Opinion of the Advocate General — ECLI:EU:C:2022:246
Date: 2022-03-31
Language of the case: French
Subject matter: Judicial cooperation in criminal matters;Area of freedom, security and justice;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: France

Summary C-168/21 – 1 
Case C-168/21 
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:  
16 March 2021 
Referring court:  
Cour de cassation (France) 
Date of the decision to refer:  
26 January 2021 
Appellant in the appeal on a point of law: 
Procureur général près la cour d’appel d’Angers 
  
I. Subject matter and details of the appeal: 
1 By judgment of 9 October 2009, the Corte di appello di Genova (Court of Appeal, 
Genoa, Italy) imposed custodial sentences on KL for four offences committed 
during protests against the G8 summit. 
2 The most severe custodial sentence (10 years) was handed down for the offence of 
‘devastazione e saccheggio’ (devastation and looting) (Article 419 of the Codice 
penale; Italian Penal Code), consisting of seven acts resulting from the same 
criminal action, namely: 
1) damage to urban landscaping and public property; 
2) damage to and looting of a construction site; 
3) destruction of premises belonging to the ‘Credito Italiano’ credit 
institution; 
4) destruction by fire of a Fiat Uno vehicle; 
5) destruction by fire of premises belonging to the ‘Carige’ credit 
institution; 
6) destruction by fire of a Fiat Brava vehicle; 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-168/21 
 
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7) destruction and looting of a supermarket.  
3 The Corte suprema di cassazione (Supreme Court of Cassation, Italy) dismissed 
KL’s appeal.  
4 On 6 June 2016, the Italian judicial authorities issued a European arrest warrant 
against KL for the enforcement of the custodial sentences. 
5 By judgment of 4 November 2020, the Chambre de l’instruction d’Angers 
(Indictment Division of the Court of Appeal, Angers, France), in essence, refused 
to surrender KL to the Italian authorities to execute the European arrest warrant 
inasmuch as it had been issued for the enforcement of the 10-year custodial 
sentence handed down for devastation and looting. 
6 The Indictment Division found that two of the acts underlying the offence were 
not capable of constituting an offence in France, namely, the destruction of the 
Credito Italiano premises (act no. 3) and the destruction by fire of the Fiat Brava 
vehicle (act no. 6).  
7 In the first place, KL was simply located in the vicinity of the financial institution 
while other persons in the same group committed acts of destruction and, in the 
second place, as regards the destruction and burning of the vehicle, KL was 
merely seen ‘near the car’, holding a stick. 
8 The Indictment Division concluded that, in relation to those two acts, the 
condition of double criminality was not met, due to the lack of personal 
participation by KL in a material act that would constitute an offence under 
French law. 
9 As the seven acts were considered by the Italian court to form one indivisible 
whole, the condition of double criminality required that all of the indivisible acts 
punished under the heading of devastation and looting by Article 419 of the Italian 
Penal Code be dismissed.  
10 The procureur général d’Angers (Principal Public Prosecutor at the Court of 
Appeal, Angers) brought an appeal against that judgment on a point of law.  
II. EU law:  
Charter of Fundamental Rights of the European Union 
11 Article 49, entitled ‘Principles of legality and proportionality of criminal offences 
and penalties’ provides: 
‘… 
3. The severity of penalties must not be disproportionate to the criminal offence.’ 
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Council Framework Decision of 13 June 2002 on the European arrest warrant 
and the surrender procedures between Member States (2002/584/JHA) 
12 Article 2, entitled ‘Scope of the European arrest warrant’ provides: 
‘… 
4. For offences other than those covered by paragraph 2, surrender may be subject 
to the condition that the acts for which the European arrest warrant has been 
issued constitute an offence under the law of the executing Member State, 
whatever the constituent elements or however it is described.’ 
13 Article 4, entitled ‘Grounds for optional non-execution of the European arrest 
warrant’ provides: 
‘The executing judicial authority may refuse to execute the European arrest 
warrant: 
1) if, in one of the cases referred to in Article 2(4), the act on which the 
European arrest warrant is based does not constitute an offence under the 
law of the executing Member State; …’ 
III. The appeal brought by the Principal Public Prosecutor at the Court of 
Appeal, Angers: 
14 The Principal Public Prosecutor considers that, even though the Indictment 
Division considered that the two offences of the destruction of the Credito Italiano 
building and the destruction and burning of the Fiat Brava were not made out, its 
remit was merely to verify that the sentence pronounced did not exceed the 
maximum penalty incurred for offences involving double criminality. 
15 In that regard, the avocat général près la Cour de cassation (Advocate General at 
the Court of Cassation, France) adds, first, that the fact that at least one of the 
seven acts with which KL was charged under the offence of devastation and 
looting is not punishable under French criminal law does not necessarily mean 
that the condition of double criminality is not met in relation to that offence. He 
takes the view that KL could have incurred criminal liability in France for damage 
or theft in respect of the five other acts with which he was charged under the 
heading of devastation and looting and it is not disputed that those acts are 
sufficient to constitute that offence under Italian law. 
16 Secondly, the Advocate General submits that the Indictment Division’s reasoning, 
based on the indivisible nature of the acts charged under the offence of 
devastation and looting, led it to analyse the circumstances in which that offence 
should be regarded by Italian law as being established, which exceeded its remit in 
reviewing double criminality. 
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17 Lastly, the Advocate General points out that a refusal to surrender the person in 
question in order for the sentence pronounced for devastation and looting to be 
enforced leads to that person going unpunished for all of the acts included in the 
sentence, even though it is undisputed that a surrender would have been possible 
and a punishment justified for the majority of those acts. 
18 In that regard, the Advocate General relies on the case-law of the Court of 
Cassation, according to which the surrender of a person requested under a 
European arrest warrant may be ordered where a single sentence has been 
pronounced for at least one of the offences meeting the conditions set out in 
Articles 695-12 and 695-23 of the Code de procédure pénale (French Code of 
Criminal Procedure) (in the chapter on the European arrest warrant) and where it 
does not exceed the maximum penalty incurred for offences capable of giving rise 
to a surrender. 
19 The Advocate General submits that the same solution should also apply to a 
sentence for a single offence made of up several material acts some of which are 
not capable of giving rise to a surrender. 
IV. Analysis by the Court of Cassation: 
20 The appeal raises questions concerning the condition of double criminality and the 
application by the executing State of the principle of proportionality. 
The condition of double criminality 
21 Article 2(4) of Framework Decision 2002/584/JHA allows the executing State, in 
the case of offences other than those covered by the list of 32 offences in 
Article 2(2) thereof, to make surrender subject to the condition that the acts for 
which the European arrest warrant was issued constitute an offence under the law 
of the executing Member State, whatever the constituent elements or however it is 
described. 
22 At the same time, Article 4 of the same Framework Decision, relating to the 
grounds for optional non-execution of the European arrest warrant, gives the 
executing judicial authority, in paragraph 1 thereof, the power to refuse to execute 
the European arrest warrant when the condition of double criminality is not met. 
23 It follows from the case-law of the Court of Justice (judgment of 11 January 2017, 
Grundza, C-289/15, EU:C:2017:4, paragraph 38) that, when assessing double 
criminality, the competent authority of the executing State is required to verify 
whether the factual elements underlying the offence, as reflected in the judgment 
handed down by the competent authority of the issuing State, would also, per se, 
be subject to a criminal penalty in the executing State if they were present in that 
State. 
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24 The Court of Justice stated that, as the condition of double criminality is an 
exception to the general rule of recognition of judgments and enforcement of 
sentences, the scope of the grounds for refusing to recognise a judgment or 
enforce a sentence, on the basis of lack of double criminality, as provided for in 
Article 9(1)(d) of Framework Decision 2008/909, must be interpreted strictly in 
order to limit cases of non-recognition and non-enforcement (judgment of 
11 January 2017, Grundza, C-289/15, EU:C:2017:4, paragraph 46). 
25 Lastly, the Court of Justice stated that there does not have to be an exact match 
between the constituent elements of the offence, as defined in the law of the 
issuing State and the executing State, respectively, or between the name given to 
or the classification of the offence under the national law of the respective States 
(judgment of 11 January 2017, Grundza, C-289/15, EU:C:2017:4, paragraph 35). 
26 In the present case, KL was sentenced to 10 years in prison for devastation and 
looting for having committed a series of seven acts of damage, destruction or 
looting. The Indictment Division of the Court of Appeal, Angers, found that two 
of those acts could not constitute criminal offences under French law. However, it 
found that five of the acts of damage or destruction could constitute criminal 
offences in France under ‘vol avec dégradation et en réunion’ (theft accompanied 
by damage and involving multiple offenders). 
27 In Italian law, the offence of devastation and looting refers to multiple, mass acts 
of destruction and damage that not only result in losses for the owners of the 
property in question but also cause a breach of the public peace by threatening the 
normal course of civilian life. 
28 Under French criminal law, endangering the public peace by the mass destruction 
of movable or immovable property is not specifically an offence. Destruction or 
damage, theft accompanied by damage, whether or not involving multiple 
offenders, that leads to losses for the owners of the property, are the only offences. 
29 The question therefore arises as to whether the breach of the public peace 
attributed to KL by the Court of Appeal, Genoa and the Supreme Court of 
Cassation, Italy as being an essential element of the offence of devastation and 
looting is relevant when assessing the condition of double criminality. 
30 Although there does not have to be an exact match between the constituent 
elements of the offence under Italian law and under French law, a breach of the 
public peace nonetheless appears to be an essential element of the offence of 
devastation and looting. 
31 It follows that, in that situation, the application of the principle of double 
criminality is not so obvious as to leave no scope for any reasonable doubt. 
32 In that regard the Court of Cassation will refer to the Court of Justice the first two 
questions set out below. 
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Assessment of the proportionality of a European arrest warrant by the executing 
Member State 
33 If the principle of double criminality does not prevent a surrender, the question 
then arises as to the proportionality of the sentence for which the surrender is 
sought, taking into account only those acts in respect of which the condition of 
double criminality is met. 
34 It follows from the case-law of the Court of Justice that the principle of mutual 
recognition, which underpins Framework Decision 2002/584/JHA, means that, in 
accordance with Article 1(2) thereof, the Member States are in principle obliged 
to act upon a European arrest warrant (judgment of 6 October 2009, Wolzenburg, 
C-123/08, EU:C:2009:616, paragraph 57). 
35 Member States may refuse to execute such a warrant only in the cases of non-
execution provided for in Articles 3, 4 and 4a of the Framework Decision and may 
make its execution subject only to the conditions defined in Article 5 thereof 
(judgment of 16 July 2015, Lanigan, C-237/15 PPU, EU:C:2015:474, 
paragraph 36). 
36 In that regard, it must be noted that the Framework Decision on the European 
arrest warrant does not contain any provision allowing the executing Member 
State to refuse to surrender the person in question on the ground that the sentence 
pronounced by the issuing State seems disproportionate in the light of the acts for 
which the surrender is incurred. 
37 Therefore, even if the executing Member State considers that there are serious 
difficulties concerning the proportionality of the European arrest warrant, it 
cannot refuse, on that ground, to order the surrender of the person requested for 
the enforcement of the sentence pronounced by the issuing Member State. 
38 Although, in principle, it is the responsibility of the issuing State to verify the 
proportionality of the European arrest warrant prior to its issue, in keeping with 
the principle of mutual recognition, that verification cannot prevent a failure to 
observe the principle of proportionality when, as in the present case, the arrest 
warrant was issued for the enforcement of a sentence imposed for a single offence 
made up of several acts only some of which constitute an offence under the law of 
the executing Member State. 
39 In such a situation, the sentence pronounced by the issuing State will be enforced 
in full even though surrender is precluded for some of the acts covered by that 
sentence. 
40 Consequently, even if the warrant may have been proportionate at the time of its 
issue, it may not necessarily be so at the time of its execution. 
41 It follows from Article 1(3), when read in conjunction with recital 12, of the 
Framework Decision on the European arrest warrant, that the fundamental rights 
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and fundamental legal principles reflected in the Charter must be respected in the 
context of the European arrest warrant. 
42 In that regard, Article 49(3) of the Charter sets out the principle that the severity 
of penalties must not be disproportionate to the offence. 
43 In that regard the Court of Cassation will refer the third question to the Court of 
Justice for a preliminary ruling. 
V. Request for expedited procedure: 
44 Given that the interpretation sought is likely to have general consequences both 
for the authorities required to cooperate in the matter of the European arrest 
warrant and for the rights of the requested person, who remains in a situation of 
uncertainty, and given that the executing judicial authority has an obligation to 
rule on the request for surrender before it in the best possible conditions, so that it 
may comply as quickly as possible with the obligations imposed on it by 
Framework Decision 2002/584/JHA and the restriction on liberty (judicial review) 
of which KL is the subject in the present proceedings, it is appropriate to request 
the use of the expedited procedure provided for in Article 23a of the Statute of the 
Court of Justice of the European Union and Article 105 et seq. of the Rules of 
Procedure of the Court of Justice. 
VI. The questions referred: 
45 The Court of Cassation refers the following questions for a preliminary ruling: 
1. Must Articles 2(4) and 4(1) of Framework Decision 2002/584 be interpreted 
as meaning that the condition of double criminality is met in a situation, such as 
that at issue in the main proceedings, in which surrender is sought for acts which, 
in the issuing State, have been categorised as devastation and looting and which 
consist of acts of devastation and looting such as to cause a breach of the public 
peace when, in the executing State, there are criminal offences of theft 
accompanied by damage or offences of causing destruction or damage that do not 
require that element of a breach of the public peace? 
2. In the event that the first question is answered in the affirmative, must 
Articles 2(4) and 4(1) of Framework Decision 2002/584 be interpreted as meaning 
that the courts in the executing State may refuse to execute a European arrest 
warrant issued for the enforcement of a sentence where they find that the judicial 
authorities in the issuing State imposed that sentence on the person concerned for 
the commission of a single offence covering various acts and where only some of 
those acts constitute a criminal offence in the executing State? Does a distinction 
need to be made depending on whether or not the trial court in the issuing State 
considered those various acts to be divisible or indivisible? 
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3. Does Article 49(3) of the Charter of Fundamental Rights require the judicial 
authorities in the executing Member State to refuse to execute a European arrest 
warrant where, first, that warrant was issued in order to enforce a single sentence 
imposed for a single offence and, second, where, given that some of the acts for 
which that sentence was imposed do not constitute an offence under the law of the 
executing Member State, a surrender can only be ordered in relation to some of 
those acts?