Opinion of the Advocate General — ECLI:EU:C:2021:115
Date: 2021-02-11
Language of the case: English
Subject matter: Judicial cooperation in criminal matters;Police cooperation;Area of freedom, security and justice
Procedure: Preliminary reference - urgent procedure
Origin: United Kingdom

SUMMARY OF ISSUES 
 
13. This case concerns the scope and definition of a "judicial authority" under Article 6(1) Council 
Framework Decision 2002/584/JHA of 13 June 2002 on the European Arrest Warrant (“EAW”) and 
surrender procedures between Member States. The question is whether the Bulgarian public 
prosecutor amounts to a “judicial authority” for the purposes of Article 6(1). 
 
14. Recent decisions of the Court of Justice particularly OG (C-508/18) and PI (C-82/19) have held that 
prior to the issue of an accusation EAW, an underlying national arrest warrant (“NAW”) must be 
issued by an authority which is subject to judicial protection. 
 
15. Further, the decision of the Court of Justice in Bob-Dogi C-241/15 clarified that the issuing of an 
EAW constitutes and requires a second level of protection for the Requested Person (“RP”). 
 
16. The fundamental issue is whether the required dual level of protection is provided where both the 
NAW and EAW are issued by the Public Prosecutor, and there is no possibility of the involvement 
of a court prior to the surrender of an RP to the requesting state. 
 
QUESTION REFERRED 
 
17. Where surrender is sought in order to prosecute a requested person, and where the decision to 
issue an underlying national arrest warrant (“NAW”) and the decision to issue a European arrest 
warrant (“EAW”) are both taken by a public prosecutor, without any involvement of a Court prior 
to surrender, does a requested person receive the dual level of protection envisaged by the Court 
in Bob-Dogi C-241/15 if: 
 
a. the effect of the NAW is limited to detaining the individual for a maximum of 72 hours for 
the purpose of bringing him before a Court; and 
b. on surrender, it is solely a matter for the Court whether to order release, or to continue 
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detention, in light of all the circumstances of the case? 
 
RELEVANT FACTUAL CONTEXT 
 
The Bulgarian process 
 
18. The Constitution of the Republic of Bulgaria provides that prosecutors are part of the independent 
judiciary and when performing their functions, the prosecutors (as well as judges, jurors and 
investigative magistrates) are subservient only to the law (Constitution, Chapter Six, Article 117, 
paragraph 2). They are bound by the Criminal Procedure Code (“CPC”). 
 
19. At the pre-trial stage, the Bulgarian public prosecutor is the designated “issuing judicial authority” 
for the purposes of an EAW. The Bulgarian prosecutor issues a restraining measure, specifically a 
detention order or decree where there are adequate grounds, valid for a period of 72 hours, with 
a guarantee that upon arrest the individual will be brought before a Court to further consider his 
remand: Article 63 and 64 CPC.  
 
20. The Court has made no findings about procedural guarantees, such as whether or not a lawyer is 
present on behalf of the Defendant at the time of issuing of the Prosecutor’s decree. 
 
21. In cases where the individual is abroad, no review before a Court takes place until after an RP is 
surrendered to the Member State. Where an individual is abroad, the prosecutor also makes the 
decision to issue an EAW in accusation cases, based upon the decree or detention order; i.e. prior 
to consideration by a Court. 
 
22. During the trial phase, the relevant Court is the “issuing judicial authority” with sole power to issue 
an EAW. 
 
23. At the post-conviction stage, where there is a verdict and an enforceable sentence, the prosecutor 
is again the “issuing judicial authority” with power to issue an EAW. 
 
24. The decision to issue an EAW by a prosecutor cannot be subject to appeal before a Court; there 
are no legal provisions in the Member State providing that right to the RP. 
  
DISPUTE IN THE NATIONAL PROCEEDINGS 
 
25. The dispute is identical to the dispute in different national proceedings before the High Court of 
Justice which has already been referred to the Court of Justice (case C-206/20 referred on 15 May 
2020). As explained below, and unlike case C-206/20, this is a reference in which the urgent 
procedure ought to be invoked because the Requested Person is in custody, and his case ought 
not to await the outcome of case C-206/20 which does not have the benefit of the urgent 
procedure.  
 
26. On behalf of the Requested Person, it is argued that the system in Bulgaria fails to comply with the 
Framework Decision and with the caselaw of the Court of Justice. National law provides that a 
Bulgarian prosecutor may issue a detention order, valid in the Member State for a period of 72 
hours; and thereafter the same prosecutor may issue an EAW. In neither case are the fundamental 
and procedural rights of the RP protected by being subject to judicial decision or oversight, 
including as to proportionality. Insofar as the detention order constitutes an NAW, it is subject to 
no oversight until (potentially) after the surrender of the RP to the Member State. In relation to 
the EAW, it is subject to no judicial oversight either before or after surrender. 
 
27. On behalf of the Requesting Authority, it is argued that the interests of a defendant are always 
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protected through the involvement of a lawyer acting on his behalf. The decision to issue the EAW 
is based on the detention order which requires that after surrender the RP will be brought before 
a court in the Member State for confirmation or substitution of the arrest and restraint measures. 
Following surrender the RP or his legal representative has the right to make representations on 
his continued detention. The system is therefore in compliance with the Framework Decision and 
with the caselaw of the Court of Justice as it provides the dual level of protection. 
 
 
APPLICABLE LAW 
 
28. Applicable Bulgarian legislation: 
 
• Judicial Power Act, Art.127; Art. 136 
• Bulgarian Criminal Procedure Code Art.6, Art.46, Arts.55-59, Arts.63, 64, 94, Art.193, Art.212, 
Art.269 
• Bulgarian Constitution, Chapter Six, Art 117, Art.119, Art.129-130, 130a(l) and (4), Art.130c(3) 
• Extradition and the European Arrest Warrant Act, Art.3, Art 37, Art.38, Art. 56 
 
29. Applicable EU Law: 
 
• Council Framework Decision 2002/584/JHA 
• Council Directive 2013/48/EU 
• OG (C-508/18) and PI (C-82/19) 
• JR & YC (C-566/19 PPU and C-626/19 PPU) 
• XD (C 625/119 PPU) 
• ZB (C 627/19 PPU) 
• PF (C-509/18) 
• Bob-Dogi (C-241/15) 
 
 
BRIEF SUMMARY OF THE BASIS FOR THE REFERENCE 
 
30. Framework Decision 2002/584/JHA on the European Arrest Warrant is part of a system of mutual 
recognition between Member States which is based on mutual trust. 
 
31. Recital 5 refers to "a system of free movement of judicial decisions in criminal matters". 
 
32. By Recital 8, the decision on execution “must be subject to sufficient controls which means that a 
judicial authority of the Member State where the requested person has been arrested will have to 
take the decision on his or her surrender.” 
 
33. Recital 10 of the Framework Decision reads: 
 
“(10) The mechanism of the European arrest warrant is based on a high level of confidence 
between Member States. Its implementation may be suspended only in the event of a serious and 
persistent breach by one of the Member States of the principles, set out in Article 6(1) [EU], 
determined by the Council pursuant to Article 7(1) [EU] with consequences set out in Article 7(2) 
EU.” 
 
34. Article 1 of the Framework Decision sets out the definition of a European Arrest Warrant thus: 
 
“(1) The European arrest warrant is a judicial decision issued by a Member State with a view to the 
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arrest and surrender by another Member State of a requested person, for the purposes of 
conducting a criminal prosecution or executing a custodial sentence or detention order.” 
 
35. Article 6 provides in relation to a competent judicial authority, that: 
 
“The issuing judicial authority shall be the judicial authority of the issuing Member State which is 
competent to issue a European arrest warrant by virtue of the law of that State.” 
 
36. Article 8(1)(c) provides that: 
 
“The European arrest warrant shall contain.... 
 
(c) evidence of an enforceable judgment, an arrest warrant or any other enforceable judicial 
decision having the same effect, coming within the scope of Articles 1 and 2;” 
 
37. Execution of an EAW is subject only to the mandatory and optional grounds for non­execution 
contained within Articles 3 and 4 of the Framework Decision. For that reason, the Court of Justice 
has held in a number of cases that the issue of an EAW must be both subject to judicial oversight 
and based upon an NAW. 
 
38. In its decision in Bob-Dogi C-241/15 [§56] the Court of Justice held that “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.” 
 
39. On 27 May 2019 the Court of Justice gave judgment in the joined cases of OG (C-508/,18) and PF 
(C-82/19 PPU) which concerned the question of whether or not a public prosecutor (specifically in 
Germany) can be considered a “judicial authority” within the meaning of Article 6(1) of the 
Framework Decision. In the course of considering the independence of German public prosecutors 
from the risk of being subject, directly or indirectly to directions or instructions from the executive, 
the Court gave guidance on the definition and characteristics of an “issuing judicial authority.” 
 
40. On 12 December 2019 the Court of Justice gave judgment in further cases concerning the status 
of a public prosecutor as an “issuing judicial authority” in France, Sweden and Belgium, see 
Parquet general du Grand-Duche de Luxembourg and Openbaar Ministerie (Public Prosecutors of 
Lyon and Tours) (C-566/19 PPU and C-626/19 PPU) (JR & YC); Openbaar Ministerie (Swedish 
Prosecution Authority) (C-625/19 PPU) (XD); and Openbaar Ministerie (Public Prosecutor in 
Brussels) (C-627/19 PPU) (ZB). 
 
41. The Court of Justice has held that where a body involved in the administration of justice, such as 
a prosecutor, and which is not a judge or court, issues an EAW, the underlying NAW must ensure 
that the RP has had the benefit of procedural safeguards and fundamental rights inherent in 
judicial protection.1 
 
42. There must be a dual level of protection in an EAW and it is for the issuing judicial authority to 
                                                     
1 OG [66] and [69]; also PF (Lithuania) [46]-[47]. 
 
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ensure the second level of protection; even where the NAW was issued by a Court.2 The prosecutor 
must review the conditions and examine the proportionality of the decision before issuing an 
EAW.3 
 
43. The prosecutor must not be subject to direction or instruction by the executive either directly or 
indirectly in a specific case.4 The prosecutor can be subject to internal instructions from 
supervisors within the hierarchy of the prosecution office.5 
 
44. The conditions for the issue of an EAW and, in particular, its proportionality must be capable of 
being subject to review by court proceedings which meet the full requirements inherent in 
effective judicial protection in the issuing Member State.6 That can be before or after surrender.7 
The requirement for review by a Court does not affect the qualification of an authority as an 
“issuing judicial authority”. However, there is a mandatory requirement for there to be a review 
in full of the decision of that prosecutor, complying with the requirements of effective judicial 
protection, in the case of issuance by a non­court authority.8 
 
45. It is for the executing judicial authority to determine whether the decision to issue an EAW “may 
be the subject of court proceedings which meet in full the requirements inherent in effective 
judicial protection.”9 
 
46. It is up to Member States to ensure that their legal systems guarantee effectively the judicial 
protection required by means of the remedies they apply, which may differ from one system to 
another. The establishment of a separate right of appeal against the issue of an EAW is one 
possibility.10 
 
47. Therefore, prior to the issue of an EAW by a prosecutor, there must have already been protection 
of the procedural safeguards and fundamental rights undertaken by a judicial authority, when 
issuing the NAW. The EAW is the second level of protection; of procedural and fundamental 
rights.11 
 
48. At least one of the NAW or EAW must achieve full safeguards for the RP, especially (1) that it is a 
procedure subject to review by a Court; and (2) that the RP has the benefit of all safeguards 
appropriate to that type of decision.12 
 
49. The conditions for the issue of the EAW and its proportionality can be subject to judicial review 
either before, at the same time as, or after its adoption.13 
 
REASONS FOR THE REFERRAL 
 
50. The concept of an “issuing judicial authority” is an autonomous one under EU law, which cannot 
be left for Member states to determine: judgments of Poltorak, C-452/16 PPU, EU:C:2016:858, 
                                                     
2 PF (Lithuania) [50]. 
3 OG [71]-[72]. 
4 OG [73] and [90]. 
5 JR [56]. 
6 OG [75]; PF [53] and JR [62-63]. 
7 JR [70 - 73]. 
8 OG [75] and JR [48-49]. 
9 PF [57] (approved JR [49]). 
10 XD [43-44]. 
11 OG [66] and Bob-Dogi at [55] 
12 OG [70] 
13 XD [52]. 
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paragraph 32, and of 10 November 2016, Kovalkovas, C-477/16 PPU, EU:C:2016:861, paragraph 
33. 
 
51. The Referring Court considers it necessary to refer a question to the Court of Justice as the answer 
to the question is not clear and its determination is necessary for the resolution of the dispute. 
 
52. The Referring Court considers that, according to the current national legislative regime in Bulgaria, 
neither the national detention order nor the EAW is founded on a decision of a court; and neither 
is subject to the possibility of judicial oversight prior to the surrender of the RP. The prosecutor is 
responsible for issuing a document having power to hold an individual for 72 hours; and thereafter 
the prosecutor is responsible for issuing an EAW. 
 
53. The position in Bulgaria appears distinct from any of the other cases previously referred to the 
Court of Justice for consideration, in that there is no possibility of the involvement of a Court in 
respect of the NAW or EAW in pre-trial accusation cases prior to surrender, and no possibility of a 
review before a court of the decision of the public prosecutor to issue an EAW. 
 
54. The status of the public prosecutor as an issuing judicial authority in those circumstances is one 
which the Referring Court considers can only be settled by a ruling from the Court of Justice as to 
the requirements for effective judicial protection. None of the decisions of the Court of Justice 
have addressed the situation now before the Referring Court. 
 
ACCOMPANYING DOCUMENTS 
 
55. This request for a preliminary ruling is accompanied by the following documents: 
 
c. All orders and decisions of this Court 
d. European Arrest Warrant issued for the Requested Person. 
 
 
 
  
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IN WESTMINSTER MAGISTRATES COURT 
 
BEFORE DISTRICT JUDGE (MAGISTRATES COURT) GRIFFITHS 
 
B E T W E E N: 
 
SVISHTOV REGIONAL PROSECUTOR'S OFFICE 
 
-v- 
 
PI 
 
________________________________________ 
 
REQUEST FOR THE PPU PROCEDURE UNDER  
RULE 107 OF THE RULES OF PROCEDURE 
 
________________________________________ 
  
 
1. The referring Court, Westminster Magistrates Court, requests that the Court of Justice consider 
the referral under the PPU procedure under Article 107 of the Rules of Procedure. The referring 
Court does so in light of the Court of Justice’s Recommendations (2019/C 380/01) published in the 
Official Journal of the European Union on 8 November 2019, concerning the initiation of 
preliminary ruling proceedings.  
 
2. The Requested Person, PI, is a Bulgarian national, whose extradition is sought from the United 
Kingdom to be prosecuted in Bulgaria for a theft which is alleged to have taken place there on 8 
December 2019. The Requesting Authority is the Prosecutor of the Regional Prosecutor's Office in 
Svishtov, Bulgaria. 
 
3. The Requested Person has been arrested pursuant to a European Arrest Warrant and he is now 
detained in custody in the United Kingdom solely as a result of those proceedings.  
 
4. His remand status is subject to periodic review; he must appear before the Referring Court every 
28 days where the Court will assess his continued detention. Subject to the Referring Court 
concluding that the circumstances justifying his detention are no longer met, he will remain in 
custody until the resolution of his extradition proceedings (including any appeal proceedings).  
 
5. The Referring Court has in mind the strict timescales for surrender in extradition matters, set out 
at Article 18 of Framework Decision 2002/584/JHA. Article 267(4) TFEU requires the Court of 
Justice to act “with the minimum of delay” where a question referred for a preliminary ruling is 
raised in a case with regard to a person in custody. 
 
6. In Judgment of 25 July 2018 (Grand Chamber), Minister for Justice and Equality (Deficiencies in the 
justice system) (C-216/18 PPU, EU:C:2018:586), an Irish request for PPU was granted in a case 
where the person concerned was in custody, his continued detention depended on the outcome 
of the main proceedings, and the deprivation of liberty was ordered in the context of the execution 
of European arrest warrants (paragraphs 29 and 30). 
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0 
 
 
 
7. In Judgment of 12 February 2019, TC (C-492/18 PPU, EU:C:2019:108), the Court of Justice recalled 
its settled case-law, according to which it is necessary to take into account the fact that the person 
concerned is being deprived of his liberty and that the question whether he may continue to be 
held in custody depends on the outcome of the dispute in the main proceedings; his situation must 
be assessed as it stands at the time when consideration is given to the request that the reference 
be dealt with under the PPU.  
 
8. The extradition proceedings for this Requested Person cannot conclude until the Court of Justice 
has reached a determination in respect of the question referred.  The decision of the Court of 
Justice is decisive as to the Referring Court’s assessment of the Requested Person’s legal situation.  
 
9. If the answer to the question is that the Requesting Authority cannot, as an autonomous matter 
of EU law, amount to an “Issuing judicial authority” for the purposes of Article 6(1) of Framework 
Decision 2002/584/JHA, then he will be subject to immediate discharge from that warrant and 
released from custody.  
 
10. On 15 May 2020, another UK court referred a question in same terms as this Referring Court; case 
C-206/20. However, the Court of Justice declined the application for that matter to be heard under 
the ‘expedited procedure’ given the fact that the requested person in those proceedings is on bail.  
 
11. If the urgent procedure is not granted in this case, then the Referring Court must await the 
outcome of the reference in C-206/20, which is taking place under the ordinary procedure. The 
result is that the Requested Person may remain in custody for a period significantly longer than 
the timescale envisaged by Framework Decision 2002/584/JHA for the resolution of proceedings.