1 This request for a preliminary ruling concerns the interpretation of Article 4a(1) 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 Council Framework Decision 2009/299/JHA of 26 February 2009 (OJ 2009 L 81, p. 24) (‘Framework Decision 2002/584’).
2 The request has been made in proceedings relating to the execution, in Germany, of the European arrest warrant issued against a Polish national with a view to executing a custodial sentence in Poland.
3 Article 1 of Framework Decision 2002/584, entitled ‘Definition of the European arrest warrant and obligation to execute it’, provides: ‘1. The European arrest warrant is a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order. 2. Member States shall execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of this Framework Decision. 3. 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 [TEU].’
4 Article 4a(1) of that framework decision, entitled ‘Decisions rendered following a trial at which the person did not appear in person’, is worded as follows: ‘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; …’
5 Paragraph 83(1)(3) of the Gesetz über die internationale Rechtshilfe in Strafsachen (Law on international mutual legal assistance in criminal matters), of 23 December 1982 (BGBl. 1982 I, p. 2071), in the version published on 27 June 1994 (BGBl. 1994 I, p. 1537) (‘the IRG’), provides: ‘Extradition shall not be authorised where: … (3) in the event of a request for the purpose of executing a sentence, the convicted person did not appear in person at the hearing of the trial which resulted in the conviction …’
6 Paragraph 460 of the Strafprozessordnung (German Code of Criminal Procedure) provides for the case of subsequent establishment of a cumulative sentence, pursuant to Paragraph 55 of the Strafgesetzbuch (German Criminal Code), and Paragraph 462(1) of the German Code of Criminal Procedure states that the court having jurisdiction is to take its decision without holding a hearing, by order.
7 Article 139(1) of the Kodeks postępowania karnego (Polish Code of Criminal Procedure; ‘the kpk’) provides, in essence, for the possibility of effecting service at the known address of a person who has not notified his or her new address.
8 Under Article 75(1) of the kpk, the accused person is required to notify his or her new address in the event of a change of residence in the course of the criminal proceedings.
9 Article 86 of the Kodeks karny (Polish Criminal Code), in the version applicable at the material time, provides, in essence, that, when establishing a cumulative sentence, the lower limit is to equate to the greatest individual sentence and the upper limit to the sum of all the individual sentences, and at the same time a specific maximum threshold is set for such a cumulative sentence.
10 The Kammergericht Berlin (Higher Regional Court, Berlin, Germany), which is the referring court, received a request from the Polish authorities for the execution of a European arrest warrant issued on 5 February 2021 against a Polish national by the Sąd Okręgowy w Piotrkowie Trybunalskim (Regional Court, Piotrków Trybunalski, Poland). That European arrest warrant seeks the arrest and surrender of the person concerned to those authorities for the purposes of executing a three-year custodial sentence imposed by the Sąd Rejonowy w Piotrkowie Trybunalskim (District Court, Piotrków Trybunalski, Poland), by a judgment of 30 October 2019 imposing a cumulative sentence on that person (‘the judgment of 30 October 2019 imposing a cumulative sentence’). Two years, 11 months and 27 days of that sentence still remain to be executed.
11 The judgment of 30 October 2019 imposing a cumulative sentence encompasses several sentencing judgments handed down by the Sąd Rejonowy w Piotrkowie Trybunalskim (District Court, Piotrków Trybunalski), namely a judgment of 25 April 2019, which itself aggregated several sentences previously imposed against the person concerned, and a judgment of 10 June 2019.
12 The person concerned appeared in person or was represented by a court-appointed lawyer in the proceedings leading to the sentences as aggregated by the judgment of 25 April 2019. By contrast, the judgment of 10 June 2019 and the judgment of 30 October 2019 imposing a cumulative sentence were delivered in absentia. However, the summonses to appear at the hearings which preceded the delivery of those judgments, the notices of which were sent by the competent Polish authorities to the person concerned by Polish post, to the address which he had indicated to them as being that of his permanent residence, are deemed to have been served on him, pursuant to Article 139(1) of the kpk.
13 The Generalstaatsanwaltschaft Berlin (General Prosecutor’s Office, Berlin, Germany) initially requested that the person concerned be taken into custody with a view to his surrender to the Polish authorities. Subsequently, it took the view that Paragraph 83(1)(3) of the IRG, which transposes Article 4a(1) of Framework Decision 2002/584 into German law, precludes that surrender. In its view, a summons by way of deemed service pursuant to Article 139(1) of the kpk could not guarantee that the person concerned was actually informed of the date and place of the hearing, as required by the case-law of the Court of Justice, resulting in particular from the judgment of 24 May 2016, Dworzecki (C‑108/16 PPU, EU:C:2016:346). It therefore now requests that the surrender of the person concerned be declared unlawful.
14 The referring court considers that the condition of double criminality, to which such surrender is subject and which consists in verifying that the conduct complained of constitutes an offence in the two Member States required to cooperate, is satisfied in the present case.
15 In the first place, the referring court questions whether the concept of ‘trial resulting in the decision’, in Article 4a(1) of Framework Decision 2002/584, must be interpreted as encompassing the proceedings which led to a judgment imposing a cumulative sentence, by the subsequent aggregation of sentences previously handed down, where the authority which delivered that judgment may neither review the finding of guilt nor amend the sentences previously handed down.
16 The referring court notes, in that regard, that, in the judgment of 10 August 2017, Zdziaszek (C‑271/17 PPU, EU:C:2017:629), the Court held that the concept of ‘trial resulting in the decision’ also encompasses subsequent proceedings, such as those leading to a judgment imposing a cumulative sentence, at the end of which proceedings the decision that definitively amended the level of the initial sentence was delivered, provided that the authority which adopted the latter decision enjoyed a certain discretion in that regard.
17 In the present case, it is apparent from the information provided by the Polish courts that, in the context of subsequent proceedings for the aggregation of sentences previously handed down, the court has, pursuant to the relevant national legislation, a degree of latitude, since it may, at its discretion, deliver a cumulative sentence, the lower limit of which equates to the greatest individual sentence and the upper limit of which equates to the sum of all the individual sentences initially imposed. However, since the judgment of 30 October 2019 imposing a cumulative sentence did not give rise to a review of the finding of guilt in respect of the person concerned or amend the sentences previously handed down, the referring court doubts whether such a judgment can in fact be covered by the concept of ‘trial resulting in the decision’ within the meaning of Article 4a(1) of Framework Decision 2002/584.
18 The referring court’s doubts are reinforced by the fact that, in its view, Article 4a(1) of Framework Decision 2002/584 applies only where proceedings for the aggregation of sentences previously handed down give rise to a judgment on the basis of a hearing. However, that is not the case, in particular, in German law. It therefore considers that, given the differences in the organisation of criminal proceedings in the different Member States, there is a risk that, under the applicable national law, such proceedings may or may not fall within the scope of that provision.
19 In the second place, the referring court asks whether the principle of the primacy of EU law precludes national legislation, such as Paragraph 83(1)(3) of the IRG, which makes a conviction in absentia an ‘absolute impediment’ to the surrender of a person who is the subject of a European arrest warrant, whereas Article 4a(1) of Framework Decision 2002/584, which that legislation transposes into German law, provides only for an optional ground for refusal in that regard.
20 According to the referring court, the latter provision has not been fully transposed into German law, since Paragraph 83(1)(3) of the IRG does not provide for an executing judicial authority to be able to exercise discretion in the event of a conviction in absentia.
21 The referring court notes that, in the judgment of 24 June 2019, Popławski (C‑573/17, EU:C:2019:530, paragraphs 69, 72, 73 and 76), the Court held that although Framework Decision 2002/584 is precluded from being directly applied, since it does not have direct effect, the fact remains that an executing judicial authority is required to interpret national law in conformity with that framework decision in order to achieve the result sought by it, an interpretation of that national law contra legem being excluded, however.
22 The referring court considers that it is not in a position to interpret Paragraph 83(1)(3) of the IRG as meaning that, in examining the impediment to the surrender of the person concerned, that provision confers upon it a discretion which would allow it to declare that surrender lawful notwithstanding the exceptions provided for in Paragraph 83(2) to (4). It considers that, pursuant to Article 4a(1) of Framework Decision 2002/584 and the discretion which it is meant to enjoy in that regard, it should be entitled to take the view that, in the light of the circumstances of the case, the person concerned’s right to be heard was duly respected and that his surrender is, therefore, lawful.
23 At first sight, the circumstances in which the summons was served on the person concerned could, according to the referring court, be regarded as not ensuring to the requisite standard that he was informed with certainty of the date of the hearing which gave rise to the judgment of 30 October 2019 imposing a cumulative sentence, as required by the case-law of the Court, resulting in particular from the judgment of 24 May 2016, Dworzecki (C‑108/16 PPU, EU:C:2016:346), and therefore those circumstances do not satisfy the requirements laid down in Article 4a(1)(a)(i) of Framework Decision 2002/584. However, it is apparent from paragraphs 50 and 51 of that judgment that the executing judicial authority concerned may take into account other circumstances, in particular the conduct of the person concerned, that enable it to satisfy itself that the surrender of that person does not mean a breach of his or her rights of defence, particular attention being able to be paid to any ‘manifest lack of diligence’ on the part of the person concerned, for example where it transpires that he or she sought to avoid service of the information addressed to him or her. In the present case, it is not in dispute that, by failing to keep the competent Polish authorities informed of his actual address of residence, the person concerned prevented himself from being summoned to the hearing which gave rise to the judgment of 30 October 2019 imposing a cumulative sentence.
24 In those circumstances the Kammergericht Berlin (Higher Regional Court, Berlin) decided to stay proceedings and to refer the following questions to the Court of Justice for preliminary ruling: ‘(1) Must proceedings for the subsequent determination of a cumulative sentence still also be considered to fall within the scope of Article 4a(1) of [Framework Decision 2002/584], where the decision is taken by way of a judgment following a hearing, but, in that judgment, the finding of guilt cannot be reviewed and the sentence imposed in respect of the individual offence cannot be amended? (2) Is it compatible with the primacy of EU law for the German legislature to have configured the case of conviction in absentia as an absolute impediment to surrender in Paragraph 83(1)(3) of the [IRG], even though Article 4a(1) of [Framework Decision 2002/584] provides only for an optional ground for refusal in that regard?’
25 By its first question, the referring court seeks, in essence, to ascertain whether Article 4a(1) of Framework Decision 2002/584 must be interpreted as meaning that the concept of ‘trial resulting in the decision’, in that provision, encompasses proceedings which led to a judgment imposing a cumulative sentence, by the subsequent aggregation of sentences previously handed down, where the authority which delivered that judgment may neither review the finding of guilt nor amend the sentences previously handed down.
26 It must be borne in mind, in that regard, that, according to the Court’s settled case-law, the concept of a ‘trial resulting in the decision’, within the meaning of Article 4a(1) of Framework Decision 2002/584, must be regarded as an autonomous concept of EU law and interpreted uniformly throughout the European Union, irrespective of classifications in the Member States (see, to that effect, judgments of 10 August 2017, Tupikas, C‑270/17 PPU, EU:C:2017:628, paragraph 67, and of 22 December 2017, Ardic, C‑571/17 PPU, EU:C:2017:1026, paragraph 63).
27 That concept 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 (judgments of 10 August 2017, Tupikas, C‑270/17 PPU, EU:C:2017:628, paragraph 74, and 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 52).
28 The Court made clear that, in the event that proceedings have taken place at several instances which have given rise to successive decisions, at least one of which was given in absentia, the concept of ‘trial resulting in the decision’, refers to the instance which led to the last of those decisions, provided that the court concerned made a final ruling on the guilt of the person concerned and imposed a penalty on him or her, such as a custodial sentence, following an assessment, in fact and in law, of the incriminating and exculpatory evidence, including, where appropriate, the taking account of the individual situation of the person concerned (judgment of 10 August 2017, Tupikas, C‑270/17 PPU, EU:C:2017:628, paragraph 81).
29 In addition, the Court has held that, although taken after one or more decisions sentencing the person concerned to one or more penalties, a decision at a later stage of the proceedings amending one or more of the custodial sentences previously imposed, such as a judgment imposing a cumulative sentence, does not affect the finding of guilt set out in the previous decisions, that conviction therefore being final (judgment of 10 August 2017, Zdziaszek, C‑271/17 PPU, EU:C:2017:629, paragraph 84).
30 First, such a decision modifies the quantum of the penalty or penalties imposed and must, therefore, be distinguished from measures relating to the methods of execution of a custodial sentence. Secondly, proceedings leading to a decision, such as a judgment imposing a cumulative sentence, consisting in commuting into a single sentence one or more sentences previously handed down in respect of the person concerned, necessarily produce a more favourable result for that person. Thus, for example, following several convictions, each of which involves the imposition of a sentence, the sentences may be combined to obtain a cumulative sentence which is less than the sum of the various sentences resulting from previous separate decisions (judgment of 10 August 2017, Zdziaszek, C‑271/17 PPU, EU:C:2017:629, paragraphs 85 and 86).
31 Compliance with the requirement of a fair trial entails the right of the person concerned to be present at the hearing because of the significant consequences which it may have on the quantum of the sentence to be imposed. Thus, specific proceedings for the determination of an overall sentence cannot constitute a purely formal and arithmetic exercise, but must entail a margin of discretion in the determination of the level of the sentence, in particular, by taking account of the situation or personality of the person concerned, or of mitigating or aggravating circumstances. It is irrelevant in that regard whether the court concerned has jurisdiction to increase the sentence previously imposed (judgment of 10 August 2017, Zdziaszek, C‑271/17 PPU, EU:C:2017:629 paragraphs 87 to 89).
32 Consequently, proceedings giving rise to a judgment imposing a cumulative sentence, leading to a new determination of the level of custodial sentences previously imposed, must be regarded as relevant for the application of Article 4a(1) of Framework Decision 2002/584, where they entail a margin of discretion for the competent authority and give rise to a decision which finally determines the sentence (judgment of 10 August 2017, Zdziaszek, C‑271/17 PPU, EU:C:2017:629, paragraph 90).
33 It follows that the concept of a ‘trial resulting in the decision’, in Article 4a(1) of Framework Decision 2002/584, encompasses a judgment imposing a cumulative sentence such as the judgment of 30 October 2019 imposing such a sentence, since it is apparent from the information provided by the referring court that the proceedings which gave rise to that judgment entail a margin of discretion in the determination of the level of that cumulative sentence.
34 Consequently, the answer to the first question is that Article 4a(1) of Framework Decision 2002/584 must be interpreted as meaning that the concept of ‘trial resulting in the decision’, in that provision, encompasses proceedings which led to a judgment imposing a cumulative sentence, by the subsequent aggregation of sentences previously handed down, where, in the context of those proceedings, the authority which delivered that cumulative judgment may neither review the finding of guilt of the person concerned nor amend those previous sentences, but does have a margin of discretion in determining the level of that cumulative sentence.
35 By its second question, the referring court seeks, in essence, to ascertain whether the principle of the primacy of EU law precludes national legislation, such as that at issue in the main proceedings, transposing Article 4a(1) of Framework Decision 2002/584, under which an executing judicial authority is generally precluded from executing a European arrest warrant issued for the purposes of executing a sentence, where the person concerned did not appear in person at the trial resulting in the decision concerned.
36 It must be borne in mind, in that regard, that Framework Decision 2002/584 lays down, in Article 1(2) thereof, the rule that Member States are required to execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of that framework decision. Except in exceptional circumstances, the executing judicial authorities may, therefore, refuse to execute such a warrant only in the exhaustively listed cases provided for by Framework Decision 2002/584. The execution of the European arrest warrant may be made subject only to one of the conditions listed exhaustively therein. Accordingly, while the execution of the European arrest warrant constitutes the rule, the refusal to execute is intended to be an exception which must be interpreted strictly (judgment of 10 August 2017, Tupikas, C‑270/17 PPU, EU:C:2017:628, paragraph 50).
37 Thus, Framework Decision 2002/584 explicitly states, on the one hand, the grounds for mandatory (Article 3) and, on the other hand, optional (Articles 4 and 4a) non-execution of a European arrest warrant. In particular, Article 4a of that framework decision restricts the possibility of refusing to execute a European arrest warrant by listing, in a precise and uniform manner, the conditions under which the recognition and enforcement of a decision rendered following a trial in which the person concerned did not appear in person may not be refused (judgment of 10 August 2017, Tupikas, C‑270/17 PPU, EU:C:2017:628, paragraph 53).
38 It is apparent from the wording of Article 4a(1) of Framework Decision 2002/584 that it provides for an optional ground for non-execution of a European arrest warrant issued for the purpose of executing a custodial sentence or a detention order, where the person concerned has not appeared in person at the trial which resulted in the conviction. That option is nevertheless accompanied by four exceptions, set out in subparagraphs (a) to (d) of that provision respectively, in which the executing judicial authority may not refuse to execute the European arrest warrant addressed to it (see, to that effect, judgment of 26 February 2013, Melloni, C‑399/11, EU:C:2013:107, paragraph 40).
39 Accordingly, an executing judicial authority is entitled to refuse to execute a 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 concerned, unless the European arrest warrant indicates that the conditions set out, respectively, in subparagraphs (a) to (d) of Article 4a(1) of Framework Decision 2002/584 are met (judgment of 10 August 2017, Tupikas, C‑270/17 PPU, EU:C:2017:628, paragraph 54).
40 It follows that an executing judicial authority is obliged to execute a European arrest warrant, notwithstanding the absence of the person concerned at the trial resulting in the decision concerned, where one of the situations referred to in subparagraphs (a) to (d) of Article 4a(1) of that framework decision is verified (judgment of 10 August 2017, Tupikas, C‑270/17 PPU, EU:C:2017:628, paragraph 55).
41 The Court has already held that as Article 4a provides for a case of optional non-execution of a European arrest warrant, an executing judicial authority may, in any event, even after it has found that the circumstances referred to in the preceding paragraph of the present judgment do not cover the situation of the person who is the subject of the European arrest warrant, take into account other circumstances that enable it to satisfy itself that the surrender of the person concerned does not entail a breach of his or her rights of defence (see, to that effect, judgments of 10 August 2017, Zdziaszek, C‑271/17 PPU, EU:C:2017:629, paragraph 107, and of 17 December 2020, Generalstaatsanwaltschaft Hamburg, C‑416/20 PPU, EU:C:2020:1042, paragraph 51 and the case-law cited).
42 In the context of such an assessment, an executing judicial authority may thus take into consideration the conduct of the person concerned. It is at this stage of the surrender procedure that particular attention might be paid, inter alia, to the fact that the person concerned has sought to avoid service of the information addressed to him or her (judgment of 17 December 2020, Generalstaatsanwaltschaft Hamburg, C‑416/20 PPU, EU:C:2020:1042, paragraph 52 and the case-law cited).
43 It follows that, when determining that one of the conditions laid down in Article 4a(1) of Framework Decision 2002/584 is satisfied, an executing judicial authority cannot be prevented from satisfying itself that the rights of defence of the person concerned are respected by taking due account in that regard of all the circumstances characterising the case before it, including the information which it may itself obtain.
44 In the present case, it follows from the information provided by the referring court that the German legislation at issue in the main proceedings obliges the executing judicial authority concerned, in a general manner, to refuse to execute a European arrest warrant in the event of a conviction in absentia. That legislation does not leave that executing judicial authority any discretion for the purposes of determining the existence of one of the situations referred to, respectively, in subparagraphs (a) to (d) of Article 4a(1) of Framework Decision 2002/584, on the basis of the circumstances of the case whether the rights of defence of the person concerned may be regarded as having been respected and, consequently, in deciding to execute the European arrest warrant concerned.
45 In those circumstances, it must be held that such national legislation is contrary to Article 4a(1) of Framework Decision 2002/584.
46 It must be borne in mind that the Court has held 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 Framework Decision 2002/584, since that decision does 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 (judgment of 24 June 2019, Popławski, C‑573/17, EU:C:2019:530, paragraph 109).
47 Indeed, 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. 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 24 June 2019, Popławski, C‑573/17, EU:C:2019:530, paragraphs 72 to 77).
48 It follows that it will be for the referring 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 text and the purpose of Framework Decision 2002/584.
49 Consequently, the answer to the second question is that Article 4a(1) of Framework Decision 2002/584 must be interpreted as meaning that national legislation, transposing that provision, which generally precludes an executing judicial authority from executing a European arrest warrant issued for the purposes of executing a sentence, where the person concerned did not appear in person at the trial resulting in the decision concerned, is contrary to that provision of EU law. A national court is required, taking into consideration the whole body of its domestic law and applying the interpretative methods recognised by that law, to interpret that national legislation, to the greatest extent possible, in the light of the text and the purpose of that framework decision.
50 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.