Opinion of the Advocate General — ECLI:EU:C:2009:183
Date: 2009-03-24
Language of the case: Dutch
Based on: Treaty establishing the European Economic Community (1957);Treaty on European Union (1992)
Subject matter: Citizenship of the Union;Justice and home affairs;Principles, objectives and tasks of the Treaties;Anti-discrimination;Non-discrimination on grounds of nationality
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary of the Judgment 1. Community law – Principles – Equal treatment – Discrimination on grounds of nationality – Prohibition – Scope (Art. 12, first para., EC) 2. European Union – Police and judicial cooperation in criminal matters – Framework Decision on the European arrest warrant and surrender procedures between Member States – Grounds for optional non-execution of the European arrest warrant (European Parliament and Council Directive 2004/38, Arts 16(1) and 19; Council Framework Decision 2002/584, Art. 4, point 6) 3. European Union – Police and judicial cooperation in criminal matters – Framework Decision on the European arrest warrant and surrender procedures between Member States – Grounds for optional non-execution of the European arrest warrant (Art. 12, first para., EC; Council Framework Decision 2002/584, Art. 4, point 6) 1. A national of one Member State who is lawfully resident in another Member State is entitled to rely on the first paragraph of Article 12 EC against national legislation which lays down the conditions on which the competent judicial authority can refuse to execute a European arrest warrant issued with a view to the enforcement of a custodial sentence. The Member States cannot, in the context of the implementation of a framework decision adopted on the basis of the EU Treaty, infringe Community law, in particular the provisions of the EC Treaty relating to the freedom accorded to every citizen of the Union to move and reside freely within the territory of the Member States. (see paras 43, 45, 47, operative part 1) 2. Article 4(6) of Framework Decision 2002/584 on the European arrest warrant and the surrender procedures between Member States must be interpreted as meaning that, in the case of a citizen of the Union, the Member State of execution cannot, in addition to a condition as to the duration of residence in that State, make application of the ground for optional non-execution of a European arrest warrant laid down in that provision subject to supplementary administrative requirements, such as possession of a residence permit of indefinite duration. Articles 16(1) and 19 of Directive 2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States do not provide, with regard to Union citizens who have been lawfully resident in another Member State for a continuous period of five years, for the issue, upon application, of a document attesting to the permanence of their residence, without requiring that formality. Such a document has only declaratory and probative force but does not give rise to any right. (see paras 51, 53, operative part 2) 3. The first paragraph of Article 12 EC is to be interpreted as not precluding the legislation of a Member State of execution under which the competent judicial authority of that State is to refuse to execute a European arrest warrant issued against one of its nationals with a view to the enforcement of a custodial sentence, when such a refusal is, in the case of a national of another Member State having a right of residence on the basis of Article 18(1) EC, subject to the condition that that person should have lawfully resided for a continuous period of five years in that Member State of execution. In that regard, the principle of mutual recognition, which underpins Framework Decision 2002/584 on the European arrest warrant and the surrender procedures between Member States, means that, in accordance with Article 1(2) of the latter, the Member States are in principle obliged to act upon a European arrest warrant. Apart from the cases of mandatory non-execution laid down in Article 3 of the Framework Decision, the Member States may refuse to execute such a warrant only in the cases listed in Article 4 thereof. It follows that a national legislature which, by virtue of the options afforded it by Article 4 of the Framework Decision, chooses to limit the situations in which its executing judicial authority may refuse to surrender a requested person merely reinforces the system of surrender introduced by that Framework Decision to the advantage of an area of freedom, security and justice. In that context, when implementing Article 4 of Framework Decision 2004/584 and in particular paragraph 6 thereof, referred to in the decision for reference, the Member States have, of necessity, a certain margin of discretion. The ground for optional non-execution set out in Article 4(6) of the Framework Decision has in particular the objective of enabling the executing judicial authority to give particular weight to the possibility of increasing the requested person’s chances of reintegrating into society when the sentence imposed on him expires. The Member State of execution is therefore entitled to pursue such an objective only in respect of persons who have demonstrated a certain degree of integration in the society of that Member State. The single condition based on nationality for its own nationals, on the one hand, and the condition of residence of a continuous period of five years for nationals of other Member States, on the other, may be regarded as being such as to ensure that the requested person is sufficiently integrated in the Member State of execution. That requirement for residence for a continuous period of five years does not go beyond what is necessary to attain the objective of ensuring that requested persons who are nationals of other Member States achieve a degree of actual integration in the Member State of execution. (see paras 57-58, 61, 67-68, 73-74, operative part 3)