Provisional text

delivered on 3 April 2025 (1)

Case C‑641/23 [Dubers] (i)

YM

other party

Openbaar Ministerie

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

( Reference for a preliminary ruling – Judicial cooperation in criminal matters – Framework Decision 2008/909/JHA – Recognition of judgments imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in another Member State – Article 7(3) and (4) – Article 9(1)(d) – Ground for non-recognition and non-enforcement – Possibility of refusing to recognise and enforce a sentence imposed following a surrender with a guarantee of return – Article 25 – Enforcement of sentences following a European arrest warrant – Framework Decision 2002/584/JHA – European arrest warrant – Article 2(4) – Condition of double criminality – Article 4(1) – Ground for optional non-execution of a European arrest warrant – Article 5(3) – European arrest warrant issued for the purposes of criminal proceedings – Surrender subject to the condition that the requested person is returned to the executing Member State in order to serve there the custodial sentence or detention order passed against him or her in the issuing Member State )

I.Introduction

The present request for a preliminary ruling concerns the interpretation of Article 7(4), Article 9(1)(d) and Article 25 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, (2) as amended by Council Framework Decision 2009/299/JHA of 26 February 2009, (3) and the interpretation of Article 2(4), Article 4(1) and Article 5(3) of Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, (4) as amended by Framework Decision 2009/299. (5)

The request has been made in the context of the execution, in the Netherlands, of a European arrest warrant issued on 9 May 2023 by the Sad Okręgowy w Jeleniej Górze, Wydział III Karny (Regional Court, Jelenia Góra, Criminal Division III, Poland) against YM for the purposes of a criminal prosecution.

In adopting Article 4(6) and Article 5(3) of Framework Decision 2002/584, the EU legislature wished to allow the Member States, for the purposes of facilitating the social rehabilitation of the requested person, to refuse to execute a European arrest warrant or to make the surrender of that person conditional upon his or her return in the event of a conviction.

The present case provides the Court with the opportunity to clarify, where there is no double criminality, the relationship between that framework decision and Framework Decision 2008/909 when the mechanism of surrender with a guarantee of return, provided for in Article 5(3) of Framework Decision 2002/584, is implemented. (6)

II.Legal framework

A.European Union law

1.Framework Decision 2002/584

Article 2 of Framework Decision 2002/584, entitled ‘Scope of the European arrest warrant’, provides in paragraph 4:

‘For offences other than those covered by paragraph 2, surrender may be subject to the condition that the acts for which the European arrest warrant has been issued constitute an offence under the law of the executing Member State, whatever the constituent elements or however it is described.’

Article 4(1) and (6) of that framework decision lays down the following grounds for optional non-execution of the European arrest warrant:

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

1.if, in one of the cases referred to in Article 2(4), the act on which the European arrest warrant is based does not constitute an offence under the law of the executing Member State …;

…

6.if the European arrest warrant 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.’

Article 5 of that framework decision, entitled ‘Guarantees to be given by the issuing Member State in particular cases’, provides, in paragraph 3:

‘The execution of the European arrest warrant by the executing judicial authority may, by the law of the executing Member State, be subject to the following conditions:

…

3.where a person who is the subject of a European arrest warrant for the purposes of prosecution is a national or resident of the executing Member State, surrender may be subject to the condition that the person, after being heard, is returned to the executing Member State in order to serve there the custodial sentence or detention order passed against him in the issuing Member State.’

2.Framework Decision 2008/909

Recital 12 of Framework Decision 2008/909 states:

‘This Framework Decision should also, mutatis mutandis, apply to the enforcement of sentences in the cases under Articles 4(6) and 5(3) of … Framework Decision [2002/584]. This 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].’

Article 3 of Framework Decision 2008/909, entitled ‘Purpose and scope’, states in paragraphs 1 and 2:

‘1. The purpose of this Framework Decision is to establish the rules under which a Member State, with a view to facilitating the social rehabilitation of the sentenced person, is to recognise a judgment and enforce the sentence.

Article 7 of Framework Decision 2008/909, entitled ‘Double criminality’, provides in paragraphs 3 and 4:

‘3. For offences other than those covered by paragraph 1, the executing State may make the recognition of the judgment and enforcement of the sentence subject to the condition that it relates to acts which also constitute an offence under the law of the executing State, whatever its constituent elements or however it is described.

4. Each Member State may, on adoption of this Framework Decision or later, by a declaration notified to the General Secretariat of the Council declare that it will not apply paragraph 1. Any such declaration may be withdrawn at any time. Such declarations or withdrawals of declarations shall be published in the Official Journal of the European Union.’

Article 8 of that framework decision, entitled ‘Recognition of the judgment and enforcement of the sentence’, states in paragraph 1:

‘The competent authority of the executing State shall recognise a judgment which has been forwarded in accordance with Article 4 and following the procedure under Article 5, and shall forthwith take all the necessary measures for the enforcement of the sentence, unless it decides to invoke one of the grounds for non-recognition and non-enforcement provided for in Article 9.’

Article 9 of that framework decision, entitled ‘Grounds for non-recognition and non-enforcement’ provides in paragraph 1(d):

‘The competent authority of the executing State may refuse to recognise the judgment and enforce the sentence, if:

…

(d)in a case referred to in Article 7(3) and, where the executing State has made a declaration under Article 7(4), in a case referred to in Article 7(1), the judgment relates to acts which would not constitute an offence under the law of the executing State. …’

Article 25 of that framework decision, entitled ‘Enforcement of sentences following a European arrest warrant’, is worded as follows:

‘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.’

By a declaration of 20 September 2012 notified to the General Secretariat of the Council in accordance with Article 7(4) of Framework Decision 2008/909, the Kingdom of the Netherlands stated that it would not apply Article 7(1) of that framework decision. (7)

B.Netherlands law

1.Legislation relating to the European arrest warrant

Framework Decision 2002/584 was transposed into Netherlands law by the Wet tot implementatie van het kaderbesluit van de Raad van de Europese Unie betreffende het Europees aanhoudingsbevel en de procedures van overlevering tussen de lidstaten van de Europese Unie (Overleveringswet) (Law implementing the Framework Decision of the Council of the European Union on the European arrest warrant and the surrender procedures between the Member States of the European Union (Law on surrender)) (8) of 29 April 2004, as amended by the Law of 3 March 2021 (9) (‘the Law on surrender’).

Article 6 of the Law on surrender provides:

‘1. The surrender of a Netherlands national may be granted provided that the request is made for the purposes of a criminal investigation against that person and provided that the executing judicial authority considers that it is guaranteed that if that person is sentenced to an unconditional [custodial sentence or detention order] in the issuing Member State for the offences in respect of which the surrender may be granted, he may serve that sentence in the Netherlands.

…

3.Paragraph 1 shall also apply to a foreign national who, during the hearing by the rechtbank [District Court, Netherlands], demonstrates that he or she has been lawfully resident in the Netherlands for a continuous period of at least five years, for the purposes of Article 8(a) to (e) and (l) of the Vreemdelingenwet 2000 [(Law of 2000 on foreign nationals) (10) of 23 November 2000], 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. Any supporting documents must be submitted in good time prior to the hearing by the court.’

Article 7(1) of the Law on Surrender provides:

‘Surrender may be granted for the purposes of:

a.a criminal investigation initiated by the authorities of the issuing Member State or by the European Public Prosecutor’s Office referred to in Article 1 of [Council Regulation (EU) 2017/1939 of 12 October 2017 implementing enhanced cooperation on the establishment of the European Public Prosecutor’s Office (‘the EPPO’) (11)] as regards the presumption that, according to the issuing judicial authority, the requested person has committed:

1°.an act which, under the law of the issuing Member State, constitutes a classified offence, which is also included in the list in Annex 1 to this Law and which is punishable under the law of the issuing Member State [by a custodial sentence or a detention order] of a maximum period of at least three years; or

2°.another act which is punishable under both the law of the issuing Member State and Netherlands law and for which the law of the issuing Member State provides for [a custodial sentence or a detention order] of a maximum period of at least 12 months;

b.the enforcement [of a custodial sentence or a detention order] of four months, or a longer period, to be served by the requested person in the territory of the issuing Member State for an act as referred to in point 1° or point 2°.’

2.Legislation relating to the recognition and enforcement of sentences

Framework Decision 2008/909 was transposed into Netherlands law by the Wet wederzijdse erkenning en tenuitvoerlegging vrijheidsbenemende en voorwaardelijke sancties (Law on the mutual recognition and enforcement of custodial and suspended sentences) (12) of 12 July 2012, as amended by the Law of 3 March 2021 (13) (‘the WETS’).

Article 1:1(a) of the WETS is worded as follows:

‘For the purposes of this Law and of the provisions based on it, the following definitions shall apply:

a.“Our Minister”: our Minister for Security and Justice.’

In accordance with Article 2:11 of the WETS:

‘1. Our Minister shall forward the judicial decision and the certificate to the Advocate General of the Prosecutor’s Office attached to the Court of Appeal, unless he or she considers at the outset that there are grounds for refusing to recognise that judicial decision.

a.whether there are grounds for refusing to recognise the judicial decision under Article 2:13(1);

…

7.Within six weeks of the date on which it receives the judicial decision and the certificate, the Specialised Chamber of the Court of Appeal shall forward to our Minister the written and reasoned assessment which it has made under paragraph 3.’

Article 2:12(1) of the WETS is worded as follows:

‘Our Minister shall decide whether to recognise the judicial decision, taking into account the assessment made by the Specialised Division of the Court of Appeal.’

Article 2:13 of the WETS, entitled ‘Grounds for obligatory non-recognition’, provides in paragraph 1(f):

‘Recognition of the judicial decision shall be refused where:

…

f.the act in respect of which the [custodial sentence or detention order] was imposed would not have been punishable under Netherlands law if it had been committed in the Netherlands.’

III.Facts of the main proceedings and the question referred for a preliminary ruling

The Sad Okręgowy w Jeleniej Górze, Wydział III Karny (Regional Court, Jelenia Góra, Criminal Division III) issued two European arrest warrants against YM for the purposes of conducting a criminal prosecution, one dated 9 November 2020 and the other dated 9 May 2023.

24.As the executing judicial authority, the rechtbank Amsterdam (District Court, Amsterdam, Netherlands), which is the referring court, is called upon to rule on the execution of those two European arrest warrants.

25.That court states that its reference for a preliminary ruling concerns only the second of those warrants. That warrant was issued for the purposes of conducting a criminal prosecution against the requested person in respect of a single act, namely the failure to comply with his maintenance obligation in respect of his minor son, in accordance with decisions taken by the Polish courts.

26.The issuing judicial authority did not classify that act as an offence listed in Article 2(2) of Framework Decision 2002/584, which can give rise to the surrender of the person concerned without verification of the double criminality of the act. The referring court found that that act did not constitute an offence under Netherlands law, but nevertheless intends to refrain from applying the ground for optional non-execution provided for in Article 4(1) of that framework decision.

27.That court notes that the requested person, a Polish national, has resided legally in the Netherlands for a continuous period of more than five years and has therefore acquired a right of permanent residence there. Consequently, that court considers that that person is a ‘resident’ of the Kingdom of the Netherlands within the meaning of Article 5(3) of that framework decision.

28.Moreover, the national court finds that the requested person has close ties with the Kingdom of the Netherlands, with the result that the enforcement in that Member State of any custodial sentence or detention order that may be imposed in Poland following surrender would contribute to increasing his chances of social rehabilitation. That court notes, in that regard, that that person has been resident in the Netherlands for approximately 12 years, has enjoyed a substantial income in recent years, speaks Dutch well and, although he is not currently employed, intends to train as a fitness instructor.

29.In its reference for a preliminary ruling, the national court had initially referred three questions to the Court for a preliminary ruling. On 13 February 2024, that court decided to withdraw its first and second questions. According to the explanations provided by that court, that decision of partial withdrawal follows the tabling on 21 December 2023 by the Netherlands Government of the draft law of the Wet herimplementatie Europees strafrecht (Law retransposing EU criminal law), the adoption of which would make it possible to resolve the issues with the transposition of Framework Decision 2002/584 which form the subject of the first two questions.

30.The third question referred for a preliminary ruling, which is now the only question to be answered by the Court, concerns the situation in which a European arrest warrant is issued for an act referred to in Article 2(4) of Framework Decision 2002/584 that does not constitute an offence under the law of the executing Member State. Having chosen not to rely on the ground for optional non-execution provided for in Article 4(1) thereof, the executing judicial authority wishes to make use of the option offered by Article 5(3) of that framework decision, and thus envisages making the surrender of the requested person subject to the condition that he or she is returned to the executing Member State in order to serve there any custodial sentence or detention order imposed on him or her in the issuing Member State.

31.In that regard, the referring court points out that, under Netherlands law applicable on the date of the order for reference, recognition of a conviction handed down in another Member State is automatically refused where the act for which the custodial sentence or detention order was imposed would not constitute an offence under Netherlands law if it were committed in the territory of the Netherlands.

32.Consequently, where a European arrest warrant is issued for the purposes of prosecution for acts which are not punishable under Netherlands law and that arrest warrant is executed by making the surrender of the person concerned subject to a guarantee of return in accordance with Article 5(3) of Framework Decision 2002/584, that person will not be able to serve the custodial sentence or detention order which may be imposed in the issuing Member State in the Netherlands.

33.The referring court considers that that situation is contrary to EU law. That court considers that Article 9(1)(d) of Framework Decision 2008/909 provides for an optional ground for non-recognition and non-enforcement. Accordingly, when transposing that provision, Member States should allow the competent authorities a margin of discretion, without making that ground for refusal mandatory. Moreover, that ground for refusal should be interpreted strictly, in accordance with the objective of facilitating the social rehabilitation of the person concerned.

34.That court adds that, in the context of the implementation of a guarantee of return in respect of an act that does not constitute an offence under the law of the executing Member State, it is questionable whether such discretion is compatible with EU law.

35.In such a situation, the fact that the custodial sentence or detention order cannot be enforced in the territory of the Netherlands appears to be contrary to Article 25 of Framework Decision 2008/909.

36.In that regard, the referring court states that, in accordance with Article 25 of that framework decision, the provisions of Framework Decision 2002/584 take precedence over those of Framework Decision 2008/909. Furthermore, it is apparent from the case-law of the Court that Framework Decision 2002/584, in particular Article 5(3) thereof, allows, in specific situations, the executing judicial authority to decide that a sentence imposed in the issuing Member State must be enforced in the territory of the executing Member State. (15)

37.In those circumstances, that court considers that, where the executing judicial authority has refrained from invoking the ground for optional non-execution based on double criminality, as provided for in Article 4(1) of Framework Decision 2002/584, but has made surrender subject to a guarantee of return in order to enhance the possibility of social rehabilitation of the person concerned, in accordance with Article 5(3) thereof, EU law precludes the competent authority of the executing Member State from subsequently refusing to recognise and enforce the sentence imposed in the issuing Member State by relying on the ground for refusal based on double criminality, as provided for in Article 9(1)(d) of Framework Decision 2008/909.

38.According to that court, the non-recognition of the custodial sentence or detention order imposed in the issuing Member State would run counter to the objective pursued by Article 5(3) of Framework Decision 2002/584, namely to enhance the possibility of social rehabilitation of the sentenced person, and would deprive that provision of any practical effect.

39.The referring court also states that the answer to that question will influence its decision whether or not to surrender the person who is the subject of the dispute in the main proceedings. If the Court were to conclude that EU law does not preclude the application of national provisions such as those described in its reference for a preliminary ruling, that court states that it could reconsider its intention to surrender that person to the Polish authorities on the basis of a guarantee that he will be returned. In such a case, there would be no guarantee that the person concerned would be able to serve in the Netherlands any custodial sentence or measure involving deprivation of liberty passed against him in Poland, in order to enhance the possibility of his social rehabilitation.

40.In short, the referring court wishes to know whether, at the stage of implementation of the guarantee of return provided for in Article 5(3) of Framework Decision 2002/584, the recognition and enforcement in the Netherlands of any custodial sentence or measure involving deprivation of liberty imposed in Poland is liable to conflict with the fact that the act is not punishable under Netherlands law.

41.In its decision of partial withdrawal lodged with the Court on 26 February 2024, that court sets out in more detail the reasons why an amendment to the Netherlands legislation which would make the ground for non-recognition and non-enforcement in Article 9(1)(d) of Framework Decision 2008/909 optional would not eliminate the problem underlying the third question referred for a preliminary ruling. Even in such a situation, the Minister would still have the power to refuse from the outset to recognise a foreign sentence and thus the sentenced person’s return to the Netherlands on the ground that the act is not punishable under Netherlands law, in accordance with Article 2:11(1) of the WETS. Even if the Minister were not to exercise that power, the Gerechtshof Arnhem-Leeuwarden (Court of Appeal, Arnhem-Leeuwarden) would still have the power to refuse to recognise it and thus the sentenced person’s return to the Netherlands on the ground that the act is not punishable under Netherlands law, whereas, under Article 2:12(1) of the WETS, the Minister would be bound by such a refusal.

42.In those circumstances, the rechtbank Amsterdam (District Court, Amsterdam) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Does Article 9(1)(d) of Framework Decision [2008/909], read in conjunction with Article 25 of that framework decision and Article 4(1) and Article 5(3) of Framework Decision [2002/584], preclude a Member State which has applied Article 7(4) of Framework Decision [2008/909] from transposing the former provision in such a way that, after the executing judicial authority has authorised surrender for the purpose of prosecution to the issuing Member State subject to a guarantee of return in respect of an act referred to in Article 2(4) of Framework Decision [2002/584] that does not constitute an offence under the law of the executing Member State, but in respect of which the executing judicial authority has expressly refrained from non-execution of surrender on that ground, other authorities in the executing Member State (as the Member State in which enforcement is sought) must or may subsequently refuse to recognise and enforce the custodial sentence imposed in the issuing Member State for that act because it does not constitute an offence under the law of the executing Member State (as the Member State in which enforcement is sought) and must or may therefore refuse to implement the guarantee of return?’

43.YM, the Openbaar Ministerie (Public Prosecutor’s Office, Netherlands), the Netherlands and Polish Governments and the European Commission submitted written observations and, with the exception of the Polish Government, participated at the hearing held on 15 January 2025, during which they replied in particular to the questions put by the Court for an oral answer.

IV.Analysis

44.By its question, the referring court asks, in essence, whether Article 9(1)(d) and Article 25 of Framework Decision 2008/909 must be interpreted as precluding national legislation which provides for an obligation on or an option for the competent authority of a Member State to refuse to recognise the judgment and enforce the sentence imposed in another Member State on the ground that they relate to acts which would not constitute an offence under the law of the first Member State, where the executing judicial authority of that Member State has, in accordance with Article 5(3) of Framework Decision 2002/584, previously decided to execute a European arrest warrant by making the surrender of the requested person subject to the condition that that person, after being heard, is returned to the executing Member State in order to serve there the custodial sentence or detention order which may be passed against him or her in the issuing Member State.

45.The situation at issue in the present case is as follows.

46.The executing judicial authority of a Member State, seised of a European arrest warrant issued for the purposes of criminal proceedings, intends to surrender the requested person, first, by waiving the right to rely on the ground for optional non-execution provided for in Article 4(1) of Framework Decision 2002/584, which concerns the situation in which the act on which the European arrest warrant is based does not constitute an offence under the law of the executing Member State and, second, by requiring, under Article 5(3) of that framework decision, that that person be returned to that Member State to serve there the custodial sentence or detention order which may be passed against him or her in the issuing Member State.

47.With a view to taking its decision on surrender, the executing judicial authority is uncertain, however, as to what may happen, under Netherlands law, to that guarantee of return at the stage of recognition of the judgment and enforcement of the sentence which, where appropriate, will be imposed in the issuing Member State following surrender.

48.In the version in force on the date of the order for reference, the Netherlands legislation requires the competent authority of the executing Member State to refuse, pursuant to Article 9(1)(d) of Framework Decision 2008/909, to recognise the judgment and enforce the sentence imposed in the issuing Member State on the ground that the acts complained of do not constitute an offence under Netherlands law. The consequence of that legislation is that a convicting judgment handed down in another Member State for acts which do not constitute an offence under Netherlands law can never be recognised. Moreover, the Kingdom of the Netherlands, availing itself of the option provided for in Article 7(4) of Framework Decision 2008/909, has stated that it would not apply Article 7(1) of that framework decision, thereby extending the requirement of double criminality to any offence.

49.It follows that, in practice, any guarantee of return required by the executing judicial authority in the Netherlands, in accordance with Article 5(3) of Framework Decision 2002/584, in the context of a European arrest warrant for acts which do not constitute an offence under Netherlands law and in respect of which that authority has waived its right to rely on the ground for optional non-execution provided for in Article 4(1) of that framework decision, will be rendered ineffective by application of the ground for automatic refusal laid down in Article 2:13 of the WETS.

50.The Netherlands Government stated at the hearing that its national legislation had been amended on this point. According to that government, that amended legislation entered into force on 1 October 2024. Thus, the ground for non-recognition and non-enforcement provided for in Article 9(1)(d) of Framework Decision 2008/909 has, it seems, become optional in the context of the implementation of the guarantee of return referred to in Article 5(3) of Framework Decision 2002/584.

51.That amendment to the Netherlands legislation is welcome in so far as Article 9(1)(d) of Framework Decision 2008/909 provides for an optional ground for non-recognition and non-enforcement. Consequently, that provision cannot be transposed in such a way as to refuse, compulsorily or automatically, the recognition of any convicting judgment for acts which do not constitute an offence under the national law of the executing Member State. In other words, the competent authority of that Member State should have a margin of discretion in applying that ground for refusal in each individual case.

52.It follows from the wording of that provision that ‘the competent authority of the executing State may refuse to recognise the judgment and enforce the sentence, if … the judgment relates to acts which would not constitute an offence under the law of the executing State’. (16) The words ‘may refuse’ clearly indicate that this is an option which is thus available to that authority.

53.In that regard, in the judgment of 11 January 2017, Grundza, (17) the Court expressly stated that that provision provides ‘that it is possible for the competent authority of the executing State to refuse to recognise the judgment handed down in the issuing State and to enforce the sentence imposed in that State if the condition of double criminality is not met’. (18)

54.It should be noted that Article 4(1) of Framework Decision 2002/584 contains a ground for optional non-execution of a European arrest warrant which is also based on the requirement of double criminality and that that provision is drafted in similar terms to Article 9(1)(d) of Framework Decision 2008/909.

55.In that regard, I would point out that Framework Decision 2002/584 expressly sets out, in Article 3 thereof, the grounds for mandatory non-execution of the European arrest warrant, and in Articles 4 and 4a, the grounds for optional non-execution of that warrant.

56.As regards the grounds for optional non-execution of the European arrest warrant listed in Article 4 of Framework Decision 2002/584, it is clear from the case-law of the Court that, when transposing that framework decision into national law, the Member States have a margin of discretion. Therefore, they are free to transpose those grounds into their domestic law or not to do so. They may also choose to limit the situations in which the executing judicial authority may refuse to execute a European arrest warrant, thereby facilitating the surrender of requested persons, in accordance with the principle of mutual recognition set out in Article 1(2) of that framework decision. (19)

57.Moreover, it should be observed that, according to Article 4 of Framework Decision 2002/584, the executing judicial authority ‘may refuse’ to execute a European arrest warrant on the grounds listed in paragraphs 1 to 7 of that article which include, inter alia, in paragraph 1 of that article, the absence of double criminality.

58.It is therefore clear from the wording of Article 4 of that framework decision that the executing judicial authority must have a margin of discretion as to whether or not it is appropriate to refuse to execute the European arrest warrant on the grounds referred to in Article 4. (20)

59.According to the Court, it follows that, when they do opt to transpose one or more of the grounds for optional non-execution provided for in Article 4 of Framework Decision 2002/584, Member States cannot provide that judicial authorities are required to refuse to execute any European arrest warrant formally falling within the scope of those grounds, without those authorities having the opportunity to take into account the circumstances specific to each case. (21)

60.In my view, that interpretation may be extended to Article 9(1)(d) of Framework Decision 2008/909, in the light of the similarities between the wording of that provision and that of Article 4(1) of Framework Decision 2002/584.

61.The finding that that provision cannot be interpreted as providing a mandatory ground for non-recognition of judgments and non-enforcement of sentences does not, however, fully answer the questions raised by the national court.

Where the option offered by Article 9(1)(d) of Framework Decision 2008/909 is implemented by the competent authority of the executing Member State, the guarantee of return which was required at the stage of surrender cannot be followed up, with the consequence that the sentenced person will not be able to serve his or her custodial sentence or measure involving deprivation of liberty in the territory of that Member State. The objective of facilitating the social rehabilitation of that person, which justifies triggering the mechanism of surrender with a guarantee of return, as provided for in Article 5(3) of Framework Decision 2002/584, is then liable to be undermined at the stage of recognition of the convicting judgment.

64.The referring court is therefore asking the Court to clarify whether it is compatible with Article 25 of Framework Decision 2008/909 for the competent authority of the executing Member State to have the option – and not be obliged – to refuse, on the ground provided for in Article 9(1)(d) of that framework decision, to recognise and enforce a judgment delivered following a surrender with a guarantee of return which is effected pursuant to Article 5(3) of Framework Decision 2002/584.

65.I consider that such an option should not, in principle, be permitted in the absence of a change in circumstances capable of justifying a reassessment, from the point of view of the social rehabilitation of the sentenced person, of the initial assessment of the executing judicial authority which led it to refrain from relying on the ground for optional non-execution provided for in Article 4(1) of Framework Decision 2002/584 and to implement the mechanism of surrender with a guarantee of return provided for in Article 5(3) of that framework decision. There are several reasons why I support such a solution.

66.In the first place, I would point out that, like Framework Decision 2002/584, Framework Decision 2008/909 gives concrete expression, in criminal matters, to the principles of mutual trust and mutual recognition. That framework decision further develops judicial cooperation concerning the recognition and enforcement of criminal judgments where persons were sentenced to a custodial sentence or a measure involving deprivation of liberty in another Member State, with a view to facilitating their social rehabilitation. (22)

67.In accordance with Article 3(1) thereof, the purpose of that framework decision is to establish the rules under which a Member State, with a view to facilitating the social rehabilitation of the sentenced person, is to recognise a judgment and enforce the sentence delivered by a court of another Member State.

68.For that purpose, Article 8 of Framework Decision 2008/909 provides that the competent authority of the executing Member State is, in principle, required to grant the request seeking recognition of a judgment and enforcement of a custodial sentence or a measure involving deprivation of liberty handed down in another Member State, which has been forwarded in accordance with Articles 4 and 5 of that framework decision. That authority may, in principle, refuse to give effect to such a request only on the grounds for non-recognition and non-enforcement exhaustively listed in Article 9 of Framework Decision 2008/909. (23)

69.Any exception to the principle of mutual recognition must be interpreted strictly. (24) Thus, with regard to Article 9(1)(d) of Framework Decision 2008/909, the Court has held that the condition of double criminality is an exception to the general rule of recognition of judgments and enforcement of sentences. Accordingly, the scope of the grounds for refusing to recognise a judgment or enforce a sentence, on the basis of lack of double criminality, as provided for in that provision, must be interpreted strictly in order to limit cases of non-recognition and non-enforcement. (25)

70.As the Court has already clarified, a strict interpretation of Article 9(1)(d) of Framework Decision 2008/909 contributes to the attainment of that objective of facilitating the social rehabilitation of the sentenced person, which is pursued by Framework Decision 2008/909, as stated in Article 3(1) thereof. (26)

71.That objective is also pursued by Article 5(3) of Framework Decision 2002/584, which provides for the possibility for the executing judicial authority to decide that a sentence imposed must be enforced in the territory of the executing Member State. (27) That provision seeks to increase the chances of social reintegration of the national or resident of the executing Member State by allowing him or her to serve, in its territory, the custodial sentence or detention order which, after his or her surrender, under a European arrest warrant, will, if appropriate, be imposed on him or her in the issuing Member State. (28)

72.The decision to implement the mechanism of surrender with a guarantee of return, provided for in Article 5(3) of Framework Decision 2002/584, is based on an overall assessment of the chances of social reintegration in the issuing Member State and in the executing Member State, having regard to the connections that the person concerned has with each of those two States. (29)

73.The judicial authority executing the European arrest warrant must therefore be able to assess, by taking into account the specific circumstances of each case, whether the connections between that person and the executing Member State are sufficient for the objective of social rehabilitation pursued by that provision to be better achieved by that person serving any sentence that might be imposed on him or her in that Member State. (30)

74.In making that assessment, the executing judicial authority has to weigh up a number of interests, such as those relating to the social rehabilitation of the requested person, following his or her possible conviction, the need to avoid impunity of that person and the absence of double criminality. (31)

75.If that authority decides to implement the mechanism of surrender with a guarantee of return, as provided for in Article 5(3) of Framework Decision 2002/584, by refraining from relying on the ground for optional non-execution referred to in Article 4(1) of that framework decision, that is because it considers that the interests relating to social rehabilitation and combating impunity should take precedence over the finding that the act in question is not punishable under its national law.

76.In the circumstances of the dispute in the main proceedings, the referring court does consider that, having regard to YM’s connections with the Netherlands, the objective of facilitating his social reintegration requires that he serve his sentence in the territory of that Member State. Therefore, that court intends to refrain from relying on Article 4(1) of Framework Decision 2002/584, while questioning whether the guarantee of return which it requires can be given effect in the light of the power which the competent authority of the executing Member State will then have to refuse to recognise the convicting judgment on the basis of Article 9(1)(d) of Framework Decision 2008/909.

77.In order to reduce that uncertainty, it is important to lay down the rule that the balancing exercise thus carried out by the executing judicial authority at the stage of the execution of the European arrest warrant should not, in principle, be capable of being called into question at the stage of recognition of the convicting judgment handed down following that arrest warrant. Thus, the possibility of relying on the ground for non-recognition and non-enforcement referred to in that provision should be subject to strict regulation where the mechanism of surrender with a guarantee of return, provided for in Article 5(3) of Framework Decision 2002/584, has been implemented.

78.That means that, in the absence of a change in circumstances capable of affecting the interest in the sentenced person serving his or her sentence in the territory of the executing Member State in order to enhance his or her social rehabilitation, the competent authority of the executing Member State should not be able to rely on the ground for non-recognition and non-enforcement in Article 9(1)(d) of Framework Decision 2008/909.

79.In the second place, such a solution is justified by the logic inherent in the mechanism of surrender with a guarantee of return provided for in Article 5(3) of Framework Decision 2002/584. That mechanism is based on a double commitment, which can be articulated as follows: by making surrender conditional on a guarantee of return, the executing Member State undertakes, implicitly but necessarily, to enforce, in principle, the custodial sentence or measure involving deprivation of liberty which, if appropriate, will be handed down in the issuing Member State. For its part, when it provides a guarantee of return, the latter Member State undertakes in advance to return the sentenced person to the executing Member State in order to serve there that custodial sentence or detention order. (32) The rule that the ground for non-recognition and non-enforcement contained in Article 9(1)(d) of Framework Decision 2008/909 should not, in principle, be capable of being relied on when implementing the guarantee of return provided for in Article 5(3) of Framework Decision 2002/584 ensures that, in the absence of new circumstances, that double commitment will be complied with and given effect.

80.In the third place, account must be taken of Article 25 of Framework Decision 2008/909, which governs the coordination between that framework decision and Framework Decision 2002/584. I would point out that, in accordance with that article, the provisions of Framework Decision 2008/909 are to apply, mutatis mutandis, to the extent that they are compatible with the provisions of Framework Decision 2002/584, to the enforcement of sentences, in particular, where, acting under Article 5(3) of the latter framework decision, a Member State imposes, as a condition for the execution of a European arrest warrant, that the person concerned must be returned to that State in order to serve there the custodial sentence or detention order which, where appropriate, will be passed against him or her in the issuing Member State, so as to avoid impunity of the person concerned.

81.It follows from that provision that, as is the case for the implementation by the executing authority of the ground for optional non-execution provided for in Article 4(6) of Framework Decision 2002/584, the enforcement of sentences following the implementation of the guarantee of return provided for in Article 5(3) of that framework decision presupposes compliance with the procedure and conditions laid down in Framework Decision 2008/909 for the recognition and enforcement of a judgment in criminal matters in a Member State other than the sentencing Member State. (33)

82.The connection between the procedures laid down in Framework Decision 2002/584 and in Framework Decision 2008/909 when implementing the guarantee of return provided for in Article 5(3) of the first of those framework decisions is also confirmed by part (f) of the model certificate contained in Annex I to Framework Decision 2008/909. That certificate is forwarded with the judgment, for the purposes of the recognition and enforcement of that judgment, and it must make reference to that guarantee of return where it has been provided by the issuing Member State. It follows that the enforcement of a sentence which follows the grant of that guarantee requires the sentencing Member State to forward the judgment and the certificate, in accordance with the rules laid down by that framework decision.

83.The Court stated in its judgment in SF that the coordination provided for by the EU legislature between Framework Decision 2002/584 and Framework Decision 2008/909 must contribute to achieving the objective of facilitating the social rehabilitation of the person concerned. It also pointed out that such rehabilitation is in the interest not only of the convicted person but also of the European Union in general. (34) That conception of the coordination between those two framework decisions as being intended to promote that objective reinforces the need to place strict limits on the use of the ground for refusal referred to in Article 9(1)(d) of Framework Decision 2008/909 where the mechanism of surrender with a guarantee of return is implemented in accordance with Article 5(3) of Framework Decision 2002/584.

84.That is all the more true as it follows from Article 25 of Framework Decision 2008/909 that the provisions of that framework decision are applicable to the extent they are compatible with Framework Decision 2002/584, which implies a requirement of consistency in the implementation of those two framework decisions. In my view, that requirement of consistency would not be satisfied if, in the absence of a change in circumstances which would justify reassessing the initial assessment of the executing judicial authority which led it to give precedence to the interest linked in the social rehabilitation of the person concerned over that linked to the absence of double criminality, the competent authority of the executing Member State could decide, at the stage of recognition of the judgment with a view to enforcing the sentence, to give precedence to that latter interest by relying on the ground for non-recognition and non-enforcement provided for in Article 9(1)(d) of Framework Decision 2008/909.

85.In the fourth place, it should be noted that, in accordance with Article 1(1) of Framework Decision 2002/584, the aim of the mechanism of the European arrest warrant is to enable the arrest and surrender of a requested person, in the light of the objective pursued by the framework decision, so that the crime committed does not go unpunished and that that person is prosecuted or serves the custodial sentence ordered against him or her. (35) Thus, the objective of the mechanism of the European arrest warrant is, inter alia, to combat the impunity of a requested person who is present in a territory other than the one in which he or she is suspected of having committed an offence. (36)

86.I would add that, under Article 25 of Framework Decision 2008/909, the coordination between that framework decision and Framework Decision 2002/584 must also aim to avoid impunity of the person concerned.

87.It follows from the emphasis placed on the latter objective, which is the main objective of the surrender mechanism established by that framework decision, that the appropriate way of coordinating that framework decision and Framework Decision 2008/909 must, in each case, be determined by taking into account not only the objective of facilitating the social rehabilitation of the sentenced person, but also the objective of combating impunity.

88.As regards acts which do not constitute a criminal offence under the law of the executing Member State, the fact that the executing judicial authority does not surrender the requested person by relying on Article 4(1) of Framework Decision 2002/584 has the effect of undermining the objective of combating impunity. For that reason, Article 9(1)(d) of Framework Decision 2008/909 must be interpreted in such a way which, by favouring surrender, enables that objective to be achieved, which means strictly limiting the possibility of relying on that provision when implementing the guarantee of return provided for in Article 5(3) of Framework Decision 2002/584. Otherwise, the executing judicial authority could be dissuaded from triggering the mechanism of conditional surrender provided for in that provision, which would undermine the objective of combating impunity. It is, in that regard, telling that the referring court raises the possibility of reviewing its decision to surrender the requested person.

89.It follows from the foregoing that, in a situation where, in the absence of double criminality, the executing judicial authority does not make use of the option of relying on the ground for non-execution provided for in Article 4(1) of Framework Decision 2002/584 and surrenders the requested person by making that surrender subject to a guarantee of return, in accordance with Article 5(3) of that framework decision, the competent authority of the executing Member State cannot, in principle, at the stage of recognition and enforcement of the convicting judgment handed down in respect of that person, rely on the ground for non-recognition and non-enforcement referred to in Article 9(1)(d) of Framework Decision 2008/909, which is also based on the absence of double criminality.

90.While accepting, in accordance with that solution, that the assessment initially carried out by the executing judicial authority should, in the absence of new circumstances, be taken into account and given effect at the stage of recognition of the convicting judgment, the Netherlands Government nevertheless submits that, in view of the significant period which may separate the decision on surrender and the decision recognising the convicting judgment, it is necessary to take into account, at the time when the latter decision is taken, the actual and current situation of the person concerned in the light of the objective of facilitating the social rehabilitation of that person.

91.Accordingly, that government submits, in essence, that a new balancing of interests should be possible at the stage of recognition of the judgment and enforcement of the sentence, in accordance with Framework Decision 2008/909. It is possible that, because of new circumstances which have arisen since the guarantee of return was drawn up, such as the loss of the right of residence of the person concerned in the executing Member State or a change in that person’s personal or family circumstances, the enforcement of the sentence in that Member State would no longer be conducive to that person’s social rehabilitation in that Member State. According to that government, the reason why the executing judicial authority decided, at the stage of examining the European arrest warrant, to refrain from invoking the ground for optional non-execution mentioned in Article 4(1) of Framework Decision 2002/584, might have disappeared. It would then once again be possible for the competent authority of the executing Member State to invoke the ground for non-recognition and non-enforcement provided for in Article 9(1)(d) of Framework Decision 2008/909.

92.At the hearing, the Commission also acknowledged that the legal or factual situation of the person concerned may have changed, with the result that, in order to ensure better social rehabilitation of that person, the custodial sentence or measure involving deprivation of liberty should be served in the sentencing Member State. In such a situation, the competent authority of the executing Member State could therefore, in exceptional circumstances, rely on the ground for non-recognition and non-enforcement provided for in Article 9(1)(d) of Framework Decision 2008/909, even if the absence of double criminality was not invoked at the surrender stage. In that regard, the Commission stated that the opposite solution would result in preventing the attainment of the objective of facilitating the social rehabilitation of the sentenced person.

93.Like the Netherlands Government and the Commission, I acknowledge that an exception should be made to the rule that the ground for non-recognition and non-enforcement set out in Article 9(1)(d) of Framework Decision 2008/909 cannot, in principle, be relied on when implementing the guarantee of return provided for in Article 5(3) of Framework Decision 2002/584. (37)

A change in circumstances in respect of the sentenced person’s legal or factual situation, contributing to a reduction in or disappearance of that person’s connections with the executing Member State, may justify, at the stage of recognition of the convicting judgment under Framework Decision 2008/909, in order to improve the social rehabilitation of that person, the custodial sentence or measure involving deprivation of liberty being enforced in the territory of the sentencing Member State rather than in that of the executing Member State. Thus, it is important to ensure that such recognition still meets, at that stage, the objective of that framework decision, namely to facilitate the social rehabilitation of the sentenced person. If this is no longer the case, there is no longer any reason to prevent the competent authority of the executing Member State from making use of the option available to it under Article 9(1)(d) of Framework Decision 2008/909.

95.It should be noted that, in such a situation, Article 25 of that framework decision does not preclude the application of Article 9(1)(d) thereof, in so far as, because of a change in circumstances, the implementation of the guarantee of return which was initially required on the basis of different circumstances is no longer justified. (38) The mechanism of surrender with a guarantee of return provided for in Article 5(3) of Framework Decision 2002/584 is therefore not undermined. Moreover, the objective of combating impunity is not affected since the sentenced person will serve his or her sentence in the sentencing Member State.

96.To sum up, it seems to me that it is the objectives of facilitating the social reintegration of the convicted person and combating impunity which must, in each specific case, guide the coordination between Framework Decision 2002/584 and Framework Decision 2008/909.

97.Thus, those two objectives justify, in principle, the competent authority of the executing Member State not being able to rely on Article 9(1)(d) of Framework Decision 2008/909, at the stage of recognition of the convicting judgment, when implementing the guarantee of return to which the surrender is subject, in accordance with Article 5(3) of Framework Decision 2002/584. To allow the possibility of relying on Article 9(1)(d) of Framework Decision 2008/909 in a manner that is too broad would be detrimental to the social rehabilitation of the sentenced person and would undermine the objective of combating impunity, since it could dissuade the executing judicial authority from implementing the mechanism of surrender with a guarantee of return, the latter then potentially being bound to fail.

98.Those same objectives justify, however, allowing an exception where, in the light of the objective of promoting the social rehabilitation of the sentenced person, the implementation of the guarantee of return has lost its raison d’être.

99.One final point must be made.

100.As was pointed out inter alia by the Commission at the hearing, it is likely that, in most cases, a change in circumstances which would justify the custodial sentence or measure involving deprivation of liberty ultimately being enforced in the sentencing Member State will be established and taken into account even before the competent authority of the executing Member State considers the possibility of relying on one of the grounds for non-recognition and non-enforcement set out in Article 9(1) of Framework Decision 2008/909.

101.It should be recalled, in that regard, that the guarantee of return must, in accordance with Article 25 of Framework Decision 2008/909, be effected in accordance with the rules laid down in that framework decision. Article 4(2) to (5) thereof organises the dialogue between the competent authorities of the issuing Member State and the executing Member State with a view to determining in which of those two Member States the custodial sentence or measure involving deprivation of liberty should be served so as to facilitate the social rehabilitation of the sentenced person.

102.Although the existence of a guarantee of return required and obtained in accordance with Article 5(3) of Framework Decision 2002/584 entails an adaptation of the procedure laid down in those provisions, in so far as the competent authority of the issuing Member State should, in principle, in accordance with the undertaking given by it at the surrender stage, be required to forward the judgment together with the certificate, it is possible that a change in circumstances may result in that guarantee of return having to be lifted and the recognition procedure not having to be initiated or completed.

103.In that regard, I would point out that, under Article 5(3) of Framework Decision 2002/584, the person concerned must be heard before being returned to the executing Member State in order to serve there the custodial sentence or detention order imposed on him or her in the issuing Member State. It is conceivable that that person will report a change in his or her situation which would justify him or her serving his or her sentence in the latter Member State.

104.Moreover, since it is clear from consultations between the competent authorities of the sentencing Member State and the executing Member State that, in order to facilitate better social rehabilitation of the sentenced person, the custodial sentence or measure involving deprivation of liberty imposed on him or her should be served in the first of those Member States, it is likely that those authorities will agree that the guarantee of return provided for in Article 5(3) of Framework Decision 2002/584 has lost its raison d’être and must therefore be waived. This will mean that either the competent authority of the sentencing Member State will not forward the judgment and the certificate, or, if they have already been forwarded, that authority will decide to withdraw the certificate, which will terminate the recognition procedure. Consequently, the competent authority of the executing Member State will not have to consider whether it is appropriate to rely on one of the grounds for non-recognition and non-enforcement referred to in Article 9(1) of Framework Decision 2008/909.

105.It is, in fact, only in a situation where, despite those consultations between the competent authorities of the sentencing Member State and the executing Member State, the procedure for recognition of the convicting judgment has been initiated and has not been interrupted that the competent authority of the latter Member State might be required, where appropriate and within the limits described above, to rely on the ground for non-recognition and non-enforcement referred to in Article 9(1)(d) of Framework Decision 2008/909.

In the light of all the foregoing considerations, I propose that the Court should answer the question referred for a preliminary ruling by the rechtbank Amsterdam (District Court, Amsterdam, Netherlands) as follows:

Article 5(3) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009, and Article 9(1)(d) and Article 25 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, as amended by Framework Decision 2009/299,

must be interpreted as meaning that in a situation where, in the absence of double criminality, the executing judicial authority does not make use of the option of relying on the ground for non-execution provided for in Article 4(1) of Framework Decision 2002/584, as amended by Framework Decision 2009/299, and surrenders the requested person by making that surrender subject to a guarantee of return, in accordance with Article 5(3) of Framework Decision 2002/584, the competent authority of the executing Member State cannot, in principle, at the stage of recognition and enforcement of the convicting judgment handed down in respect of that person, rely on the ground for non-recognition and non-enforcement referred to in Article 9(1)(d) of Framework Decision 2008/909, as amended by Framework Decision 2009/299, which is also based on the absence of double criminality.

However, where there has been a change in circumstances occurring after the surrender such as to justify the custodial sentence or measure involving deprivation of liberty being executed in the issuing Member State rather than in the executing Member State and where, despite that change in circumstances, the guarantee of return has not been lifted following consultations between the competent authorities of those two Member States, in accordance with Article 4(2) to (5) of Framework Decision 2008/909, as amended by Framework Decision 2009/299, Article 25 of Framework Decision 2008/909 must be interpreted as not precluding the competent authority of the executing Member State from having the possibility of relying on the ground for non-recognition and non-enforcement provided for in Article 9(1)(d) of that framework decision.

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1Original language: French.

iThe name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings.

2OJ 2008 L 327, p. 27.

3OJ 2009 L 81, p. 24; ‘Framework Decision 2008/909’.

4OJ 2002 L 190, p. 1.

5‘Framework Decision 2002/584’.

6With regard to the relationship between those two framework decisions in the event that the ground for optional non-execution referred to in Article 4(6) of Framework Decision 2002/584 is relied on, I refer to my Opinion in C.J. (Enforcement of a sentence further to an EAW) and Procura generale presso la Corte d’appello di Napoli and Others (C‑305/22 and C‑595/23, EU:C:2024:1030), which refers to my Opinion in C.J. (Enforcement of a sentence further to an EAW) (C‑305/22, EU:C:2024:508).

7See Declaration by the Netherlands pursuant to Article 7(4) of Framework Decision 2008/909 of 20 September 2012, reproduced in the cover note of 1 October 2012 from F. Teeven, Staatssecretaris van Veiligheid en Justitie (State Secretary for Security and Justice, Netherlands), Ministerie van Veiligheid en Justitie (Ministry of Security and Justice, Netherlands) to Rafael Fernández-Pita y González, Director-General of the Council, concerning the notification of the implementation of Framework Decision 2008/909 by the Netherlands (document No 14427/12), available at: https://data.consilium.europa.eu/doc/document/ST‑14427-2012-INIT/en/pdf.

8Stb. 2004, No 195.

9Stb. 2021, No 125.

10Stb. 2000, No 495.

11OJ 2017 L 283, p. 1.

12Stb. 2012, No 333.

13See footnote 9 to this Opinion.

14Stb. 1827, No 20.

15The national court refers to the judgment of 11 March 2020, SF (European arrest warrant – Guarantee of return to the executing State) (C‑314/18, ‘the judgment in SF’, EU:C:2020:191, paragraph 41).

16Emphasis added.

17C‑289/15, EU:C:2017:4.

18See judgment of 11 January 2017, Grundza (C‑289/15, EU:C:2017:4, paragraph 29). Emphasis added.

19See, inter alia, judgment of 6 June 2023, O. G. (European arrest warrant issued against a third-country national) (C‑700/21, EU:C:2023:444, paragraph 35 and the case-law cited).

20See, inter alia, judgment of 29 April 2021, X (European arrest warrant – Ne bis in idem) (C‑665/20 PPU, EU:C:2021:339, paragraph 43 and the case-law cited).

21See judgment of 29 April 2021, X (European arrest warrant – Ne bis in idem) (C‑665/20 PPU, EU:C:2021:339, paragraph 44).

22See judgment of 9 November 2023, Staatsanwaltschaft Aachen (C‑819/21, EU:C:2023:841, paragraph 19).

23See judgment of 9 November 2023, Staatsanwaltschaft Aachen (C‑819/21, EU:C:2023:841, paragraph 20).

24See, inter alia, judgments of 29 April 2021, X (European arrest warrant – Ne bis in idem) (C‑665/20 PPU, EU:C:2021:339, paragraph 39); of 14 July 2022, Procureur général près la cour d’appel d’Angers (C‑168/21, EU:C:2022:558, paragraph 40); and of 6 June 2023, O. G. (European arrest warrant issued against a third-country national) (C‑700/21, EU:C:2023:444, paragraph 33).

25See judgment of 11 January 2017, Grundza (C‑289/15, EU:C:2017:4, paragraph 46).

26See judgment of 11 January 2017, Grundza (C‑289/15, EU:C:2017:4, paragraph 51).

27See judgment in SF (paragraph 41).

28See judgment in SF (paragraph 48), and order of 16 November 2023, PY (Third-country national in the executing Member State) (C‑636/22, EU:C:2023:899, paragraph 37).

29As regards Article 4(6) of Framework Decision 2002/584, see judgment of 6 June 2023, O. G. (European arrest warrant issued against a third-country national) (C‑700/21, EU:C:2023:444, paragraphs 53 to 68). As regards Article 5(3) of that framework decision, see order of 16 November 2023, PY (Third-country national in the executing Member State) (C‑636/22, EU:C:2023:899, paragraphs 42 and 43).

30See order of 16 November 2023, PY (Third-country national in the executing Member State) (C‑636/22, EU:C:2023:899, paragraph 39). The executing judicial authority’s examination of whether there is a legitimate interest which justifies the custodial sentence or detention order imposed in the issuing Member State being enforced on the territory of the executing Member State must be carried out by means of an overall assessment of all of the specific elements characterising the situation of the requested person capable of showing that there are connections between that person and the executing Member State that may lead to the conclusion that that person is sufficiently integrated into that State such that the execution, in the executing Member State, of the custodial sentence or detention order pronounced against him or her in the issuing Member State will contribute to the attainment of the objective of social rehabilitation pursued by Article 5(3) of Framework Decision 2002/584. Those elements include the family, linguistic, cultural, social or economic links that the requested person has with the executing Member State as well as the nature, duration and conditions of his or her stay in that Member State. See, inter alia, by analogy with regard to Article 4(6) of Framework Decision 2002/584, judgment of 6 June 2023, O. G. (European arrest warrant issued against a third-country national) (C‑700/21, EU:C:2023:444, paragraphs 60 to 62 and 65 and the case-law cited).

31The Court has already pointed out that the objective of facilitating the social rehabilitation of the person concerned, pursued by Article 5(3) of Framework Decision 2002/584, must be balanced against other interests, in particular the effectiveness of the criminal prosecution for the purpose of ensuring a complete and effective punishment of the offence underlying the European arrest warrant: see judgment in SF (paragraph 56). As Advocate General Pikamäe observed in relation to Article 5(3) of Framework Decision 2002/584 in his Opinion in SF (European arrest warrant – Guarantee of return to the executing State)

(C‑314/18, EU:C:2019:427, point 61), ‘the objective of facilitating the social reintegration of the convicted person is therefore not absolute and may be weighed against other requirements’.

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Return by the issuing Member State may take place only after the conviction decision has become final: see judgment in SF (paragraphs 52 and 53).

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See also, in this regard, Commission Notice – Handbook on how to issue and execute a European Arrest Warrant (OJ C C/2023/1270), Sections 2.5.2 and 5.9.2, from which it is apparent that, in the situation referred to in Article 5(3) of Framework Decision 2002/584, for transferring the sentence to the executing Member State where it is executed, the procedure and conditions required by Framework Decision 2008/909 are to be applied. That led the Court, in particular, to hold that Article 25 of Framework Decision 2008/909 must be interpreted as meaning that, when the execution of a European arrest warrant issued for the purposes of criminal proceedings is subject to the condition set out in Article 5(3) of Framework Decision 2002/584, the executing Member State can, in order to enforce a custodial sentence or a detention order imposed in the issuing Member State on the person concerned, adapt the duration of that sentence or detention only within the strict conditions set out in Article 8(2) of Framework Decision 2008/909: see judgment in SF (paragraph 68).

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See judgment in SF (paragraph 51).

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See, inter alia, judgment in SF (paragraph 47 and the case-law cited).

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See judgment of 18 April 2023, E.D.L. (Ground for refusal based on illness) (C‑699/21, EU:C:2023:295, paragraph 44).

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More generally, I would point out that, at the surrender stage, the executing judicial authority cannot be certain that the sentence that may be imposed will be enforceable on the territory of the executing Member State. Depending on the type of sentence, certain grounds for non-recognition and non-enforcement may become relevant. That is the case, for example, with Article 9(1)(k) of Framework Decision 2008/909, which provides for the situation where the sentence imposed includes a measure of psychiatric or health care or another measure involving deprivation of liberty, which, notwithstanding Article 8(3) of that framework decision, cannot be executed by the executing State in accordance with its legal or health care system.

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I would add that the second sentence of recital 12 of Framework Decision 2008/909 is illustrative, as indicated by the expression ‘inter alia’, and cannot therefore be taken as an indication that Article 9(1)(d) of that framework decision cannot under any circumstances be relied on in the context of the implementation of the guarantee of return provided for in Article 5(3) of Framework Decision 2002/584.