# C_2023094EN.01000201.xml

| 13.3.2023 | EN | Official Journal of the European Union | C 94/2 |
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13.3.2023

EN

Official Journal of the European Union

C 94/2

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Judgment of the Court (Grand Chamber) of 31 January 2023 (request for a preliminary ruling from the Tribunal Supremo — Spain) — Criminal proceedings against Lluís Puig Gordi and Others

(Case C-158/21, (1) Puig Gordi and Others)

(Reference for a preliminary ruling - Area of freedom, security and justice - Judicial cooperation in criminal matters - European arrest warrant - Framework Decision 2002/584/JHA - Surrender procedures between Member States - Conditions for execution - Jurisdiction of the issuing judicial authority - Second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union - Right of access to a tribunal previously established by law - Possibility of issuing a new European arrest warrant relating to the same person)

(2023/C 94/02)

Language of the case: Spanish

Referring court

Tribunal Supremo

Parties in the main criminal proceedings

Lluís Puig Gordi, Carles Puigdemont Casamajó, Antoni Comín Oliveres, Clara Ponsatí Obiols, Meritxell Serret Aleu, Marta Rovira Vergés, Anna Gabriel Sabaté

Intervening parties: Ministerio Fiscal, Abogacía del Estado, Partido político VOX

Operative part of the judgment

| 1. | 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 an executing judicial authority does not have the power to refuse to execute a European arrest warrant on the basis of a ground for non-execution which arises not from Framework Decision 2002/584, as amended, but solely from the law of the executing Member State. However, that judicial authority may apply a national provision which provides that the execution of a European arrest warrant is to be refused where that execution would lead to an infringement of a fundamental right enshrined in EU law, provided that the scope of that provision does not go beyond the scope of Article 1(3) of Framework Decision 2002/584, as amended, as interpreted by the Court of Justice of the European Union. |
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1.

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 an executing judicial authority does not have the power to refuse to execute a European arrest warrant on the basis of a ground for non-execution which arises not from Framework Decision 2002/584, as amended, but solely from the law of the executing Member State. However, that judicial authority may apply a national provision which provides that the execution of a European arrest warrant is to be refused where that execution would lead to an infringement of a fundamental right enshrined in EU law, provided that the scope of that provision does not go beyond the scope of Article 1(3) of Framework Decision 2002/584, as amended, as interpreted by the Court of Justice of the European Union.

| 2. | Article 1(1) and (2) and Article 6(1) of Framework Decision 2002/584, as amended by Framework Decision 2009/299,
  must be interpreted as meaning that the executing judicial authority may not verify whether a European arrest warrant has been issued by a judicial authority which had jurisdiction for that purpose and refuse to execute that European arrest warrant where it considers that that is not the case. |
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2.

Article 1(1) and (2) and Article 6(1) of Framework Decision 2002/584, as amended by Framework Decision 2009/299,

must be interpreted as meaning that the executing judicial authority may not verify whether a European arrest warrant has been issued by a judicial authority which had jurisdiction for that purpose and refuse to execute that European arrest warrant where it considers that that is not the case.

| 3. | Article 1(3) of Framework Decision 2002/584, as amended by Framework Decision 2009/299, read in conjunction with the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union,
  must be interpreted as meaning that the executing judicial authority called upon to decide on the surrender of a person for whom a European arrest warrant has been issued may not refuse to execute that warrant on the ground that that person is at risk, following his or her surrender to the issuing Member State, of being tried by a court which lacks jurisdiction for that purpose unless,






  — | first, that judicial authority has objective, reliable, specific and properly updated information showing that there are systemic or generalised deficiencies in the operation of the judicial system of the issuing Member State or deficiencies affecting the judicial protection of an objectively identifiable group of persons to which the person concerned belongs, in the light of the requirement for a tribunal established by law, which mean that the individuals concerned are generally deprived, in that Member State, of an effective legal remedy enabling a review of the jurisdiction of the criminal court called upon to try them, and |
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3.

Article 1(3) of Framework Decision 2002/584, as amended by Framework Decision 2009/299, read in conjunction with the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union,

must be interpreted as meaning that the executing judicial authority called upon to decide on the surrender of a person for whom a European arrest warrant has been issued may not refuse to execute that warrant on the ground that that person is at risk, following his or her surrender to the issuing Member State, of being tried by a court which lacks jurisdiction for that purpose unless,

—

first, that judicial authority has objective, reliable, specific and properly updated information showing that there are systemic or generalised deficiencies in the operation of the judicial system of the issuing Member State or deficiencies affecting the judicial protection of an objectively identifiable group of persons to which the person concerned belongs, in the light of the requirement for a tribunal established by law, which mean that the individuals concerned are generally deprived, in that Member State, of an effective legal remedy enabling a review of the jurisdiction of the criminal court called upon to try them, and

| — | secondly, that judicial authority finds that, in the particular circumstances of the case in question, there are substantial grounds for believing that, taking into account, inter alia, the information that is provided by the person for whom that European arrest warrant has been issued and that relates to his or her personal situation, to the nature of the offence for which that person is prosecuted, to the factual context in which that European arrest warrant was issued or to any other relevant circumstance, the court which is likely to be called upon to hear the proceedings to which that person will be subject in the issuing Member State manifestly lacks jurisdiction for that purpose. |
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—

secondly, that judicial authority finds that, in the particular circumstances of the case in question, there are substantial grounds for believing that, taking into account, inter alia, the information that is provided by the person for whom that European arrest warrant has been issued and that relates to his or her personal situation, to the nature of the offence for which that person is prosecuted, to the factual context in which that European arrest warrant was issued or to any other relevant circumstance, the court which is likely to be called upon to hear the proceedings to which that person will be subject in the issuing Member State manifestly lacks jurisdiction for that purpose.

The fact that the person concerned was able, before the courts of the issuing Member State, to rely on his or her fundamental rights in order to challenge the jurisdiction of the issuing judicial authority and the European arrest warrant issued for him or her is of no decisive importance in that regard.

| 4. | Article 1(3) of Framework Decision 2002/584, as amended by Framework Decision 2009/299, read in conjunction with the second paragraph of Article 47 of the Charter of Fundamental Rights,
  must be interpreted as meaning that in a situation where a person for whom a European arrest warrant has been issued alleges that he or she is at risk, following his or her surrender to the issuing Member State, of being tried by a court lacking jurisdiction for that purpose, the existence of a report by the Working Group on Arbitrary Detention which does not directly relate to that person’s situation may not, in itself, be justification for the executing judicial authority to refuse to execute that European arrest warrant, but such a report may, however, be taken into account by that judicial authority, among other elements, in order to assess whether there are systemic or generalised deficiencies in the operation of the judicial system of that Member State or deficiencies affecting the judicial protection of an objectively identifiable group of persons to which that person belongs. |
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4.

Article 1(3) of Framework Decision 2002/584, as amended by Framework Decision 2009/299, read in conjunction with the second paragraph of Article 47 of the Charter of Fundamental Rights,

must be interpreted as meaning that in a situation where a person for whom a European arrest warrant has been issued alleges that he or she is at risk, following his or her surrender to the issuing Member State, of being tried by a court lacking jurisdiction for that purpose, the existence of a report by the Working Group on Arbitrary Detention which does not directly relate to that person’s situation may not, in itself, be justification for the executing judicial authority to refuse to execute that European arrest warrant, but such a report may, however, be taken into account by that judicial authority, among other elements, in order to assess whether there are systemic or generalised deficiencies in the operation of the judicial system of that Member State or deficiencies affecting the judicial protection of an objectively identifiable group of persons to which that person belongs.

| 5. | Article 15(2) of Framework Decision 2002/584, as amended by Framework Decision 2009/299,
  must be interpreted as precluding the executing judicial authority from refusing to execute a European arrest warrant on the ground that the person for whom that warrant has been issued is at risk, following his or her surrender to the issuing Member State, of being tried by a court lacking jurisdiction for that purpose, without having first requested that the issuing judicial authority provide supplementary information. |
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5.

Article 15(2) of Framework Decision 2002/584, as amended by Framework Decision 2009/299,

must be interpreted as precluding the executing judicial authority from refusing to execute a European arrest warrant on the ground that the person for whom that warrant has been issued is at risk, following his or her surrender to the issuing Member State, of being tried by a court lacking jurisdiction for that purpose, without having first requested that the issuing judicial authority provide supplementary information.

| 6. | Framework Decision 2002/584, as amended by Framework Decision 2009/299,
  must be interpreted as not precluding the issuing of several successive European arrest warrants against a requested person with a view to obtaining his or her surrender by a Member State after the execution of a first European arrest warrant concerning that person has been refused by that Member State, provided that the execution of a new European arrest warrant does not result in an infringement of Article 1(3) of Framework Decision 2002/584, as amended, and provided that the issuing of the latter European arrest warrant is proportionate. |
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6.

Framework Decision 2002/584, as amended by Framework Decision 2009/299,

must be interpreted as not precluding the issuing of several successive European arrest warrants against a requested person with a view to obtaining his or her surrender by a Member State after the execution of a first European arrest warrant concerning that person has been refused by that Member State, provided that the execution of a new European arrest warrant does not result in an infringement of Article 1(3) of Framework Decision 2002/584, as amended, and provided that the issuing of the latter European arrest warrant is proportionate.

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(1)  OJ C 217, 7.6.2021.

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