Criminal proceedings against Daniel Adam Popławski.
Date: 2019-06-24
41


In that regard, it should be recalled that it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of a rule of EU law, the Court is in principle bound to give a ruling (judgment of 10 December 2018, Wightman and Others, C‑621/18, EU:C:2018:999, paragraph 26 and the case-law cited).
42


It follows that questions relating to EU law enjoy a presumption of relevance. The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgment of 10 December 2018, Wightman and Others, C‑621/18, EU:C:2018:999, paragraph 27 and the case-law cited).
45


As to the substance, it should be stated that Article 28(2) of Framework Decision 2008/909 derogates from the general arrangements laid down in Article 28(1) of that framework decision and that the implementation of that derogation is, moreover, unilaterally entrusted to each Member State. It follows that that provision must be given a strict interpretation (see, to that effect, judgment of 25 January 2017, van Vemde, C‑582/15, EU:C:2017:37, paragraph 30).
52


In order to answer that question, it should be noted, in the first place, that EU law is characterised by the fact that it stems from an independent source of law, the Treaties, by its primacy over the laws of the Member States and by the direct effect of a whole series of provisions which are applicable to their nationals and to the Member States themselves. These essential characteristics of EU law have given rise to a structured network of principles, rules and mutually interdependent legal relations linking the EU and its Member States, and its Member States with each other (see, inter alia, Opinion 2/13 of 18 December 2014, EU:C:2014:2454, paragraphs 166 and 167; judgment of 10 December 2018, Wightman and Others, C‑621/18, EU:C:2018:999, paragraph 45; and Opinion 1/17, of 30 April 2019, EU:C:2019:341, paragraph 109).
53


The principle of the primacy of EU law establishes the pre-eminence of EU law over the law of the Member States (judgment of 15 July 1964, Costa, 6/64, EU:C:1964:66, pp. 1159 and 1160).
54


That principle therefore requires all Member State bodies to give full effect to the various EU provisions, and the law of the Member States may not undermine the effect accorded to those various provisions in the territory of those States (see, to that effect, judgments of 26 February 2013, Melloni, C‑399/11, EU:C:2013:107, paragraph 59, and of 4 December 2018, Minister for Justice and Equality and Commissioner of An Garda Síochána, C‑378/17, EU:C:2018:979, point 39).
55


In that regard, it should be pointed out that the principle that national law must be interpreted in conformity with EU law, by virtue of which the national court is required, to the greatest extent possible, to interpret national law in conformity with the requirements of EU law, is inherent in the system of the treaties, since it permits the national court, within the limits of its jurisdiction, to ensure the full effectiveness of EU law when it determines the dispute before it (judgments of 19 December 2013, Koushkaki, C‑84/12, EU:C:2013:862, paragraphs 75 and 76; of 8 November 2016, Ognyanov, C‑554/14, EU:C:2016:835, paragraph 59; and of 29 June 2017, Popławski, C‑579/15, EU:C:2017:503, paragraph 31).
56


Similarly, the full effectiveness of EU rules would be impaired and the protection of the rights which they grant would be weakened if individuals were unable to obtain reparation when their rights are infringed by a breach of EU law for which a Member State can be held responsible (judgment of 19 November 1991, Francovich and Others, C‑6/90 and C‑9/90, EU:C:1991:428, paragraph 33).
57


It follows from the foregoing that, in order to ensure the effectiveness of all provisions of EU law, the primacy principle requires, inter alia, national courts to interpret, to the greatest extent possible, their national law in conformity with EU law and to afford individuals the possibility of obtaining redress where their rights have been impaired by a breach of EU law attributable to a Member State.
58


It is also in the light of the primacy principle that, where it is unable to interpret national law in compliance with the requirements of EU law, the national court which is called upon within the exercise of its jurisdiction to apply provisions of EU law is under a duty to give full effect to those provisions, if necessary refusing of its own motion to apply any conflicting provision of national legislation, even if adopted subsequently, and it is not necessary for that court to request or await the prior setting aside of such provision by legislative or other constitutional means (see, to that effect, judgment of 4 December 2018, Minister for Justice and Equality and Commissioner of An Garda Síochána, C‑378/17, EU:C:2018:979, paragraph 35 and the case-law cited).
59


That said, account should also be taken of the other essential characteristics of EU law and, more particularly, the fact that only some of the provisions of that law have direct effect.
60


Thus, the principle of the primacy of EU law cannot have the effect of undermining the essential distinction between provisions of EU law which have direct effect and those which do not and, consequently, of creating a single set of rules for the application of all of the provisions of EU law by the national courts.
61


In that regard, it should be pointed out that any national court, hearing a case within its jurisdiction, has, as an organ of a Member State, the obligation to disapply any provision of national law which is contrary to a provision of EU law with direct effect in the case pending before it (see, to that effect, judgments of 8 September 2010, Winner Wetten, C‑409/06, EU:C:2010:503, paragraph 55 and the case-law cited; of 24 January 2012, Dominguez, C‑282/10, EU:C:2012:33, paragraph 41; and of 6 November 2018, Bauer and Willmeroth, C‑569/16 and C‑570/16, EU:C:2018:871, paragraph 75).
62


On the other hand, a provision of EU law which does not have direct effect may not be relied on, as such, in a dispute coming under EU law in order to disapply a provision of national law that conflicts with it.
63


Thus the national court is not required, solely on the basis of EU law, to disapply a provision of national law which is incompatible with a provision of the Charter of Fundamental Rights of the European Union which, like Article 27, does not have direct effect (see, to that effect, judgment of 15 January 2014, Association de médiation sociale, C‑176/12, EU:C:2014:2, paragraphs 46 to 48).
64


Similarly, reliance on a provision of a directive which is not sufficiently clear, precise and unconditional to confer on it direct effect may not, solely on the basis of EU law, lead to a provision of national law being disapplied by a court of a Member State (see, to that effect, judgments of 24 January 2012, Dominguez, C‑282/10, EU:C:2012:33, paragraph 41; of 6 March 2014, Napoli, C‑595/12, EU:C:2014:128, paragraph 50; of 25 June 2015, Indėlių ir investicijų draudimas and Nemaniūnas, C‑671/13, EU:C:2015:418, paragraph 60; and of 16 July 2015, Larentia + Minerva and Marenave Schiffahrt, C‑108/14 and C‑109/14, EU:C:2015:496, paragraphs 51 and 52).
65


In addition, according to settled case-law, a directive cannot of itself impose obligations on an individual and cannot therefore be relied on as such against that individual before a national court (see, to that effect, judgments of 26 September 1996, Arcaro, C‑168/95, EU:C:1996:363, paragraph 36 and the case-law cited; of 17 July 2008, Arcor and Others, C‑152/07 to C‑154/07, EU:C:2008:426, paragraph 35; and of 22 January 2019, Cresco Investigation, C‑193/17, EU:C:2019:43, paragraph 72 and the case-law cited).
66


It should be recalled that, in accordance with the third paragraph of Article 288 TFEU, the binding nature of a directive, which constitutes the basis for the possibility of relying on it, exists only in relation to ‘each Member State to which it is addressed’ and that the European Union has the power to enact, in a general and abstract manner, obligations for individuals with immediate effect, only where it is empowered to adopt regulations (see, to that effect, judgments of 12 December 2013, Portgás, C‑425/12, EU:C:2013:829, paragraph 22, and of 22 January 2019, Cresco Investigation, C‑193/17, EU:C:2019:43, paragraph 72).
67


It follows from the foregoing that, even a clear, precise and unconditional provision of a directive does not allow a national court to disapply a provision of its national law which conflicts with it, if, in doing so, an additional obligation were to be imposed on an individual (see, to that effect, judgments of 3 May 2005, Berlusconi and Others, C‑387/02, C‑391/02 and C‑403/02, EU:C:2005:270, paragraphs 72 and 73; of 17 July 2008, Arcor and Others, C‑152/07 to C‑154/07, EU:C:2008:426, paragraphs 35 to 44; of 27 February 2014, OSA, C‑351/12, EU:C:2014:110, paragraphs 46 and 47; of 7 August 2018, Smith, C‑122/17, EU:C:2018:631, point 49; and of 22 January 2019, Cresco Investigation, C‑193/17, EU:C:2019:43, paragraph 73).
69


It should be stated, in the second place, that neither Framework Decision 2002/584 nor Framework Decision 2008/909 has direct effect. That is because those framework decisions were adopted on the basis of the former third pillar of the European Union, in particular, under Article 34(2)(b) EU. That provision stated, 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 (judgments of 8 November 2016, Ognyanov, C‑554/14, EU:C:2016:835, paragraph 56, and of 29 June 2017, Popławski, C‑579/15, EU:C:2017:503, paragraph 26).
70


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 Decisions 2002/584 and 2008/909 have not been subject to any such repeal, annulment or amendment, they continue therefore to have the legal effect attributed to them under Article 34(2)(b) EU (judgment of 8 November 2016, Ognyanov, C‑554/14, EU:C:2016:835, paragraph 57).
71


Since those framework decisions do not have direct effect under the EU Treaty itself, it follows from paragraph 68 above that a court of a Member State is not required, solely on the basis of EU law, to disapply a provision of its national law which is contrary to those framework decisions.
72


In the third place, it should be recalled that, although the framework decisions cannot have direct effect, their binding character nevertheless places on national authorities 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 (judgment of 8 November 2016, Ognyanov, C‑554/14, EU:C:2016:835, paragraphs 58 and 61).
73


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 in order to achieve the result sought by that decision (see, to that effect, judgments of 16 June 2005, Pupino, C‑105/03, EU:C:2005:386, paragraph 43; of 5 September 2012, Lopes Da Silva Jorge, C‑42/11, EU:C:2012:517, paragraph 54; of 8 November 2016, Ognyanov, C‑554/14, EU:C:2016:835, paragraph 59; and of 29 June 2017, Popławski, C‑579/15, EU:C:2017:503, paragraph 31).
75


Thus, the general principles of law, in particular the principles of legal certainty and non-retroactivity, preclude inter alia that obligation to interpret national law in conformity with EU law from leading to the criminal liability of individuals being determined or aggravated, on the basis of a framework decision alone, in the absence of any legislation implementing its provisions, where they committed an infringement (judgments of 8 November 2016, Ognyanov, C‑554/14, EU:C:2016:835, paragraphs 63 to 64 and the case-law cited, and of 29 June 2017, Popławski, C‑579/15, EU:C:2017:503, paragraph 32).
76


Similarly, the principle of conforming interpretation cannot serve as the basis for an interpretation of national law contra legem (judgment of 29 June 2017, Popławski, C‑579/15, EU:C:2017:503, paragraph 33 and the case-law cited). In other words, the obligation to interpret national law in conformity with EU law ceases when the former cannot be applied in a way that leads to a result compatible with that envisaged by the framework decision concerned (judgment of 8 November 2016, Ognyanov, C‑554/14, EU:C:2016:835, paragraph 66).
77


That being so, 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 (see, to that effect, judgments of 5 September 2012, Lopes Da Silva Jorge, C‑42/11, EU:C:2012:517, paragraph 56; of 29 June 2017, Popławski, C‑579/15, EU:C:2017:503, paragraph 34; and of 12 February 2019, TC, C‑492/18 PPU, EU:C:2019:108, paragraph 68).
78


In that context, 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 and to disapply, on their own authority, the interpretation adopted by a higher court which it must follow in accordance with its national law, if that interpretation is not compatible with the framework decision concerned (see, to that effect, judgments of 19 April 2016, DI, C‑441/14, EU:C:2016:278, paragraph 33, and of 29 June 2017, Popławski, C‑579/15, EU:C:2017:503, paragraphs 35 and 36).
79


Consequently, a national court cannot validly claim that it is impossible for it to interpret a provision of national law in a manner that is consistent with EU law merely because that provision has consistently been interpreted in a manner that is incompatible with EU law (judgments of 8 November 2016, Ognyanov, C‑554/14, EU:C:2016:835, paragraph 69, and of 6 November 2018, Max-Planck-Gesellschaft zur Förderung der Wissenschaften, C‑684/16, EU:C:2018:874, paragraph 60) or is applied in such a manner by the relevant national authorities.
82


It should be observed that the impunity of the requested person would be incompatible with the objective pursued both by Framework Decision 2002/584 (see, to that effect, judgments of 29 June 2017, Popławski, C‑579/15, EU:C:2017:503, paragraph 23, and of 13 December 2018, Sut, C‑514/17, EU:C:2018:1016, paragraph 47) and by Article 3(2) TEU, under which the European Union offers its citizens an area of freedom, security and justice without internal frontiers, in which the free movement of persons is ensured in conjunction with appropriate measures, in particular with respect to external border controls and the prevention and combating of crime (judgment of 25 July 2018, Generalstaatsanwaltschaft (Conditions of detention in Hungary), C‑220/18 PPU, EU:C:2018:589, paragraph 86).
83


The Court also stated that, since the obligation referred to in paragraph 81 above 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) it cannot, a fortiori, be regarded as aggravating that liability, within the meaning of paragraph 75 above (judgment of 29 June 2017, Popławski, C‑579/15, EU:C:2017:503, paragraph 37).
87


In those circumstances, it should be stated that the Court, when called on to provide answers that are of use to the national court in the context of a reference for a preliminary ruling, may offer clarification intended to provide the national court with guidance and indicate to it which interpretation of national law would fulfil its obligation to interpret that law in conformity with EU law (judgment of 17 October 2018, Klohn, C‑167/17, EU:C:2018:833, paragraph 68).
88


In the present case, with regard, first of all, to the obligation, laid down in Article 4(6) of Framework Decision 2002/584 and recalled to in paragraph 86 above, to ensure, in the event of a refusal to execute the EAW, that the custodial sentence is actually enforced by the executing Member State, it should be pointed out that that obligation presupposes an actual undertaking on the part of that 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. It follows 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 (judgment of 29 June 2017, Popławski, C‑579/15, EU:C:2017:503, paragraph 22).
91


First, as is apparent from the Court’s case-law, according to recitals 5, 7 and 11 and Article 1(1) and (2) of Framework Decision 2002/584, in relations between Member States, that decision replaces all the previous instruments concerning extradition, including the conventions which existed between the different Member States. In addition, given that that framework decision 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 (see, to that effect, judgments of 29 June 2017, Popławski, C‑579/15, EU:C:2017:503, paragraph 41, and of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice), C‑216/18 PPU, EU:C:2018:586, paragraph 39).
92


Secondly, the Court also held that 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, in the version applicable until the entry into force of the WETS, from being interpreted as meaning 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 (judgment of 29 June 2017, Popławski, C‑579/15, EU:C:2017:503, paragraph 42).
96


This is all the more so since Framework Decision 2002/584 creates a mechanism for cooperation between the judicial authorities of the Member States and the decision on the execution of the EAW must be taken by a judicial authority that meets the requirements inherent in effective judicial protection, including the guarantee of independence, so that the entire procedure provided for by the framework decision is carried out under judicial supervision (see, to that effect, judgment of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice), C‑216/18 PPU, EU:C:2018:586, paragraph 56). It follows that, since the Minister is not a judicial authority for the purposes of the framework decision (see, to that effect, judgment of 10 November 2016, Kovalkovas, C‑477/16 PPU, EU:C:2016:861, paragraph 45), the decision on the execution of the EAW made against Mr Popławski cannot depend on the Minister’s interpretation of Article 6(3) of the OLW.
97


Consequently, the referring court cannot, in the main proceedings, validly claim that it is impossible for it to interpret Article 6(3) in a manner that is compatible with EU law, for the sole reason that that provision has been interpreted, by the Minister, in a way that is not compatible with EU law (see, by analogy, judgment of 8 November 2016, Ognyanov, C‑554/14, EU:C:2016:835, paragraph 69).
99


Next, with regard to the obligation, laid down in Article 4(6) of Framework Decision 2002/584 and referred to in paragraph 86 above, to ensure that the executing judicial authority has a margin of discretion in the implementation of the ground for optional non-execution of the EAW provided for in that provision, it should be recalled, first of all, that that authority must be able to take into consideration the objective pursued by the ground for optional non-execution set out in that provision, which, according to the Court’s well-established 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 (judgment of 29 June 2017, Popławski, C‑579/15, EU:C:2017:503, paragraph 21).
100


It follows that the option conferred on the executing judicial authority to refuse, on the basis of Article 4(6), to surrender the requested person may be exercised only if that authority, after having ascertained, first, that the person is staying in, or is a national or a resident of the executing Member State and, second, that the custodial sentence passed in the issuing Member State against that person can actually be enforced in the executing Member State, considers that there is a legitimate interest which would justify the sentence imposed in the issuing Member State being enforced in the executing Member State (judgment of 13 December 2018, Sut, C‑514/17, EU:C:2018:1016, paragraph 37).
102


At the very least, that court should interpret its national law in a way that makes it possible for it to reach a solution which, in the main proceedings, is not contrary to the objective pursued by Framework Decision 2002/584. The obligation to interpret national law in conformity with EU law persists for as long as the former can be applied in a way that leads to a result which is compatible with that envisaged by that framework decision (see, to that effect, judgment of 8 November 2016, Ognyanov, C‑554/14, EU:C:2016:835, paragraph 66).
103


In that regard, it is apparent from the conditions governing the implementation of the ground for optional non-execution of the EAW, provided for in Article 4(6) of Framework Decision 2002/584, that the EU legislature wanted to avoid any risk of impunity of the requested person (see, to that effect, judgment of 13 December 2018, Sut, C‑514/17, EU:C:2018:1016, paragraph 47), in accordance with the general purpose of that framework decision, as was stated in paragraph 82 above.