Order;Summary — ECLI:EU:C:2023:899
Date: 2023-11-16
Language of the case: Italian
Court formation: Eighth Chamber
Subject matter: Judicial cooperation in criminal matters;Police cooperation;Area of freedom, security and justice;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Italy

Translation C-636/22 – 1 
Case C-636/22 
Request for a preliminary ruling 
Date lodged: 
12 October 2022 
Referring court: 
Corte d’appello di Lecce (Italy) 
Date of the decision to refer: 
28 September 2022 
Surrender procedure in execution of a European arrest warrant against: 
PY 
  
[…] 
CORTE DI APPELLO DI LECCE (COURT OF APPEAL, LECCE, ITALY) 
[…] 
[composition of the chamber hearing the case] 
In proceedings No […] against 
PY, born […] in Kunar (Afghanistan), […] makes the following 
ORDER 
1. The Court of Appeal, Lecce, Italy, ordered the surrender to the French 
judicial authority of PY, born in Afghanistan, who is the subject of a procedural 
European arrest warrant, issued on 23 May 2022 by the Public Prosecutor’s Office 
at the Court of Rennes, France, in relation to the crimes of handling stolen goods, 
money laundering and membership of a criminal organisation. 
2. The person to be surrendered lodged an appeal before the Corte di 
Cassazione (Supreme Court of Cassation, Italy). 
EN 
REQUEST FOR A PRELIMINARY RULING OF 28. 9. 2022 – CASE C-636/22 
 
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3. By judgment No 29014/2022, the Supreme Court of Cassation upheld the 
third ground of appeal for the reasons described below. 
4. In response to a series of legal arguments and supporting documents 
asserting that the appellant was established in Italy and that, therefore, surrender 
must be subject to the condition laid down in Article 19 of legge n. 69 del 2005 
(Law No 69/2005), the Court of Appeal held that the question raised was 
‘irrelevant’, as the issue of whether the party concerned was established in Italy 
would have significance only for the purposes of executing a custodial sentence or 
detention order, not in the case of a ‘remand’ warrant. 
5. The Supreme Court of Cassation held that this was a legally incorrect 
argument, because the Law in its currently applicable version, as amended by 
d.lgs. n. 10 del 2 febbraio 2021 (Legislative Decree No 10 of 2 February 2021) 
contains the new Article 18-bis(2) that provides as follows: ‘Where a European 
arrest warrant has been issued for the purpose of executing a custodial sentence or 
detention order, the Court of Appeal may refuse surrender of a requested person 
who is an Italian national or a national of another Member State of the European 
Union, who has been lawfully and effectively staying in or a resident of Italy for 
at least five years, provided that the executing State orders that the custodial 
sentence or detention order be executed in Italy in accordance with its domestic 
law.’ According to the Supreme Court of Cassation, this is a provision that must 
be linked to the following Article 19 of Law No 69/2005 which, in the version 
amended by the abovementioned Legislative Decree No 10/2021 currently in 
force, provides: ‘The execution of a European arrest warrant by the Italian judicial 
authority, in the cases listed below, shall be subject to the following conditions: … 
(b) if the European arrest warrant has been issued for the purposes of conducting a 
criminal prosecution against an Italian national or a national of another Member 
State of the European Union, who has been a lawful and effective resident of Italy 
for at least five years, the execution of that warrant shall be subject to the 
condition that the person, after being heard, is returned to Italy in order to serve 
there the custodial sentence or detention order passed against him or her in the 
issuing Member State.’ 
6. In contrast to the decision of the Lecce Court of Appeal, the Supreme Court 
therefore held that, in so far as concerns the Court specifically in this case, the 
relevant provision was Article 19(1)(b), which, as stated above, governs the 
guarantee of a return to Italy requested from the issuing Member State in the case 
of Italian nationals or nationals of other Member States of the European Union 
resident in Italy, where the EAW has been issued – as is the case here – ‘for the 
purposes of conducting a criminal prosecution’. By introducing provisions that are 
an exact mirror-image, in terms of the subjective conditions, to those included in 
Article 18-bis(2) in relation to EAWs issued for the purposes of execution, the 
legislature has also taken a symmetrical approach to procedural arrest warrants. 
This is, therefore, a legislative intervention that simultaneously affected the scope 
of the ‘procedural’ warrant and ‘execution’ warrant and the corresponding 
requests for transit through the territory of the State. 
PY 
 
3 
[6].1. The explanatory note in the draft version of Legislative Decree No 10/2021 
expressly highlights, in this respect, the new element of this legislative 
intervention, identified as the fact that: (a) for nationals of other EU Member 
States, a refusal to surrender in the case of a European arrest warrant issued 
for execution purposes is permitted only where the requested person has 
been lawfully and effectively residing or staying in Italy for at least five 
years; and (b) a situation where surrender is subject to the condition that the 
requested person be ‘returned’ to Italy where procedural EAWs have been 
issued can apply only – as noted above – to nationals of other EU Member 
States who are residents of Italy, and to Italian nationals. It follows that the 
assumption made by the Lecce Court of Appeal that the issue of the 
requested person’s establishment in Italy is not relevant in the case of a 
procedural European arrest warrant, cannot be supported. 
[6].2. The Supreme Court of Cassation therefore held that the judgment must be 
set aside on that point. That being so, the Supreme Court of Cassation 
observed that the Court of Appeal, in applying the principles indicated, 
should have verified in the present case whether and on what basis PY was 
established in Italy and, therefore, whether the conditions laid down in 
Article 19 of Law No 69/2005 had been met. The Court of Appeal should 
also have ascertained whether the appellant was an Italian national or a 
national of a third country of the European Union and, in the latter case, it 
should have considered that the Corte costituzionale (Constitutional Court, 
Italy) decided, by means of Order No 217/2021, to refer the following 
questions to the Court of Justice of the European Union for a preliminary 
ruling pursuant to Article 267 TFEU: 
(a) Does 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, interpreted in the light of Article 1(3) of that 
decision and Article 7 of the Charter of Fundamental Rights of the European 
Union, preclude legislation, such as the Italian legislation, that – in the 
context of a European arrest warrant procedure for the purpose of executing 
a custodial sentence or detention order – absolutely and automatically 
precludes the executing judicial authorities from refusing to surrender third-
country nationals staying or residing in Italian territory, irrespective of the 
links those individuals have with that territory? (b) If the answer to the first 
question is in the affirmative, what criteria and assumptions are used to 
establish that such links are to be regarded as so significant as to require the 
executing judicial authority to refuse surrender? 
7. Following referral of the case, the Lecce Court of Appeal once again issued 
a judgment ordering that PY be surrendered to the French judicial authority, 
having established that: 
(a) he is not an Italian national or a national of another EU Member State, but 
rather an Afghan citizen: 
REQUEST FOR A PRELIMINARY RULING OF 28. 9. 2022 – CASE C-636/22 
 
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(b) the question referred to the Court of Justice for a preliminary ruling by the 
Constitutional Court by means of Order No 217/2021 refers solely to the 
European arrest warrant procedure for the purpose of executing a custodial 
sentence or detention order, and did not include arrest warrants for the purpose of 
conducting a criminal prosecution. The decision in question does not therefore 
apply to the case being examined here; 
(c) even if the Court were to consider otherwise, there is no evidence that PY is 
established in Italy. 
8. An appeal against that ruling was brought before the Supreme Court of 
Cassation, which, in judgment No 31721/2022, set it aside and referred the case 
back to the lower court, having established that: 
A) The judgment given by the Court of Appeal is not in line with the dictum in 
the annulment judgment in so far as it assumes that the reply to the questions 
referred to the Court of Justice for a preliminary ruling by the Constitutional Court 
by means of Order No 217/2021 would not have any effect on the outcome of the 
case at hand, as the question referred is limited to EAWs for the purposes of 
executing a custodial sentence or detention order. 
B) Indeed, even before inviting the referring court to consider the content of the 
questions referred by the Constitutional Court in relation to the compliance of the 
Italian legislation on EAWs issued for the purposes of execution (Article 18-bis of 
Law No 69/2005, as amended by Legislative Decree of 2 February 2021) with the 
guiding principles of the European legislation on the European [arrest] warrant in 
relation to the treatment of non-EU nationals, the Court of Cassation had pointed 
out that, following the abovementioned legislative changes, the question of the 
establishment of a person subject to a remand order whose surrender has been 
requested by the judicial authority of one of the Member States should be viewed 
in mirror-image terms in relation to both ‘execution’ and ‘procedural’ EAWs, as 
regards subjective aspects – requiring a person subject to a remand order to have 
been lawfully and effectively resident for at least five years in Italy –  which led it 
to the finding that ‘the assumption made by the Lecce Court of Appeal that the 
issue of the requested person’s establishment in Italy is not relevant in the case of 
a procedural European arrest warrant cannot be supported’. 
C) It was therefore clear that the referring court had a duty to address the issue 
of whether the person subject to the remand order had been established in Italy 
with reference to the specific case in point, which involves an EAW for the 
purposes of criminal prosecution, given that the new and more stringent 
provisions of Article 19[(1)](b) of [Law] No 69/2005 impose such a determination 
and those provisions should be read in conjunction with Article 18-bis(2), the text 
laying down the same subjective requirements (effective, lawful residence or stay 
by the requested person in Italy for at least five years) to allow a refusal to 
surrender in the case of an EAW for the purposes of execution. 
PY 
 
5 
D) The symmetrical nature of the two provisions, the identical requirements 
indicated by the two texts and the reference by the Constitutional Court in Order 
No 217/2021 to the alignment of those two provisions – in terms of subjective 
requirements and duration of stay – required the referring court to verify that PY 
was not permanently established in Italy even in the case of a ‘procedural’ 
European arrest warrant. 
E) The evidence provided by the defence with regard to PY’s establishment in 
Italy was not adequately assessed. 
9. On that basis, this Court can only observe that a decision to refer a question 
to the Court of Justice of the European Union for a preliminary ruling is also 
necessary in respect of the decision on the request for PY’s surrender to the 
French judicial authority for the purpose of prosecution. This is because there is 
documentation in the file which requires further investigation and indicates that 
the abovementioned Afghan national has been in Italy for not inconsiderable 
periods of time. 
10. The following […] questions should therefore be referred to the Court of 
Justice of the European Union for a preliminary ruling pursuant to Article 267 
TFEU: […]. [text of the questions referred for a preliminary ruling identical to the 
text set out below in the operative part] 
11. Article 19(1)(b) of Law No 69/2005, as introduced by Article 6(5)(b) of 
legge n. 117 del 2019 (Law No 117/2019), transposed Framework Decision 
2002/584/JHA without providing that the surrender of a third-country national 
who has been lawfully and effectively residing or staying in Italy can take place 
on condition that the individual in question is returned to Italy in order to serve 
there the custodial sentence or detention order passed against him or her in the 
issuing Member State. 
12. The question presents new elements in relation to the case-law of the Court 
of Justice on the EAW developed up to this point, and it is, therefore, necessary to 
determine in this case also, as in the case already examined by the Constitutional 
Court in Order No 217/2021, whether – and, if so, under what conditions – a third-
country national residing or staying in the executing State has a fundamental right 
not to be expelled from the territory of the executing State for the purpose of 
executing a custodial sentence or detention order in the issuing State. 
13. The Court asks that the reference for a preliminary ruling be determined 
through an expedited procedure pursuant to Article 105 of the Rules of Procedure 
of the Court of Justice, given that the case: 
- relates to a person who is currently subject to an enforcement measure 
involving a prohibition on leaving the territory; 
- raises questions of interpretation relating to central aspects of the application 
of the EAW procedure; 
REQUEST FOR A PRELIMINARY RULING OF 28. 9. 2022 – CASE C-636/22 
 
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- involves an interpretation that may have general consequences both for the 
authorities called upon to cooperate on the EAW procedure and for the rights of 
requested persons. 
ON THOSE GROUNDS 
The Court of Appeal: 
1. Refers the following questions to the Court of Justice of the European Union 
for a preliminary ruling pursuant to Article 267 of the Treaty on the 
Functioning of the European Union: 
([a]) Does Article 5(3) of Council [Framework Decision] 2002/584/JHA of 
13 June 2002 on the European arrest warrant and the surrender procedures 
between Member States, interpreted in the light of Article 1(3) of that 
decision and Article 7 of the Charter of Fundamental Rights of the European 
Union, preclude legislation, such as the Italian legislation, that – in the 
context of a European arrest warrant procedure for the purpose of 
conducting a criminal prosecution – absolutely and automatically precludes 
the executing judicial authorities from refusing to surrender third-country 
nationals staying or residing in Italian territory, irrespective of the links 
those individuals have with that territory? 
(b) If the answer to the first question is in the affirmative, what criteria and 
assumptions are used to establish that such links are to be regarded as so 
significant as to require the executing judicial authority to refuse surrender? 
2. Requests that the reference for a preliminary ruling be determined 
through an expedited procedure; 
[…] [suspension of the proceedings] 
[…] [registry arrangements] 
Lecce, 28 September 2022 
[…] 
[…] [standard wording]