Opinion of Advocate General Emiliou delivered on 4 May 2023.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2023:386
• Date: 04 May 2023
• Celex Number: 62021CC0819
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

EMILIOU

delivered on 4 May 2023(1)

Case C‑819/21

Staatsanwaltschaft Aachen

joined parties:

MD

(Request for a preliminary ruling from the Landgericht Aachen (Regional Court, Aachen, Germany))

(Reference for a preliminary ruling – Framework Decision 2008/909/JHA – Judicial cooperation in criminal matters – Custodial sentence imposed in a Member State in which, in the view of the court in the executing Member State, the judicial system no longer guarantees the right to a fair trial – Possibility of refusing the enforcement of a foreign judgment)

I. Introduction

1. MD is a Polish national who was sentenced by the Sąd Rejonowy Szczecin-Prawobrzeże (District Court, Szczecin-Prawobrzeże, Poland) to a six-month custodial sentence. The initial suspension of that sentence was subsequently revoked by the same court and, in order to enforce that sentence, the Sąd Okregowy Szczecin (Regional Court, Szczecin, Poland) issued a European arrest warrant (‘EAW’) on the basis of which MD was arrested in Germany. However, execution of that EAW was refused by the German authorities on the ground that MD’s habitual residence was in Germany. Therefore, the competent Polish court requested the German authorities to enforce the sentence imposed upon MD in accordance with the regime established by Framework Decision 2008/909/JHA. (2)

2. The Landgericht Aachen (Regional Court, Aachen, Germany), the referring court in the present case, seeks clarification as to whether it may refuse such a request, given the situation that has arisen from the controversial judicial reforms in Poland, which have given rise to several judgments of this Court. That situation causes the referring court to doubt whether MD’s right to a fair trial can be considered to be safeguarded in a context where, according to the referring court, generalised deficiencies affect the rule of law and the requirement of independence of that Member State’s judiciary.

3. The referring court enquires more specifically as to the applicability, to the mutual recognition regime established by Framework Decision 2008/909, of the case-law of the Court, relating to the EAW Framework Decision, (3) according to which the execution of such a warrant may exceptionally be refused, beyond the grounds expressly provided for therein, where it appears, following a two-step examination (the nature of which will be explained and discussed in this Opinion) that such an execution would result in a real risk of breach of the fundamental right to a fair trial guaranteed by the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’). (4) In that respect, the referring court seeks clarity on the conditions under which such an examination is to be carried out, and the appropriate point in time by reference to which it ought to be carried out.

II. Legal framework

4. The first sentence of the second paragraph of Article 47 of the Charter states that ‘everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law’.

5. Article 3(4) of Framework Decision 2008/909 states that the latter ‘shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 [TEU]’.

6. Article 4(1)(a) to (c) of that framework decision lists three different categories of executing Member States to which a request for recognition of a judgment and enforcement of a sentence may be forwarded. These are (a) the Member State of nationality of the sentenced person in which he or she lives; or (b) the Member State of nationality, to which, while not being the Member State where he or she lives, the sentenced person will be deported, once he or she is released from the enforcement of the sentence on the basis of an expulsion or deportation order included in the judgment or in a judicial or administrative decision or any other measure taken consequential to the judgment; or (c) any Member State other than a Member State referred to in (a) or (b), the competent authority of which consents to the forwarding of the judgment and the certificate to that Member State.

7. Article 8(1) states that ‘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’.

8. Points (a) to (l) of Article 9(1) of Framework Decision 2008/909 list grounds allowing ‘the competent authority of the executing [Member] State [to] refuse to recognise the judgment and enforce the sentence’.

III. Facts, national proceedings and the questions referred

9. MD is a Polish national whose habitual residence is in Germany. On 7 August 2018, the Sąd Rejonowy Szczecin-Prawobrzeże (District Court, Szczecin-Prawobrzeże) imposed on him a custodial sentence of six months and suspended the execution of that sentence with probation (‘the initial judgment’). MD was not present at the trial.

10. By order of 16 July 2019, that same court revoked the suspension and ordered the execution of the custodial sentence.

11. On 17 December 2020, the Generalstaatsanwaltschaft Köln (General Prosecutor’s Office, Cologne, Germany) decided not to execute the EAW issued by the Sąd Okregowy Szczecin (Regional Court, Szczecin) on the ground that MD’s habitual residence was in Germany and that he had objected to his surrender to the Polish authorities. (5)

12. On 26 January 2021, the Sąd Okregowy Szczecin (Regional Court, Szczecin) sent to the Generalstaatsanwaltschaft Berlin (General Prosecutor’s Office, Berlin, Germany) a certified copy of the initial judgment, together with the certificate referred to in Article 4 of Framework Decision 2008/909 for the purposes of the execution of the custodial sentence imposed. Those documents were forwarded to the territorially competent Staatsanwaltschaft Aachen (Public Prosecutor’s Office, Aachen, Germany; ‘the PPO Aachen’).

13. After hearing MD, and taking the view that the conditions for the enforcement of the custodial sentence at issue were met, the PPO Aachen requested that the Landgericht Aachen (Regional Court, Aachen) enforce the initial judgment, in conjunction with the order withdrawing the suspension of the execution of the sentence, and impose a custodial sentence of six months.

14. However, the referring court wonders whether it may refuse the recognition of the judicial decisions at issue and the enforcement of the sentence imposed given that, in its view, objective, reliable, specific and properly updated information on the situation of the judiciary in Poland indicate that there are grounds for believing that the conditions prevailing at the time of the adoption of the initial judgment and of the order withdrawing the probation were (and remain) incompatible with the principle of the rule of law enshrined in Article 2 TEU and the requirement of judicial independence which forms the essence of MD’s fundamental right to a fair trial under the second paragraph of Article 47 of the Charter.

15. In that context, the referring court relies on the Commission’s Proposal on the determination of a clear risk of a serious breach by the Republic of Poland of the rule of law, (6) on the case-law relating to the independence of the Polish judiciary adopted by the Court, (7) by the European Court of Human Rights, and by the national courts. It also draws attention to several situations in which the Polish authorities considered themselves not to be bound by the primacy of EU law.

16. In those circumstances, the Landgericht Aachen (Regional Court, Aachen) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Can a court of the executing Member State which has been called on to rule on a declaration of enforceability refuse, on the basis of Article 3(4) of [Framework Decision 2008/909], in conjunction with the second paragraph of Article 47 of the [Charter], to recognise the judgment of another Member State and to enforce the sentence imposed by that judgment in accordance with Article 8 of [Framework Decision 2008/909] where there are reasons to believe that the conditions prevailing in that Member State at the time of the adoption of the decision to be enforced or of the related subsequent decisions are incompatible with the fundamental right to a fair trial because, in that Member State, the judicial system itself is no longer in conformity with the principle of the rule of law enshrined in Article 2 TEU?

(2) Can a court of the executing Member State which has been called on to rule on a declaration of enforceability refuse, on the basis of Article 3(4) of [Framework Decision 2008/909], in conjunction with the principle of the rule of law enshrined in Article 2 TEU, to recognise the judgment of another Member State and to enforce the sentence imposed by that judgment in accordance with Article 8 of [Framework Decision 2008/909] where there are reasons to believe that the judicial system in that Member State is no longer in conformity with the principle of the rule of law enshrined in Article 2 TEU at the time of the ruling on the declaration of enforceability?

(3) If Question 1 is answered in the affirmative:

Before the recognition of a judgment of a court of another Member State and the enforcement of the sentence imposed by that judgment is refused by reference to Article 3(4) of [Framework Decision 2008/909], in conjunction with the second paragraph of Article 47 of the [Charter], on the ground that there are reasons to believe that the conditions prevailing in that Member State are...