Opinion of the Advocate General — ECLI:EU:C:2026:35
Date: 2026-01-22
Language of the case: Dutch

Translation C-583/24 – 1 
Case C-583/24 [Tagu] i 
Request for a preliminary ruling 
Date lodged: 
5 September 2024 
Referring court: 
Rechtbank Amsterdam (Netherlands) 
Date of the decision to refer: 
5 September 2024 
Applicant: 
Openbaar Ministerie (Public Prosecution Service) 
Defendant: 
DZ 
  
RECHTBANK AMSTERDAM (AMSTERDAM DISTRICT COURT) 
INTERNATIONALE RECHTSHULPKAMER (CHAMBER FOR 
INTERNATIONAL COOPERATION IN LEGAL MATTERS) 
[...] 
Date of the judgment: 5 September 2024 
INTERIM JUDGMENT 
on the application of 7 March 2023 by the Public Prosecutor to this court for 
consideration of a European arrest warrant (EAW). 
This EAW was issued on 9 January 2024 by the District Court Constanţa, 
Romania (‘the issuing judicial authority’), and seeks the arrest and surrender of: 
DZ 
 
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 
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[...] 
entered in the Personal Records Database at the address: 
‘the person sought’. 
1. Procedure 
The court dealt with the EAW at the sessions of 17 April 2024, 11 June 2024 
and 22 August 2024. [...] 1 
2. Reopening of the investigation for the purpose of referring questions 
2.1 Legal background 
EU law 
2.1.1 Council Framework Decision 2002/584/JHA of 13 June 2002 on the 
European arrest warrant and the surrender procedures between Member States 
(Framework Decision 2002/584/JHA), OJ 2002 L 190, p. 1, as amended by 
Framework Decision 2009/299/JHA, OJ 2009 L 81, p. 24, and as rectified 
(OJ 2020 L 118, p. 39). 
Article 1(3) of that framework decision is worded as follows: 
This Framework Decision shall not have the effect of modifying the 
obligation to respect fundamental rights and fundamental legal principles as 
enshrined in Article 6 of the Treaty on European Union. 
2.1.2 Council Framework Decision 2004/757/JHA of 25 October 2004 laying 
down minimum provisions on the constituent elements of criminal acts and 
penalties in the field of illicit drug trafficking (Framework Decision 
2004/757/EU), OJ 2004 L 335, p. 8, as subsequently amended by Delegated 
Directives (EU) 2017/2103 (OJ 2017 L 305, p. 12), 2019/369 (OJ 2019 L 66, 
p. 3), 2020/1687 (OJ 2020 L 379, p. 55), 2021/802 (OJ 2021 L 178, p. 1) and 
2022/1326 (OJ 2022 L 200, p. 148). 
 
1  For the course of proceedings, see also the interim judgment of 1 May 2024, 
NL:RBAMS:2024:2695 [...] and the interim judgment of 25 June 2024, 
NL:RBAMS:2024:4251. 
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Article 2(1)(a) and (2), Article 4(1) and (2)(b) and Article 5 of that framework 
decision, in so far as relevant here, are worded as follows: 
Article 2 
Crimes linked to trafficking in drugs and precursors 
1. Each Member State shall take the necessary measures to ensure that the 
following intentional conduct when committed without right is punishable: 
(a) the production, manufacture, extraction, preparation, offering, offering 
for sale, distribution, sale, delivery on any terms whatsoever, brokerage, 
dispatch, dispatch in transit, transport, importation or exportation of drugs; 
(...) 
2. The conduct described in paragraph 1 shall not be included in the scope 
of this Framework Decision when it is committed by its perpetrators 
exclusively for their own personal consumption as defined by national law. 
Article 4 
Penalties 
1. Each Member State shall take the measures necessary to ensure that the 
offences defined in Articles 2 (...) are punishable by effective, proportionate 
and dissuasive criminal penalties. 
Each Member State shall take the necessary measures to ensure that the 
offences referred to in Article 2 are punishable by criminal penalties of a 
maximum of at least between one and three years of imprisonment. 
2. Each Member State shall take the necessary measures to ensure that the 
offences referred to in Article 2(1)(a), (...) are punishable by criminal 
penalties of a maximum of at least between 5 and 10 years of imprisonment 
in each of the following circumstances: 
(...) 
(b) the offence either involves those drugs which cause the most harm to 
health, or has resulted in significant damage to the health of a number of 
persons. 
Article 5 
Particular circumstances 
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Notwithstanding Article 4, each Member State may take the necessary 
measures to ensure that the penalties referred to in Article 4 may be reduced 
if the offender: 
(a) renounces criminal activity relating to trafficking in drugs and 
precursors, and 
(b) provides the administrative or judicial authorities with information 
which they would not otherwise have been able to obtain, helping them to: 
(i) prevent or mitigate the effects of the offence, 
(ii) identify or bring to justice the other offenders, 
(iii) find evidence, or 
(iv) prevent further offences referred to in Articles 2 and 3. 
Romanian law 
2.1.3 ‘Law No 143/26 July 2000 on preventing and combating illegal drug 
trafficking and consumption, supplemented and amended by Law 522/2004 and 
GEO No 6/2010’. 
According to the English translation of the EAW, Article 3 of that law is worded 
as follows: 
Article 3 
(1) The introduction into or removal from the country, as well as the 
import or export of risk drugs, without right, shall be punishable by 
imprisonment for a term of 3 to 10 years and disqualification. 
(2) If the acts referred to in paragraph 1 relate to high-risk drugs, the 
penalty shall be imprisonment for a term of 7 to 15 years and 
disqualification. 
As of 23 March 2023, according to the Romanian Desk of Eurojust, Article 3(2) 
of that law prescribes the imposition of a custodial sentence for a period of 10 to 
20 years.  
According to the Romanian desk of Eurojust, the English translation of Article 15 
of that law is worded as follows:  
Article 15 
A person who has committed one of the offences referred to in Articles 2 to 9 
and who, during criminal proceedings, reports and facilitates the 
identification and prosecution of other persons who have committed drug‐
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related offences, shall benefit from a reduction by half of the penalty limits 
provided for by law. 
2.1.4 The Romanian Criminal Code. 
According to the English translation of the EAW, Article 46(2) of that code is 
worded as follows: 
Article 46 
Perpetrator and co-perpetrators 
(...) 
(2) Co-perpetrators are persons who directly commit the same act provided 
for by the criminal law. 
According to the Romanian desk of Eurojust, the English translation of 
Articles 75 and 76 of that code are worded as follows: 
Article 75 
Mitigating circumstances 
(1) The following situations represent legal mitigating circumstances: 
(a) offence committed under the influence of a strong disturbance or 
emotion, caused by the victim, caused either by violence, by infringement of 
a person’s dignity or by other serious illicit actions; 
(b) exceeding the limits of legitimate defence; 
(c) exceeding the limits of a state of necessity; 
(d) covering all the material damage caused by an offence 
(2) The following situations may represent judicial mitigating 
circumstances: 
(a) efforts made by an offender to eliminate or reduce the consequences of 
their offence; 
(b) circumstances relating to the committed offence, which reduce the 
seriousness of the offence or the threat posed by the offender. 
Article 76 
The effects of mitigating circumstances 
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(1) In case of mitigating circumstances, the special limits of penalty 
prescribed by law for the committed offence are reduced by one third. 
(...) 
(3) Special limits of penalty are reduced only once, regardless of the number 
of mitigating circumstances applying. 
2.1.5 The Romanian Code of Criminal Procedure. 
According to the Romanian desk of Eurojust, the English translation of 
Article 374(4), Article 375 and Article 396(10) of that code is worded as follows: 
Article 374 
Informing on the charges, clarifications and applications 
(...) 
(4) When the criminal proceedings are not focused on a crime punishable by 
life imprisonment, the president shall inform the defendant that he may 
apply for the trial to take place only based on the evidence submitted during 
the prosecution and on the documentary evidence submitted by the parties 
when the defendant fully admits all the acts held against him, informing the 
defendant of the provisions under Article 396 par. (10). 
(...) 
Article 375 
Plea bargaining procedure 
(1) When the defendant applies for the trial to take place in the conditions 
provided under Article 374 par. (4), the court shall hear him following 
which, after the arguments by the prosecutor and the other parties, shall 
take a decision this application. 
(2) If it admits the application, the court shall ask the parties and the victim 
if they propose the submission of documentary evidence. 
(3) If it dismisses the application, the court shall act according to Article 
374 par. (5) 
Article 396 
Settling the criminal proceedings 
(...) 
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(10) When the court proceedings were implemented according to the 
requirements under Article 375 par. (1) and (2), when the defendant’s 
motion that the trial take place in these conditions was dismissed or when 
the court investigation took place according to the requirements under 
Article 377 par. (5) or Article 395 par. (2), whereas the court retains the 
same situation of fact as the one described in the bill of indictment and 
admitted by the defendant, in case of conviction or postponing the service of 
the penalty, the limits for the penalty provided by law in the case of a 
penalty by imprisonment shall be reduced by one third, whereas in the case 
of a fine, by one fourth. 
Netherlands law 
2.1.6 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), Stb. 2004, 195 (Law 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 (Surrender Law); ‘the OLW’), as last amended on 7 May 2021 (Stb. 2021, 
155), serves to implement Framework Decision 2002/584/JHA. 
Article 11, Article 22(6) and Article 28(3) of that law are worded as follows: 
Article 11 
1. A European arrest warrant shall not be executed in cases where, in the 
opinion of the District Court, there are substantial grounds to believe 
that, after surrender, the person sought will face a real risk that his or 
her fundamental rights, as guaranteed by the Charter of Fundamental 
Rights of the European Union, will be violated. 
2. If there is a possibility that, in the event of a change of circumstances, 
the real danger of the violation referred to in paragraph 1 can still be 
ruled out, the court should defer the decision on surrender. 
3. The issuing authority shall be notified of such deferral, giving reasons, 
and the court shall consider whether there is any change in 
circumstances during the period of such deferral. 
4. If, in exceptional circumstances, the court has deferred its decision 
under Article 11(2), the court may thereafter extend the period by up 
to 60 days each time until the court makes its decision. 
Article 22 
(...) 
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6. If, in exceptional circumstances, the court has deferred its decision under 
Article 11(2), the court may thereafter extend the period by up to 60 days 
each time until the court makes its decision. 
(...) 
Article 28 
(...) 
3. In cases other than those provided for in paragraph 2, the District Court 
shall authorise the surrender in its judgment, unless it considers that the 
European arrest warrant should not be executed pursuant to Article 11(1). 
(...) 
2.2 Facts and circumstances 
2.2.1 On 9 January 2024, the District Court Constanţa (Romania) issued a 
European arrest warrant (EAW) against the person sought. The court, as the 
executing judicial authority, must take a decision on the execution of that EAW. 
No – ordinary – appeal is available against its decision. In the opinion of the court, 
no grounds for refusing surrender arise under Articles 3, 4 and 4a of Framework 
Decision 2002/584/JHA. 
2.2.2 The EAW seeks the enforcement of a 7-year final custodial sentence 
imposed on 20 December 2023 by the Court of Appeal Constanţa following a trial 
at which the person sought appeared in person. 
The EAW shows that this conviction concerns the unauthorised importation, 
together with his wife, into Romania of three grams of cannabis and four pills 
containing MDMA. 
According to the EAW, this is punishable in Romania under Article 3(1) and (2) 
of ‘Law No 143/26 July 2000 on preventing and combating illegal drug trafficking 
and consumption, supplemented and amended by Law 522/2004 and GEO 
No 6/2010’ and Article 46(2) of the Criminal Code, and constitutes one offence 
under Romanian law, namely ‘introducing into the country of risk and high-risk 
drugs’. 
The additional information provided by the issuing judicial authority and by the 
Romanian desk of Eurojust shows that – at the time of its commission – the 
offence was punishable by a minimum penalty of 7 years. 
2.2.3 Having regard to the quantities of the drugs listed in the EAW and to the 
statement made by the person sought during the hearing at the Amsterdam District 
Court – to the effect that the drugs were intended for personal consumption by his 
co-perpetrator (his wife) who used drugs as pain relief – the court finds that there 
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were in fact small quantities of ‘risk’ and ‘high-risk’ drugs for personal 
consumption. In any event, the court finds that the person sought and his wife had 
those small quantities of drugs present with no intention of trafficking them. 
Neither the EAW nor the (untranslated) sentencing considerations submitted by 
counsel from the sentencing judgment – which includes the phrase that the 
‘inculpaţii au deţinut drogurile pentru consum propriu’ – give rise to a contrary 
opinion. Unlike the Public Prosecutor, the court therefore sees no reason to 
request a translation of the sentencing judgment and concludes that the EAW 
relates to the unauthorised importation of small quantities of ‘risk’ and ‘high-risk’ 
drugs for personal consumption, in any event to the unauthorised importation of 
small quantities of ‘risk’ and ‘high-risk’ drugs with no intention of trafficking 
them. 
2.2.4 When asked, the issuing judicial authority stated that the unauthorised 
importation of small quantities of ‘risk’ and ‘high-risk’ drugs for personal 
consumption falls under Article 3(1) and (2) of Law No 143/26 July 2000. In so 
far as ‘high-risk’ drugs are concerned, this provision implements Article 4(2)(b) of 
Framework Decision 2004/757/JHA. Whereas the latter provision requires 
Member States to criminalise with a maximum penalty of at least 5 to 10 years’ 
imprisonment, the Romanian provision prescribed a minimum penalty of 7 years 
at the time the offence was committed (now 10 years). 
2.2.5 Romanian law provides for opportunities for a reduction in sentence. 
Article 75(1) of the Criminal Code regulates cases of reduced sentencing, so-
called ‘legal mitigating circumstances’, which as a rule will not apply to offences 
involving drugs. Point (b) of the second paragraph of that provision concerns so-
called ‘judicial mitigating circumstances’ and identifies as mitigating 
circumstances, among others, ‘circumstances relating to the committed offence, 
which reduce the seriousness of the offence or the threat posed by the offender’. 
The Criminal Code further provides for reduced sentences in case of a ‘plea 
bargain’. Law No 143/26 July 2000 regulates reduced sentencing where the 
accused facilitates the identification and prosecution of other perpetrators of drug-
related offences. In the first two cases the reduction in sentence is (at most) one 
third of the prescribed minimum sentence, in the third case half. The court may 
only suspend the enforcement of prison sentences of up to 3 years on a 
probationary basis. 
When asked, the issuing judicial authority stated that, in the case of the person 
sought, there were no aggravating circumstances, such as recidivism, nor were 
there any mitigating circumstances. Even if the person sought had been eligible 
for a reduction in sentence and it had been applied, a conditional suspension of the 
execution of the sentence would not have been possible because of its duration. 
After all, the sentence would have been 4 years and 8 months (7 minus one third) 
if grounds for reducing the sentence had been applied, and thus more than 3 years, 
the issuing judicial authority said. 
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Leaving aside the application of the aforementioned judicial mitigating 
circumstances (as provided for in Article 75(2)(b) of the Criminal Code), a 
reduction in sentence if the person facilitates the identification and prosecution of 
another offender (as provided for in Article 15 of Law No 143/26 July 2000) and a 
reduction in sentence in the event of a plea bargain (as provided for in Article 375 
of the Code of Criminal Procedure) the court concluded that, in the case of a 
conviction for the unauthorised importation of ‘risk and high-risk drugs’ at the 
time the offences were committed, Romanian law required the court to impose a 
minimum sentence of 7 years, regardless of whether that conduct involved a small 
quantity and regardless of whether that conduct was carried out for personal 
consumption, or at least was carried out without any commercial intent. To the 
extent that one or more of the statutory options for reducing the sentence were 
applicable, that legislation allowed the court to reduce that minimum sentence for 
the unauthorised importation of small quantities of ‘risk and high-risk drugs’ for 
personal consumption, or at least with no commercial intent, by half (where 
Article 15 of Law No 143/26 July 2000 was applied) or by up to one third (where 
one or more of the other options for reducing the sentence were applied). 
2.2.6 Counsel for the person sought opposed surrender, arguing that the custodial 
sentence imposed was disproportionate and therefore in breach of Article 49(3) of 
the EU Charter of Fundamental Rights (‘the Charter’). 
2.2.7 In the light of counsel’s contention, the minimum sentence imposed by 
Romanian law on the Romanian criminal court in this case, viewed in conjunction 
with the limited statutory possibilities for reducing the sentence outlined above, 
raises questions about the interpretation of EU law. Although the court can 
imagine that the perspective of the independence of the judiciary from the 
legislature may also be relevant in a case such as the present one, it will place the 
questions referred (only) in the context of the principle of proportionality referred 
to in Article 49(3) of the Charter. 
2.3 The questions referred 
Question I 
2.3.1 Counsel’s defence first of all raises the question of whether the executing 
judicial authority must consider, when the person sought is relying on it, whether 
a real risk of a sentence being executed that is disproportionate to the offence on 
which the EAW is based could lead to the withholding of surrender. That question 
as such has not previously been answered by the Court of Justice. 
2.3.2 In Procureur général près la cour d’appel d’Angers, the Court of Justice 
held that the guarantee of the rights of the person sought – in this case, compliance 
with the principle of proportionality as regards offences and penalties laid down in 
Article 49(3) of the Charter – is primarily the responsibility of the issuing Member 
State, that the potentially disproportionate nature of the penalty imposed in that 
Member State does not feature among the grounds for refusal listed in Articles 3, 
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4 and 4bis of Framework Decision 2002/584/JHA and that, accordingly, it is not 
for the executing judicial authority, in the context of the reason for refusal 
provided for in Article 4(1) of Framework Decision 2002/584/JHA, to assess that 
penalty in the light of Article 49(3) of the Charter. 2 
Unlike the Public Prosecutor, the court is not sure that it follows from this 
judgment that reliance on Article 1(3) of Framework Decision 2002/584/JHA in 
conjunction with Article 49(3) of the Charter would not be possible. First, the case 
underlying the aforementioned judgment differs from the present case in an 
important respect. Unlike in the present case, the trigger for the questions referred 
was not the legal latitude available to the criminal court in the issuing Member 
State in determining the penalty. Furthermore, it may be inferred from the case-
law of the Court of Justice that compliance with the principle of legality of 
offences and penalties, as laid down in Article 49(1) of the Charter, is also the 
primary responsibility of the issuing Member State 3, while it also follows from 
that case-law that a real risk of a violation of Article 49(1) of the Charter may 
preclude surrender 4. It cannot therefore be ruled out a priori that, despite 
Romania’s primary responsibility for compliance with Article 49(3) of the 
Charter, a real risk of a violation of that provision may preclude surrender. 
2.3.4 [for the wording of the first question referred, see recital 3 below] [...] 
Question II 
2.3.5 An affirmative answer to question I raises a number of follow-up questions 
as to how the executing judicial authority should assess whether there is a real risk 
of a final disproportionate sentence being executed in the issuing Member State. 
First, the question arises as to what test should be applied in that assessment. 
It follows from the case-law of the Court of Justice that the principle of 
proportionality requires that the circumstances of the particular case are taken into 
account in determining the penalty in the Member State concerned, and that the 
penal provision can guarantee that the competent authorities are able to ensure in 
each individual case that the severity of the penalty does not exceed the 
seriousness of the offence identified. 5 Accordingly, the question then arises as to 
 
2 CJEU 14 July 2022, C-168/21, EU:C:2022:558 (Procureur général près la cour d’appel 
d’Angers), paragraphs 65-68. 
3 CJEU 3 May 2007, C-303/05, EU:C:2007:261 (Advocaten voor de Wereld), paragraphs 49-53. 
4 CJEU 29 July 2024, C-202/24, EU:C:2024:649 (Alchaster), paragraphs 50-51, on surrender to 
the United Kingdom pursuant to the Trade and Cooperation Agreement between the European 
Union and the European Atomic Energy Community, of the one part, and the United Kingdom 
of Great Britain and Northern Ireland, of the other part, OJ 2021 L 149/10. 
5  CJEU 19 October 2023, C-655/21, ECLI:EU:C:2023:791 (G. ST. T. (Proportionnalité de la 
peine en cas de contrefaçon)), paragraphs 67 and 81. 
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what role is played in that assessment by the obligation to impose a minimum 
penalty, seen in conjunction with the possibilities of reducing the sentence and 
suspending enforcement of the sentence under the law of the issuing Member 
State. 
Finally, since the custodial sentence to which the person sought has been 
sentenced is already final, the question arises as to whether any guarantee on the 
part of the authorities of the issuing Member State – for example, that the person 
sought may be pardoned or that he may still apply for a review of the judgment 
imposing sentence – would still be able to remove any real risk of a violation of 
Article 49(3) of the Charter that has been established for the person sought. 
2.3.6 [for the wording of the second question referred, see recital 3 below] [...] 
3.  Conclusion 
The court will reopen and adjourn the investigation in order to refer the 
following questions to the Court of Justice for a preliminary ruling: 
I 
Should Article 1(3) of Framework Decision 2002/584/JHA on the European 
arrest warrant and the surrender procedures [between Member States], 
read in conjunction with Article 49(3) of the Charter of Fundamental Rights 
of the European Union and with Article 2(1)(a) and (2), Article 4(1) and 
(2)(b) and Article 5 of Framework Decision 2004/757/JHA laying down 
minimum provisions on the constituent elements of criminal acts and 
penalties in the field of illicit drug trafficking, be interpreted as meaning 
that 
if the person sought opposes his or her surrender on the grounds that he or 
she has been finally sentenced in the issuing Member State to a 
disproportionate minimum term of imprisonment for the importation of 
small quantities of drugs for personal consumption, or at least for the 
importation of small quantities of drugs without the intention of trafficking 
them, 
the executing judicial authority must examine whether, in the event of 
surrender for the purpose of executing that sentence, the person sought 
would face a real risk of serving a sentence that is disproportionate to the 
offence on which the European arrest warrant is based? 
II. 
If the answer to question I is in the affirmative: 
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(a) what test should the executing judicial authority apply in assessing 
whether there is a real risk of the execution of a final disproportionate 
sentence as referred to in question I; 
(b) what role in that test is played by the fact that the law of the issuing 
Member State, 
implementing Article 4(2)(b) of Framework Decision 2004/757/JHA laying 
down minimum provisions on the constituent elements of criminal acts and 
penalties in the field of illicit drug trafficking, and the consequent obligation 
of criminalisation with provision for a maximum sentence of at least 5 to 10 
years’ imprisonment, 
obliges the national court to impose a minimum sentence of seven years’ 
imprisonment in the event of conviction for, in essence, the importation of 
drugs that are most harmful to health, irrespective of the quantity of drugs to 
which such conduct relates and irrespective of whether such conduct was 
intended to provide for personal consumption or was carried out with a view 
to trafficking such drugs, when: 
- the court may only reduce that mandatory minimum sentence by up to 
one third in total if there are circumstances that reduce the seriousness 
of the offence or the threat posed by the offender or if the person 
concerned confesses to the offence, or by up to one half in total if the 
person concerned facilitates the identification and prosecution of other 
persons who have committed drug-related offences, and 
- the length of that (possibly reduced) minimum sentence precludes the 
court from ordering the suspension of its enforcement; 
(c) can any real risk of the execution of a final disproportionate sentence 
as referred to in question I still be removed by a guarantee on the part 
of the issuing Member State, and what form might such a guarantee 
take? 
4. Decision 
REQUESTS the Court of Justice to answer the questions set out in recital 3. 
REOPENS and ADJOURNS the hearing for an indefinite period pending the 
ruling of the Court of Justice, on the understanding that the case must be brought 
before the Trial Chamber before 20 November 2024 (the expiry of the [...] 
decision period) for a decision on the extension of the decision period and on the 
deprivation of liberty. 
[national proceedings] [...] 
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EXTENDS [...] the – suspended – detention for 60 (sixty) days. 
[national proceedings] [...] 
[closing formula] [...] 
[...] [...] 
[...] [...] 
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