–

the German Government, by J. Möller, P. Busche, M. Hellmann and R. Kanitz, acting as Agents,

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the Polish Government, by B. Majczyna, acting as Agent,

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the European Commission, by S. Grünheid and H. Leupold, acting as Agents,

1

This request for a preliminary ruling concerns the interpretation of Article 4a(1) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (OJ 2002 L 190, p. 1), as amended by Council Framework Decision 2009/299/JHA of 26 February 2009 (OJ 2009 L 81, p. 24) (‘Framework Decision 2002/584’).

2

The request has been made in proceedings relating to the execution, in Germany, of the European arrest warrant issued against a Czech national with a view to executing a custodial sentence in the Czech Republic.

3

Article 1 of Framework Decision 2002/584, entitled ‘Definition of the European arrest warrant and obligation to execute it’, provides:

‘1.   The European arrest warrant is a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order.

2.   Member States shall execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of this Framework Decision.

3.   This Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 [TEU].’

4

Article 4a(1) of that framework decision, entitled ‘Decisions rendered following a trial at which the person did not appear in person’, is worded as follows:

‘The executing judicial authority may also refuse to execute the European arrest warrant issued for the purpose of executing a custodial sentence or a detention order if the person did not appear in person at the trial resulting in the decision, unless the European arrest warrant states that the person, in accordance with further procedural requirements defined in the national law of the issuing Member State:

…’

5

Paragraph 83(1)(3) of the Gesetz über die internationale Rechtshilfe in Strafsachen (Law on international mutual legal assistance in criminal matters), of 23 December 1982 (BGBl. 1982 I, p. 2071), in the version published on 27 June 1994 (BGBl. 1994 I, p. 1537) (‘the IRG’), provides:

‘Extradition shall not be authorised where:

…

6

Paragraph 64 of zákon č. 141/1961 Sb. o trestním řízení soudním (trestní řád) (Law No 141/1961 on Criminal Procedure (Czech Code of Criminal Procedure)) of 29 November 1961 provides, in essence, that, following a first attempt at service, the person on whom a document is to be served must be informed of the place where he or she can obtain that document. Where that document is not collected within 10 days, the same document may be placed in the letter box used by that person, which constitutes service thereof.

7

The Kammergericht Berlin (Higher Regional Court, Berlin, Germany), which is the referring court, received a request from the Czech authorities for the execution of a European arrest warrant issued on 15 June 2021 against a Czech national by the Okresní soud v Ostravě (District Court, Ostrava, Czech Republic). That European arrest warrant seeks the arrest and surrender of the person concerned to those authorities for the purposes of executing a 15-month custodial sentence, imposed by a judgment of 19 June 2020, as varied on appeal by a judgment of the Krajský soud v Ostravě (Regional Court, Ostrava, Czech Republic) of 25 August 2020 (‘the judgment delivered on appeal’).

8

The judgment delivered on appeal led to a reduction of the sentence imposed at first instance.

9

It is common ground that the person concerned appeared in person at the hearing at first instance. By contrast, the person concerned did not participate in the appeal proceedings, nor was he represented by a lawyer.

10

The summons to the appeal hearing, which had been sent to the address indicated by the person concerned to the competent Czech authorities as being his permanent residence, and at which he had received in person the summons to appear at first instance, was placed in the person concerned’s letter box on 17 August 2020 since he had not gone to recover it in person as he had been requested to do so on 3 August 2020. Although there is no evidence that the person concerned actually received that summons to the appeal hearing and he stated that he had moved to Germany in August 2020 without having informed the competent Czech authorities thereof, that summons is, pursuant to Paragraph 64 of the Czech Code of Criminal Procedure, deemed to have been served on the person concerned on the tenth day following the request to recover it.

11

On 10 October 2021, the person concerned was arrested in Berlin (Germany) on the basis of the European arrest warrant at issue in the main proceedings and was remanded in custody. He then stated that he did not consent to a simplified surrender procedure to the Czech authorities.

12

On 14 October 2021, the referring court ordered that the person concerned be detained with a view to his surrender to the Czech authorities.

13

After obtaining from the issuing judicial authority concerned details of the exact circumstances in which he had been summoned, the Generalstaatsanwaltschaft Berlin (General Prosecutor’s Office, Berlin, Germany) released the person concerned and requested the referring court to annul the arrest warrant issued for the purposes of extradition and to declare the surrender of the person concerned unlawful, on the ground that Paragraph 83(1)(3) of the IRG, which transposes Article 4a of Framework Decision 2002/584 into German law, precludes such surrender.

14

By order of 4 November 2021, the referring court discharged the European arrest warrant issued for the purposes of the extradition of the person concerned. While it found that the condition of double criminality to which such surrender is subject, which consists in verifying that the conduct complained of constitutes an offence in the two Member States required to cooperate, was satisfied in the present case, the referring court decided to stay the proceedings concerning the application to declare the surrender of the person concerned unlawful.

15

In the first place, the referring court asks whether Article 4a(1) of Framework Decision 2002/584 must be interpreted as meaning that the concept of ‘trial resulting in the decision’ in that provision relates to the trial which preceded the decision at first instance if that decision was varied on appeal in favour of the person concerned.

16

The referring court recalls the case-law of the Court of Justice arising from the judgment of 10 August 2017, Tupikas (C‑270/17 PPU, EU:C:2017:628), according to which, in the case of a criminal procedure involving several degrees of jurisdiction, the concept of ‘trial resulting in the decision’ relates to the trial which finally ruled on the guilt of the person concerned and imposed a penalty on him or her following a re-examination, in fact and in law, of the merits of the case, that is to say, the most recent hearing of a court ruling on the merits.

17

The referring court infers from this that, in the present case, it would be the proceedings before the court ruling on appeal, in which the person concerned did not participate, which are decisive for the purposes of applying Article 4a(1) of Framework Decision 2002/584 and that, since the person concerned did not appear in person in those proceedings, his surrender must be declared unlawful and execution of the European arrest warrant at issue in the main proceedings must be refused.

18

However, the referring court expresses doubts as to the applicability of the case-law arising from that judgment to a situation such as that at issue in the main proceedings, where the person concerned appeared in person at first instance, but failed to give effect to his summons to the hearing in the appeal.

19

In that regard, the referring court notes, first, that there are differences in the organisation of the appeal procedure in the various Member States, in particular as regards the obligation for the national court to carry out an examination of the merits, where the person concerned is absent. The latter obligation would certainly apply under Czech law, and such an examination could, as in the present case, give rise to a decision varying the first-instance judgment in favour of the person concerned. However, if, as in the applicable German law, there is no such obligation, the judgment delivered would not fall within the concept of ‘trial’ within the meaning of Article 4a(1) of Framework Decision 2002/584.

20

Second, the referring court considers that if the appeal is dismissed without an examination of the merits, the judgment handed down at first instance becomes final and is therefore enforceable, which would mean that the surrender of the person concerned is, in actual fact, sought for the purposes of enforcing that judgment. It infers from this that Article 4a(1) of Framework Decision 2002/584 is to be interpreted as meaning that the concept of ‘trial’, within the meaning of that provision, refers to the decision to be executed. The referring court considers that that interpretation also applies where, as in the present case, the decision at first instance was varied on appeal in favour of the person concerned, even though that decision at first instance does not in that event, unlike in the case of an appeal judgment delivered without any examination of the merits, in itself constitute the decision to be executed, but must be combined with the judgment delivered on appeal which varied that first-instance judgment.

21

In the second place, the referring court asks whether the principle of the primacy of EU law precludes national legislation, such as Paragraph 83(1)(3) of the IRG, which makes a conviction in absentia an ‘absolute impediment’ to the surrender of a person who is the subject of a European arrest warrant, whereas Article 4a(1) of Framework Decision 2002/584, which that national legislation transposes into German law, provides in that regard only an optional ground for refusal.

22

According to the referring court, the latter provision has not been fully transposed into German law, since Paragraph 83(1)(3) of the IRG does not provide for an executing judicial authority to be able to exercise discretion in the event of a conviction in absentia.

23

The referring court notes that, in the judgment of 24 June 2019, Popławski (C‑573/17, EU:C:2019:530, paragraphs 69, 72, 73 and 76), the Court held that although Framework Decision 2002/584 is precluded from being directly applied, since it does not have direct effect, the fact remains that an executing judicial authority is required to interpret national law in conformity with that framework decision in order to achieve the result sought by it, an interpretation of that national law contra legem being excluded, however.

24

The referring court considers that it is not in a position to interpret Paragraph 83(1)(3) of the IRG as meaning that, in examining the impediment to the surrender of the person concerned, that provision confers upon it a discretion which would allow it to declare that surrender lawful notwithstanding the exceptions provided for in Paragraph 83(2) to (4). It considers that, pursuant to Article 4a(1)(a) to (d) of Framework Decision 2002/584 and the discretion which it is meant to enjoy in that regard, it should be entitled to take the view that, in the light of the circumstances of the case, the person concerned’s right to be heard was duly respected, even though he did not appear in person in the appeal proceedings, and that his surrender is, therefore, lawful. The person concerned, it is alleged, had himself prevented his participation in the appeal procedure, since, after lodging his appeal, he remained uncontactable and did not collect the summons to the appeal hearing which had been sent to him at the address that he had indicated to the competent Czech authorities, despite the fact that he was aware of the delivery of that summons.

25

In those circumstances the Kammergericht Berlin (Higher Regional Court, Berlin) decided to stay proceedings and to refer the following questions to the Court of Justice for preliminary ruling:

26

By its first question, the referring court seeks, in essence, to ascertain whether Article 4a(1) of Framework Decision 2002/584 must be interpreted as meaning that the concept of ‘trial resulting in the decision’ in that provision refers to the trial resulting in the decision at first instance where that decision was varied on appeal in favour of the person concerned.

27

In other words, the referring court asks whether, where, as in the present case, the person concerned did not appear in the appeal proceedings which resulted in a judgment varying the decision delivered at first instance, those proceedings fall within the concept of ‘trial resulting in the decision’, within the meaning of Article 4a(1) of Framework Decision 2002/584.

28

It must be borne in mind, in that regard, that, according to the settled case-law of the Court, the concept of ‘trial resulting in the decision’, within the meaning of Article 4a(1) of Framework Decision 2002/584, must be regarded as an autonomous concept of EU law and interpreted uniformly throughout the European Union, irrespective of classifications in the Member States (see, to that effect, judgments of 10 August 2017, Tupikas, C‑270/17 PPU, EU:C:2017:628, paragraph 67, and of 22 December 2017, Ardic, C‑571/17 PPU, EU:C:2017:1026, paragraph 63).

29

That concept must be understood as referring to the proceeding that led to the judicial decision which finally sentenced the person whose surrender is sought in connection with the execution of a European arrest warrant (judgments of 10 August 2017, Tupikas, C‑270/17 PPU, EU:C:2017:628, paragraph 74, and of 23 March 2023, Minister for Justice and Equality (Lifting of the suspension), C‑514/21 and C‑515/21, EU:C:2023:235, paragraph 52).

30

It is the judicial decision finally disposing of the case on the merits, in the sense that there are no further avenues of ordinary appeal available, which is decisive for the person concerned, since it directly affects his or her personal situation with regard to the finding of guilt and, where appropriate, the determination of the custodial sentence to be served (judgment of 10 August 2017, Tupikas, C‑270/17 PPU, EU:C:2017:628, paragraph 83).

31

Accordingly, it is at that procedural stage that the person concerned must be able to fully exercise his or her rights of defence in order to assert his or her point of view in an effective manner and thereby to influence the final decision which could lead to the loss of his or her personal freedom. The outcome of that procedure is irrelevant in that context (judgment of 10 August 2017, Tupikas, C‑270/17 PPU, EU:C:2017:628, paragraph 84).

32

With regard, more specifically, to a case such as that at issue in the main proceedings, in which the trial took place at two successive instances, namely a first instance followed by appeal proceedings, the Court has held that it is the instance which led to the decision on appeal which is solely relevant for the purposes of Article 4a(1) of Framework Decision 2002/584, provided that those proceedings led to the final decision which is no longer subject to an ordinary appeal and which, accordingly, finally disposes of the case on the merits (judgment of 10 August 2017, Tupikas, C‑270/17 PPU, EU:C:2017:628, paragraph 90).

33

It follows that the decisive factor for the purposes of classifying proceedings as falling within the concept of a ‘trial resulting in the decision’, within the meaning of Article 4a(1) of Framework Decision 2002/584, is the fact that those proceedings resulted in a judgment constituting a final conviction and which, consequently, finally disposes of the case on the merits.

34

Accordingly, appeal proceedings such as those at issue in the main proceedings, which gave rise to a judgment varying the decision delivered at first instance and thereby finally disposed of the case concerned – a matter which it is, however, for the referring court to determine – fall within that concept.

35

Consequently, the answer to the first question is that Article 4a(1) of Framework Decision 2002/584 must be interpreted as meaning that appeal proceedings which gave rise to a judgment varying the decision delivered at first instance and thereby finally disposing of the case fall within the concept of ‘trial resulting in the decision’, within the meaning of that provision.

36

By its second question, the referring court seeks, in essence, to ascertain whether the principle of the primacy of EU law precludes national legislation, such as that at issue in the main proceedings, transposing Article 4a(1) of Framework Decision 2002/584, under which an executing judicial authority is generally precluded from executing a European arrest warrant issued for the purposes of executing a sentence, where the person concerned did not appear in person at the trial resulting in the decision concerned.

37

It must be borne in mind, in that regard, that Framework Decision 2002/584 lays down, in Article 1(2) thereof, the rule that Member States are required to execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of that framework decision. Except in exceptional circumstances, the executing judicial authorities may, therefore, refuse to execute such a warrant only in the exhaustively listed cases provided for by Framework Decision 2002/584. The execution of the European arrest warrant may be made subject only to one of the conditions listed exhaustively therein. Accordingly, while the execution of the European arrest warrant constitutes the rule, the refusal to execute is intended to be an exception which must be interpreted strictly (judgment of 10 August 2017, Tupikas, C‑270/17 PPU, EU:C:2017:628, paragraph 50).

38

Thus, Framework Decision 2002/584 explicitly states, on the one hand, the grounds for mandatory (Article 3) and, on the other hand, optional (Articles 4 and 4a) non-execution of a European arrest warrant. In particular, Article 4a of that framework decision restricts the possibility of refusing to execute a European arrest warrant by listing, in a precise and uniform manner, the conditions under which the recognition and enforcement of a decision rendered following a trial in which the person concerned did not appear in person may not be refused (judgment of 10 August 2017, Tupikas, C‑270/17 PPU, EU:C:2017:628, paragraph 53).

39

It is apparent from the wording of Article 4a(1) of Framework Decision 2002/584 that it provides for an optional ground for non-execution of a European arrest warrant issued for the purpose of executing a custodial sentence or a detention order, where the person concerned has not appeared in person at the trial which resulted in the conviction. That option is nevertheless accompanied by four exceptions, set out in subparagraphs (a) to (d) of that provision respectively, in which the executing judicial authority may not refuse to execute the European arrest warrant addressed to it (see, to that effect, judgment of 26 February 2013, Melloni, C‑399/11, EU:C:2013:107, paragraph 40).

40

Accordingly, an executing judicial authority is entitled to refuse to execute a European arrest warrant issued for the purpose of executing a custodial sentence or a detention order if the person did not appear in person at the trial resulting in the decision concerned, unless the European arrest warrant indicates that the conditions set out, respectively, in subparagraphs (a) to (d) of Article 4a(1) of Framework Decision 2002/584 are met (judgment of 10 August 2017, Tupikas, C‑270/17 PPU, EU:C:2017:628, paragraph 54).

41

It follows that an executing judicial authority is obliged to execute a European arrest warrant, notwithstanding the absence of the person concerned at the trial resulting in the decision concerned, where one of the situations referred to in subparagraphs (a) to (d) of Article 4a(1) of that framework decision is verified (judgment of 10 August 2017, Tupikas, C‑270/17 PPU, EU:C:2017:628, paragraph 55).

42

The Court has already held that as Article 4a provides for a case of optional non-execution of a European arrest warrant, an executing judicial authority may, in any event, even after it has found that the circumstances referred to in the preceding paragraph of the present judgment do not cover the situation of the person who is the subject of the European arrest warrant, take into account other circumstances that enable it to satisfy itself that the surrender of the person concerned does not entail a breach of his or her rights of defence (see, to that effect, judgments of 10 August 2017, Zdziaszek, C‑271/17 PPU, EU:C:2017:629, paragraph 107, and of 17 December 2020, Generalstaatsanwaltschaft Hamburg, C‑416/20 PPU, EU:C:2020:1042, paragraph 51 and the case-law cited).

43

In the context of such an assessment, an executing judicial authority may thus take into consideration the conduct of the person concerned. It is at this stage of the surrender procedure that particular attention might be paid, inter alia, to the fact that the person concerned has sought to avoid service of the information addressed to him or her (judgment of 17 December 2020, Generalstaatsanwaltschaft Hamburg, C‑416/20 PPU, EU:C:2020:1042, paragraph 52 and the case-law cited).

44

It follows that, when determining that one of the conditions laid down in Article 4a(1) of Framework Decision 2002/584 is satisfied, an executing judicial authority cannot be prevented from satisfying itself that the rights of defence of the person concerned are respected by taking due account in that regard of all the circumstances characterising the case before it, including the information which it may itself obtain.

45

In the present case, it follows from the information provided by the referring court that the German legislation at issue in the main proceedings obliges the executing judicial authority concerned, in a general manner, to refuse to execute a European arrest warrant in the event of a conviction in absentia. That legislation does not leave that executing judicial authority any discretion for the purposes of determining the existence of one of the situations referred to, respectively, in subparagraphs (a) to (d) of Article 4a(1) of Framework Decision 2002/584, on the basis of the circumstances of the case whether the rights of defence of the person concerned may be regarded as having been respected and, consequently, in deciding to execute the European arrest warrant concerned.

46

In those circumstances, it must be held that such national legislation is contrary to Article 4a(1) of Framework Decision 2002/584.

47

It must be borne in mind that the Court has held that the principle of the primacy of EU law must be interpreted as not requiring a national court to disapply a provision of national law which is incompatible with the provisions of Framework Decision 2002/584, since that decision does not have direct effect. However, the authorities of the Member States, including the courts, are required to interpret their national law, to the greatest extent possible, in conformity with EU law, which enables them to ensure an outcome that is compatible with the objective pursued by that framework decision (judgment of 24 June 2019, Popławski, C‑573/17, EU:C:2019:530, paragraph 109).

48

Indeed, although the framework decisions cannot have direct effect, their binding character nevertheless places on national authorities an obligation to interpret national law in conformity with EU law as from the date of expiry of the period for the transposition of those framework decisions. When applying national law, those authorities are, therefore, required to interpret it, to the greatest extent possible, in the light of the text and the purpose of the framework decision concerned in order to achieve the result sought by that decision, an interpretation of national law contra legem being excluded. Thus, the principle that national law must be interpreted in conformity with EU law requires that the whole body of domestic law be taken into consideration and that the interpretative methods recognised by domestic law be applied, with a view to ensuring that the framework decision concerned is fully effective and to achieving an outcome consistent with the objective pursued by it (judgment of 24 June 2019, Popławski, C‑573/17, EU:C:2019:530, paragraphs 72 to 77).

49

It follows that it will be for the referring court, taking into consideration the whole body of its domestic law and applying the interpretative methods recognised by that law, to interpret the national legislation at issue in the main proceedings, to the greatest extent possible, in the light of the text and the purpose of Framework Decision 2002/584.

50

Consequently, the answer to the second question is that Article 4a(1) of Framework Decision 2002/584 must be interpreted as meaning that national legislation, transposing that provision, which generally precludes an executing judicial authority from executing a European arrest warrant issued for the purposes of executing a sentence, where the person concerned did not appear in person at the trial resulting in the decision concerned, is contrary to that provision of EU law. A national court is required, taking into consideration the whole body of its domestic law and applying the interpretative methods recognised by that law, to interpret that national legislation, to the greatest extent possible, in the light of the text and the purpose of that framework decision.

51

Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Seventh Chamber) hereby rules: