Opinion of the Advocate General — ECLI:EU:C:2022:955
Date: 2022-12-01
Language of the case: Italian
Subject matter: Judicial cooperation in criminal matters;Police cooperation;Area of freedom, security and justice
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary C-699/21 – 1 
Case C-699/21 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
22 November 2021 
Referring court:  
Corte costituzionale (Italy) 
Date of the decision to refer:  
18 November 2021 
Applicant:  
E.D.L. 
Intervener:  
Presidente del Consiglio dei Ministri 
  
Subject matter of the main proceedings 
The main proceedings concern questions of the constitutionality of Articles 18 and 
18-bis of legge n. 69 del 2005 (Law No 69 of 2005) raised by the Corte d’appello 
di Milano (Court of Appeal, Milan, Italy) in criminal proceedings against E.D.L., 
in so far as those articles do not include a ground for refusing surrender under 
European arrest warrant (‘EAW’) procedures, based on chronic and indefinite 
illness entailing the risk of exceptionally severe consequences for the person 
whose surrender is sought. 
Subject matter and legal basis of the request for a preliminary ruling 
The request for a preliminary ruling under Article 267 TFEU relates to the 
interpretation of Article 1(3) of Council Framework Decision 2002/584/JHA on 
the European arrest warrant, examined in the light of Articles 3, 4 and 35 of the 
Charter of Fundamental Rights of the European Union (‘the Charter of 
Fundamental Rights’).  
EN 
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Question referred for a preliminary ruling 
Must Article 1(3) of Council Framework Decision 2002/584/JHA on the European 
arrest warrant, examined in the light of Articles 3, 4 and 35 of the Charter of 
Fundamental Rights of the European Union, be interpreted as meaning that, where 
it considers that the surrender of a person suffering from a serious chronic and 
potentially irreversible disease may expose that person to the risk of suffering 
serious harm to his or her health, the executing judicial authority must request that 
the issuing judicial authority provide information enabling the existence of such a 
risk to be ruled out, and must refuse to surrender the person in question if it does 
not obtain assurances to that effect within a reasonable period of time? 
Provisions of EU law relied on 
Council Framework Decision 2002/584/JHA of 13 June 2002 on the European 
arrest warrant and the surrender procedures between Member States, in particular 
Articles 1(3), 3, 4, 4a, 15 and 23(4) thereof 
Charter of Fundamental Rights of the European Union, in particular Articles 3, 4, 
35, 47, 51(1) and 52(4) thereof 
TEU: Articles 6 and 19 
Provisions of national law relied on 
Costituzione (Italian Constitution): Articles 2, 3, 32 and 111 
Codice di procedura penale (Italian Code of Criminal Procedure): 
Articles 705(2)(c-bis) and 275(4-bis) 
Decreto del Presidente della Repubblica 9 ottobre 1990, n. 309, Testo unico delle 
leggi in materia di disciplina degli stupefacenti e sostanze psicotrope, 
prevenzione, cura e riabilitazione dei relativi stati di tossicodipendenza 
(Presidential Decree No 309 of 9 October 1990, Consolidated text of laws on the 
regulation of narcotic drugs and psychotropic substances, and prevention, 
treatment and rehabilitation of drug dependence) 
Legge 22 aprile 2005, n. 69, Disposizioni per conformare il diritto interno alla 
decisione quadro 2002/584/GAI del Consiglio, del 13 giugno 2002, relativa al 
mandato d’arresto europeo e alle procedure di consegna tra Stati membri (Law 
No 69 of 22 April 2005, Provisions to bring national law into line with Council 
Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest 
warrant and the surrender procedures between Member States), in particular:  
- Articles 2, 18 and 18-bis; 
E.D.L. 
 
3 
- Article 1(1), in the version in force before the intervention of decreto 
legislativo n. 10 del 2021 (Legislative Decree No 10/2021): ‘This law implements, 
in national law, the provisions of Council Framework Decision 2002/584/JHA of 
13 June 2002 (‘the Framework Decision’) on the European arrest warrant and the 
surrender procedures between Member States of the European Union in so far as 
such provisions are not incompatible with the highest principles of the 
Constitution governing fundamental rights, and the rights of liberty and due 
process of law’; 
- Article 23(3): ‘When there are humanitarian or serious reasons to believe that 
surrender would endanger the life or health of the person concerned, the President 
of the Court of Appeal, or the judge delegated by him or her, may by reasoned 
order suspend the execution of the surrender measure, giving immediate notice to 
the Minister for Justice’ 
Decreto legislativo 2 febbraio 2021, n. 10, Disposizioni per il compiuto 
adeguamento della normativa nazionale alle disposizioni della decisione quadro 
2002/584/GAI, relativa al mandato d’arresto europeo e alle procedure di 
consegna tra stati membri, in attuazione delle delega di cui all’articolo 6 della 
legge 4 ottobre 2019, n. 117 (Legislative Decree No 10 of 2 February 2021, 
Provisions to ensure the full adaptation of national legislation to the provisions of 
Council Framework Decision 2002/584/JHA on the European arrest warrant and 
the surrender procedures between Member States, in implementation of the 
delegation provided for in Article 6 of legge 4 ottobre 2019, n. 117 (Law No 117 
of 4 October 2019)) 
Succinct presentation of the facts and procedure in the main proceedings 
1 On 9 September 2019, the Općinski sud u Zadru (Municipal Court, Zadar, 
Croatia) issued a European arrest warrant for the purpose of prosecuting E.D.L., 
who was charged with the offence of possession with intent to distribute and the 
sale of drugs, committed on Croatian territory in 2014. 
2 Before the Milan Court of Appeal, the court with jurisdiction for the surrender 
procedure, the lawyers acting for the person whose surrender is sought submitted 
medical documentation attesting to major psychiatric disorders, some of which 
related to past abuse of narcotics. The Court of Appeal ordered that E.D.L. 
undergo a psychiatric examination, which revealed the presence of a psychotic 
disorder requiring treatment. The examination report also pointed to a high suicide 
risk associated with possible imprisonment and concluded that the person 
concerned would not be able to cope with prison life. 
3 On the basis of that report, the Milan Court of Appeal held that the transfer of the 
person concerned to Croatia in execution of the European arrest warrant (EAW) 
would halt the possibility of treatment, resulting in a worsening of his general 
medical condition and a genuine risk to his health. 
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4 However, the court noted that the obligation to execute an EAW is limited only by 
the grounds for refusal exhaustively listed in Articles 18 and 18-bis of Law 
No 69/2005, whereas there is no general ground for refusal based on the need to 
avoid infringements of the fundamental rights of the person whose surrender is 
sought, such as the right to health. The Milan Court of Appeal therefore stayed the 
proceedings and brought an action to determine constitutionality before the Corte 
costituzionale (Constitutional Court, Italy).  
The essential arguments of the trial court in the main proceedings  
5 According to the Milan Court of Appeal, the legislation in question infringes the 
right to health, which is protected by Articles 2 and 32 of the Constitution. That 
legislation also infringes the principle of equality laid down in Article 3 of the 
Constitution in that persons on whom an EAW has been served are treated more 
unfavourably compared to persons subject to an extradition request. 
Article 705(2)(c-bis) of the Code of Criminal Procedure expressly states that 
extradition will be refused if reasons of health or age create a risk of exceptionally 
serious consequences for the person whose extradition is sought. 
6 Lastly, the failure to legislate a ground for refusal based on the medical condition 
of the person concerned is contrary to the principle of the reasonable duration of 
proceedings laid down in Article 111 of the Constitution, since in such cases, 
because of the measure suspending execution issued following the judgment 
ordering surrender, the applicable rules would result in procedural paralysis that 
would last indefinitely. 
Principal arguments of the parties to the main proceedings 
7 The Presidente del Consiglio dei Ministri (President of the Council of Ministers) 
(‘the intervener’) intervened in the proceedings before the Constitutional Court, 
requesting that the questions of constitutionality be declared inadmissible or, in 
any event, unfounded. 
8 The intervener asserts, first, that the possibility of suspending the surrender, 
guaranteed by Article 23(3) of Law No 69/2005 fundamentally prevents any 
infringement of the right to health of the person on whom the EAW has been 
served. The intervener then observes that the psychiatric report ordered by the 
Milan Court of Appeal does not show that the psychiatric conditions from which 
the person concerned is suffering are irreversible, and neither does it provide 
specific evidence able to confirm the suicide risk. 
9 In any case, in the view of the intervener, the Court of Appeal could have 
followed the procedure indicated by the Court of Justice of the European Union in 
its case-law in this specific case. The Court of Appeal should also have enquired 
as to the forms of supervision and therapeutic and psychological assistance that 
could be provided by the State issuing the arrest warrant in the event of surrender. 
E.D.L. 
 
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10 According to the intervener, the implementation of the procedure introduced by 
the Court of Justice since the judgment in Aranyosi and Căldăraru (C-404/15 and 
C-659/15 PPU) also means that the objections relating to the reasonable duration 
of the surrender procedure and the alleged infringement of the principle of equal 
treatment are without foundation. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
11 First, the Constitutional Court – the referring court – stresses above all that neither 
Article 18 nor Article 18-bis of Law No 69/2005 provides that the surrender of a 
person must or may be refused if it would expose that person to an exceptionally 
serious risk to his or her health. In the view of the Constitutional Court, that 
applies both to those articles as worded before the amendment introduced by 
Legislative Decree No 10/2021, and to the same articles in their current wording. 
12 The court notes that the questions of constitutionality concern not only the 
compatibility of the contested provisions with the Italian Constitution but also 
involve – first and foremost – the interpretation of EU law (in particular 
Articles 3, 4 and 4a of Framework Decision 2002/584/JHA), which is specifically 
implemented by the national law. 
13 In the referring court’s view, it is necessary, first of all, to ask whether the danger 
of serious damage to the health of the person concerned resulting from that person 
being surrendered to the judicial authority of the issuing State can be adequately 
dealt with by suspending the surrender under Article 23(3) of Law No 69/2005, 
which transposes Article 23(4) of Framework Decision 2002/584/JHA into Italian 
law. According to the provisions of the Framework Decision, which must be used 
as the basis for interpreting the Italian provision, the ‘exceptional’ postponement 
of surrender seems to be permitted in relation to situations of a purely temporary 
nature that would make the immediate surrender of the person concerned contrary 
to human dignity. 
14 Conversely, the remedy of suspending surrender cannot be considered appropriate 
in the case of serious chronic medical conditions of an indefinite nature such as 
those afflicting the person concerned in the present case. In such a case, even if it 
has already been authorised by the court of appeal, the postponement of execution 
of the European arrest warrant would be likely to last indefinitely. This would 
ultimately deprive the surrender measure of any practical effect and might thus 
prevent the issuing State from prosecuting the person concerned or enforcing the 
sentence against that person, as the case may be. Lastly, continued postponements 
based on chronic health reasons would keep the person concerned in a situation of 
constant uncertainty as to his or her fate, which would conflict with the need to 
guarantee a reasonable duration in all proceedings that could affect his or her 
personal freedom. 
15 The referring court then asks whether the general provisions laid down in 
Articles 1 and 2 of Law No 69/2005, in the wording applicable in the main 
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proceedings, which applied before the amendments made by Legislative Decree 
No 10/2021, authorise the Italian judicial authority not to order surrender even in 
cases that differ from those referred to in Articles 18 and 18-bis of that law, where 
such surrender might, in any event, expose the person concerned to the risk of 
infringement of a fundamental right recognised by the Italian Constitution or by 
EU law. According to the referring court, such an interpretation cannot be 
supported. 
16 Moreover, neither the former text of Articles 1 and 2 of Law No 69/2005 nor the 
current text of Article 2 of that law expressly clarifies whether the individual 
judicial authority responsible for the surrender procedure is required to verify – in 
each specific case – whether the execution of a European arrest warrant issued by 
the judicial authority of another Member State might result in the infringement of 
one of the (national and European) rights or principles by which it is bound under 
Law No 69/2005. 
17 The general principle whereby Framework Decision 2002/584/JHA, and 
consequently the associated implementing provisions within each Member State, 
must respect the fundamental rights enshrined in Article 6 TEU is explicitly stated 
both in recital 12 and in Article 1(3) of that decision. Moreover, that principle 
underlies the entire legal order of the European Union (Article 51(1) of the 
Charter of Fundamental Rights). 
18 As held by the Court of Justice, Member States are, however, precluded from 
making the implementation of EU law in areas subject to full harmonisation 
conditional on compliance with purely national standards of protection of 
fundamental rights, where this could compromise the primacy, unity and 
effectiveness of EU law (judgments of 26 February 2013, Fransson, C-617/10, 
paragraph 29, and of 26 February 2013, Melloni, C-399/11, paragraph 60). The 
fundamental rights that must be respected by the Framework Decision are, 
essentially, those recognised by EU law and consequently by all Member States 
when implementing EU law: fundamental rights as they result from the 
constitutional traditions common to the Member States (Article 6(3) TEU and 
Article 52(4) of the Charter of Fundamental Rights). 
19 It follows that it is for EU law, in the first place, to lay down the standards of 
protection of fundamental rights that must be complied with to guarantee the 
legitimacy of the rules governing the European arrest warrant and its actual 
execution at national level, since this is a matter subject to full harmonisation. The 
fact that Articles 3, 4 and 4a of the Framework Decision lay down possible 
grounds for refusing surrender aims to ensure that the actual implementation of 
the rules governing the European arrest warrant procedure respects the 
fundamental rights of the individual. 
20 At the same time, those rules are designed to ensure the uniform and effective 
application of the legislation governing the European arrest warrant, which is 
based on the premiss of mutual trust between the Member States as regards 
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respect for fundamental rights by each. Those requirements for uniform and 
effective application mean that, in general, the judicial authority in the executing 
Member State is precluded from refusing to surrender the person concerned in 
cases other than those required or permitted in the Framework Decision, on the 
basis of purely national standards of protection – not shared at European level – of 
the fundamental rights of the person whose surrender is sought (judgment of 
5 April 2016, Aranyosi and Căldăraru, C-404/15 and C-659/15 PPU, 
paragraph 80). 
21 Consequently, it would be manifestly contrary to that principle if the national law 
were to be interpreted as giving the executing judicial authority the power to 
refuse to surrender the person concerned in a case other than those provided for by 
law in accordance with the provisions of the Framework Decision, on the basis of 
general provisions such as those contained in Articles 1 and 2 of Law No 69/2005. 
22 This applies even if, in the view of the competent court, the execution of the 
European arrest warrant would, in the specific case, lead to a result in conflict 
with the highest principles of the constitution or with the inviolable rights of the 
person, since it is for the Constitutional Court alone to verify the compatibility of 
EU law – or of national law implementing EU law – with those highest principles 
and inviolable rights. 
23 Moreover, EU law itself could not tolerate the execution of a European arrest 
warrant that resulted in a breach of the fundamental rights of the person concerned 
recognised by the Charter of Fundamental Rights and by Article 6(3) TEU. 
24 The case-law of the Court of Justice has recently intervened several times to 
establish – by way of interpretation – procedures capable of reconciling the 
requirements of mutual recognition and enforcement of judicial decisions in 
criminal matters with respect for the fundamental rights of the person concerned, 
specifically in order to prevent the implementation of the Framework Decision on 
the European Arrest Warrant from giving rise in a specific case to infringements 
of the fundamental rights of the person whose surrender is sought, in situations 
where the Framework Decision does not expressly lay down grounds for refusing 
surrender. 
25 This is the case, in particular, in relation to the risk that the execution of a 
European arrest warrant might expose the person concerned to conditions 
involving inhuman and degrading detention in the issuing Member State as a 
result of systemic or generalised deficiencies or which may affect certain groups 
of people, or certain places of detention (judgments in Aranyosi, as cited; of 
25 July 2018, Case C-220/18 PPU, ML; and of 15 October 2019, Case C-128/18, 
Dorobantu), and the risk of being subject to proceedings which do not respect the 
guarantees laid down in Article 47 of the Charter of Fundamental Rights, on 
account of systemic or generalised deficiencies so far as concerns the 
independence of the issuing Member State’s judiciary (judgments of 25 July 2018, 
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Case C-216/18 PPU, LM, and of 17 December 2020, Joined Cases C-354/20 PPU 
and C-412/20 PPU, L and P). 
26 The purpose of the aforementioned procedures, which are based on a dialogue 
between the judicial authorities of the executing State and those of the issuing 
State pursuant to Article 15(2) of the Framework Decision, is to enable the 
executing judicial authorities to ensure, in a specific case, that the surrender of the 
person concerned will not expose that person to possible infringements of his or 
her fundamental rights. Only if, as a result of that dialogue, it is not possible to 
obtain such an assurance, may the executing judicial authority decide not to 
execute the European arrest warrant, thus refusing surrender in a case not 
expressly authorised by the Framework Decision. 
27 Those judgments of the Court of Justice have thus introduced mechanisms into 
EU law to guarantee the protection of the fundamental rights of persons subject to 
a European arrest warrant within the framework of a system of common rules 
binding on all Member States. 
28 It is necessary, however, to ask whether the principles laid down by the Court of 
Justice in those judgments must also be extended, by analogy, to cases in which 
the medical condition of the individual whose surrender is sought is likely to 
deteriorate significantly in the event of surrender, with particular reference to the 
obligation for direct dialogue between the judicial authorities of the issuing State 
and those of the executing State and to the possibility for the latter to terminate the 
surrender procedure if the existence of a risk of infringement of the fundamental 
rights of the person concerned cannot be ruled out within a reasonable period of 
time. 
29 The need for uniformity and effectiveness in the application of European arrest 
warrants within the legal area of the European Union means that the answer to that 
question must be reserved for the Court of Justice as the pre-eminent interpreter of 
EU law (Article 19(1) TEU). 
30 The referring court sets out arguments in favour of extending the principles laid 
down by the Court of Justice in the abovementioned judgments to the present 
case. In particular, in the Italian legal system, Article 32(1) of the Constitution 
protects health as a ‘fundamental right of the individual’. On the basis of that 
right, the public authorities not only have a duty to refrain from harmful conduct 
but also have a positive obligation to guarantee that individuals are provided with 
the medical treatment essential for protecting their health. That right is also fully 
recognised for persons in prison, whether they have been convicted or remanded 
in custody. Specifically to protect that right, Italian criminal procedural law 
excludes, in principle, the possibility of ordering or maintaining pre-trial detention 
of a person suffering from a ‘particularly serious illness, as a result of which that 
person’s health condition is incompatible with detention and, in any case, such as 
would not allow adequate treatment in cases of detention in prison’ 
(Article 275(4-bis), Code of Criminal Procedure). Moreover, the rules governing 
E.D.L. 
 
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defendants who are drug or alcohol addicts enrolled in therapeutic programmes 
provide, in principle, for the replacement of pre-trial detention by a less severe 
measure for those undergoing or intending to undergo a programme of recovery 
from addiction. 
31 There can also be no doubt that health is a fundamental human right under EU law 
(Articles 3 and 35 of the Charter of Fundamental Rights). That right must also be 
recognised in full for those accused of committing a criminal offence. 
32 Furthermore, if the surrender of the person concerned to the State issuing a 
European arrest warrant were to expose him or her to a serious risk of severe 
harmful consequences for his or her health, this would also represent an 
infringement of Article 4 of the Charter of Fundamental Rights, which enshrines 
the right of a person – which cannot be offset against any other counterinterest, 
given its absolute nature (judgment in Aranyosi, paragraph 85) – not to be 
subjected to inhuman or degrading treatment, in accordance also with Article 3 of 
the European Convention on Human Rights (ECHR) (judgments of the European 
Court of Human Rights of 16 April 2013, Aswat v. United Kingdom; of 1 October 
2019, Savran v. Denmark; and of 13 December 2016, Paposhvili v. Belgium). The 
same principle was also upheld by the Court of Justice itself in a judgment 
concerning the European asylum system (judgment of 16 February 2017, Case 
C-578/16 PPU, C.K. and Others v Republika Slovenija, paragraphs 37 and 68). 
33 On the other hand, the need to protect the fundamental rights of the requested 
person must be reconciled with the interest in prosecuting suspected offenders, 
establishing their liability and, if they are found guilty, ensuring that they are 
punished. That interest cannot be regarded as lying solely with the State issuing 
the EAW, since the Framework Decision presupposes a common commitment by 
the Member States 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’ (Joined Cases C-354/20 PPU and C-412/20 PPU, paragraph 62). 
Protecting the fundamental right to health, although essential, cannot lead to 
solutions that result in systematic impunity for serious crimes. 
34 However, neither can the issuing State be left with the sole option of bringing 
proceedings in absentia against the person concerned. On the one hand, not all 
Member States allow trials in absentia and, on the other hand, such a solution 
would be detrimental to the person concerned, who would be deprived of the 
possibility of defending him or herself effectively in a trial potentially leading to a 
conviction enforceable against him or her. 
35 According to the referring court, by analogy with the position taken by the Court 
of Justice in the above-mentioned judgments, a direct dialogue between the 
judicial authorities of the issuing State and the executing State could enable them 
to identify solutions that would make it possible, in the specific case, to put the 
person concerned on trial in the issuing State, guaranteeing that person full rights 
of defence, and at the same time avoid exposing him or her to the risk of serious 
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damage to his or her health, for example by placing that person in a suitable 
facility in the issuing State during the trial. Only if that dialogue does not succeed 
in finding a suitable solution within a reasonable period of time should the 
executing judicial authority be allowed to refuse surrender. 
Lastly, the referring court requests that the reference for a preliminary ruling be 
determined through an expedited procedure pursuant to Article 105 of the Rules of 
Procedure of the Court of Justice. In the view of the referring court, the case in 
question, although it originates in proceedings concerning a person who is not 
currently subject to any supervision measure, raises questions of interpretation 
relating to central aspects of the operation of the EAW and the interpretation 
sought is likely to have a general effect, both for the authorities called upon to 
cooperate in the context of the EAW and for the rights of persons whose surrender 
is sought.