Provisional text
OPINION OF ADVOCATE GENERAL
RANTOS
delivered on 10 July 2025 (1)
Joined Cases C‑722/23 [Rugu] and C‑91/24 [Aucroix] (i)
AR
other parties:
Procureur général
(C‑722/23)
and
Procureur général de Mons
v
HL (C‑91/24)
(Requests for a preliminary ruling from the Cour de cassation (Court of Cassation, Belgium))
( References for a preliminary ruling – Judicial cooperation in criminal matters – European arrest warrant – Framework Decision 2002/584/JHA – Article 1(3) – Surrender procedures between Member States – Grounds for non-execution – Respect for fundamental rights – Conditions of detention in the issuing Member State – Article 4(6) – Ground for optional non-execution – Objective of social rehabilitation – National of a Member State residing in the territory of the executing Member State – Combating impunity – Recognition of judgments imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in another Member State – Framework Decision 2008/909/JHA – Article 25 – Enforcement of a sentence under Article 4(6) of Framework Decision 2002/584 – Consent of the issuing Member State )
I.      Introduction
1.        AR, a Romanian national, and HL, a Belgian national, both residing in Belgium, were each the subject of a European arrest warrant (‘EAW’) issued, respectively, by the Romanian and Greek judicial authorities for the purposes of executing prison sentences. The Belgian appeal courts seised refused to execute those EAWs on the ground that, in the event of surrender, the conditions of detention in the issuing Member States would expose AR and HL to the risk of their fundamental rights being infringed.
2.        In that context, the Cour de cassation (Court of Cassation, Belgium) asks the Court whether, in a situation where the courts of the executing Member State refuse to execute an EAW on the basis of Article 1(3) of Framework Decision 2002/584/JHA, (2) those courts may or must apply the ground for optional non-execution provided for in Article 4(6) of that framework decision with a view to the execution, in the executing Member State, of the sentence imposed where the persons concerned are nationals of or reside in that Member State.
3.        The present joined cases have arisen in the context of the case-law following the judgment in Aranyosi and Căldăraru, (3) in which the Court stated, for the first time, in essence, that if, in exceptional circumstances, the executing judicial authority comes to the conclusion that, first, there are substantial grounds to believe that, in the event of surrender to the issuing Member State, the requested person will be exposed to a risk of his or her fundamental rights being breached and that, second, that risk cannot be averted within a reasonable time, that executing judicial authority cannot give effect to the EAW, in accordance with Article 1(3) of Framework Decision 2002/584, interpreted in the light of Article 4 of the Charter of Fundamental Rights of the European Union (‘the Charter’). Those cases thus raise the novel question of the consequences of a refusal to execute an EAW on account of the conditions of detention in the issuing Member State as regards the situation of the persons concerned, namely whether the executing judicial authority must release them or whether, in order to avoid them going unpunished, it may or must enforce their sentence in the territory of the executing Member State, on the basis of Article 4(6) of that framework decision, where the conditions laid down in that provision are satisfied.
II.    Legal framework
A.      European Union law
1.      Framework Decision 2002/584
4.        According to recitals 5, 6 and 12 of Framework Decision 2002/584:
‘(5)      The objective set for the [European] Union to become an area of freedom, security and justice leads to abolishing extradition between Member States and replacing it by a system of surrender between judicial authorities. Further, the introduction of a new simplified system of surrender of sentenced or suspected persons for the purposes of execution or prosecution of criminal sentences makes it possible to remove the complexity and potential for delay inherent in the present extradition procedures. Traditional cooperation relations which have prevailed up till now between Member States should be replaced by a system of free movement of judicial decisions in criminal matters, covering both pre-sentence and final decisions, within an area of freedom, security and justice.
(6)      The [EAW] provided for in this Framework Decision is the first concrete measure in the field of criminal law implementing the principle of mutual recognition which the European Council referred to as the “cornerstone” of judicial cooperation.
…
(12)      This Framework Decision respects fundamental rights and observes the principles recognised by Article 6 [TEU] and reflected in the [Charter], in particular Chapter
VI thereof. …’
5.        Article 1 of that framework decision, entitled ‘Definition of the [EAW] and obligation to execute it’, states:
‘1.      The [EAW] is a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order.
2.      Member States shall execute any [EAW] on the basis of the principle of mutual recognition and in accordance with the provisions of this Framework Decision.
3.      This Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 [TEU].’
6.        Article 3 of that framework decision, entitled ‘Grounds for mandatory non-execution of the [EAW]’, provides:
‘The judicial authority of the Member State of execution (hereinafter “executing judicial authority”) shall refuse to execute the [EAW] in the following cases:
1.      if the offence on which the arrest warrant is based is covered by amnesty in the executing Member State, where that State had jurisdiction to prosecute the offence under its own criminal law;
2.      if the executing judicial authority is informed that the requested person has been finally judged by a Member State in respect of the same acts provided that, where there has been sentence, the sentence has been served or is currently being served or may no longer be executed under the law of the sentencing Member State;
3.      if the person who is the subject of the [EAW] may not, owing to his age, be held criminally responsible for the acts on which the arrest warrant is based under the law of the executing State.’
7.        Article 4 of that framework decision, entitled ‘Grounds for optional non-execution of the [EAW]’, provides in paragraph 6:
‘The executing judicial authority may refuse to execute the [EAW]:
…
6.      if the [EAW] has been issued for the purposes of execution of a custodial sentence or detention order, where the requested person is staying in, or is a national or a resident of the executing Member State and that State undertakes to execute the sentence or detention order in accordance with its domestic law’.
8.        Article 4a of Framework Decision 2002/584 relates to decisions rendered following a trial at which the person did not appear in person.
2.      Framework Decision 2008/909/JHA
9.        Recitals 9 and 12 of Framework Decision 2008/909/JHA (4) are worded as follows:
‘(9)      Enforcement of the sentence in the executing State should enhance the possibility of social rehabilitation of the sentenced person. In the context of satisfying itself that the enforcement of the sentence by the executing State will serve the purpose of facilitating the social rehabilitation of the sentenced person, the competent authority of the issuing State should take into account such elements as, for example, the person’s attachment to the executing State, whether he or she considers it the place of family, linguistic, cultural, social or economic and other links to the executing State.
…
(12)      This Framework Decision should also, mutatis mutandis, apply to the enforcement of sentences in the cases under Articles 4(6) and 5(3) of [Framework Decision 2002/584]. This means, inter alia, that, without prejudice to that Framework Decision, the executing State could verify the existence of grounds for non-recognition and non-enforcement as provided in Article 9 of this Framework Decision, including the checking of double criminality to the extent that the executing State makes a declaration under Article 7(4) of this Framework Decision, as a condition for recognising and enforcing the judgment with a view to considering whether to surrender the person or to enforce the sentence in cases pursuant to Article 4(6) of Framework Decision [2002/584].’
10.      Article 3 of Framework Decision 2008/909, entitled ‘Purpose and scope’, states in paragraphs 1 and 2:
‘1.      The purpose of this Framework Decision is to establish the rules under which a Member State, with a view to facilitating the social rehabilitation of the sentenced person, is to recognise a judgment and enforce the sentence.
2.      This Framework Decision shall apply where the sentenced person is in the issuing State or in the executing State.’
11.      Article 4 of that framework decision, entitled ‘Criteria for forwarding a judgment and a certificate to another Member State’, states:
‘1.      Provided that the sentenced person is in the issuing State or in the executing State, and provided that this person has given his or her consent where required under Article 6, a judgment, together with the certificate for which the standard form is given in Annex I, may be forwarded to one of the following Member States:
(a)      the Member State of nationality of the sentenced person in which he or she lives; or
(b)      the Member State of nationality, to which, while not being the Member State where he or she lives, the sentenced person will be deported, once he or she is released from the enforcement of the sentence …; or
(c)      any Member State other than a Member State referred to in (a) or (b), the competent authority of which consents to the forwarding of the judgment and the certificate to that Member State.
2.      The forwarding of the judgment and the certificate may take place where the competent authority of the issuing State, where appropriate after consultations between the competent authorities of the issuing and the executing States, is satisfied that the enforcement of the sentence by the executing State would serve the purpose of facilitating the social rehabilitation of the sentenced person.
3.      Before forwarding the judgment and the certificate, the competent authority of the issuing State may consult, by any appropriate means, the competent authority of the executing State. Consultation shall be obligatory in the cases referred to in paragraph 1(c). In such cases the competent authority of the executing State shall promptly inform the issuing State of its decision whether or not to consent to the forwarding of the judgment.
…
5.      The executing State may, on its own initiative, request the issuing State to forward the judgment together with the certificate. … Requests made under this paragraph shall not create an obligation of the issuing State to forward the judgment together with the certificate.
6.      In implementing this Framework Decision, Member States shall adopt measures, in particular taking into account the purpose of facilitating social rehabilitation of the sentenced person, constituting the basis on which their competent authorities have to take their decisions whether or not to consent to the forwarding of the judgment and the certificate in cases pursuant to paragraph 1(c).
…’
12.      Article 8 of that framework decision, entitled ‘Recognition of the judgment and enforcement of the sentence’, provides:
‘1.      The competent authority of the executing State shall recognise a judgment which has been forwarded in accordance with Article 4 and following the procedure under Article 5, and shall forthwith take all the necessary measures for the enforcement of the sentence, unless it decides to invoke one of the grounds for non-recognition and non-enforcement provided for in Article 9.
2.      Where the sentence is incompatible with the law of the executing State in terms of its duration, the competent authority of the executing State may decide to adapt the sentence only where that sentence exceeds the maximum penalty provided for similar offences under its national law. The adapted sentence shall not be less than the maximum penalty provided for similar offences under the law of the executing State.
3.      Where the sentence is incompatible with the law of the executing State in terms of its nature, the competent authority of the executing State may adapt it to the punishment or measure provided for under its own law for similar offences. Such a punishment or measure shall correspond as closely as possible to the sentence imposed in the issuing State and therefore the sentence shall not be converted into a pecuniary punishment.
4.      The adapted sentence shall not aggravate the sentence passed in the issuing State in terms of its nature or duration.’
13.      Article 25 of that framework decision, entitled ‘Enforcement of sentences following [an EAW]’, is worded as follows:
‘Without prejudice to Framework Decision [2002/584], provisions of this Framework Decision shall apply, mutatis mutandis to the extent they are compatible with provisions under that Framework Decision, to enforcement of sentences in cases where a Member State undertakes to enforce the sentence in cases pursuant to Article 4(6) of that Framework Decision, or where, acting under Article 5(3) of that Framework Decision, it has imposed the condition that the person has to be returned to serve the sentence in the Member State concerned, so as to avoid impunity of the person concerned.’
B.      Belgian law
14.      Article 4 of the Loi relative au mandate d’arrêt européen (Law on the European Arrest Warrant) of 19 December 2003 (‘the Law of 19 December 2003’), (5) states:
‘The execution of [an EAW] shall be refused in the following cases:
…
5°      if there are valid grounds for believing that the execution of the [EAW] would have the effect of infringing the fundamental rights of the person concerned, as enshrined in Article 6 of the Treaty on European Union.’
15.      Under Article 6(4) of that law:
‘Execution may be refused in the following cases:
…
4°      if the [EAW] has been issued for the purposes of execution of a custodial sentence or detention order, where the person concerned is Belgian or resides in Belgium and the competent Belgian authorities undertake to execute the sentence or detention order in accordance with Belgian law.’
III. The disputes in the main proceedings, the questions referred for a preliminary ruling and the procedures before the Court
A.      Case C‑722/23
16.      On 1 August 2023, AR, a Romanian national residing in Belgium, was the subject of an EAW issued by the Romanian judicial authority with a view to the execution of a four-year prison sentence. The chambre du conseil (Investigation Chamber) of the tribunal de première instance francophone de Bruxelles (Court of First Instance (French-speaking), Brussels, Belgium) refused, by order, to execute that EAW on the basis of Article 4(5) of the Law of 19 December 2003 on the ground that the conditions of detention in Romania would have exposed AR to the risk of his fundamental rights being infringed, in this case those referred to in Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’). (6)
17.      By judgment of 30 October 2023, the chambre de mises en accusation (Indictment Chamber) of the cour d’appel de Bruxelles (Court of Appeal, Brussels, Belgium), following an appeal by the ministère public (Public Prosecutor’s Office), confirmed that order but also decided that that four-year prison sentence ‘could be served in Belgium’, in accordance with Article 6(4) of the Law of 19 December 2003, since the risk of infringing AR’s fundamental rights concerns not the proceedings which led to his conviction or that conviction itself, but a method of executing the sentence imposed in Romania.
18.      AR brought an appeal on a point of law against that judgment before the Cour de cassation (Court of Cassation), the referring court, putting forward a plea alleging infringement of Article 25 of Framework Decision 2008/909, Article 4(5) of the Law of 19 December 2003 and Article 38(1) of the loi du 15 mai 2012 relative à l’application du principe de reconnaissance mutuelle aux peines ou mesures privatives de liberté prononcées dans un État membre de l’Union européenne (Law of 15 May 2012 on the application of the principle of mutual recognition to custodial sentences or measures involving deprivation of liberty imposed in a Member State of the European Union). (7) In that regard, AR submitted that, after finding that the ground for mandatory non-execution of the EAW provided for in Article 4(5) of the Law of 19 December 2003 applied, the appeal court could not apply the effects of the ground for optional non-execution referred to in Article 6(4) of that law, and, since he resided in Belgium, order the execution in that Member State of the prison sentence which had been imposed on him in Romania.
19.      In those circumstances, the referring court observes that it is apparent from the judgment in Openbaar Ministerie (Independence of the issuing judicial authority) (8) that the objective of the mechanism of the EAW is in particular to combat the impunity of a requested person who is present in a territory other than that in which he or she has allegedly committed an offence. That court also refers to the judgment in Popławski  I, (9) in which the Court stated that, in the event of a refusal to execute an EAW issued with a view to the surrender of a person who has been finally judged in the issuing Member State and given a custodial sentence, the executing judicial authority is itself required to ensure that the sentence pronounced against that person is actually executed.
20.      According to the referring court, the question raised by AR’s plea
is whether, where the courts of the Member State executing an EAW have found that, in the event of the surrender of the requested person to the issuing Member State there is a risk that that person’s fundamental rights will be infringed, and that risk cannot be averted within a reasonable period with the consequence that they must refuse to execute that EAW, those courts may nevertheless decide, in order to avoid impunity of that person where he or she resides in a territory other than that in which he or she is suspected of having committed an offence, to order, in accordance with the national provision transposing Article 4(6) of Framework Decision 2002/584 into national law, that the custodial sentence imposed on the same person in the issuing Member State and which is the subject of that EAW, is to be served in the executing Member State. Thus, the referring court asks whether the finding that there is a ground for refusal of mandatory execution of an EAW precludes the application of the effects of the ground for optional non-execution referred to in Article 4(6) of that framework decision. That court states that, unlike the case which gave rise to the judgment in Popławski I, the present case is characterised by the fact that the person concerned resides in the executing Member State and the ground for mandatory non-execution referred to in Article 4(5) of the Law of 19 December 2003 is to be applied.
21.      In those circumstances, the Cour de cassation (Court of Cassation) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:
‘Where the courts of the Member State executing [an EAW] have found that, in the event of the surrender of the requested person to the issuing Member State, there is a risk of that person’s fundamental rights being infringed in connection with the execution of the foreign sentence, with the consequence that there are grounds for refusing to execute the [EAW], does Article 4(6) of [Framework Decision 2002/584] authorise courts of the executing Member State that find that the requested person resides in the executing State to decide subsequently that, in accordance with the provision transposing Article 4(6) of the framework decision into national law, the custodial sentence imposed in the Member State that issued the [EAW], which is referred to in that warrant, is to be served in the executing Member State?’
22.      The referring court requested that Case C‑722/23 be dealt with under the urgent preliminary ruling procedure provided for in Article 107 of the Rules of Procedure of the Court of Justice. By decision of 6 December 2023, the First Chamber of the Court, acting on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decided not to grant that request.
B.      Case C‑91/24
23.      On 9 March 2016, HL, a Belgian national residing in Belgium, was the subject of an EAW issued by the Greek judicial authority with a view to the execution of a five-year prison sentence.
24.      By judgment of 18 January 2024, the chambre de mises en accusation (Indictment Chamber) of the cour d’appel de Mons (Court of Appeal, Mons, Belgium) refused to execute that EAW on the basis of Article 4(5) of the Law of 19 December 2003 on the ground that HL’s mental deficiencies, combined with the conditions of detention in the issuing Member State, did not make it possible to comply with the guarantees laid down in Articles 3 and 5 (10) of the ECHR in that HL would be exposed to the risk of being detained in an overcrowded prison where he would not have access to care appropriate to his state of health.
25.      The Public Prosecutor at the cour d’appel de Mons (Court of Appeal, Mons) brought an appeal on a point of law against that judgment before the Cour de cassation (Court of Cassation), the referring court, claiming that, after refusing to execute that EAW on account of the conditions of execution of the custodial sentence in the issuing Member State, that chamber should have considered applying the ground for optional non-execution referred to in Article 6(4) of the Law of 19 December 2003. In that regard, it submitted that that provision was intended to avoid impunity of the person whose surrender is refused.
26.      The referring court, for the same reasons as those set out, in essence, in its order for reference in Case C‑722/23, asks whether, where the courts of the Member State executing an EAW have found that there was a risk that the fundamental rights of the requested person might be infringed if that person was surrendered to the issuing Member State, Article 4(6) of Framework Decision 2002/584 requires those courts, in order to avoid impunity of that person where he or she is a national of or resides in the executing Member State, to examine whether it is appropriate to order, in accordance with that provision, that the custodial sentence imposed on that person in the issuing Member State and which is the subject of that EAW be served in that Member State.
27.      In those circumstances, the Cour de cassation (Court of Cassation) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:
‘Where the courts of a Member State executing [an EAW] have found that, in the event of the surrender of the requested person to the issuing Member State, there is a risk of that person’s fundamental rights being infringed in connection with the execution of the foreign sentence, with the consequence that there are grounds for refusing to execute the [EAW], must Article 4(6) of [Framework Decision 2002/584] be interpreted as requiring those courts of the executing State to examine – in order to avoid a situation where the requested person who is a national of or resides in that State might remain unpunished – whether it is appropriate to order, in accordance with the provision transposing the abovementioned Article 4(6) into national law, that the custodial sentence imposed on the person concerned in the Member State that issued the [EAW], which is referred to in that warrant, be served in the executing Member State?’
28.      By decision of the Court of 28 January 2025, Cases C‑722/23 and C‑91/24 were joined for the purposes of the oral procedure and judgment.
29.      Written observations were submitted to the Court by the Belgian, French and Romanian Governments and by the European Commission in each of the two cases. The Netherlands Government submitted written observations only in Case C‑91/24 and the Polish Government only in Case C‑722/23. With the exception of the Polish Government, those parties and AR also presented oral argument at the hearing held on 18 March 2025.
IV.    Analysis
30.      By its questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 4(6) of Framework Decision 2002/584 must be interpreted as meaning that the executing judicial authority, where it refuses to execute an EAW on the basis of a ground for non-execution under
Article 1(3) thereof because there is a risk that the person concerned would, if surrendered to the issuing judicial authority, suffer a breach of his or her fundamental rights as a result of the conditions of detention in the issuing Member State, has the option or is required, in order to avoid impunity of that person, to examine whether to order that that sentence be served in the territory of the executing Member State, where it establishes that that person is a national of or resides in that Member State.
A.      Preliminary observations
31.      As a preliminary point, I would point out that Framework Decision 2002/584 seeks, by the establishment of a simplified and effective system for the surrender of persons convicted or suspected of having infringed criminal law, to facilitate and accelerate judicial cooperation with a view to contributing to the attainment of the objective set for the European Union of becoming an area of freedom, security and justice, and has as its basis the high level of trust which must exist between the Member States. In the field governed by that framework decision, the principle of mutual recognition, which, according to recital 6 thereof, constitutes the ‘cornerstone’ of judicial cooperation in criminal matters, is expressed in Article 1(2) of that framework decision, which lays down the rule that Member States are required to execute any EAW on the basis of the principle of mutual recognition and in accordance with the provisions of the framework decision. It follows, first, that the executing judicial authorities may refuse to execute an EAW only on grounds deriving from Framework Decision 2002/584, as interpreted by the Court. Second, while execution of the EAW constitutes the rule, refusal to execute is intended to be an exception that must be interpreted strictly. (11) That framework decision explicitly sets out, in Article 3, grounds for mandatory non-execution of an EAW and, in Articles 4 and 4a, grounds for optional non-execution of such a warrant. (12)
32.      Moreover, both the principle of mutual trust between the Member States and the principle of mutual recognition, which is itself based on the mutual trust between the latter, are, in EU law, of fundamental importance given that they allow an area without internal borders to be created and maintained. More specifically, the principle of mutual trust requires, particularly as regards the area of freedom, security and justice, each of those States, save in exceptional circumstances, to consider all the other Member States to be complying with EU law and particularly with the fundamental rights recognised by EU law. Thus, when implementing EU law, the Member States are required to presume that fundamental rights have been observed by the other Member States, so that they may neither demand a higher level of national protection of fundamental rights from another Member State than that provided by EU law, nor check, save in exceptional cases, whether that other Member State has actually, in a specific case, observed the fundamental rights guaranteed by the European Union. (13)
33.      According to the case-law of the Court, while it is primarily for each Member State, in order to ensure the full application of the principles of mutual trust and mutual recognition which underpin the operation of the EAW mechanism, to ensure, subject to final review by the Court, that the requirements inherent in the fundamental rights enshrined in the Charter are safeguarded, by refraining from any measure capable of undermining them, the existence of a real risk that the person in respect of whom an EAW has been issued would, if that person is surrendered to the issuing judicial authority, suffer a breach of those fundamental rights is nevertheless capable of permitting the executing judicial authority to refrain, exceptionally, from giving effect to that EAW on the basis of Article 1(3) of Framework Decision 2002/584, (14) under which that decision is not to have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 TEU.
34.      It follows from the Court’s case-law in relation to that framework decision that the assessment, during a procedure for the execution of an EAW, of whether there is real risk of a breach of the fundamental rights enshrined in the Charter must, in principle, be carried out by means of an examination in two separate steps which cannot overlap with one another, in that they involve an analysis on the basis of different criteria, and which must therefore be carried out in turn. To that end, the executing judicial authority must, as a first step, determine whether there is objective, reliable, specific and properly updated information to demonstrate that there is a real risk of infringement, in the issuing Member State, of one of those fundamental rights on account of either systemic or generalised deficiencies, or deficiencies affecting more specifically an objectively identifiable group of persons. In the context of a second step, the executing judicial authority must determine, specifically and precisely, to what extent the deficiencies identified in the first step of the examination are liable to have an impact on the person who is the subject of an EAW and whether, having regard to his or her personal situation, there are substantial grounds for believing that that person will run a real risk of a breach of those fundamental rights if surrendered to the issuing Member State. (15) If the executing judicial authority considers that it does not have available to it all the information necessary for the adoption of a decision on the surrender of the person concerned, it must, pursuant to Article 15(2) (16) of Framework Decision 2002/584, request the issuing judicial authority to furnish as a matter of urgency all the supplementary information it considers necessary on the conditions under which it is intended, in that Member State, that that person will be detained. (17)
35.      As Advocate General Campos Sánchez-Bordona has noted, the case-law set out in points 32 to 34 of this Opinion, which was established in the judgment in Aranyosi and Căldăraru, is an example of the judicial creation of law, by the Court of Justice, justified by the need to provide a means of protection of individual fundamental rights in situations not explicitly provided for by the EU legislature in the context of the EAW. (18) It must therefore be observed that the requirement to guarantee protection of the fundamental rights of the person concerned, under the conditions set out in that case-law, constitutes a new ground for mandatory non-execution of an EAW, in addition to those already provided for in Article 3 of Framework Decision 2002/584.
B.      Admissibility of the questions referred for a preliminary ruling
36.      The French Government, without formally raising a plea of inadmissibility, states, in its written observations, that the context and title of the questions referred for a preliminary ruling refer only to a risk, in the event of surrender of the requested persons, of fundamental rights being infringed in connection with the execution of the foreign sentence, without any further clarification or demonstration of the two-step verification required by the case-law of the Court and set out in point 34 of this Opinion. Therefore, there is doubt as to whether those questions are necessary for the effective resolution of the disputes in the main proceedings. (19)
37.      I would point out that, according to the Court’s settled case-law, questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining, and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. However, it has also been consistently held that the procedure provided for in Article 267 TFEU is an instrument of cooperation between the Court of Justice and the national courts, by means of which the Court provides the national courts with the points of interpretation of EU law which they need in order to decide the disputes before them. The justification for a reference for a preliminary ruling is not that it enables advisory opinions on general or hypothetical questions to be delivered but rather that it is necessary for the effective resolution of a dispute. (20) As is apparent from the actual wording of Article 267 TFEU, the question referred for a preliminary ruling must be ‘necessary’ to enable the referring court to ‘give judgment’ in the case before it. (21)
38.      In that regard, it is apparent from the orders for reference that the Belgian courts refused to execute the EAWs concerning AR and HL on the basis of Article 4(5) of the Law of 19 December 2003 that provides that the execution of an EAW must be refused if there are valid grounds for believing that that execution would have the effect of infringing the fundamental rights of the person concerned, enshrined in EU law.
39.      As the Court has already held, such a provision, in so far as it is interpreted as having the same scope as Article 1(3) of Framework Decision 2002/584, allows a refusal to execute an EAW only in the context set out in point 33 of this Opinion and cannot, therefore, be regarded as establishing a ground for non-execution which does not stem from that framework decision. The Court concluded that that framework decision must be interpreted as meaning that an executing judicial authority does not have the power to refuse to execute an EAW on the basis of a ground for non-execution which arises, not from that framework decision, but solely from the law of the executing Member State and that, by contrast, that judicial authority may apply a national provision which provides that the execution of an EAW is to be refused where that execution would lead to an infringement of a fundamental right enshrined in EU law, provided that the scope of that provision does not go beyond the scope of Article 1(3) of Framework Decision 2002/584 as interpreted by the Court. (22)
40.      In the present case, it follows from the orders for reference that the Belgian courts considered, first, that there were substantial grounds to believe that, in the event of surrender to the issuing Member States, the requested persons would be exposed to a risk of their fundamental rights being breached and, second, that that risk could not be averted within a reasonable period. Thus, in those orders, the referring court starts from the premiss, which follows from an examination of the circumstances of the cases in the main proceedings, that the conditions for applying the ground for non-execution based on Article 1(3) of Framework Decision 2002/584 were satisfied. That premiss, the validity of which the referring court does not ask the Court to confirm, is not discussed in the context of the present requests for a preliminary ruling. By its questions, that court asks not about the lawfulness of the conditions under which the EAWs were not executed, but about the consequences to be drawn from that situation as regards the execution of the sentences imposed on those persons, in the light of that framework decision.
41.      Therefore, it must be held that the questions referred concern the interpretation of EU law and the answer to them appears necessary and relevant in order to enable the referring court to give judgment. Accordingly, I am of the view that the questions referred for a preliminary ruling are admissible.
C.      Substance
1.      Framework Decision 2002/584
42.      The referring court is unsure whether the executing judicial authority, in the situation in which it refuses to execute an EAW on the basis of a ground for non-execution derived from
Article 1(3) of Framework Decision 2002/584, is required, in order to prevent the person concerned from going unpunished, to apply, in addition, the ground for optional non-execution in Article 4(6) thereof, where it finds that that person is a national of or resides in the executing Member State, with a view to executing in the latter Member State the sentence imposed on him or her in the issuing Member State.
43.      Under Article 4(6) of Framework Decision 2002/584, the application of the ground for optional non-execution of the EAW laid down in that provision is subject to two conditions being met, namely, first, that the requested person is staying in the executing Member State, is a national of or resident in that Member State and, second, that that State undertakes to execute, in accordance with its domestic law, the sentence or detention order in respect of which the EAW has been issued. As regards the first of those conditions, the Court has already held that a requested person is ‘resident’ in the executing Member State when that person has established his or her actual place of residence there, and is ‘staying’ there when, following a stable period of presence in that Member State, he or she has acquired connections with that State which are of a similar degree to those resulting from residence. (23) As regards the second of those conditions, it follows from the wording of Article 4(6) of that framework decision that any refusal to execute an EAW presupposes an actual undertaking on the part of the executing Member State to enforce the custodial sentence imposed on the requested person. (24)
44.      Where the executing judicial authority finds that both of those conditions have been satisfied, it must then ascertain whether there is a legitimate interest to justify the sentence imposed in the issuing Member State being enforced on the territory of the executing Member State. That assessment allows that authority to take account of the objective pursued by Article 4(6) of that framework decision which consists, according to settled case-law, of increasing the requested person’s chances of reintegrating into society when the sentence imposed on him or her expires. (25)
45.      In the present case, it is important to note that, in the cases in the main proceedings, Article 1(3) of Framework Decision 2002/584 was applied in the light of the conditions of detention in the issuing Member States. It has not been argued that AR and HL did not benefit, inter alia, from the fundamental right to a fair trial before a tribunal previously established by law, guaranteed by the second paragraph of Article 47 of the Charter. In those circumstances, the criminal convictions imposed on them in Romania and Greece respectively are not being challenged and must be executed under the conditions laid down in that framework decision. Moreover, it is not disputed that HL is a Belgian national and that AR, a Romanian national, is ‘resident’ in Belgium, within the meaning of Article 4(6) thereof, with the result that the first condition for the purposes of applying the ground for optional non-execution provided for in that provision, set out in point 43 of this Opinion, is satisfied as far as they are concerned.
46.      In such circumstances, I consider that an executing judicial authority, where it refuses to execute an EAW on the basis of Article 1(3) of Framework Decision 2002/584, must apply, in addition, the ground for optional non-execution provided for in Article 4(6) thereof
and is required to examine whether it is necessary to order the execution in the territory of the executing Member State of the custodial sentence imposed on the requested person, provided that there is a legitimate interest justifying it.
47.      First, as regards the wording of that framework decision, no provision in it provides that a single ground for non-execution of an EAW may be relied on or that one of those grounds takes precedence over another. Thus, where an executing judicial authority relies on Article 1(3) of that framework decision in order to refuse to execute an EAW, it is also entitled to apply in parallel the ground for optional non-execution provided for in Article 4(6) thereof, under the conditions laid down in that provision.
48.      In that regard, the Netherlands Government submitted in its written observations that Framework Decision 2002/584 is structured in layers. (26) For its part, the Commission claimed in its written observations in Case C‑722/23 that, while those two grounds for non-execution coexist and the possibility of relying on them depends on compliance with their respective criteria, there is no hierarchy between them, which means that if the judicial authority of the executing Member State considers, after carrying out the two-step examination required by the Court, that there is a risk of infringement of the fundamental rights of the person concerned, it must refuse surrender on the basis of Article 1(3) of that framework decision and may, in addition, where the conditions for the application of Article 4(6) thereof are met, undertake to execute the sentence in accordance with its domestic law and refuse surrender on the basis of the latter provision. In my view, there is a hierarchy between those two grounds for non-execution that stems from their very nature, one being mandatory and the other optional, without that hierarchy stipulating, for a judicial authority, an order in which those grounds may be relied on.
49.      Second, in the circumstances of the cases in the main proceedings, of the various grounds for optional non-execution of the EAW, referred to in Article 4 of Framework Decision 2002/584, only that referred to in Article 4(6) allows the sentence imposed on the person who is the subject of an EAW to be executed. If that provision is not applied, that person would thus have to be released even though he or she has been finally sentenced and is likely, depending on the offence committed, to present a high degree of danger to society, including in the executing Member State.
50.      As the referring court has noted, it follows from the settled case-law of the Court that the objective of the mechanism of the EAW is to avoid the impunity of a requested person who is present in a territory other than the one in which he or she is suspected of having committed an offence. (27) To allow such impunity, which undermines the rights of victims of the offences committed, would be incompatible with the objective pursued both by Framework Decision 2002/584 and by Article 3(2) TEU, according to which the European Union offers its citizens an area of freedom, security and justice without internal borders, in which the free movement of persons is ensured in conjunction with appropriate measures, in particular with respect to external border controls and the prevention and combating of crime. (28) Therefore, the Court has held that, while the provisions of Framework Decision 2002/584 do not have direct effect, the competent national court, by taking the whole body of domestic law into consideration and applying the interpretative methods recognised by it, is nevertheless required to interpret the provisions of national law concerned, so far as is possible, in the light of the wording and the purpose of that framework decision, which means that, in the event of a refusal to execute an EAW issued with a view to the surrender of a person who has been finally judged in the issuing Member State and given a custodial sentence, the executing judicial authorities are themselves required to ensure that the sentence pronounced against that person is actually executed. (29) It follows from that case-law that an executing judicial authority must be able to ensure the execution, in its own territory, of the sentence pronounced against the requested person, so that he or she serves the sentence imposed on him or her by final judgment, on the basis of Article 4(6) thereof.
51.      Third, still pursuant to the case-law of the Court, the objective pursued by the ground for optional non-execution set out in Article 4(6) of that framework decision is to enable the executing judicial authority to give particular weight to the possibility of increasing the requested person’s chances of ‘reintegrating into society’. (30) That social rehabilitation presupposes, by definition, that the sentence is actually executed and that, after the end of that sentence, the sentenced person is assisted in the process of reintegration into society. A person who has been convicted by final judgment who does not serve his or her sentence not only cannot be socially reintegrated but may also develop a feeling of impunity which is likely to encourage recidivism.
52.      Fourth, the Court has held that Framework Decision 2002/584
must be interpreted in such a way as to ensure compliance with the requirements of respect for the fundamental rights of the persons concerned, without, however, calling into question the effectiveness of the system of judicial cooperation between the Member States of which the EAW, as provided for by the EU legislature, is one of the key elements. (31)
53.      Thus, Article 1(3) of Framework Decision 2002/584 and Article 4(6) thereof pursue different objectives that are not contradictory, but complementary in the interest of the person who is the subject of an EAW. Whereas the first provision seeks to protect the fundamental rights guaranteed by EU law in respect of the requested person, the second, as the Belgian Government highlighted in its written submissions, aims to improve that person’s chances of reintegrating into society after serving his or her sentence. The fact that an executing judicial authority refuses to execute an EAW because of the risk of infringement of the fundamental rights of the person concerned in no way precludes that authority from considering, at the same time, that the sentence imposed must be executed in the territory of the executing Member State, where that person is a national or a resident of that State and there is a legitimate interest justifying the execution of that sentence in the territory of that State.
In other words, as the Commission submitted at the hearing, the refusal to surrender based on Article 1(3), related to the conditions of detention in the issuing Member State, does not call into question the sentence imposed, whereas the ground for non-execution provided for in Article 4(6) of that framework decision, which does not call into question the sentence either, raises the question of the most appropriate place for the execution of the sentence.
54.      I would add that, as regards the grounds for optional non-execution of the EAW listed in Article 4 of Framework Decision 2002/584, it is clear from the case-law of the Court that, when transposing that framework decision into national law, the Member States have a margin of discretion. Therefore, they are free to choose whether or not to transpose those grounds into their domestic law. They may also choose to limit the situations in which the executing judicial authority may refuse to execute an EAW, thereby facilitating the surrender of requested persons, in accordance with the principle of mutual recognition set out in Article 1(2) of that framework decision. That is the case, in particular, for Article 4(6) thereof. (32)
55.      However, I note that Article 3 of Framework Decision 2002/584 provides for only three grounds for mandatory non-execution of an EAW, namely amnesty, application of the principle ne bis in idem and the age of the person who is the subject of the EAW. Those grounds are related, in fact, to the fact that the person concerned is not criminally liable and, in those situations, the non-execution of the sentence imposed, whether in the issuing Member State or in the executing Member State, appears to be entirely logical and consistent with the EAW mechanism.
56.      Moreover, as I stated in point 35 of this Opinion, the judgment in Aranyosi and Căldăraru
is
a development of the case-law by the Court, which added an additional ground for mandatory non-execution of an EAW, based on Article 1(3) of that framework decision, and relating to respect for the fundamental rights of the person concerned, in particular as regards the conditions of detention in the issuing Member State. That ground for mandatory non-execution is not based on the absence of criminal liability of the person concerned. The optional application of the ground for non-execution provided for in Article 4(6) of that framework decision could result in a person convicted by final judgment in the issuing Member State not serving any sentence merely because, by fleeing, he or she was able to reside in a Member State other than that in which he or she committed an offence, including where he or she is highly dangerous.
57.      In the context of the case-law, it appears inconsistent with the EAW mechanism to give the executing judicial authority no more than the option to apply the ground for non-execution provided for in Article 4(6) of that framework decision. If the judicial authority refuses to surrender the requested person on the basis of Article 1(3) of the framework decision, the optional nature of Article 4(6) should, in my view, and following the development of the case-law by the Court in the judgment in Aranyosi and Căldăraru, which laid down a new ground for non-execution of an EAW, become, also by judicial development of the case-law, an obligation, provided that the conditions for its application are satisfied, which would make it possible to standardise the practices followed by the Member States in order to combat
situations of impunity.
58.      The establishment of an obligation to apply Article 4(6) appears to be consistent with the case-law of the Court, according to which, in the event of a refusal to execute an EAW issued with a view to the surrender of a person who has been finally judged in the issuing Member State and given a custodial sentence, the executing judicial authority is itself required to ensure that that sentence is actually executed. (33) In the same way, the Court has held that the discretionary power of those authorities to refuse to execute the EAW must be exercised only on condition that the sentence pronounced against the requested person is in fact executed in the executing Member State and a solution that is compatible with the purpose of Framework Decision 2002/584, (34) namely to combat the impunity of the person concerned, (35) is thus achieved.
59.      In their written and oral observations, the French Government and the Commission submit that to oblige the executing Member State to assume responsibility for a custodial sentence imposed in the issuing Member State would be tantamount to relieving the former of its obligations at the expense of the latter and would not encourage defaulting Member States to remedy those deficiencies. The French Government adds that that assumption of responsibility would have ‘serious operational consequences’ for the executing Member State.
60.      However, I note that, if the executing Member State decides to apply Article 1(3) of Framework Decision 2002/584 in a given case, that decision necessarily has consequences that it must be able to bear as regards taking charge of the sentenced person in its territory. It is in the very interest of that Member State to ensure that it does so in order to preserve its national security and public order. Moreover, the argument based on encouraging ‘defaulting’ Member States to improve the conditions of their prison system seems weak. The greatest incentive comes from the finding, by international bodies and courts, that their conditions of detention do not comply with the standard of protection of fundamental rights guaranteed by EU law and, in particular, by Article 4 of the Charter. (36) Furthermore, since Article 1(3)
of Framework Decision 2002/584
is applied in only exceptional circumstances, as the Court has noted, it is difficult to see how such assumption of responsibility could lead to ‘serious operational consequences’ for the executing Member State.
61.      Although the application of Article 4(6) of Framework Decision 2002/584 is optional and the national transpositions of that provision vary from one Member State to another, (37) I consider it useful to point out that only a few Member States have transposed it as an optional ground for non-execution, the majority having made it mandatory or partially mandatory. (38) In the context of the application of Article 1(3) thereof, the executing judicial authorities could be deprived of a legal basis on which they would be able to order the execution of the sentenced imposed on the person who is the subject of an EAW. (39) Therefore, making that ground for non-execution mandatory would be an appropriate solution in order to alleviate the practical difficulties encountered by those authorities where they apply Article 1(3) of that framework decision. (40)
62.      It follows from the foregoing considerations that an executing judicial authority which refuses to execute an EAW on the basis of the ground for non-execution derived from Article 1(3) of Framework Decision 2002/584 is required, where it finds that the person concerned is a national or a resident of the executing Member State, to apply Article 4(6) of that framework decision and, subject to compliance with the conditions for the application of that provision, to order the execution of the custodial sentence imposed by the issuing Member State on its own territory in order to avoid impunity of that person.
63.      In the present case, it is common ground that the Kingdom of Belgium transposed into its national law the ground for optional non-execution provided for in Article 4(6) of that framework decision by means of Article 6(4) of the Law of 19 December 2003. Moreover, as has been stated, in the present cases, the first condition for the application of Article 4(6) of that framework decision is satisfied. (41) As regards the second condition relating to the executing Member State’s undertaking to execute the sentence ‘in accordance with its domestic law’, that implies that the measures for the execution of sentences imposed by the issuing Member State are governed by the law of the executing Member State and must make it possible to guarantee the actual execution of the sentence and to ensure the social rehabilitation of the sentenced person.
2.      Framework Decision 2008/909
64.      According to the case-law of the Court, like Framework Decision 2002/584, Framework Decision 2008/909 gives concrete expression, in criminal matters, to the principles of mutual trust and mutual recognition. That framework decision, as recital 5 thereof states, further develops judicial cooperation concerning the recognition and enforcement of criminal judgments where citizens of the European Union have been sentenced to a custodial sentence or a measure involving deprivation of liberty in another Member State, with a view to facilitating their social rehabilitation. (42) According to Article 3(1) and (2), that framework decision, which applies where the sentenced person is in the issuing Member State or the executing Member State, aims to establish the rules enabling a Member State, with a view to facilitating the social rehabilitation of the sentenced person, to recognise a judgment and enforce the sentence imposed by a court of another Member State. It follows from Article 25 of that framework decision that it applies, mutatis mutandis to the extent that it provisions are compatible with those of Framework Decision 2002/584, to enforcement of sentences in cases where a Member State undertakes to enforce the sentence pursuant to Article 4(6) of that framework decision. (43)
65.      Thus, the coordination provided for by the EU legislature between Framework Decision 2002/584 and Framework Decision 2008/909 must contribute to achieving the objective of facilitating the social rehabilitation of the person concerned. Moreover, such rehabilitation is in the interest not only of the convicted person but also of the European Union in general. (44)
66.      Consequently, as Advocate General Richard de la Tour emphasisednderscored in his Opinion in C. J. (Enforcement of a sentence further to an EAW), (45) it follows from Article 25 of Framework Decision 2008/909 that the executing judicial authority’s implementation of the ground for optional non-execution provided for in Article 4(6) of Framework Decision 2002/584 presupposes compliance with the procedure and the conditions laid down in Framework Decision 2008/909 for the recognition and enforcement of a judgment in criminal matters in a Member State other than the issuing Member State. (46) In other words, in order to be able to undertake to enforce the sentence imposed on the person concerned, by examining whether it is actually possible for it to execute that sentence in accordance with its domestic law, as required under Article 4(6) thereof, and therefore avoid any risk of impunity, the executing judicial authority must be empowered to take over the enforcement of that sentence in a manner compatible with the rules laid down in Framework Decision 2008/909.
67.      The Court has stated that those rules include, inter alia, first, Article 8(1) of that framework decision, according to which the competent authority of the executing Member State is, as a general rule, required to grant the request seeking recognition of a judgment and enforcement of a custodial sentence or measure involving deprivation of liberty handed down in another Member State, which has been forwarded in accordance with Articles 4 and 5 thereof. That authority may, in principle, refuse to give effect to such a request only on the grounds for non-recognition and non-enforcement exhaustively listed in Article 9 of that framework decision. (47) In addition, Article 8(2) to (4) of Framework Decision 2008/909 sets out, in essence, strict conditions for the adaptation, by the competent authority of the executing State, of the sentence handed down in the issuing State, those conditions being the sole exceptions to the obligation imposed on that authority, under Article 8(1) of that framework decision, to recognise a judgment which has been forwarded to it and forthwith take all the necessary measures for the enforcement of the sentence, which is to correspond in its length and nature to the sentences imposed in the judgment delivered in the issuing State. (48)
68.      Second, Article 4(1) of that framework decision provides, in essence, for the possibility for the issuing Member State, where the sentenced person has given his or her consent where required under Article 6 thereof, to forward to that other Member State such a judgment together with the certificate for which the standard form is given in Annex I thereto. Under Article 4(2) of Framework Decision 2008/909, the forwarding of the judgment and the certificate may take place where the competent authority of the issuing State, where appropriate after consultations between the competent authorities of the issuing State and the executing State, is satisfied that the enforcement of the sentence by the executing State would serve the purpose of facilitating the social rehabilitation of the sentenced person. Moreover, Article 4(5) of Framework Decision 2008/909 provides that the executing State may, on its own initiative, request the issuing State to forward the judgment together with the certificate, and that requests made under that paragraph do not create an obligation for the issuing State to forward the judgment together with the certificate.
69.      As is apparent from those provisions of Framework Decision 2008/909, the issuing Member State must forward the judgment and the certificate provided for in that framework decision with a view to that judgment being recognised and the sentence enforced, since their forwarding amounts to consent on the part of that Member State to the executing Member State taking charge of the enforcement of the sentence. The judgment is then recognised and the sentence enforced on the basis of the information contained in the certificate, which may, moreover, be withdrawn by the issuing Member State, (49) in particular if it considers that the proposed adaptation of the sentence is unsuitable. It follows that, if the judgment together with the certificate provided for in that framework decision are not forwarded, the executing Member State is not empowered to enforce on its territory a sentence handed down in the issuing Member State, since the latter has not consented to that enforcement. Accordingly, as the Romanian and French Governments submitted in their written and oral observations, I consider that the executing Member State can take charge of the enforcement of the sentence only within the framework established by Framework Decision 2008/909, which requires close and active cooperation with the issuing Member State, and, in particular, the latter’s agreement to the sentence being enforced in the executing Member State.
70.      In the cases in the main proceedings, it is for the referring court to ascertain whether the conditions laid down in Framework Decision 2008/909 as regards the taking charge by the Kingdom of Belgium of the enforcement of the sentences imposed on AR and HL have been satisfied.
71.      In the present case, it is apparent from the written observations of the Romanian Government in Case C‑722/23 that the Belgian judicial authority asked the Romanian judicial authority to provide it with the documents necessary to take charge of the enforcement of the four-year custodial sentence in respect of AR on Belgian territory, including the certificate expressing their consent to that effect, as required by Article 4(5) of Framework Decision 2008/909, documents which it received. Therefore, it must be held that the second condition for the application of Article 4(6) of Framework Decision 2002/584 is satisfied, since the Belgian judicial authority is capable of physically executing that sentence in accordance with its domestic law, namely Article 38(1) of the Law of 15 May 2012. The Belgian judicial authority must still assess whether there is a legitimate interest justifying the sentence imposed in the issuing Member State being enforced in the territory of the executing Member State. Generally speaking, it is for the referring court to carry out an overall assessment of all of the specific elements characterising AR’s situation,
establishing that there are connections between him and the Kingdom of Belgium that may lead to the conclusion that he is sufficiently integrated in Belgium such that the execution in that Member State of the sentence imposed on him in the issuing Member State will contribute to the attainment of the objective of social rehabilitation pursued by Article 4(6).
Nevertheless, in the specific situation where, as in the present case, the sentence cannot be enforced in the issuing Member State on the basis of Article 1(3) of that framework decision, I am of the opinion that, for that reason alone, there is a legitimate interest justifying the enforcement of that sentence in the territory of the executing Member State.
72.      In the light of all the foregoing, I am of the view that Article 4(6) of Framework Decision 2002/584 must be interpreted as meaning that the executing judicial authority, where it refuses to execute an EAW on the basis of the ground for non-execution provided for in
Article 1(3) thereof because there is a risk that the person concerned would, if surrendered to the issuing judicial authority, suffer a breach of his or her fundamental rights as a result of the conditions of detention in the issuing Member State, is required, in order to avoid impunity of that person, to examine whether it is necessary to order that that sentence be served in the territory of the executing Member State where it establishes that that person is a national of or resides in that Member State, provided that the procedure and the conditions laid down in Framework Decision 2008/909 are complied with with a view to effectively taking charge of that sentence in that territory.
D.      Additional observations
73.      To complete my analysis, I would like to make a few observations on the situations in which, unlike in the present joined cases, Article 4(6) of Framework Decision 2002/584 cannot be applied.
74.      In transposing that framework decision into their national law, the Member States, which have a margin of discretion, may have chosen not to transpose the ground for optional non-execution provided for in Article 4(6) thereof (50). Moreover, it may be the case that the requested person is not a national of, is not staying in, or is not a resident of the executing Member State. (51) In such situations, the question arises as to whether that person would go unpunished when he or she makes use of his or her freedom of movement to travel to a Member State other than that in which the criminal conviction was handed down and the refusal to execute the EAW is envisaged on the basis of Article 1(3) of that framework decision. (52)
75.      Framework Decisions 2002/584 and 2008/909 cannot lead to a requested person being able to evade the final conviction to which he or she has been subject. First, it follows from the case-law of the Court that, in order, inter alia, to ensure that the operation of the EAW is not brought to a standstill, the duty of sincere cooperation laid down in the first subparagraph of Article 4(3) TEU must inform the dialogue between the executing judicial authorities and the issuing ones.
It follows from the principle of sincere cooperation, inter alia, that the Member States are, in full mutual respect, to assist each other in carrying out tasks which flow from the Treaties. (53) Second, those framework decisions provide the issuing and executing judicial authorities with the means they must use to ensure that the sentence handed down in the issuing Member State is effectively executed in the only territory where that remains possible, namely that of the executing Member State, in order to comply with the objective of combating impunity pursued by Framework Decision 2002/584.
76.      In that regard, as is clear from Article 4(5) of Framework Decision 2008/909, the executing Member State may, on its own initiative, request the issuing Member State to forward the judgment together with the certificate. (54) I consider that the executing judicial authority is obliged to make such a request. As the Romanian Government submitted at the hearing, in the context of the objective set for the European Union to become an area of freedom, security and justice, the autonomous implementation of Article 4(5) of that framework decision contributes to combating impunity and the social rehabilitation of the sentenced person. However, requests made under Article 4(5) shall not create an obligation for that Member State to forward the judgment together with the certificate. Consequently, it is essential to obtain the consent of the issuing Member State. In my view, and as the French Government stated in its oral observations, if the executing judicial authority initiates a procedure for mutual recognition of the conviction decision
on the basis of that same framework decision, without disproportionately affecting the sentence handed down by the issuing judicial authorities, the latter will be prepared to accept that mutual recognition. Moreover, it seems to me to be consistent with the EAW mechanism that
the issuing
Member State, if the sentenced person is not surrendered, will be inclined, in order to avoid the risk of that person going unpunished, to accept that the sentence should be executed, with that person’s consent, in the territory of the executing Member State.
V.      Conclusion
77.      In the light of the foregoing considerations, I propose that the Court should answer the questions referred for a preliminary ruling by the Cour de cassation (Court of Cassation, Belgium) as follows:
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
the executing judicial authority, where it refuses to execute a European arrest warrant on the basis of the ground for non-execution provided for in
Article 1(3) of that framework decision because there is a risk that the person concerned would, if surrendered to the issuing judicial authority, suffer a breach of his or her fundamental rights as a result of the conditions of detention in the issuing Member State, is obliged, in order to avoid impunity of that person, to order that that sentence be served in the territory of the executing Member State where it establishes that that person is a national of or resides in that Member State, provided that the procedure and the conditions laid down in Council Framework Decision 2008/909/JHA 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 are complied with with a view to effectively taking charge of that sentence in that territory.
1      Original language: French.
i The names of the present cases are fictitious names. They do not correspond to the names of any parties to the proceedings.
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) (‘Framework Decision 2002/584’).
3      Judgment of 5 April 2016 (C‑404/15 and C‑659/15 PPU, ‘the judgment in Aranyosi and Căldăraru’, EU:C:2016:198).
4      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).
5      Moniteur belge of 22 December 2003, p. 60075.
6      Article 3 concerns the prohibition of torture.
7      Moniteur belge of 8 June 2012, p. 32117. Under that provision, ‘where the Investigation Chamber applies Article 6(4) of the [Law of 19 December 2003], its decision entails the recognition and execution of the custodial sentence or measure involving deprivation of liberty referred to in the judicial decision that is the subject of the [EAW]. The sentence shall then be executed in accordance with the provisions of this Law. The Public Prosecutor with territorial jurisdiction shall request the judgment, together with the certificate, from the [EAW] issuing authority and shall, if necessary, adapt the sentence in accordance with Article 18’.
8      Judgment of 17 December 2020 (C‑354/20 PPU and C‑412/20 PPU, EU:C:2020:1033, paragraph 62).
9      Judgment of 29 June 2017, Popławski (C‑579/15, ‘the judgment in Popławski  I’, EU:C:2017:503, paragraph 43).
10      Article 5 concerns the right to liberty and security.
11      Judgment of 21 December 2023, GN (Ground for refusal based on the best interests of the child) (C‑261/22, ‘the judgment in GN’, EU:C:2023:1017, paragraphs 35 to 37 and the case-law cited).
12      Judgment of 6 June 2023, O. G. (European arrest warrant issued against a third-country national) (C‑700/21, ‘the judgment in O. G.’, EU:C:2023:444, paragraph 34 and the case-law cited).
13      See judgment in GN
(paragraphs 33 and 34 and the case-law cited).
14      See, to that effect, judgment in GN
(paragraph 43 and the case-law cited).
15      See, to that effect, judgment of 29 July 2024, Alchaster (C‑202/24, EU:C:2024:649, paragraphs 52 to 54 and the case-law cited).
16      That provision reads as follows: ‘if the executing judicial authority finds the information communicated by the issuing Member State to be insufficient to allow it to decide on surrender, it shall request that the necessary supplementary information, in particular with respect to Articles 3 to 5 and Article 8, be furnished as a matter of urgency and may fix a time limit for the receipt thereof, taking into account the need to observe the time limits set in Article 17’.
17      See, to that effect, judgment in GN
(paragraph 49 and the case-law cited).
18      Opinion in E.D.L. (Ground for refusal based on illness) (C‑699/21, EU:C:2022:955, point 60).
19      In its written observations in Case C‑91/24, the French Government adds that it is unclear from the order for reference whether the surrender had been temporarily postponed on the basis of Article 23(4) of Framework Decision 2002/584, in accordance with which ‘the surrender may exceptionally be temporarily postponed for serious humanitarian reasons, for example if there are substantial grounds for believing that it would manifestly endanger the requested person’s life or health’, or that effective cooperation making full use of the instruments provided for in that framework decision in order to obtain guarantees has been implemented.
20      Judgment of 9 November 2023, Všeobecná úverová banka (C‑598/21, EU:C:2023:845, paragraph 42 and the case-law cited).
21      Judgment of 8 May 2025, Zimir (C‑662/23, EU:C:2025:326, paragraph 25 and the case-law cited).
22      See judgment of 31 January 2023, Puig Gordi and Others (C‑158/21, EU:C:2023:57, paragraphs 78 and 79).
23      See, to that effect, judgment in O. G. (paragraphs 46 and 47 and the case-law cited).
24      See judgment in O. G. (paragraph 48 and the case-law cited).
25      See judgment in O. G. (paragraph 49 and the case-law cited).
26      According to that government, the starting point for that ‘stratification’ is that the EAW is executed in accordance with Article 1(2) of Framework Decision 2002/584 unless: (i) there is a ground for mandatory or optional non-execution on the basis of Article 3 or 4 of that framework decision respectively, or (ii) non-execution is required on the basis of Article 1(3) thereof.
27      See judgment of 18 April 2023, E.D.L. (Ground for refusal based on illness) (C‑699/21, EU:C:2023:295, paragraph 44 and the case-law cited).
28      See, to that effect, judgment of 24 June 2019, Popławski (C‑573/17, ‘the judgment in Popławski  II’, EU:C:2019:530, paragraph 82 and the case-law cited).
29      See judgment in Popławski  I (paragraph 43).
30      See judgment in Popławski II
(paragraph 99 and the case-law cited).
31      See judgment of 29 April 2021, X (European Arrest Warrant –
Ne bis in idem) (C‑665/20 PPU, EU:C:2021:339, paragraph 58 and the case-law cited).
32      See judgment in O. G. (paragraphs 34 to 36 and the case-law cited).
33      See point 50 of this Opinion.
34      See, to that effect, judgment in Popławski  II (paragraph 92 and the case-law cited).
35      Such responsibility on the part of the executing judicial authorities for the execution of the sentence imposed by the issuing Member State echoes the well-known principle of international law ‘aut dedere aut punire/judicare’ (either extradite or punish/prosecute) deriving from the traditional extradition treaties which the EAW mechanism replaces. See, with regard to that principle, inter alia,
Costa, M.J., ‘Aut Dedere Aut Judicare’, in
Caeiro, P., et al. (eds.), Elgar Encyclopedia of Crime and Criminal Justice, Edward Elgar Publishing, Cheltenham, 2024, in particular pp. 178 to 192.
36      See, to that effect, judgment of 29 July 2024, Breian (C‑318/24 PPU, EU:C:2024:658, paragraphs 102 and 103 and the case-law cited).
37      See, with regard to the diversity in national transpositions of the grounds for non-execution of Framework Decision 2002/584, Bot, S., ‘Section
2. Une transposition délicate par l’autonomie procédurale conservée aux Etats membres’, Le mandat d’arrêt européen, Larcier, Brussels, 2009, pp. 233 to 246.
38      See, to that effect, Report from the Commission to the European Parliament and the Council on the implementation of Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (COM(2020) 270 final, in particular p. 18).
39      See, with regard to the difficulties faced by judicial authorities in applying Article 1(3) of that framework decision, Weyembergh, A., and Pinelli, L., ‘Detention Conditions in the Issuing Member State as a Ground for Non-Execution of the European Arrest Warrant: State of Play and Challenges Ahead’, European Criminal Law Review, Vol. 12, No 1, 2022, in particular pp. 37 to 39.
40      I note, moreover, that a solution consisting of imposing on the executing judicial authority the explicit obligation to execute the sentence itself has already been proposed in order to address the obstacles encountered in practice in the application of Article 1(3) of Framework Decision 2002/584. See, to that effect, ‘The EAW and Prison Conditions: Outcome report of the College thematic discussion’, Eurojust, May 2017, available only in English at the following address: https://op.europa.eu/fr/publication-detail/-/publication/9c1ffe17-8c64-11e7-b5c6-01aa75ed71a1.
41      See point 45 of this Opinion.
42      See judgment of 9 November 2023, Staatsanwaltschaft Aachen (C‑819/21, EU:C:2023:841, paragraph 19 and the case-law cited).
43      See judgment in Popławski II (paragraph 36).
44      Judgment of 11 March 2020, SF (European arrest warrant – Guarantee of return to the executing State) (C‑314/18, EU:C:2020:191, paragraph 51 and the case-law cited).
45      Case C‑305/22, EU:C:2024:508, points 41 to 48 (the judgment not yet having been delivered when this Opinion was drafted).
46      See, also, Commission Notice – Handbook on how to issue and execute a European Arrest Warrant (OJ C, C/2023/1270), in particular Sections
2.5.2 and 5.5.2.
47      See, to that effect, judgment of 9 November 2023, Staatsanwaltschaft Aachen (C‑819/21, EU:C:2023:841, paragraph 20).
48      See judgment of 15 April 2021, AV (Aggregate sentence) (C‑221/19, EU:C:2021:278, paragraph 35 and the case-law cited).
49      According to Article 13 of Framework Decision 2008/909, ‘as long as the enforcement of the sentence in the executing State has not begun, the issuing State may withdraw the certificate from that State, giving reasons for doing so. Upon withdrawal of the certificate, the executing State shall no longer enforce the sentence’.
50      See paragraph 54 of this Opinion.
51      See, in that regard, judgment of 5 September 2012, Lopes Da Silva Jorge (C‑42/11, EU:C:2012:517, paragraph 35 and the case-law cited).
52      See, in that regard, judgment of 25 July 2018, Generalstaatsanwaltschaft (Conditions of detention in Hungary) (C‑220/18 PPU, EU:C:2018:589, paragraph 85).
53      See judgment of 29 July 2024, Breian (C‑318/24 PPU, EU:C:2024:658, paragraph 93 and the case-law cited). Furthermore, the European Court of Human Rights has established, in the context of the EAW, a ‘positive procedural obligation to cooperate’ between the Member States, with reference to Article 2 of the ECHR and Article 2 of the Charter. See joint factsheet of the European Court of Human Rights and the European Union Agency for Fundamental Rights (FRA), entitled ‘European Arrest Warrant and Fundamental Rights – ECtHR and CJEU Case-Law’, updated on 28 February 2025, available in English and French at the following address: https://ks.echr.coe.int/documents/d/echr-ks/mandat-d-arret-europeen-et-droits-fondamentaux. This fact sheet indicates that its content is not binding on the European Court of Human Rights.
54      The issuing judicial authority may also make such a request on the basis of Article 4(1) of Framework Decision 2008/909.