YM v Openbaar Ministerie

Provisional text

JUDGMENT OF THE COURT (Fifth Chamber)

15 January 2026 (*)

( Reference for a preliminary ruling – Area of freedom, security and justice – Judicial cooperation in criminal matters – Framework Decision 2002/584/JHA – European arrest warrant issued for the purposes of conducting a criminal prosecution – Article 2(4) – Condition of double criminality – Article 4(1) – Ground for optional non-execution of the European arrest warrant – Article 5(3) – Surrender of the person concerned subject to a guarantee of that person's return to the executing Member State in order to serve there a custodial sentence or detention order passed in the issuing Member State – Objectives – Social rehabilitation – Combating impunity – Framework Decision 2008/909/JHA – Mutual recognition of judgments in criminal matters for the purpose of their enforcement in another Member State – Article 7(3) and (4) – Article 9(1)(d) – Ground for non-recognition of the judgment and non-enforcement of the sentence due to the absence of double criminality – Article 25 – Enforcement of sentences following a European arrest warrant )

In Case C-641/23 [Dubers], (i)

REQUEST for a preliminary ruling under Article 267 TFEU from the rechtbank Amsterdam (District Court, Amsterdam, Netherlands), made by decision of 26 October 2023, received at the Court on 26 October 2023, in the proceedings concerning the execution of a European arrest warrant issued against

YM,

other party:

Openbaar Ministerie,

THE COURT (Fifth Chamber),

composed of M.L. Arastey Sahún, President of the Chamber, J. Passer, E. Regan (Rapporteur), D. Gratsias and B. Smulders, Judges,

Advocate General: J. Richard de la Tour,

Registrar: A. Lamote, Administrator,

having regard to the written procedure and further to the hearing on 15 January 2025,

after considering the observations submitted on behalf of:

– YM, by S.J. Linck and R. Malewicz, advocaten,

– Openbaar Ministerie, by K. van der Schaft and A.L. Wagenaar, officiers van justitie,

– the Netherlands Government, by M.K. Bulterman, A. Hanje and P.P. Huurnink, acting as Agents,

– the Polish Government, by B. Majczyna, acting as Agent,

– the European Commission, by H. Leupold, F. van Schaik, J. Vondung and F. Wilman, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 3 April 2025,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 2(4), Article 4(1) and 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 (OJ 2002 L 190, p. 1), as amended by Council Framework Decision 2009/299/JHA of 26 February 2009 (OJ 2009 L 81, p. 24) ('Framework Decision 2002/584'), and 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 (OJ 2008 L 327, p. 27), as amended by Framework Decision 2009/299 ('Framework Decision 2008/909').

2 The request has been made in the context of proceedings relating to the execution, in the Netherlands, of a European arrest warrant issued by the Sąd Okręgowy w Jeleniej Górze, Wydział III Karny (Regional Court, Jelenia Góra, Criminal Division III, Poland) for the purposes of conducting a criminal prosecution against YM, a Polish national.

Legal context

European Union law

Framework Decision 2002/584

3 Recital 6 of Framework Decision 2002/584 states:

'The European arrest warrant provided for in this Framework Decision is the first concrete measure in the field of criminal law implementing the principle of mutual recognition which the European Council referred to as the "cornerstone" of judicial cooperation.'

4 Article 1 of that framework decision, entitled 'Definition of the European arrest warrant and obligation to execute it', provides, in paragraphs 1 and 2 thereof:

'1. The European arrest warrant is a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order.

2. Member States shall execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of this Framework Decision.'

5 Article 2 of that framework decision, entitled 'Scope of the European arrest warrant', provides, in paragraphs 2 and 4:

'2. The following offences, if they are punishable in the issuing Member State by a custodial sentence or a detention order for a maximum period of at least three years and as they are defined by the law of the issuing Member State, shall, under the terms of this Framework Decision and without verification of the double criminality of the act, give rise to surrender pursuant to a European arrest warrant:

– participation in a criminal organisation,

– terrorism,

– trafficking in human beings,

– sexual exploitation of children and child pornography,

– illicit trafficking in narcotic drugs and psychotropic substances,

– illicit trafficking in weapons, munitions and explosives,

– corruption,

– fraud, including that affecting the financial interests of the European Communities within the meaning of the Convention of 26 July 1995 on the protection of the European Communities' financial interests [(OJ 1995 C 316, p. 49)],

– laundering of the proceeds of crime,

– counterfeiting currency, including of the euro,

– computer-related crime,

– environmental crime, including illicit trafficking in endangered animal species and in endangered plant species and varieties,

– facilitation of unauthorised entry and residence,

– murder, grievous bodily injury,

– illicit trade in human organs and tissue,

– kidnapping, illegal restraint and hostage-taking,

– racism and xenophobia,

– organised or armed robbery,

– illicit trafficking in cultural goods, including antiques and works of art,

– swindling,

– racketeering and extortion,

– counterfeiting and piracy of products,

– forgery of administrative documents and trafficking therein,

– forgery of means of payment,

– illicit trafficking in hormonal substances and other growth promoters,

– illicit trafficking in nuclear or radioactive materials,

– trafficking in stolen vehicles,

– rape,

– arson,

– crimes within the jurisdiction of the International Criminal Court,

– unlawful seizure of aircraft/ships,

– sabotage.

... 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.'

6 That framework decision establishes, in Article 3 thereof, the grounds for mandatory non-execution of a European arrest warrant and, in Articles 4 and 4a, grounds for optional non-execution of such a warrant.

7 Article 4(1) and (6) of Framework Decision 2002/584 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'.

8 Article 5 of that framework decision, entitled 'Guarantees to be given by the issuing Member State in particular cases', provides:

'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.'

Framework Decision 2008/909

9 Recitals 9 and 12 of Framework Decision 2008/909 state:

'(9) Enforcement of the sentence in the executing State should enhance the possibility of social rehabilitation of the sentenced person. In the context of satisfying itself that the enforcement of the sentence by the executing State will serve the purpose of facilitating the social rehabilitation of the sentenced person, the competent authority of the issuing State should take into account such elements as, for example, the person's attachment to the executing State, whether he or she considers it the place of family, linguistic, cultural, social or economic and other links to the executing State.

... (12) 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].'

10 Article 3 of Framework Decision 2008/909, entitled 'Purpose and scope', provides, in paragraph 1 thereof:

'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.'

11 Articles 4 and 5 of that framework decision set out the criteria and the procedure for forwarding a judgment and a certificate to another Member State.

12 Article 7 of that framework decision, entitled 'Double criminality', provides, in paragraphs 1, 3 and 4 thereof:

'1. The following offences, if they are punishable in the issuing State by a custodial sentence or a measure involving deprivation of liberty for a maximum period of at least three years, and as they are defined by the law of the issuing State, shall, under the terms of this Framework Decision and without verification of the double criminality of the act, give rise to recognition of the judgment and enforcement of the sentence imposed:

– participation in a criminal organisation,

– terrorism,

– trafficking in human beings,

– sexual exploitation of children and child pornography,

– illicit trafficking in narcotic drugs and psychotropic substances,

– illicit trafficking in weapons, munitions and explosives,

– corruption,

– fraud, including that affecting the financial interests of the European Communities within the meaning of the Convention of 26 July 1995 on the protection of the European Communities' financial interests,

– laundering of the proceeds of crime,

– counterfeiting currency, including of the euro,

– computer-related crime,

– environmental crime, including illicit trafficking in endangered animal species and in endangered plant species and varieties,

– facilitation of unauthorised entry and residence,

– murder, grievous bodily injury,

– illicit trade in human organs and tissue,

– kidnapping, illegal restraint and hostage-taking,

– racism and xenophobia,

– organised or armed robbery,

– illicit trafficking in cultural goods, including antiques and works of art,

– swindling,

– racketeering and extortion,

– counterfeiting and piracy of products,

– forgery of administrative documents and trafficking therein,

– forgery of means of payment,

– illicit trafficking in hormonal substances and other growth promoters,

– illicit trafficking in nuclear or radioactive materials,

– trafficking in stolen vehicles,

– rape,

– arson,

– crimes within the jurisdiction of the International Criminal Court,

– unlawful seizure of aircraft/ships,

– sabotage.

... 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.'

13 Under Article 8 of Framework Decision 2008/909, entitled 'Recognition of the judgment and enforcement of the sentence', paragraph 1 thereof states:

'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.'

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

'1. 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. ...'

15 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.'

16 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.

Netherlands law

Legislation on the European arrest warrant

17 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 Member States) of 29 April 2004, (Stb. 2004, No 195), which is intended to transpose into Netherlands law Framework Decision 2002/584, in the version applicable to the case in the main proceedings ('the OLW'), provides, in Article 6:

'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 or she may serve that sentence in the Netherlands.

... 3. Paragraph 1 shall also apply to a foreign national who, during the hearing before the rechtbank [(district court)], demonstrates that he or she has been lawfully resident in the Netherlands for a continuous period of at least five years within the meaning of Article 8(a) to (e) and (l) of the [Wet tot algehele herziening van de Vreemdelingenwet (Vreemdelingenwet 2000) (Law on Foreign Nationals of 2000) of 23 November 2000 (Stb. 2000, No 495),] in so far as he or she may be prosecuted in the Netherlands for the offences on which the European arrest warrant is based and in so far as he or she can be expected not to forfeit his or her right of residence in the Netherlands as a result of any sentence or measure which may be imposed on him or her after surrender. Any supporting documents must be submitted in good time prior to the hearing before the rechtbank [(district court)].'

18 Article 7 of the OLW provides:

'1. 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') (OJ 2017 L 283, p. 1)] on suspicion 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.

...' #### Legislation on the recognition and enforcement of sentences

19 The Wet wederzijdse erkenning en tenuitvoerlegging vrijheidsbenemende en voorwaardelijke sancties (Law on the mutual recognition and enforcement of custodial and suspended sentences) of 12 July 2012 (Stb. 2012, No 333), which is intended to transpose into Netherlands law Framework Decision 2008/909, in the version applicable to the case in the main proceedings ('the WETS'), provides, in Article 1:1. thereof:

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

a. "The Minister": the Minister for Security and Justice;

...' 20 In accordance with Article 2:11. of the WETS:

'1. The Minister shall forward the judicial decision and the certificate to the advocaat-generaal bij het ressortsparket [(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.

2. The Advocate General shall immediately present the judicial decision and the certificate to the Specialised Chamber of the Gerechtshof Arnhem-Leeuwarden [(Court of Appeal, Arnhem-Leeuwarden, Netherlands)] referred to in Article 67 of the Wet op de rechterlijke organisatie [(Law on the Organisation of the Judiciary) of 18 April 1827 (Stb. 1827, No 20)]. He or she shall submit to it any observations he or she may wish to make on the abovementioned documents no later than 14 days after the date on which he or she lodged the documents.

3. The Specialised Chamber of the Gerechtshof [(Court of Appeal)] shall assess:

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 Gerechtshof [(Court of Appeal)] shall forward to the Minister the written and reasoned assessment which it has made under paragraph 3.'

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

'1. The Minister shall decide whether to recognise the judicial decision, taking into account the assessment made by the Specialised Division of the Gerechtshof [(Court of Appeal)].

...' 22 Article 2:13. of that law provides:

'1. 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.

...' ## The dispute in the main proceedings and the question referred for a preliminary ruling

23 The Sąd Okręgowy w Jeleniej Górze, Wydział III Karny (Regional Court, Jelenia Góra, Criminal Division III) issued two European arrest warrants against YM for the purpose 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, however, that its reference for a preliminary ruling concerns only the second of those warrants. That warrant was issued for the purpose of conducting a criminal prosecution against the person concerned in respect of a single act, namely the failure of that person to comply with his maintenance obligation in respect of his minor son, in accordance with decisions taken in that regard 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, capable of giving rise to the surrender of the person concerned without verification of the double criminality of the act. In that regard, although the referring court found that that act did not constitute an offence under Netherlands law, it envisages the possibility of not relying on the ground for optional non-execution, based on such a finding, provided for in Article 4(1) of that framework decision.

27 That court takes the view that, since the person concerned, who is a Polish national, has legally resided in the Netherlands for a continuous period of more than five years, he must be regarded as a 'resident' of the Kingdom of the Netherlands, within the meaning of Article 5(3) of Framework Decision 2002/584.

28 Further, the referring court finds that the person concerned 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 his surrender would contribute to increasing his chances of social rehabilitation. The referring 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, has a good command of Dutch and, although he is not currently employed, intends to train as a fitness instructor.

29 Although the referring court initially referred three questions in its request for a preliminary ruling, on 13 February 2024 it adopted a decision to withdraw its first and second questions which was lodged at the Court of Justice on 26 February 2024. According to the explanations provided by the referring court, that decision of partial withdrawal follows the tabling, on 21 December 2023, by the Netherlands Government of the draft law entitled 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 referred by that court.

30 As regards the third question referred for a preliminary ruling, which is now the only question to be answered by the Court, the referring court states that that question 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. As set out in paragraph 26 above, in so far as that court envisages the possibility of not relying on the ground for optional non-execution provided for in Article 4(1) of that framework decision, it refers to the option provided for in Article 5(3) thereof, which would enable it to make the surrender of the person concerned 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 passed against him or her in the issuing Member State.

31 In that regard, the referring court points out that, under the Netherlands legislation applicable on the date of the order for reference, recognition of a conviction handed down in a Member State other than the Kingdom of the Netherlands must be 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 that State.

32 Consequently, where a European arrest warrant is issued for the purposes of a criminal 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 would not be able, notwithstanding the terms of that provision, to serve in the Netherlands the custodial sentence or detention order which may be imposed in the issuing Member State.

33 The referring court considers that that situation is contrary to EU law. It takes the view, in that regard, that in so far as Article 9(1)(d) of Framework Decision 2008/909 provides for an optional ground for non-recognition of a judgment and non-enforcement of the sentence, the Member States are required, when transposing that provision into their legal systems, to allow the competent authorities a margin of discretion, and not to make that ground for refusal mandatory. The court adds that that ground for refusal should be interpreted strictly, in accordance with the objective of facilitating the social rehabilitation of the person concerned, as pursued by that framework decision.

34 Furthermore, in the event of the implementation of a guarantee of return in respect of an act that is not punishable under the law of the executing Member State, that court doubts whether such a margin of discretion is compatible with EU law. In such a situation, the fact that the custodial sentence or detention order cannot be enforced in the territory of the Kingdom of the Netherlands is likely to be contrary to Article 25 of Framework Decision 2008/909.

35 In that regard, the referring court takes the view that, in accordance with Article 25, the provisions of Framework Decision 2002/584 take precedence over those of Framework Decision 2008/909. Further, it is apparent from paragraph 41 of the judgment of 11 March 2020, SF (European arrest warrant – Guarantee of return to the executing State) (C-314/18, EU:C:2020:191), that Article 5(3) of Framework Decision 2002/584 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.

36 In those circumstances, the referring court considers that, where the executing judicial authority has refrained from invoking the ground for optional non-execution of the European arrest warrant based on double criminality, as provided for in Article 4(1) of Framework Decision 2002/584, but has made the surrender of the person concerned subject to a guarantee of return in order to enhance the possibility of the social rehabilitation of that person, in accordance with Article 5(3) of that framework decision, EU law precludes the competent authority of the executing Member State from subsequently refusing to recognise the judgment 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.

37 According to that court, in such a situation, the refusal to execute 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, which is to enhance the possibility of social rehabilitation of the person concerned, and would deprive that provision of any practical effect.

38 Moreover, the referring court states that the answer to that question will influence its decision as to whether or not to surrender the person concerned to the issuing Member State. In particular, should the Court of Justice hold that EU law does not preclude the application of the national provisions in question, 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, in order to enhance the possibility of his social rehabilitation, any custodial sentence or detention order imposed on him in Poland.

39 Therefore, 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 detention order imposed in Poland is liable to conflict with the fact that the act is not punishable under Netherlands law.

40 In its decision of partial withdrawal, referred to in paragraph 29 above, that court sets out in more detail the reasons for its view that an amendment to the Netherlands legislation, making the ground for non-recognition of the judgment and non-enforcement of the sentence in Article 9(1)(d) of Framework Decision 2008/909 optional, would not, however, eliminate the problem which is the subject of the third question referred for a preliminary ruling.

41 According to that court, even in such a situation, the Minister would still have the power to refuse automatically to recognise a judgment from the authorities of the issuing Member State and, therefore, the return of the person concerned to the Netherlands on the ground that the act is not punishable under Netherlands law, in accordance with Article 2:11.(1) and Article 2:13.(1)(f) of the WETS. Further, even if the Minister were not to exercise that power, the referring court states that the specialised chamber of the Gerechtshof Arnhem-Leeuwarden (Court of Appeal, Arnhem-Leeuwarden) would still have the option to refuse to recognise that judgment and, therefore, refuse the return of the person concerned to the Netherlands on the ground that the act is not punishable under Netherlands law, while specifying that, 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 [the] surrender [of the person concerned] for the purpose of [conducting a criminal] prosecution to the issuing Member State [by making that surrender] 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 [of that person] 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?'

Consideration of the question referred

43 As a preliminary point, it must be observed that, among the various provisions of EU law cited in the question referred, the referring court cites the case of a Member State that has applied Article 7(4) of Framework Decision 2008/909. In accordance with that provision, each Member State may, on adoption of that framework decision or later, by a declaration notified to the General Secretariat of the Council, declare that it will not apply paragraph 1 of that article, which provides that the offences referred to therein are, under the terms of that framework decision and without verification of the double criminality of the act, to give rise to recognition of the judgment and enforcement of the sentence imposed.

44 However, in the present case, it is apparent from the information provided by the referring court, as set out in paragraph 25 above, that the European arrest warrant in question in the main proceedings was issued against the person concerned for the purposes of conducting a criminal prosecution concerning the failure of that person to comply with his maintenance obligation in respect of his minor son. Accordingly, it must be stated that the offence which is the subject of that European arrest warrant is not among the offences referred to in Article 7(1) of Framework Decision 2008/909, such that – as is apparent from paragraph 16 above – the fact that, 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 has no bearing on the outcome of the dispute in the main proceedings.

45 Consequently, the view must be taken that, 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 or an option for the competent authority of a Member State to rely on Article 9(1)(d) in order 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 previously decided to execute the European arrest warrant which gave rise to that judgment and that sentence:

– (i) 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 is also based on the absence of double criminality, for an offence covered by Article 2(4) of that framework decision; and

– (ii) by making the surrender of the person concerned, in accordance with Article 5(3) of Framework Decision 2002/584, 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 passed against him or her in the issuing Member State.

46 In that regard, in view of the explanations provided by that court concerning the Netherlands legislation applicable to the dispute in the main proceedings, summarised in paragraphs 31 and 32 above, it is necessary to assess, first, whether the ground for non-recognition of the judgment and non-enforcement of the sentence, as set out in Article 9(1)(d) of Framework Decision 2008/909, may be transposed into the legal systems of the Member States, so that the competent authority of the executing Member State is obliged automatically to refuse to recognise any sentencing judgment for acts which would not constitute an offence under the national law of that Member State. In the light of that assessment, it will be necessary to examine, second, the possible margin of discretion which the latter authority has in the application of that ground for refusal to an individual case, following the surrender of the person concerned, subject to a guarantee of return, in accordance with Article 5(3) of Framework Decision 2002/584.

47 For the purpose of answering that question, it must be pointed out that, in accordance with settled case-law, in interpreting a provision of EU law, it is necessary to consider not only its wording, but also the context in which it occurs and the objectives pursued by the rules of which it is part (judgment of 30 October 2025, Tomann, C-134/24, EU:C:2025:839, paragraph 55 and the case-law cited).

The possibility of transposing Article 9(1)(d) of Framework Decision 2008/909 in such a way as to establish a mandatory ground for non-recognition and non-enforcement based on the condition of double criminality

48 First of all, as regards Article 7(3) of Framework Decision 2008/909, it provides that '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.'

49 Article 9(1)(d) of that framework decision provides, inter alia, that the competent authority of the executing State may refuse to recognise the judgment and enforce the sentence in the cases referred to in Article 7(3) thereof.

50 It is therefore clear from the wording of those two provisions, in particular from the use of the verb 'may', that the executing judicial authority must, itself, have a margin of discretion in deciding whether to refuse to recognise the judgment and enforce the sentence on the grounds referred to in Article 9 (see, by analogy, judgment of 29 April 2021, X (European arrest warrant – Ne bis in idem_)_, C-665/20 PPU, EU:C:2021:339, paragraph 43).

51 Consequently, where they do opt to transpose one or more of the grounds for optional non-execution provided for in Article 9, Member States cannot provide that the judicial authorities of the executing State are required to refuse to recognise the judgment and enforce the sentence formally falling within the scope of those grounds, without those authorities having the opportunity to take into account the circumstances specific to each case (see, by analogy, judgment of 29 April 2021, X (European arrest warrant – Ne bis in idem_)_, C-665/20 PPU, EU:C:2021:339, paragraph 44).

52 It must be noted, next, that that interpretation is supported by the context in which Article 9(1)(d) of Framework Decision 2008/909 occurs.

53 In that regard, it must be borne in mind that the principle of mutual recognition means, in accordance with Article 8(1) of that framework decision, that, in principle, the competent authority of the executing State is to recognise a judgment which has been forwarded to it and forthwith take all the necessary measures for the enforcement of the sentence (judgment of 11 January 2017, Grundza, C-289/15, EU:C:2017:4, paragraph 42).

54 It follows 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 Article 9(1)(d) of that framework decision, must be interpreted strictly in order to limit cases of non-recognition and non-enforcement (judgment of 11 January 2017, Grundza, C-289/15, EU:C:2017:4, paragraph 46).

55 Since a margin of discretion must be afforded to the competent authority of the executing State in accordance with the interpretation set out in paragraph 50 above, it must be possible for that authority, where the acts in question do not constitute an offence under the law of the executing State, to decide nevertheless, in certain cases, not to rely on that ground for refusal, in order to ensure the recognition of the judgment and the enforcement of the sentence.

56 Lastly, as regards the interpretation of Article 9(1)(d) of Framework Decision 2008/909, in the light of the objective pursued by that framework decision, it must be borne in mind that, Article 3(1) of that framework decision states that the purpose of that decision is to establish the rules under which a Member State, with a view to facilitating the social rehabilitation of the person concerned, is to recognise a judgment and to enforce a sentence (judgment of 11 January 2017, Grundza, C-289/15, EU:C:2017:4, paragraph 50).

57 The interpretation of Article 9(1)(d) of that framework decision set out in paragraph 50 above specifically contributes to the attainment of that objective, since the competent authority of the executing State, making use of its margin of discretion, could choose not to rely on the ground for non-recognition and non-enforcement based on the condition of double criminality on the ground that the enforcement of the sentence on the territory of the executing State would contribute to facilitating the social rehabilitation of the convicted person.

58 In the light of the considerations set out in paragraphs 48 to 57 above, it must be held that Article 9(1)(d) of Framework Decision 2008/909 must be interpreted as precluding national legislation which lays down an obligation requiring the competent authority of a Member State to refuse to recognise the judgment and to 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, without granting to the competent authority of the executing Member State any margin of discretion in that regard.

The possibility of relying on the ground for non-recognition of a judgment and non-enforcement of a sentence provided for in Article 9(1)(d) of Framework Decision 2008/909 following the surrender of the person concerned, subject to a guarantee of return, in accordance with Article 5(3) of Framework Decision 2002/584

59 In the light of the interpretation set out in the preceding paragraph, it is necessary to go on to consider, as stated in paragraph 46 above, whether the provisions of Framework Decision 2002/584 and, in particular, Article 4(1) and Article 5(3) thereof, read together with Article 25 of Framework Decision 2008/909, preclude the possibility for the competent authority of the executing Member State to refuse, on the ground provided for in Article 9(1)(d) of that framework decision, to recognise the judgment and enforce the sentence where, previously, the executing judicial authority of that Member State, first, waived its right to rely on the ground for optional non-execution provided for in Article 4(1) of Framework Decision 2002/584, arising from the absence of double criminality and, second, made the surrender of the person concerned subject to a guarantee of return, in accordance with Article 5(3).

60 In that regard, it should be borne in mind, from the outset, that Framework Decision 2002/584 seeks, by the establishment of a simplified and effective system for the surrender of persons convicted or suspected of having infringed criminal law, to facilitate and accelerate judicial cooperation with a view to contributing to the attainment of the objective set for the European Union of becoming an area of freedom, security and justice, and has as its basis the high level of trust which must exist between the Member States (judgment of 4 September 2025, C.J. (Enforcement of a sentence further to an EAW), C-305/22, EU:C:2025:665, paragraph 39 and the case-law cited).

61 In the field governed by Framework Decision 2002/584, the principle of mutual recognition, which, according to recital 6, constitutes the 'cornerstone' of judicial cooperation in criminal matters, is expressed in Article 1(2) of that framework decision, which lays down the rule that Member States are required to execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of that framework decision (judgment of 4 September 2025, C.J. (Enforcement of a sentence further to an EAW), C-305/22, EU:C:2025:665, paragraph 40 and the case-law cited).

62 It follows, first, that the executing judicial authorities may refuse to execute a European arrest warrant only on grounds stemming from Framework Decision 2002/584, as interpreted by the Court. Second, while the execution of a European arrest warrant constitutes the rule, refusal to execute that warrant is intended to be an exception, which must therefore be interpreted strictly (judgment of 4 September 2025, C.J. (Enforcement of a sentence further to an EAW), C-305/22, EU:C:2025:665, paragraph 41 and the case-law cited).

63 As regards such grounds, that framework decision lays down, in Article 3 thereof, the grounds for mandatory non-execution of a European arrest warrant and, in Articles 4 and 4a, the grounds for optional non-execution of that warrant.

64 Article 5 of Framework Decision 2002/584 sets out the guarantees to be given by the issuing Member State in particular cases. Thus, in accordance with Article 5(3) of that framework decision, 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, execution of the European arrest warrant by the executing judicial authority may be subject to the condition that the person concerned, after being heard, 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.

65 As regards the impact of such a guarantee of return on the implementation, at the time of recognition of the sentencing judgment, of the ground for non-execution and non-enforcement set out in Article 9(1)(d) of Framework Decision 2008/909, it must be borne in mind 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 which require, particularly with regard to the area of freedom, security and justice, that each Member State, save in exceptional circumstances, consider the other Member States to be complying with EU law and particularly with the fundamental rights recognised by EU law. The latter framework decision thus 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 (see, to that effect and by analogy, judgment of 4 September 2025, C.J. (Enforcement of a sentence further to an EAW), C-305/22, EU:C:2025:665, paragraph 45 and the case-law cited).

66 Further, as the Court has previously held, there is nothing to indicate that the EU legislature intended to provide for two separate legal systems as regards the recognition and enforcement of judgments in criminal matters, according to whether or not a European arrest warrant exists (judgment of 4 September 2025, C.J. (Enforcement of a sentence further to an EAW), C-305/22, EU:C:2025:665, paragraph 48).

67 It is apparent from Article 25 of Framework Decision 2008/909, read in the light of recital 12 thereof, that that framework decision is to apply, mutatis mutandis, to the extent that its provisions are compatible with those of Framework Decision 2002/584, to enforcement of sentences, inter alia, where, acting under Article 5(3) of the latter framework decision, a Member State has required, as a condition for the execution of a European arrest warrant for the purposes of prosecution in the issuing State, that the person concerned be returned to the executing State in order to serve the sentence imposed on him or her in the issuing State (see, to that effect, judgment of 4 September 2025, C.J. (Enforcement of a sentence further to an EAW), C-305/22, EU:C:2025:665, paragraph 49).

68 Furthermore, in Article 5(3), the EU legislature attached particular weight to the possibility of increasing the chances of social rehabilitation 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, would be imposed in the issuing Member State (see, to that effect, judgment of 11 March 2020, SF (European arrest warrant – Guarantee of return to the executing State), C-314/18, EU:C:2020:191, paragraph 48).

69 Thus, in view of the identical nature of the objective pursued, first, by the possibility to make the surrender of the person concerned subject to a guarantee of return under Article 5(3) of Framework Decision 2002/584 and, second, by the rules laid down by Framework Decision 2008/909, namely that of facilitating the social rehabilitation of persons sentenced in another Member State, it must be held that where a judicial authority of the executing State wishes to apply the ground for non-recognition and non-enforcement set out in Article 9(1)(d) of the latter framework decision, it must take account of those rules (see, to that effect and by analogy, judgment of 4 September 2025, C.J. (Enforcement of a sentence further to an EAW), C-305/22, EU:C:2025:665, paragraph 47).

70 Similarly, it is clear from part (f) of the specimen certificate set out in Annex I to Framework Decision 2008/909 that, at the stage of recognition of the sentencing judgment under that framework decision, the competent authority must take into account the guarantee of return, as that certificate must refer to that guarantee where the surrender has been made subject to it (see, to that effect, judgment of 4 September 2025, C.J. (Enforcement of a sentence further to an EAW), C-305/22, EU:C:2025:665, paragraph 58).

71 Further, in the context of its decision to implement the mechanism of surrender of the person concerned, subject to a guarantee of return, as provided for in Article 5(3) of Framework Decision 2002/584, the executing judicial authority must make an overall assessment of all the specific elements that characterise that person's situation which are capable of showing that there are, between that person and the executing Member State, connections demonstrating that he or she is sufficiently integrated into that State, such that the execution in that Member State of the custodial sentence or detention order pronounced against that person in the issuing Member State will contribute to increasing the chances of social rehabilitation after that sentence or detention order has been executed. Those elements include the family, linguistic, cultural, social or economic links that that 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, to that effect, 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 and the case-law cited).

72 Consequently, it is for the executing judicial authority to assess, by taking into account the specific circumstances of each case, whether the connections between the person concerned and the executing Member State are sufficient for the objective of social rehabilitation pursued by Article 5(3) of Framework Decision 2002/584 to be better achieved by that person serving any sentence that might be imposed on him or her in that Member State (see, to that effect, order of 16 November 2023, PY (Third-country national in the executing Member State), C-636/22, EU:C:2023:899, paragraph 39).

73 In making that assessment, as the Advocate General stated in points 73 and 74 of his Opinion, the executing judicial authority has to weigh up a number of interests, such as those relating to the social rehabilitation of the person concerned, following his or her possible conviction, the need to avoid impunity of that person and the absence of double criminality. Accordingly, if that authority decides to implement the mechanism of surrender of the person concerned, subject to 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, it must be inferred from this that it considers that the interests relating to combating the impunity of that person and that person's social rehabilitation take precedence over the finding that the act in question is not punishable under its national law. The adoption of such a decision necessarily entails taking into account all of the relevant provisions in that regard, both of that framework decision and of Framework Decision 2008/909.

74 It follows from the foregoing and, in particular, from the logic inherent in the mechanism of surrender of the person concerned, subject to a guarantee of return, provided for in Article 5(3) of Framework Decision 2002/584, that the implementation of that mechanism rests, as the Advocate General noted in point 78 of his Opinion, on the implicit undertaking by the executing Member State to enforce, in principle, the custodial sentence or detention order which may be handed down in the issuing Member State after that surrender.

75 Accordingly, in order to best ensure that that undertaking is adhered to and given effect – and, consequently, to ensure, first, compliance with the principle of mutual trust which, as follows from paragraph 65 above, underpins Framework Decisions 2002/584 and 2008/909 and, second, the proper functioning of the systems of mutual recognition established by those decisions – it must be held that the option for the competent authority of the executing State to rely on the ground for non-recognition and non-enforcement set out in Article 9(1)(d) of Framework Decision 2008/909 should be strictly limited during the implementation of the guarantee of return set out in Article 5(3) of Framework Decision 2002/584.

76 The objective pursued by Article 5(3) and those pursued, more generally, by Framework Decisions 2002/584 and 2008/909 also support the interpretation set out in the preceding paragraph.

77 With regard to, in the first place, the objective of encouraging the social rehabilitation of the person concerned, it must be stated that where the option provided to the competent authority of the executing Member State, under Article 9(1)(d) of Framework Decision 2008/909, to refuse to recognise the judgment and enforce the sentence is not strictly limited, the guarantee of return required at the stage of surrender of that person, under Article 5(3) of Framework Decision 2002/584, could be deprived of practical effect, so that that objective, which justifies triggering the mechanism of surrender of that person, subject to that guarantee of return, would be liable to be compromised at the stage of recognition, by that authority, of the sentencing judgment.

78 Furthermore, as the Court has previously held, 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. Moreover, such rehabilitation is in the interest not only of the convicted person but also of the European Union in general (judgment of 11 March 2020, SF (European arrest warrant – Guarantee of return to the executing State), C-314/18, EU:C:2020:191, paragraph 51 and the case-law cited).

79 As the Advocate General stated in point 82 of his Opinion, such an approach reinforces the need to interpret the ground for refusal referred to in Article 9(1)(d) of Framework Decision 2008/909 strictly where the mechanism of surrender of the person concerned, subject to a guarantee of return, is implemented in accordance with Article 5(3) of Framework Decision 2002/584.

80 As regards, in the second place, the objective of avoiding the impunity of the person concerned, it should be borne in mind, in that connection, that, as noted in paragraph 60 above, Framework Decision 2002/584 seeks to establish a new simplified and more effective system for the surrender of persons convicted or suspected of having infringed criminal law. In accordance with Article 1(1) of that framework decision, 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 (judgment of 11 March 2020, SF (European arrest warrant – Guarantee of return to the executing State), C-314/18, EU:C:2020:191, paragraph 47 and the case-law cited).

81 Furthermore, it must be noted that, under Article 25 of Framework Decision 2008/909, in the case of enforcement of sentences following a European arrest warrant and without prejudice to Framework Decision 2002/584, the provisions of Framework Decision 2008/909 are to apply, mutatis mutandis, to the extent they are compatible with the provisions of Framework Decision 2002/584, so as to avoid impunity of the person concerned. It follows from this, as the Advocate General observed in point 86 of his Opinion, that in the case of enforcement of a sentence following the surrender of that person, subject to a guarantee of return, implemented in accordance with Article 5(3) of Framework Decision 2002/584, appropriate coordination between Framework Decisions 2002/584 and 2008/909 must, in each case, be determined by taking into account not only the objective of facilitating the social rehabilitation of that person, but also the objective of combating the impunity of that person.

82 If the competent authority of the executing State could call into question, at the stage of the recognition of the judgment for the purposes of the enforcement of the sentence, the guarantee of return implemented under Article 5(3) of Framework Decision 2002/584, by reassessing the circumstances which have already been assessed by the executing judicial authority at the stage of execution of the European arrest warrant, that latter authority could be dissuaded from triggering the mechanism of surrender of the person concerned, subject to that guarantee of return, set out in that provision, or even from executing the European arrest warrant, which would be liable to undermine the objective of combating the impunity of that person.

83 In addition, the principle of mutual recognition, as set out in paragraph 65 above, on which Framework Decision 2008/909 is based, implies, under Article 8(1) thereof, that, in principle, the competent authority of the executing State, first, is required to grant the request seeking recognition of a judgment and enforcement of a custodial sentence or a measure involving the deprivation of liberty handed down in another Member State, which has been forwarded in accordance with Articles 4 and 5 of that framework decision and, second, may refuse to give effect to such a request only on the grounds for non-recognition and non-enforcement exhaustively listed in Article 9 of that framework decision (see, to that effect, judgment of 9 November 2023, Staatsanwaltschaft Aachen, C-819/21, EU:C:2023:841, paragraph 20).

84 It thus follows from the considerations set out in paragraphs 60 to 83 above that the competent authority of the executing State cannot rely on the ground for non-recognition of the judgment and non-enforcement of the sentence, as set out in Article 9(1)(d) of Framework Decision 2008/909, when implementing the guarantee of return provided for in Article 5(3) of Framework Decision 2002/584, in so far as reliance on that ground would entail a reassessment of the circumstances which have already been taken into account by the executing judicial authority for the purposes of its decision to make the surrender of the person concerned subject to that guarantee.

85 However, as the Netherlands Government and the European Commission submitted, in essence, at the hearing, the situation is different where a change in circumstances in the legal or factual situation of that person, such as the reduction or disappearance of the connections between that person and the executing Member State, means that, at the stage of recognition of the judgment for the purposes of the enforcement of the sentence under Framework Decision 2008/909, the interest in the custodial sentence or measure involving deprivation of liberty being enforced in the territory of the executing Member State no longer prevails.

86 At the stage of recognition of that judgment under Framework Decision 2008/909, it is important to ensure that such recognition still meets, at that stage, the objective pursued by that framework decision of facilitating the social rehabilitation of the person concerned. Thus, where there is 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 in the social rehabilitation of the person concerned over that of the absence of double criminality, the competent authority of the executing Member State may decide, at the stage of recognition of the judgment for the purposes of enforcing the sentence, to give precedence to that latter interest by relying on the ground for non-recognition of the judgment and for non-execution of the sentence, as provided for in Article 9(1)(d) of that framework decision.

87 Consequently, the recognition of the option, outlined in paragraphs 85 and 86 above, for the competent authority of the executing State to rely on Article 9(1)(d) where, 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, best ensures compliance with the objective of social rehabilitation pursued by that framework decision, since, if that provision could not, in any event, be relied on in the context of the implementation of the guarantee of return, the person concerned would risk being returned automatically to the executing Member State, even though there would no longer be any rationale for the guarantee of return. In such a situation, the use of the option provided for by that provision does not undermine the mechanism for the surrender of that person, subject to a guarantee of return, as provided for in Article 5(3) of Framework Decision 2002/584.

88 Moreover, in that situation, the objective of combating the impunity of the person concerned is not compromised either, since, first, the possibility for the competent authority of the executing State to rely on Article 9(1)(d) of Framework Decision 2008/909 is strictly limited and, second, where appropriate, that person will serve his or her sentence in the issuing Member State.

89 In the light of all the foregoing considerations, the answer to the question referred is that Article 9(1)(d) and Article 25 of Framework Decision 2008/909 must be interpreted as precluding national legislation which provides for an obligation or an option for the competent authority of a Member State to rely on Article 9(1)(d) in order 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,

– in the first place, the executing judicial authority of that Member State previously decided to execute the European arrest warrant which gave rise to that judgment and that sentence:

– (i) 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 is also based on the absence of double criminality, for an offence covered by Article 2(4) of that framework decision, and

– (ii) by making the surrender of the person concerned, in accordance with Article 5(3) of Framework Decision 2002/584, 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 passed against him or her in the issuing Member State; and

– in the second place, no change in circumstances has occurred after the surrender of the person concerned, subject to a guarantee of return, which would justify not giving effect to that guarantee.

Costs

90 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Fifth Chamber) hereby rules:

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 Council Framework Decision 2009/299/JHA of 26 February 2009,

must be interpreted as precluding national legislation which provides for an obligation or an option for the competent authority of a Member State to rely on Article 9(1)(d) in order 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,

– in the first place, the executing judicial authority of that Member State previously decided to execute the European arrest warrant which gave rise to that judgment and that sentence,

– (i) by waiving the right to rely on the ground for optional non-execution provided for in Article 4(1) 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 Framework Decision 2009/299, which is also based on the absence of double criminality, for an offence covered by Article 2(4) of Framework Decision 2002/584, as amended, and,

– (ii) by making the surrender of the person concerned, in accordance with Article 5(3) of Framework Decision 2002/584, as amended by Framework Decision 2009/299, 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 passed against him or her in the issuing Member State, and

– in the second place, no change in circumstances has occurred after the surrender of the person concerned, subject to a guarantee of return, which would justify not giving effect to that guarantee.

[Signatures]

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* Language of the case: Dutch.

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