Opinion of the Advocate General — ECLI:EU:C:2025:549
Date: 2025-07-10
Language of the case: French

Translation C-722/23 – 1 
Case C-722/23 [Rugu] i 
Request for a preliminary ruling 
Date lodged:  
28 November 2023 
Referring court:  
Cour de cassation (Belgium) 
Date of the decision to refer:  
22 November 2023 
Appellant on a point of law:  
AR 
  
Cour de cassation (Belgium) 
Judgment 
[…] 
AR, born in […] (Romania) on […]  
domiciled in […]  
person in respect of whom a European arrest warrant has been issued, appellant on 
a point of law, 
[…] 
I. PROCEDURE 
The appeal has been brought against a judgment delivered on 30 October 2023 by 
the Indictment Division of the cour d’appel de Bruxelles (Court of Appeal, 
Brussels). 
[…] 
 
i The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings. 
EN 
REQUEST FOR A PRELIMINARY RULING OF 22. 11. 2023 – CASE C-722/23 
 
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II. DECISION OF THE COURT 
1 The appellant, who is a Romanian national but who, according to the appeal 
judges, resides in Belgium, is the subject of a European arrest warrant issued on 
1 August 2023 by the Romanian authorities with a view to the execution of a four-
year custodial sentence. 
The chambre du conseil (Investigation Chamber) refused to execute the European 
arrest warrant on the grounds, provided for in Article 4(5) of the loi du 19 
décembre 2003 relative au mandat d’arrêt européen (Law of 19 December 2003 
on the European arrest warrant), that the conditions of detention in Romania 
would expose the appellant to the risk that his fundamental rights, in this case 
those protected by Article 3 of the Convention for the Protection of Human Rights 
and Fundamental Freedoms, would be infringed. 
Following an appeal by the public prosecution service, the Indictments Division 
confirmed the order, but also decided that the four-year custodial sentence referred 
to in the European arrest warrant ‘[could] be served in Belgium’ pursuant to 
Article 6(4) of the Law of 19 December 2003, since the risk that Article 4(5) is 
intended to prevent concerns the arrangements for the serving of the sentence 
imposed in Romania, and not the procedure that led to the appellant’s conviction 
there or the conviction itself. 
The above decision is the contested decision. 
2 The plea alleges infringement of Article 25 of Council Framework Decision 
2008/909/JHA of 27 November 2008 on the application of the principle of mutual 
recognition to judgments in criminal matters imposing custodial sentences or 
measures involving deprivation of liberty for the purpose of their enforcement in 
the European Union, Article 4(5) of the Law of 19 December 2003 on the 
European arrest warrant and Article 38(1) of the loi du 15 mai 2012 relative à 
l’application du principe de reconnaissance mutuelle aux peines ou mesures 
privatives de liberté prononcées dans un État membre de l’Union européenne 
(Law of 15 May 2012 on the application of the principle of mutual recognition to 
custodial sentences or measures involving deprivation of liberty imposed in a 
Member State of the European Union). 
The appellant submits that, having found that a ground for mandatory non-
execution of the European arrest warrant applied, since there were valid grounds 
for believing that the warrant’s execution would have the effect of infringing the 
applicant’s fundamental rights, it was not open to the appeal judges to apply the 
effects of the ground for optional non-execution referred to in Article 6(4) of the 
Law of 19 December 2003, and, since the applicant resided in Belgium, order that 
he serve in Belgium the prison sentence that had been imposed on him in the 
issuing State. 
3 Pursuant to Article 1(2) of Council Framework Decision 2002/584/JHA of 
13 June 2002 on the European arrest warrant and the surrender procedures 
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between Member States, the latter 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. 
It is apparent from the judgment of the Court of Justice of the European Union in 
Cases C-354/20 PPU and C-412/20 PPU of 17 December 2020 that the objective 
of the mechanism of the European arrest warrant is in particular to combat the 
impunity of a requested person who is present in a territory other than that in 
which he or she has allegedly committed an offence. 
Furthermore, in its judgment in Case C-579/15 of 29 June 2017, the Court of 
Justice of the European Union held that the competent national court, by taking 
the whole body of domestic law into consideration and applying the interpretative 
methods recognised by it, is obliged to interpret the provisions of national law at 
issue in the main proceeding, so far as is possible, in the light of the wording and 
the purpose of that framework decision. That obligation meant, in the case then 
before the Court of Justice, that, in the event of a refusal to execute a European 
arrest warrant issued with a view to the surrender of a person who had been finally 
judged in the issuing Member State and given a custodial sentence, the judicial 
authorities of the executing Member State were themselves required to ensure that 
the sentence pronounced against that person was actually executed. 
However, Article 1(3) of the framework decision states that the decision is not to 
have the effect of modifying the obligation to respect fundamental rights and 
fundamental legal principles as enshrined in Article 6 of the Treaty on European 
Union. 
Article 4(5) of the Law of 19 December 2003, which transposed the above-
mentioned framework decision into Belgian law, provides that the execution of a 
European arrest warrant is to be refused if there are valid grounds for believing 
that its execution would have the effect of infringing the fundamental rights of the 
person concerned, as enshrined in Article 6 of the Treaty on European Union. 
That ground for non-execution of the European arrest warrant is mandatory. 
Finally, pursuant to Article 6(4) of the same law, transposing Article 4(6) of the 
framework decision, the execution of the European arrest warrant may be refused 
if it has been issued for the purposes of execution of a sentence, where the person 
concerned lives or resides in Belgium and the competent Belgian authorities 
undertake to execute the sentence in accordance with Belgian law. In that event, 
Article 38(1) of the Law of 15 May 2012 provides that the decision of the 
investigating court entails the recognition and execution of the custodial sentence 
or measure involving deprivation of liberty referred to in the judicial decision that 
is the subject of the European arrest warrant and that that sentence is to be 
executed in accordance with the provisions of the Law of 15 May 2012. 
4 The plea raises the question of whether, where the courts of the State executing a 
European arrest warrant have found that, in the event of the surrender of the 
REQUEST FOR A PRELIMINARY RULING OF 22. 11. 2023 – CASE C-722/23 
 
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requested person to the issuing State, there is a risk of that person’s fundamental 
rights being infringed and that that risk cannot be averted within a reasonable 
period, with the consequence that they are obliged to refuse to execute the 
European arrest warrant, those same courts of the executing State may, 
nonetheless, decide, in order to prevent impunity on the part of a requested person 
who resides in a territory other than that in which he or she allegedly committed 
an offence, that they should order, in accordance with the provision transposing 
Article 4(6) of the framework decision into national law, the execution in the 
executing Member State of the custodial sentence imposed on the person 
concerned in the Member State that issued the European arrest warrant, such 
sentence being referred to in that warrant. 
In other words, does the finding that there is a ground for refusal of mandatory 
execution of the European arrest warrant preclude the application of the effects of 
the ground for optional non-execution of the European arrest warrant referred to in 
Article 4(6) of Council Framework Decision 2002/584/JHA of 13 June 2002 on 
the European arrest warrant? 
5 In contrast to the case that gave rise to the above-mentioned judgment of the Court 
of Justice of the European Union in Case C-579/15, in the present case the finding 
that the person concerned resides in the executing State and that the ground for 
optional non-execution of the European arrest warrant referred to in Article 4(6) 
of the framework decision must be applied was preceded by the finding that the 
surrender of that person to the issuing State would entail a risk of infringement of 
his fundamental rights, and that therefore the ground of mandatory non-execution 
referred to in Article 4(5) of the Law of 19 December 2003 was to be applied. 
Only an interpretation of Article 4(6) of Council Framework Decision 
2002/584/JHA of 13 June 2002 can provide an answer to the above question. 
It is therefore necessary, pursuant to the third paragraph of Article 267 of the 
Treaty on the Functioning of the European Union, to refer a question to the Court 
of Justice of the European Union in the terms set out in the operative part. 
6 Since the applicant was released on 12 September 2023 by the investigating judge 
subject to conditions restricting his freedom of movement and prohibiting him, in 
particular, from travelling abroad, and since the effects of that decision will 
continue until a final decision has been taken on the execution of the European 
arrest warrant, and in so far as the answer to the question posed is decisive in that 
regard, the Court of Cassation asks the Court of Justice of the European Union to 
consider applying the urgent procedure provided for in the last paragraph of 
Article 267 of the Treaty on the Functioning of the European Union and in 
Article 107 of the Rules of Procedure of the Court of Justice of the European 
Union of 25 September 2012. 
7 Consideration of the plea in law is suspended until the Court of Justice of the 
European Union has ruled on the question set out below. 
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ON THOSE GROUNDS, 
THE COURT, 
Stays the proceedings until the Court of Justice of the European Union has 
delivered a preliminary ruling on the following question: 
Where the courts of the Member State executing a European arrest warrant have 
found that, in the event of the surrender of the requested person to the issuing 
Member State, there is a risk of that person’s fundamental rights being infringed 
in connection with the execution of the foreign sentence, with the consequence 
that there are grounds for refusing to execute the European arrest warrant, does 
Article 4(6) of Council Framework Decision 2002/584/JHA of 13 June 2002 on 
the European arrest warrant and the surrender procedures between Member States 
authorise courts of the executing Member State that find that the requested person 
resides in the executing State to decide subsequently that, in accordance with the 
provision transposing Article 4(6) of the framework decision into national law, the 
custodial sentence imposed in the Member State that issued the European arrest 
warrant, which is referred to in that warrant, is to be served in the executing 
Member State? 
[…] 
[…] [date and signatures]