Criminal proceedings against Ognyanov.
Date: 2016-11-08
31


In order to answer that question, it must be recalled that the Court has consistently held that, in interpreting a provision of EU law, it is necessary to consider not only its wording but also the context in which it occurs and the objectives pursued by the rules of which it is part (judgment of 16 July 2015, Lanigan, C‑237/15 PPU, EU:C:2015:474, paragraph 35).
46


An interpretation to the contrary would be likely, last, to undermine the objectives pursued by Framework Decision 2008/909, those objectives including respect for the principle of mutual recognition, which constitutes, as stated in recital 1 of Framework Decision 2008/909, read in the light of Article 82(1) TFEU, the ‘cornerstone’ of judicial cooperation in criminal matters within the European Union (see, to that effect, judgment of 5 April 2016, Aranyosi and Căldăraru, C‑404/15 and C‑659/15 PPU, EU:C:2016:198, paragraph 79).
47


In that regard, recital 5 of Framework Decision 2008/909 states that that cooperation is founded on a special mutual confidence of the Member States in their respective legal systems.
56


That said, it must further be observed that, contrary to what seems to be suggested by both the referring court and the European Commission, Framework Decision 2008/909 has no 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. That provision states, first, that framework decisions are binding on the Member States as to the result to be achieved, but leave to the national authorities the choice of form and methods, and, second, that framework decisions are not to entail direct effect.
57


In that regard, it is important to point out that, in accordance with Article 9 of Protocol (No 36) on transitional provisions, annexed to the treaties, the legal effects of the acts of the institutions, bodies, offices and agencies of the Union adopted on the basis of the Treaty on European Union prior to the entry into force of the Treaty of Lisbon are to be preserved until those acts are repealed, annulled or amended in implementation of the treaties. Since Framework Decision 2008/909 has not been subject to any such repeal, annulment or amendment, it continues therefore to have the legal effect attributed to it under Article 34(2)(b) EU.
58


It is also settled case-law that although framework decisions may not entail direct effect, as laid down in Article 34(2)(b) EU, their binding character nevertheless places on national authorities, and in particular on national courts, an obligation to interpret national law in conformity with EU law (see judgment of 5 September 2012, Lopes Da Silva Jorge, C‑42/11, EU:C:2012:517, paragraph 53 and the case-law cited).
59


When national 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 (see judgment of 5 September 2012, Lopes Da Silva Jorge, C‑42/11, EU:C:2012:517, paragraph 54 and the case-law cited).
61


In that regard, it must be observed that the referring court is bound to respect the principle of interpreting national law in conformity with EU law as from the date of expiry of the period for the transposition of that Framework Decision (see, by analogy, judgment of 4 July 2006, Adeneler and Others, C‑212/04, EU:C:2006:443, paragraphs 115 and 124).
62


However, it must be borne in mind that the principle of interpreting national law in conformity with EU law has certain limitations.
63


Thus, the obligation on a national court to refer to the content of a framework decision when it interprets and applies the relevant rules of its national law is limited by the general principles of law, in particular, the principles of legal certainty and non-retroactivity (see judgments of 16 June 2005, Pupino, C‑105/03, EU:C:2005:386, paragraph 44, and 5 September 2012, Lopes Da Silva Jorge, C‑42/11, EU:C:2012:517, paragraph 55).
64


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 (see judgment of 16 June 2005, Pupino, C‑105/03, EU:C:2005:386, paragraph 45).
66


The obligation to interpret national law in conformity with EU law ceases, moreover, when the former cannot be applied in a way that would lead to a result compatible with that envisaged by that framework decision. In other words, that principle cannot serve as the basis for an interpretation of national law contra legem. That principle does, however, require that the national court consider, where necessary, the whole body of national law in order to assess how far it can be applied in such a way as not to produce a result contrary to that envisaged by the framework decision (see judgments of 16 June 2005, Pupino, C‑105/03, EU:C:2005:386, paragraph 47, and of 5 September 2012, Lopes Da Silva Jorge, C‑42/11, EU:C:2012:517, paragraphs 55 and 56).
67


Against that background, it must be made clear that the requirement to interpret national law in conformity with EU law includes the obligation, on national courts, including those ruling as courts of last instance, to alter, where necessary, settled case-law if that case-law is based on an interpretation of national law that is incompatible with the objectives of a framework decision (see, by analogy, judgments of 19 April 2016, DI, C‑441/14, EU:C:2016:278, paragraph 33, and 5 July 2016, Ognyanov, C‑614/14, EU:C:2016:514, paragraph 35).
68


In this case, it is apparent from the documents submitted to the Court that the national rules at issue in the main proceedings, to the effect that work in the general interest carried out, in the issuing State, by the Bulgarian prisoner who was sentenced and transferred must be taken into account by the competent authority of the executing State with a view to reduction in the sentence, stems from an interpretation of Article 457(5) of the NPK, read together with Article 41(3) of the Criminal Code, adopted by the Varhoven kasatsionen sad (Supreme Court of Appeal) in its interpretative judgment.
69


Consequently, the referring court cannot, in the main proceedings, validly claim that it is impossible for it to interpret the provision of national law at issue in a manner that is compatible with EU law, for the sole reason that that provision has been interpreted, by Varhoven kasatsionen sad (Supreme Court of Appeal), in a way that is not compatible with EU law (see, to that effect, judgment of 19 April 2016, DI, C‑441/14, EU:C:2016:278, paragraph 34).
70


In those circumstances, it is for the referring court to ensure that Framework Decision 2008/909 is given full effect, and if necessary to disapply, on its own authority, the interpretation adopted by the Varhoven kasatsionen sad (Supreme Court of Appeal), since that interpretation is not compatible with EU law (see, to that effect, judgment of 5 July 2016, Ognyanov, C‑614/14, EU:C:2016:514, paragraph 36).