June 2017 – Netherlands
In this case the CJEU provided clarification on the provisions of Article 4(6) of the Framework decisions regarding when executing authorities may refuse to execute and EAW to serve a custodial sentence where the requested person has become a resident of the executing State. The CJEU held that a national law which obliges the executing authority to refuse the surrender of a resident, without those authorities having any margin of discretion, and without that Member State actually undertaking to execute the custodial sentence, cannot be regarded as compatible with the EAW Framework Decision (“EAW FD”). Additionally, the Court recalled the duty of national courts to interpret the national law in conformity with EU law. This implies that a national court must, where necessary, not apply, on its own authority, the interpretation adopted by its national Supreme Court, if that interpretation is incompatible with EU law. Thus, the CJEU decided that Article 4(6) does not authorise a MS to refuse to execute an EAW issued with a view to the surrender of a person who has been judged and given a custodial sentence, on the sole ground that that Member State intends to prosecute that person in relation to the same acts as those for which the judgment was pronounced. This would be incompatible with Article 50 Charter. In 2013, Poland issued an EAW against a Polish national to serve a one-year prison sentence in Poland. However, in that time, the requested person had become a resident in the Netherlands in the meaning of Article 4(6) EAW FD. Article 4(6) EAW FD has been transposed in Dutch law in Article 6 of the Dutch Surrender Law. The Dutch Court notes that, under the Dutch law, an executing judicial authority is obliged to refuse surrender for purposes of executing a sentence of a national or resident of the executing Member State. That refusal gives rise to a mere “willingness” to take over the execution of the custodial sentence.
