1.

In the EU area of freedom, security and justice, a person given a custodial sentence in one Member State can serve the term of that sentence in another Member State, especially if that would benefit the social rehabilitation of that person. ( 2 )

2.

The present case concerns a person who has been convicted of a crime in Portugal but now resides in Spain. On the basis of Framework Decision 2008/909/JHA, ( 3 ) the Spanish authorities have decided to recognise and enforce the custodial sentence imposed by the Tribunal Judicial da Comarca do Porto – Juízo Local Criminal de Vila Nova de Gaia (District Court, Oporto – Local Criminal Court, Vila Nova de Gaia, Portugal) (‘the Portuguese court’).

3.

However, the Juzgado Central de lo Penal n.° 1 de Madrid (Central Criminal Court No 1, Madrid, Spain) (‘the Spanish court’) has modified the sentence imposed by suspending the execution of a six-month prison sentence for a period of two years.

4.

The Portuguese court, which is the referring court, asks whether such a modification is allowed under Framework Decision 2008/909.

5.

The essence of the disagreement between the parties is whether a decision to suspend a sentence can be part of the execution of a judgment, which is the position of the Spanish Government, or whether it modifies the nature of that judgment, which is the position of the Portuguese Government and the European Commission.

6.

On 9 October 2018, YX was given a six-month custodial sentence in Portugal for having committed the offence of tax fraud, established and sanctioned under Decreto-Lei n.o 20-A/90 (Decree-Law No 20-A/90) of 15 January 1990. That sentence was replaced by an alternative sentence of 180 day-fines. ( 4 )

7.

However, YX did not pay that fine, nor did he submit any proof to demonstrate that non-payment of the fine was not his fault. For that reason, in accordance with the Código Penal (Portuguese Criminal Code), ( 5 ) the referring court revoked the alternative sentence and ordered the enforcement of the original custodial sentence. ( 6 )

8.

However, that custodial sentence could not be executed in Portugal because YX could not be found in order to be served the arrest warrant in that Member State. Therefore, he was declared a fugitive from justice for the purpose of the imposed sentence.

9.

A few years later, YX was located in Spain. Thus, on 22 February 2022, the competent Portuguese authorities issued, on the basis of Framework Decision 2002/584/JHA, ( 7 ) a European arrest warrant (‘EAW’), requesting YX’s surrender for the purpose of serving the six-month custodial sentence.

10.

Article 4(6) of Framework Decision 2002/584 provides an optional ground of refusal to execute an EAW when a person whose surrender is requested is legally resident in the executing State, and that person wishes to serve the sentence in that State. Relying on that ground, the Spanish authorities refused to execute the EAW and undertook the obligation to recognise the sentence of the Portuguese court and to enforce it in Spain.

11.

On 11 October 2023, in accordance with Article 80 of the Spanish Código Penal (Spanish Criminal Code), ( 8 ) the Spanish court suspended, for a period of two years, the custodial sentence of six months imposed on YX and informed the Portuguese authorities of that decision.

12.

The Ministério Público (Portuguese Public Prosecutor’s Office) could not agree with the decision of the Spanish court on suspension. It therefore brought the matter before the Tribunal Judicial da Comarca do Porto – Juízo Local Criminal de Vila Nova de Gaia (District Court, Oporto – Local Criminal Court, Vila Nova de Gaia), the referring court in this case. Within the framework of those proceedings, the Portuguese Public Prosecutor’s Office requested that a question be referred to the Court of Justice for a preliminary ruling.

13.

The referring court considers that the court of the executing State cannot modify the decision of the court of the issuing State by substituting its own decision for that of the court that handed down the sentence. The referring court further states that accepting such modification of the sentence would run contrary to the principles of mutual recognition and mutual trust. In the view of that court, by refusing to execute the EAW, the Spanish judicial authorities declared a willingness to take on the enforcement of the sentence in its entirety, without the possibility of transforming the custodial sentence into an alternative measure.

14.

The referring court also considers that the Spanish judicial authorities should in any event have informed the issuing State in advance of the possibility that the custodial sentence might be suspended in order to allow the issuing State to respond.

15.

In those circumstances, the Tribunal Judicial da Comarca do Porto – Juízo Local Criminal de Vila Nova de Gaia (District Court, Oporto – Local Criminal Court, Vila Nova de Gaia) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

16.

The Spanish and Portuguese Governments and the Commission submitted written observations to the Court.

17.

A hearing was held on 19 March 2025 at which those parties presented oral argument.

18.

A Member State can refuse to execute an EAW for serving a custodial sentence only if it commits to enforcing the sentence as it was handed down by the court of the issuing State.

19.

If, for any reason, the executing State cannot enforce the custodial sentence as it was handed down by the court of the issuing State, then it must execute the EAW. ( 9 )

20.

The only exceptions which allow the executing State to depart from the sentence as handed down by the court in the issuing State are provided for in Article 8(2) and (3) of Framework Decision 2008/909. Those exceptions apply if a sentence as handed down in the issuing State is incompatible with the law of the executing State either because of its duration or because of its nature. In such a situation, the adapted sentence has to reflect – as closely as possible – the original sentence within the limits allowed by the law of the executing State. ( 10 )

21.

Therefore, the finding of guilt and the assessment of the proportionality of a sentence are undertaken in the issuing State and cannot be reconsidered by the executing State. ( 11 )

22.

For that reason, the Court considered, in the case giving rise to the judgment in Ognyanov, that Article 8 of Framework Decision 2008/909 must be interpreted strictly and that it leaves only limited possibilities to the executing State to modify the nature or duration of the sentence as proclaimed by the issuing State’s court. ( 12 )

23.

Whereas sentencing (that is, establishing guilt and deciding on a proportional sentence) is a matter for the issuing State, the execution of the sentence is, as stated in Article 17(1) of Framework Decision 2008/909, a matter for the executing State.

24.

Therefore, the principle of mutual recognition, as reflected in Framework Decision 2008/909, is applied in two ways: the executing State must, in principle, recognise sentencing by the courts of the issuing State, while the issuing State must, in principle, recognise the rules on execution of sentences as they exist in the executing State.

25.

The crux of the matter in the present case lies in the fact that the Kingdom of Spain understands a decision on the suspension of a custodial sentence as a matter of its execution, whereas the Portuguese Republic, supported by the Commission, considers a decision on suspension as sentencing.

26.

The answer to the question of whether suspension of a custodial sentence constitutes a modification or an execution of that sentence, which is the essence of the first three questions referred, depends on the interpretation of Framework Decision 2008/909, especially Articles 8 and 17 thereof. I will therefore analyse those three questions together under section C of the present Opinion.

27.

If suspension of a custodial sentence constitutes a modification of the nature of the original custodial sentence, it follows that Article 8 of Framework Decision 2008/909 applies and prohibits the Spanish executing authorities from adapting the custodial sentence by turning it into a suspended custodial sentence. If, however, suspending the custodial sentence is a modality of executing such a sentence, Article 8 of Framework Decision 2008/909 would not be applicable. Rather, the executing State would be able to decide to suspend a custodial sentence as part of its execution under Article 17 of that decision.

28.

Before undertaking that analysis, I will briefly consider the plea of inadmissibility raised by the Kingdom of Spain (B).

29.

The fourth question is conditioned by a positive answer to the first three questions. As I will propose that the Court answer those questions negatively, there is no need to answer the fourth question.

30.

The Spanish Government challenged the admissibility of the reference. In its view, it is neither possible to understand what kind of proceedings are taking place before the referring court nor to understand why the Court’s answers are relevant for the main proceedings.

31.

It is established case-law that the Court can reply to questions referred in preliminary ruling procedures only if the answer will be of use to the national court to enable it to determine the case before it. ( 13 )

32.

At the same time, it is also established case-law that questions of interpretation of EU law referred by national judges enjoy a presumption of relevance. The Court may refuse to rule on such questions only where it is quite obvious that the interpretation of EU law has no relation to the subject of the case pending before the referring court. ( 14 )

33.

In the procedure regulated by Framework Decision 2008/909, the authorities of the issuing State have to agree that the custodial sentence is enforced by the executing State by issuing a certificate. ( 15 ) Such a certificate may be revoked as long as the enforcement of the sentence in the executing State has not begun. ( 16 )

34.

Thus, even if, regrettably, the referring court in the present case has not explained in the order for reference what exactly the purpose of the procedure initiated before it by the Portuguese Public Prosecutor’s Office is, the presumption of admissibility has not been rebutted. The answer given by the Court could help the referring court decide whether the certificate should be issued or revoked (if already issued). ( 17 )

35.

Therefore, it is not obvious that the answers to the questions referred are not necessary for the referring court to decide the case pending before it. I therefore propose that the Court answer the questions referred.

36.

I am of the view that a decision to suspend a custodial sentence modifies its nature.

37.

Therefore, I side in that respect with the arguments of the Portuguese Government and the Commission, which claimed that the custodial sentence and the suspended custodial sentence are two different types of sentence.

38.

A decision to suspend a custodial sentence is thus not a matter of execution but, rather, constitutes a modification of such a sentence. Therefore, it does not fall within the scope of Article 17 of Framework Decision 2008/909. Rather, Article 8 thereof precludes the Kingdom of Spain from suspending the execution of a custodial sentence handed down by the Portuguese court.

39.

I will substantiate my position by looking into the wording of the relevant provisions of Framework Decision 2008/909 and their context and purpose, answering the arguments of the parties to these proceedings at the same time.

40.

The discussion about the ‘nature’ of the sentence results from Article 8 of Framework Decision 2008/909. According to paragraph 1 thereof, the executing State must, in principle, recognise and enforce the sentence as proclaimed by the court of the issuing State. Only if its legal system does not recognise custodial sentences of a certain duration (Article 8(2) of Framework Decision 2008/909), or of a certain nature (Article 8(3) thereof), may the executing State ‘adapt’ the sentence (see point 20 of the present Opinion).

41.

A six-month custodial sentence is in principle recognised by Spanish criminal law. Therefore, suspension, which alters the nature of such a sentence, cannot be justified under Article 8(3) of Framework Decision 2008/909.

42.

Furthermore, if the executing State considers it necessary to adapt the sentence as allowed by Article 8 of Framework Decision 2008/909, on the basis of Article 12(1) thereof, it must inform the issuing State of its decision as quickly as possible. In so doing, it enables the issuing State to decide to withdraw the certificate if it does not agree with such adaptations.

43.

In the present case, the Spanish authorities have not provided such information to the Portuguese authorities on the basis of Article 12 of Framework Decision 2008/909, as they did not consider that they had altered the nature of the recognised sentence within the meaning of Article 8 thereof. Nevertheless, they informed the Portuguese authorities that they had suspended enforcement of the custodial sentence in its execution.

44.

Distinguishing between a measure that constitutes sentencing and a measure relating to the execution or application of a sentence is not always clear-cut. ( 18 )

45.

Thus, in the present case, the Spanish Government contends that the suspension did not change the ‘nature’ of the sentence. It is still a prison sentence with a duration of six months, even if its execution is suspended for a probation period of two years.

46.

I believe that some guidance as to whether the ‘nature’ of a sentence has changed may be found by asking whether the aspect of a sentence depriving a person of liberty has been amended. In that respect, what makes a difference, in my view, is whether deprivation of liberty is inevitable, as on the basis of a custodial sentence, or conditional, as on the basis of a suspended custodial sentence. That argument supports the position of the Portuguese Government and the Commission that the prison sentence and the suspended prison sentence are two sentences of a different nature.

47.

In the context of the present case, it would seem that the Portuguese court, after finding YX guilty, considered it appropriate for him to serve the prison sentence. If it had considered that the custodial sentence should be suspended, that court could have handed down a suspended sentence. ( 19 ) Mutual recognition, on which cooperation in criminal matters is based, requires that the authorities of the executing State accept the finding of guilt and the decision on the appropriate sentence as decided by the court of the issuing State.

48.

It follows that the suspension of a custodial sentence by the Spanish court changed the nature of the custodial sentence determined by the Portuguese court, which did not envisage suspension. As the Spanish legal system recognises custodial sentences of six months, the Kingdom of Spain, as the executing State, cannot rely on either Article 8(2) or Article 8(3) of Framework Decision 2008/909 in order to suspend the enforcement of such a sentence.

49.

Article 17 of Framework Decision 2008/909 concerns the execution of the sentence, which is, in principle, governed by the law of the executing State. Paragraphs 3 and 4 of that provision address the question of conditional release from prison.

50.

In that respect, the Spanish Government argued that the suspended custodial sentence is similar to early or conditional release from prison. In both cases, the custodial sentence is either not served at all or is served only partially. Also in both cases, a decision to suspend or terminate a prison term early is closely connected to the personal situation and behaviour of the convicted person and can be seen as contributing to the better social rehabilitation of that person.

51.

Early or conditional release is considered by Article 17 of Framework Decision 2008/909 as a modality of executing a custodial sentence, and, in the Spanish Government’s view, given the similarities, so should the suspension of a custodial sentence.

52.

While the argument provided by the Spanish Government has some force, it is nevertheless also clear that while Framework Decision 2008/909 deals, in Article 17, with early release, it does not refer to suspended custodial sentences.

53.

The reason why that decision regulates the issue of early release from prison probably lies in the fact that the legislature noticed considerable differences between the rules on early release that exist in different Member States. At the same time, early release necessarily happens after the execution of the prison sentence has started, and can therefore hardly be understood as something other than the modality of executing a sentence. To respond to the possible issues that may arise from that, Article 17(3) provides for the obligation of the executing State to inform the issuing State of its rules on early or conditional release and empowers the issuing State to withdraw the certificate if it does not agree with the executing State’s policy on early release. ( 20 ) Withdrawing a certificate is, by virtue of Article 13 of Framework Decision 2008/909, not possible after the execution has started in the executing State. It is therefore necessary to provide for a legislative solution allowing the issuing Member State to reject the executing Member State’s early release policy before the execution starts in the latter.

54.

The EU legislature has not provided for such an option in the case of the suspension of the custodial sentence.

55.

In my view, and contrary to the argument of the Spanish Government, the legislative choice to address, in Article 17, the problems resulting from differences in rules on early release, but not on suspended custodial sentences, offers one (textual) argument which militates in favour of rejecting the position that suspension of a custodial sentence is a modality of executing that sentence. This, rather, points to the conclusion that the EU legislature did not understand the suspension of a custodial sentence as a modality of executing that sentence, but as a different sentence.

56.

Such a conclusion is strengthened by the broader context in which Framework Decision 2008/909 is embedded.

57.

The same year it enacted Framework Decision 2008/909, the EU legislature also adopted Framework Decision 2008/947/JHA, ( 21 ) applicable to judgments and probation decisions with a view to the supervision of probation measures and alternative sanctions.

58.

As the Commission submitted, those two framework decisions have different scopes of application and are mutually exclusive. If judicial cooperation entails the recognition and enforcement of a custodial sentence, the applicable rules are found in Framework Decision 2008/909. If judicial cooperation concerns the recognition and execution of a suspended custodial sentence, those rules are found in Framework Decision 2008/947.

59.

That legislative solution suggests that the EU legislature treats suspended and non-suspended custodial sentences as two different types of criminal sentence.

60.

In the present case, both the executing and the issuing State’s authorities acted on the basis of Framework Decision 2008/909.

61.

The conclusion that a custodial sentence should not be converted into a suspended custodial sentence by the executing State is consistent with the purpose of Framework Decision 2008/909.

62.

That instrument aims, as one of its objectives, to enable mutual recognition of sentences in the area of criminal law. Where, on the basis of mutual recognition, a Member State agrees to execute a judgment issued in another Member State and does not invoke one of the grounds for non-execution of such a judgment, execution should simply be, as the Commission observed, a continuation of the case as it started in the issuing State. ( 22 )

63.

I agree. The fact that the execution of a custodial sentence occurs in a different Member State from the one in which the sentence was handed down should not alter the execution of that sentence, in the same way that a judgment would not be altered if it were to be executed in a different region of the same State and under the jurisdiction of a different court from the one that handed down the sentence. Even if some rules governing the execution might be different, the execution occurs as a simple continuation of sentencing.

64.

Therefore, the principle of mutual recognition, as enshrined in Framework Decision 2008/909, should, in practice, result in the automaticity of law enforcement cooperation between Member States. It should imply the obligation for the executing State to enforce a foreign judgment without examining whether such a judgment would have been issued if the process had taken place in accordance with the domestic law of the executing State. ( 23 )

65.

Therefore, assessment by the executing State of whether the sentence imposed in the issuing State corresponds to the sentence that would have been imposed for the same offence in the executing State should be considered to be contrary to the aims and spirit of Framework Decision 2008/909. ( 24 )

66.

Even though, as explained by the Spanish Government, a suspension of a custodial sentence in Spain is possible in two steps: (i) the handing down of a custodial sentence; and (ii) its suspension, the second step interferes with the assessment of guilt and appropriate sentencing by the court of the issuing State.

67.

Therefore, the executing State should not be allowed to decide on the suspension of the prison sentence if the court of the issuing State did not proclaim such a sentence.

68.

Finally, I must reflect on the arguments of the Spanish Government, submitted in its written observations and confirmed at the hearing, that the judgments in Ardic ( 25 ) and in Minister for Justice and Equality (Lifting of the suspension) ( 26 ) support its argument that the decision to suspend a custodial sentence is a modality of enforcement of that sentence and not its alteration.

69.

In those judgments, the Court found that a decision to revoke the suspension of the execution of a previously imposed custodial sentence does not affect the nature or the quantum of custodial sentences imposed by final conviction judgments of the person concerned. ( 27 )

70.

The Portuguese Government and the Commission considered that those cases are not relevant for the present case as they concerned a different question. I cannot agree with that point of view. Even though those cases required the Court to interpret the concept of a ‘trial resulting in [a] decision’ contained in Article 4a of Framework Decision 2002/584, those cases concerned a similar dilemma – whether lifting of the suspension is part of sentencing or, rather, merely the execution of the sentence already established. Thus, I find that those cases are indeed relevant for the present case.

71.

Nevertheless, like the Commission, I am of the view that a decision to suspend the custodial sentence, at issue in the present case, and the revocation of the suspension, which was at issue in those cases, are of a different nature. Whereas deciding to suspend a custodial sentence is part of the sentencing process, which involves deciding on guilt and the appropriate sanction, revocation of the suspension means the execution of the suspended custodial sentence, the terms of which were already determined in the sentencing phase.

72.

For that reason, the fact that the Court considered the revocation of the suspension of a custodial sentence to be a modality of executing a sentence does not prevent the conclusion that, on the contrary, deciding to suspend the custodial sentence is part of sentencing.

73.

In conclusion, I believe that, under EU law, the suspended custodial sentence and the custodial sentence without suspension are two different types of sentence. Therefore, the executing State cannot suspend the enforcement of a prison sentence as a modality of executing a sentence it undertook to recognise. Such a suspension is not a matter of execution governed by Article 17 of Framework Decision 2008/909. Rather, it changes the nature of the sentence and is, in principle, prohibited by Article 8 of Framework Decision 2008/909.

74.

In this particular case, if the executing State does not want to enforce the custodial sentence, it has the possibility of executing the EAW and surrendering the sentenced person to the issuing State in order for that person to serve the sentence in that State.

75.

However, after having refused to execute the EAW pursuant to Article 4(6) of Framework Decision 2002/584 on the ground of the place of residence of the convicted individual, and after having recognised the sentencing judgment, the executing State may not rely on the application of its domestic law to suspend the actual custodial sentence imposed by the issuing State.

76.

By deciding to suspend the custodial sentence determined by the Portuguese court as being proportionate to the tax crime committed by YX, the Spanish court did not initiate execution of the sentence but modified it contrary to Article 8 of Framework Decision 2008/909. As execution of the sentence has not yet started, the Portuguese authorities may still decide to withdraw the certificate.

77.

In the light of the foregoing considerations, I propose that the Court answer the questions referred for a preliminary ruling by the Tribunal Judicial da Comarca do Porto – Juízo Local Criminal de Vila Nova de Gaia (District Court, Oporto – Local Criminal Court, Vila Nova de Gaia, Portugal) as follows: