2) In the present case, the Sąd Rejonowy w Słupsku — XIV Wydział Karny (District Court of Słupsk (XIV Criminal Division), Poland) seeks guidance as to the interpretation of Council Framework Decision 2004/757/JHA of 25 October 2004 laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking. ( 3 ) In essence, the referring court asks whether a situation under national law in which the concept of ‘large quantities of drugs’, which triggers an aggravated offence under Article 4(2)(a) of Framework Decision 2004/757, is defined not by national legislation but by the national courts on a case-by-case basis, is compatible with that Framework Decision and the principle of legality of criminal offences and penalties. In order to answer that question the Court will have first to address the issue of whether it is competent to answer preliminary questions in cases concerning possession of drugs for personal consumption, a situation that is exempted from the scope of the Framework Decision by virtue of Article 2(2) thereof, as well as whether the Charter of Fundamental Rights of the European Union (‘the Charter’) is applicable here. ( 4 )

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5) Article 49 of the Charter mirrors and expands upon Article 7(1) of the ECHR. It provides that:

‘1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national law or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed. If, subsequent to the commission of a criminal offence, the law provides for a lighter penalty, that penalty shall be applicable.

2. This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles recognised by the community of nations.

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6) In accordance with Article 51(1) thereof, the provisions of the Charter ‘are addressed to the institutions, bodies, offices and agencies of the Union … and to the Member States only when they are implementing [EU] law’. Article 52(3) provides that ‘in so far as this Charter contains rights which correspond to rights guaranteed by the [ECHR], the meaning and scope of those rights shall be the same as those laid down by the [ECHR] …’.

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16) Against that background, the referring court asks the Court the following questions:

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(4) Is Article 62(2) of the [Law on combating drug addiction], which lays down stricter criminal liability for the offence of possessing a significant quantity of psychotropic substances and narcotic drugs, as interpreted by the Polish national courts, contrary to the principles of equality and non-discrimination (Article 14 [of the ECHR] and Articles 20 and 21 [of the Charter], read in conjunction with Article 6(1) [of the Treaty on European Union])?’

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34) The referring court enquires as to the interpretation of several articles of the Charter in order to determine whether the situation under national law that it describes is compatible with EU law.

35) The Commission in its written submissions expresses doubts as to whether the Charter applies here. In its view, Article 62(2) of the Law on combating drug addiction does not implement EU law.

36) Article 51(1) makes clear that the provisions of the Charter are addressed to the Member States only when they are implementing EU law.

37) It is settled case-law that ‘the fundamental rights guaranteed in the legal order of the European Union are applicable in all situations governed by [EU] law, but not outside such situations. In this respect, the Court has already observed that it has no power to examine the compatibility with the Charter of national legislation lying outside the scope of [EU] law. On the other hand, if such legislation falls within the scope of [EU] law, the Court, when requested to give a preliminary ruling, must provide all the guidance as to interpretation needed in order for the national court to determine whether that legislation is compatible with the fundamental rights the observance of which the Court ensures’. The Court has likewise stated that ‘since the fundamental rights guaranteed by the Charter must therefore be complied with where national legislation falls within the scope of [EU] law, situations cannot exist which are covered in that way by [EU] law without those fundamental rights being applicable. The applicability of [EU] law entails applicability of the fundamental rights guaranteed by the Charter’. ‘Where, on the other hand, a legal situation does not come within the scope of [EU] law, the Court does not have jurisdiction to rule on it and any provisions of the Charter relied upon cannot, of themselves, form the basis for such jurisdiction.’ ( 20 ) The concept of ‘implementing Union law’, as referred to in Article 51 of the Charter, thus ‘assumes a degree of connection between an EU legal measure and the national measure in question, above and beyond the matters covered being closely related or one of those matters having an indirect impact on the other’. ( 21 )

38) It is clear that the Court cannot rule on the interpretation of the Framework Decision without taking into account the Charter, which is EU primary law. ( 22 ) As I have explained in points 26 to 28 above, Article 62(2) of the Law on combating drug addiction transposes the aggravated offence related to ‘large quantities of drugs’ provided for by Article 4(2)(a) of Framework Decision 2004/757 into national law. It is therefore clear that that provision is national legislation that ‘falls within the scope of EU law’: it is, indeed, the vehicle by which Poland is ‘implementing Union law’ (here, the Framework Decision) within the meaning of Article 51(1) of the Charter.

39) The ruling that the Court hands down as to the interpretation of Article 4(2)(a) of Framework Decision 2004/757 in the light of the Charter will (evidently) govern the interpretation of Article 62(2) of that law in respect of persons charged with possession of a ‘significant quantity of narcotic drugs’ for trafficking. It is beyond argument that, in that context, a Member State is bound to comply with the fundamental rights guaranteed by the Charter. For the sake of completeness, I add here that it is settled case-law that Protocol (No 30) to the Treaties ( 23 ) does not call into question the applicability of the Charter in Poland, nor is it intended to exempt the Republic of Poland from the obligation to comply with the provisions of the Charter. ( 24 )

40) The Framework Decision — it will be recalled — deals only with ‘the most serious types of drug offence’ ( 25 ) and thus covers trafficking but not consumption for personal use. In the context of the former, the defendant is protected by the requirement that the interpretation given to the aggravated offence related to ‘large quantities of drugs’must be Charter-compliant. Yet Article 62(2) of the Law on combating drug addiction, as we have seen, draws no distinction whatsoever between possession for personal use and possession for trafficking. The national legislature chose to treat the two situations in exactly the same way.

41) Against that background, can it legally be correct that, whilst Article 62(2) of the Law on combating drug addiction must bear a Charter-compliant meaning when persons are charged under it with one of ‘the most serious types of drug offence’ (the aggravated offence in respect of drug trafficking), exactly the same provision may bear a different (ex hypothesi, non-Charter compliant) meaning when it forms the basis for prosecuting someone for a less serious offence, namely possessing the same quantities of drugs for personal use?

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44) Second, it is clear that this Court must give guidance to the national court as to what the Charter-compliant interpretation of Article 4(2)(a) of Framework Decision 2004/757 is. Unless it does so, the national court will not be in position to resolve the case before it.

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45) The four questions referred are best addressed together. In essence, the referring court asks whether Article 4(2)(a) of Framework Decision 2004/757, combined with Article 2(1)(c) thereof, and the principles of equality, of non-discrimination and of legality of criminal offences and penalties enshrined in Articles 20, 21 and 49 of the Charter respectively, must be interpreted as precluding national legislation which does not define the aggravated offence related to ‘large quantities of drugs’ by using any objective criteria (such as the purpose of the possession of drugs) but leaves the interpretation of that concept to the individual assessment of national courts on a case-by-case basis.

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63) The situation as presented by the referring court should, however, be examined under the prism of the principle of legality of criminal offences and penalties, as enshrined in Article 49 of the Charter. The Charter applies because one and the same provision of national law (Article 62(2) of the Law on combating drug addiction) both transposes Article 4(2)(a) of the Framework Decision and applies to situations (possession for personal use) falling outwith its scope (see point 36 et seq. above).

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66) The principle that criminal offences and penalties must be defined by law and the consequent requirements as to foreseeability, precision and non-retroactivity are of paramount importance both in the EU legal order and in national legal systems. That principle is enshrined in Article 49 of the Charter, but also forms part of the constitutional traditions common to the Member States. ( 37 )

67) In accordance with Article 52(3) of the Charter, the right guaranteed in Article 49 thereof has the same meaning and scope as the right guaranteed by the ECHR, including the case-law of the European Court of Human Rights (‘the Strasbourg Court’). ( 38 )

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80) I therefore conclude that the interpretation of Article 4(2)(a) of Framework Decision 2004/757, in the light of the principles of equality, non-discrimination and legality of criminal offences and penalties, does not preclude a situation where the term transposing ‘large quantities of drugs’ into national law is not defined by the legislature but is clarified by means of interpretations in the case-law. That interpretation must, however, permit the person concerned to assess the existence and the extent of his criminal liability when found in possession of a certain quantity of drugs. A case-by-case interpretation of that concept by the national courts on the basis of a criterion which does not provide a reasonable degree of foreseeability and certainty is not compatible with the principle of legality of criminal offences and penalties enshrined in Article 49 of the Charter. It is for the national court to determine whether that is in fact the situation that pertains within its national legal order.

81) In the light of all the foregoing considerations, I suggest that the Court should answer the questions posed by the Sąd Rejonowy w Słupsku — XIV Wydział Karny (District Court of Słupsk (XIV Criminal Division), Poland) as follows: 

• Article 2(1)(c) and (2) and Article 4(2)(a) of Framework Decision 2004/757/JHA of 25 October 2004 laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking do not preclude Member States from extending criminal liability for the aggravated offence related to possession of large quantities of drugs for trafficking, as defined thereunder, to possession of drugs outwith the scope of the offences listed in that Framework Decision. 
• The interpretation of Article 4(2)(a) of Framework Decision 2004/757, in the light of the principles of equality, non-discrimination and legality of criminal offences and penalties, does not preclude a situation where the term transposing ‘large quantities of drugs’ into national law is not defined by the legislature but is clarified by means of interpretations in the case-law. That interpretation must, however, permit the person concerned to assess the existence and the extent of his criminal liability when found in possession of a certain quantity of drugs. A case-by-case interpretation of that concept by the national courts on the basis of a criterion which does not provide a reasonable degree of foreseeability and certainty is not compatible with the principle of legality of criminal offences and penalties enshrined in Article 49 of the Charter of Fundamental Rights of the European Union. It is for the national court to determine whether that is in fact the situation that pertains within its national legal order.