1.

This request for a preliminary ruling essentially raises the question whether a conviction handed down by a court in one Member State can be reconsidered in the course of a national procedure for the recognition of that conviction implemented by the court of another Member State and, in that context, be the subject of a review that may result in the conviction being adjusted — namely the reclassification of the offence and modification of the sentence passed — to make it compatible with the criminal law of the latter Member State.

2.

The request will require the Court to clarify its judgment of 9 June 2016, Balogh. ( 2 ) It was submitted in connection with the implementation in Hungary of a procedure to recognise a final judicial decision handed down by an Austrian court against Mr Dániel Bertold Lada.

3.

This is a further illustration of the approach taken by the Hungarian authorities with respect to foreign judgments in criminal matters. According to that approach, the Igazságügyi Minisztérium (Ministry of Justice, Hungary) asks the court of another Member State which has handed down a judgment convicting a Hungarian national to forward it the judgment. That request is made so as to implement a procedure for recognition of the validity of the judgment in Hungary. The judgment, once recognised in Hungary, will then be regarded as equivalent to a national conviction entered in the criminal record.

4.

In its judgment of 9 June 2016, Balogh, ( 3 ) the Court held that Council Framework Decision 2009/315/JHA of 26 February 2009 on the organisation and content of the exchange of information extracted from the criminal record between Member States ( 4 ) and Council Decision 2009/316/JHA of 6 April 2009 on the establishment of the European Criminal Records Information System (ECRIS) in application of Article 11 of Framework Decision 2009/315 ( 5 ) must be interpreted as precluding the implementation of national legislation establishing a national special procedure for the recognition by the court of a Member State of a final judicial decision handed down by a court of another Member State convicting a person for the commission of an offence.

5.

In the present case, the Court is asked to supplement the findings made in its judgment of 9 June 2016, Balogh, ( 6 ) concerning the same national recognition procedure, this time in connection with the interpretation of Council Framework Decision 2008/675/JHA of 24 July 2008 on taking account of convictions in the Member States of the European Union in the course of new criminal proceedings. ( 7 ) This will be the second interpretation of that framework decision; the first gave rise to the judgment of 21 September 2017, Beshkov, ( 8 ) which allowed the Court to assess the compatibility with EU law of a national procedure for the recognition of convictions handed down in other Member States.

6.

Framework Decisions 2009/315 and 2008/675 are closely linked, in so far as the former seeks to facilitate the exchange between Member States of information relating to the criminal record of a person convicted in a Member State and the latter enables, consequently, account to be taken of the convictions thus disclosed. Improving the communication of information between Member States is of little benefit if they are not able to take transmitted information into account. Moreover, in order for foreign convictions to be taken into account in the course of new criminal proceedings, the exchange of information between Member States must be improved.

7.

This case affords the Court the opportunity to clarify the reasons why Member States cannot continue to have national procedures for the recognition of convictions handed down in other Member States, in which they review those convictions and, where necessary, alter their substance to adapt them to domestic criminal law. I will explain, in particular, why the taking into account of such judgments in the course of new criminal proceedings, which is required under Framework Decision 2008/675, cannot be subject to the prior application of a national procedure for the recognition of those judgments.

8.

In view of the concerns expressed by the referring court as to whether framework decisions can be relied on in a national procedure for the purpose of setting aside national legislation that is contrary to them, I will set out, in line with my Opinion in the case that gave rise to the judgment of 29 June 2017, Popławski, ( 9 ) the reasons for my view that the principle of the primacy of EU law means recognising that framework decisions may be relied on for such purposes.

9.

Recitals 2, 3, 5 and 17 of Framework Decision 2009/315 state:

…

…

10.

Under Article 1 of Framework Decision 2009/315, which defines the objective of that decision:

‘The purpose of this Framework Decision is:

11.

Article 4 of that framework decision, entitled ‘Obligations of the convicting Member State’, provides:

‘…

2.   The central authority of the convicting Member State shall, as soon as possible, inform the central authorities of the other Member States of any convictions handed down within its territory against the nationals of such other Member States, as entered in the criminal record.

…

3.   Information on subsequent alteration or deletion of information contained in the criminal record shall be immediately transmitted by the central authority of the convicting Member State to the central authority of the Member State of the person’s nationality.

4.   Any Member State which has provided information under paragraphs 2 and 3 shall communicate to the central authority of the Member State of the person’s nationality, on the latter’s request in individual cases, a copy of the convictions and subsequent measures as well as any other information relevant thereto in order to enable it to consider whether they necessitate any measure at national level.’

12.

Article 5 of Framework Decision 2009/315, entitled ‘Obligations of the Member State of the person’s nationality’, states in paragraph 1:

‘The central authority of the Member State of the person’s nationality shall store all information in accordance with Article 11(1) and (2) transmitted under Article 4(2) and (3), for the purpose of retransmission in accordance with Article 7.’

13.

Article 11 of that framework decision, entitled ‘Format and other ways of organising and facilitating exchanges of information on convictions’, provides:

‘1.   When transmitting information in accordance with Article 4(2) and (3), the central authority of the convicting Member State shall transmit the following information:

In addition, the central authority may transmit any other information concerning convictions entered in the criminal record.

2.   The central authority of the Member State of the person’s nationality shall store all information of the types listed in points (a) and (b) of paragraph 1, which it has received in accordance with Article 5(1) for the purpose of retransmission in accordance with Article 7. For the same purpose it may store the information of the types listed in point (c) of the first subparagraph and in the second subparagraph of paragraph 1.

3.   …

Once the time limit set out in paragraph 7 of this Article has elapsed, central authorities of Member States shall transmit such information electronically using a standardised format.

4.   The format referred to in paragraph 3 and any other means of organising and facilitating exchanges of information on convictions between central authorities of Member States shall be set up by the Council …

Other such means include:

…’

14.

Recitals 2, 6 and 12 of Decision 2009/316 state:

…

…

15.

In the words of Article 1 of the decision, setting out its subject matter:

‘This Decision establishes the European Criminal Records Information System (ECRIS).

This Decision also establishes the elements of a standardised format for the electronic exchange of information extracted from criminal records between the Member States, in particular as regards information on the offence giving rise to the conviction and information on the content of the conviction …’

16.

Article 3 of that decision, entitled ‘European Criminal Records Information System (ECRIS)’, provides in paragraph 1:

‘ECRIS is a decentralised information technology system based on the criminal records databases in each Member State. It is composed of the following elements:

…’

17.

Article 4 of Decision 2009/316, entitled ‘Format of transmission of information’, provides:

‘1.   When transmitting information in accordance with Article 4(2) and (3) and Article 7 of Framework Decision [2009/315] relating to the name or legal classification of the offence and to the applicable legal provisions, Member States shall refer to the corresponding code for each of the offences referred to in the transmission, as provided for in the table of offences in Annex A. …

Member States may also provide available information relating to the level of completion and the level of participation in the offence and, where applicable, to the existence of total or partial exemption from criminal responsibility or to recidivism.

2.   When transmitting information in accordance with Article 4(2) and (3) and Article 7 of Framework Decision [2009/315] relating to the contents of the conviction, notably the sentence as well as any supplementary penalties, security measures and subsequent decisions modifying the enforcement of the sentence, Member States shall refer to the corresponding code for each of the penalties and measures referred to in the transmission, as provided for in the table of penalties and measures in Annex B. …

Member States shall also provide, where applicable, available information relating to the nature and/or conditions of execution of the penalty or measure imposed as provided for in the parameters of Annex B. …’

18.

Recitals 2, 5 to 8 and 13 of Framework Decision 2008/675 state:

…

…

19.

Article 1(1) of the framework decision provides:

‘The purpose of this Framework Decision is to determine the conditions under which, in the course of criminal proceedings in a Member State against a person, previous convictions handed down against the same person for different facts in other Member States, are taken into account.’

20.

Article 3 of the framework decision, headed ‘Taking into account, in the course of new criminal proceedings, a conviction handed down in another Member State’, provides:

‘1.   Each Member State shall ensure that in the course of criminal proceedings against a person, previous convictions handed down against the same person for different facts in other Member States, in respect of which information has been obtained under applicable instruments on mutual legal assistance or on the exchange of information extracted from criminal records, are taken into account to the extent previous national convictions are taken into account, and that equivalent legal effects are attached to them as to previous national convictions, in accordance with national law.

2.   Paragraph 1 shall apply at the pre-trial stage, at the trial stage itself and at the time of execution of the conviction, in particular with regard to the applicable rules of procedure, including those relating to provisional detention, the definition of the offence, the type and level of the sentence, and the rules governing the execution of the decision.

3.   The taking into account of previous convictions handed down in other Member States, as provided for in paragraph 1, shall not have the effect of interfering with, revoking or reviewing previous convictions or any decision relating to their execution by the Member State conducting the new proceedings.

4.   In accordance with paragraph 3, paragraph 1 shall not apply to the extent that, had the previous conviction been a national conviction of the Member State conducting the new proceedings, the taking into account of the previous conviction would, according to the national law of that Member State, have had the effect of interfering with, revoking or reviewing the previous conviction or any decision relating to its execution.

…’

21.

Paragraph 46 of the nemzetközi bűnügyi jogsegélyről szóló 1996. évi XXXVIII. törvény (Law No XXXVIII of 1996 on international mutual legal assistance in criminal matters) (‘the Law on international mutual legal assistance in criminal matters’) is worded as follows:

‘1.   The Minister for Justice shall receive notifications for the recognition of the validity of a foreign judgment as well as foreign applications for the transfer of enforcement of a custodial sentence or of a detention order … and … shall forward them to the court with jurisdiction …

…

2.   The procedure for recognition of the judgments sent by the central authority designated for that purpose by another Member State of the European Union must be instituted before the date of deletion of the criminal record, as indicated in the information accompanying the judgment of the Member State.

3.   Save as otherwise provided for in this law, the judicial procedure shall be governed by the general rules laid down in Title XXIX of the büntetőeljárásról szóló 1998 évi XIX. törvény [Law No XIX establishing the Code of Criminal Procedure of 1998, ‘the Law on criminal procedure of 1998’] relating to special procedures …’

22.

Under Paragraph 47 of the Law on international mutual legal assistance in criminal matters, which forms part of Chapter 1 of Title IV of that law, headed ‘Recognition of the validity of a foreign judgment’:

‘1.   A judgment of a foreign court having the force of res judicata shall have the same effects as a judgment handed down by a Hungarian court provided that the foreign proceedings brought against the offender and the sentence imposed or measure applied are not contrary to Hungarian law.

…

3.   If the Hungarian court recognises the validity of the foreign judgment, the offence shall be regarded as having been ruled on by the Hungarian court in a judgment having the force of res judicata.

…’

23.

Lastly, Paragraph 48 of that law provides:

‘1.   The Hungarian court, when delivering its decision, shall be bound by the findings of fact of the foreign court.

2.   In the course of the procedure before it, the Hungarian court shall determine the legal consequences deriving from the conviction under Hungarian law. If the sentence or measure imposed by the judgment of the foreign court is not fully compatible with Hungarian law, the Hungarian court shall make a finding in its decision as to the sentence or measure applicable under Hungarian law, so that it corresponds as closely as possible to the sentence or measure imposed by the foreign court, and, where an application is made for enforcement, shall accordingly rule on the enforcement of the sentence or measure.

3.   When determining the applicable sentence or measure, reference shall be made to the law that applied at the time the offence was committed. If, under the Hungarian law applicable at the time the sentence or applicable measure is determined, the act in question no longer constitutes a criminal offence or is subject to a lesser punishment, that later law shall apply.

4.   If, in the case of multiple offences, the foreign court has handed down a cumulative sentence in its judgment and any of the offences ruled on in the judgment is not an offence in Hungary or cannot otherwise be recognised there, the Hungarian court shall determine the sentence in its decision in accordance with the rules of the büntető törvénykönyv [Criminal Code ( 10 )] on the determination of sentences without having regard to that offence and taking account of the other findings of fact forming the basis of the judgment.

5.   If the custodial sentence imposed by the foreign court is not compatible with Hungarian law with respect to the means of enforcing it or its duration, the Hungarian court shall determine the sentence and its duration in accordance with Hungarian law, including the rules governing the means of enforcement of the sentence and the grant of conditional release, taking account of the sentences laid down in the Criminal Code for the offence resulting from the findings of fact on which the judgment was based as well as the rules on the determination of sentences. If the duration of the custodial sentence imposed by the foreign court is less than the corresponding duration under Hungarian law, taking into account also the rules of the Criminal Code on the mitigation of sentences, the duration of the custodial sentence handed down by the Hungarian court shall be the same as that imposed by the foreign court. The duration of the sentence imposed by the Hungarian court may not be greater than that of the sentence imposed by the foreign court.

6.   If the foreign court has imposed a custodial sentence and has ordered enforcement of part of the duration of the sentence, while suspending enforcement of the remaining part, the Hungarian court shall treat that custodial sentence as meaning that the convicted person has been granted conditional release. In those circumstances, when determining the time for granting conditional release, the Hungarian court may depart from Paragraph 38(2) of the Criminal Code and, if the duration of conditional release under Paragraph 39(1) of the Criminal Code is greater than the period of the suspension decided in the judgment of the foreign court, from Paragraph 39(1) of the Criminal Code. In those circumstances, the period of conditional release shall be the period of the suspension established in the judgment of the foreign court and the sentence shall be regarded as having been served following the last day of the conditional release so determined.

7.   The Hungarian court shall inform the criminal records service of the recognition of the validity of the foreign judgment.

…’

24.

Under Hungarian criminal procedure law, ‘special’ procedures are procedures which are conducted after a final decision has been taken on the main criminal law issues in order to adjudicate on incidental criminal law issues that are closely associated with the main issues, that is to say, they are simplified procedures.

25.

Title III of the a bűnügyi nyilvántartási rendszerről, az Európai Unió tagállamainak bíróságai által magyar állampolgárokkal szemben hozott ítéletek nyilvántartásáról, valamint a bűnügyi és rendészeti biometrikus adatok nyilvántartásáról szóló 2009. évi XLVII. törvény (Law No XLVII of 2009 on criminal records, the register of judgments delivered by courts of the Member States of the European Union against Hungarian citizens and the criminal and police biometric file) is headed ‘Register of judgments delivered by courts of the Member States of the European Union against Hungarian citizens’.

26.

Paragraph 31 of that law provides:

‘The management of information contained in the register of judgments delivered by courts of the Member States of the European Union against Hungarian citizens (“the register of judgments delivered in the Member States”) is intended, as regards the information contained in judgments delivered in other Member States of the European Union which have the force of res judicata and establish the guilt of Hungarian citizens (“judgments delivered in the Member States”):

27.

Under Paragraph 32 of the law:

‘The register of judgments delivered in the Member States shall record information on Hungarian citizens whose guilt has been established by decisions having the force of res judicata delivered in other Member States of the European Union.’

28.

In accordance with Paragraph 33 of that law:

‘1.   The register of judgments delivered in the Member States shall contain the following information appearing in the judgments delivered in other Member States which has been forwarded by the central authorities designated by each of them:

…’

29.

Mr Lada, a Hungarian national, was convicted on 8 January 2016 by the Landesgericht Wiener Neustadt (Wiener Neustadt Regional Court, Austria) and was given a custodial sentence of 14 months for attempted aggravated burglary in relation to high-value goods. The court ordered that Mr Lada serve 11 months of that sentence and suspended the remaining 3 months’ imprisonment.

30.

The court delivered its judgment at a public hearing at which the accused, who was being held on remand, was present. The accused was defended by a lawyer and was able to express himself in his mother tongue through an interpreter.

31.

At the request of the Ministry of Justice, the Landesgericht Wiener Neustadt (Wiener Neustadt Regional Court) sent the former its judgment in the case and a summary of the necessary information.

32.

The Ministry forwarded the documents, drawn up in German, to the Szombathelyi Törvényszék (Szombathely Court, Hungary), the referring court, which has substantive and territorial jurisdiction to implement, under Paragraph 46 of the Law on international mutual legal assistance in criminal matters, the procedure for ‘recognition of the validity of foreign judgments’ provided for in that law.

33.

The referring court states that, at the beginning of that procedure, it is necessary to consider in particular whether fundamental rights and the basic provisions of the Law on criminal procedure of 1998 have been observed in the foreign proceedings.

34.

Accordingly, the court reviewed the documents sent to it and had them translated into Hungarian. During the procedure, it appointed a defence lawyer to assist Mr Lada and found that his conviction by the Landesgericht Wiener Neustadt (Wiener Neustadt Regional Court) had not been entered in the Hungarian criminal record, although it appeared in ECRIS. It also found that the term of imprisonment was in the process of being enforced.

35.

The referring court explains that in order for the effects of the judgment handed down by the Landesgericht Wiener Neustadt (Wiener Neustadt Regional Court) against Mr Lada to be recognised in Hungary, a special procedure must be implemented, which amounts to new criminal proceedings. In that context, the offence committed by the convicted person must be assessed having regard to the circumstances taken into account in the foreign judgment, in the light of the Criminal Code in force when the offence was committed or at the time of the trial.

36.

In respect of the recognition procedure at issue here, the referring court states that the Criminal Code established by the 2012. évi C. törvény (Law No C of 2012) was applicable at the time of both the commission of the offence and the trial, that is to say it applies to the recognition of the effects of the foreign judgment, and that, under that code, the offences committed abroad and ruled on by a foreign court must, during the recognition procedure, be reclassified under Hungarian law.

37.

The referring court also notes that, as regards the criminal offences thus determined, the operative part of the foreign judgment must be reformulated in accordance with the Criminal Code in force, even if this involves a criminal penalty of a different type or level.

38.

The referring court states that, in practice, the procedure for recognition of the validity of foreign judgments in Hungary under Paragraphs 46 to 48 of the Law on international mutual legal assistance in criminal matters entails a new assessment and classification, having regard to the circumstances of the case, the acts already ruled on in the decision of the foreign criminal court and the imposition (or determination) of Hungarian penalties. Thus, the court concerned would, so to speak, convert or reclassify the foreign judgment in accordance with Hungarian law and apply a new penalty or, where appropriate, a new measure. Pursuant to Paragraphs 46 to 48 of the Law on international mutual legal assistance in criminal matters, the Hungarian court may therefore, having regard to the same facts, find the convicted person guilty of different offences from those established as a result of the foreign proceedings and impose a different penalty or measure from that ordered at the end of those proceedings.

39.

The referring court observes that the special procedure raises questions in so far as Hungarian law appears to disregard the principle of mutual recognition enshrined in primary EU law. This is evidenced by Paragraph 47(3) of the Law on international mutual legal assistance in criminal matters, which, as has already been stated, provides that ‘if the Hungarian court recognises the validity of the foreign judgment, the offence shall be regarded as having been ruled on by the Hungarian court in a judgment having the force of res judicata’. Accordingly, it appears to follow from Hungarian law that a judgment delivered by a court of another Member State will result in a conviction for the person concerned and in the possibility of applying the other effects of that judgment in Hungary only if a Hungarian court has recognised the effects of the judgment in Hungary in the context of the special recognition procedure. In other words, it is apparent from Hungarian law that foreign judgments may be taken into account in Hungary only once they have been recognised by a Hungarian court in that special procedure.

40.

The referring court also observes that the special recognition procedure does not involve the mere automatic reproduction of the foreign judgment. Indeed, in the course of that procedure, the Hungarian court with jurisdiction may decide upon a penalty of a different type or level from the type and level imposed abroad, or even recognise the judgment while finding that the facts constitute an offence punishable by a more severe penalty. It therefore recognises the effects of the foreign judgment by means of a fresh decision. According to the referring court, this involves an inaccurate reproduction in Hungary of the foreign judgment or entails a new judgment handed down in another Member State against the same person in respect of the same facts since it will be necessary, in the context of the special procedure, to find the person guilty of new offences under Hungarian law and the related conviction will have to be entered in the Hungarian criminal record. The above raises the question of the compatibility of the special recognition procedure with the principle of non bis in idem, which could be resolved by an interpretation of Article 54 of the Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders ( 11 ) and Article 50 of the Charter of Fundamental Rights of the European Union. ( 12 )

41.

The referring court states that the provisions of the Law on international mutual legal assistance in criminal matters laying down the procedure for the recognition of foreign judgments seek to ensure that the convictions resulting from such judgments can be entered in the Hungarian criminal record, assuming that a Hungarian court has recognised their effects. Judgments recognised in that way may then, should the case arise, provide a basis for treating the convicted persons in the future as repeat offenders or multiple repeat offenders.

42.

The referring court also notes that the application of Hungarian law leads to a situation whereby, as a result of the recognition procedure, the Hungarian criminal record includes, as regards the convicted person, offences and sentences recognised under Hungarian law while ECRIS continues to include the information contained in the foreign judgment.

43.

Lastly, the referring court states that the specific matter in issue is not the enforcement in Hungary of penalties imposed in a judgment delivered by a court of another Member State and that, in such a situation, the relevant procedure is governed by different legislation, namely the az Európai Unió tagállamaival folytatott bűnügyi együttműködésről szóló 2012. évi CLXXX. törvény (Law No CLXXX of 2012 on cooperation between the Member States of the European Union in criminal matters). ( 13 )

44.

The referring court enquires whether such a recognition procedure is consistent with EU law, having regard, in particular, to the principle of mutual recognition in the area of judicial cooperation in criminal matters as well as the principle of non bis in idem, as set out in primary EU law.

45.

In the light of the questions submitted by the referring court in this case, it was decided, on 13 September 2016, to notify the referring court of the judgment of 9 June 2016, Balogh, ( 14 ) in which the Court ruled that Framework Decision 2009/315 and Decision 2009/316 must be interpreted as precluding the implementation of national legislation establishing a national special procedure for the recognition by the court of a Member State of a final judicial decision handed down by a court of another Member State convicting a person for the commission of an offence.

46.

By letter received at the Court on 12 October 2016, the Szombathelyi Törvényszék (Szombathelyi Court) decided to maintain its reference for a preliminary ruling and explained that the facts which gave rise to the judgment of 9 June 2016, Balogh, ( 15 ) cited above, concerned only the costs of translation and interpretation so that the person concerned could use his mother tongue during the Hungarian recognition procedure.

47.

Furthermore, the court observes that that judgment did not result in any uniform practice on the part of the Hungarian courts. Thus, given the specificities of framework decisions under EU law, some courts have continued to conduct special procedures pending an amendment of Hungarian law. Others have taken no further action on cases or are waiting for a uniform judicial practice to emerge. The referring court notes that if Hungarian legislation were found to be incompatible with primary EU law, the Hungarian courts before which cases have been brought could automatically disregard that legislation and the principle of mutual recognition of judicial decisions in criminal matters could prevail in full.

48.

Moreover, according to the referring court, the analysis of the compatibility of the special recognition procedure with the principle of mutual recognition requires a review of much wider issues than those tackled in the judgment of 9 June 2016, Balogh. ( 16 ) In this case, it is necessary in particular also to examine whether the referring court may take measures which, compared with the measures decided on by the court that delivered the foreign judgment, have the effect of altering that judgment in any way.

49.

The referring court also notes that the special recognition procedure under Hungarian law has not yet been considered from the perspective of the principle of non bis in idem. The procedure should be examined from the perspective of that principle as well as the principle of mutual recognition because, in the course of the procedure, the Hungarian court with jurisdiction classifies the offences which have already been ruled on abroad under the Hungarian law in force and may impose sentences and other measures which differ from the penalties imposed in the foreign judgment. Thus, the foreign judgment and the Hungarian decision may contain entirely different findings as to the offences committed in respect of the same facts. The same is true as regards penalties, although those ordered in Hungary may not be more severe than those imposed abroad.

50.

The referring court additionally submits that Framework Decision 2008/675 is relevant to the procedure in issue, since the taking into account of Mr Lada’s foreign conviction in the course of subsequent criminal proceedings is dependent on the prior application of the special recognition procedure.

51.

In those circumstances, the Szombathelyi Törvényszék (Szombathely Court) decided to maintain the following questions which it submitted for a preliminary ruling:

52.

By the two questions it submits for a preliminary ruling — which must, in my view, be considered together — the referring court seeks to ascertain whether the special procedure for the recognition of foreign judgments provided for in Hungarian law is compatible with EU law and, in particular, with the principle of mutual recognition set out in Articles 67 and 82 TFEU, with Framework Decision 2008/675 and with the principle of non bis in idem, enshrined in Article 50 of the Charter and Article 54 of the Convention implementing the Schengen Agreement.

53.

Those questions were raised by the referring court with jurisdiction, under Hungarian law, to implement the special procedure for recognition of the conviction handed down by the Landesgericht Wiener Neustadt (Wiener Neustadt Regional Court) against Mr Lada, as laid down in Paragraphs 46 to 48 of the Law on international mutual legal assistance in criminal matters.

54.

It should be pointed out that the procedure for recognition of the foreign judgment was not applied in the present case for the purpose of enforcing the sentence imposed in that judgment in Hungary or taking the judgment into account in the course of new criminal proceedings already underway against Mr Lada in Hungary.

55.

Paragraphs 46 to 48 of the Law on international mutual legal assistance in criminal matters establish a special procedure for prior recognition, by the Hungarian courts with jurisdiction, of convictions not subject to appeal handed down by foreign courts, with the aim of ensuring that the decision recognising those convictions has the effect of a conviction handed down by a Hungarian court.

56.

According to the information provided by the referring court, that procedure entails a review of the foreign conviction at issue which may lead to the reclassification of the criminal offence that led to the conviction as well as an adjustment of the sentence imposed if those aspects are not compatible with Hungarian criminal law.

57.

In the context of the special procedure for the recognition of a conviction handed down by a court of another Member State, the person who was the subject of a final judgment of a criminal court is not the subject of new criminal proceedings which may lead to a second conviction for the same offence. That procedure, in which the Hungarian court with jurisdiction does not conduct a fresh assessment of the facts or of the degree of criminal liability of the person concerned, is akin to an exequatur procedure and instead aims to tailor the legal consequences as determined in the foreign judgment to the requirements of Hungarian criminal law. Therefore, the principle of non bis in idem, which is intended to ensure, in the area of freedom, security and justice, that a person whose trial has been finally disposed of is not prosecuted in several Member States for the same acts on account of his having exercised his right to freedom of movement, ( 17 ) does not seem to me to be relevant in this case.

58.

As previously mentioned, the Court has already had occasion to rule, in its judgment of 9 June 2016, Balogh, ( 18 ) that Framework Decision 2009/315 and Decision 2009/316 must be interpreted as precluding the implementation of a special recognition procedure in Hungary. Specifically, it held that, in accordance with those instruments, the central authority of the Member State of the person’s nationality must enter in the criminal record convictions handed down by the courts of the convicting Member State directly on the basis of the transmission by the central authority of the convicting Member State, via ECRIS, of the codified information relating to those convictions. ( 19 ) In those circumstances, the entry of such convictions cannot depend on the prior application of a procedure for judicial recognition of those convictions, such as the Hungarian special procedure, still less on the communication to the Member State of the person’s nationality of the decision convicting the person concerned for the purpose of such recognition. ( 20 )

59.

The Court also ruled, in its judgment of 21 September 2017, Beshkov, ( 21 ) on the special recognition procedure under Bulgarian law. It held that Framework Decision 2008/675 must be interpreted as precluding the possibility that it should be a prerequisite of account being taken, in a Member State, of a previous conviction handed down by a court of another Member State that a national procedure for prior recognition of that conviction by the courts with jurisdiction in the former Member State be implemented.

60.

In those two judgments, the Court found that such national procedures for the recognition of foreign judgments conflict with the principle of mutual recognition of judgments and judicial decisions in criminal matters laid down in Article 82(1) TFEU, which replaced Article 31 EU, on which Framework Decision 2009/315, Decision 2009/316 and Framework Decision 2008/675 are based. ( 22 ) In particular, that principle precludes the possibility of convictions handed down in other Member States under a national recognition procedure being subject to review. ( 23 )

61.

In the light of the position taken by the Court in those two judgments, it is reasonable to question why the Court should find it necessary to rule again on the conformity with EU criminal law of such national procedures for the recognition of foreign decisions, when the issue could be regarded as having been definitively and fully disposed of in those judgments. In my view, three reasons can be given.

62.

In the first place, the explanations provided by the Hungarian Government in its written observations seem to challenge the premiss on which the Court based its reasoning in the judgment of 9 June 2016, Balogh, ( 24 ) namely that the special recognition procedure in Hungary is a necessary precondition for the entry in the Hungarian criminal record of convictions handed down by courts of other Member States against Hungarian citizens. It is on the basis of that premiss that the Court interpreted Framework Decision 2009/315 and Decision 2009/316, two sets of legal rules which are intended to facilitate the rapid circulation of information on convictions between Member States and thus preclude a national recognition procedure the prior application of which is a requirement for the entry of such information in the Hungarian criminal record.

63.

Indeed, the Hungarian Government essentially explains in its written observations that, pursuant to Law No XLVII of 2009 on criminal records, the register of judgments delivered by courts of the Member States of the European Union against Hungarian citizens and the criminal and police biometric file, a judgment handed down in a Member State must, if the authority of that Member State has transmitted it in the appropriate form and with sufficient content for the purpose of its inclusion, be entered in the register of judgments delivered by courts of the Member States against Hungarian citizens without any special procedure, a register which is managed by the criminal records service. Based on that description, the Hungarian Government considers that Hungarian legislation is in essence consistent with the provisions of Framework Decision 2009/315. It follows from the above explanations that the special procedure for recognition of those judgments is applied irrespective of their entry in the register of judgments delivered by courts of other Member States.

64.

However, the information provided in the order for reference rather confirms the premiss that the special recognition procedure is conducted prior to and for the purpose of entering foreign convictions handed down against Hungarian citizens in the Hungarian criminal record.

65.

I refer in that connection to Paragraph 48(7) of the Law on international mutual legal assistance in criminal matters, cited by the referring court, which provides that ‘the Hungarian court shall inform the criminal records service of the recognition of the validity of the foreign judgment’. Furthermore, the referring court states that the new offences arising under Hungarian law — that is to say after reclassification in the course of the special recognition procedure — will have to be recorded in the national criminal record. ( 25 ) It also pointed out during the proceedings that the conviction handed down by the Landesgericht Wiener Neustadt (Wiener Neustadt Regional Court) against Mr Lada did not feature in the Hungarian criminal record but did appear in ECRIS. Lastly, the referring court makes clear that the purpose of the provisions of Chapter 1 of Title IV of the Law on international mutual legal assistance in criminal matters is to enable a foreign conviction to be entered in the Hungarian criminal record, assuming that a Hungarian court has recognised its validity. ( 26 ) I infer from the foregoing considerations that the entry of a foreign judgment in the Hungarian criminal record occurs after the recognition of that judgment under the special procedure.

66.

In addition, as the referring court points out, in the context of the special recognition procedure, the Hungarian court with jurisdiction may, having regard to the same facts and in accordance with Hungarian law, find the person convicted by a foreign court guilty of different offences from those established as a result of the foreign criminal proceedings and impose a different penalty or measure from that ordered at the end of those proceedings. ( 27 ) The referring court observes that the implementation of the special recognition procedure leads to a situation whereby, once that procedure has been completed, the Hungarian criminal record includes, as regards the convicted person, offences and sentences recognised under Hungarian law while ECRIS continues to include the information contained in the foreign judgment. ( 28 )

67.

Such a divergence between the information contained in ECRIS and that appearing in the Hungarian criminal record is at odds with the system for exchanging and storing information on convictions established by Framework Decision 2009/315 and Decision 2009/316.

68.

The question whether the special procedure for the recognition of convictions handed down by a court in another Member State is indeed applied for the purpose of entering those convictions in the Hungarian criminal record is, in any event, a question of interpretation of national law which does not fall within the jurisdiction of the Court. ( 29 )

69.

As regards, furthermore, the Ministry of Justice’s ostensible practice of asking for the foreign judgment to be forwarded to it prior to the conviction being entered in the Hungarian criminal record, it should be observed that this practice is contrary to the system established by Framework Decision 2009/315 and Decision 2009/316. Those instruments create a rapid and effective system for the exchange of information on convictions handed down in the various EU Member States. ( 30 ) Such information is thereby transmitted between the central authorities of the Member States via ECRIS, in the form of codes corresponding to each of the offences and penalties referred to in the transmission. ( 31 ) Therefore, the transmission to the central authority of the Member State of the person’s nationality of a conviction handed down by a court of another Member State takes place only where particular circumstances so dictate, and cannot be required as a matter of course for the purpose of entering that conviction in the criminal record of the first Member State. ( 32 ) I note that the Hungarian Government did not claim that there were any special circumstances in this case which could justify forwarding the judgment of the Landesgericht Wiener Neustadt (Wiener Neustadt Regional Court) to the Ministry of Justice.

70.

In the light of the foregoing, I therefore propose that the Court should confirm its reasoning in paragraphs 28 to 35 and paragraphs 41 to 55 of its judgment of 9 June 2016, Balogh. ( 33 ) For my part, I maintain the position set out in points 36 to 67 of my Opinion in that case, to which I refer here. ( 34 )

71.

In the second place, both the referring court and the Hungarian Government compare the special recognition procedure with the provisions contained in Framework Decision 2008/675. It is apparent from the explanations furnished to the Court that the implementation of that procedure by the Hungarian courts with jurisdiction is a necessary prerequisite for account to be taken, in the course of new criminal proceedings, of a previous conviction handed down by a court of another Member State. The Hungarian Government draws attention to the need for such convictions to be adapted to Hungarian criminal law under the special recognition procedure. Without such prior adjustment, it would not be possible for the conviction to be taken into account in any future criminal proceedings which might be brought against a person who has been convicted by a foreign court.

72.

As mentioned above, Mr Lada is not currently the subject of new criminal proceedings in Hungary, so that the relevance of Framework Decision 2008/675 — the purpose of which is, according to Article 1(1), ‘to determine the conditions under which, in the course of criminal proceedings in a Member State against a person, previous convictions handed down against the same person for different facts in other Member States, are taken into account’ ( 35 ) — might appear doubtful in the present case. The situation is different from that of Mr Beshkov, who was the subject of new criminal proceedings in Bulgaria in which the question of the taking into account of a previous conviction handed down by an Austrian court was raised. ( 36 )

73.

However, it is clear that, irrespective of the circumstances in which it is implemented, the special recognition procedure continues to be at odds with the system established by Framework Decision 2008/675 in so far as it constitutes a prerequisite not provided for in that framework decision which affects its application. In other words, the special recognition procedure was designed by the Hungarian legislature to lay the groundwork for the taking into account of foreign convictions in the course of possible future criminal proceedings. It thus appears to be inseparable from the implementation of Framework Decision 2008/675 by the Hungarian authorities. It is therefore useful — to enable the referring court to resolve the dispute in the main proceedings and, in particular, to decide whether or not it should apply the national recognition procedure — for the Court to recall, in essence, its findings in paragraphs 35 to 38 and paragraph 40 of its judgment of 21 September 2017, Beshkov, ( 37 ) namely that Framework Decision 2008/675 must be interpreted as precluding the possibility that it should be a prerequisite of account being taken, in a Member State, of a previous conviction handed down by a court of another Member State that a national procedure for prior recognition of that conviction by the courts with jurisdiction in the former Member State be implemented. For my part, I refer to points 27 to 31 of my Opinion in that case. ( 38 )

74.

Contrary to the submissions of the Czech and Hungarian Governments, recital 13 of Framework Decision 2008/675 cannot be construed as meaning that a Member State can make a conviction handed down by a court of another Member State subject to a national recognition procedure before it is able to take that conviction into account in the course of new criminal proceedings.

75.

As the European Commission stated in its report to the European Parliament and to the Council on the implementation by the Member States of [Framework Decision 2008/675], that instrument contributes to ‘promoting mutual trust in penal laws and judicial decisions in the European area of justice as it encourages a judicial culture where previous convictions handed down in another Member State are in principle taken into account’. ( 39 ) To that end, Article 3(1) of that framework decision, read in the light of recital 5 thereof, obliges Member States to ensure that, when new criminal proceedings are brought in a Member State against a person, previous convictions handed down in other Member States against that same person for different facts, in respect of which information has been obtained under the applicable instruments on mutual legal assistance or on the exchange of information extracted from criminal records, are taken into account to the extent that previous national convictions are taken into account under national law, and that the effects attached to them are equivalent to those attached to previous national convictions, in accordance with national law.

76.

Framework Decision 2008/675 is thus governed by the principle of equivalence. ( 40 ) In accordance with that principle, the taking into account of previous convictions handed down by the court of another Member State is mandatory for a national court before which new criminal proceedings are brought only in so far as taking into account such convictions is possible in a purely domestic situation.

77.

That requirement is clearly linked to the attainment of the area of freedom, security and justice and thereby to mutual recognition, which requires not only that the foreign decision be taken into account but also that it be complied with.

78.

Therefore, in taking account of that earlier foreign decision, the court subsequently seised may not change it in any way. That principle is laid down in Article 3(3) of Framework Decision 2008/675. The national court before which proceedings have been brought subsequently must simply attach to that decision the effects which would be attached to a prior national decision, under its national law.

79.

As the Court stated in its judgment of 21 September 2017, Beshkov, ( 41 ) Article 3(3) and recital 13 of that framework decision expressly proscribe any review of previous convictions handed down in other Member States, since those convictions must be taken into account in the terms in which they were handed down. ( 42 )

80.

Therefore, contrary to the arguments of the Czech and Hungarian Governments, while recital 13 also states that the framework decision respects the diversity of domestic solutions and procedures required for taking into account a previous conviction handed down in another Member State and does not prevent a Member State from issuing a decision, if necessary, in order to attach the equivalent legal effects to that conviction, the adoption of such a decision cannot, however, in any event, involve the implementation of a national procedure for prior recognition such as that at issue in the main proceedings. ( 43 )

81.

In short, although recital 13 of Framework Decision 2008/675 states that a Member State may issue a decision, if necessary, in order to attach equivalent legal effects to a previous conviction, it is only on condition that that decision complies with the rule set out in Article 3(3) of that framework decision, that is to say it should not amount to a review of the conviction.

82.

There is a significant difference between, on the one hand, adopting a decision reviewing a previous foreign judgment which may, in consequence, lead to a reclassification of the criminal offence and an amendment of the penalty imposed in that judgment, and, on the other, adopting a decision laying down the specific conditions under which the foreign judgment may be taken into account in the context of new criminal proceedings or stating the reasons why such taking into account is not possible in a given case.

83.

The first solution is in direct conflict with the principle of mutual recognition, while the latter, in contrast, falls within the scope of the actual implementation of that principle.

84.

My view is that the information contained in recital 13 of Framework Decision 2008/675 is only intended to give Member States discretion to decide upon the specific conditions under which previous convictions handed down in another Member State may be taken into account by their courts. It should be noted that Framework Decision 2008/675 does not harmonise the legal effects that must be attached to previous convictions. ( 44 ) It follows from the application of the principle of mutual recognition that convictions handed down in another Member State are to have the same validity and effects as a previous national conviction. In other words, that framework decision establishes a ‘principle of assimilation’ of judgments issued in other Member States and national convictions. ( 45 ) However, the framework decision leaves it to national legislation to give due effect to that principle, which means that it does not aim to harmonise the effects attaching to previous convictions in each of the Member States, which remain governed by national law. ( 46 ) In the absence of harmonisation, Member States must therefore provide for different legal effects in their national laws, effects which may, moreover, apply in different ways and at different stages of criminal proceedings.

85.

In that regard, the Commission stated in the explanatory memorandum to its proposal for a framework decision that the effects of previous convictions vary widely, depending on the national systems. In some Member States, the existence of a previous conviction is a matter of pure fact, left to the appraisal of the competent authorities, which will take account of it when coming to their decision. In others, there are rules applying to repeat offending in the broad sense, under which the existence of a previous conviction has a number of automatic consequences which the competent authorities have no discretion to assess. In the case of the statutory framework governing repeat offending, the Commission notes that the Member States will have to specify the conditions in which equivalent effects are attached to the existence of a conviction handed down in another Member State. National legal rules applying to repeat offending are often very directly connected with the national structure of offences and penalties, notably in all the cases where there are special systems applicable to repeat offending. ( 47 )

86.

In the light of those explanations, recital 13 of Framework Decision 2008/675 cannot therefore be read as permitting the implementation of a national procedure for the recognition of judgments in criminal matters handed down in other Member States, such as that at issue in the main proceedings. Such a broad interpretation would run counter to the principle of mutual recognition of such judgments. The very restrictive conditions of recital 13 of that framework decision moreover demonstrate that the possibility for Member States to issue a decision in order to attach equivalent legal effects to a previous foreign conviction, subject to the prohibition on reviewing that conviction, can operate only exceptionally, on a case-by-case basis, in circumstances so self-evident that the matter could be resolved within the short time frame imposed by that recital.

87.

I infer from the foregoing considerations that the system established by Framework Decision 2008/675 prevents a Member State from applying a national recognition procedure to convictions handed down by the courts of other Member States, whereby those convictions are subject to a review that may result in them being altered in order to adapt them to the criminal law of the first Member State. I recall that the special recognition procedure under Hungarian law may result in the offence that was the subject of a final decision by a court of another Member State being reclassified and in the sentence imposed being adapted to Hungarian criminal law.

88.

It is true that the Hungarian Government explained to the Court that it had been decided, after the judgment of 9 June 2016, Balogh, ( 48 ) that the special procedure for the recognition of foreign judgments should no longer be implemented as a matter of course. ( 49 ) However, although this is, in a sense, an aggravating circumstance, the fact that the procedure is implemented as a matter of course is not sufficient, on its own, for a finding that it is incompatible with Framework Decision 2008/675. The incompatibility is made out by the fact that the procedure, even if it is implemented only in connection with new criminal proceedings that have actually been brought against a person who has been the subject of a previous conviction handed down by a court of another Member State, and no longer as a matter of course irrespective of any new criminal proceedings, constitutes a prerequisite for the taking into account of such a previous conviction and involves a review of that conviction which may result in it being altered in order to adapt it to Hungarian criminal law.

89.

It should be mentioned that the system established by Framework Decision 2008/675 differs in that regard in one fundamental respect from the system put in place by Council Framework Decision 2008/909/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union. ( 50 ) Whereas the former does not permit any adaptation of foreign convictions so that they can be taken into account in the course of new criminal proceedings, the latter, in Article 8 thereof, lays down strict conditions governing the adaptation, by the competent authority of the executing State, of the sentence imposed in the issuing State, those conditions being the sole exceptions to the basic obligation imposed on that authority to recognise the judgment forwarded to it and to enforce the sentence, which is to correspond in its length and nature to the sentence imposed in the judgment delivered in the issuing State. ( 51 ) However, the Hungarian Government cannot rely on such a power to adapt foreign convictions in this case because it is common ground that that power does not relate to the implementation of the special recognition procedure for the purpose of the enforcement in Hungary of the sentence handed down by the Landesgericht Wiener Neustadt (Wiener Neustadt Regional Court) against Mr Lada.

90.

Lastly, I note that the existence of a procedure such as that implemented by the Hungarian authorities before a foreign judicial decision in criminal matters is entered in the national criminal record, whether or not that procedure is applied as a matter of course, seems to me to serve no purpose within the framework of the system established by Framework Decision 2009/315 and Decision 2009/316 and, therefore, to be in conflict with them. Those two instruments primarily organise the information that is common to the criminal records of the Member States. The issue is simpler if we consider the fundamental purpose of the criminal record.

91.

The existence of a criminal record enables judicial authorities to ascertain whether a particular individual has been convicted, the sentence passed against him and the acts committed, which makes it possible, where appropriate, to determine whether he has reoffended and whether the sentence handed down has been enforced.

92.

In itself, the entry of a conviction in the criminal record does not amount to its taking into account or enforcement. It is by consulting the criminal record in the course of subsequent proceedings that the courts can see whether there is a conviction which should be taken into account or enforced. It is only in that situation, and depending on the circumstances, that the court before which new criminal proceedings have been brought will raise the question of the application of Framework Decision 2008/675 in order to take a conviction into account or Framework Decision 2008/909 in order to enforce a conviction.

93.

In the third place, the referring court asks the Court to interpret primary EU law, that is to say Article 82(1) TFEU, which lays down the principle of mutual recognition of judgments and judicial decisions in criminal matters, drawing attention to the fact that national courts would then be in a position to disregard Hungarian legislation that is contrary to that law, which they would be unable to do if the Court were to confine itself to interpreting framework decisions and highlighting the incompatibility of national legislation with such instruments. ( 52 ) The question thus arises as to whether framework decisions can be relied on before national courts for the purpose of disapplying national legislation that is contrary to them.

94.

It is clear, to my mind, that the Hungarian special procedure is in direct conflict with the principle of mutual recognition laid down in Article 82(1) TFEU. As the Commission rightly points out, that procedure prevents the automatic recognition of judgments handed down in other Member States since it provides not for the recognition of those judgments, but for their replacement by a national decision, which is the only decision capable of producing legal effects under Hungarian law. The wording of Paragraph 47(3) of the Law on international mutual legal assistance in criminal matters is very clear in that respect, as it provides that ‘if the Hungarian court recognises the validity of the foreign judgment, the offence shall be regarded as having been ruled on by the Hungarian court in a judgment having the force of res judicata’. It should be added that the decision issued by the Hungarian court with jurisdiction at the end of the special recognition procedure may contain, if necessary, an amendment of the foreign judgment to ensure that it is compatible with Hungarian law. This is borne out by Paragraph 48(2) to (6) of the Law on international mutual legal assistance in criminal matters.

95.

The Court could therefore choose to focus its answer to the referring court on Article 82(1) TFEU. That article establishes the principle of mutual recognition of judgments and judicial decisions in criminal matters and replaced Article 31 EU, on which Framework Decision 2009/315, Decision 2009/316 and Framework Decision 2008/675 are based.

96.

That was not, however, the approach taken by the Court in its judgments of 9 June 2016, Balogh, ( 53 ) and 21 September 2017, Beshkov, ( 54 ) among others, in which, although mentioning the principle of mutual recognition of judgments and judicial decisions in criminal matters in the body of its judgments, it interpreted the provisions of secondary EU law implementing that principle.

97.

That approach must, in my view, be retained because it is indeed those provisions of secondary EU law which lay down the conditions for and limits on the application of the principle of mutual recognition of judgments and judicial decisions in criminal matters, in the light of the specific nature of the different stages of criminal proceedings, and which, therefore, may require to be clarified by the Court.

98.

However, the Court has yet to specify the conclusions that national courts are to draw from a finding of incompatibility between national legislation and a framework decision and, in particular, to make clear that where those courts are unable to interpret such national legislation in a way that is consistent with a provision of secondary EU law, they are required, pursuant to the principle of the primacy of EU law, to refrain from applying the conflicting national legislation.

99.

I have already addressed the above issue in my Opinion in the case giving rise to the judgment of 29 June 2017, Popławski. ( 55 ) Following that judgment, the rechtbank Amsterdam (Amsterdam District Court, Netherlands) again asked the Court about that issue, among others, in pending case Popławski (C‑573/17). The Court therefore has several opportunities to make clear whether, where a national court takes the view that it is impossible to interpret national law in a manner that is consistent with a framework decision, that court must refrain from applying national law.

100.

It should be recalled that the finding that framework decisions may not entail direct effect should not obscure the fact that, in accordance with Article 34(2)(b) EU, ( 56 ) they are still binding on the Member States as to the result to be achieved, but leave to the national authorities the choice of form and methods. ( 57 ) Moreover, the Court has consistently held that Member States must take all appropriate measures, whether general or particular, to ensure fulfilment of their obligations under a framework decision. ( 58 )

101.

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 TFEU, 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. ( 59 )

102.

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. ( 60 ) Moreover, the principle of conforming interpretation cannot serve as the basis for an interpretation of national law contra legem. ( 61 )

103.

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. ( 62 ) 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. ( 63 ) 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. ( 64 )

104.

Having made those preliminary points concerning the obligation on national courts to interpret national law in conformity with EU law, it should be noted that it is ultimately for the referring court to assess whether its national law and, in particular, Paragraphs 46 to 48 of the Law on international mutual legal assistance in criminal matters, lends itself to an interpretation that is consistent with Framework Decisions 2009/315 and 2008/675.

105.

In so far as there is no certainty that the referring court will be able to arrive at an interpretation of its national law that is in conformity with EU law, there seems to me to be a need, in the event that the national law cannot be interpreted in conformity with EU law, to determine the specific conclusions that the referring court would have to draw from the fact that Paragraphs 46 to 48 of the Law on mutual legal assistance in criminal matters are not in conformity with Framework Decisions 2009/315 and 2008/675.

106.

In principle, if the national provisions at issue do not lend themselves to an interpretation in conformity with EU law, the referring court is required to refrain from applying them in order to apply EU law in its entirety.

107.

In that regard, it should be noted that although the Court has already been called upon to rule on the legal scope of instruments adopted under Title VI of the EU Treaty, which deals with police and judicial cooperation in criminal matters, it nonetheless confined itself, in its judgment of 16 June 2005, Pupino, ( 65 ) to extending the principle of interpreting national law in conformity with EU law to those instruments, while recognising that a framework decision is comparable to a directive for these purposes.

108.

The Court has not yet ruled, however, on the issue of whether the fact that a national rule is not in conformity with a framework decision has the effect of requiring the national court to refrain from applying that national rule where it cannot be interpreted in conformity with EU law.

109.

As I submitted in my View of 28 April 2008 in Kozłowski, ( 66 ) the grounds on which, in the judgment of 15 July 1964, Costa, ( 67 ) the Court held that the Member States, having freely consented to a transfer of their powers to the Community, may not set a measure of their domestic law, however framed, against a binding Community measure, can be applied to a framework decision. To my mind, a framework decision, like all binding measures of EU law, is such as to take precedence over any provision of national law whatsoever, even a constitutional one or one forming part of a basic law. Thus, the principle of the primacy of EU law requires the national court to give full effect to EU law, ‘if necessary refusing of its own motion to apply any conflicting provision of national law’. ( 68 )

110.

There are a number of considerations which militate in favour of the applicability of the principle of primacy to framework decisions adopted under the third pillar. ( 69 )

111.

The first consideration is textual. It need hardly be pointed out in this regard that, with the exception of the reservation to the effect that framework decisions are not directly effective, the EU legislature modelled the regime applicable to framework decisions on that applicable to directives, providing that the framework decisions ‘shall be binding upon the Member States as to the result to be achieved but shall leave to the national authorities the choice of form and methods’. ( 70 ) Since framework decisions are inescapably particular only in that they are not directly effective, ( 71 ) there is no reason why those instruments should otherwise be denied primacy on the ground that they fall within the area of intergovernmental cooperation.

112.

The second consideration concerns the Court’s recognition of the national court’s obligation to use the technique of interpreting national law in conformity with EU law in order to give full effect to framework decisions and to achieve an outcome consistent with the purpose they serve.

113.

It is true that, in order to justify the application of the principle that national law is to be interpreted in conformity with EU law, the Court relied not on the principle of primacy, but on the principle of loyal cooperation. It thus held that that principle, requiring in particular that Member States take all appropriate measures, whether general or particular, to ensure fulfilment of their obligations under EU law, must also be binding in the area of police and judicial cooperation in criminal matters, which is moreover entirely based on cooperation between the Member States and the institutions. ( 72 ) That rationale was already evident in the judgment of 10 April 1984, von Colson and Kamann, ( 73 ) the Court having inferred there, in particular, the obligation to interpret national law in conformity with EU law from the duty of Member States to take all appropriate measures, whether general or particular, to ensure the fulfilment of their obligations under EU law, stating that that law is binding on all the national authorities including, for matters within their jurisdiction, the courts. ( 74 )

114.

The fact remains that the requirement to interpret national law in conformity with EU law, which, in accordance with settled case-law, the Court considers to be ‘inherent in the system of the [TFEU], since it permits national courts, for the matters within their jurisdiction, to ensure the full effectiveness of EU law when they determine the disputes before them’, ( 75 ) arises from the requirement that EU law should be effective and the need to ensure the primacy of that law over the national law of the Member States. ( 76 ) Moreover, recognition of the principle of interpreting national law in conformity with EU law by way of the principle of loyal cooperation is necessarily predicated on the acceptance, however latent, of the primacy of EU law. How, after all, could the obligation of loyal cooperation under EU law justify the fact that the national court is required to amend the meaning of its national law in a manner in conformity with EU law if that obligation were not regarded as necessarily taking precedence over the national court’s obligation to resolve the dispute in accordance with the rules of its national law?

115.

The third consideration has to do with changes in the legal framework following the end of the transitional period provided for by Protocol No 36 on transitional provisions, annexed to the Treaties. Pursuant to Article 10(3) of that protocol, the transitional measure mentioned in paragraph 1 ceased to have effect five years after the date of entry into force of the Treaty of Lisbon, that is to say 30 November 2014. The definitive assimilation of the third pillar into the field covered by Part Three, Title V, of the TFEU, relating to the area of freedom, security and justice, makes a ‘Community interpretation’ imperative. ( 77 ) In that regard, it should be noted in particular that, while the Court’s jurisdiction under the former Article 35 EU reflected the intergovernmental nature of cooperation under the third pillar, its jurisdiction to give preliminary rulings is now automatic and binding, no longer being subject to a declaration whereby each Member State recognised that jurisdiction and indicated the national courts able to make a reference to the Court. In that regard, it is interesting to note that, in its judgment of 16 June 2005, Pupino, ( 78 ) the Court relied on ‘the importance of the Court’s jurisdiction to give preliminary rulings under Article 35 EU’ in order to justify the fact that individuals are entitled to invoke framework decisions in order to obtain a conforming interpretation of national law before the courts of the Member States. ( 79 ) The recognition of a jurisdiction identical to that which the Court held under the first pillar demonstrates a process of significant convergence between those two pillars which supports the proposition that the effects of framework decisions should be modelled on those of directives, with the exception, of course, of direct effect, which is expressly excluded.

116.

From the foregoing, I infer that, pursuant to the principle of primacy, the framework decision is such as to take precedence over any provision of national law which is contrary to it.

117.

I think it is also important to note that the Court stated emphatically in its judgment of 26 February 2013, Melloni, ( 80 ) which concerned the interpretation of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, ( 81 ) that ‘it is settled case-law that, by virtue of the principle of primacy of EU law, which is an essential feature of the EU legal order …, rules of national law, even of a constitutional order, cannot be allowed to undermine the effectiveness of EU law on the territory of that State’. ( 82 )

118.

In accordance with the logic of uncoupling the ‘substitution’ effect from the ‘invocability of exclusion’, ( 83 ) I take the view that the fact that the framework decision is not directly effective does not mean that the national court is not under an obligation to refrain from applying the provisions of its domestic law which are incompatible with EU law. After all, that obligation flows directly from the fact that EU law takes precedence over national provisions that hinder its full effectiveness.

119.

To my mind, the above considerations apply a fortiori to decisions adopted under Article 34(2)(c) EU, such as Decision 2009/316.

120.

Consequently, I am of the opinion that it is for the national court, by taking the whole body of domestic law into consideration and applying the interpretative methods recognised by it, to interpret the provisions of national law at issue in the main proceeding, so far as is possible, in the light of the wording and the purpose of Framework Decision 2009/315, Decision 2009/316 and Framework Decision 2008/675. If such an interpretation were to prove impossible, the referring court would be required to refrain from applying those national provisions contrary to EU law.

121.

In the light of the above considerations, I propose that the Court should answer the questions referred by the Törvényszék Szombathelyi (Szombathely Court, Hungary) as follows: