CELEX: 62020CJ0195
Reference for a preliminary ruling
Urgent preliminary ruling procedure
Judicial cooperation in criminal matters
European arrest warrant
Framework Decision 2002/584/JHA
Effects of the surrender
Article 27
Potential prosecutions for other offences
Specialty rule

This request for a preliminary ruling concerns the interpretation of Article 27(2) and (3) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (
OJ 2002 L 190, p. 1
), as amended by Council Framework Decision 2009/299/JHA of 26 February 2009 (
OJ 2009 L 81, p. 24
) (‘Framework Decision 2002/584’).
The request has been made in criminal proceedings against XC who was sentenced, in Germany, to a custodial sentence for the offence of aggravated rape in conjunction with extortion committed in Portugal in 2005.
Legal context
European Union law
Recitals 5 and 6 of Framework Decision 2002/584 state the following:
‘(5)
The objective set for the Union to become an area of freedom, security and justice leads to abolishing extradition between Member States and replacing it by a system of surrender between judicial authorities. Further, the introduction of a new simplified system of surrender of sentenced or suspected persons for the purposes of execution or prosecution of criminal sentences makes it possible to remove the complexity and potential for delay inherent in the present extradition procedures. Traditional cooperation relations which have prevailed up till now between Member States should be replaced by a system of free movement of judicial decisions in criminal matters, covering both pre-sentence and final decisions, within an area of freedom, security and justice.
(6)
The European arrest warrant provided for in this Framework Decision is the first concrete measure in the field of criminal law implementing the principle of mutual recognition which the European Council referred to as the “cornerstone” of judicial cooperation.’
Article 1(1) and (2) of that framework decision provides:
‘1.   The European arrest warrant is a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order.
2.   Member States shall execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of this Framework Decision.’
Article 8(1) of that framework decision states:
‘The European arrest warrant shall contain the following information set out in accordance with the form contained in the Annex:
(a)
the identity and nationality of the requested person;
(b)
the name, address, telephone and fax numbers and email address of the issuing judicial authority;
(c)
evidence of an enforceable judgment, an arrest warrant or any other enforceable judicial decision having the same effect, coming within the scope of Articles 1 and 2;
(d)
the nature and legal classification of the offence, particularly in respect of Article 2;
(e)
a description of the circumstances in which the offence was committed, including the time, place and degree of participation in the offence by the requested person;
(f)
the penalty imposed, if there is a final judgment, or the prescribed scale of penalties for the offence under the law of the issuing Member State;
(g)
if possible, other consequences of the offence.’
Article 27 of the framework decision is worded as follows:
‘1.   Each Member State may notify the General Secretariat of the Council that, in its relations with other Member States that have given the same notification, consent is presumed to have been given for the prosecution, sentencing or detention with a view to the carrying out of a custodial sentence or detention order for an offence committed prior to his or her surrender, other than that for which he or she was surrendered, unless in a particular case the executing judicial authority states otherwise in its decision on surrender.
2.   Except in the cases referred to in paragraphs 1 and 3, a person surrendered may not be prosecuted, sentenced or otherwise deprived of his or her liberty for an offence committed prior to his or her surrender other than that for which he or she was surrendered.
3.   Paragraph 2 does not apply in the following cases:
(a)
when the person having had an opportunity to leave the territory of the Member State to which he or she has been surrendered has not done so within 45 days of his or her final discharge, or has returned to that territory after leaving it;
…
(g)
where the executing judicial authority which surrendered the person gives its consent in accordance with paragraph 4.
4.   A request for consent shall be submitted to the executing judicial authority, accompanied by the information mentioned in Article 8(1) and a translation as referred to in Article 8(2). Consent shall be given when the offence for which it is requested is itself subject to surrender in accordance with the provisions of this Framework Decision. Consent shall be refused on the grounds referred to in Article 3 and otherwise may be refused only on the grounds referred to in Article 4. The decision shall be taken no later than 30 days after receipt of the request.
…’
German law
Article 27(2) and (3) of Framework Decision 2002/584 was transposed into German law in Paragraph 83h(1) and (2) of the Gesetz über die internationale Rechtshilfe in Strafsachen (Law on international mutual assistance in criminal matters) of 23 December 1982 (BGBl. 1982 I, p. 2071), in the version applicable at the material time.
Paragraph 83h provides:
‘(1)   Persons surrendered by a Member State pursuant to a European arrest warrant may not be:
1.
prosecuted, sentenced or otherwise deprived of their liberty for an offence committed prior to their surrender other than that for which they were surrendered …
…
(2)   Paragraph 1 does not apply in the case where:
1.
the person surrendered, having had an opportunity to leave the territorial scope of this Law, has not done so within 45 days of his or her final discharge, or has returned to that territory after leaving it;
2.
the offence is not punishable by a custodial sentence or detention order;
3.
the criminal proceedings do not give rise to the application of a measure restricting personal liberty;
4.
the person surrendered could be liable to a penalty or a measure not involving the deprivation of liberty, even if the penalty or measure may give rise to a restriction of his or her personal liberty; or
5.
the requested Member State or the person surrendered has renounced the application of that paragraph.
(3)   The surrendered person’s renunciation after his or her surrender shall be given and recorded before a judge or public prosecutor. The declaration of renunciation shall be irrevocable. The person surrendered must be informed of this.’
The dispute in the main proceedings and the question referred for a preliminary ruling
XC was prosecuted in Germany in three separate sets of criminal proceedings relating to the offences of (i) trafficking in narcotic drugs, (ii) sexual abuse of a minor committed in Portugal and (iii) aggravated rape in conjunction with extortion, also committed in Portugal.
First of all, on 6 October 2011, XC was convicted of trafficking in narcotic drugs by the Amtsgericht Niebüll (Local Court, Niebüll, Germany) and given a combined custodial sentence of one year and nine months. That sentence was suspended on probation.
Next, in 2016, criminal proceedings were instituted in Germany against XC for the offence of sexual abuse of a minor committed in Portugal and, on 23 August 2016, the Staatsanwaltschaft Hannover (Public Prosecutor’s Office, Hanover, Germany) issued a European arrest warrant for the purposes of conducting a criminal prosecution in respect of that offence. After the Tribunal da Relação de Évora (Court of Appeal, Évora, Portugal) authorised XC’s surrender to the German judicial authorities for that offence and XC did not renounce the specialty rule at that time, he was surrendered on 22 June 2017 to the Federal Republic of Germany by the Portuguese judicial authorities. He was sentenced to a custodial sentence of one year and three months and was imprisoned in that Member State.
While XC was serving the custodial sentence imposed on him for sexual abuse of a minor, the suspension on probation of the sentence imposed pursuant to the judgment delivered by the Amtsgericht Niebüll (Local Court, Niebüll) on 6 October 2011 for trafficking in narcotic drugs was revoked. On 22 August 2018, the Staatsanwaltschaft Flensburg (Public Prosecutor’s Office, Flensburg, Germany) asked the Tribunal da Relação de Évora (Court of Appeal, Évora), as the judicial authority executing the European arrest warrant referred to in paragraph 11 above, to renounce the application of the specialty rule and to consent to the execution of the sentence imposed by the Amtsgericht Niebüll (Local Court, Niebüll) on 6 October 2011.
On 31 August 2018, in the absence of any response from the Tribunal da Relação de Évora (Court of Appeal, Évora), the defendant was released and placed under social and judicial supervision for a period of five years, during which he was instructed to report to his probation officer in person once a month. On 18 September 2018, he went to the Netherlands and later to Italy. On 19 September 2018, the Flensburg Public Prosecutor’s Office issued a European arrest warrant against XC for the purposes of executing the judgment of the Amtsgericht Niebüll (Local Court, Niebüll) of 6 October 2011.
On 27 September 2018, XC was arrested in Italy under that European arrest warrant. On 10 October 2018, the Italian executing authority gave its consent to XC’s surrender. On 18 October 2018, XC was surrendered to the German authorities.
Last, on 5 November 2018, the Amtsgericht Braunschweig (Local Court, Braunschweig, Germany) issued an arrest warrant for the purposes of conducting a criminal investigation into a third case involving XC relating to the offence of aggravated rape in conjunction with extortion committed in Portugal in 2005.
On 12 December 2018, the Staatsanwaltschaft Braunschweig (Public Prosecutor’s Office, Braunschweig, Germany) asked the Italian executing authority to give its consent for the defendant to be prosecuted for that offence of aggravated rape in conjunction with extortion. The Corte d’appello di Milano (Court of Appeal, Milan, Italy) granted that request on 22 March 2019.
From 23 July 2019 to 11 February 2020, XC was remanded in custody in Germany, pursuant to the national arrest warrant issued on 5 November 2018 by the Amtsgericht Braunschweig (Local Court, Braunschweig). During that period, the Landgericht Braunschweig (Regional Court, Braunschweig, Germany), by judgment of 16 December 2019, convicted XC of the offence of aggravated rape in conjunction with extortion committed in Portugal in 2005. It imposed on him a combined custodial sentence of seven years, which takes into account the judgment of the Amtsgericht Niebüll (Local Court, Niebüll) of 6 October 2011. The period which XC had spent on remand in Italy was offset in full against the combined sentence.
On 21 January 2020, the Portuguese executing authority gave its consent to the execution of the combined custodial sentence imposed by the Amtsgericht Niebüll (Local Court, Niebüll) on 6 October 2011. XC has been in custody since 12 February 2020, serving that sentence.
XC brought an appeal on a point of law (
Revision
) against the judgment of the Landgericht Braunschweig (Regional Court, Braunschweig) of 16 December 2019 before the referring court. He disputes, in particular, the validity of the proceedings culminating in the delivery of that judgment in the light of the specialty rule laid down in Article 27 of Framework Decision 2002/584. XC claims, in essence, that, in so far as the Portuguese executing authority did not give its consent to his prosecution for the offence of aggravated rape in conjunction with extortion committed in Portugal in 2005, the German authorities were not entitled to prosecute him. XC argues that he has in fact been under the protection of the specialty rule since 1 September 2018. Thus, the criminal proceedings instituted against XC by the German authorities without prior consent from the Portuguese executing authority along with the related procedural documents, such as the arrest warrant issued by the Amtsgericht Braunschweig (Local Court, Braunschweig) on 5 November 2018, are unlawful.
According to the referring court, the question whether the national arrest warrant can be maintained or must, conversely, be annulled depends on whether the German authorities were entitled to prosecute XC on the charge of having committed aggravated rape in conjunction with extortion in Portugal in 2005.
In those circumstances, the Bundesgerichtshof (Federal Court of Justice, Germany) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:
‘Is Article 27(2) and (3) of Council Framework Decision 2002/584 […] to be interpreted as meaning that the specialty rule does not preclude a measure involving deprivation of liberty for an offence committed prior to surrender other than that on which the surrender is based if the person voluntarily left the territory of the issuing Member State after the surrender, was subsequently surrendered again by another executing Member State to the territory of the issuing Member State pursuant to a new European arrest warrant, and the second executing Member State gave its consent to prosecution, sentencing and execution in respect of that other offence?’
The urgent procedure
The referring court has requested that the present reference for a preliminary ruling be dealt with under the urgent preliminary ruling procedure provided for in Article 107 of the Rules of Procedure of the Court of Justice.
In support of its request, the referring court submits that XC is incarcerated on the basis of the judgment of the Amtsgericht Niebüll (Local Court, Niebüll) of 6 October 2011. However, the referring court also submits that the arrest warrant issued by the Amtsgericht Braunschweig (Local Court, Braunschweig) on 5 November 2018 constitutes a subsidiary title of detention of the person concerned and could result in a less lenient execution of the sentence imposed on him.
Further, the referring court states that, on 7 June 2020, XC will have served two thirds of the sentence imposed on him on 6 October 2011 by the Amtsgericht Niebüll (Local Court, Niebüll) and will therefore be eligible for potential early release. In that regard, the referring court explains that the arrest warrant issued by the Amtsgericht Braunschweig (Local Court, Braunschweig) on 5 November 2018 could prevent a suspension of the execution of that sentence. Moreover, should such suspension be granted, the referring court submits that the answer to the question whether that arrest warrant is valid determines whether the remand in custody pending trial ordered on the basis of that warrant may be continued.
In that regard, it should be stated, first of all, that the present reference for a preliminary ruling concerns the interpretation of Framework Decision 2002/584, which comes within the sectors covered by Title V of Part Three of the TFEU on the area of freedom, security and justice. Consequently, this reference can be dealt with under the urgent preliminary ruling procedure.
Secondly, as regards the criterion relating to urgency, it is necessary, in accordance with the settled case-law of the Court, to take into account the fact that the person concerned in the case in the main proceedings is currently deprived of his or her liberty and that the question as to whether he or she may continue to be held in custody depends on the outcome of the dispute in the main proceedings. Moreover, the situation of the person concerned must be assessed as it stood at the time when consideration was given to whether the reference should be dealt with under the urgent preliminary ruling procedure (judgment of 22 December 2017, Ardic,
C‑571/17 PPU
,
EU:C:2017:1026
, paragraph
and the case-law cited).
In the present case, although it is common ground that, on that date, XC was deprived of his liberty on the basis of the judgment of the Amtsgericht Niebüll (Local Court, Niebüll) delivered on 6 October 2011, the fact remains that the arrest warrant issued by the Amtsgericht Braunschweig (Local Court, Braunschweig) on 5 November 2018 is also capable of justifying XC’s detention. Moreover, if that warrant is maintained, it could result in a less lenient execution of the sentence imposed on him, it could affect the decision on the conditional suspension of that sentence and, should such a suspension be granted, it could become the sole legal basis for continuing to hold XC in custody.
In those circumstances, on 25 May 2020, the Fourth Chamber of the Court of Justice, acting on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decided to accede to the referring court’s request that the present reference for a preliminary ruling be dealt with under the urgent preliminary ruling procedure.
Consideration of the question referred
By its question, the referring court asks, in essence, whether Article 27(2) and (3) of Framework Decision 2002/584 must be interpreted as meaning that the specialty rule provided for in Article 27(2) does not preclude a measure involving deprivation of liberty taken against a person referred to in a first European arrest warrant on the basis of a different offence to that which constituted the basis for his or her surrender under that warrant and prior to that offence, when that person’s departure from the Member State which issued the first warrant was voluntary and he or she was surrendered to that Member State under a second European arrest warrant issued after that departure for the purposes of executing a custodial sentence provided that, under the second European arrest warrant, the executing judicial authority of that Member State gave its consent to extending the prosecution to the offence which gave rise to that measure involving deprivation of liberty.
In order to answer the question referred, it should first of all be recalled that EU law is based on the fundamental premiss that each Member State shares with all the other Member States, and recognises that they share with it, a set of common values on which the European Union is founded, as stated in Article 2 TEU. That premiss implies and justifies the existence of mutual trust between the Member States that those values will be recognised, and therefore that the EU law that implements them will be respected (judgment of 11 March 2020, SF (European arrest warrant – Guarantee of return to the executing State),
C‑314/18
,
EU:C:2020:191
, paragraph
and the case-law cited).
In that regard, it should be noted that the purpose of Framework Decision 2002/584, as is apparent in particular from Article 1(1) and (2), read in the light of recital 5 thereof, is to replace the multilateral system of extradition based on the European Convention on Extradition, signed in Paris on 13 December 1957, with a system of surrender between judicial authorities of convicted or suspected persons for the purpose of enforcing judgments or of conducting prosecutions, the system of surrender being based on the principle of mutual recognition (judgment of 11 March 2020, SF (European arrest warrant – Guarantee of return to the executing State),
C‑314/18
,
EU:C:2020:191
, paragraph
and the case-law cited).
In that context, that framework decision seeks, by the establishment of a new simplified and more effective system for the surrender of persons convicted or suspected of having infringed criminal law, to facilitate and accelerate judicial cooperation with a view to contributing to the attainment of the objective set for the European Union of becoming an area of freedom, security and justice, and has as its basis the high level of trust which must exist between the Member States (judgment of 11 March 2020, SF (European arrest warrant – Guarantee of return to the executing State),
C‑314/18
,
EU:C:2020:191
, paragraph
and the case-law cited).
In the field governed by Framework Decision 2002/584, the principle of mutual recognition, which, as is apparent in particular from recital 6 of that framework decision, constitutes the ‘cornerstone’ of judicial cooperation in criminal matters, is put into practice in Article 1(2) of that framework decision, which lays down the rule that Member States are to execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of that framework decision. Executing judicial authorities may therefore, in principle, refuse to execute such a warrant only on the grounds for non-execution exhaustively listed by Framework Decision 2002/584 (see, to that effect, judgment of 11 March 2020, SF (European arrest warrant – Guarantee of return to the executing State),
C‑314/18
,
EU:C:2020:191
, paragraph
and the case-law cited).
In the present case, the case file before the Court shows that, further to the European arrest warrant issued on 19 September 2018 by the Flensburg Public Prosecutor’s Office for the purposes of executing the judgment of the Amtsgericht Niebüll (Local Court, Niebüll) of 6 October 2011, the Italian executing authority gave its consent to the execution of that judgment on 10 October 2018 before surrendering XC to the German authorities on 18 October 2018. Moreover, it is also apparent from the case file that, further to a request made on 12 December 2018 by the Braunschweig Public Prosecutor’s Office to prosecute XC for the offence of aggravated rape in conjunction with extortion, the Corte d’appello di Milano (Court of Appeal, Milan) gave its consent to the prosecution of that offence on 22 March 2019.
As regards Article 27 of Framework Decision 2002/584, the Court has previously held that, although Articles 27 and 28 of that framework decision confer on the Member States certain precise powers in relation to the execution of a European arrest warrant, those provisions, where they lay down rules derogating from the principle of mutual recognition stated in Article 1(2) of that framework decision, cannot be interpreted in a way which would frustrate the objective pursued by that framework decision, which is to facilitate and accelerate surrenders between the judicial authorities of the Member States in the light of the mutual confidence which must exist between them (see, to that effect, judgment of 28 June 2012, West,
C‑192/12 PPU
,
EU:C:2012:404
, paragraph
).
It must be borne in mind that Article 27(2) of Framework Decision 2002/584 lays down the specialty rule, according to which a person who has been surrendered may not be prosecuted, sentenced or otherwise deprived of liberty for an offence committed prior to his or her surrender other than that for which he or she was surrendered.
First of all, as observed by the Advocate General in point 33 of his Opinion, it is apparent from the literal interpretation of that provision that that rule is closely linked to a surrender resulting from the execution of a specific European arrest warrant, in so far as the wording of that provision refers to a ‘surrender’ in the singular.
Next, as was observed by the Advocate General in point 37 of his Opinion, that interpretation is borne out by the contextual interpretation of that provision. Both Article 1(1) of Framework Decision 2002/584, defining the European arrest warrant in the light of the specific aim it pursues, and Article 8(1) of that framework decision, requiring each European arrest warrant to define specifically the nature and legal classification of the offence or offences in question and describe the circumstances in which the offence or offences was or were committed, show that the specialty rule is linked to the execution of a specific European arrest warrant.
Last, as is apparent from the Court’s case-law, the specialty rule is linked to the sovereignty of the executing Member State and confers on the person requested the right not to be prosecuted, sentenced or otherwise deprived of liberty except for the offence for which he or she was surrendered (judgment of 1 December 2008, Leymann and Pustovarov,
C‑388/08 PPU
,
EU:C:2008:669
, paragraphs
and
).
That rule requires the issuing Member State which wishes to prosecute or sentence a person for an offence committed before he or she was surrendered under a European arrest warrant other than that for which he or she was surrendered to obtain the consent of the executing Member State, in order to prevent the first Member State from encroaching upon the competences which the executing Member State might exercise and exceed its powers in relation to the person concerned. In so far as the mechanism of the European arrest warrant is intended to surrender the person concerned to the Member State which issued that warrant, in relation to the specific offences mentioned in the warrant, by bringing him or her to the territory of that Member State by compulsion, the specialty rule is inextricably linked to the execution of a specific European arrest warrant, the scope of which is clearly defined.
It follows that the specialty rule which could have been relied on in the context of XC’s first surrender by the Portuguese executing authorities has no bearing on XC’s return to Germany on the basis of the European arrest warrant issued by the Flensburg Public Prosecutor’s Office on 19 September 2018. As was observed by the Advocate General in point 50 of his Opinion, the inapplicability of the specialty rule connected with the first European arrest warrant issued by the Hanover Public Prosecutor’s Office on 23 August 2016 does not stem from one of the exceptions provided for in Article 27(3) of Framework Decision 2002/584, but from the fact that the dispute in the main proceedings is now concerned with the execution of the second European arrest warrant issued against XC by the Flensburg Public Prosecutor’s Office on 19 September 2018.
In those circumstances, the requirement that, for a person to be prosecuted, sentenced or detained with a view to the execution of a custodial sentence or a detention order for an offence committed prior to his or her surrender other than that for which he or she was surrendered, consent must be given both by the executing judicial authority of the Member State which surrendered the person concerned on the basis of a first European arrest warrant and by the executing judicial authority of the Member State which surrendered that person on the basis of a second European arrest warrant, would hinder the effectiveness of the surrender procedure, thereby undermining the objective pursued by Framework Decision 2002/584, as is apparent from the settled case-law recalled in paragraph 35 above.
Consequently, since, in the present case, XC left Germany voluntarily, after serving, in that Member State, the sentence he received for the offence referred to in the first European arrest warrant issued by the Hanover Public Prosecutor’s Office on 23 August 2016, that person is no longer entitled to rely on the specialty rule relating to the first European arrest warrant. In that context, that person can rely on the specialty rule only in respect of the European arrest warrant issued by the Flensburg Public Prosecutor’s Office on 19 September 2018 and executed by the Italian executing authority.
In that regard, it is apparent from Article 27(3)(g) of Framework Decision 2002/584 that the specialty rule laid down in Article 27(2) does not apply when the executing judicial authority which surrendered the person concerned gives its consent to the prosecution, sentencing or detention with a view to executing a custodial sentence or detention order for an offence committed prior to that person’s surrender, other than that for which he or she was surrendered.
Given that, as is apparent from paragraph 43 above, in a case such as the one in the main proceedings, the only surrender relevant to the assessment of compliance with the specialty rule is the one carried out on the basis of the second European arrest warrant, the consent required in Article 27(3)(g) of Framework Decision 2002/584 must be given only by the executing judicial authority of the Member State which surrendered the person prosecuted on the basis of that European arrest warrant.
Consequently, the answer to the question asked is that Article 27(2) and (3) of Framework Decision 2002/584 must be interpreted as meaning that the specialty rule provided for in Article 27(2) does not preclude a measure involving deprivation of liberty taken against a person referred to in a first European arrest warrant on the basis of a different offence to that which constituted the basis for his or her surrender under that warrant and prior to that offence, when that person’s departure from the Member State which issued the first warrant was voluntary and he or she was surrendered to that Member State under a second European arrest warrant issued after that departure for the purposes of executing a custodial sentence, provided that, under the second European arrest warrant, the executing judicial authority of that Member State gave its consent to extending the prosecution to the offence which gave rise to that measure involving deprivation of liberty.
Costs
Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Fourth Chamber) hereby rules:

Article 27(2) and (3) 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 specialty rule provided for in Article 27(2) does not preclude a measure involving deprivation of liberty taken against a person referred to in a first European arrest warrant on the basis of a different offence to that which constituted the basis for his or her surrender under that warrant and prior to that offence, when that person’s departure from the Member State which issued the first warrant was voluntary and he or she was surrendered to that Member State under a second European arrest warrant issued after that departure for the purposes of executing a custodial sentence, provided that, under the second European arrest warrant, the executing judicial authority of that Member State gave its consent to extending the prosecution to the offence which gave rise to that measure involving deprivation of liberty.

[Signatures]
(
*1
)	Language of the case: German.