Prokuratura Rejonowa w Słupsku v JI

On 11 June 2020, the First Chamber of the Court of Justice delivered its judgment in case C-634/18, concerning the interpretation of Article 4(2)(a) of Framework Decision 2004/757 laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking (FD 2004/757). The referring court had asked, in essence, whether Article 4(2)(a) of FD 2004/757, read in conjunction with Article 2(1)(c) thereof, and Articles 20, 21 and 49 of the Charter, precludes a Member State from classifying as a criminal offence the possession of a significant quantity drugs, while leaving the interpretation of the concept of “significant quantity” to the discretion of the national courts, on a case-by-case basis.

Criminal proceedings were brought against JI before the Polish District Court of Slupsk, for possessing a significant quantity of narcotic drugs and psychotropic substances for his personal use, an offence under Article 62(2) of Poland’s Law on combating drug addiction. This law implemented Framework Decision 2004/757. In particular, Article 62(2) of the law provides that the possession of a significant quantity of drugs is punishable by a restriction of liberty between 1 and 10 years, an aggravating circumstance implementing Article 4(2)(a) of Framework Decision 2004/757. Neither FD 2004/757 nor the Polish law on combating drug addiction define the concepts of “significant” or “large” quantity of drugs and the national interpretation of the provision is left to Polish courts on a case-by-case basis. Against this backdrop, the District Court of Slupsk issued a request for a preliminary ruling, having doubts on the compatibility of national legislation with the principles of legality and equality before the law.

Before answering the question of the referring court, the Court deems necessary to justify its jurisdiction over the case, as several parties intervening in the proceedings objected that, on the one side, the preliminary request asked for an interpretation of national law and, on the other side, the facts at issue fall outside the scope of FD 2004/757. First, the Court recalls that in preliminary ruling proceedings it is not for the Court to rule on the conformity of national provisions with EU law or to interpret national law, but it nonetheless has jurisdiction to give national courts “full guidance on the interpretation of EU law in order to enable it to determine the issue of conformity or compatibility for the purposes of the case before it” (para. 18). In the second place, referring to the fact that the possession of drugs for personal consumption falls outside the scope of FD 2004/757, the Court recalls its past case law where it has repeatedly affirmed that an interpretation of EU law in situations outside its scope is justified where EU provisions have been made applicable to such situations by national legislation “in a direct and unconditional way” (para. 26). This is to ensure consistency in how internal situations and situations governed by EU law are treated.

Moving on to the substance of the case, the Court observes that Article 4(2)(a) of FD 2004/757 requires Member States to enact an aggravating circumstance when the offence related to the possession of drugs linked to trafficking, as referred to in Article 2(1)(c) of the framework decision, involves “large quantities of drugs”. Article 4(2)(a) of FD 2004/757 does not give any definition of the concept of “large quantity of drugs”. However, as framework decisions constitute only an instrument of minimum harmonization, the Court affirms that Member States “have a wide margin of discretion” as regards the implementation of the concept of “large quantity of drugs” in their national law (para. 41). Therefore, the differences between the national measures implementing the framework decision in the national legal orders do not infringe the principle of non-discrimination of Article 21 of the Charter.

Then, the Courts analyses the interaction between the discretion enjoyed by national courts in the interpretation of national law and the principles of equality before the law, non-discrimination, and legality of criminal offences and penalties, as referred to in Articles 20, 21 and 49 of the Charter, respectively.

First, referring to the Opinion of the Advocate General, the Court underlines that judicial discretion does not constitute, as such, an infringement of the principles of equality before the law and non-discrimination enshrined in Articles 20 and 21 of the Charter. In the second place, the Court recalls that the principle of legality enshrined in Article 49(1) of the Charter, as well as Article 7(1) of the ECHR, require that criminal law provisions “comply with certain requirements of accessibility and predictability as regards both the definition of the offence and the sentencing” (para. 48). According to the Court, these requirements are met when individuals can have knowledge of the acts and omissions criminalized by the national legislation “from the wording of the relevant provision and, if need be, with the assistance of the courts’ interpretation of it” (para. 49).

Based on the above, the Court replies to the referring court’s question that Article 4(2)(a) of FD 2004/757, read in conjunction with Article 2(1)(c) thereof, and Articles 20, 21 and 49 of the Charter, do not preclude Member States from providing for aggravated criminal penalties while leaving their interpretation to national courts on a case-by-case basis, provided that their interpretation is reasonably foreseeable.