Opinion of the Advocate General — ECLI:EU:C:2024:617
Date: 2024-07-11
Language of the case: Romanian
Subject matter: Principles, objectives and tasks of the Treaties;Judicial cooperation in criminal matters;Police cooperation;Area of freedom, security and justice;Fundamental rights;Charter of Fundamental Rights
Procedure: Preliminary reference - urgent procedure
Origin: Romania

Summary C-318/24 PPU – 1 
Case C-318/24 PPU [Breian] i 
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: 
30 April 2024 
Referring court: 
Curtea de Apel Brașov (Romania) 
Date of the decision to refer: 
30 April 2024 
Person who is the subject of the European Arrest Warrant: 
P.P.R. 
  
Subject matter of the main proceedings 
Proceedings brought by the judge responsible for the enforcement of criminal 
judgments within the Biroul executări penale al Curții de Apel Brașov (Office for 
Criminal Enforcement, Court of Appeal, Brașov, Romania), in his capacity as the 
issuing judicial authority, in the context of the execution of a European Arrest 
Warrant (‘EAW’) issued against P.P.R. for the purpose of enforcing a final 
criminal judgment sentencing him to a term of imprisonment. 
Subject matter and legal basis of the request 
On the basis of Article 267 TFEU, interpretation is sought, under the urgent 
preliminary ruling procedure, of Article 4(3) and Article 17(1) TEU, Article 47 of 
the Charter of Fundamental Rights of the European Union, and Framework 
Decision 2002/584, in particular Article 1(3) and Articles 15 and 19 thereof. 
 
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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Questions referred for a preliminary ruling 
1. May Article 15(1) of [Council Framework Decision 2002/584/JHA of 
13 June 2002 on the European arrest warrant and the surrender procedures 
between Member States], as amended by [Council Framework Decision 
2009/299/JHA of 26 February 2009 amending Framework Decisions 
2002/584/JHA, 2005/214/JHA, 2006/783/JHA, 2008/909/JHA and 
2008/947/JHA, thereby enhancing the procedural rights of persons and fostering 
the application of the principle of mutual recognition to decisions rendered in the 
absence of the person concerned at the trial], be interpreted as meaning that the 
final judgment regarding the decision of an executing judicial authority to refuse 
to surrender a requested person has the authority of res judicata with regard to 
another executing judicial authority of another Member State or must it be 
interpreted as not precluding the [repetition] of a request for surrender on the basis 
of the same European Arrest Warrant, where the factors which prevented the 
execution of a previous European Arrest Warrant have been ruled out, or where 
the decision refusing to execute that European Arrest Warrant was not consistent 
with EU law, in so far as the execution of a new European Arrest Warrant would 
not result in an infringement of Article 1(3) of Framework Decision 2002/584, 
and the repetition of the request for surrender would be proportionate, in 
accordance with the interpretation of Framework Decision 2002/584 given in the 
judgment of 31 January 2023, [Puig Gordi and Others, C-158/21] (paragraph 141 
and the answer to the sixth question referred in that case)? 
2. May Article 1(3) of Framework Decision 2002/584, as amended by 
Framework Decision 2009/299, read in conjunction with the second paragraph of 
Article 47 of the Charter of Fundamental Rights of the European Union, be 
interpreted as meaning that an executing judicial authority may not refuse to 
execute a European Arrest Warrant [issued for the purpose of executing a 
sentence] where, when reviewing the obligation to respect human rights in 
proceedings for the execution of a European Arrest Warrant, as regards the right 
to a fair trial, from the point of view of the requirement of a tribunal established 
by law, provided for in the second paragraph of Article 47 of the Charter, 
irregularities have been found regarding the taking of an oath by members of the 
adjudicating panel of the court [which delivered the conviction], without the 
interference by other public authorities in the process of appointing judges being 
called into question? 
3. May Article 1(3) of Framework Decision 2002/584, as amended by 
Framework Decision 2009/299, read in conjunction with the second paragraph of 
Article 47 of [the Charter], be interpreted as meaning that, in a situation in which 
a person who is the subject of a European Arrest Warrant claims that his or her 
surrender to the issuing Member State would result in an infringement of his or 
her right to a fair trial, the existence of a decision of the Commission for the 
Control of Interpol’s Files, which refers directly to that person’s situation, cannot 
per se justify a refusal by the executing judicial authority to execute the European 
Arrest Warrant in question? By contrast, may such a decision be taken into 
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consideration by that judicial authority, among other factors, in order to assess 
whether there are systemic or generalised deficiencies in the functioning of the 
judicial system of that Member State or deficiencies affecting the judicial 
protection of an objectively identifiable group of persons to which that person 
belongs? 
4. May Framework Decision 2002/584, as amended by Framework Decision 
2009/299, be interpreted as not precluding the repetition of a request for surrender 
of a requested person on the basis of the same European Arrest Warrant [the 
execution of which was initially refused] by an executing court of one Member 
State, before another executing court of another Member State, where the issuing 
judicial authority itself finds that the earlier decision to refuse to execute the 
European Arrest Warrant was not consistent with EU law, in the light of the 
existing judicial practice of the Court of Justice or solely due to the fact that a 
question on the interpretation of EU law applicable in that case has been referred 
to the Court of Justice for a preliminary ruling? 
5. Do the principle of mutual recognition, provided for in Article 1(2) of 
Framework Decision 2002/584, and the principles of mutual trust and sincere 
cooperation, provided for in the first subparagraph of Article 4(3) TEU, in 
conjunction with the need to ensure effective judicial protection of the rights of 
the persons involved in the proceedings, and also in the light of Articles 15 and 19 
of Framework Decision 2002/584, permit the judicial authorities of the issuing 
Member State (the issuing court [being represented by] a direct representative or, 
at the request of that court, by other judicial bodies such as a liaison magistrate, 
the national member of Eurojust or the public prosecutor of the issuing Member 
State), to participate directly – by making requests, offering evidence and 
[participating in] legal discussions – in the judicial proceedings for the execution 
of the European Arrest Warrant conducted by the executing judicial authority, and 
to use a remedy against the decision regarding the refusal to surrender – under the 
conditions laid down in the domestic law of the executing Member State for the 
use of that remedy, in so far as such a remedy is provided for in that law – on the 
basis of and in accordance with the principle of equivalence? 
6. May Article 17(1) TEU, relating to the tasks of the [European] Commission, 
read in the light of Framework Decision 2002/584, be interpreted as meaning that 
the tasks of the Commission concerning the promotion of the general interest of 
the Union through the taking of appropriate initiatives to that end and the tasks 
relating to ensuring the overseeing of the application of Union law can be 
performed in relation to a European Arrest Warrant, also at the request of the 
judicial authority which issued the European Arrest Warrant, where that judicial 
authority considers that the executing judicial authority’s refusal to execute the 
European arrest warrant seriously undermines the principles of mutual trust and 
sincere cooperation, so that the Commission may take the measures it deems 
necessary in the light of those tasks and fully independently? 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-318/24 PPU 
 
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Provisions of European Union law relied on 
Article 4(3) and Article 17(1) TEU 
Article 47 of the Charter of Fundamental Rights of the European Union 
Council Framework Decision 2002/584 of 13 June 2002 on the European arrest 
warrant and the surrender procedures between Member States, as amended by 
Framework Decision 2009/299, and in particular Article 1(3) and Articles 15 and 
19 thereof 
Succinct presentation of the facts and procedure in the main proceedings 
1 By a judgment of 27 June 2019 of the Curtea de Apel Brașov – Secția penală 
(Court of Appeal, Brașov – Criminal Division), which became final by a decision 
of 17 December 2020 of the Înalta Curte de Casație și Justiție – Secția penală 
(High Court of Cassation and Justice – Criminal Division), the accused P.P.R. 
(among others) was sentenced to a term of imprisonment of 3 years and 4 months, 
the conviction to be enforced applying the actual detention regime, for having 
committed offences of active trading of influence and complicity in the offence of 
abuse of office contrary to the public interest, [existing where] a public official 
has obtained, for himself or herself or for another person, an undue advantage, 
with particularly serious consequences. 
2 By the conviction, it was held, in essence, that, from the period running from 
August to September 2006, P.P.R. had promised a significant part of the value of 
certain immovable assets claimed to a co-accused, relying on a certificate of 
succession, in exchange for the influence which that co-accused was to exercise 
over the public officials involved in the administrative procedure for the 
reconveyance of the property (acquisition of influence); the accused subsequently 
approached (i) the public officials responsible for the reconveyance of the 
property, who acknowledged that the accused fulfilled the conditions for 
determining the right of ownership over a plot of land of 46.78 ha, even though 
the documentary evidence in the administrative file did not demonstrate that he 
was a beneficiary under the reconveyance, and (ii) the public officials who had 
ordered, in breach of the law, the return of the area of 170 924.95 square metres 
situated on State land in the Romanian State, thereby causing damage to the 
Romanian State, and thus obtaining an undue advantage for himself and the other 
members of the organised criminal group. 
3 In the present case, the particular seriousness of the offences committed by the 
requested person, constituting offences of grand corruption and participation in 
abuse of office by public officials in his own interest, involving damage exceeding 
EUR 150 000 000, was recognised. 
4 After the conviction became final on 17 December 2020, the Curtea de Apel 
Brașov – Biroul executări penale (Office for Criminal Enforcement, Court of 
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Appeal, Brașov) issued, on the same date, an EAW against P.P.R, on the basis of 
which he was arrested, on 28 June 2020, in Paris (France). 
5 On 29 November 2023, the cour d’appel de Paris (Court of Appeal, Paris, France) 
(‘the Paris Court of Appeal’), in its capacity as the executing judicial authority, 
refused to surrender the requested person. 
6 On the basis of alleged systemic irregularities relating to the absence of evidence 
of the taking of an oath by judges of the issuing Member State, and in particular 
by two of the three members of the adjudicating panel which had convicted 
P.P.R., as well as the provisions of Article 1(3) of Framework Decision 2002/584, 
the Paris Court of Appeal analysed the risk of infringement of the right to a fair 
trial provided for in the second paragraph of Article 47 of the Charter, from the 
point of view of the requirement of an independent and impartial tribunal 
previously established by law. 
7 In its analysis of that risk, the executing judicial authority, during the first stage, 
examined whether there were systemic or generalised deficiencies with regard to 
the independence of the judicial system of the issuing Member State and then, 
during the second stage, carried out a specific examination of the consequences of 
those deficiencies in the case relating to the requested person, referring to the 
case-law of the Court of Justice, and in particular to the judgments of 22 February 
2022, Openbaar Ministerie (Tribunal established by law in the issuing Member 
State), C-562/21 PPU and C-563/21 PPU, and of 17 December 2020, Openbaar 
Ministerie (Independence of the issuing judicial authority), C-354/20 PPU and 
C-412/20 PPU. 
8 In the context of the first stage of its analysis, the Paris Court of Appeal observed 
that ‘the fact that the place in which the oath statement – the only document 
capable of proving that that essential procedural requirement has been met – is 
kept remains uncertain, within institutions which are not necessarily determined, 
is not only systemic, inherent in the state of the Romanian judicial system as at 
24 April 2014, but also such as to give rise to doubt as to the regulatory 
composition of the Romanian courts. … The taking of an oath, in so far as it 
affects the commitment of judges to respect their ethical obligations and confers 
the power to administer justice, on behalf of the State, the enforcement of which 
may subsequently be relied on, constitutes a fundamental guarantee in the process 
of appointing judges and, therefore, contributes to the legitimacy of the judicial 
system and to the trust placed in it by citizens, within the meaning of the 
aforementioned case-law of the Court of Justice of the European Union. This 
systemic deficiency in one of the components of the right to an independent and 
impartial tribunal creates a real risk of infringement of that right in Romania and 
is based on reliable information, communicated by the judicial authority of the 
issuing Member State, which is objective and precise, as it originates from, inter 
alia, the Consiliul Superior al Magistraturii din România (Superior Council of 
Magistracy, Romania), and is also current, as it dates back to that year and was 
already valid on the date on which the conviction was handed down in 2020’. 
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9 In the context of the second stage of its analysis, the Paris Court of Appeal 
observed that ‘that systemic deficiency had an impact on the criminal proceedings 
brought against P.P.R., in particular with regard to the composition of the Înalta 
Curte de Casație și Justiție at the hearing which gave rise to the conviction of 
17 December 2020’; that, with regard to Judge I.M.M., ‘the Consiliul Superior al 
Magistraturii din România, in its letter of 30 June 2023, confirmed that it was not 
in possession of that oath statement and did not provide the date on which that 
oath was taken’, with the result that the acts carried out by the judge who had not 
taken oath were invalid; and that, in the case of Judge F.D., who had taken oath as 
a public prosecutor, ‘the Romanian judicial authorities accept that the assumption 
that the transition from the office of public prosecutor to that of judge does not 
require an oath to be re-taken is not based on either an express legislative 
provision or on case-law, but is merely an opinion on their part, as mentioned on 
page 4 of the letter of the Curtea de Apel Brașov of 5 July 2023’. 
10 In those circumstances, the French executing judicial authority considered that 
there was a real risk that, if P.P.R. were surrendered, his fundamental right to a 
fair trial before an independent and impartial tribunal previously established by 
law, enshrined in the second paragraph of Article 47 of the Charter, would be 
infringed. 
11 As regards the possible existence of a remedy on the ground that the court was not 
legally constituted, the Paris Court of Appeal observed that ‘the reply of the 
Romanian judicial authorities did not provide any additional guarantee’ and that, 
‘although the extraordinary remedy of the action for annulment provided for in 
Article 426(d) of the Codul de procedură penală (Romanian Code of Criminal 
Procedure) is mentioned, it is not stated that P.P.R. could rely on it; there is only a 
general reference to this extraordinary remedy …; in addition, there are doubts as 
to the actual effectiveness of such a remedy, given the personal situation of P.P.R., 
who was belatedly recognised as heir … by the Romanian courts in 2012, 
following a number of decisions by international courts’. 
12 The Paris Court of Appeal also took into consideration the decision of the 
Commission for the Control of Interpol’s Files – Applications Section, taken at its 
123rd session running from 30 January to 3 February 2023, whereby it was 
decided that the data relating to P.P.R. do not conform to Interpol standards and 
should be deleted from Interpol’s files, on the grounds that there are ‘serious 
concerns regarding the existence of political elements in the general context and 
regarding respect for the principles of human rights during the procedure 
concerned’. 
13 The judgment of the Paris Court of Appeal became final on an unspecified date, 
because the remedy provided for by French legislation had not been used, and the 
issuing judicial authority had not been informed of any ground for failing to use 
that legal remedy. That final judgment of 29 November 2023 was not 
communicated to the issuing judicial authority immediately after it became final, 
in accordance with Article 22 of [Framework Decision 2002/584], but only on 
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28 February 2024 and only following the express request of that court. Following 
the final judgment, the executing court did not order that a flag be added in the 
Schengen Information System (SIS), and the alert therefore remained active, 
contrary to the rules of the Schengen Information System. Lastly, the executing 
court did not inform Eurojust that the time limits for execution had been exceeded, 
stating the reasons for the delay, in accordance with Article 17(7) of [Framework 
Decision 2002/584]. 
14 With regard to the legal situation of Judge F.D., by Decision No 125/A of 22 April 
2021, the Înalta Curte de Casație și Justiție – Secția penală dismissed an 
extraordinary appeal for the annulment of the final conviction of several co-
accused involved (with the exception of the requested person), based on 
Article 426(d) and Article 354(1) of the Romanian Code of Criminal Procedure, 
concerning the unlawful composition of the adjudicating panel hearing the appeal, 
in relation to the issue regarding the absence of evidence that oath had been taken 
by Judge F.D.. In that regard, the Înalta Curte de Casație și Justiție held that 
‘failure by a judge to take oath for reasons not attributable to that judge is not in 
any way penalised by law, except where that conduct is the result of an attitude 
actively assumed by that judge, who refuses to take oath, in which case the 
sanction is imposed by operation of law and consists of the invalidity of the 
appointment to the office in question’, with the result that the failure to take oath 
does not give rise to the absolute nullity of the acts performed, but is merely a 
case of relative nullity, which can no longer be relied on adopting the 
extraordinary remedy of an action for annulment. 
15 As regards Judge I.M.M., he stated, in a declaration on honour authenticated 
before a public notary, that he had taken the oath required by the law in force 
before the commencement of his activity as a judge at the Judecătoria Sector 3 
București (Court of First Instance, Sector 3, Bucharest, Romania) in October 
1995, without being able to specify the exact date on which the oath was taken, an 
aspect which was not contested at any time during his 26-year career, when he 
progressed, stage by stage, at every instance of the domestic court system (Court 
of First Instance, Regional Court, Court of Appeal and High Court [of Cassation 
and Justice]), until he was appointed as Vice-President of the Înalta Curte de 
Casație și Justiție, an office he held during the period from 2013 to 2016. 
16 On 28 April 2024, P.P.R. was traced in Malta. After the EAW of 17 December 
2020 had been communicated to the executing judicial authority for the purposes 
of surrender, the requested person was arrested on 29 April 2024 with a view to 
his surrender to the issuing judicial authority. In a communication of the same 
date, the executing judicial authority of Malta requested supplementary 
information, claiming that the requested person had invoked the judgment 
whereby the Paris Court of Appeal had refused surrender. 
17 By order of 30 April 2024, made in closed session and without a summons, by the 
judge responsible for the enforcement of criminal judgments within the Curtea de 
Apel Brașov, the present reference for a preliminary ruling was made to the Court 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-318/24 PPU 
 
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of Justice seeking to ascertain whether the refusal by the Paris Court of Appeal to 
execute the EAW was consistent with EU law and to determine the legal effect of 
that refusal in the enforcement proceedings initiated in Malta. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
18 The referring court sets out, in the first place, the reasons for which its request for 
a preliminary ruling is manifestly admissible, referring to the judgment of 
21 December 2023, Krajowa Rada Sądownictwa (Continued holding of a judicial 
office), C-718/21, paragraph 40 and the case-law cited. 
19 As regards its jurisdiction, the referring court states that the questions referred 
have been formulated in criminal proceedings at the stage of enforcement of a 
final criminal judgment, in which jurisdiction to issue an EAW lies, under national 
law and unequivocally, with the judge responsible for the enforcement of criminal 
judgments within the judicial body enforcing the final judgment (the court which 
ruled on the merits of the case at first instance), in accordance with Article 554 of 
the Romanian Code of Criminal Procedure, Article 89(4)(a) and (b) of Legea nr. 
302/2004 privind cooperarea judiciară în materia penală (Law No 302/2004 on 
judicial cooperation in criminal matters), republished, and Article 25(1)(j) of the 
Regulamentul de ordine interioară al instanțelor judecătorești (Internal rules of 
procedure of the courts). Thus, recalling also the judgment of 11 April 2024, 
Sapira, C-114/23, C-115/23, C-132/23, and C-160/23, paragraphs 36 and 37, the 
referring court maintains that its jurisdiction and the legal nature of the main 
proceedings cannot constitute grounds for inadmissibility. 
20 The referring court performs, in the main proceedings, a judicial and not an 
administrative function, such that the procedure, even though it is not adversarial, 
is manifestly judicial in nature. Therefore, in the light of the judgment of 
16 December 2008, Cartesio, C-210/06, paragraphs 54 to 63, the referring court 
should be recognised as having jurisdiction to make a reference to the Court of 
Justice under Article 267 TFEU. Furthermore, recalling the judgments of 
9 January 2024, G. [and Others] (Appointment of judges to the ordinary courts in 
Poland), C-181/21 and C-269/21, paragraph 63, and of 26 March 2020, Miasto 
Łowicz [and Prokurator Generalny], C-558/18 and C-563/18, paragraph 48, that 
court states that a preliminary ruling is necessary to enable it to give a ruling, the 
questions [referred] being relevant for the resolution of the dispute. 
21 As regards the first question, the referring court, relying on what was stated by 
the Court of Justice in the judgments of 31 January 2023, Puig Gordi and Others, 
C-158/21, paragraphs 141, 144 and 145 and point 6 of the operative part, and of 
25 July 2018, AY (Arrest warrant – Witness), C-268/17, paragraphs 32 to 36, 
claims that the issuing judicial authority has the possibility to issue several 
successive EAWs, in which case the executing judicial authority is required to 
rule on the execution of those EAWs, failing which it will be in breach of its 
obligations under Articles 15, 17 and 22 of [Framework Decision 2002/584]. 
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22 Indeed, the case-law of the Court of Justice lays down, for the purpose of issuing a 
new EAW, in addition to requiring an analysis of whether such a measure is 
proportionate, two conditions, namely (i) the factors which prevented the 
execution of a previous EAW have been ruled out and (ii) it is considered that 
the decision refusing to execute that EAW was not consistent with EU law. 
Those two conditions are therefore alternative in nature, as it is sufficient for only 
one of them to be regarded as satisfied, which is apparent [not only] from an 
argument based on a literal interpretation of the wording of [the judgment in Puig 
Gordi and Others], because the conjunction ‘or’ is used in-between those two 
conditions, but also from a substantive argument that suggests that they are 
autonomous, it being understood that the inconsistency with EU law of a refusal to 
execute an EAW may per se constitute a basis for the issuing of a new EAW, 
regardless of whether or not the obstacles identified – by definition, 
inappropriately – by the executing judicial authority have been ruled out. 
23 Given that the situation in Puig Gordi and Others, with regard to the possibility of 
issuing a new EAW against the same person for the attention of the same 
executing State whose judicial authority refused the previous EAW, does not 
appear to differ from the situation in the present case, relating to the repetition of a 
request for surrender on the basis of the same EAW before another executing 
judicial authority of another Member State, the answer to the first question 
referred for a preliminary ruling must be, according to the referring court, that 
Article 15(1) of Framework Decision 2002/584 may be interpreted as not 
precluding successive repetitions of a request for surrender on the basis of the 
same EAW, where the factors which prevented the execution of a previous EAW 
have been ruled out or where the decision refusing to execute that EAW was not 
consistent with EU law. 
24 As regards the second question, the referring court proceeds, from the point of 
view of verifying the second of the two aforementioned conditions (that the 
decision refusing surrender was not consistent with EU law), to analyse the 
decision by which the Paris Court of Appeal refused surrender. 
25 Although the Paris Court of Appeal found systemic irregularities concerning the 
taking of an oath by judges of the issuing Member State, who were in that instance 
two of the three members of the panel which convicted P.P.R, and thereby 
concluded that there was a real risk of infringement, in the issuing Member State, 
of the fundamental right to a fair trial guaranteed by the second paragraph of 
Article 47 of the Charter, from the point of view of the requirement of a tribunal 
established by law, the referring court takes the view that EU law does not permit 
such an interpretation of the autonomous concept of an independent and impartial 
tribunal established by law referred to in the second paragraph of Article 47 of the 
Charter. 
26 Recalling what was held by the Court of Justice in the judgments of 25 July 2018, 
Minister for Justice and Equality (Deficiencies in the system of justice), 
C-216/18 PPU, paragraphs 36 and 37, and of 22 February 2022, Openbaar 
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Ministerie (Tribunal established by law in the issuing Member State), 
C-562/21 PPU and C-563/21 PPU, paragraph 57, and by the European Court of 
Human Rights (ECtHR) in Aranyosi and Căldăraru v. France, as well as the fact 
that the executing court may carry out a two-stage assessment relating, first, to the 
existence of such a general and systemic risk in the issuing State and, second, to 
the existence of an actual, specific risk for the person concerned, the referring 
court maintains that the concern of the Paris Court of Appeal regarding respect for 
the fundamental rights of the requested person is legitimate. 
27 Nevertheless, although the Paris Court of Appeal referred, when it examined the 
requirement of a ‘tribunal established by law’, to the judgment of 6 October 2021, 
W.Ż. (Chamber of Extraordinary Control and Public Affairs of the Supreme 
Court – Appointment), C-487/19, paragraph 125, the referring court states, 
referring to paragraphs 130 and 139 of that judgment, that interferences by other 
public authorities with the appointment of judges, at issue in the aforementioned 
case, are not apparent in the present case, which concerns merely proof that judges 
have taken oath. 
28 In addition, the referring court recalls the case-law of the Court of Justice 
(judgment of 26 February 2013, Melloni, C-399/11, paragraph 60), according to 
which, when examining the risk of infringement of fundamental rights, the 
executing court cannot apply a higher national standard of protection than that 
provided for by the Charter, if the primacy, unity and effectiveness of EU law are 
compromised [thereby]. 
29 Given that, in accordance with Article 52(3) of the Charter, the right to a fair trial, 
enshrined in the second paragraph of Article 47 of the Charter, can be interpreted 
only in the light of Article 6(1) of the European Convention on Human Rights 
(ECHR), the referring court takes the view that the relevant case-law of the 
ECtHR regarding the concept of an independent tribunal established by law 
should be taken into consideration. 
30 Thus, on the one hand, the ECtHR has convicted an executing Member State 
which, on a factual basis that was sufficiently solid to establish the existence of a 
real risk of inhuman or degrading treatment due to detention conditions in the 
issuing State, decided to execute the EAW and surrendered the requested person 
(Moldovan v. France). On the other hand, in another case, the ECtHR, considering 
that there was no sufficient factual basis for a refusal, convicted an executing 
Member State which had refused to execute an EAW, finding an infringement of 
Article 2 ECHR (Castano v. Belgium). Moreover, the ECtHR has recognised the 
importance of the principles of mutual trust and mutual recognition within the EU 
legal order (Bivolaru and Moldovan v. France, §§ 100 to 102). 
31 The referring court also refers, in that context, to the judgments of the ECtHR of 
18 November 2014, Adrian Năstase v. Romania, §§ 69 to 73, in which the ECtHR 
rejected as manifestly unfounded a complaint similar [to that at issue] in the 
present case, in a case in which the applicant complained not only of the absence 
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of an oath taken as a judge by a former public prosecutor, who was then a member 
of the adjudicating panel, but also of the absence of a decree of the President of 
Romania appointing as judge that member of the adjudicating panel (a case in 
which, by definition, the oath as a judge is lacking), and of 6 September 2022, 
Daniela Năstase and Adrian Năstase v. Romania, §§ 114 to 126. 
32 The fact that the interpretation given by the Court of Justice of the second 
paragraph of Article 47 of the Charter must provide a level of protection which 
does not disregard that guaranteed by Article 6 ECHR, as interpreted by the 
ECtHR, is also apparent from the case-law of the Court of Justice. The referring 
court recalls, in that context, the judgments of 19 November 2019, A. K. [and 
Others] (Independence of the Disciplinary Chamber of the Supreme Court), 
C-585/18, C-624/18 and C-625/18; of 26 March 2020, Review Simpson v Council 
[and Review HG v Commission, C-542/18 RX-II and C-543/18 RX-II], 
paragraphs 72 to 75 and 79; and of 21 December 2023, Krajowa Rada 
Sądownictwa (Continued holding of a judicial office), C-718/21, paragraph 47. 
33 The referring court infers from that case-law that it is not every irregularity in the 
judicial appointment process, such as the lack of evidence of a judge’s 
professional oath, that may suggest that the requirement of a tribunal established 
by law has not been met, but only the particularly serious defects that also affect 
the characteristics of impartiality and independence of the tribunal, the most 
important values underlying the effective functioning of democracies (judgment 
of the ECtHR of 9 January 2013, Oleksandr Volkov v. Ukraine, § 199), with the 
result that the refusal of the Paris Court of Appeal to surrender the requested 
person is not, according to the referring court, consistent with EU law. 
34 As regards the third question, the referring court takes the view that the decision 
of the Commission for the Control of Interpol’s Files – Applications Section, 
taken at the session running from 30 January 2023 to 3 February 2023, which the 
Paris Court of Appeal took into account when it refused to execute the EAW, can 
be taken into consideration, without, however, being decisive. That commission is 
not a tribunal, but a police cooperation structure, of a purely administrative nature, 
whose decisions cannot bind courts. Point 4 of the operative part of the judgment 
in Puig Gordi and Others confirms this. 
35 By the fourth question, the referring court takes the view that it is necessary to 
determine whether the fact that the refusal to execute the EAW is inconsistent 
with EU law may be determined by the issuing judicial authority in the light of 
EU law on the basis of the existing judicial practice of the Court of Justice, or 
solely as a consequence of referring a question to the Court of Justice for a 
preliminary ruling on the interpretation of EU law applicable in the present case. 
36 Unlike Puig Gordi and Others, in which the referring court took the view that the 
factors which prevented the execution of a previous EAW had been ruled out, in 
the present case, the referring court considers that the grounds for refusing to 
execute the EAW are not consistent with EU law. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-318/24 PPU 
 
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37 In view of the fact that the authority of res judicata of the decision of the 
executing court refusing surrender precludes the repetition of the request for 
surrender or the issuing of a new EAW, the referring court takes the view that the 
repetition of the request for surrender on the basis of the previous EAW or the 
issuing of a new EAW could be ordered only if the refusal to execute is contrary 
to clear and foreseeable case-law of the Court of Justice assessed as such by the 
issuing court itself or where the Court of Justice is called upon to interpret the 
rules of EU law on which the refusal of the executing court is based. 
38 By the fifth question, the referring court seeks to ascertain whether the issuing 
judicial authority has any procedural means at its disposal to participate directly in 
the adoption of the final decision on the surrender of the requested person by the 
executing judicial authority. 
39 Recalling the lengthy duration and considerable costs involved in the repeated 
requests for information in the context of the procedure for the execution of the 
EAW, the [referring] court takes the view that the shortcomings of the procedure 
before the Paris Court of Appeal – the lack of proper alignment with the European 
standard with regard to the requirement of a ‘tribunal established by law’, the 
misinterpretation of the domestic law of the issuing State with regard to the nature 
of nullity resulting from the absence of an oath taken by a judge, the taking into 
account of manifestly unfounded allegations by the requested person, such as the 
political nature of the trial or the unquestioning acceptance of solutions offered by 
non-judicial bodies, such as Interpol commissions, or the failure on the part of the 
public prosecutor to appeal against the decision at first instance refusing to 
execute the EAW and the failure to communicate the final judgment to the issuing 
judicial authority – could have been avoided through direct contact between the 
judicial authorities involved, that is to say, through the direct participation of the 
judicial bodies of the issuing Member State in the procedure of the executing 
State, permitting those bodies to appeal against the decision at first instance 
refusing surrender, in accordance with the law of the executing State. 
40 No provision of [Framework Decision 2002/584] precludes such direct 
participation. On the contrary, the principles of mutual recognition, mutual trust 
and sincere cooperation, combined with the need to ensure effective judicial 
protection of the rights of the persons involved in the proceedings, require such 
participation. Furthermore, such participation would reduce the gap between the 
theory of the principle of mutual trust and the existing practice regarding the 
application of that principle, in a context where the interpretation sought by the 
questions referred is not only possible, but also necessary, in order to achieve the 
objectives of [Framework Decision 2002/584], in accordance with the principle of 
effectiveness of EU law and in the light of the current conditions for application of 
that principle, determining the common development of the values and legal 
traditions of the Member States. 
41 With regard to the use of a remedy, in accordance with the domestic law of the 
executing State, against the decision at first instance refusing to execute the EAW, 
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the referring court points out that it is necessary that the issuing judicial authority 
itself be in a position to lodge, on its own initiative and without any further 
authorisation or mediation, the corresponding appeal, especially as no provision of 
the national law of the executing State can impose an obligation to pursue that 
remedy on any national authority, such as the public prosecutor’s office or the 
competent public prosecutor in the executing Member State. 
42 By the sixth question, the referring court seeks an interpretation of the provisions 
of Framework Decision 2002/584 with regard to the review of the procedures for 
the execution of an EAW. According to that court, in addition to the statistical 
control or review of legislative policy arising from the provisions of Article 17(7) 
and Article 34 of [Framework Decision 2002/584], where the presumptions 
underlying the principle of mutual trust are overturned, a complementary, ad hoc 
review by the Commission, carried out within the limits of its jurisdiction to 
oversee the application of Union law and to promote the general interest of the 
Union, is indeed consistent with the objectives of judicial cooperation in criminal 
matters. 
Request for the application of the urgent preliminary ruling procedure (PPU) 
43 Referring to the settled case-law of the Court of Justice (judgments of 25 July 
2018, Minister for Justice and Equality (Deficiencies in the system of justice), 
C-216/18, paragraphs 26 to 32, and of 12 February 2019, TC, C-492/18 PPU, 
paragraphs 27 to 35), the referring court requests that the reference for a 
preliminary ruling be dealt with under the urgent preliminary ruling procedure 
provided for in Article 107 of the Rules of Procedure of the Court of Justice. 
44 In support of its request, the referring court claims, first, that the reference for a 
preliminary ruling concerns one of the areas covered by Title V of Part Three of 
the FEU Treaty, relating to the area of freedom, security and justice, and, second, 
that the person concerned is currently being deprived of his liberty during the 
procedure for the execution of the EAW before the executing judicial authority of 
Malta and that the question as to whether he may continue to be held in custody 
depends on the outcome of the dispute in the main proceedings, in view of the fact 
that that person has relied, in the proceedings before the executing judicial 
authority of Malta, on his legal situation resulting from the refusal to execute an 
earlier EAW by another executing court of another Member State. 
45 The referring court also points out that, as the reference for a preliminary ruling 
has been made by the issuing judicial authority, a stay of proceedings in the main 
proceedings for the execution of the EAW has not yet been ordered.