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.

1. Articles 2(4) and 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 Council Framework Decision 2009/299/JHA of 26 February 2009, must be interpreted as meaning that the condition of double criminality of the act laid down in those provisions is met where a European arrest warrant is issued for the purpose of enforcing a custodial sentence handed down for acts which relate, in the issuing Member State, to an offence requiring that those acts impair a legal interest protected in that Member State when such acts also constitute a criminal offence, under the law of the executing Member State, of which the impairment of that protected legal interest is not a constituent element.

2. Articles 2(4) and 4(1) of Framework Decision 2002/584, as amended by Framework Decision 2009/299, read in the light of Article 49(3) of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that the executing judicial authority may not refuse to execute a European arrest warrant issued for the purpose of enforcing a custodial sentence where that sentence was imposed in the issuing Member State for the commission, by the requested person, of a single offence consisting of multiple acts, only some of which constitute a criminal offence in the executing Member State.

Article 2(2) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States must be interpreted as meaning that, in order to ascertain whether the offence for which a European arrest warrant has been issued is punishable in the issuing Member State by a custodial sentence or a detention order for a maximum period of at least three years, as it is defined in the law of the issuing Member State, the executing judicial authority must take into account the law of the issuing Member State in the version applicable to the facts giving rise to the case in which the European arrest warrant was issued.