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.

A national supervisory authority may require a provider of publicly available telephone directories and directory enquiry services, acting as controller, to take appropriate technical and organisational measures to inform third-party controllers that the subscriber has withdrawn consent. Those third-party controllers may include the telephone operator that supplied the subscriber's data to that provider and other directory or directory enquiry providers to whom that provider supplied the data.

When the executing Member State makes the surrender of its national or resident for prosecution conditional on that person, after being heard, being returned to that Member State to serve there any custodial sentence or detention order imposed in the issuing Member State, it must secure that return as soon as the sentencing decision becomes final. The person may remain in the issuing Member State pending a definitive decision on a procedural step within the criminal proceedings relating to the offence underlying the European arrest warrant only if concrete grounds linked to the rights of defence or the proper administration of justice make that person’s presence there essential.

Where execution of a European arrest warrant issued for criminal proceedings is made subject to the condition in Article 5(3) of Framework Decision 2002/584, the executing Member State may adapt the duration of the custodial sentence or detention order imposed in the issuing Member State only within the strict conditions in Article 8(2) of Framework Decision 2008/909.

Where the executing judicial authority has information showing systemic or generalised deficiencies in detention conditions in the issuing Member State — whose accuracy the referring court must verify in the light of all available updated data — it cannot dismiss a real risk of inhuman or degrading treatment under Article 4 of the Charter merely because the requested person has a legal remedy there to challenge detention conditions, although it may take that remedy into account when deciding on surrender. It must assess only the detention conditions in the prisons where, on the information available to it, that person is likely to be detained, including on a temporary or transitional basis. It must examine only the actual and precise detention conditions relevant to deciding whether that person will face a real risk of inhuman or degrading treatment under Article 4 of the Charter. It may take into account information from authorities of the issuing Member State other than the issuing judicial authority, in particular an assurance that the person will not be subjected to such treatment.

Where objective, reliable, specific and properly updated evidence about detention conditions in the issuing Member State shows deficiencies — whether systemic or generalised, affecting certain groups of people, or affecting certain places of detention — the executing judicial authority must determine specifically and precisely whether there are substantial grounds to believe that the person concerned by the European arrest warrant will, if surrendered, face a real risk of inhuman or degrading treatment because of those detention conditions. For that purpose, the executing judicial authority must request supplementary information from the issuing judicial authority, and the issuing judicial authority must send that information within the time-limit set in the request after seeking, if necessary, the assistance of the central authority or one of the central authorities of the issuing Member State under Article 7. The executing judicial authority must postpone its decision on surrender until it receives supplementary information that allows it to rule out that risk. If that risk cannot be ruled out within a reasonable time, the executing judicial authority must decide whether the surrender procedure should be brought to an end.

A European arrest warrant issued to enforce a sentence imposed in absentia within the meaning of Article 5(1) may, where the executing Member State has implemented Articles 5(1) and 5(3) of Framework Decision 2002/584 in national law, be made subject to the condition that the person—if a national or resident of the executing Member State—is returned to that State so that, as the case may be, the sentence passed after a new trial held in that person’s presence in the issuing Member State is served there.