OPINION OF ADVOCATE GENERAL
CAMPOS SÁNCHEZ-BORDONA
delivered on 26 November 2019(1)
Case C‑627/19 PPU
Openbaar Ministerie
v
ZB
(Request for a preliminary ruling
from the rechtbank Amsterdam (District Court, Amsterdam, Netherlands))
(Reference for a preliminary ruling — Police and judicial cooperation in criminal matters — Framework Decision 2002/584/JHA — European arrest warrant — Issuing judicial authority — European arrest warrant issued by a Belgian Public Prosecutor — Condition concerning the existence of an effective judicial remedy against the decision to issue a European arrest warrant)
1.        Once again, the Court of Justice is dealing with references for a preliminary ruling in which it will have to decide whether the Prosecution Authority (in this case, the Belgian authority) may be regarded as an ‘issuing judicial authority’ competent to issue a European arrest warrant (EAW), within the meaning of Article 6(1) of Framework Decision 2002/584/JHA. (2)
2.        The doubts raised by the referring court in this case and in Cases C‑625/19 PPU and C‑626/19 PPU join those raised by a Luxembourg court (Case C‑566/19 PPU) and refer, in particular, to the interpretation to be given to the judgment of the Court of Justice in OG and PI (Public Prosecutors of Lübeck and of Zwickau). (3)
3.        Those same doubts have been raised in respect of the Prosecution Authorities of Sweden (Case C‑625/19 PPU) and France (Cases C‑566/19 PPU and C‑626/19 PPU), on which I deliver my Opinions on this same date.
4.        While in Case C‑626/19 PPU the question concerns EAWs issued for the purposes of conducting a criminal prosecution, in the case at issue here the referring court is concerned with EAWs issued for the purposes of executing a custodial sentence imposed by a final judgment.
5.        While in principle my position remains as set out in OG (Public Prosecutor of Lübeck) and PI (Public Prosecutor of Zwickau) (4) and in PF (Prosecutor General of Lithuania), (5) in the remainder of my Opinion today I address the interpretation of the judgment in OG and PI (Public Prosecutors of Lübeck and of Zwickau) and of the judgment given on 9 October 2019 (6) in another similar case.
I.      Legislative framework
A.      EU law
6.        I refer to recitals 5, 6, 8, 10 and 12, and Articles 1 and 9 of the Framework Decision, which are set out in the Opinion in OG and PI (Public Prosecutors of Lübeck and of Zwickau).
B.      National law
7.        According to the information provided by the Belgian Government, the wet van 19 december 2003 betreffende het Europees aanhoudingsbevel (Law of 19 December 2003 on the EAW) (7) stipulates as follows in Article 32: (8)
‘1. Where it is reasonable to assume that a person requested for the purposes of conducting a criminal prosecution is in the territory of another Member State of the European Union, the examining magistrate, or the Public Prosecutor enforcing the arrest warrant issued by the court, shall issue an [EAW] in the manner and on the conditions established in Articles 2 and 3. An [EAW] issued for the purposes of conducting a criminal prosecution may only be issued under the conditions established by the Law of 20 July 1990 on preventive detention.
…
2. Where it is reasonable to assume that a person requested for the purposes of executing a custodial sentence or detention order is in the territory of another Member State of the European Union, the Public Prosecutor shall issue an [EAW] in the manner and on the conditions established in Articles 2 and 3.
If, in this case, the custodial sentence or detention order has been imposed by a decision rendered in absentia, and if the requested person has not been summoned in person or otherwise informed of the date and place of the hearing which led to the decision rendered in absentia, the [EAW] shall state that the requested person will have an opportunity to challenge the decision in Belgium and to be present at the judgment.
…’
8.        Article 28/1 of the wet van 20 juli 1990 betreffende de voorlopige hechtenis (Law of 20 July 1990 on preventive detention) (9) provides as follows:
‘The court may issue an arrest warrant where the suspect cannot appear in person because he is being detained abroad and he has asked to be able to attend in person.’
II.    Proceedings and question referred
9.        On 24 April 2019, the Public Prosecutor in Brussels (Belgium) issued an EAW for the purposes of enforcing a judgment given on 7 February 2019 against ZB by the Franstalige rechtbank van eerste aanleg van Brussel (Brussels Court of First Instance (French-speaking), Belgium). (10)
10.      Following the arrest of ZB in the Netherlands on 3 May 2019, the EAW was forwarded to the rechtbank Amsterdam (District Court, Amsterdam, Netherlands), which has decided to refer the following question for a preliminary ruling:
‘In the case where an EAW seeks the enforcement of a custodial sentence imposed by an enforceable decision of a court, whereas the EAW has been issued by a Public Prosecutor who participates in the administration of justice in the issuing Member State, and there is a guarantee that he acts independently in the execution of those of his responsibilities which are inherent in the issuing of a European arrest warrant, does the condition also apply that there must be a possibility of instituting court proceedings against the decision to issue an EAW — in particular its proportionality — which meet in full the requirements inherent in effective judicial protection?’
III. Proceedings before the Court of Justice
11.      The case was lodged with the Court of Justice on 22 August 2019. As ZB is being held in custody, the referring court requested that the case be dealt with under the urgent procedure, which was agreed to by the Court of Justice.
12.      Written observations have been submitted by ZB, the Belgian and Netherlands Governments, the Netherlands Prosecution Authority and the Commission.
13.      The public hearing took place on 24 October 2019 and was held jointly with the hearings in Cases C‑566/19 PPU, C‑626/19 PPU and C‑625/19 PPU. The hearing was attended by JR, YC, XD, ZB, the Luxembourg Prosecution Authority, the Netherlands Prosecution Authority, the Netherlands, French, Swedish, Belgian, Irish, Spanish, Italian and Finnish Governments, and the Commission.
IV.    Analysis
A.      Preliminary consideration
14.      The question asked in this case has points in common with the question referred in case C‑626/19 PPU, on which I give my view in the Opinion of this same date.
15.      In that Opinion I examine not only the question of judicial oversight of EAWs issued by the Prosecution Authority (the point at issue in this reference), but also whether the members of that institution have the characteristics required to be regarded as an ‘issuing judicial authority’ within the meaning of the Framework Decision.
16.      In these proceedings, the rechtbank Amsterdam (District Court, Amsterdam) takes for granted that the Belgian Prosecution Authority can issue an EAW, on the grounds that it satisfies the characteristics of independence that define an ‘issuing judicial authority’ within the meaning of Article 6(1) of the Framework Decision.
17.      As the independence of the Belgian Prosecution Authority has not been a matter of debate in this case, the information needed in order to assess whether, in the light of its constitutional status and organisational and functional structure, the members of that institution have the characteristics required by the Court of Justice in its judgment of 27 May 2019 in PF (Prosecutor General of Lithuania) (11) has not been provided. Consequently I cannot express an opinion on this point.
B.      Judicial review of the EAW issued by the Prosecution Authority
18.      My Opinion in joined Cases C‑566/19 PPU and C‑626/19 PPU addresses judicial oversight of an EAW issued for the purposes of conducting a criminal prosecution.
19.      In that context, I maintain that judicial oversight undertaken at the time the national arrest warrant (NAW) is issued cannot, by its very nature, satisfy ‘the requirements inherent in effective judicial protection’ referred to in paragraph 75 of the judgment in OG and PI (Public Prosecutors of Lübeck and of Zwickau), in that such protection is always at the request of the interested party and is provided through a procedure in which he has been able to intervene and take part in the exercise of his right to a defence. (12)
20.      Consequently, the examination of whether the requirements for issuing an EAW that is issued by a Public Prosecutor who may be regarded as an ‘issuing judicial authority’ within the meaning of Article 6(1) of the Framework Decision have been satisfied may take place before the EAW is issued, but it does not exclude the right of the requested person to institute court proceedings to challenge that EAW once it has been issued.
21.      The above, which is valid for EAWs issued for the purposes of conducting a criminal prosecution, also applies to EAWs issued for the purposes of executing a judgment.
22.      The issue of an EAW for the purposes of enforcing a judgment is not usually a matter of discretion, but of the strict application of the law (that is, of enforcement of the judgment which applies by law to the specific case in question).
23.      One might therefore think that, once judgment has been given, its execution is non-negotiable, and that consequently an EAW should automatically be issued if the person who has been sentenced is in another Member State.
24.      However, in order to issue an EAW, the existence of a NAW or, as in the case here, of a final judgment imposing a custodial sentence, is not the only prerequisite. It is also a requirement that the issue of the EAW should not be disproportionate. And the examination of proportionality is a matter for the courts, whether acting ex officio or by endorsing an earlier decision of the Prosecution Authority, (13) or by virtue of an appeal lodged by the interested party.
25.      Indeed, a prior assessment of proportionality has, to a large extent, already been performed by the legislature. Thus, under the Framework Decision, EAWs may not be issued for the purposes of executing custodial sentences of less than four months. (14)
26.      However, the proportionality of the issuing of an EAW is not determined solely by the length of the custodial sentence. To this must be added another factor which is no less relevant, namely the length of time for which it is likely that the individual will be held in custody while the executing Member State processes the EAW. Where applicable, regard must be had to ‘the effects of the surrender procedure and the transfer of the person concerned residing in a Member State other than … on that person’s social and family relationships’. (15)
27.      It is true that the time spent in custody in the executing Member State must be deducted from the sentence imposed in the issuing Member State. (16) However, depending on the circumstances, that time may have been spent in custody even where, in view of the seriousness of the offence involved, the sentence to be enforced may not necessarily entail imprisonment in the issuing Member State.
28.      Indeed, there is no reason why the court that issues the sentence should necessarily take into account at that point the possibility of an EAW being issued in order to enforce its judgment. It may be — and not infrequently is — the case that an NAW is issued in order to ensure that the convicted person appears in court and that then, whether because of the well-founded application of that individual or for other reasons of domestic law, the custodial sentence is immediately replaced by a lighter sentence or suspended, possibly subject to the provision of certain guarantees.
29.      Therefore a conviction will not inevitably be followed by an EAW: the trial court (or any other competent court), as the court responsible for granting effective judicial protection, must decide whether to approach the executing Member State for the surrender of the convicted person, based on the criterion of proportionality, or whether to elect not to do so.
30.      In that context, the time elapsed between the sentence and the issue of the EAW may be relevant. In some cases, there will be a risk of being out of time, even if the assessment of the proportionality of the EAW was undertaken during sentencing. (17)
31.      If there is a delay in issuing the EAW, the implied or express assessment of proportionality contained in the judgment may have been superseded. In assessing the proportionality of an EAW, one of the determinants is the possible length of any period spent in custody in the executing Member State; this period must be taken into account when considering whether or not the issue of an EAW is proportionate, having regard to the requested person’s circumstances and the gravity of the offence for which he is being requested.
32.      Similarly, the possibility cannot be discounted that, at the point when the EAW is issued, the person requested has established a sufficient link with the executing Member State in order for Framework Decision 2008/909/JHA (18) to apply. In this case, consideration would have to be given to whether the sentence for which the EAW is being issued could be served in that Member State.
33.      It can be seen from the above that EAWs issued for the purposes of enforcing a conviction may present additional problems, which are not limited to simply confirming the existence of the conviction in question and the corresponding custodial sentence. If those EAWs are issued by a member of the Prosecution Authority, the interested party must have an opportunity to subject their decision to the scrutiny of a court.
34.      In my opinion, therefore, the right to institute court proceedings, which applies to EAWs issued for the purposes of conducting a criminal prosecution, also applies to EAWs issued for the purposes of enforcing a conviction.
V.      Conclusion
35.      In the light of the above, I recommend that the Court of Justice should reply to the rechtbank Amsterdam (District Court, Amsterdam, Netherlands) in the following terms:
European arrest warrants issued by the Prosecution Authority for the purposes of enforcing a custodial sentence imposed by an enforceable decision must be capable of being the subject of court proceedings similar to those that apply in the case of European warrants issued for the purposes of conducting a criminal prosecution.
1      Original language: Spanish.
2      Council Framework Decision of 13 June 2002 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 of 26 February 2009 (OJ 2009 L 81, p. 24; ‘the Framework Decision’).
3      Judgment of 27 May 2019, C‑508/18 and C‑82/19 PPU, EU:C:2019:456 (‘the judgment in OG and PI (Public Prosecutors of Lübeck and of Zwickau)’.
4      Cases C‑508/18 and C‑82/19 PPU, EU:C:2019:337 (‘the Opinion in OG and PI (Public Prosecutors of Lübeck and of Zwickau)’).
5      Case C‑509/18, EU:C:2019:338 (‘the Opinion in PF (Prosecutor General of Lithuania)’).
6      Case C‑489/19 PPU, NJ (Public Prosecutor’s Office, Vienna), EU:C:2019:849 (‘the judgment in NJ (Public Prosecutor’s Office, Vienna)’).
7      Moniteur belge of 22 December 2003, p. 60075.
8      As amended by Article 13 of the wet van 11 juli 2018 houdende diverse bepalingen in strafzaken (Law of 11 July 2018 on various provisions concerning criminal matters), Moniteur belge of 18 July 2018, p. 57582 (‘the Law of 2018’).
9      Provision established by Article 12 of the Law of 2018.
10      According to the order for reference, ZB had been sentenced to prison terms of 30 months and one year.
11      Case C‑509/18, EU:C:2019:457 (‘judgment in PF (Prosecutor General of Lithuania)’).
12      Opinion in C‑566/19 PPU and C‑626/19 PPU, point 84.
13      That is what happened in the case decided by the judgment in NJ (Public Prosecutor’s Office, Vienna).
14      Article 2(1) of the Framework Decision.
15      Judgment in NJ (Public Prosecutor’s Office, Vienna),  paragraph 44.
16      Article 26(1) of the Framework Decision.
17      That is also the case in the event of the issue of the EAW after the issue of a NAW where the judicial authority has carried out an assessment of proportionality. I refer to this hypothesis in point 80 of the Opinion in Cases C‑566/19 PPU and C‑626/19 PPU.
18      Council Framework Decision of 27 November 2008 on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union (OJ 2008 L 327, p. 27).