Opinion of the Advocate General — ECLI:EU:C:2019:1012
Date: 2019-11-26
Language of the case: French;Dutch
Subject matter: Judicial cooperation in criminal matters;Police cooperation;Area of freedom, security and justice
Procedure: Preliminary reference - urgent procedure
Origin: Luxembourg;Netherlands

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Translation C-566/19 — 1 
Case C-566/19 
Request for a preliminary ruling  
Date lodged:  
25 July 2019 
Referring court:  
Cour d’appel (chambre du conseil) (Luxembourg) 
Date of the decision to refer: 
9 July 2019 
Appellant:  
JR 
  
[…] 
LA CHAMBRE DU CONSEIL DE LA COUR D’APPEL (THE COUNCIL 
CHAMBER OF THE COURT OF APPEAL, LUXEMBOURG) 
By declaration of 19 June 2019 made to the registry of the tribunal 
d’arrondissement de et à Luxembourg (District Court of and in Luxembourg), JR 
duly appealed against the order made on the same day by the chambre du conseil 
du tribunal d’arrondissement (Council Chamber of the District Court, 
Luxembourg) […]: 
– ruling that it did not have jurisdiction to hear the application for a declaration 
of invalidity of the European arrest warrant issued in respect of JR, 
[…] 
ruling that JR had to be surrendered to the French authorities for the purposes of 
conducting a criminal prosecution in connection with the offences referred to in 
the European arrest warrant of 24 April 2019 issued by Virginie BRELURUT, 
Deputy Principal Prosecutor attached to the Public Prosecutor’s Office at the 
Tribunal de Grande Instance de Lyon (Regional Court, Lyon, France). [Or. 2] 
EN 
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[…] 
The appellant takes the view, first, that his surrender should be refused because 
the chambre du conseil de première instance (the Council Chamber of the first 
instance court) did not give its ruling within the statutory period. Furthermore, he 
requests that the European arrest warrant be declared invalid on the ground that 
the judicial authority which issued it is not a ‘judicial authority’ within the 
meaning of Article 6(1) of Council Framework Decision 2002/584/JHA of 
13 June 2002 since, according to the appellant, the French Public Prosecutor’s 
Office may be is subject to indirect instructions from the executive, interference 
which is contrary to the criteria established by the Court of Justice of the 
European Union (CJEU) prohibiting any such influence, whether direct or 
indirect, by the executive on the authority issuing the European arrest warrant. In 
the alternative, he requests that a request for a preliminary ruling be submitted to 
the CJEU.  
The lawyer representing the Parquet général (Prosecutor-General) argues that the 
grounds of appeal raised should be rejected. He asks the present court to find that 
the issuing authority, even though it is a public prosecutor’s office, nevertheless 
satisfies the criterion of independence described by the CJEU. He takes the view, 
however, that, in the event of any doubt about this criterion, a request for a 
preliminary ruling must be made.  
[…]. [Or. 3] […] (Rejection of the first ground of appeal relating to a statutory 
period). 
The CJEU, in two judgments of 27 May 2019, interpreted the concept of ‘issuing 
judicial authority’, within the meaning of Article 6(1) 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, (judgments of 27 May 2019, OG 
and PI (Public Prosecutors’ Offices in Lübeck and Zwickau, Germany), C-508/18 
and C-82/19 PPU, EU:C:2019:456, and PF (Prosecutor General of Lithuania), 
C-509/18, EU:C:2019:457). 
The CJEU found: 
– that although, in accordance with the principle of procedural autonomy, the 
Member States may designate, in their national law, the ‘judicial authority’ 
with the competence to issue a European arrest warrant, the meaning and scope 
of that term cannot be left to the assessment of each Member State,  
– that the words ‘judicial authority’, contained in that provision, are not limited 
to designating only the judges or courts of a Member State, but must be 
construed as designating, more broadly, the authorities participating in the 
administration of criminal justice in that Member State, as distinct from, inter 
alia, ministries or police services which are part of the executive,  
PARQUET GENERAL DU GRAND-DUCHE DE LUXEMBOURG 
 
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– that it follows that the concept of a ‘judicial authority’, within the meaning of 
Article 6(1) of Framework Decision 2002/584, is capable of including 
authorities of a Member State which, although not necessarily judges or courts, 
participate in the administration of criminal justice in that Member State and 
that an authority, such as a public prosecutor’s office which is competent, in 
criminal proceedings, to prosecute a person suspected of having committed a 
criminal offence so that that person may be brought before a court, must be 
regarded as participating in the administration of justice of the relevant 
Member State.  
– that the European arrest warrant system entails a dual level of protection of 
procedural rights and fundamental rights which must be enjoyed by the 
requested person,  
– that the second level of protection of the rights of the person concerned means 
that the judicial authority competent to issue a European arrest warrant by 
virtue of domestic law, must review, in particular, observance of the conditions 
necessary for the issuing of the European arrest warrant and examine whether, 
in the light of the particular circumstances of each case, it is proportionate to 
issue that warrant, [Or. 4] 
– that the ‘issuing judicial authority’ must therefore be capable of exercising its 
responsibilities objectively, taking into account all incriminatory and 
exculpatory evidence, without being exposed to the risk that its decision-
making power be subject to external directions or instructions, in particular 
from the executive, such that it is beyond doubt that the decision to issue a 
European arrest warrant lies with that authority and not, ultimately, with the 
executive,  
– that the issuing judicial authority must be able to act independently in the 
execution of those of its responsibilities which are inherent in the issuing of a 
European arrest warrant, such independence requiring that there should be 
statutory rules and an institutional framework capable of guaranteeing that the 
issuing judicial authority is not exposed, when adopting a decision to issue such 
an arrest warrant, to any risk of being subject, inter alia, to an instruction in a 
specific case from the executive,  
– that, in addition, where the law of the issuing Member State confers the 
competence to issue a European arrest warrant on an authority which, whilst 
participating in the administration of justice in that Member State, is not itself a 
court, the decision to issue such an arrest warrant and, inter alia, the 
proportionality of such a decision must be capable of being the subject, in that 
Member State, of court proceedings which meet in full the requirements 
inherent in effective judicial protection,  
in order to conclude that the concept of ‘issuing judicial authority’ within the 
meaning of the Framework Decision, does not include public prosecutors’ offices 
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of a Member State which are exposed to the risk of being subject, directly or 
indirectly, to directions or instructions in a specific case from the executive, such 
as a Minister for Justice, in connection with the adoption of a decision to issue a 
European arrest warrant, but that, on the other hand, that concept does include a 
Prosecutor General of a Member State who, whilst institutionally independent 
from the judiciary, is responsible for the conduct of criminal prosecutions and 
whose role affords him a guarantee of independence from the executive in 
connection with the issuing of a European arrest warrant.  
The representative of the Parquet general (Prosecutor-General’s Office) contends 
that the Ministère public français (French Public Prosecutor’s Office) satisfies the 
requirements of the CJEU given that, since the introduction of Law No 2013-669 
of 25 July 2013, Article 30 of the Code de procedure pénale français (French 
Code of Criminal Procedure) expressly excludes the possibility of the ministre de 
la Justice (French Minister for Justice) issuing any instruction to prosecutors in 
specific cases.  
Admittedly, under Article 30 of the French Code of Criminal Procedure, in its 
current version resulting from the Law of 25 July 2013, the French Minister for 
Justice may not issue any instruction to the prosecutors from the Public 
Prosecutor’s Office in specific cases. He may, however, issue instructions of a 
general nature to them.  
It might therefore be concluded that, formally, the French Public Prosecutor’s 
Office meets the criteria of independence established by the aforementioned 
judgments of the Court of Justice of the European Union, since the procureur de la 
République (the public prosecutor) is not subject to any instruction in specific 
cases from the executive. [Or. 5] 
That analysis is, however, at variance with that given by the Advocate General of 
the Court of Justice of the European Union, Campos Sánchez-Bordona, in his 
Opinion delivered on 30 April 2019 (in Cases OG and PI (Public Prosecutors’ 
Offices in Lübeck and Zwickau), C-508/18 and C-82/19 PPU, EU:C:2019:337), 
when he stated that: ‘that independence of the national authority which issues the 
EAW presupposes that the authority in question exercises its functions wholly 
autonomously, without being subject to any hierarchical constraint or 
subordinated to any other body and without taking orders or instructions from 
any source whatsoever, thus being protected against external interventions or 
pressure liable to impair the independent judgment of its members and to 
influence their decisions’ (point 87 of his Opinion).  
That is what the hierarchical link, in particular, between the Prosecutor-General’s 
Office and the parquet des tribunaux français (Prosecutors of the French courts), 
may contravene, given that Article 36 of the French Code of Criminal Procedure 
provides that ‘the Principal Public Prosecutor may, by written instructions which 
are attached to the file of the case, direct the public prosecutors to initiate 
prosecutions, or to cause them to be initiated, or to refer to the competent court 
PARQUET GENERAL DU GRAND-DUCHE DE LUXEMBOURG 
 
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such written submissions as the Principal Public Prosecutor considers 
appropriate’. 
And which led the Advocate General to specify that ‘independence … is 
incompatible with any hierarchical constraint or subordination to any other body. 
Members of the judiciary are also independent from the higher courts, which — 
although they can review and annul the rulings of the lower courts a posteriori — 
cannot, however, dictate to them how they should adjudicate’ (point 96 of his 
Opinion). 
In the judgment in Moulin v. France of 23 November 2010, the European Court of 
Human Rights, confirming its judgment in the case of Medvedyev v. France of 
29 March 2010 concerning the lack of status as a ‘judicial authority’ of the public 
prosecutor, identified an infringement of Article 5(3) of the Convention on the 
ground that ‘the public prosecutors in France do not satisfy the requirement of 
independence from the executive which, according to well-established case-law, 
is, like impartiality, one of the guarantees inherent in the autonomous notion of 
‘officer’ within the meaning of Article 5(3)’ 
In that judgment, the European Court of Human Rights ‘notes, first, that whilst all 
the judges within the judiciary represent the judicial authority referred to in 
Article 66 of the Constitution, it is apparent from the national law that judges are 
subject to different rules than public prosecutors. The latter are all subject to a 
common higher hierarchy, le garde des sceaux, ministre de la Justice (Keeper of 
the Seals, Minister for Justice), who is a member of the government and therefore 
of the executive. Unlike judges, they are not irremovable pursuant to Article 64 of 
the Constitution. They are managed and supervised by their hierarchical 
superiors within the Public Prosecutor’s Office, under the authority of the garde 
des sceaux, ministre de la Justice (Keeper of the Seals, Minister for Justice). In 
accordance with Article 33 of the Code of Criminal Procedure, the Public 
Prosecutor’s Office is bound to make written submissions in conformity with the 
instructions given under the conditions set out in articles 36, 37 and 44 of that 
Code, although it is free to make such oral submissions as it believes to be in the 
interests of justice’ (paragraph 56 of the judgment) and ‘reiterates that the 
guarantees of independence from the executive and the parties preclude, inter 
alia, its subsequent intervention in criminal proceedings against the applicant’ 
(paragraph 58 of the judgment). [Or. 6] 
Whilst it is true that, as mentioned above, since the 2013 reform, the French 
Minister for Justice may not issue instructions to public prosecutors in individual 
cases, the other findings of the European Court of Human Rights remain relevant 
and, in particular, that concerning the lack of independence and impartiality of the 
prosecutor vis-à-vis the requested person, given that the Public Prosecutor’s 
Office is also characterised by its indivisibility: prosecutors in the same office 
form an indivisible unit; an action taken by one prosecutor is an action taken by 
the unit as a whole and they may therefore replace one another or be replaced 
during the course of proceedings.  
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In the present case, it must be stated that the Public Prosecutor’s Office at the 
tribunal de grande instance de Lyon (Regional Court, Lyon, France) initiated 
criminal proceedings against the appellant and a prosecutor from that same office 
issued the European arrest warrant at issue.  
Having regard to these developments and to the case-law of the CJEU arising 
from its judgments of 27 May 2019, the question arises as to whether, in this case, 
the French Public Prosecutor’s Office satisfies the criteria of independence and 
impartiality, as described, to enable it to issue a European arrest warrant, when the 
European arrest warrant system entails a dual level of protection of procedural 
rights and fundamental rights which must be enjoyed by the requested person, and 
when the competent judicial authority designated in France, which is supposed to 
monitor compliance with the conditions necessary for such issue and consider its 
proportionality, having regard to the details of the criminal file, is also the 
authority responsible for the criminal prosecution in the same case.  
In so far as the proper application of EU law is a matter of public policy and, in 
this case, there can be little reasonable doubt that it is, it is therefore necessary 
[…] to refer the question formulated in the operative part of this judgment to the 
CJEU for a preliminary ruling, in accordance with Article 267 of the Treaty on the 
Functioning of the European Union.  
FOR THESE REASONS 
[…] 
stays proceedings pending a ruling from the Court of Justice of the European 
Union on the following question: [Or. 7] 
‘Can the French Public Prosecutor’s Office at the investigating court or trial court, 
which has jurisdiction in France, under the law of that State, to issue a European 
arrest warrant, be considered to be an issuing judicial authority, within the 
autonomous meaning of that term in Article 6(1) of Council Framework Decision 
No 2002/584/JHA of 13 June 2002, in circumstances where, deemed to monitor 
compliance with the conditions necessary for the issue of a European arrest 
warrant and to examine whether such a warrant is proportionate in relation to the 
details of the criminal file, it is, at the same time, the authority responsible for the 
criminal prosecution in the same case?’ 
[…] [signatures]