Opinion of the Advocate General — ECLI:EU:C:2018:672
Date: 2018-09-06
Language of the case: French
Subject matter: Judicial cooperation in criminal matters;Police cooperation;Area of freedom, security and justice
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary — Judgment of the Court (First Chamber), 13 December 2018 1. Judicial cooperation in criminal matters — Council Framework Decision 2002/584 on the European arrest warrant and the surrender procedures between Member States — Grounds for optional non-execution of the European arrest warrant — Arrest warrant issued for the purposes of enforcing a custodial sentence or detention order — Requested person staying in, or being a resident of, the executing Member State within the meaning of Article 4(6) of the framework decision –Conditions for non-execution of the arrest warrant –Concepts of residence and stay –Undertaking of the executing Member State to enforce the sentence –Legitimate interest justifying the enforcement of the sentence in the executing Member State (Council Framework Decisions 2002/584, as amended by Framework Decision 2009/299, Art. 4(6)) 2. Judicial cooperation in criminal matters — Council Framework Decision 2002/584 on the European arrest warrant and the surrender procedures between Member States — Grounds for optional non-execution of the European arrest warrant –Arrest warrant issued for the purposes of enforcing a custodial sentence or detention order –Requested person residing in the executing Member State sentenced for an offence punishable in that Member State only by a fine — Non-execution of the arrest warrant — Lawfulness — Condition –Enforcement of the sentence imposed in the executing Member State (Council Framework Decisions 2002/584, as amended by Framework Decision 2009/299, Art. 4(6) and 2008/909, as amended by Framework Decision 2009/299, Art. 25) 1. See the text of the decision. (see paras 32-37) 2. Article 4(6) 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, must be interpreted as meaning that, where, as in the case in the main proceedings, a person who is the subject of a European arrest warrant issued for the purposes of enforcing a custodial sentence resides in the executing Member State and has family, social and working ties in that Member State, the executing judicial authority may, for reasons related to the social rehabilitation of that person, refuse to execute that warrant, despite the fact that the offence which provides the basis for that warrant is, under that national law of the executing Member State, punishable by fine only, provided that, in accordance with its national law, that fact does not prevent the custodial sentence imposed on the person requested from actually being enforced in that Member State, which is for the referring court to ascertain. In that regard, in the first place, it should be made clear that Article 4(6) of Framework Decision 2002/584 does not give any indication from which the second condition stated in that provision could be interpreted as automatically precluding a judicial authority of the executing Member State from refusing to execute a European arrest warrant where the law of that Member State provides only for a fine in response to the offence to which the warrant relates. In the second place, it should be noted that, when deciding on transposing Article 4 of Framework Decision 2002/584 into domestic law, the Member States have, of necessity, a certain margin of discretion in implementing that provision and in particular paragraph 6 thereof (see, to that effect, judgment of 6 October 2009, Wolzenburg, C‑123/08, EU:C:2009:616, paragraph 61). In the third place, although, in adopting Article 4(6) of Framework Decision 2002/584, the EU legislature wished to allow the Member States, for the purposes of facilitating the social rehabilitation of the person requested, to refuse to execute the European arrest warrant, it was nevertheless careful to set out, in that provision, the conditions for the application of that ground of refusal, including, inter alia, the executing Member State undertaking to order that the custodial sentence imposed on the person requested actually be enforced, in order to ensure that the custodial sentence imposed is enforced and thereby to avoid any risk of that person going unpunished. Lastly, it should be noted, as did the Advocate General in points 82 and 83 of his Opinion, that no provision of Framework Decision 2008/909 can affect the scope of the ground for optional non-execution stated in Article 4(6) of Framework Decision 2002/584, or the way in which it is applied. Although, in accordance with Article 25 of Framework Decision 2008/909, the provisions of Framework Decision 2008/909 are to apply, mutatis mutandis, to the enforcement of sentences in cases where a Member State undertakes to enforce the sentence pursuant to Article 4(6) of Framework Decision 2002/584, the EU legislature expressly provided that the provisions of the former framework decision apply only to the extent they are compatible with the provisions of the latter. (see paras 41, 42, 47, 48, 50, operative part)