Thus, on 29 June 2017, the Court of Justice of the European Union (CJEU) delivered its judgment in Case C-579/15 Poplawski.
The CJEU concluded, first of all, that a national law which obliges the executing authority to refuse the surrender of a resident, without those authorities having any margin of discretion, and without that Member State actually undertaking to execute the custodial sentence, cannot be regarded as compatible with the EAW FD.
Moreover, the CJEU recalled the duty of national courts to interpret the national law in conformity with EU law. This implies that a national court must, where necessary, not apply, on its own authority, the interpretation adopted by its national Supreme Court, if that interpretation is incompatible with EU law.
Finally, the CJEU decided that Article 4(6) does not authorise a Member State to refuse to execute an EAW issued with a view to the surrender of a person who has been judged and given a custodial sentence, on the sole ground that that Member State intends to prosecute that person in relation to the same acts as those for which the judgment was pronounced. This would be incompatible with Article 50 Charter.
Background information
In 2007, a Polish court gave Poplawski, a Polish national, a one-year suspended prison sentence. In 2010, the Polish court ordered the enforcement of that custodial sentence. In 2013, an EAW was issued with a view to enforcement of that sentence. By that time, Poplawski had become a “resident” in the Netherlands in the meaning of Article 4(6) EAW FD. Article 4(6) EAW FD has been transposed in Dutch law in Article 6 of the Dutch Surrender Law. The District Court of Amsterdam considered to apply this ground for non-execution, but had doubts as to whether Article 6 (2) to (4) the Dutch Surrender Law is compatible with Article 4(6) EAW FD. The District Court notes that, under the Dutch law, an executing judicial authority is obliged to refuse surrender for purposes of executing a sentence of a national or resident of the executing Member State. That refusal gives rise to a mere “willingness” to take over the execution of the custodial sentence. A positive decision is dependent on the application of the Convention on Transfer of Sentenced Persons or another applicable convention. This requires Poland to make a request. However, Polish legislation precludes such a request in situations where the person concerned is a Polish national. Under the Dutch Surrender Law, there is a risk that, following refusal of surrender for purposes of executing the sentence, the executing Member State cannot take over the execution of that sentence, while that risk does not affect the obligation to refuse surrender.
- The main questions referred to the CJEU by the District Court of Amsterdam
- May a Member State transpose Article 4(6) EAW FD in a way that, on the one hand, it includes an obligation to refuse to surrender, but, on the other, it makes the final decision to take over the sentence dependent on the fulfilment of some conditions (particularly a basis for that decision in a treaty or convention)?
- Can the national courts apply the provisions of the EAW FD directly, and, in case of an affirmative answer, is Article 4(6) sufficiently precise and unconditional?
- 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) in its national law in such a way that that provision itself provides the required conventional basis?
- May a Member State transpose Article 4(6) in such a way that, for refusal of surrender for purposes of executing a sentence in respect of a resident, it sets the condition that the executing Member State must have jurisdiction in respect of the offences cited in the EAW and that there must be no actual obstacles in the way of a criminal prosecution in the executing Member State of that resident in respect of those offences whilst it does not set such a condition in respect of nationals of the executing Member State?