Opinion of the Advocate General — ECLI:EU:C:2025:159
Date: 2025-03-06
Language of the case: French
Procedure: Action for annulment;Appeal;Arbitration clause
Origin: France

Summary C-40/24 – 1 
Case C-40/24 [Derterti] i 
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: 
23 January 2024 
Referring court: 
Corte suprema di cassazione (Italy) 
Date of the decision to refer: 
19 December 2023 
Applicant: 
GE 
  
Subject matter of the main proceedings 
Surrender of the applicant to France by the Italian authorities, pursuant to a 
European arrest warrant issued for the purpose of executing a sentence, although 
in France he was tried ‘in absentia’, without having been informed of the trial and 
without having enjoyed the right to a technical defence, that is to say, the right to 
appoint and be assisted by a lawyer. 
Subject matter and legal basis of the request 
Under Article 267 TFEU and Article 105 of the Rules of Procedure of the Court 
of Justice, the interpretation, inter alia, of Article 6 TEU and Article 4a of 
Framework Decision 2002/584/JHA, is sought, with regard, in particular, to the 
rights of defence of the accused person in a criminal trial held ‘in absentia’. 
Questions referred for a preliminary ruling 
1) Must Article 6 of the Treaty on European Union be interpreted as meaning 
that the right of the accused to technical defence in a criminal trial is included 
 
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 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-40/24 
 
2  
among the rights enshrined in the Charter of Fundamental Rights of the European 
Union of 7 December 2000 and the fundamental rights guaranteed by the 
European Convention for the Protection of Human Rights and Fundamental 
Freedoms and resulting from the constitutional traditions common to the Member 
States of the European Union, which that Article 6 recognises as general 
principles of EU law, and with which Council Framework Decision 
2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender 
procedures between Member States, requires compliance? 
2) If so, can the right of the accused person to technical defence in a criminal 
trial nevertheless be regarded as respected where the judgment imposing a 
sentence was handed down against an accused person who was absent and not 
assisted by a lawyer, either of his own choosing or appointed by the court hearing 
the action, although subject to the right of that accused person, once surrendered, 
to obtain a retrial with the safeguards for the rights of defence? 
3) Consequently, must Article 4a of Council Framework Decision 
2002/584/JHA, inserted by Council Framework Decision 2009/299/JHA of 
26 February 2009, be interpreted as meaning that the requested State of surrender 
has the power to refuse to execute a European arrest warrant issued for the 
purpose of executing a custodial sentence or a detention order if the person 
concerned did not appear in person at the trial resulting in the decision, even if the 
conditions laid down in paragraph (1)(d) of that Article 4a are satisfied, but the 
person concerned was not assisted by a lawyer, appointed by him or by the court 
hearing the action of its own motion. 
Provisions of European Union law and case-law relied on 
Treaty on European Union (‘TEU’): Article 6. 
Charter of Fundamental Rights of the European Union (‘the Charter’): Articles 47, 
48 and 52. 
Directive 2013/48/EU of the European Parliament and of the Council of 
22 October 2013 on the right of access to a lawyer in criminal proceedings and in 
European arrest warrant proceedings, and on the right to have a third party 
informed upon deprivation of liberty and to communicate with third persons and 
with consular authorities while deprived of liberty: recitals 4, 12, 19, 27 and 54, 
and Articles 1, 2, 3, 8 and 9. 
Council Framework Decision of 13 June 2002 on the European arrest warrant and 
the surrender procedures between Member States (2002/584/JHA), as amended by 
Council Framework Decision 2009/299/JHA of 26 February 2009 (‘the 
Framework Decision’): recital 12, Article 1(3) and Article 4a(1). 
European Convention for the Protection of Human Rights and Fundamental 
Freedoms (‘the ECHR’): Article 6(3)(c). 
DERTERTI 
 
3 
Judgments of the Court of Justice of the European Union (‘the Court’) of 
31 January 2023, Gordi, C-158/21; 26 February 2013, Melloni, C-399/11; 
23 March 2023, LU and PH, C-514/21 and 515/21; 10 August 2017, Zdziaszek, 
C-271/17; and 12 March 2020, VW, C-659/18. 
Judgment of the European Court of Human Rights (‘the ECtHR’) of 13 February 
2001, Krombach v. France, no. 29731/96. 
Provisions of national law and case-law relied on 
Paragraph 2 of Article 24 of the Costituzione della Repubblica italiana 
(Constitution of the Italian Republic): ‘Defence is an inviolable right at every 
stage and instance of legal proceedings’. 
Article 2 of Legge n. 69 (Law No 69) of 22 April 2005, as amended by legge n. 10 
(Law No 10) of 2 February 2021 (‘the EAW Law’): ‘The execution of the 
European arrest warrant may not, under any circumstances, entail a breach of the 
overriding principles of the constitutional order of the State or of the inalienable 
rights of the individual recognised by the Constitution, of the fundamental rights 
and the fundamental legal principles enshrined in Article 6 TEU or of the 
fundamental rights guaranteed by the Convention for the Protection of Human 
Rights and Fundamental Freedoms …’ Furthermore, under Article 6(1-bis)(d) of 
that law, in the case of a requested person for the purposes of executing a 
judgment imposing a sentence handed down following a trial ‘in absentia’, 
surrender is nevertheless permissible if, although the person concerned has not 
been personally served with the decision, he or she will be personally served with 
it without delay after the surrender in the issuing Member State and will be 
expressly informed of the right to obtain a new and complete re-examination on 
the merits of his or her position, with the possibility of producing new evidence 
and obtaining the reversal of that decision in accordance with the instruments 
provided for that purpose by the national law of the requesting State. 
Judgments of the Corte costituzionale (Constitutional Court): No 190 of 1970, 
No 55 of 1971, No 255 of 1974, No 172 of 1976, No 125 of 1979, No 188 of 
1980, and No 144 of 1995. 
Judgments of the Suprema Corte di cassazione (Supreme Court of Cassation): 
judgments of the Sesta Sezione (Sixth Chamber) No 5400 of 30 January 2008, 
Salkanovic, and No 14721 of 7 May 2020, Spahiu. 
Succinct presentation of the facts and procedure in the main proceedings 
1 By judgment of 12 October 2017, which became enforceable, the Tribunal 
d’Auxerre (District Court, Auxerre, France), following a criminal trial held in the 
absence of the accused person and in the absence of a defence lawyer, pursuant to 
Articles 379-2 and 379-6 of the French Code of Criminal Procedure, sentenced 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-40/24 
 
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GE, an Albanian national, for offences of unlawful importation, sale and purchase 
of narcotics. For the purpose of executing the sentence, on 6 September 2021 the 
French Republic issued a European arrest warrant with a view to obtaining the 
surrender of GE, who is in Italy. 
2 The Corte di appello di Firenze (Court of Appeal, Florence) declared that the 
conditions for the surrender of the Albanian national GE to the French Republic 
were satisfied. The arrest warrant indicated that, under French law, the sentenced 
person may, after surrender, lodge an objection against the judgment within ten 
days of its service. The Court of Appeal thus held that the requirement laid down 
in Article 6 of the EAW Law, which allows surrender where the requested person, 
although not having had notice of the decision taken following a trial which took 
place in his absence, will receive that notice after surrender and will be expressly 
informed of the right to a complete re-examination of his position, had been met. 
3 GE brought an appeal against the judgment of the Court of Appeal, Florence, 
before the Corte di cassazione (Court of Cassation, Italy), the referring court. 
The essential arguments of the parties in the main proceedings 
4 GE claims that there has been an infringement of Article 2 of the EAW Law, in 
that he was tried in absentia, without having received a summons to appear in 
court, without the assistance of a lawyer and on a general indictment, which 
resulted in infringing the right to technical defence and the right that both sides be 
heard in the formation of evidence, which is necessary for a fair trial. 
5 As regards the argument of the Court of Appeal that the judgment handed down in 
absentia is in any event revocable at the request of the sentenced person after he 
becomes aware of it, GE replies that the surrender was requested not in order to 
hold a trial but to execute a sentence, for which more stringent safeguards apply. 
Moreover, as regards the argument of the Court of Appeal that the absence of a 
lawyer is justified by the possibility of self-defence, he replies that, for the 
purpose of the latter, the lawful summons of the accused person before the court 
and his presence at trial are still necessary. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
6 In the past, in many similar cases, the Court of Cassation held that the arrest 
warrant issued by the French judicial authorities on the basis of a judgment 
imposing a sentence handed down in absentia, without safeguards of both sides 
being heard and of defence, was in any event in conformity with the principles of 
a fair trial, in so far as French law guarantees to the sentenced person the 
possibility of requesting, by means of an opposition, a new trial in accordance 
with the principle that both sides be heard and the rights of defence; however, the 
Court of Cassation itself, the referring court, takes the view that that approach 
should now be re-examined. 
DERTERTI 
 
5 
7 According to the case-law of the Constitutional Court, the right of defence, 
protected by Article 24 of the Constitution, consists essentially in guaranteeing 
that both sides be heard and the presence of a lawyer in all types of proceedings. 
In that sense, the reference to ‘every stage and instance of legal proceedings’, 
even though it does not necessarily mean that both sides being heard and the 
presence of the lawyer must be guaranteed at all times and in every procedural 
step, nevertheless requires it to be ascertained, in relation to the importance of the 
individual step, whether the absence of the lawyer results, by the effects to which 
it gives rise, in an actual infringement of the constitutional right to defend oneself 
at trial. The right of defence is inalienable and the mandatory nature of the 
appointment of a lawyer assigned officially is intended to protect fundamental 
human values and constitutional principles. 
8 Article 2 of the EAW Law with the 2001 amendment lost the express reference to 
respect for the rights of defence as a prerequisite for the execution of the European 
arrest warrant. However, the referring court considers, on the basis of the case-law 
of the Constitutional Court cited above, that the right of technical defence is one 
of the ‘inalienable rights of the person recognised by the Constitution’, the 
‘fundamental rights’ referred to in Article 6 TEU, and the rights guaranteed by the 
ECHR, infringement of which requires, under Article 2 of the EAW Law, the 
Italian State to refuse to execute the European arrest warrant. The national law 
must therefore be interpreted not only in the light of the Constitution but also of 
EU law which it implements. Furthermore, as the Constitutional Court recalled, 
the fundamental rights, to which the Framework Decision is bound under 
recital 12 and Article 3(1) thereof, are those recognised by EU law, and the 
common constitutional traditions of the Member States contribute to their 
definition. It is therefore for EU law to establish the levels of protection of 
fundamental rights to which the rules on the European arrest warrant are subject, 
since it is a harmonised matter. Thus, according to the Constitutional Court, in 
order to ensure the uniform application of the European arrest warrant, Member 
States cannot refuse surrender except in cases expressly provided for in the 
Framework Decision. 
9 Article 4a of the Framework Decision (added by the 2009 amendment), in 
accordance with the case-law of the Court, according to which execution of the 
European arrest warrant constitutes the rule, whereas refusal to execute is an 
exception and must be interpreted strictly (see judgment in Gordi, paragraph 68), 
provides that the judicial authority may refuse to execute a European arrest 
warrant issued on the basis of a decision rendered following a trial, if the person 
concerned ‘did not appear in person at the trial resulting in the decision’, unless 
that warrant contains one of the indications referred to in points (a) to (d) of that 
article, that is to say: (a) the person was summoned in person and informed of the 
trial which resulted in the decision and that a decision may be handed down if he 
or she does not appear for the trial; or (b) the person, being aware of the date of 
the trial, was assisted at the trial by a legal counsellor appointed by him or her or 
assigned officially; or (c) after being served with the decision and being informed 
about the right to a retrial or an appeal, expressly stated that he or she does not 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-40/24 
 
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contest the decision or did not request a retrial or appeal within the applicable time 
frame; or (d) was not personally served with the decision but will be served with it 
after the surrender and will be expressly informed of his or her right to a retrial or 
an appeal and will be informed of the time frame within which he or she has to 
request such a retrial or appeal. In such cases, according to the settled case-law of 
the Court, the execution of the European arrest warrant does not adversely affect 
the rights of the person concerned to defence and, more generally, to a fair trial, as 
enshrined in Articles 47 and 48 of the Charter (see, for example, Melloni, 
paragraphs 44 and 53, and LU and PH, paragraphs 47 to 50, 72, and 73). 
However, according to the referring court, that article does not contain any 
express provision for a situation in which the ‘trial resulting in the decision’, in 
respect of the accused person who was absent, in default or never duly summoned, 
took place without that person ever having been assisted by a lawyer, appointed 
by that person or assigned officially. Such a situation should therefore be 
examined in the light of general principles. 
10 The referring court observes, first of all, that the trial held in respect of GE is 
undoubtedly a ‘trial resulting in the decision’ within the meaning of Article 4a, 
that is to say, a proceeding which, following an examination of the merits of the 
case, finally determined guilt and sentenced the person whose surrender is 
requested (see judgment in Zdziaszek, paragraph 82). The judicial decision 
sentencing the requested person in absentia must be regarded as a ‘decision’ 
within the meaning of Article 4a where its adoption was decisive for the issuance 
of the European arrest warrant (judgment in LU and PH, paragraph 67). 
11 As regards the substance, it recalls that the objective of harmonisation of the 
conditions of execution of arrest warrants issued for the purposes of executing 
decisions rendered in the absence of the accused person, implemented by the 
Framework Decision, is to ‘enhance the procedural rights of persons subject to 
criminal proceedings’ (judgment in Melloni, paragraph 51), by seeking to 
‘guarantee a high level of protection and to allow the […] surrender [of] the 
person concerned […] while fully respecting his or her rights of defence’ 
(judgment in LU and PH, paragraph 50). 
12 Furthermore, fundamental rights form an integral part of the rights of the defence, 
which derive from the right to a fair trial enshrined in Articles 47 and 48 of the 
Charter, so that the Court must interpret Article 4a in a manner consistent with 
those articles, which correspond to Article 6 of the ECHR. Consequently, 
Articles 47 and 48 of the Charter must be interpreted in such a way as to ensure a 
level of protection equal to that guaranteed by that latter Article 6, as interpreted 
by the ECtHR (judgment in LU and PH, paragraph 51). 
13 The Court, called upon to rule on the interpretation of Directive 2013/48/EU, 
specified that the right of access to a lawyer cannot be derogated from because a 
suspect or accused person has failed to appear following a summons to appear 
(judgment in VW). 
DERTERTI 
 
7 
14 The ECtHR has held that, although not absolute, the right of everyone charged 
with a criminal offence to be effectively defended by a lawyer, assigned by the 
court if need be, is one of the fundamental features of a fair trial; that a person 
charged with a criminal offence does not lose that benefit merely on account of 
not being present at the proceeding; and, lastly, that even if the legislature may 
discourage unjustified absences, it cannot penalise them by derogating from the 
right to assistance of a lawyer (Krombach v. France). 
15 On that basis, according to the referring court, the guarantee of the possibility of 
setting aside the judgment imposing a sentence, as a result of a retrial or – as in 
the case of French law – of an appeal against it following the surrender of the 
requested person in such a way as to fully guarantee the right of defence, is not 
such as to remedy in full the infringement of that right where the trial was held in 
the absence of the accused person and without that person being assisted by a 
lawyer. 
16 Even in the abovementioned cases of a retrial or an appeal, the accused person 
remains exposed to the effects of the rules of procedural law of the State which 
requests his or her surrender as regards the usability of evidence already acquired, 
at least as regards evidence which, by its nature, cannot be taken again. That could 
be remedied only by providing for the absolute non-usability of evidence acquired 
in the trial in which the accused person was not defended or, at the very least, by 
an undertaking by the State issuing the European arrest warrant not to use that 
evidence for the new decision, which France did not do with regard to GE. 
17 Thus, in a situation such as that in which GE finds himself, an individual, as a 
result of a European arrest warrant issued against him, is subjected to restrictions 
on his personal liberty following a judgment imposing a sentence handed down 
without his having been in a position to be defended, even by a lawyer assigned 
officially, not having been informed of his trial or not having been able to or not 
having wished to appoint a lawyer, without, however, waiving the right to do so, 
and that restriction is not justified by precautionary requirements. 
18 Such a situation, according to the referring court, gives rise to serious doubts as to 
compatibility with the right of the defence, which is instrumental in the protection 
of the broader right of personal liberty. 
19 It is requested that the present reference for a preliminary ruling be decided under 
an expedited procedure in so far as the present case concerns a person who is not 
detained but who is nevertheless subject to coercive personal supervision 
measures (obligation to stay in a particular city and obligation to report to the 
police), concerns a European arrest warrant, which, under Article 17(1) of the 
Framework Decision, ‘shall be dealt with and executed as a matter of urgency’, 
and the questions of interpretation raised in the present case have general 
consequences, both for the competent authorities and for the rights of the 
requested persons.