Court of Justice of the European Communities (including Court of First Instance Decisions)

Provisional text

OPINION OF ADVOCATE GENERAL

SÁNCHEZ-BORDONA

delivered on 27 November 2018 (1)

Case C‑573/17

Openbaar Ministerie

v

Daniel Adam Popławski

(Request for a preliminary ruling from the rechtbank Amsterdam (District Court, Amsterdam, Netherlands)

(Reference for a preliminary ruling — Judicial cooperation in criminal matters — European arrest warrant — Framework Decision 2002/584/JHA — 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 — Framework Decision 2008/909/JHA — Declaration by a Member State allowing it to continue to apply earlier legal instruments — Withdrawal of the declaration by the executing State — Late declaration by the issuing State — Lack of direct effect of framework decisions — Primacy of EU law — Consequences)

1.        This request for a preliminary ruling was made in the context of the execution in the Netherlands of a European arrest warrant (‘EAW’) issued by the Sąd Rejonowy w Poznaniu (District Court, Poznań, Poland) against Daniel Adam Popławski for the purposes of executing a one-year custodial sentence in Poland.

2.        The request follows from the Popławski (2)judgment of 29 June 2017, in which the Court of Justice held, essentially, that the Netherlands legislation was incompatible with 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, (3) which establishes a ground for optional non-execution of an EAW in order to facilitate the social reinsertion of the sentenced person. In the same judgment, the Court of Justice called to mind the obligation on national courts to interpret domestic law, so far as possible, in accordance with that framework decision.

3.        The rechtbank Amsterdam (District Court, Amsterdam, Netherlands) now enquires whether, in the event that it is unable to fulfil that obligation to interpret domestic law in compliance with EU law, it would be bound, under the principle of the primacy of EU law, to disapply the provisions of its domestic law that conflict with the framework decision at issue.

4.        This case will therefore enable the Court of Justice to clarify the relationship between Framework Decision 2002/584 and 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) It is also an opportunity for the Court to clarify the effects that EU measures of that kind can have on national law.

I.      Legal context

A.      EU law

1.      Framework Decision 2002/584

5.        Article 4 of Framework Decision 2002/584 provides that:

‘The executing judicial authority may refuse to execute the [EAW]:

...

(6)      if the [EAW] has been issued for the purposes of execution of a custodial sentence or detention order, where the requested person is staying in, or is a national or a resident of the executing Member State and that State undertakes to execute the sentence or detention order in accordance with its domestic law;

...’.

2.      Framework Decision 2008/909

6.        Article 25 of Framework Decision 2008/909 provides that:

‘Without prejudice to Framework Decision [2002/584], provisions of this Framework Decision shall apply, mutatis mutandis to the extent they are compatible 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, or where, acting under Article 5(3) of that Framework Decision, it has imposed the condition that the person has to be returned to serve the sentence in the Member State concerned, so as to avoid impunity of the person concerned.’

7.        According to Article 26(1) of Framework Decision 2008/909:

‘1.      Without prejudice to their application between Member States and third States and their transitional application according to Article 28, this Framework Decision shall, from 5 December 2011, replace the corresponding provisions of the following conventions applicable in relations between the Member States:

–        The European Convention on the transfer of sentenced persons of 21 March 1983 and the Additional Protocol thereto of 18 December 1997;

–        The European Convention on the International Validity of Criminal Judgments of 28 May 1970;

–        Title III, Chapter 5, of the Convention of 19 June 1990 implementing the Schengen Convention of 14 June 1985 on the gradual abolition of checks at common borders;

–        The Convention between the Member States of the European Communities on the Enforcement of Foreign Criminal Sentences of 13 November 1991.’

8.        Article 28 of that Framework Decision states:

‘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.’

B.      Netherlands law

9.        Article 6 of the Overleveringswet (Law on the surrender of sentenced persons) (5) of 29 April 2004, which transposes Framework Decision 2002/584 into Netherlands law, in the version applicable until the Netherlands provisions implementing Framework Decision 2008/909 came into force, provided that:

‘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 [EAW] 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.’

10.      Since the entry into force of the Wet wederzijdse erkenning en tenuitvoerlegging vrijheidsbenemende en voorwaardelijke sancties (Law on the mutual recognition and enforcement of custodial and suspended sentences) (6) of 12 July 2012, transposing Framework Decision 2008/909, Article 6(3) of the OLW has read as follows:

‘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.’

11.      Article 5:2 of the WETS provides:

‘1.      The [WETS] replaces the Wet overdracht tenuitvoerlegging strafvonnissen [(Law on transfer of enforcement of criminal sentences) of 10 September 1986] (7) in relations with the Member States of the European Union.

...

3.      The [WETS] does not apply to judicial decisions … that became final before 5 December 2011.

...’.

II.    The dispute in the main proceedings and the questions referred for a preliminary ruling

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

13.      On 7 October 2013, that court issued an EAW against Mr Popławski for the purposes of executing the sentence concerned.

14.      In the course of the main proceedings relating to execution of that EAW, the Rechtbank Amsterdam (District Court, Amsterdam) asked itself whether it should apply Article 6(2), (3) and (5) of the OLW, which establishes a ground for non-execution of an EAW that benefits, in particular, persons who reside in the Netherlands, as Mr Popławski does. (8)

15.      By a decision of 30 October 2015, the referring court made a first request for a preliminary ruling to the Court of Justice, in the context of which it observed that, under Article 6(3) of the OLW, where the Kingdom of the Netherlands refuses to execute an EAW, it must state that it is ‘willing’ to take over the execution of the sentence on the basis of a convention in force between it and the issuing Member State. The referring court stated that, in the case in the main proceedings, taking over that execution in the main proceedings requires the Republic of Poland to make a request to that end and that the Polish legislation, in its view, precluded such a request being made against a Polish national.

16.      The referring court noted that, in such a situation, a refusal to surrender could lead to the impunity of the person to whom the EAW applies. After pronouncement of the judgment refusing the surrender, it may prove impossible to take over execution of the sentence, in particular because there has been no request to that end from the issuing Member State, and that fact would have no bearing on the judgment refusing to surrender the requested person.

17.      The referring court also expressed doubts as to whether Article 6(2) to (4) of the OLW is compatible with Article 4(6) of Framework Decision 2002/584 which permits a refusal to surrender only if the executing Member State ‘undertakes’ to execute the sentence in accordance with its domestic law.

18.      In the Popławski judgment, the Court of Justice held that ‘Article 4(6) of Framework Decision 2002/584 must be interpreted to the effect that it precludes legislation of a Member State implementing that provision which, in a situation where the surrender of a foreign national in possession of a residence permit of indefinite duration in the territory of that Member State is sought by another Member State in order to execute a custodial sentence imposed on that national by a decision which has become final, first, does not authorise such a surrender, and secondly, merely lays down the obligation for the judicial authorities of the first Member State to inform the judicial authorities of the second Member State that they are willing to take over the enforcement of the judgment, where, on the date of the refusal to surrender, the execution has not in fact been taken over and where, furthermore, in the event that taking over that execution subsequently proves to be impossible, such a refusal may not be challenged.’ (9)

19.      In the same judgment, the Court of Justice also held that ‘the provisions of Framework Decision 2002/584 do not have direct effect.’ (10) It nevertheless found that ‘the competent national court, by taking the whole body of domestic law into consideration and applying the interpretative methods recognised by it, is obliged 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 that framework decision, which in the present case means that, in the event of a refusal to execute an EAW issued with a view to the surrender of a person who has been finally judged in the issuing Member State and given a custodial sentence, the judicial authorities of the executing Member State are themselves required to ensure that the sentence pronounced against that person is actually executed.’ (11)

A.      Request for a preliminary ruling

20.      In its request for a preliminary ruling, the referring court states that it is apparent from the Popławski judgment that Article 6(2), (3) and (5) of the OLW is contrary to Article 4(6) of Framework Decision 2002/584.

21.      It is also of the view that an interpretation of Article 6(2), (3) and (5) of the OLW fully in conformity with that framework decision — in the sense that the referring court, on the one hand, has a margin of discretion over whether or not to apply the ground for refusal to surrender under that article and, on the other hand, may refuse to surrender only if it is assured that the Kingdom of the Netherlands will in fact take over enforcement of the sentence — is impossible, as such an interpretation would be contra legem.

22.      The referring court nevertheless calls to mind that, in its first order for reference in the present case, it had referred preliminary questions in relation to three solutions that could nevertheless, in its view, lead to an outcome in conformity with Framework Decision 2002/584.

23.      According to the referring court, it is apparent from the first preliminary ruling in this case that only one of those three solutions is permissible under EU law, that is to say, the interpretation whereby Article 4(6) of Framework Decision 2002/584 provides the legal basis in convention required by the former Article 6(3) of the OLW for taking over enforcement of the sentence. However, the Minister van Justitie en Veiligheid (Netherlands Minister of Justice and Security), the competent body for the taking over of enforcement of the sentence, took the view that Framework Decision 2002/584 was not a convention either for the purposes of Article 6(3) of the OLW or for the purposes of Article 2 of the Law on transfer of enforcement of criminal sentences.

24.      The referring court infers from the foregoing that the interpretation referred to does not ensure that the sentence pronounced against Mr Popławski will in fact be executed in the Netherlands and therefore does not achieve a solution that is compatible with the purpose of Framework Decision 2002/584, as the Court of Justice requires in the Popławski judgment. (12)

25.      That being so, the referring court submits that it is faced with conflicting obligations. Indeed, were it to surrender the requested person, it would be acting in accordance with Article 4(6) of Framework Decision 2002/584 but contrary to Article 6(2), (3) and (5) of the OLW, which provisions cannot be interpreted as meaning that their application will lead to an outcome in conformity with the framework decision. Conversely, were the referring court to refuse to surrender the requested person, it would then be acting in accordance with Article 6(2), (3) and (5) of the OLW, but contrary to Article 4(6) of Framework Decision 2002/584.

26.      The referring court therefore asks itself whether, pursuant to the principle of the primacy of EU law, it can refrain from applying the provisions of its domestic law that are incompatible with the provisions of Framework Decision 2002/584, even if those latter provisions are not directly effective. It observes that, if it refrained from applying Article 6(2), (3) and (5) of the OLW, there would no longer be any ground for refusing to surrender Mr Popławski to the Polish authorities. The interest of Mr Popławski of being reintegrated in Netherlands society would then give way to the interest of him not escaping his sentence.

27.      Lastly, the referring court sets out a further possible approach, alluding to the Opinion of Advocate General Bot in van Vemde. (13) That potential solution involves applying the national legislation implementing Framework Decision 2008/909 to the recognition and enforcement of the sentence.

28.      In that case, Advocate General Bot took the view that the declaration made by the Kingdom of the Netherlands under Framework Decision 2008/909 had no legal effect because it was made late. (14)

29.      According to the referring court, that assertion, on which the Court of Justice did not rule in its judgment of 25 January 2017, van Vemde, (15) is relevant to the decision it must make in this case.

30.      According to the referring court, if that declaration were found to be invalid, the national rules transposing Framework Decision 2008/909 would apply, in accordance with Article 25 of that framework decision, in order to satisfy the obligation to execute the sentence, as Article 4(6) of Framework Decision 2002/584 requires, so as to avoid the impunity of the person concerned. In that case the referring court would have to examine, first, whether the national transitional law, that is to say, Article 5:2(3) of the WETS, in so far as it provides that the national legislation in question does not apply to judicial decisions which became final before 5 December 2011, can be interpreted in accordance with Framework Decision 2008/909 and, secondly, whether, where there is a refusal to surrender on the basis of Article 6(2), (3) and (5) of the OLW, effective execution of the sentence in the Netherlands will indeed be ensured.

31.      Were the referring court to answer both those questions in the affirmative, it could refuse to surrender Mr Popławski and the sentence could be executed in the Netherlands, in accordance with Article 6(2), (3) and (5) of the OLW and with Article 4(6) of Framework Decision 2002/584, which would be consistent with the objective of reintegrating Mr Popławski.

32.      The referring court also states, still on the assumption that the Kingdom of the Netherlands’ declaration has no legal effect, that, should an interpretation of Article 5:2(3) of the WETS in conformity with Framework Decision 2008/909 ultimately prove not to be possible, the question arises whether it must, in accordance with the principle of the primacy of EU law, disapply that article to the extent that it is incompatible with Framework Decision 2008/909.

33.      In the light of those considerations the rechtbank Amsterdam (District Court, Amsterdam) stayed the proceedings and referred the following questions to the Court of Justice for a preliminary ruling:

‘(1)       If the executing judicial authority cannot interpret the national provisions implementing a framework decision in such a way that their application leads to an outcome in conformity with the framework decision, must it then, in accordance with the principle of primacy, disapply those national provisions not in conformity with that framework decision?

(2)       Does a declaration of a Member State within the meaning of Article 28(2) of Framework Decision 2008/909, that it did not make “on the adoption of this Framework Decision”, but at a later date, have legal effect?’

B.      The referring court’s clarifications in its decision of 10 July 2018

34.      Subsequently to the request for a preliminary ruling, the Kingdom of the Netherlands decided to withdraw the declaration it had made under Article 28(2) of Framework Decision 2008/909. The Kingdom of the Netherlands accordingly withdrew that declaration with effect from 1 June 2018 and the withdrawal decision was published in the Official Journal on 28 June 2018. (16)

35.      On 10 July 2018, with the agreement of the parties, the referring court held a hearing with a different formation and allowed the parties to give their views on the consequences of that declaration being withdrawn. By an order of the same date, the referring court maintained the two questions it had referred for a preliminary ruling.

36.      The referring court has stated that, following withdrawal of the Kingdom of the Netherlands’ declaration, the regime under Framework Decision 2008/909 applies to the situation at issue in the main proceedings. However, the referring court notes that Article 5:2(3) of the WETS, which is intended to implement Framework Decision 2008/909, nevertheless provides that the WETS does not apply to judgments that became final before 5 December 2011, as Mr Popławski’s sentence did.

37.      The referring court observes that it is not certain that it can interpret that article in conformity with Framework Decision 2008/909, and that, in its view, the first question therefore remains relevant to the decision to be made in the main proceedings.

38.      According to the referring court, the second question, likewise, remains relevant to the decision to be made in the main proceedings. Indeed, the referring court indicates that the issuing Member State, that is to say, the Republic of Poland, also made a declaration within the meaning of Article 28(2) of Framework Decision 2008/909. It refers on that point to the Opinion of Advocate General Bot in Popławski, (17) in which he drew attention to the fact that the Republic of Poland’s declaration was late. (18)

39.      As regards the relationship between the two questions, the referring court submits that the second question remains relevant irrespective of the reply to the first question, and vice versa. On that point, the referring court supplements its order for reference with the following considerations.

40.      According to that court, if the declaration made by the Republic of Poland did not have legal effect, both Member States would be bound to apply the regime under Framework Decision 2008/909. In relation to the Kingdom of the Netherlands, the referring court would then have to examine, in the first place, whether it could interpret Article 5:2(3) of the WETS in conformity with that framework decision. If that article could not be interpreted in conformity with Framework Decision 2008/909, the WETS would not apply and effective enforcement of the sentence by the Kingdom of the Netherlands would not be ensured. In those circumstances, the reply to the first question would remain relevant. If, in contrast, Article 5:2(3) of the WETS could be interpreted in conformity with Framework Decision 2008/909, the referring court states that it would have to examine whether, under the WETS, execution of the sentence is effectively ensured.

III. Assessment

41.      By its first question, the referring court asks the Court of Justice to rule on whether a national court that is unable to interpret national provisions adopted to implement a framework decision in a way that leads to an outcome in conformity with that framework decision must, in accordance with the principle of the primacy of EU law, disapply those national provisions not in conformity with that framework decision.

42.      By its second question, the referring court asks the Court of Justice to rule on whether a declaration of a Member State within the meaning of Article 28(2) of Framework Decision 2008/909 is capable of having legal effects if it was not submitted on adoption of that framework decision, but at a later date.

43.      I will begin my analysis by examining that second question, in so far as it could determine the legal context that applies to execution in the Netherlands of the sentence issued in Poland against Mr Popławski.

A.      The second question

1.      General analysis

44.      It is worth recalling 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.

45.      The difficulty arises 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’.

46.      I am of the view, in common with Advocate General Bot, (19) that the declaration under Article 28(2) of Framework Decision 2008/909 must be made, by any means, when the framework decision is adopted and must specifically indicate the choice of the Member State concerned as to the date of delivery of final judgments before which the framework decision will not apply. Article 28(2) of that framework decision gives Member States a certain margin of discretion in setting that date, provided that it is no later than 5 December 2011.

47.      I would also note that in situations in which Framework Decision 2008/909 authorises the Member States to make a declaration not only on adoption of the framework decision but also at a later date, are set out very clearly in that framework decision. I refer in particular to Articles 4(7) and 7(4) of that framework decision.

48.      It follows from the foregoing that, where a Member State’s declaration relating to Article 28 of Framework Decision 2008/909 was made after that framework decision was adopted, contrary to the requirements of Article 28(2) of that framework decision, it is not capable of having legal effects.

2.      Application in the context of the present case

49.      Since, as the referring court informed the Court of Justice, the declaration that the Kingdom of the Netherlands made under Article 28(2) of Framework Decision 2008/909 was withdrawn with effect from 1 June 2018, the second question no longer relates to that declaration but, now, to the declaration made by the Republic of Poland under the same article.

50.      It appears that the Republic of Poland’s decision was received by the Council of the European Union on 23 February 2011, before being published in the Official Journal on 1 June 2011. (20)

51.      In the absence of any official version of the precise declaration made by the Republic of Poland earlier than the document received by the Council on 23 February 2011, I therefore take the view that the declaration of the Republic of Poland is not capable of producing legal effects because it was submitted out of time. (21)

52.      Since there is no declaration complying with the conditions laid down in Article 28(2) of Framework Decision 2008/909, it is Article 28(1) thereof which determines the scope ratione temporis of the rules contained in that framework decision, namely those for requests received after 5 December 2011.

53.      In the event of a request for the sentence made against Mr Popławski to be executed in the Netherlands it is indeed therefore the rules adopted by that Member State as well as those adopted by the Republic of Poland implementing Framework Decision 2008/909 that must govern that request.

54.      The referring court’s first question must therefore be approached from the perspective of execution in the Netherlands of the sentence handed down against Mr Popławski where that execution is governed by the regime under Framework Decision 2008/909.

B.      The first question

55.      As I stated above, the referring court invites the Court of Justice to rule on whether a national court that is unable to interpret national provisions adopted to implement a framework decision in a way that leads to an outcome in conformity with that framework decision must, in accordance with the principle of the primacy of EU law, disapply those provisions not in conformity with that framework decision.

56.      This question relates to two categories of provision of Netherlands law that, if the answer to that question is in the affirmative, the referring court must disapply because they are incompatible with Framework Decision 2002/584 or Framework Decision 2008/909, as the case may be.

57.      The first category consists of Article 6(2), (3) and (5) of the OLW, which implements Article 4(6) of Framework Decision 2002/584.

58.      The second category consists of Article 5:2(3) of the WETS, which provides that rules adopted by the Kingdom of the Netherlands to implement Framework Decision 2008/909 do not apply to judicial decisions that became final before 5 December 2011. That article therefore reflects in domestic law the declaration that the Kingdom of the Netherlands made under Article 28(2) of that framework decision, which that Member State withdrew with effect from 1 June 2018.

59.      Before expressing a view on the matter of principle concerning the effects that a framework decision is capable of producing on national law, I need to define the context in which that question has been raised. I will therefore begin by summarising the two points in respect of which the Court of Justice, in the Popławski judgment, found the Netherlands legislation to be incompatible with Article 4(6) of Framework Decision 2002/584.

1.      The Popławski judgment

60.      First of all, the Court of Justice noted that Article 4(6) of Framework Decision 2002/584 sets out a ground for optional non-execution of EAWs whereby the executing judicial authority ‘may’ refuse to execute an EAW which has been issued for the purposes of executing a custodial sentence, where, in particular, the requested person is a resident of the executing Member State, as occurs in the case in the main proceedings, and that State ‘undertakes’ to ensure that that sentence is executed in accordance with its domestic law. (22) According to the Court, ‘it is clear from the actual wording of Article 4(6) of Framework Decision 2002/584, ... that, where a Member State chose to transpose that provision into domestic law, the executing judicial authority must, nevertheless, have a margin of discretion as to whether or not it is appropriate to refuse to execute the EAW. In that regard, that authority must take into consideration the objective of the ground for optional non-execution set out in that provision, which, according to the Court’s settled case-law, means 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’. (23)

61.      The Court of Justice thereby hinted at a first ground on which Netherlands law is incompatible with Article 4(6) of Framework Decision 2002/584, in so far as, under that law, the executing judicial authority must refuse to execute an EAW where the person requested resides in the Member State to which that authority belongs and it is therefore deprived of any margin of discretion as to how to proceed with the EAW. (24)

62.      Secondly, the Court of Justice stated that ‘it also follows from the wording of Article 4(6) of Framework Decision 2002/584 ... that any refusal to execute an EAW presupposes an actual undertaking on the part of the executing Member State to execute the custodial sentence imposed on the requested person, even though, in any event, the mere fact that that Member State declares itself “willing” to execute the sentence could not be regarded as justifying such a refusal. This indicates that any refusal to execute an EAW must be preceded by the executing judicial authority’s examination of whether it is actually possible to execute the sentence in accordance with its domestic law. In the event that the executing Member State finds that it is in fact impossible to undertake to execute the sentence, it falls to the executing judicial authority to execute the EAW and, therefore, to surrender the requested person to the issuing Member State.’ (25)

63.      The Court thereby highlighted a second ground on which Netherlands law is incompatible with Article 4(6) of Framework Decision 2002/584 in so far as, under that law, a refusal to execute an EAW is not subject to a requirement that the executing Member State ‘actually undertak[es] to execute the custodial sentence pronounced against [the] requested person, thereby creating a risk of impunity of that requested person’. (26) From that perspective, the Netherlands legislation does therefore conflict with Article 4(6) of Framework Decision 2002/584 in so far as it ‘merely lays down the obligation for the judicial authorities of the [executing] Member State to inform the judicial authorities of the [issuing] Member State that they are willing to take over the enforcement of [a custodial sentence] where, on the date of the refusal to surrender, the execution has not in fact been taken over and where, furthermore, in the event that taking over that execution subsequently proves to be impossible, such a refusal may not be challenged.’ (27)

64.      In the light of that finding that Netherlands law is incompatible, the Court of Justice invited the referring court to seek so far as possible an interpretation of Netherlands law in conformity with Article 4(6) of Framework Decision 2002/584.

2.      The principle that national law must be interpreted in conformity with EU law

65.      It is worth calling to mind that ‘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 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)

66.      Admittedly, as the Court of Justice has acknowledged, ‘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’. (29)

67.      Nor may the obligation to interpret national law in conformity with EU law ‘serve as the basis for interpreting national law contra legem’. (30)

68.      Nevertheless, according to the Court of Justice, ‘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’. (31)

69.      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’. (32)

70.      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’. (33)

71.      In light of the foregoing summary of the extent and limitations of the obligation to interpret domestic law in conformity with EU law, the referring court should be invited once again to endeavour by all interpretative means available to it to implement Article 6(2), (3) and (5) of the OLW in a manner consistent with the objective of Article 4(6) of Framework Decision 2002/584. It must strive equally in relation to Article 5:2(3) of the WETS, in order to achieve an interpretation consistent with Framework Decision 2008/909. Indeed, the primacy of framework decisions over national law must give rise first and foremost to an obligation on national courts to interpret their domestic law in conformity with those framework decisions.

72.      Before providing the referring court with guidance in that regard, it is necessary to clarify how Framework Decision 2002/584 and Framework Decision 2008/909 should interrelate.

3.      The relationship between Framework Decision 2002/584 and Framework Decision 2008/909

73.      Article 25 of Framework Decision 2008/909, ‘Enforcement of sentences following an [EAW]’, describes how Framework Decision 2002/584 and Framework Decision 2008/909 interrelate, establishing that ‘without prejudice to Framework Decision [2002/584], provisions of this Framework Decision shall apply, mutatis mutandis to the extent they are compatible 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 [Framework Decision 2002/584] or where, acting under Article 5(3) of that Framework Decision, it has imposed the condition that the person has to be returned to serve the sentence in the Member State concerned, so as to avoid impunity of the person concerned.’ (34)

74.      That article must, for its part, be read in the light of recital 12 of Framework Decision 2008/909, from which it is apparent that applying that framework decision, mutatis mutandis, to the enforcement of sentences in the situations under Article 4(6) of Framework Decision 2002/584 ‘means, inter alia, that, without prejudice to that Framework Decision, 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].’

75.      We can infer from those provisions that, provided the regime under Framework Decision 2008/909 applies to the enforcement of a sentence, where the executing Member State does not intend to rely on a ground for non-recognition and non-enforcement under Article 9 of that framework decision and where, furthermore, the executing judicial authority believes that executing the sentence in that Member State would facilitate the social reinsertion of the sentenced person, there is nothing to prevent that Member State from giving a firm and final undertaking to execute that sentence. The requirements for the executing judicial authority to be entitled to refuse surrender are accordingly satisfied. The interest in the sentenced person being reinserted in society thereby converges with the interest in ensuring that a custodial sentence does not remain unexecuted. The need to reconcile those two interests makes it all the more compelling for the referring court to seek an interpretation of its domestic law that gives full effect to Article 4(6) of Framework Decision 2002/584.

4.      An interpretation of domestic law in conformity with Framework Decision 2002/584 and Framework Decision 2008/909

76.      As the Court of Justice noted in the Popławski judgment, it does not have jurisdiction to interpret the domestic law of a Member State. (35) It is therefore for the referring court alone to assess whether Netherlands law can be interpreted in conformity with Article 4(6) of Framework Decision 2002/584 and with Article 28 of Framework Decision 2008/909.

77.      However, the Court of Justice, when ‘called on to provide answers that are of use to the national court in context of a reference for a preliminary ruling, may provide guidance, based on the file in the main proceedings and on the written and oral observations which have been submitted to it, in order to enable the national court to give judgment’. (36)

78.      In the present case, applying Article 6(2), (3) and (5) of the OLW in the main proceedings in conformity with Article 4(6) of Framework Decision 2002/584 presupposes, in my view, that the domestic provision in question can be interpreted as follows.

79.      First, it must be possible to interpret Article 6(2), (3) and (5) of the OLW as meaning that it establishes a ground for optional refusal to execute an EAW in respect of a requested person, in such a way that the judicial authority of the executing Member State has a margin of discretion to execute or refuse to execute that EAW.

80.      In its request for a preliminary ruling the referring court seems to doubt whether any such interpretation of domestic law is possible, even though it is at the same time apparent from the other considerations it expresses that this is not, to its mind, the most significant obstacle to achieving an outcome in conformity with Article 4(6) of Framework Decision 2002/584.

81.      Secondly, going to the nub of the referring court’s questions, if Article 6(2), (3) and (5) of the OLW is to satisfy the requirements of Article 4(6) of Framework Decision 2002/584, it must be possible to interpret it as meaning that the executing judicial authority’s power to refuse to execute the EAW can only be exercised on condition that it ensures that the sentence imposed on Mr Popławski will effectively be executed in the Netherlands.

82.      In that regard, any discussion of whether, where a Member State makes taking over execution of a custodial sentence subject to there being a legal basis in an international convention, Article 4(6) of Framework Decision 2002/584 can itself be the formal basis required by domestic law, has become redundant.

83.      As I stated above, the Kingdom of the Netherlands has in fact withdrawn the declaration it made under Article 28(2) of Framework Decision 2008/909, with effect from 1 June 2018. The effect of withdrawing that declaration is that the provisions of that framework decision must to my mind apply, ratione temporis, to a request for execution of a sentence in a case where a Member State undertakes to execute that sentence in accordance with Article 4(6) of Framework Decision 2002/584.

84.      I would call to mind, in that regard, that Framework Decision 2008/909 was implemented in Netherlands law by the WETS. Since that legislation came into force, Article 6(3) of the OLW has no longer mentioned the need for a basis in convention in order to execute a sentence where surrender has been refused. That redrafting makes sense in so far as, as Article 26(1) of Framework Decision 2008/909 states, that framework decision has, from 5 December 2011, replaced the corresponding provisions of several European conventions applicable in relations between the Member States.

85.      The referring court is therefore entitled to take the view that application of the national rules adopted to implement Framework Decision 2008/909 is capable of ensuring that the sentence imposed on Mr Popławski can effectively be executed in the Netherlands.

86.      Nevertheless, applying those national rules in the present case encounters an obstacle in Article 5:2(3) of the WETS, in so far as that article, as stated above, provides that those rules do not apply to judicial decisions that became final before 5 December 2011.

87.      Since there is no declaration made by the Kingdom of the Netherlands under Article 28(2) of Framework Decision 2008/909, that provision must be found to be incompatible with Article 28(1) of that framework decision that, likewise as I stated above, provides that requests received after 5 December 2011 are governed by the rules adopted by the Member States to implement that framework decision, and the date on which the judgment in question became final is completely irrelevant for that purpose.

88.      Enlisting all its domestic law and the interpretative methods available to it, the referring court is, to my mind, in a position to find that, because the Kingdom of the Netherlands chose to withdraw the declaration it had made under Article 28(2) of Framework Decision 2008/909, the national provision intended to implement that declaration in domestic law is consequently deprived of any legal basis. In so far as the Kingdom of the Netherlands expressed its intention unambiguously, it must in my view be easy to reduce the scope of Article 5:2(3) of the WETS on the basis of domestic law alone without the referring court coming up against any contra legem interpretation.

89.      Having in that way clarified how the referring court can arrive at an interpretation of its domestic law in conformity with Framework Decision 2002/584 and Framework Decision 2008/909, I need to set out specifically how the national rules implementing both those framework decisions fit together in a situation such as that in the main proceedings.

90.      The starting point here should be that, since the regime derived from Framework Decision 2008/909 applies to a request for the sentence delivered in Poland against Mr Popławski to be executed in the Netherlands and since any uncertainty arising earlier from application of the regime derived from the relevant European conventions has been dispelled, the executing Member State is in a position to give a firm and final undertaking to execute that sentence, as Article 4(6) of Framework Decision 2002/584 requires.

91.      I am also of the view that, once the requirements of Article 4(6) are satisfied, a refusal by the Member State that issued the EAW to forward the judgment together with the certificate under Annex I of Framework Decision 2008/909 cannot be allowed to prevent execution of the sentence in the executing Member State.

92.      I do not share the Republic of Poland’s view that unless it requests or agrees to execution of the sentence imposed on Mr Popławski in the Netherlands, that execution cannot take place. Indeed, that position would ultimately render ineffective the ground for optional non-execution under Article 4(6) of Framework Decision 2002/584, which the executing Member State chose to implement in its domestic law. The Republic of Poland’s position, which effectively precludes any firm and final undertaking by the executing Member State to execute the sentence, also runs counter to the objective of enhancing the possibility of social rehabilitation of the sentenced person, pursued not only by Framework Decision 2002/584 but also by Framework Decision 2008/909, as Article 3(1) of that decision expressly states. (37) It needs emphasising, in that respect, that the Court of Justice has already held that ‘the social rehabilitation of the Union citizen in the State in which he has become genuinely integrated is not only in his interest but also in that of the ... Union in general’. (38)

93.      Contrary to the Republic of Poland’s assertions, the issuing Member State cannot rely on Article 4(5) of Framework Decision 2008/909 to object to forwarding the judgment together with the certificate in Annex I of that framework decision.

94.      Article 4(5) does admittedly provide that ‘the executing State may, on its own initiative, request the issuing State to forward the judgment together with the certificate’ and that ‘requests made under this paragraph shall not create an obligation of the issuing State to forward the judgment together with the certificate.’

95.      However, as I stated above, it is Article 25 of Framework Decision 2008/909 that governs the execution of sentences following an EAW, as the heading of that article furthermore makes expressly apparent. That article therefore constitutes a lex specialis as opposed to the general regime governing the execution of sentences contained in that framework decision.

96.      I would repeat here that, according to Article 25, the provisions of Framework Decision 2008/909 apply to the execution of judgments in the context of Article 4(6) of Framework Decision 2002/584 ‘without prejudice’ to Framework Decision 2002/584 and only ‘to the extent they are compatible’ with the provisions of that framework decision. In short, this means that application of Framework Decision 2008/909 cannot adversely affect the ability to rely on the ground for optional non-execution in Article 4(6) of Framework Decision 2002/584 provided, in accordance with Article 4(6), the executing Member State undertakes to execute the sentence in question. It would indeed be paradoxical and, to be honest, inconsistent to believe that the EU legislature intended to allow the issuing Member State to invoke the rules contained in Framework Decision 2008/909, which seeks, I would repeat, to facilitate the social reinsertion of the sentenced person, in order to impede the application of rules adopted by the executing Member State in order to implement Article 4(6) of Framework Decision 2002/584, which pursues exactly the same aim. (39)

97.      In practical terms, I infer from the foregoing that, where the executing Member State undertakes to execute a sentence, in accordance with the requirements of Article 4(6) of Framework Decision 2002/584, the issuing Member State is bound to grant the executing State’s request to forward it the judgment together with the certificate in Annex I of Framework Decision 2008/909.

98.      That interpretation of the scheme of Framework Decision 2008/909 and of how it relates to Framework Decision 2002/584 is therefore completely consistent with the objective of facilitating the social reinsertion of the sentenced person and, at the same time, ensures effective execution of the sentence.

99.      It also needs noting, in support of the approach I am advocating that, ‘as provided for in Article 26 thereof, Framework Decision 2008/909 replaces, as regards relations between Member States, a number of instruments of international law in order to further develop cooperation, as stated in recital 5 of the decision, in the enforcement of criminal judgments.’ (40)

100. Unlike those instruments of international law, Framework Decision 2008/909 is based, above all, on the principle of mutual recognition, which, according to recital 1 of that framework decision, read in conjunction with Article 82(1) TFEU, is the ‘cornerstone’ of judicial cooperation in criminal matters within the European Union, which in turn, according to recital 5, is based on the Member States’ special mutual confidence in their respective legal systems. (41) Cooperation by the issuing Member State in order to enable a sentence to be executed in the executing Member State in the situation under Article 4(6) of Framework Decision 2002/584 is the concrete expression of that mutual confidence.

101. As emerges from the foregoing, processing the EAW issued against Mr Popławski, in accordance with the procedure I have just described, nevertheless presupposes that the referring court must be able to interpret its domestic law in conformity with Framework Decision 2002/584 and Framework Decision 2008/909.

102. Indeed, because framework decisions do not have direct effect, the national courts cannot apply them directly without the intermediary of domestic law.

103. I therefore have to envisage a situation in which the referring court finds itself unable to interpret its domestic law in conformity with Framework Decision 2002/584 and Framework Decision 2008/909 even though, in the light of what I have said above, that court can in my view reach an interpretation of that law in conformity with those framework decisions. I also note that the arguments in the request for a preliminary ruling and in the referring court’s order of 10 July 2008 bear out the referring court’s intention so far as possible to seek an interpretation of its domestic law in conformity with those framework decisions, in order to reconcile the aims of preventing impunity and of facilitating the social reinsertion of the sentenced person once the sentence has been served.

5.      Disapplication of conflicting domestic law pursuant to the principle of the primacy of EU law

104. In general terms, I believe that, whilst framework decisions undeniably do not have direct effect, their effect on national law cannot however be reduced merely to an obligation on national authorities to interpret domestic law in conformity with EU law.

105. Indeed, it is important to understand that if a national provision intended to implement a framework decision cannot, despite the efforts of the competent national court, be interpreted so that it is in conformity with that framework decision, this means that the framework decision remains incompatible with domestic law, even though framework decisions are binding. This is fundamentally at odds with the principle of the primacy of EU law. From that perspective, the only way to resolve the contradiction in question is to require the competent national court to refrain from applying the national provision that conflicts with a framework decision.

106. Therefore if, ultimately, the exercise of interpreting Netherlands law in conformity with Framework Decision 2002/584 and Framework Decision 2008/909, which I invite the referring court to undertake, proves impossible, in particular because the interpretation reached would be contra legem, the obligation on national courts to ensure the complete effectiveness of those framework decisions (42) in my view requires the referring court to refrain from applying the national provisions that are contrary to them.

107. In his Opinions in Popławski (43) and in Lada, (44) Advocate General Bot set out the reasons why, according to him, even though framework decisions are not directly effective, it should be possible to rely on them in order to preclude application of national provisions that conflict with them. I agree with the reasoning set out in those opinions, to which I refer. (45)

108. I would add that the Court of Justice itself, in the Popławski judgment, seems not to have ruled out the possibility that a framework decision can give rise to an obligation on national courts to refrain from applying national provisions that are contrary to that framework decision.

109. Indeed, in that judgment the Court noted that ‘in accordance with [its] settled case-law, Member States must take all appropriate measures, whether general or particular, to ensure fulfilment of their obligations under a framework decision’. (46)

110. The Court of Justice then stated that ‘in particular, it is clear from [its] 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.’ (47)

111. Although the Court in that way emphasised the obligation on national courts to interpret national law in conformity with EU law, in line with the precedence that it, in my view correctly, gives to the ability to rely on EU law in that way, the reminder that framework decisions are binding and mention of the fact that the binding effect of framework decisions results ‘in particular’ in an obligation on national courts to interpret national law in conformity with EU law, seems to me to leave the way open, where those courts cannot arrive at an interpretation of their domestic law in conformity with a framework decision, to their being bound to disapply domestic law.

112. Nor do I believe that accepting that a provision of a framework decision can be relied upon by or before a national court with a view to the disapplication of national law that conflicts with that framework decision means that the provision in question must satisfy the requirements in order to be capable of having direct effect, that is to say, that it must be sufficiently clear, precise and unconditional.

113. The present case also clearly illustrates the fact that such a requirement would undermine the binding nature of framework decisions, and the fact that, contrary to the Commission’s contention, there is indeed a genuine difference between direct effect and the fact that a framework decision can be relied upon with a view to the disapplication of national law that conflicts with it.

114. To my mind, Article 4(6) of Framework Decision 2002/584 does not in fact satisfy the requirements in order to have direct effect. I note, in that respect, that Article 4(6) sets out a ground for optional non-execution of the EAW, which implies, on the one hand, as is apparent from the case-law of the Court of Justice, that the Member States can choose whether or not to transpose that provision into domestic law (48) and, on the other, that the executing judicial authority must have a margin of discretion as to whether or not it is appropriate to refuse to execute the EAW. (49)

115. Accordingly, even if framework decisions were capable of having direct effect, in my view Article 4(6) of Framework Decision 2002/584 does not in any event have direct effect. In other words, a national court cannot under any circumstances apply that article directly irrespective of or instead of the national rule that implements it. This means that, if a national rule does not correctly implement Article 4(6) of Framework Decision 2002/584 and it proves impossible to interpret that national rule in a manner in conformity with Article 4(6), the national court must — only — refrain from applying that national rule, and its doing so will under no circumstances have the effect of applying Article 4(6) of Framework Decision 2002/584 instead of that rule.

116. Under those circumstances and since nothing here calls into question the prohibition on the direct effect of framework decisions that the drafters of the Treaties intended, I believe that denying that Article 4(6) of Framework Decision 2002/584 can have the effect of ousting conflicting national law amounts purely and simply to allowing the Member States to implement incorrectly a ground for non-execution of the EAW and to undermining the requirement that framework decisions be applied uniformly within the European Union, and the principles of mutual trust and recognition. (50) To my mind, an area of freedom, security and justice can only be constructed if the incorrect application of EU law can be effectively neutralised by the national courts which, it should be recalled, play a primordial role in that regard.

117. I would emphasise, furthermore, that the Court of Justice’s most recent case-law on the effects that directives have on national law corroborates the thesis that direct effect must be distinguished from the ousting effect of directives, which is a consequence of the principle of the primacy of EU law. Accordingly, in its judgment of 4 October 2018, Link Logistik N&N, (51) the Court found, initially, that a provision of a directive did not satisfy the requirements in order to have direct effect, (52) but that fact did not prevent it, subsequently, from holding, in relation to the same provision, that ‘if ... an interpretation [in conformity with EU law] is not possible the national court must fully apply EU law and protect the rights which EU law confers on individuals, disapplying if necessary any [national] provision in so far as its application would, in the circumstances of the case, lead to a result contrary to EU law’. (53)

118. I will now indicate what the consequences would be of refraining from applying Article 6(2), (3) and (5) of the OLW, to the extent that it conflicts with Article 4(6) of Framework Decision 2002/584.

119. If the referring court refrains from applying Article 6(2), (3) and (5) of the OLW the effect will be, in the absence in national law of any ground for optional non-execution corresponding to Article 4(6) of Framework Decision 2002/584, that the EAW issued on 7 October 2013 against Mr Popławski by the Sąd Rejonowy w Poznaniu (Poznań Regional Court) for execution of the sentence imposed by that court must be executed. At the hearing, the public prosecutor, in particular, confirmed that there is indeed a basis in Netherlands legislation for surrendering Mr Popławski.

120. I would emphasise in that respect that, in the Popławski judgment, the Court of Justice stated very clearly that ‘where the conditions laid down in Article 4(6) of Framework Decision 2002/584 have not been satisfied, Article 1(2) of that framework decision requires Member States to execute any EAW on the basis of the principle of mutual recognition.’ (54) That statement would be meaningless if national legislation incorrectly transposing Article 4(6) of Framework Decision 2002/584 and that cannot be interpreted in a manner in conformity with that article could present an immovable obstacle to execution of an EAW. In other words, in such a situation, I can see no way of complying with the rule that the EAW must, in principle, be executed other than by the executing judicial authority disapplying such national legislation.

121. I note in that regard that, as the Court of Justice has also recently stated, ‘the principle of mutual recognition is applied in Article 1(2) of [Framework Decision 2002/584], which lays down the rule that Member States are required to execute any [EAW] on the basis of the principle of mutual recognition and in accordance with the provisions of [that] Framework Decision. Executing judicial authorities may therefore, in principle, refuse to execute such a warrant only on the grounds for non-execution exhaustively listed in [that] Framework Decision. Accordingly, while execution of the [EAW] constitutes the rule, refusal to execute is intended to be an exception which must be interpreted strictly’. (55)

122. The solution proposed by the Kingdom of the Netherlands, that of waiting until the national legislation is amended, is therefore unacceptable. Nor, moreover, have I discovered any reason concerning legal certainty that could prevent the referring court from ensuring the complete effectiveness of Framework Decision 2002/584. I would add that the Commission’s argument that Article 6(2), (3) and (5) of the OLW cannot be disapplied in so far as doing so would be to the detriment of the person concerned is, to my mind, irrelevant. Indeed, in the light of the case-law I have just set out, such a consideration cannot prevent execution of an EAW where the national court cannot rely on a ground for optional non-execution in conformity with Framework Decision 2002/584.

123. Furthermore, I would note that, as this Court held in the Popławski judgment, ‘the national court’s obligation to ensure the complete effectiveness of [that Framework Decision] ... has no bearing on the determination of Mr Popławski’s criminal liability which stems from the judgment pronounced against him on 5 February 2007 by the Sąd Rejonowy w Poznaniu (District Court, Poznań) and, a fortiori, cannot be regarded as aggravating that liability’. (56)

124. The only consequence of refraining from applying Article 5:2(3) of the WETS, in the event that it proved impossible to interpret the Netherlands legislation in accordance with Framework Decision 2008/909, would be to remove a limitation on the application ratione temporis of the national rules adopted to implement that framework decision. I would emphasise here that a solution consisting of denying that the referring court is authorised to remove such a time limit would amount to prolonging the effects of the declaration that the Kingdom of the Netherlands made under Article 28(2) of Framework Decision 2008/909, whereas that declaration has been withdrawn and, in any event, probably had no legal effects. (57)

125. In the light of the foregoing, I therefore propose in answer to the first question that a national court that is unable to interpret national provisions adopted to implement a framework decision in a manner that leads to an outcome in conformity with that framework decision must, in accordance with the principle of the primacy of EU law, disapply those provisions not in conformity with that framework decision.

IV.    Conclusion

126. In the light of all the foregoing, I suggest that the Court of Justice should reply as follows to the questions referred by the Rechtbank Amsterdam (District Court, Amsterdam, Netherlands) for a preliminary ruling:

(1)      Where a Member State’s declaration concerning 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 was made after that framework decision was adopted, contrary to the requirement in Article 28(2) of that framework decision, that declaration is not capable of having legal effects.

(2)      A national court with jurisdiction to rule on execution of a European arrest warrant that intends to rely on the ground for optional non-execution under 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 must, taking the whole body of domestic law into consideration and applying the interpretative methods recognised by it, interpret the national provisions adopted to implement that framework decision and Framework Decision 2008/909, to the fullest extent possible, in a manner such as to reconcile the aims of combating impunity and of facilitating the social reinsertion of sentenced persons.

(3)      A national court that is unable to interpret national provisions adopted to implement a framework decision in a way that leads to an outcome in conformity with that framework decision must, in accordance with the principle of the primacy of EU law, disapply those provisions not in conformity with that framework decision.

1      Original language: French.

2      C‑579/15, EU:C:2017:503, ‘the Popławski judgment’.

3      OJ 2002 L 190, p. 1.

4      OJ 2008 L 327, p. 27.

5      Stb. 2004, No 195, ‘the OLW’.

6      Stb. 2012, No 333, ‘the WETS’.

7      Stb. 1986, No 593.

8      It is common ground that Mr Popławski has proven that he has resided legally and uninterruptedly in the Netherlands for at least five years.

9      Paragraph 24 of that judgment.

10      Paragraph 43 of that judgment.

11      Paragraph 43 of that judgment.

12      See paragraph 42 of that judgment.

13      C‑582/15, EU:C:2016:766.

14      See points 21 to 29 of that Opinion.

15      C‑582/15, EU:C:2017:37.

16      OJ 2018 L 163, p. 19.

17      C‑579/15, EU:C:2017:116.

18      See points 54 and 55 of his Opinion.

19      See, by analogy, on the validity of the declaration made by the Kingdom of the Netherlands, Opinion of Advocate General Bot in van Vemde (C‑582/15, EU:C:2016:766, points 21 to 29).

20      OJ 2011 L 146, p. 21. See, in that regard, the Commission’s observations in Popławski (C‑579/15) (footnote 7, p. 12).

21      I would have to make the same finding in relation to the declaration by the Kingdom of the Netherlands had it not been withdrawn.

22      See the Popławski judgment (paragraph 20).

23      See the Popławski judgment (paragraph 21 and the case-law cited).

24      See the Popławski judgment (paragraph 23).

25      See the Popławski judgment (paragraph 22).

26      See the Popławski judgment (paragraph 23).

27      See the Popławski judgment (paragraph 24).

28      See, amongst others, the Popławski judgment (paragraph 31 and the case-law cited).

29      See, amongst others, the Popławski judgment (paragraph 32 and the case-law cited).

30      See, amongst others, the Popławski judgment (paragraph 33 and the case-law cited).

31      See, amongst others, the Popławski judgment (paragraph 34 and the case-law cited).

32      See, amongst others, the Popławski judgment (paragraph 35 and the case-law cited).

33      See, amongst others, the Popławski judgment (paragraph 36 and the case-law cited).

34      My italics.

35      See, amongst others, the Popławski judgment (paragraph 39 and the case-law cited).

36      See, amongst others, the Popławski judgment (paragraph 40 and the case-law cited).

37      See, amongst others, the Popławski judgment (paragraph 21).

38      See, amongst others, judgment of 17 April 2018, B and Vomero (C‑316/16 and C‑424/16, EU:C:2018:256, paragraph 75 and the case-law cited).

39      See, in the same vein, the Opinion of Advocate General Bot in Sut (C‑514/17, EU:C:2018:672), in which he states that Article 25 of Framework Decision 2008/909 attests the EU legislature’s intention that Framework Decision 2008/909 should not have the effect of ‘diminishing the spirit and force of the [EAW] mechanism established by Framework Decision 2002/584’ (point 36, see, also, point 81).

40      See judgment of 11 January 2017, Grundza (C‑289/15, EU:C:2017:4, paragraph 40). My italics.

41      See, amongst others, judgment of 11 January 2017, Grundza (C‑289/15, EU:C:2017:4, paragraph 41 and the case-law cited).

42      See the Popławski judgment (paragraph 37).

43      C‑579/15, EU:C:2017:116.

44      C‑390/16, EU:C:2018:65.

45      See Opinion of Advocate General Bot in Popławski (C‑579/15, EU:C:2017:116, points 76 to 91) and in Lada (C‑390/16, EU:C:2018:65, points 106 to 118).

46      See the Popławski judgment (paragraph 30 and the case-law cited).

47      See the Popławski judgment (paragraph 31 and the case-law cited).

48      See, in that respect, judgment of 5 September 2012, Lopes Da Silva Jorge (C‑42/11, EU:C:2012:517, paragraph 35), and the Popławski judgment (paragraph 21).

49      See the Popławski judgment (paragraphs 21 and 23).

50      I would observe, in that respect, that the Court of Justice, in its judgment of 26 February 2013, Melloni (C‑399/11, EU:C:2013:107), held that ‘allowing a Member State ... to make the surrender of a person convicted in absentia conditional upon the conviction being open to review in the issuing Member State, a possibility not provided for under [Council Framework Decision 2009/299/JHA of 26 February 2009 amending Framework Decisions 2002/584/JHA, 2005/214/JHA, 2006/783/JHA, 2008/909/JHA and 2008/947/JHA, thereby enhancing the procedural rights of persons and fostering the application of the principle of mutual recognition to decisions rendered in the absence of the person concerned at the trial (OJ 2009 L 81, p. 24)], ... would undermine the principles of mutual trust and recognition which that decision purports to uphold and would, therefore, compromise the efficacy of that framework decision’ (paragraph 63).

51      C‑384/17, EU:C:2018:810.

52      See paragraph 56 of that judgment.

53      See paragraph 61 of that judgment. Paragraph 62 of the same judgment shows very clearly the distinction between direct effect, on the one hand, and an interpretation in conformity with EU law and the ousting effect, on the other.

54      See the Popławski judgment (paragraph 29).

55      See judgment of 19 September 2018, R O (C‑327/18 PPU, EU:C:2018:733, paragraph 37 and the case-law cited). See also the Popławski judgment (paragraph 19).

56      See the Popławski judgment (paragraph 37).

57      I refer, on that point, to the Opinion of Advocate General Bot in van Vemde (C-582/15, EU:C:2016:766, points 21 to 29).

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