Opinion of the Advocate General — ECLI:EU:C:2020:758
Date: 2020-09-30
Language of the case: Bulgarian
Subject matter: Justice and home affairs;Approximation of laws;Judicial cooperation in criminal matters;Police cooperation;Area of freedom, security and justice;Fundamental rights;European Convention on Human Rights
Procedure: Reference for a preliminary ruling
Origin: Bulgaria

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: 
3 September 2019 
Referring court: 
Spetsializiran nakazatelen sad (Specialised Criminal Court, 
Bulgaria) 
Date of the decision to refer: 
20 August 2019 
Criminal proceedings against: 
IR 
  
Subject matter of the main proceedings 
Procedure for the issuing of a European arrest warrant for the purposes of 
prosecution 
Subject matter and legal basis of the reference 
Interpretation and review of the applicability of provisions of EU law; Article 267 
TFEU 
Questions referred 
1. Do the rights of an accused person under Article 4 (in particular the right 
under Article 4(3)), Article 6(2) and Article 7(1) of Directive 2012/13 apply 
to an accused person who has been arrested on the basis of a European arrest 
warrant? 
2. If the first question is answered in the affirmative: is Article 8 of Framework 
Decision 2002/584 to be interpreted as meaning that it allows the content of 
a European arrest warrant to be amended with regard to the form specified in 
the annex, in particular the insertion of new text into that form, in relation to 
EN 
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the rights of the requested person against the judicial authorities of the 
issuing Member State to challenge the validity of the national arrest warrant 
and of the European arrest warrant? 
3. If the second question is answered in the negative: is it compatible with 
recital 12 and Article 1(3) of Framework Decision 2002/584, Articles 4, 6(2) 
and 7(1) of Directive 2012/13/ЕU and Articles 6 and 47 of the Charter if a 
European arrest warrant is issued in strict compliance with the form set out 
in the annex (that is to say without informing the requested person about his 
rights against the issuing judicial authority) and the issuing judicial authority 
informs him about the rights to which he is entitled and sends him the 
relevant documents immediately after that authority becomes aware of the 
arrest? 
4. If there are no other legal means for safeguarding the rights of a person 
arrested on the basis of a European arrest warrant under Article 4 of 
Directive 2012/13/ЕU, in particular the right under Article 4(3), Article 6(2) 
and Article 7(1) of Directive 2012/13/ЕU, is Framework Decision 2002/584 
valid? 
Provisions of EU law and the case-law cited 
Council Framework Decision 2002/584/JHA on the European arrest warrant and 
the surrender procedures between Member States (OJ 2002 L 190, p. 1), as 
amended by Council Framework Decision 2009/299/JHA (OJ 2009 L 81, p. 24) 
Directive 2012/13/EU of the European Parliament and of the Council on the right 
to information in criminal proceedings (OJ 2012 L 142, p. 1) 
Directive 2014/41/EU of the European Parliament and of the Council regarding 
the European Investigation Order in criminal matters (OJ 2014 L 130, p. 1) 
Charter of Fundamental Rights of the European Union (OJ 2012, C 326, p. 391) 
Judgments of the Court of Justice of the European Union of 10 November 2016, 
Poltorak (C-452/16 PPU, EU:C:2016:858), of 23 January 2018, Piotrowski 
(C-367/16, EU:C:2018:27), of 25 July 2018, AY (C-268/17, EU:C:2018:602), of 
6 December 2018, IK (C-551/18 PPU, EU:C:2018:991), and of 27 May 2019, OG 
and PI (C-508/18 and C-82/19 PPU, EU:C:2019:456), and PF (C-509/18, 
EU:C:2019:457); Opinion of the Advocate General Y. Bot in the Gavanozov case 
(С-324/17, EU:C:2019:312) 
Provisions of national law cited 
Zakon za ekstraditsiata i evropeyiskata zapoved za arest (Law on extradition and 
the European arrest warrant, Bulgaria), Article 37 
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Nakazatelno-protsesualen kodeks (Code of Criminal Procedure, ‘the NPK’), 
Articles 55, 65, 269 and 270 
Zakon za ministerstvoto na vatreshnite raboti (Law on the Ministry for Home 
Affairs, Bulgaria, ‘the ZMVR’), Articles 72 to 74 
Brief summary of the facts and procedure 
1 Proceedings were brought against Mr IR for participation in a criminal 
organisation that allegedly transports large quantities of excise goods without strip 
stamps (‘tax stamps’) across national borders for the purpose of financial gain, 
and for aiding and abetting in the storage of excise goods without tax stamps. The 
two offences are punishable by imprisonment of up to ten and eight years, 
respectively. 
2 At the beginning of the trial phase of the proceedings on 24 February 2017, IR had 
left his home address. The efforts of the court to determine his place of residence 
were unsuccessful. He was appointed a public defender. By order of 10 April 
2017, which was upheld on appeal on 19 April 2017, the referring court issued a 
‘remand in custody pending trial’ measure against IR (this instrument constitutes a 
national arrest warrant). IR did not personally appear in these proceedings; he was 
defended by the lawyer who was appointed [for him]. 
3 On 25 May 2017, the referring court issued a European arrest warrant for IR. It 
stated that the national arrest warrant had been issued against IR in absentia 
(Chapter d, point 2), that the national arrest warrant would be handed over to IR in 
person upon his surrender following execution of the European arrest warrant, and 
that he would be informed of his rights and would be able to challenge the 
decision, whereby the possibilities available in that regard would be explained to 
him (Chapter d, point 3.4). In addition, it was stated that he would only be able to 
take action against his imprisonment (remand in custody pending trial) once he 
had been surrendered to the Bulgarian authorities (Chapter d, point 4). 
4 IR has not yet been found and arrested. 
5 There is no information indicating that IR is aware that criminal proceedings have 
been brought against him before a court, that there is a legal act regarding his 
detention both in the territory of [Bulgaria] and in the European Union, that he is 
being defended by a lawyer appointed for him, or that he is aware of the details of 
that lawyer. 
6 In the light of Directive 2012/13 and the new case-law of the Court of Justice of 
the European Union in the OG and PI case (С-508/18) and in the PF case (С-
509/18) and the Opinion of the Advocate General in the Gavanozov case (С-
324/17), the national court has doubts as to whether a European arrest warrant 
issued in this way complies with EU law, in so far as it does not guarantee 
adequate legal protection for IR. More specifically, it does not give him a real 
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opportunity to request the withdrawal of the national arrest warrant and the 
European arrest warrant in the issuing Member State (before the referring court) 
immediately after being arrested in the executing Member State. He can do so 
only after being surrendered upon execution of the European arrest warrant. 
7 The referring court therefore withdrew the European arrest warrant issued and 
took the decision to issue a new European arrest warrant which would be drawn 
up in such a way, or accompanied by such documents (information regarding 
rights and copies of the documents relating to the [order for] imprisonment), as 
would safeguard the rights arising from Directive 2012/13. In order to do so, 
however, it requires clarification from the Court of Justice. 
Brief summary of the basis for the reference 
Admissibility of the reference 
8 IR has not been arrested on the basis of the European arrest warrant issued and 
cannot be arrested in the future either, as the arrest warrant was withdrawn. The 
questions are not, however, hypothetical. 
9 The purpose of the request for a preliminary ruling is to establish whether it is 
compatible with EU law for an arrest warrant to be reissued with the same 
content, or whether a new European arrest warrant containing different content 
that safeguards the rights of IR should be issued, or whether IR’s rights arising 
from Directive 2012/13 should be safeguarded in a different way. 
10 The referring court takes the view that it would not be appropriate to wait for the 
arrest of IR in another Member State and only then ask these questions, since his 
rights would have been irreversibly impaired. Moreover, the referring court would 
not be informed of IR’s arrest until he had been surrendered. At that point, 
however, the arrest would be based solely on the national arrest warrant and the 
questions referred for a preliminary ruling would therefore no longer be relevant. 
11 Where the rights conferred on a Union citizen by EU law may be infringed by a 
measure of a national judicial authority, a request for a preliminary ruling must be 
made before that measure is adopted and not after it has been adopted, on account, 
inter alia, of the irreversible nature of the harmful consequences. Paragraph 66 of 
the judgment of the Court of Justice of 6 December 2018, IK (C-551/18) could be 
construed to that effect in that the Court stated that ‘as regards proceedings 
relating to a European arrest warrant, observance of the rights of the person whose 
surrender is requested falls primarily within the responsibility of the issuing 
Member State’. Similarly, the Court has previously ruled in a different set of 
preliminary ruling proceedings in relation to the referring court’s doubts as to 
whether an arrest warrant issued should be withdrawn (judgment of the Court of 
25 July 2018 in Case C-268/17, AY, paragraphs 26 to 29); case may be 
distinguished from the present case on the ground that the decision of the referring 
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court wishes first to withdraw the European arrest warrant and then to refer its 
questions in order to be able to issue a new, but certainly lawful, arrest warrant. 
The first question 
12 It is not clear from the wording of Directive 2012/13 whether a person arrested in 
another Member State on the basis of a European arrest warrant enjoys the rights 
under Article 4 of Directive 2012/13, in particular the right under Article 4(3), 
which by their very nature are applicable to the judicial system of the issuing 
Member State. On the one hand, Article 4 provides that it applies to all accused 
persons who are detained, without clarifying whether that has taken place on the 
basis of a national or European arrest warrant, meaning that there is no 
justification for treating them differently on the basis of that criterion. On the 
other hand, Article 5 provides for other rights of persons who are arrested or 
detained which relate directly to the execution of the European arrest warrant and 
are applicable only in the executing Member State. The difference between the 
rights under Article 4 and Article 5 is also apparent from the content of the two 
forms (written Letter of Rights, Annex I and Annex II): they are identical only in 
some respects. The question therefore arises as to whether a person arrested or 
detained on the basis of a European arrest warrant enjoys all the rights under 
Article 4, in particular the right under Article 4(3), and the rights under Article 5 
of Directive 2012/13, or whether he is entitled only to the rights under Article 5, 
and not the rights under Article 4. 
13 This question is raised in the light of Article 4(2) of Directive 2012/13, which 
stipulates that accused persons who are detained have all the rights under Article 3 
and additional rights under Article 4. Article 5 does not contain such wording. 
14 This question is also raised in light of the wording of recital 30 to Directive 
2012/13. The first sentence states that rights on arrest also apply to persons 
arrested on the basis of a European arrest warrant. It could be inferred from that 
recital that they are fully entitled to the rights under Article 4. At the same time, 
that first sentence states that these rights should apply mutatis mutandis, that is to 
say they do not correspond in full. Moreover, the second sentence states that the 
rights of persons arrested on the basis of a European arrest warrant are listed in 
Annex II. It can be inferred from this that such persons are entitled only to the 
rights under Annex II, and not those under Annex I. 
15 Such a question also arises with regard to Article 6(2) and Article 7(1) of 
Directive 2012/13. Specifically, if a person is arrested or detained on the basis of a 
European arrest warrant, is it to be assumed that the person will enjoy the right to 
be informed immediately of the reason for the arrest or detention and the right to 
be provided with all documents which are essential to challenging the arrest or 
detention only after having been surrendered to the issuing Member State — after 
the execution of the European arrest warrant? 
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16 An important argument in favour of asking these questions is the lack of 
appropriate amendments to Framework Decision 2002/584 which would bring it 
into conformity with the rights conferred by the more recent Directive 2012/13 on 
persons who are arrested or detained on the basis of a European arrest warrant. 
The lack of appropriate amendments supports the view that Directive 2012/13 
does not confer any new rights on persons detained on the basis of a European 
arrest warrant in addition to those they already had under Framework Decision 
2002/584. 
17 Account should also be taken of the principle of equivalence, according to which a 
person affected by the application of EU law must not be treated less favourably 
than in a comparable, purely national situation. From this perspective, Article 5 of 
Directive 2012/13 could not be interpreted as meaning that it deprives an accused 
person detained on the basis of a European arrest warrant of the rights under 
Article 4 which that accused person would have under national law and would be 
able to exercise if he were arrested on the basis of a national arrest warrant in 
national territory. This also applies in relation to the rights under Article 6(2) and 
Article 7(1) of Directive 2012/13; in a national situation, these rights would be 
available to the person immediately upon arrest, whereas, in the case of execution 
of a European arrest warrant, they are available only after he is surrendered to the 
issuing Member State. This is because, in an identical national situation (that is to 
say if a person is arrested in national territory), that person would be treated as 
follows: he would be informed of the rights he has as an arrested person, in 
addition to his rights as an accused person (Article 55 NPK and Articles 72 to 74 
ZMVR). In particular, he would be informed about the arrest warrant and would 
receive a copy of it; he would be informed about the right to challenge the 
detention and the right to have access to all the evidence in the case in the context 
of that challenge. He would have direct contact with his lawyer, including in cases 
where he is a state-appointed public defender. In addition, in an identical national 
situation, the court would send, ex officio, a copy of the indictment detailing the 
facts which are the subject of the charge, as well as a decision on the scheduling 
of a hearing, setting out in detail his rights during the trial. The arrested person, 
who would be informed about his rights and would be aware of the legal and 
factual circumstances of the detention, could thus immediately challenge the 
validity of his detention before the court (Article 72(4) ZMVR; Articles 65 and 
270 NPK). 
The second question 
18 If the answer to the first question means that a person arrested or detained in 
another Member State on the basis of a European arrest warrant enjoys all the 
rights that he would have if he were arrested in national territory on the basis of a 
national arrest warrant, the referring court must enable those rights to be exercised 
efficiently and effectively. Thus, the best course of action would be to inform the 
person of his rights at the time of his arrest, when the European arrest warrant is 
issued (Article 11(1) of Framework Decision 2002/584). In other words, the most 
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logical approach would be to include his rights as a detained person in the 
European arrest warrant. 
19 The second question therefore seeks an interpretation of Article 8 of Framework 
Decision 2002/584, in particular as to whether it can be interpreted as permitting 
the content of a European arrest warrant to be amended, specifically permitting 
the insertion of new text (in box (f), for example) in relation to the rights of the 
detained person before the courts of the issuing Member State, in particular with 
regard to challenging the national and European arrest warrants issued against him 
(Article 4(3) of Directive 2012/13). 
20 The existence of such a passage of text in the European Arrest Warrant would 
guarantee the rights of the detained person and (as far as possible) put him in the 
same position that he would be in if he were arrested in national territory on the 
basis of a national arrest warrant. 
21 A number of objections can be made to that legal solution. 
22 The purpose of Framework Decision 2002/584 is to create a unified legal 
instrument that addresses a matter pertaining exclusively to EU law — the 
European arrest warrant. There are no national differences that would justify the 
introduction of different forms pursuant to the second sentence of Article 4(4) and 
the second sentence of Article 5(2) of Directive 2012/13. Therefore, the insertion 
of new information, other than that provided for in Article 8(1) and even other 
than that provided for in the Framework Decision itself (in particular the 
information pursuant to Directive 2012/13), in the form for the European arrest 
warrant would lead to the creation of different national forms for the European 
arrest warrant according to the national particularities of the rights of detained 
persons. This is contrary to the objective of the European arrest warrant as a 
unified legal instrument for the transfer of a person for the purposes of criminal 
proceedings. In this sense, point 1.3. of ‘The EAW form’ in the introduction of the 
Handbook on how to issue and execute a European arrest warrant (Commission 
notice of 28 September 2017, С[2017] 6389) states that: ‘Only this form may be 
used and it must not be altered.’ 
23 The European arrest warrant is a communication from the issuing judicial 
authority to the executing judicial authority. Its content is therefore intended to 
establish the requirements for surrender of the requested person. By contrast, the 
written Letter of Rights of the detained person pursuant to Article 4 of Directive 
2012/13 is a communication from the national judicial authority to the requested 
person. This written letter and the provision of information pursuant to 
Article 6(2) and Article 7(1) of Directive 2012/13 do not relate to the execution of 
the European arrest warrant. This is why they do not belong in the text of the 
European arrest warrant. 
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The third question 
24 If the Court of Justice answers the first question in the affirmative and the second 
question in the negative, the referring court would need to determine whether 
there are not other legal remedies available to guarantee that IR can effectively 
and efficiently exercise the rights under Directive 2012/13 immediately upon 
arrest on the basis of a European arrest warrant in another Member State. This 
means that, immediately after his arrest (or as soon as possible thereafter), IR 
must be informed of his rights pursuant to Article 4, in particular pursuant to 
Article 4(3), of the reasons for the arrest pursuant to Article 6(2) and of the access 
to the documents pursuant to Article 7(1) of Directive 2012/13. 
25 A comparatively effective legal solution would be for the referring court, as soon 
as it becomes aware of the imprisonment of IR in another Member State, 
immediately to send IR the written Letter of Rights on arrest as well as a copy of 
the national arrest warrant and the evidence on which it is based, inform him of 
the details of his lawyer and, where appropriate, send him a copy of other 
evidence in the case at his request. These documents could be provided by issuing 
a European Investigation Order in accordance with Article 5 of the Convention on 
Mutual Assistance in Criminal Matters between the Member States of the 
European Union. 
26 This legal solution is only effective to a certain extent for to the following reasons. 
27 First, Framework Decision 2002/584 does not contain an obligation on the part of 
the executing Member State to notify the issuing Member State of the arrest of the 
requested person. Such notification may take place fortuitously when other 
circumstances are notified, for example in the case of insufficient information 
(Article 15(2)) or a delay in the procedure (Article 17 (4)). For this reason, the 
issuing judicial authority would need to make an intentional error or omission 
when issuing the European arrest warrant in order to ensure that it were notified 
by the executing judicial authority immediately after the arrest of the requested 
person pursuant to Article 15(2) of Framework Decision 2002/584. A deliberate 
breach of law (erroneously drawing up a European arrest warrant) cannot 
constitute a prerequisite for safeguarding the rights of the requested person. 
Moreover, the forwarding of information pursuant to Article 15(3) is an exception 
and not the rule (judgment of the Court of 23 January 2018, Piotrowski, C-367/16, 
paragraph 61). 
28 Secondly, correspondence between the executing and issuing judicial authorities 
takes time — usually several days — during which the arrested person would be 
deprived of his rights under Directive 2012/13. This would be contrary to the 
obligation to respect his rights which is enshrined in recital 12 and Article 1 of 
Framework Decision 2002/584. Such a delay would be contrary to the obligation 
to guarantee the personal security of the arrested person in accordance with 
Article 6 of the Charter. The requirement for a reasonable period of time for the 
hearing of any complaint he may have would be infringed, since the mere filing of 
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such a complaint would be unnecessarily delayed as a result of the arrested person 
being informed of his rights late and the documents forming the basis of his 
defence being transmitted late. Such a delay would also infringe the principle of 
equivalence, as a person arrested on the basis of a European arrest warrant would 
be treated significantly less favourably than a person arrested in a purely national 
situation. 
The fourth question 
29 If the second or third question were to be answered in the affirmative, it would not 
provide a sufficiently effective guarantee because it would merely make it 
possible for the issuing judicial authorities to supplement the text of the European 
arrest warrant or to inform the detained person of his rights after being detained. 
There would merely be a possibility, not an obligation. 
30 A binding obligation is also required in this respect. 
31 A comparable obligation to issue a European Investigation Order is expressly 
provided for in Article 14 of Directive 2014/41. Since the rights of persons to 
whom a European Investigation Order is addressed are affected to a lesser extent 
than those of persons who are arrested or detained on the basis of a European 
arrest warrant, it is not acceptable for EU law to provide legal remedies only for 
the former and not for the latter. 
32 In the absence of one or more legal solutions which, taken together, guarantee the 
proper exercise of the rights conferred by Directive 2012/13 on a person detained 
on the basis of a European arrest warrant, the question arises, in the light of 
Article 6 of the Treaty on European Union, Articles 6 and 47 of the Charter, 
recital 12 and Article 1(3) of Framework Decision 2002/584, as to whether the 
system of Framework Decision 2002/584 thus designed is valid in so far as it does 
not safeguard the rights conferred by Directive 2012/13. 
33 More specifically, the question is whether the impossibility of informing a person 
detained on the basis of a European arrest warrant of his rights under Article 4 
immediately upon arrest in the executing Member State and providing him with 
the necessary information pursuant to Article 6(2) and Article 7(1) of Directive 
2012/13 results in a breach of the obligation to respect his fundamental rights. 
34 It is also necessary to examine whether it is compatible with the right to liberty 
and security under Article 6 and the right to an effective remedy under the first 
paragraph of Article 47 of the Charter if, pending the decision as to whether to 
execute the European arrest warrant or to refuse execution, a detained person is in 
fact deprived of the opportunity to challenge the detention in the issuing Member 
State (by challenging both the national and European arrest warrant), or is 
significantly hindered in doing so. 
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35 Lastly, the question arises as to whether this mechanism of Framework Decision 
2002/584, which does not guarantee the actual exercise of the rights of a detained 
person under Directive 2012/13 and therefore makes it difficult or impossible for 
the rights of a detained person to be defended before the judicial authorities of the 
issuing Member State, is compatible with the case-law of the Court of Justice of 
the European Union in relation to the defence of such rights. Accordingly, 
paragraph 70 of the judgment of the Court of Justice of 27 May 2019, OG and PI 
(С-508/18) and paragraph 48 of the judgment of the same date, PF (С-509/18) 
read as follows: ‘that the person in respect of whom that national arrest warrant 
was issued has had the benefit of all safeguards appropriate to the adoption of that 
type of decision, inter alia those derived from the fundamental rights and 
fundamental legal principles referred to in Article 1(3) of Framework Decision 
2002/584’. In the case of an arrest warrant issued in absentia, the essential 
safeguard is the possibility of challenging the legality of the detention at an early 
stage. Moreover, paragraph 75 and paragraph 53, respectively, of those judgments 
read as follows: ‘… the proportionality of [the] decision [regarding such an arrest 
warrant] must be capable of being the subject … of court proceedings which meet 
in full the requirements inherent in effective judicial protection’. Although 
paragraph 75 relates to a specific situation, the requirement of being able to 
challenge the arrest warrant issued, whereby that challenge has the quality of 
effective judicial protection, is clear. In other words, as early as during the 
procedure for executing the European arrest warrant, the requested person has the 
right to defend himself before the judicial authorities of the issuing Member State 
by challenging the legality of the national and European arrest warrant. In order 
for an arrested person actually to be able to exercise those legal possibilities 
recognised by the Court of Justice of the European Union, it is essential that that 
person is entitled to the rights under Directive 2012/13, in particular at the time 
referred to in that directive — the time of his arrest. 
Special request 
36 If the request to have Framework Decision 2002/584 declared to be invalid is 
successful, the referring court asks the Court of Justice to rule on whether, in view 
of the unavoidable difficulties that would arise in the pending proceedings relating 
to the execution of the European arrest warrant (paragraph 56 of the judgment of 
the Court of Justice of 10 November 2016 in Poltorak, С-452/16), it is not 
necessary to set a transitional period during which the legal effects are maintained.