Opinion of the Advocate General — ECLI:EU:C:2016:333
Date: 2016-05-11
Language of the case: Dutch
Subject matter: Judicial cooperation in criminal matters;Police cooperation;Area of freedom, security and justice
Procedure: Preliminary reference - urgent procedure
Origin: Netherlands

Summary — Judgment of the Court (Fourth Chamber), 24 May 2016 1. Judicial cooperation in criminal matters — Framework Decision on the European arrest warrant and the surrender procedures between Member States — Grounds for optional non-execution of the European arrest warrant — Arrest warrant issued to implement a sentence handed down in absentia — Concepts of ‘summons in person’ and ‘official notification by other means’ — Autonomous concepts of EU law (Council Framework Decision 2002/584, as amended by Framework Decision 2009/299, Recitals 2 and 4 and Art. 4a(1)(a)(i)) 2. Judicial cooperation in criminal matters — Framework Decision on the European arrest warrant and the surrender procedures between Member States — Grounds for optional non-execution of the European arrest warrant — Arrest warrant issued to implement a sentence handed down in absentia — Summons in person — Conditions for enforcement — Summons handed over not directly to the person concerned but, at the latter’s address, to an adult living at the same address as the person concerned who undertook to pass it on to him — Failure to comply with the requirements of Article 4a(1)(a)(i) of the Framework Decision (Council Framework Decision 2002/584, as amended by Framework Decision 2009/299, Art. 4a(1)(a)(i)) 1. Article 4a(1)(a)(i) of Framework Directive 2002/584 on the European arrest warrant and the surrender procedures between Member States, as amended by Framework Decision 2009/299, must be interpreted as meaning that the expressions ‘summoned in person’ and ‘by other means actually received official information of the scheduled date and place of that trial in such a manner that it was unequivocally established that he or she was aware of the scheduled trial’ in that provision constitute autonomous concepts of EU law and must be interpreted uniformly throughout the European Union. As is apparent from recitals 2 and 4 of Framework Decision 2009/299, the EU legislature, having noted that the lack of uniform regulation of questions linked with decisions rendered following a trial in which the person concerned did not appear in person could, in particular, hamper judicial cooperation, considered it necessary to provide clear and common grounds for non-recognition of decisions rendered following a trial in which the person concerned had not appeared in person, but without regulating the forms and methods, including procedural requirements, which are a matter for the laws of the Member States, that are used to achieve the results specified in that framework decision. (see paras 31, 32, operative part 1) 2. Article 4a(1)(a)(i) of Framework Decision 2002/584 on the European arrest warrant and the surrender procedures between Member States, as amended by Framework Decision 2009/299, must be interpreted as meaning that a summons which was not served directly on the person concerned but was handed over, at the latter’s address, to an adult belonging to that household who undertook to pass it on to him, when it cannot be ascertained from the European arrest warrant whether and, if so, when that adult actually passed that summons on to the person concerned, does not in itself satisfy the conditions set out in that provision. In fact, compliance with the conditions for a summons referred to in Article 4a(1)(a)(i) of Framework Decision 2002/584 is apt to ensure that the person concerned was informed in good time of the date and place of his trial and thus allows the executing authority to conclude that the rights of the defence were respected. The right to a fair trial enjoyed by a person summoned to appear before a criminal court thus requires that he has been informed in such a way as to allow him to organise his defence effectively. Article 4a(1)(a)(i) of Framework Decision 2002/584 is designed to achieve that objective, but does not constitute an exhaustive list of the means that can be used to that end. In fact, in addition to a summons in person, the conditions set out in that provision are satisfied if the person concerned was actually given official information of the date and place fixed for his trial by ‘other means’. Regard being had, in particular, to the wording of Article 4a(1)(a)(i) of Framework Decision 2002/584, which states that it must be unequivocally established that the person concerned ‘was aware of the scheduled trial’, the fact that the summons was handed over to a third party who undertook to pass it on to the person concerned, whether or not that third party belonged to the household as the person concerned, cannot in itself satisfy those requirements. Such a method of service does not allow it to be unequivocally established either that the person concerned ‘actually’ received the information relating to the date and place of his trial or, where appropriate, the precise time when that information was received. Furthermore, as the scenarios described in Article 4a(1)(a)(i) of Framework Decision 2002/584 were conceived as exceptions to an optional ground for non-recognition, the executing judicial authority may in any event, even after having found that they did not cover the situation at issue, take into account other circumstances that enable it to be assured that the surrender of the person concerned does not mean a breach of his rights of defence. In the context of such an assessment of the optional ground for non-recognition, the executing judicial authority may thus have regard to the conduct of the person concerned. It is at this stage of the surrender procedure that particular attention might be paid to any manifest lack of diligence on the part of the person concerned, notably where it transpires that he sought to avoid service of the information addressed to him. In any event, the executing judicial authority has the option, pursuant to Article 15(2) of Framework Decision 2002/584, of requesting supplementary information, as a matter of urgency, if it finds that the information communicated by the issuing Member State is insufficient to allow it to decide on surrender. (see paras 38, 43, 47, 50, 51, 53, 54, operative part 2)