1. 

The present request for a preliminary ruling from the Rechtbank Amsterdam (District Court, Amsterdam, Netherlands) was made in the context of the execution in the Netherlands of a European arrest warrant issued on 7 October 2013 by the Sąd Rejonowy w Poznaniu (Poznań Regional Court, Poland) against Daniel Adam Popławski, a Polish national resident in the Netherlands, for the purposes of executing a one-year custodial sentence.

2. 

This request gives the Court an opportunity to provide some useful clarification on the conditions under which a Member State may transpose into its national law the ground for optional non-execution of the European arrest warrant laid down in Article 4(6) of Council Framework Decision (2002/584/JHA) of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, ( 2 ) as amended by Council Framework Decision 2009/299/JHA of 26 February 2009. ( 3 )

3. 

Another fundamental point of interest exhibited by this request is that it allows the Court to look once again at the nature of, and legal regime applicable to, framework decisions adopted on the basis of the former third pillar of the European Union. Under Article 34(2)(b) EU, in the version arising from the Treaty of Amsterdam, those instruments, like directives, are to be binding upon the Member States as to the result to be achieved but are to leave to the national authorities the choice of form and methods. They are not, however, to entail direct effect. While it follows from the Court’s case-law that the binding nature of framework decisions brings with it an obligation to interpret national law in conformity with EU law, the referring court is in doubt as to whether its national law can be interpreted in conformity with EU law in the present case. In order to provide that court with some guidance in the event that the national scheme is not in conformity with Framework Decision 2002/584 and the principle that national law must be interpreted in conformity with EU law cannot be applied, it will be necessary to offer a more detailed interpretation of the provisions governing the legal status of framework decisions by indicating whether the national judicial authorities are permitted to refrain from applying the provisions of national law that are not in conformity with EU law.

4. 

In this Opinion, I shall submit, in the first place, that Article 4(6) of Framework Decision 2002/584 must be interpreted as precluding a Member State from implementing the ground for non-execution provided for in that article in such a way that:

5. 

I shall submit, in the second place, that the provisions of Article 4(6) of Framework Decision 2002/584 are not directly effective, that it is for the national court to interpret the national provisions at issue in the main proceedings, in so far as is possible, in accordance with EU law, and that, in the event that such an interpretation proves impossible, the national court is required to refrain from applying those provisions on the ground that they are incompatible with Article 4(6) of Framework Decision 2002/584.

6.

Recitals 1, 5 to 7 and 10 of that framework decision are worded as follows:

...

...

7.

Article 1(1) and (2) of Framework Decision 2002/584 defines the European arrest warrant and the obligation to execute it as follows:

‘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’.

8.

Articles 3 and 4 of Framework Decision 2002/584 deal, respectively, with the grounds for mandatory non-execution and the grounds for optional non-execution of the European arrest warrant.

9.

Article 4(6) of that framework decision states:

‘The executing judicial authority may refuse to execute the European arrest warrant:

...

10.

Article 28 of 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, ( 4 ) provides:

‘1.   Requests received before 5 December 2011 shall continue to be governed in accordance with the existing legal instruments on the transfer of sentenced persons. Requests received after that date shall be governed by the rules adopted by Member States pursuant to this Framework Decision.

2.   However, any Member State may, on the adoption of this Framework Decision, make a declaration indicating that, in cases where the final judgment has been issued before the date it specifies, it will as an issuing and an executing State, continue to apply the existing legal instruments on the transfer of sentenced persons applicable before 5 December 2011. If such a declaration is made, those instruments shall apply in such cases in relation to all other Member States irrespective of whether or not they have made the same declaration. The date in question may not be later than 5 December 2011. The said declaration shall be published in the Official Journal of the European Union. It may be withdrawn at any time.’

11.

The Overleveringswet (Law on surrender) of 29 April 2004 ( 5 ) transposes Framework Decision 2002/584 into Netherlands law.

12.

In the version prior to the Wet wederzijdse erkenning en tenuitvoerlegging vrijheidsbenemende en voorwaardelijke sancties (Law on the mutual recognition and enforcement of custodial and suspended sentences) of 12 July 2012, ( 6 ) which transposed Framework Decision 2008/909, Article 6 of the OLW provided:

‘1.   The surrender of a Netherlands national may be permitted provided that he is sought for the purposes of a criminal investigation against him and that, in the view of the executing judicial authority, it is guaranteed that, if he receives an unconditional custodial sentence in the issuing Member State in relation to acts for which surrender may be permitted, he may serve that sentence in the Netherlands.

2.   The surrender of a Netherlands national shall not be permitted if that surrender is sought for the purposes of execution of a custodial sentence imposed on him by final judicial decision.

3.   Where surrender is refused solely on the ground of Article 6(2) ..., the public prosecutor shall notify the issuing judicial authority that it is willing to assume responsibility for executing the judgment in accordance with the procedure laid down in Article 11 of the Convention on the Transfer of Sentenced Persons or on the basis of another applicable convention.

4.   The public prosecutor shall immediately inform our minister of ... any refusal to surrender communicated with the declaration, referred to in paragraph 3, to the effect that the Netherlands is willing to assume responsibility for executing the foreign judgment.

5.   Paragraphs 1 to 4 shall also apply to a foreign national in possession of a residence permit of indefinite duration, in so far as he may be prosecuted in the Netherlands for the offences on which the European arrest warrant is based and in so far as he can be expected not to forfeit his right of residence in the Netherlands as a result of any sentence or measure which may be imposed on him after surrender’.

13.

Since the entry into force of the Law on the mutual recognition and enforcement of custodial and suspended sentences, Article 6(3) of the OLW is worded as follows:

‘3.   Where surrender is refused solely on the ground of Article 6(2) ..., the public prosecutor shall notify the issuing judicial authority that it is willing to assume responsibility for executing the judgment’.

14.

By judgment of 5 February 2007, which became final on 13 July 2007, the Sąd Rejonowy w Poznaniu (Poznań Regional Court) imposed on Mr Popławski, a Polish national, a one-year suspended custodial sentence. By decision of 15 April 2010, the same court ordered the execution of that sentence.

15.

On 7 October 2013, that court issued a European arrest warrant against Mr Popławski for the purposes of executing that sentence.

16.

In the course of the main proceedings relating to the execution of that European arrest warrant, the Rechtbank Amsterdam (District Court, Amsterdam, Netherlands) considers that the only ground for non-execution of the aforementioned European arrest warrant is that made available in Article 6(2) and (5) of the OLW for persons residing in the Netherlands, as Mr Popławski does, the latter having adduced evidence to show that he has been lawfully resident in the Netherlands for a continuous period of at least 5 years.

17.

The referring court notes that, pursuant to Article 6(3) of the OLW, the Netherlands, in refusing to execute the European arrest warrant, declares itself to be ‘willing’ to assume responsibility for executing the sentence on the basis of an agreement between it and the executing Member State. It points out that, in the case in the main proceedings, the assumption of that responsibility is contingent upon a request to that effect by Poland and that Polish legislation precludes such a request where the person concerned is a Polish national.

18.

In those circumstances, the referring court considers that a refusal to surrender may have the effect of exempting the requested person from punishment, since, once the judgment refusing surrender has been delivered, it may prove impossible for the requested State to assume responsibility for executing the sentence, in which event the judgment refusing surrender would not be affected because it is not amenable to ordinary appeal.

19.

Expressing doubts, therefore, as to whether Article 6(2) to (4) of the OLW is in conformity with Article 4(6) of Framework Decision 2002/584, which allows the executing Member State to refuse surrender only if it ‘undertakes’ to execute the sentence in accordance with its domestic law, the Rechtbank Amsterdam (District Court, Amsterdam) decided to stay the proceedings and refer the following questions to the Court of Justice for a preliminary ruling:

‘1.   May a Member State transpose Article 4(6) of Framework Decision 2002/584/JHA in its domestic law in such a way that:

with the result that there is a risk that, following refusal of surrender for purposes of executing the sentence, the executing Member State cannot take over execution of that sentence, while that risk does not affect the obligation to refuse surrender for purposes of executing the sentence?

2.   If the answer to Question 1 is in the negative:

3.   If the answers to Questions 1 and 2(b) are in the negative, may a Member State whose national law requires that the taking-over of the execution of the foreign custodial sentence must be based on an appropriate treaty or convention transpose Article 4(6) of Framework Decision 2002/584/JHA in its national law in such a way that Article 4(6) of Framework Decision 2002/584/JHA itself provides the required conventional basis, in order to avoid the risk of impunity associated with the national requirement of a conventional basis?

4.   If the answers to Questions 1 and 2(b) are in the negative, may a Member State transpose Article 4(6) of Framework Decision 2002/584/JHA in its national law in such a way that, for refusal of surrender for purposes of executing a sentence in respect of a resident of the executing Member State who is a national of another Member State, it sets the condition that the executing Member State must have jurisdiction in respect of the offences cited in the European arrest warrant and that there must be no actual obstacles in the way of a (possible) criminal prosecution in the executing Member State of that resident in respect of those offences (such as the refusal by the issuing Member State to hand over the case-file to the executing Member State), whereas it does not set such a condition for refusal of surrender for purposes of executing a sentence in respect of a national of the executing Member State?’

20.

The first question referred is subdivided into three parts, which should be examined separately.

21.

By the first part of its first question, the referring court asks, in essence, whether a Member State may transpose the ground for non-execution provided for in Article 4(6) of Framework Decision 2002/584 in such a way that the judicial authority is under an obligation to refuse to execute a European arrest warrant issued for the purposes of executing a custodial sentence or detention order imposed on a requested person who is staying in, or is a national or a resident of, the executing Member State.

22.

In order to answer that question, it should be recalled at the outset that the principle of mutual recognition, which is the ‘cornerstone’ of judicial cooperation ( 7 ) and the principle on which the system established by that framework decision is based, ( 8 ) means that, in accordance with Article 1(2) of that decision, the Member States are in principle obliged to act upon a European arrest warrant.

23.

However, that recognition does not mean that there is an ‘absolute obligation’ to execute the arrest warrant that has been issued, since the system established by that framework decision, as defined in particular in Article 4 of the latter, ‘makes it possible for the Member States to allow the competent judicial authorities, in specific situations, to decide that a sentence must be executed on the territory of the executing Member State’. ( 9 )

24.

Article 4(6) of Framework Decision 2002/584 sets out, in particular, a ground for optional non-execution of the European arrest warrant whereby the executing ‘judicial authority’‘may’ refuse to execute such a warrant which has been issued for the purposes of executing a custodial sentence, where the requested person is staying in, or is a national or a resident of, the executing Member State and that State undertakes to ensure that that sentence is executed in accordance with its domestic law.

25.

Although the Court has already had occasion to clarify the scope of that provision, in particular by defining its scope ratione personae ( 10 ) and by restricting the conditions to which the refusal to execute the warrant may be made subject, ( 11 ) it has on the other hand not as yet been called upon to rule directly on whether or not the optional nature of the ground for non-execution laid down in Article 4(6) of that framework decision means that the executing judicial authority must have some discretion when adjudicating on the execution of the European arrest warrant.

26.

The question is, in what sense is the European arrest warrant ‘optional’. Is that option aimed at Member States, which, when transposing Framework Decision 2002/584 into their domestic law, can decide whether or not to adopt the grounds for optional non-execution, or is it conferred on the executing judicial authority, which would have some discretion in deciding whether or not to adopt those grounds on the basis of the specific circumstances of each case?

27.

In the Opinion I delivered on 24 March 2009 in Wolzenburg, ( 12 ) I had submitted that the implementation in domestic law of the ground for non-execution provided for in Article 4(6) of that framework decision is not left to the discretion of the Member States, but is obligatory. In my view, it must be possible in domestic law for the executing judicial authority to object to surrender where the conditions set out in that provision are fulfilled. The Court would appear to have decided otherwise when it held in its judgment of 5 September 2012, Lopes Da Silva Jorge, ( 13 ) in particular, that, ‘if ( 14 ) a Member State transposes Article 4(6) of Framework Decision 2002/584 into its national law, it must have regard to the fact that the scope of that provision is limited’ratione personae.

28.

The option which, according to the Court, the Member States have as to whether or not to transpose the grounds for optional non-execution into their national law does not mean for that matter that, when they do opt to transpose Article 4 of that framework decision, they are at liberty to interpret the words ‘may refuse’ as establishing an obligation incumbent on their judicial authorities to refuse to execute a European arrest warrant issued against a person falling within the category of persons covered by that provision. Although the Member States ‘have a certain margin of discretion’ when it comes to implementing that provision, ( 15 ) the fact remains that, according to settled case-law, it follows from the need for uniform application of EU law and from the principle of equality that the terms of a provision of EU law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the Union. ( 16 )

29.

Article 4 of Framework Decision 2002/584 makes no reference to the law of the Member States and, consequently, requires an autonomous and uniform interpretation which must take into account the terms of that provision, its context and the objective of that framework decision. ( 17 )

30.

In the first place, as regards the title of that provision, it should be pointed out that the adjective ‘optional’ qualifies ‘non-execution’ and not ‘grounds’, from which it may be inferred that it is indeed the refusal to execute the warrant which is optional, as opposed to the mandatory refusals provided for in Article 3 of that framework decision. It should also be noted that it follows from the first paragraph of Article 4 of Framework Decision 2002/584 that the option to refuse to execute the European arrest warrant is conferred directly on the national executing judicial authorities, which must, therefore, enjoy some discretion.

31.

In the second place, that interpretation of the terms of Article 4(6) of that framework decision is borne out by the context in which that provision arises. After all, the purpose of that framework decision is to put in place a system of compulsory surrender as between the judicial authorities of the Member States to which the executing judicial authority can object only on the basis of one of the grounds for non-execution expressly provided for in Framework Decision 2002/584. In that context, surrender is the general rule, refusal to surrender being intended as an exception that must be strictly interpreted. A provision, such as that at issue in the main proceedings, which requires the executing judicial authority to refuse to execute a European arrest warrant concerning a national of the executing Member State or a person residing there, makes it impossible for that authority, because of the provision’s automatic nature, to take into account any circumstances specific to the individual case that might lead it to consider that the conditions for refusing surrender have not been satisfied. By transforming a mere option into a full obligation, a provision to that effect also transforms the refusal to surrender from an exception into a general rule.

32.

In the third place, the act of imposing on the executing judicial authority an obligation to refuse to surrender the persons referred to in Article 4(6) of that framework decision would be at odds with the objective which it pursues.

33.

As the Court has already held, the ground for optional non-execution set out in that provision has, in particular, the objective of enabling the executing judicial authority to give particular weight to the possibility of increasing the requested person’s chances of reintegrating into society when the sentence imposed on him expires. ( 18 )

34.

The weight given by the EU legislature to the objective of reintegration into society is explicitly confirmed by other instruments of EU law and, in particular, by Framework Decision 2008/909, Article 3(1) of which states that its purpose is to ‘facilitat[e] the social rehabilitation of the sentenced person’.

35.

As I see it, if that objective is to be taken into account, the executing judicial authority must be afforded a measure of discretion in order to be able to determine the requested person’s actual chances of social reintegration in the light of the situation specific to that particular person.

36.

This is the case where the requested person is a national of the executing Member State, inasmuch as, while his status as such demonstrates the existence of a very strong connection with that State, it cannot, for that matter, amount to an irrebuttable presumption that the social rehabilitation of the person concerned is necessarily best favoured by having the sentence executed in that State. In my View of 28 April 2008 in Kozłowski, ( 19 ) I had therefore argued that the objective of social rehabilitation, pursued by Article 4(6) of Framework Decision 2002/584, is no justification for a Member State to deprive its judicial authorities of any discretion, and that, where a European arrest warrant issued for the purposes of executing a sentence concerns a national of the executing Member State and that State objects to his surrender, the judicial authority of that State must be able to assess, in the light of the situation specific to that person, whether the execution of the sentence in the territory of that State is indeed necessary to facilitate his social rehabilitation. ( 20 )

37.

It must similarly, if not with even greater reason, be recognised that Article 4(6) of that framework decision must be interpreted as conferring on the executing judicial authority an option to choose whether or not to refuse surrender where a European arrest warrant issued for the purposes of executing a sentence concerns a person who, although not a national of the executing Member State, is staying or residing there. For, first of all, the status of resident of the executing Member State is no more of an irrebuttable presumption that there will be a greater chance of social rehabilitation in that Member State than the status of a national of that State is. Secondly, the determination of whether the requested person is staying in the territory of the executing Member State requires an assessment of whether the requested person has any links with that State and, if so, to what extent. In that regard, it should be noted that the Court has held that, where a Member State has implemented Article 4(6) of Framework Decision 2002/584 without, however, laying down specific conditions relating to the application of that provision, it is for the executing judicial authority — in order to determine whether, in a specific situation, there are connections between the requested person and the executing Member State which lead to the conclusion that that person ‘is staying’ or ‘resident’ within the meaning of Article 4(6) of that framework decision — to make an overall assessment of various objective factors characterising the situation of that person, which include, in particular, the length, nature and conditions of his presence and the family and economic connections which he has with the executing Member State.

38.

Such an assessment to determine whether the requested person falls within the scope ratione personae of Article 4(6) of that framework decision dovetails with that which must be carried out to ascertain whether the execution of the sentence in that State is likely to facilitate that person’s social reintegration.

39.

From the foregoing I infer that the executing judicial authority must have discretion to decide whether or not to exercise the option it has to refuse to execute a European arrest warrant in the light of the objective of social reintegration.

40.

I therefore propose that the answer to the first part of the first question referred should be that Article 4(6) of Framework Decision 2002/584 must be interpreted as precluding a Member State from implementing the ground for non-execution provided for in that article in such a way that the judicial authority is under an obligation to refuse to execute a European arrest warrant issued for the purposes of executing a custodial sentence or detention order imposed on a requested person who is staying in, or is a national or a resident of, the executing Member State, without being able to assess, on the basis of the specific situation of the person concerned, whether the execution of the sentence in that State is likely to facilitate his social reintegration.

41.

By the second part of the first question referred, the referring court asks, in essence, whether a Member State may implement the ground for non-execution provided for in Article 4(6) of the framework decision in such a way that the refusal to execute a European arrest warrant amounts to no more than a declaration by that Member State that it is willing to assume responsibility for executing the sentence, without that declaration constituting an undertaking to execute that sentence.

42.

It follows from the information supplied by the referring court and the clarifications provided at the hearing by the Openbaar Ministerie (Public Prosecutor, Netherlands) that, under the system operated in national law, the executing judicial authority is required to refuse execution of the European arrest warrant even before there has been any examination of whether the sentence will actually be executable in the Netherlands, the authority competent to issue the final decision in that regard being the Minister van Veiligheid en Justitie (Minister for Security and Justice). Under that system, then, execution of the sentence in the Netherlands is not a condition of refusal of surrender, such a refusal not being called into question if the sentence proves not to be executable in the Netherlands.

43.

It follows from an examination of Framework Decision 2002/584 that a system such as that provided for in Netherlands law is not compatible with the system of surrender organised by that instrument.

44.

It should be noted, in the first place, that Article 4(6) of Framework Decision 2002/584 makes the option available to the court to refuse to execute a European arrest warrant subject to two conditions: on the one hand, the requested person must be a national of the executing Member State, or be staying or resident there, and, on the other hand, that State must undertake to execute the sentence or detention order in accordance with its domestic law.

45.

It is clear from the very wording of that provision that a refusal to execute a European arrest warrant requires, as a counter-concession, a genuine unilateral undertaking by the executing Member State that it will recognise the judgment and ensure that the sentence is executed.

46.

The declaration by which the Openbaar Ministerie (Public Prosecutor) indicates its willingness to assume responsibility for executing the sentence does not fulfil that requirement, since it is not a decision but merely a statement of intent which must be followed by a substantive decision from the Minister van Veiligheid en Justitie (Minister for Security and Justice). Thus, in the procedure provided for in Article 6 of the OLW, the assumption of responsibility for executing the sentence is not a definite and mandatory condition of refusal to surrender but a possible and optional consequence of such a refusal.

47.

In the second place, it must be recalled that the ground for optional non-execution set out in that provision has, in particular, the objective of facilitating the social reintegration of the person serving a prison sentence, by allowing him to serve that sentence in the Member State in which he has the best chances of social reintegration. That option of refusal does not authorise the executing Member State to exempt its nationals or persons staying or resident in its territory from execution of the sentence imposed on them in the issuing Member State.

48.

In the third place, it should be noted that a system under which a refusal to execute a warrant is not subject to an undertaking to execute the sentence is entirely at odds with the rationale behind the surrender system provided for in Framework Decision 2002/584. Whereas that system, which is intended to facilitate and accelerate judicial cooperation so as to help attain the European Union’s objective of becoming an area of freedom, security and justice, is based on the principle of mutual recognition, which, pursuant to Article 1(2) of that framework decision, means that the Member States are in principle required to act upon a European arrest warrant, the system provided for in the OLW has the converse effect of permitting the executing Member State not to recognise the judgment imposing a custodial sentence which has been delivered in the issuing Member State. Failure to execute the sentence imposed is akin to reversing it, in and of itself contrary to the principle of mutual recognition, and, furthermore, is based on a condition of nationality or residence, which is inherently discriminatory.

49.

In the light of the foregoing considerations, I conclude that Article 4(6) of that framework decision must be interpreted as precluding a Member State from implementing the ground for non-execution provided for in that article in such a way that refusal to execute the European arrest warrant amounts to no more than a declaration by that Member State of its willingness to assume responsibility for executing the sentence, without that declaration constituting an undertaking to execute that sentence.

50.

By the third part of the first question it refers for a preliminary ruling, the referring court asks, in essence, whether a Member State may implement the ground for non-execution laid down in Article 4(6) of Framework Decision 2002/584 in such a way that the judicial authority refuses to execute a European arrest warrant issued for the purposes of executing a custodial sentence or detention order imposed on a requested person who is staying in, or is a national or a resident of, the executing Member State, even though, first, the decision to assume responsibility for executing the sentence, which is taken after the decision to refuse to execute it, is made subject to conditions relating to the existence of, and compliance with, an agreement between the issuing Member State and the executing Member State, as well as the cooperation of the issuing Member State, and, secondly, the refusal to execute the warrant is not called into question in cases where it is not possible to assume responsibility for executing the sentence because the required conditions are not met.

51.

It follows from the order for reference that the Rechtbank Amsterdam (District Court, Amsterdam) proceeds on the premiss that the assumption of responsibility for executing the sentence imposed on Mr Popławski on 5 February 2007 must follow the rules laid down in Article 6(3) of the OLW, which refer to the existence of a legal basis in an agreement rather than to the new provisions adopted for the purposes of transposing Framework Decision 2008/909.

52.

That premiss is indirectly challenged by the European Commission, which, in both its written and oral observations, referred to Framework Decision 2008/909, which it therefore implicitly regarded as being applicable ratione temporis to the dispute in the main proceedings.

53.

In that regard, it should be recalled that, although Article 28(1) of Framework Decision 2008/909 provides that requests for the recognition and enforcement of sentences received after 5 December 2011 are to be governed by the rules adopted by the Member States pursuant to that framework decision, Article 28(2) of that framework decision nonetheless authorises any Member State to make a declaration having the effect of delaying the application of that framework decision.

54.

The difficulty stems from the fact that, in accordance with the wording of Article 28(2) of Framework Decision 2008/909, the declaration must be made ‘on the adoption of [the] Framework Decision’. Now, it would appear that the declaration of the Kingdom of the Netherlands was sent to the Council on 24 March 2009, and then circulated as a Council document on 30 April 2009, before being published in the Official Journal on 9 October 2009, whereas the declaration of the Republic of Poland was received at the Council on 23 February 2011, and then circulated as a Council document on 28 February 2011, before being published in the Official Journal on 1 June 2011.

55.

In accordance with the argument I put forward in the Opinion I delivered on 12 October 2016 in van Vemde, ( 21 ) I am of the view that the lateness of the declarations made by the Kingdom of the Netherlands and the Republic of Poland deprives them of their legal effects, with the result that the recognition and enforcement of the sentence imposed on Mr Popławski should be subject to the rules adopted by the Netherlands pursuant to Framework Decision 2008/909.

56.

Regardless of the perspective from which the Court ultimately decides to examine the question, the answer must, in my opinion, be the same, since provisions such as those adopted by the Netherlands legislature both before and after Framework Decision 2008/909 have the effect of nullifying the undertaking to execute the sentence, provided for in Article 4(6) of Framework Decision 2002/584.

57.

As I have already submitted, ( 22 ) that provision must be read to mean that the counter-concession for the refusal to execute the European arrest warrant must be an undertaking by the executing Member State to execute the sentence or detention order imposed in the Member State issuing the warrant. As the Commission rightly submits, implementation of the principle of mutual recognition and the need to eliminate any risk of impunity dictate the view that, if it is not possible, for whatever reason, for the executing Member State to assume responsibility for executing the sentence, the European arrest warrant must be executed.

58.

It follows that any refusal to surrender must be preceded by verification on the part of the executing judicial authority that the sentence can actually be executed in accordance with its domestic law.

59.

If that law legitimately refers to agreements relating to the assumption of responsibility for executing sentences that were applicable prior to the regime introduced by Framework Decision 2008/909, thus requiring cooperation between the issuing Member State and the executing Member State, the executing judicial authority may refuse to execute the European arrest warrant only if the two Member States concerned come to an agreement on which of them is to assume responsibility for executing the sentence.

60.

If the domestic law transposes the regime introduced by Framework Decision 2008/909, the refusal to surrender presupposes that all of the conditions laid down in that framework decision are satisfied in such a way as to enable the sentence imposed by the issuing Member State to be executed by the Member State executing the European arrest warrant. In other words, the Member State executing the European arrest warrant may refuse surrender only in the event that it does not intend to rely on one of the grounds for non-recognition and non-enforcement provided for in Article 9 of Framework Decision 2008/909.

61.

It is important to note here that Article 25 of that framework decision, entitled ‘Enforcement of sentences following a European arrest warrant’, provides that, ‘[w]ithout prejudice to Framework Decision 2002/584 ..., provisions of this Framework Decision shall apply, mutatis mutandis to the extent they are compatible ( 23 ) with provisions under that Framework Decision, to enforcement of sentences in cases where a Member State undertakes to enforce the sentence in cases pursuant to Article 4(6) of that Framework Decision’. According to recital 12 of Framework Decision 2008/909, ‘[t]his means, inter alia, that, without prejudice to ... Framework Decision [2002/584], the executing State could verify the existence of grounds for non-recognition and non-enforcement as provided in Article 9 of this Framework Decision, including the checking of double criminality to the extent that the executing State makes a declaration under Article 7(4) of this Framework Decision, as a condition for recognising and enforcing the judgment with a view to considering whether to surrender the person or to enforce the sentence in cases pursuant to Article 4(6) of Framework Decision 2002/584 ...’.

62.

To my mind, Article 25 of Framework Decision 2008/909, clarified by recital 12 of that framework decision, makes readily apparent the EU legislature’s intention not to allow a Member State to refuse to surrender the requested person on the basis of the conditions for the recognition of decisions and enforcement of sentences that arise from the transposition of that framework decision. If there is a ground for non-recognition or non-enforcement which prevents the executing Member State from undertaking to execute the sentence, that Member State therefore has no alternative but to execute the European arrest warrant and, consequently, to surrender the requested person.

63.

I infer from the foregoing considerations that Article 4(6) of Framework Decision 2002/584 must be interpreted as precluding a Member State from implementing the ground for non-execution provided for in that article in such a way that the judicial authority refuses to execute a European arrest warrant issued for the purposes of executing a custodial sentence or detention order imposed on a requested person who is staying in, or is a national or a resident of, the executing Member State, even though, first, the decision to assume responsibility for executing the sentence, which is taken after the decision to refuse to execute it, is made subject to conditions relating to the existence of, and compliance with, an agreement between the issuing Member State and the executing Member State, as well as to the cooperation of the issuing Member State, and, secondly, the refusal to execute a warrant is not called into question in cases where it is not possible to assume responsibility for executing the sentence because the required conditions are not met.

64.

By its second and third questions, which should be examined together, the referring court asks, in essence, whether the provisions of Article 4(6) of Framework Decision 2002/584 may be directly effective and, if not, whether the national rules may be interpreted in conformity with those provisions as meaning that, where a Member State makes the assumption of responsibility for executing a custodial sentence subject to the existence of a legal basis in an international agreement, that article itself constitutes the agreement basis required by the national law.

65.

It should be pointed out that that framework decision is not directly effective since it was adopted on the basis of the former third pillar of the European Union, in particular under Article 34(2)(b) EU, in the version arising from the Treaty of Amsterdam, which provides, first, that framework decisions are to be binding upon the Member States as to the result to be achieved but are to leave to the national authorities the choice of form and methods, and, secondly, that framework decisions are not to entail direct effect.

66.

It is also important to recall that, pursuant to Article 9 of Protocol (No 36) on transitional provisions, ( 24 ) annexed to the Treaties, the legal effects of the acts of the institutions, bodies, offices and agencies of the Union adopted on the basis of the Treaty on European Union prior to the entry into force of the Treaty of Lisbon are to be preserved until those acts are repealed, annulled or amended in implementation of the Treaties.

67.

That framework decision was not repealed, annulled or amended following the entry into force of the Treaty of Lisbon, it being important to bear in mind in this regard that, while Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings ( 25 ) substantially strengthens the right to information enjoyed by all suspects or accused persons, Article 5 of that directive simply provides, with respect to European arrest warrant proceedings, that persons who are arrested for the purpose of the execution of such a warrant must be provided promptly with an appropriate Letter of Rights containing information on their rights ‘according to the law implementing Framework Decision ... in the executing Member State’. Directive 2012/13 does not therefore, either formally or substantively, amend Framework Decision 2002/584, which continues to produce its legal effects in accordance with Article 34(2)(b) EU, in the version arising from the Treaty of Amsterdam.

68.

Since the judgment of 16 June 2005 in Pupino, ( 26 ) it is also settled case-law that framework decisions may be invoked in order to obtain a conforming interpretation of national law before the courts of the Member States. The obligation to obtain a conforming interpretation does not depend on whether or not the EU provision is directly effective but follows from the binding character of that provision. As the Court has held, ‘although framework decisions may not, as laid down in Article 34(2)(b) EU [in the version arising from the Treaty of Amsterdam], entail direct effect, their binding character nevertheless places on national authorities, and particularly national courts, an obligation to interpret national law in conformity’. ( 27 )

69.

When national 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 FEU Treaty, 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’. ( 28 ) According to the form of words used by the Court, that obligation requires national courts ‘to do whatever lies within their jurisdiction, ( 29 ) 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’. ( 30 )

70.

Furthermore, in its judgment of 19 April 2016 in DI, ( 31 ) the Court stated that the obligation to interpret national law in conformity with EU law requires national courts to change or to disregard established case-law if it is based on an interpretation of national law that is incompatible with EU law. Interpreting national law in conformity with EU law thus has the effect, to some extent, of excluding an interpretation adopted in case-law which infringes EU law.

71.

However, the principle that national law should be interpreted in conformity with EU law is subject to certain limits, in particular the limit whereby that principle cannot serve as the basis for interpreting national law contra legem. ( 32 )

72.

In the case in the main proceedings, the referring court does not share the view of the Openbaar Ministerie (Public Prosecutor) that a conforming interpretation is possible and requires only that Article 6(3) of the OLW be interpreted as meaning that a declaration of ‘willing[ness] to assume responsibility for executing the judgment’ should be regarded as a substantive binding commitment. It takes the view, on the contrary, that since the national legislation imposes on the executing judicial authority an obligation to refuse surrender without making that refusal subject to an undertaking to execute the sentence, any interpretation to the effect that a refusal to execute is subject to such an undertaking is necessarily an interpretation contra legem. In that regard, it points out that the national legislation does not allow the executing judicial authority to avoid the obligation to refuse surrender where it appears that the Netherlands will not be able to assume responsibility for executing the sentence.

73.

In order for national law to be capable of being interpreted in conformity with the relevant provisions of EU law, it would, after all, be necessary to take the view, as the Openbaar Ministerie (Public Prosecutor) suggests, that the declaration of ‘willing[ness] to assume responsibility for executing the judgment’ is not merely a statement of intent but a substantive undertaking entered into following verification that the assumption of that responsibility is actually possible, and that the Minister van Veiligheid en Justitie (Minister for Security and Justice) is thereafter in a position of having to exercise the power to agree or refuse to assume that responsibility without having the discretion to assess the merits of doing so.

74.

Ultimately, it falls to the referring court to assess whether it is genuinely impossible to interpret national law in conformity with EU law. It should be noted in that regard that the referring court’s question as to whether the terms ‘applicable convention’ in Article 6(3) of the OLW can be interpreted as referring to Framework Decision 2002/584 concerns the interpretation of national law, which it is for that court alone to rule upon. There is, therefore, no need to address that question in this Opinion.

75.

Without prejudice to its interpretation, it is important to point out that, in any event, an interpretation of Netherlands law in conformity with that framework decision presupposes that it is recognised that the terms of Article 6 of the OLW may be read as providing not for an obligation but merely an option for the judicial authority to refuse to execute the European arrest warrant and as authorising the use of that option only where the assumption of responsibility for executing the sentence in the Netherlands appears to be genuinely possible.

76.

However, 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 the provisions of Article 6(2) and (3) of the OLW are not in conformity with that framework directive.

77.

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.

78.

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 the police and judicial cooperation in criminal matters, it nonetheless confined itself, in its judgment of 16 June 2005 in Pupino, ( 33 ) 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.

79.

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.

80.

As I submitted in my View of 28 April 2008 in Kozłowski, ( 34 ) the grounds on which, in the judgment of 15 July 1964 in Costa, ( 35 ) 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’. ( 36 )

81.

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. ( 37 )

82.

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’. ( 38 ) Since framework decisions are inescapably particular only in that they are not directly effective, ( 39 ) there is no reason why those instruments should otherwise be denied primacy on the ground that they fall within the area of intergovernmental cooperation.

83.

The second consideration concerns the Court of Justice’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.

84.

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. ( 40 ) That rationale was already evident in the judgment of 10 April 1984, Von Colson and Kamann, ( 41 ) 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. ( 42 )

85.

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 Treaty on the Functioning of the European Union, 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’, ( 43 ) 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. ( 44 ) 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?

86.

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 Treaty on the Functioning of the European Union, relating to the area of freedom, security and justice, makes a ‘Community interpretation’ imperative. ( 45 ) In that regard, it should be noted in particular that, while the Court’s jurisdiction under the former Article 35 EU reflected the inter-governmental 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, ( 46 ) 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. ( 47 ) 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.

87.

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.

88.

In accordance with the logic of uncoupling the ‘substitution’ effect from the ‘invocability of exclusion’, ( 48 ) 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.

89.

That conclusion is all the more compelling in the dispute in the main proceedings, given the latter is not between two individuals one of whom is relying as against the other on the provisions of Framework Decision 2002/584, but is, on the contrary, vertical in structure. Thus, the dispute is between the Netherlands State and Mr Popławski. ( 49 ) Moreover, Mr Popławski is relying exclusively on his national law. He is not invoking that framework decision with a view to relying on a right which was created for his benefit by that instrument which has become part of his legal heritage.

90.

It should, therefore, be concluded that the provisions of Article 4(6) of that framework decision are not directly effective, that it is for the referring court to interpret the national provisions at issue in the main proceedings, in so far as possible, in accordance with EU law and that, in the event that such an interpretation proves to be impossible, the referring court is required to refrain from applying those provisions on the ground that they are incompatible with Article 4(6) of that framework decision.

91.

In order to provide the referring court with full clarification, I would point out that, in the case in the main proceedings, refraining from applying the national provisions that transpose the ground for optional non-execution laid down in Article 4(6) of Framework Decision 2002/584 makes it necessary to apply the other provisions of Netherlands law which transpose that framework decision. The net effect of this is that the national court must order the execution of the European arrest warrant.

92.

By its fourth question, the referring court asks, in essence, whether, in the context of implementing Article 4(6) of that framework decision, the executing Member State may make the refusal to execute the European arrest warrant issued against a national of another Member State subject to the condition that the executing Member State has jurisdiction to retry the offence in respect of which that national has been sentenced and that there are no actual obstacles in the way of bringing new proceedings against him, even though, in the case of its own nationals, the competent judicial authority of that State has an unconditional obligation to refuse surrender.

93.

The referring court states that, in order to arrive at an interpretation of its national law which is in conformity with Article 4(6) of Framework Decision 2002/584, it could interpret Article 6(5) of the OLW as meaning that the surrender of a national of another Member State may be refused only on condition that it is established not only that proceedings may be commenced against that national for the same offences as those in respect of which he has already been sentenced in the issuing Member State, but also that the conduct of such proceedings in the Netherlands is not hindered by any actual obstacle, such as the failure by the issuing Member State to hand over the criminal case-file of the person concerned.

94.

According to the referring court, that interpretation would have the advantage of avoiding a situation in which the requested person is exempted from punishment, since, even if the sentence for the purposes of whose execution the European arrest warrant was issued cannot be executed in the Netherlands, the requested person could nonetheless have proceedings brought against him for the same offences. That interpretation would, however, have the disadvantage of treating nationals from other Member States differently from Netherlands nationals, since, in the case of the latter, the execution of the arrest warrant must be refused and such a refusal is not subject to the assurance that new proceedings may be commenced.

95.

Like the Commission, I take the view that the premiss on which the referring court relies is erroneous. After all, Article 4(6) of that framework decision does not provide, as an alternative to the undertaking by the executing Member State that it will have the sentence executed, for an undertaking by that State that it will institute new proceedings for the same offences against the requested person. In other words, that provision, which is based on the principle of mutual recognition, cannot be regarded as simply transposing the principle ‘aut dedere, aut judicare’, which, in extradition law, leaves it up to the requested State to decide whether to extradite the offender or try him notwithstanding the judgment delivered in the requesting State.

96.

As the interpretation of its national law suggested by the referring court is not in any event in conformity with that framework decision, there is no need to consider whether or not the difference of treatment that would arise from the foregoing is prohibited by EU law.

97.

In the light of the foregoing considerations, I shall propose that the Court’s answer to the questions referred for a preliminary ruling by the Rechtbank Amsterdam (District Court, Amsterdam) should be as follows: