Opinion of the Advocate General — ECLI:EU:C:2016:131
Date: 2016-03-02
Language of the case: Romanian
Subject matter: Judicial cooperation in criminal matters;Police cooperation;Area of freedom, security and justice
Procedure: Reference for a preliminary ruling
Origin: Romania

Summary — Judgment of the Court (Second Chamber), 1 June 2016 1. Judicial cooperation in criminal matters — Framework Decision on the European arrest warrant and the surrender procedures between Member States — Article 8(1)(c) — Arrest warrant — Concept — National arrest warrant separate from European arrest warrant — Obligation to include in the European arrest warrant information on the existence of an ‘arrest warrant’ — None (Council Framework Decision 2002/584, as amended by Framework Decision 2009/299, Art. 8(1)(c)) 2. Judicial cooperation in criminal matters — Framework Decision on the European arrest warrant and the surrender procedures between Member States — Article 8(1)(c) — Obligation to include in the European arrest warrant information on the existence of an ‘arrest warrant’ — European arrest warrant giving no indication of the existence of a national arrest warrant — Consequences (Council Framework Decision 2002/584, as amended by Framework Decision 2009/299, Arts 8(1)(2)(c) and 15(2)) 1. Article 8(1)(c) of the Framework Decision 2002/584 on the European arrest warrant and the surrender procedures between Member States, as amended by Framework Decision 2009/299, is to be interpreted as meaning that the term ‘arrest warrant’, as used in that provision, must be understood as referring to a national arrest warrant that is distinct from the European arrest warrant. The issue of a European arrest warrant in accordance with the ‘simplified procedure’ — thus not entailing the issue of any prior national judicial decision, such as a national arrest warrant, which forms the basis of the European arrest warrant – may interfere with the principles of mutual recognition and confidence on which the European arrest warrant system is based. Those principles are based on the premiss that the European arrest warrant concerned has been issued in conformity with the minimum requirements necessary for it to be valid, which include the requirement laid down in Article 8(1)(c) of the Framework Decision. Where the executing judicial authority is faced with a European arrest warrant issued under a ‘simplified’ procedure which is based on the existence of an arrest warrant within the meaning of Article 8(1)(c) of the Framework Decision, but the European arrest warrant does not refer to a national arrest warrant that is distinct from the European warrant, it is not in a position to verify whether the European arrest warrant concerned complies with the requirement laid down in Article 8(1)(c) of the Framework Decision. Moreover, compliance with the requirement laid down in Article 8(1)(c) of the Framework Decision is of particular importance since it means that, where the European arrest warrant has been issued with a view to the arrest and surrender by another Member State of a requested person for the purposes of conducting a criminal prosecution, that person should have already had the benefit, at the first stage of the proceedings, of procedural safeguards and fundamental rights, the protection of which it is the task of the judicial authority of the issuing Member State to ensure, in accordance with the applicable provisions of national law, for the purpose, inter alia, of adopting a national arrest warrant. The European arrest warrant system therefore entails, in view of the requirement laid down in Article 8(1)(c) of the Framework Decision, a dual level of protection for procedural rights and fundamental rights which must be enjoyed by the requested person, since, in addition to the judicial protection provided at the first level, at which a national judicial decision, such as a national arrest warrant, is adopted, is the protection that must be afforded at the second level, at which a European arrest warrant is issued, which may occur, depending on the circumstances, shortly after the adoption of the national judicial decision. That dual level of judicial protection is lacking, in principle, in a situation in which a ‘simplified’ European arrest warrant procedure is applied, since, under that procedure, no decision, such as a decision to issue a national arrest warrant on which the European arrest warrant will be based, has been taken by a national judicial authority before the European arrest warrant is issued. (see paras 52-58, operative part 1) 2. Article 8(1)(c) of Framework Decision 2002/584 on the European arrest warrant and the surrender procedures between Member States, as amended by Framework Decision 2009/299, is to be interpreted as meaning that, where a European arrest warrant based on the existence of an ‘arrest warrant’ within the meaning of that provision does not contain any reference to the existence of a national arrest warrant, the executing judicial authority must refuse to give effect to it if, in the light of the information provided pursuant to Article 15(2) of Framework Decision 2002/584, as amended, and any other information available to it, that authority concludes that the European arrest warrant is not valid because it was in fact issued in the absence of any national warrant separate from the European arrest warrant. Before adopting such a decision, which, by its very nature, must remain the exception in the application of the surrender system established by the Framework Decision, as that system is based on the principles of mutual recognition and confidence, the executing judicial authority must, pursuant to Article 15(2) of the Framework Decision, request the judicial authority of the issuing Member State to furnish all necessary supplementary information as a matter of urgency to enable it to examine whether the fact that the European arrest warrant does not state whether there is a national arrest warrant may be explained either by the fact that no separate national warrant was issued prior to the issue of the European arrest warrant or that such a warrant exists but was not mentioned. If, in the light of the information provided pursuant to Article 15(2) of the Framework Decision and any other information available to the executing judicial authority, that authority reaches the conclusion that, although it is based on the existence of an ‘arrest warrant’ for the purpose of Article 8(1)(c) of the Framework Decision, the European arrest warrant was in fact issued in the absence of any national arrest warrant separate from the European warrant, that authority must refuse to give effect to the European warrant on the basis that it does not satisfy the requirements as to lawfulness laid down in Article 8(1) of the Framework Decision. (see paras 65-67, operative part 2)