/584 that that decision lays down the principle that Member States must execute any EAW on the basis of the principle of mutual recognition and in accordance with the provisions of that framework decision. Save in exceptional circumstances, the executing judicial authorities, as the Court has already held, may refuse to execute such a warrant only in the cases of non-execution, exhaustively listed and laid down by the framework decision, and the execution of the EAW may be made subject only to one of the conditions exhaustively laid down by that framework decision (see, to that effect, judgment of 5 April 2016, Aranyosi and Căldăraru, C‑404/15 and C‑659/15 PPU, EU:C:2016:198, paragraphs 80 and 82 and the case-law cited). Accordingly, while the execution of the EAW constitutes the rule, the refusal to execute is intended to be an exception which must be interpreted strictly.
21


It is clear from the actual wording of Article 4(6) of Framework Decision 2002/584, as the Advocate General stated in point 30 of his Opinion, that, where a Member State chose to transpose that provision into domestic law, the executing judicial authority must, nevertheless, have a margin of discretion as to whether or not it is appropriate to refuse to execute the EAW. In that regard, that authority must take into consideration the objective of the ground for optional non-execution set out in that provision, which, according to the Court’s settled case-law, means enabling the executing judicial authority to give particular weight to the possibility of increasing the requested person’s chances of reintegrating into society when the sentence imposed on him expires (see, to that effect, judgment of 5 September 2012, Lopes Da Silva Jorge, C‑42/11, EU:C:2012:517, paragraph 32 and the case-law cited).
22


It also follows from the wording of Article 4(6) of Framework Decision 2002/584, as the Advocate General stated in point 45 of his Opinion, that any refusal to execute an EAW presupposes an actual undertaking on the part of the executing Member State to execute the custodial sentence imposed on the requested person, even though, in any event, the mere fact that that Member State declares itself ‘willing’ to execute the sentence could not be regarded as justifying such a refusal. This indicates that any refusal to execute an EAW must be preceded by the executing judicial authority’s examination of whether it is actually possible to execute the sentence in accordance with its domestic law. In the event that the executing Member State finds that it is in fact impossible to undertake to execute the sentence, it falls to the executing judicial authority to execute the EAW and, therefore, to surrender the requested person to the issuing Member State.
23


Accordingly, legislation of a Member State which implements Article 4(6) of Framework Decision 2002/584 by providing that its judicial authorities are, in any event, obliged to refuse to execute an EAW in the event that the requested person resides in that Member State, without those authorities having any margin of discretion, and without that Member State actually undertaking to execute the custodial sentence pronounced against that requested person, thereby creating a risk of impunity of that requested person, cannot be regarded as compatible with that framework decision.
26


In that regard, it must be pointed out that Framework Decision 2002/584 does not have direct effect. That is because that framework decision was adopted on the basis of the former third pillar of the European Union, in particular, under Article 34(2)(b) EU (in the version prior to the Lisbon Treaty). That provision stated that framework decisions are not to entail direct effect (see, by analogy, judgment of 8 November 2016, Ognyanov, C‑554/14, EU:C:2016:835, paragraph 56).
28


Although the provisions of Framework Decision 2002/584 may not, therefore, entail direct effect, in accordance with Article 34(2)(b) EU, that framework decision is still binding on the Member States as to the result to be achieved, but leaves to the national authorities the choice of form and methods (see, by analogy, judgment of 8 November 2016, Ognyanov, C‑554/14, EU:C:2016:835, paragraph 56).
30


In that context, it must be recalled that, in accordance with the Court’s settled case-law, Member States must take all appropriate measures, whether general or particular, to ensure fulfilment of their obligations under a framework decision (see, to that effect, by analogy, judgment of 16 June 2005, Pupino, C‑105/03, EU:C:2005:386, paragraph 42).
31


In particular, it is clear from the Court’s settled case-law, that the binding character of a framework decision places on national authorities, including national courts, an obligation to interpret national law in conformity with EU law. When those courts apply domestic law, they are therefore bound to interpret it, so far as possible, in the light of the wording and the purpose of the framework decision concerned in order to achieve the result sought by it. This obligation to interpret national law in conformity with EU law is inherent in the system of the FEU Treaty, since it permits national courts, for the matters within their jurisdiction, to ensure the full effectiveness of EU law when they rule on the disputes before them (judgment of 8 November 2016, Ognyanov, C‑554/14, EU:C:2016:835, paragraphs 58 and 59 and the case-law cited).
32


It is true that the principle of interpreting national law in conformity with EU law has certain limitations. Thus, the obligation on the national court to refer to the content of a framework decision when interpreting and applying the relevant rules of its national law is limited by general principles of law, particularly those of legal certainty and non-retroactivity. In particular, those principles preclude that obligation from leading to the criminal liability of individuals being determined or aggravated, on the basis of a framework decision alone, absent any legislation implementing its provisions, where they are in breach of those provisions (judgment of 8 November 2016, Ognyanov, C‑554/14, EU:C:2016:835, paragraphs 62 to 64 and the case-law cited).
33


Moreover, the principle of conforming interpretation cannot serve as the basis for an interpretation of national law contra legem (judgment of 28 July 2016, JZ, C‑294/16 PPU, EU:C:2016:610, paragraph 33 and the case-law cited).
34


However, the fact remains that the principle that national law must be interpreted in conformity with EU law requires national courts to do whatever lies within their jurisdiction, taking the whole body of domestic law into consideration and applying the interpretative methods recognised by it, with a view to ensuring that the framework decision in question is fully effective and to achieving an outcome consistent with the objective pursued by it (judgment of 5 September 2012, Lopes Da Silva Jorge, C‑42/11, EU:C:2012:517, paragraph 56 and the case-law cited).
35


In that connection, the Court has already held that the obligation to interpret domestic law in conformity with EU law requires national courts to change established case-law, where necessary, if it is based on an interpretation of domestic law that is incompatible with the objectives of a framework decision (judgment of 8 November 2016, Ognyanov, C‑554/14, EU:C:2016:835, paragraph 67 and the case-law cited).
36


The Court has also held that, in a situation where a national court claims that it is impossible for it to interpret a provision of domestic law in a manner that is compatible with a framework decision, on the ground that it is bound by the interpretation given to that national provision by the national Supreme Court in an interpretative judgment, it is for that national court to ensure that the framework decision is given full effect, and if necessary to disapply, on its own authority, the interpretation adopted by the national Supreme Court, since that interpretation is not compatible with EU law (see, to that effect, judgment of 8 November 2016, Ognyanov, C‑554/14, EU:C:2016:835, paragraphs 69 and 70).
37


Having made those preliminary points, it must be made clear that, in the present case, although the national court’s obligation to ensure the complete effectiveness of Framework Decision 2002/584 brings with it the obligation for the Netherlands State to execute the EAW in question or, in the event of a refusal, the obligation to ensure that the sentence pronounced in Poland is actually executed, it has no bearing on the determination of Mr Popławski’s criminal liability which stems from the judgment pronounced against him on 5 February 2007 by the Sąd Rejonowy w Poznaniu (District Court, Poznań) and, a fortiori, cannot be regarded as aggravating that liability.
39


In that regard, it must be recalled that the Court has consistently held that it does not have jurisdiction to interpret the domestic law of a Member State (judgment of 16 February 2017, Agro Foreign Trade & Agency, C‑507/15, EU:C:2017:129, paragraph 23 and the case-law cited). It is therefore for the referring court alone to assess whether Netherlands law may be interpreted to the effect that it puts Framework Decision 2002/584 on the same footing as that formal legal basis, for the purposes of Article 6(3) of the OLW.
40


However, the Court, which is called on to provide answers that are of use to the national court in context of a reference for a preliminary ruling, may provide guidance, based on the file in the main proceedings and on the written and oral observations which have been submitted to it, in order to enable the national court to give judgment (see, to that effect, judgment of 17 July 2014, Leone, C‑173/13, EU:C:2014:2090, paragraph 56).
41


With that in mind, it must be stated, first, that, in accordance with recital 11 of Framework Decision 2002/584, in relations between Member States, the EAW must replace all the previous instruments concerning extradition, including the provisions of Title III of the Convention implementing the Schengen Agreement, referred to in paragraph 3 above, relating to extradition. Given that the framework decision has thus replaced all conventions which existed between Member States and that it coexists, whilst having its own legal arrangements defined by EU law, with the extradition conventions in force between the various Member States and third States, it is not inconceivable that that framework decision could be placed on the same footing as such a convention.
42


Secondly, Framework Decision 2002/584 does not contain any provision which leads to the conclusion that it precludes the term ‘another applicable convention’, in Article 6(3) of the OLW, from being interpreted to the effect that it also covers Article 4(6) of that framework decision, provided that such an interpretation would ensure that the discretionary power of the executing judicial authority to refuse to execute the EAW is exercised only on condition that the sentence pronounced against Mr Popławski is in fact executed in the Netherlands and a solution that is compatible with the purpose of that framework decision is thus achieved.