Opinion of the Advocate General — ECLI:EU:C:2019:1011
Date: 2019-11-26
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

Translation C-717/18 - 1 
Case C-717/18 
Request for a preliminary ruling 
Date lodged: 
15 November 2018 
Referring court: 
Hof van Beroep te Gent (Belgium) 
Date of the decision to refer: 
7 November 2018 
Criminal proceedings against: 
X 
  
HOF VAN BEROEP TE GENT (Court of Appeal, Gent) 
kamer van inbeschuldigingstelling (Indictment Chamber) 
... 
Having regard to the written and signed claim of the Procureur-Generaal 
(Prosecutor-General), which reads as follows:  [that claim is attached to the order 
for reference in its entirety, but the relevant parts are also set out point 2, second 
paragraph, and point 3.2 of the order for reference] 
... 
...  
...  
...   
Having regard to the European arrest warrant issued on 25 May 2018 by ... the 
National High Court, Madrid, Spain. 
Having regard to the additional European arrest warrant, issued on 27 June 2018 
by the same magistrate president. 
EN 
REQUEST FOR A PRELIMINARY RULING OF 7. 11. 2018 – CASE C-717/18 
 
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Having regard to the order of 17 September 2018 of the Rechtbank van eerste 
aanleg Oost-Vlaanderen, afdeling Gent (Court of First Instance, Oost-Vlaanderen, 
Ghent Division), sitting in chambers, whereby execution of the (additional) 
European arrest warrant of 27 June 2018 in respect of [confidential] was refused. 
Having regard to the appeal lodged on 17 September 2018 by the public 
prosecution service against the aforementioned order. 
Having regard to the abovementioned written claim of 26 September 2018 of the 
Procureur-Generaal. 
... [procedural details]  
2. Article 3 of the Wet van 19 december 2003 betreffende het Europees 
aanhoudingsbevel (Law of 19 December 2003 on the European arrest warrant; 
‘Wet EAB’) provides that a European arrest warrant may be issued for acts 
punishable by the law of the issuing Member State, which is Spain in this case, by 
a custodial sentence or a security measure for a maximum period of at least 12 
months or, where the penalty has already been imposed – as is the case here – or a 
security measure has been adopted, to the extent that it is at least four months. 
The European arrest warrant in respect of the person concerned was issued with a 
view to the imposition of penalties or security measures of at least four months, 
namely of a prison sentence of two years for the glorification of terrorism and the 
humiliation of the victims thereof, punishable under Articles 578 and 579 of the 
Spanish Criminal Code (A), of a prison sentence of one year for slander and 
serious insult of the Crown, punishable under Article 490.3 of the Spanish 
Criminal Code (B) and of a prison sentence of six months for unconditional 
threats, punishable under Article 169.2 of the Spanish Criminal Code (C). The 
conviction was handed down by the Spanish National High Court by judgment of 
21 February 2017. The appeal in cassation against that judgment was dismissed by 
the Spanish Supreme Court by judgment of 15 February 2018. 
The condition regarding the level of the penalty imposed, namely imprisonment 
for at least four months, is therefore satisfied. 
3.1. Article 5(1) Wet EAB provides that execution of the European arrest 
warrant is refused in the event that the act concerned by that warrant is not 
punishable under Belgian law. 
Article 5(2) Wet EAB provides that the previous paragraph is not applicable in the 
event that one of the criminal acts set out in paragraph 2 is at issue (which 
includes, under subparagraph 2, terrorism), in so far as they are punishable in the 
issuing Member State by a maximum custodial sentence of at least three years. 
Article 2(2) of Council Framework Decision 2002/584 on the European arrest 
warrant and the surrender procedures between Member States (‘EAWFD’), which 
was transposed into Belgian law by the Wet EAB, provides that terrorism, if it is 
PROCUREUR-GENERAAL 
 
3 
punishable in the issuing Member State, Spain in this case, by a custodial sentence 
or a detention order for a maximum period of at least three years and as defined by 
the law of the issuing Member State, is, without verification of the double 
criminality of the act, to give rise to surrender pursuant to a European arrest 
warrant. 
3.2. To be found in the case file is a European arrest warrant, of ... the National 
High Court, Madrid, Spain, dating from 25 May 2018. Also to be found in the 
case file is an additional European arrest warrant, dated 27 June 2018 .... 
The additional arrest warrant of 27 June 2018 relates to the same acts and involves 
the same details as that of 25 May 2018, with the exception of the content of point 
(e). The arrest warrant of 25 May 2018, after all, contains, under point (e), a short 
outline of the offences that gave rise to penalties (A), (B) and (C) and, under point 
(f), no optional information, whereas a detailed outline of those offences and 
optional information are indeed to be found under points (e) and (f) of the 
additional arrest warrant of 27 June 2018, respectively. 
The Hof van Beroep, kamer van inbeschuldigingstelling (Court of Appeal, 
Indictment Chamber; ‘the Hof’) notes that in both arrest warrants, under point 
(e)1, the box marked ‘terrorism’ was ticked. 
3.3. In the claim of 31 July 2018 for execution of the European arrest warrant of 
the Procureur des Konings (Belgian Crown Prosecutor) of the court of Oost-
Vlaanderen ... it is stated that the acts that gave rise to the penalty under (A) are 
provided for in Article 5(2), second subparagraph, Wet EAB (i.e. number 2 of the 
listed offences). 
In the aforementioned written claim of the Procureur-Generaal of 26 September 
2018 it is reasserted that the conduct defined in the European arrest warrant that 
gave rise to the penalty under (A) corresponds to the listed offence of Article 5(2), 
second subparagraph, Wet EAB. 
3.4. As has already been mentioned above, the EAWFD, as transposed into 
Belgian law by the Wet EAB, provides that surrender without verification of the 
double criminality of the offence is possible for a listed offence if it is punishable 
in the issuing Member State, Spain in this case, by a custodial sentence or a 
detention order for a maximum period of at least three years. The Wet EAB 
expresses this as ‘in so far as they are punishable in the issuing Member State by 
a maximum custodial sentence of at least three years’. 
3.5. The offences that gave rise to the penalty under (A) were committed at a 
point in time when Article 578 of the Spanish Criminal Code had made the crime 
of glorification of terrorism and humiliation of the victims thereof punishable by a 
prison sentence of from one to two years. In the notes of the Spanish judicial 
authorities of 27 August 2018, which were provided at the request of the Belgian 
judicial authorities, it is stated that the offences took place in 2012 and 2013. 
REQUEST FOR A PRELIMINARY RULING OF 7. 11. 2018 – CASE C-717/18 
 
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On 30 March 2015, however, Article of the Spanish Criminal Code was amended 
to stipulate that the aforementioned crime was being made punishable by a prison 
sentence of from one to three years (and a pecuniary fine of 12 to 18 months). 
That is the penalty applicable to the crime at that point in time. 
The question arises as to which of the two points in time the Hof should take as a 
basis in order to rule on whether the minimum maximum threshold as set out in 
Article 2(2) EAWFD and Article 5(2) Wet EAB was met. 
3.6. Article 267 of the Treaty on the Functioning of the European Union 
provides, in the second paragraph thereof, that the Court of Justice of the 
European Union is to have jurisdiction to give preliminary rulings concerning the 
validity and interpretation of acts of the institutions, bodies, offices or agencies of 
the Union if a court or tribunal of one of the Member States considers that a 
decision on the question is necessary to enable it to give judgment. 
The aforementioned question is a question on the interpretation or validity of EU 
law, with a view to a specific answer to the claim for execution of the European 
arrest warrant in respect of [confidential] 
When those courts apply domestic law, they are therefore bound to interpret it, so 
far as possible, in the light of the wording and the purpose of the framework 
decision concerned in order to achieve the result sought by it (judgment of the 
Court of Justice of 5 September 2012, Lopes Da Silva Jorge, C-42/11, 
EU:C:2012:517). 
3.7. The Hof accordingly refers questions [set out in the operative part] for 
a preliminary ruling .... 
4. At present, the person concerned is not deprived of his liberty. He was, after 
all, granted conditional release on 5 July 2018 by the investigating judge 
[confidential] of the Court of First Instance, Oost-Vlaanderen, Ghent Division for 
a period of three months. The conditions pertaining to that release were extended 
on 1 October 2018 by the same investigating judge for another three-month 
period, counting from 5 October 2018. 
FOR THESE REASONS, 
THE HOF, Indictment Chamber, 
... [procedural details] 
Refers the following question to the Court of Justice of the European Union for a 
preliminary ruling: 
1. Does Article 2(2) EAWFD, as transposed into Belgian law by the Wet 
EAB, permit, for the purposes of the executing Member State’s 
assessment of the minimum maximum three year threshold imposed 
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therein, recourse to be had to the criminal legislation that was 
applicable in the issuing Member State at the point in time at which the 
European arrest warrant was issued? 
2. Does Article 2(2) EAWFD, as transposed into Belgian law by the Wet 
EAB, permit, for the purposes of the executing Member State’s 
assessment of the minimum maximum three year threshold imposed 
therein, recourse to be had to criminal legislation, applicable at the 
point in time of the issue of the European arrest warrant, allowing for a 
more severe penalty, as compared to the criminal legislation that was 
applicable in the issuing Member State at the point in time the offences 
were committed? 
... 
... [procedural details, signatures]