Opinion of the Advocate General — ECLI:EU:C:2020:494
Date: 2020-06-25
Language of the case: Dutch
Subject matter: Judicial cooperation in criminal matters;Police cooperation;Area of freedom, security and justice
Procedure: Reference for a preliminary ruling
Origin: Belgium

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:  
4 July 2019 
Referring court:  
Hof van beroep te Brussel (Court of Appeal, Brussels, Belgium) 
Date of the decision to refer:  
26 June 2019 
Appellants:  
Openbaar Ministerie 
YU 
ZV 
Respondent:  
AZ 
  
Subject matter of the action in the main proceedings 
The main proceedings concern the appeal brought by AZ against the ruling of 
12 October 2018 of the rechtbank van eerste aanleg (Court of First Instance) in 
Leuven by which the accused, AZ, who had been surrendered by the Netherlands, 
was convicted of criminal offences, including forgery of documents, use of forged 
documents and fraud.  
Subject matter and legal basis of the request for a preliminary ruling 
Request pursuant to Article 267 TFEU. 
The request concerns the interpretation of Framework Decision 2002/584/JHA 
(‘the Framework Decision’) on the European arrest warrant and the surrender 
procedures between Member States. The referring court is asking, in essence, 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-510/19 
 
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whether the Netherlands Overleveringswet (Law on the Surrender of Persons) is 
consonant with the Framework Decision and whether the Netherlands Openbaar 
Ministerie (Public Prosecution Service) is to be regarded as a ‘judicial authority’ 
within the meaning of the Framework Decision.  
Questions referred 
1.1. Does the term ‘judicial authority’ as referred to in Article 6(2) of the 
Framework Decision constitute an autonomous concept of EU law? 
1.2. If the answer to Question 1.1 is in the affirmative: which criteria are to be 
applied for the purpose of determining whether an authority of the executing 
Member State is such a judicial authority and whether a European arrest warrant 
executed by that authority therefore constitutes such a judicial decision?  
1.3. If the answer to Question 1.1 is in the affirmative: is the Netherlands 
Openbaar Ministerie (Public Prosecution Service), more specifically the Officier 
van Justitie (Public Prosecutor), covered by the concept of judicial authority, as 
referred to in Article 6(2) of the Framework Decision, and does the European 
arrest warrant executed by that authority thus constitute a judicial decision?  
1.4. If the answer to Question 1.3 is in the affirmative: is it permissible for the 
initial surrender to be assessed by a judicial authority, more specifically, the 
Overleveringskamer (the court responsible for the surrender decision) in 
Amsterdam, in accordance with Article 15 of the Framework Decision, whereby, 
inter alia, the defendant’s right to be heard and right of access to the courts are 
respected, whereas the supplementary surrender in accordance with Article 27 of 
the Framework Decision is assigned to a different authority, namely the Officier 
van Justitie, whereby the defendant is not guaranteed the right to be heard or to 
have access to the courts, with the result that there is a manifest lack of coherence 
within the Framework Decision without any reasonable justification? 
1.5. If the answer to Questions 1.3 and 1.4 is in the affirmative: should 
Articles 14, 19 and 27 of the Framework Decision be interpreted as meaning that a 
public prosecution service acting as the executing judicial authority should first of 
all respect the defendant’s right to be heard and right of access to the courts, 
before consent can be given for the prosecution, conviction or detention of a 
person with a view to the execution of a custodial sentence or measure for a 
criminal offence committed before his surrender under a European arrest warrant, 
that latter offence not being the criminal offence for which his surrender was 
requested? 
2. Is the Officier van Justitie of the Openbaar Ministerie of the Amsterdam 
judicial district who acts in implementation of Article 14 of the Netherlands Wet 
van 29 april 2004 tot implementatie van het kaderbesluit van de Raad van de 
Europese Unie betreffende het Europees aanhoudingsbevel en de procedures van 
overlevering tussen de lidstaten van de Europese Unie (Overleveringswet), (Law 
OPENBAAR MINISTERIE 
 
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of 29 April 2004 implementing the Framework Decision of the Council of the 
European Union on the European arrest warrant and the surrender procedures 
between Member States of the European Union (Law on the surrender of 
persons)) the executing judicial authority within the meaning of Article 6(2) of the 
Framework Decision which surrendered the requested person and which can grant 
consent within the meaning of Article 27(3)(g) and 27(4) of the Framework 
Decision?  
Provisions of EU law cited  
Articles 6(2), 14, 19(2) and 27 of Council Framework Decision 2002/584/JHA of 
13 June 2002 on the European arrest warrant and the surrender procedures 
between Member States (Framework Decision). 
Provisions of national law cited 
The Netherlands: Articles 14 and 15 to 38 of the Wet van 29 april 2004 tot 
implementatie van het kaderbesluit van de Raad van de Europese Unie betreffende 
het Europees aanhoudingsbevel en de procedures van overlevering tussen de 
lidstaten van de Europese Unie (Overleveringswet).  
Belgium: Article 37 of the Wet van 19 december 2003 betreffende het Europees 
aanhoudingsbevel (Law of 19 December 2003 on the European arrest warrant). 
Brief summary of the facts and the procedure in the main proceedings 
1 An appeal is pending before the referring court against a ruling of the rechtbank 
van eerste aanleg in Leuven of 12 October 2018 in which the accused was 
convicted of a series of criminal offences and in which the claims of the civil 
parties were partially upheld. The questions referred for a preliminary ruling 
concern only the criminal part of the case.  
2 After it had set aside the ruling given at first instance due to infringement of the 
rights of defence, the referring court itself assessed the criminal proceedings 
brought against the accused. Some of the offences are considered proven and the 
accused was convicted of those offences. As far as some of the others are 
concerned, it is necessary, according to the referring court, to refer certain 
questions to the Court of Justice for a preliminary ruling before judgment is 
delivered.  
3 A European arrest warrant (EAW) for the accused was issued by the 
onderzoeksrechter (investigating judge) at the rechtbank van eerste aanleg in 
Leuven on 26 September 2017, with a request for surrender in relation to a 
number of criminal offences. The accused, AZ, was arrested in the Netherlands 
under the Netherlands Overleveringswet and was surrendered to Belgium on 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-510/19 
 
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13 December 2017 in execution of the decision of the competent rechtbank in 
Amsterdam.  
4 Subsequently, on 26 October 2017, 24 November 2017 and 19 and 25 January 
2018, the Procureur des Konings (Public Prosecutor) in Leuven requested the 
investigating judge in Leuven to extend the judicial investigation in order to cover 
an additional set of offences (‘additional offences’). On 26 January 2018, the 
investigating judge issued a supplementary European arrest warrant against the 
accused in relation to those additional offences, with an additional request for 
surrender.  
5 By letter of 13 February 2018 to the investigating judge in the rechtbank van 
eerste aanleg in Leuven, the Officier van Justitie of the Openbaar Ministerie of the 
Amsterdam district communicated the following: ‘With reference to your 
European arrest warrant (EAW) dated 26 January 2018, relating to [...] AZ [...], I 
can inform you that I hereby give you additional consent to prosecute the offences 
as set out in the abovementioned EAW. I trust that I have hereby provided you 
with sufficient information.’  
Main submissions of the parties to the main proceedings  
6 In a general sense, the accused raises the question as to whether Article 14 of the 
Netherlands Overleveringswet, on the basis of which the Officier van Justitie has 
given consent to prosecute the additional offences of which AZ is accused, is 
indeed in accordance with the Framework Decision. The relevant Article 14 reads 
as follows:  
‘1. Surrender shall be allowed only on the general condition that the requested 
person shall not be prosecuted, punished or have his personal freedom otherwise 
curtailed because of offences committed before the time of his surrender and for 
which he has not been surrendered, unless: 
[...] 
f. the prior consent of the Officier van Justitie was requested and obtained. 
[...] 
3. At the request of the issuing judicial authority, and on the basis of the 
submitted European arrest warrant and the accompanying translation, the 
Officier van Justitie shall give the consent referred to in paragraph 1(f), [...] 
relating to offences for which surrender could have been granted under this Law. 
The decision on a request shall, in any event, be made within thirty days of receipt 
thereof.’  
OPENBAAR MINISTERIE 
 
5 
Brief summary of the reasons for the referral 
7 It follows from Article 27(3)(g) and 27(4) of the Framework Decision that a 
person may be prosecuted, sentenced or deprived of his liberty for offences other 
than those for which he was surrendered in the case where the executing judicial 
authority in the relevant Member State which surrendered the person at the request 
of another Member State gives its consent thereto.  
8 Apart from the general question raised by the accused as to the compatibility of 
Article 14 of the Overleveringswet with the Framework Decision, the referring 
court also asks, in particular, whether, in the present case, the Officier van Justitie 
of the Openbaar Ministerie of the Amsterdam District is the executing judicial 
authority within the meaning of Article 6(2) of the Framework Decision, who 
surrendered the requested person and who can give consent within the meaning of 
the aforementioned Article 27(3)(g) and 27(4) of the Framework Decision.