C_202401380EN.000101.fmx.xml

Judgment of the Court (Seventh Chamber) of 21 December 2023 (request for a preliminary ruling from the Kammergericht Berlin — Germany) — in the proceedings relating to the execution of the European arrest warrant issued against LM

(Case C-397/22, (1) Generalstaatsanwaltschaft Berlin (Conviction in absentia))

(Reference for a preliminary ruling - Police and judicial cooperation in criminal matters - Framework Decision 2002/584/JHA - European arrest warrant - Article 4a(1) - Surrender procedure between Member States - Conditions for execution - Grounds for optional non-execution - Exceptions - Mandatory execution - Sentence handed down in absentia - Concept of ‘trial resulting in the decision’ - Person concerned not having appeared in person either at first instance or on appeal - National legislation imposing an absolute prohibition on surrender of the person concerned in the case of a decision rendered in absentia - Obligation to interpret national law in conformity with EU law)

(C/2024/1380)

Language of the case: German

Referring court

Kammergericht Berlin

Parties to the main proceedings

Applicant: Generalstaatsanwaltschaft Berlin

Intervening party: LM

Operative part of the judgment

Article 4a(1)(a)(i) 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, must be interpreted as meaning that, where a summons to appear is served on the person concerned by handing it over to an adult member of his or her household, it is for the issuing judicial authority concerned to provide proof that the person concerned actually received that summons.

Article 4a(1) of Framework Decision 2002/584, as amended by Framework Decision 2009/299, must be interpreted as meaning that the concept of a ‘trial resulting in the decision’, in that provision, relates to appeal proceedings which gave rise to a judgment confirming the decision handed down at first instance and therefore finally disposing of the case. The fact that those appeal proceedings took place without the merits of the case being examined therein is irrelevant in that regard.

Article 4a(1) of Framework Decision 2002/584, as amended by Framework Decision 2009/299, must be interpreted as meaning that national legislation, transposing that provision, which generally precludes an executing judicial authority from executing a European arrest warrant issued for the purposes of executing a sentence, where the person concerned did not appear in person at the trial resulting in the decision concerned, is contrary to that provision of EU law. A national court is required, taking into consideration the whole body of its domestic law and applying the interpretative methods recognised by that law, to interpret that national legislation, to the greatest extent possible, in the light of the text and the purpose of that framework decision.

(1) OJ C 359, 19.9.2022.