62022CJ0261
JUDGMENT OF THE COURT (Grand Chamber)
21 December 2023 (
*1
)
(Reference for a preliminary ruling – Judicial cooperation in criminal matters – European arrest warrant – Framework Decision 2002/584/JHA – Article 1(3) – Article 15(2) – Surrender procedure between Member States – Grounds for non-execution – Charter of Fundamental Rights of the European Union – Article 7 – Respect for private and family life – Article 24(2) and (3) – Taking into consideration the best interests of the child – Right of every child to maintain on a regular basis a personal relationship and direct contact with both parents – Mother of young children living with her)
In Case C‑261/22,
REQUEST for a preliminary ruling under Article 267 TFEU from the Corte suprema di cassazione (Supreme Court of Cassation, Italy), made by decision of 19 April 2022, received at the Court on 19 April 2022, in the criminal proceedings against
GN,
interested party:
Procuratore generale presso la Corte d’appello di Bologna,
THE COURT (Grand Chamber),
composed of K. Lenaerts, President, L. Bay Larsen, Vice-President, K. Jürimäe (Rapporteur), C. Lycourgos, E. Regan, F. Biltgen and N. Piçarra, Presidents of Chambers, P.G. Xuereb, L.S. Rossi, I. Jarukaitis, A. Kumin, N. Jääskinen, N. Wahl, I. Ziemele and J. Passer, Judges,
Advocate General: T. Ćapeta,
Registrar: C. Di Bella, Administrator,
having regard to the written procedure and further to the hearing on 28 March 2023,
after considering the observations submitted on behalf of:
–
GN, by R. Ghini, avvocato,
–
the Procuratore generale presso la Corte d’appello di Bologna, by A. Scandellari, sostituto procuratore della Repubblica,
–
the Italian Government, by G. Palmieri, acting as Agent, and by S. Faraci, avvocato dello Stato,
–
the Hungarian Government, by M.Z. Fehér and K. Szíjjártó, acting as Agents,
–
the Netherlands Government, by M.K. Bulterman, J.M. Hoogveld and P.P. Huurnink, acting as Agents,
–
the Council of the European Union, by K. Pleśniak and A. Ştefănuc, acting as Agents,
–
the European Commission, by S. Grünheid and A. Spina, acting as Agents,
after hearing the Opinion of the Advocate General at the sitting on 13 July 2023,
gives the following
Judgment
1
This request for a preliminary ruling concerns, first, the interpretation of Article 1(2) and (3) and Articles 3 and 4 of Council Framework Decision 2002/584/JHA 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’), and second, the validity of those provisions having regard to Articles 7 and 24 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
2
The request has been made in the context of the execution, in Italy, of a European arrest warrant issued by the Belgian judicial authorities in respect of GN, with a view to enforcing a custodial sentence in Belgium.
Legal context
International law
3
The Convention on the Rights of the Child was adopted by the General Assembly of the United Nations on 20 November 1989 (United Nations Treaty Series, Vol. 1577, p. 3).
4
Article 3(1) of that convention provides:
‘In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.’
European Union law
5
Recital 6 of Framework Decision 2002/584 is worded as follows:
‘The European arrest warrant 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.’
6
Article 1 of that framework decision, entitled ‘Definition of the European arrest warrant and obligation to execute it’, provides:
‘1.   The European arrest warrant 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 European arrest warrant 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].’
7
Article 3 of that framework decision lists the grounds for mandatory non-execution of the European arrest warrant and Articles 4 and 4a list the grounds for optional non-execution thereof.
8
Article 7 of that framework decision, entitled ‘Recourse to the central authority’, provides, in paragraph 1 thereof, that each Member State may designate a central authority or, where its legal system so provides, more than one central authority to assist the competent judicial authorities.
9
Article 15 of Framework Decision 2002/584, entitled ‘Surrender decision’, provides:
‘1.   The executing judicial authority shall decide, within the time limits and under the conditions defined in this Framework Decision, whether the person is to be surrendered.
2.   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.
3.   The issuing judicial authority may at any time forward any additional useful information to the executing judicial authority.’
10
Article 17 of that framework decision sets out the time limits within which the decision to execute a European arrest warrant must be taken as well as the related procedures.
11
Under Article 23 of that framework decision, entitled ‘Time limits for surrender of the person’:
‘1.   The person requested shall be surrendered as soon as possible on a date agreed between the authorities concerned.
2.   He or she shall be surrendered no later than 10 days after the final decision on the execution of the European arrest warrant.
…
4.   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. The execution of the European arrest warrant shall take place as soon as these grounds have ceased to exist. The executing judicial authority shall immediately inform the issuing judicial authority and agree on a new surrender date. In that event, the surrender shall take place within 10 days of the new date thus agreed.
…’
Italian law
12
Article 2 of legge n. 69 – Disposizioni per conformare il diritto interno alla decisione quadro 2002/584/GAI del Consiglio, del 13 giugno 2002, relativa al mandato d’arresto europeo e alle procedure di consegna tra Stati membri (Law No 69 laying down provisions to bring domestic law into line with Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States) of 22 April 2005 (GURI No 98 of 29 April 2005, p. 6; ‘Law No 69/2005’), in the version resulting from decreto legislativo n. 10 (Legislative Decree No 10) of 2 February 2021 (GURI No 30 of 5 February 2021) (‘Legislative Decree No 10 of 2021’), applicable to the facts in the main proceedings, provides:
‘The execution of the European arrest warrant may not, under any circumstances, entail a breach of the overriding principles of the constitutional order of the State or of the inalienable rights of the individual recognised by the Constitution, of the fundamental rights and the fundamental legal principles enshrined in Article 6 [TEU] or of the fundamental rights guaranteed by the [European] Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 [(‘the ECHR’)] …’
13
Under Article 18 of that law:
‘The Court of Appeal shall refuse surrender in the following cases:
(a)
if the offence referred to in the European arrest warrant is extinguished by way of amnesty pursuant to Italian law, where jurisdiction in the matter lies with the Italian State;
(b)
if it appears that, vis-à-vis the requested person, in respect of the same acts, a criminal conviction or a judgment dismissing the charges with the force of res judicata has been handed down in Italy, or a final decision has been delivered in another Member State of the European Union, provided that, where there has been a conviction, the sentence has already been served or is in the process of being served, or may no longer be enforced under the law of the sentencing State;
(c)
if the person who is the subject of the European arrest warrant was under 14 years of age at the time when the offence was committed’.
14
In the version prior to the entry into force of Legislative Decree No 10 of 2021, Article 18 of Law No 69/2005 provided:
‘The Court of Appeal shall refuse surrender:
…
(p)
if the person whose surrender is requested is a pregnant woman or the mother of children under three years of age living with her, unless, in the case of a European arrest warrant issued in the course of proceedings, the need for preventive action underlying the restrictive measure of the issuing judicial authority is exceptionally serious;
…’
The dispute in the main proceedings and the questions referred for a preliminary ruling
15
On 26 June 2020, the Belgian judicial authorities issued a European arrest warrant in respect of GN for the purpose of enforcing a custodial sentence of five years, handed down in absentia by the rechtbank van eerste aanleg Antwerpen, afdeling Antwerpen (Court of First Instance, Antwerp, Antwerp Division, Belgium), for the offences of trafficking in human beings and facilitating illegal immigration, committed in Belgium between 18 September 2016 and 5 August 2017.
16
On 2 September 2021, GN was arrested in Bologna (Italy). At the time of her arrest, she was with her son, born in Ferrara (Italy) on 10 November 2018, who lived with her. She was, moreover, pregnant with a second child, who was born on 10 May 2022.
17
During the questioning which took place on 3 September 2021, GN did not consent to her surrender to the Belgian judicial authorities. Following a hearing held on 17 September 2021, the Corte d’appello di Bologna (Court of Appeal, Bologna, Italy), in its capacity as executing judicial authority, requested the Belgian judicial authorities to provide information concerning, first, the detailed arrangements for enforcement, in Belgium, of sentences imposed on mothers living with minor children, second, the custodial conditions to which GN would be subjected in the event of surrender, third, the measures that would be taken in relation to her minor child and, fourth, the possibility of a retrial in the proceedings that had culminated in her conviction in absentia.
18
By note of 5 October 2021, the parquet d’Anvers (Public Prosecutor’s Office, Antwerp, Belgium) informed the Corte d’appello di Bologna (Court of Appeal, Bologna) that responding to the questions raised came within the remit of the Service public fédéral Justice (Federal Public Service (Justice), Belgium).
19
By judgment of 15 October 2021, the Corte d’appello di Bologna (Court of Appeal, Bologna) refused to surrender GN to the Belgian judicial authorities and ordered her immediate release. According to that court, in the absence of any response from the Belgian judicial authorities to its questions, it was uncertain that the legal order of the issuing Member State provides for custodial arrangements comparable to those of the executing Member State, which protect the mother’s right not to be deprived of her relationship with her children and her right to care for them, and which ensure that children receive the necessary maternal and family assistance, as guaranteed by the Italian Constitution and by Article 3 of the Convention on the Rights of the Child and Article 24 of the Charter.
20
The Procuratore generale presso la Corte d’appello di Bologna (Prosecutor General at the Court of Appeal, Bologna, Italy) and GN each brought an appeal on a point of law against that judgment before the Corte suprema di cassazione (Supreme Court of Cassation, Italy), which is the referring court.
21
The referring court states that the provision of Law No 69/2005 that expressly referred, as a ground for refusing to execute a European arrest warrant, to the situation where the person who is the subject of that warrant is a pregnant woman or the mother of children under three years of age living with her, was repealed by Legislative Decree No 10 of 2021 in order to bring the Italian legislation into line with Framework Decision 2002/584, which does not make any reference to that situation as one of the grounds for mandatory or optional non-execution of the European arrest warrant.
22
Nevertheless, the referring court states that, if the legal order of the issuing Member State does not provide for measures protecting the right of children not to be deprived of their mother comparable to those provided for by Italian law, the surrender of that mother would lead to a breach of the fundamental rights protected by the Italian Constitution and the ECHR.
23
That said, according to the referring court, the European arrest warrant is a matter that has been fully harmonised. In those circumstances, that court is uncertain whether Framework Decision 2002/584 prohibits the executing judicial authority from refusing to execute the European arrest warrant in respect of a mother of young children where her surrender is incompatible with her right to respect for private and family life as well as with the best interests of her children. If that is the case, the referring court is uncertain whether that framework decision is compatible with Article 7 and Article 24(3) of the Charter, read in the light, in particular, of the case-law of the European Court of Human Rights on Article 8 ECHR.
24
In those circumstances, the Corte suprema di cassazione (Supreme Court of Cassation) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1)
Must Article 1(2) and (3) and Articles 3 and 4 of [Framework Decision 2002/584] be interpreted as meaning that they do not permit the executing judicial authority to refuse or in any case defer the surrender of a mother who has minor children living with her?
(2)
If the answer to the first question is in the affirmative, are Article 1(2) and (3) and Articles 3 and 4 of [Framework Decision 2002/584] compatible with Articles 7 and 24(3) of [the Charter], also considering the case-law of the European Court of Human Rights in relation to Article 8 [ECHR] and the constitutional traditions common to the Member States, in so far as they require the surrender of the mother, thus severing ties with minor children living with her without considering the best interest of the child?’
Procedure before the Court
25
The referring court requested that the present reference for a preliminary ruling be dealt with under the expedited procedure provided for in Article 105 of the Rules of Procedure of the Court of Justice.
26
That court stated that the case in the main proceedings affects the fundamental rights of a pregnant woman and her young child living with her, and that recourse to the expedited procedure is necessary in order to put an end to the remaining uncertainty regarding the future custody of that child. According to that court, the questions referred also raise issues which are common to a large number of cases pending before the courts of the Member States and which should be dealt with with the utmost urgency.
27
Article 105(1) of the Rules of Procedure provides that, at the request of the referring court or tribunal or, exceptionally, of his or her own motion, the President of the Court may, where the nature of the case requires that it be dealt with within a short time, after hearing the Judge-Rapporteur and the Advocate General, decide that a reference for a preliminary ruling is to be determined pursuant to an expedited procedure derogating from the provisions of those rules.
28
It must be borne in mind, in that regard, that such an expedited procedure is a procedural instrument intended to address matters of exceptional urgency (judgment of 21 December 2021, Randstad Italia, C‑497/20, EU:C:2021:1037, paragraph 37 and the case-law cited).
29
In the present case, the President of the Court decided, on 11 May 2022, after hearing the Judge-Rapporteur and the Advocate General, to refuse the request referred to in paragraph 25 above.
30
It is apparent from the request for a preliminary ruling that GN was released immediately, on foot of the judgment of 15 October 2021 of the Corte d’appello di Bologna (Court of Appeal, Bologna). Furthermore, the information submitted to the Court of Justice by the referring court does not demonstrate the existence of a risk in respect of the custody of GN’s children while the present reference for a preliminary ruling is being dealt with. Possible uncertainty as regards the consequences for that custody arising from the decision bringing the main proceedings to an end or the fact that a large number of persons or legal situations are potentially concerned by the questions referred is not, as such, a reason that establishes exceptional urgency, which is, however, necessary to justify an expedited procedure (see, to that effect, judgments of 22 September 2022, Bundesrepublik Deutschland (Administrative suspension of the transfer decision), C‑245/21 and C‑248/21, EU:C:2022:709, paragraph 34, and of 9 November 2023, Staatssecretaris van Justitie en Veiligheid (Concept of serious harm), C‑125/22, EU:C:2023:843, paragraph 30).
Consideration of the questions referred
The first question
31
By its first question, the referring court asks, in essence, whether Article 1(2) and (3) of Framework Decision 2002/584, read in the light of Article 7 and Article 24(2) and (3) of the Charter, must be interpreted as precluding the executing judicial authority from refusing to surrender the person who is the subject of a European arrest warrant on the ground that that person is the mother of young children living with her.
32
In the light of the referring court’s statements, the first question should be understood as being based on the premiss that, in the case in the main proceedings, the person who is the subject of the European arrest warrant has two young children living with her, in whose interests it is to continue to maintain on a regular basis a personal relationship and direct contact with their mother. In that context, that court is uncertain whether it may refuse to execute that arrest warrant, on the basis of Article 1(3) of Framework Decision 2002/584, read in conjunction with Article 7 and Article 24(2) and (3) of the Charter, on the ground that that person’s surrender could deprive her of such a relationship and such contact with her children.
33
As a preliminary point, it must be recalled that 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 (judgments of 22 February 2022, Openbaar Ministerie (Tribunal established by law in the issuing Member State), C‑562/21 PPU and C‑563/21 PPU, EU:C:2022:100, paragraph 40, and of 31 January 2023, Puig Gordi and Others, C‑158/21, EU:C:2023:57, paragraph 93).
34
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 (Opinion 2/13 (Accession of the European Union to the ECHR) of 18 December 2014, EU:C:2014:2454, paragraph 192, and judgment of 31 January 2023, Puig Gordi and Others, C‑158/21, EU:C:2023:57, paragraph 94).
35
In that respect, 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 (judgment of 22 February 2022, Openbaar Ministerie (Tribunal established by law in the issuing Member State), C‑562/21 PPU and C‑563/21 PPU, EU:C:2022:100, paragraph 42 and the case-law cited).
36
The principle of mutual recognition, which, according to recital 6 of Framework Decision 2002/584, constitutes the ‘cornerstone’ of judicial cooperation in criminal matters, is expressed in Article 1(2) thereof which lays down the rule that Member States are required to execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of the framework decision (judgment of 22 February 2022, Openbaar Ministerie (Tribunal established by law in the issuing Member State), C‑562/21 PPU and C‑563/21 PPU, EU:C:2022:100, paragraph 43 and the case-law cited).
37
It follows, first, that the executing judicial authorities may refuse to execute a European arrest warrant only on grounds stemming from Framework Decision 2002/584, as interpreted by the Court. Second, while execution of the European arrest warrant constitutes the rule, refusal to execute is intended to be an exception which must be interpreted strictly (judgment of 18 April 2023, E.D.L. (Ground for refusal based on illness), C‑699/21, EU:C:2023:295, paragraph 34 and the case-law cited).
38
That framework decision does not provide that the executing judicial authority may refuse to execute a European arrest warrant on the sole ground that the person who is the subject of that arrest warrant is the mother of young children living with her. Having regard to the principle of mutual trust which underlies the area of freedom, security and justice, there is a presumption that the conditions of detention of the mother of young children and of the care of those children in the issuing Member State are appropriate to such a situation, whether in prison accommodation or in the context of alternative arrangements ensuring that that mother remains available to that Member State’s judicial authorities or that those children are placed outside the prison accommodation.
39
That said, it is apparent from Article 1(3) of Framework Decision 2002/584 that that framework decision is not to have the effect of modifying the obligation to respect the fundamental rights guaranteed by the Charter.
40
In that regard, it must be borne in mind that, first, Article 7 of the Charter enshrines the right of every person to respect for his or her private and family life, and second, Article 24(2) of the Charter provides that, in all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration.
41
As is apparent from Article 3(1) of the Convention on the Rights of the Child, to which the explanations relating to Article 24 of the Charter expressly refer, Article 24(2) of the Charter also applies to decisions which, like a European arrest warrant issued in respect of the mother of young children, are not addressed to those children but have significant consequences for them (see, to that effect, judgment of 11 March 2021, État belge (Return of the parent of a minor), C‑112/20, EU:C:2021:197, paragraphs 36 and 37).
42
The mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life (judgment of 14 December 2021, Stolichna obshtina, rayon Pancharevo, C‑490/20, EU:C:2021:1008, paragraph 61). Article 24(3) of the Charter states that every child has the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests. As asserted by the Procuratore generale presso la Corte d’appello di Bologna (Prosecutor General at the Court of Appeal, Bologna), the Council of the European Union and the European Commission, determining the best interests of the child comes within the scope of an assessment that must take account of all the specific circumstances (see, by analogy, judgments of 26 March 2019, SM (Child placed under Algerian kafala), C‑129/18, EU:C:2019:248, paragraph 73; of 14 January 2021, Staatssecretaris van Justitie en Veiligheid (Return of an unaccompanied minor), C‑441/19, EU:C:2021:9, paragraphs 46 and 60; and of 11 March 2021, État belge (Return of the parent of a minor), C‑112/20, EU:C:2021:197, paragraph 27).
43
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 European arrest warrant mechanism, to ensure, subject to final review by the Court, that the requirements inherent in the fundamental rights enshrined in Article 7 of the Charter and Article 24(2) and (3) thereof are safeguarded, by refraining from any measure capable of undermining them, the existence of a real risk that the person in respect of whom a European arrest warrant has been issued and/or his or her children 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 European arrest warrant on the basis of Article 1(3) of Framework Decision 2002/584 (see, to that effect, judgments of 22 February 2022, Openbaar Ministerie (Tribunal established by law in the issuing Member State), C‑562/21 PPU and C‑563/21 PPU, EU:C:2022:100, paragraph 46, and of 31 January 2023, Puig Gordi and Others, C‑158/21, EU:C:2023:57, paragraphs 72 and 96).
44
In that regard, it is important to point out that the assessment of the risk referred to in the preceding paragraph of the present judgment must be carried out by the executing judicial authority having regard to the standard of protection of fundamental rights guaranteed by EU law (see, to that effect, judgment of 5 April 2016, Aranyosi and Căldăraru, C‑404/15 and C‑659/15 PPU, EU:C:2016:198, paragraph 88). Consequently, a lack of certainty on the part of that authority as regards the existence, in the issuing Member State, of conditions comparable to those existing in the executing Member State concerning the detention of mothers of young children and the care of those children cannot permit the inference that that risk has been established.
45
By contrast, where the executing judicial authority called upon to decide on the surrender of a person in respect of whom a European arrest warrant has been issued has evidence indicating that there is such a risk on account of either systemic or generalised deficiencies in the conditions of detention of mothers of young children or of the care of those children in the issuing Member State, or deficiencies in those conditions affecting more specifically an objectively identifiable group of persons, such as children with disabilities, that authority must ascertain, specifically and precisely, whether there are substantial grounds for believing that the persons concerned will run that risk on account of those conditions.
46
The executing judicial authority must thus assess whether there is a real risk of breach of the fundamental rights enshrined in Article 7 and Article 24(2) and (3) of the Charter in the context of a two-step examination involving an analysis on the basis of different criteria, with the result that those steps cannot overlap with one another and must be carried out successively (see, to that effect, judgment of 31 January 2023, Puig Gordi and Others, C‑158/21, EU:C:2023:57, paragraphs 101, 109 and 110).
47
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 breach, in the issuing Member State, of those fundamental rights on account of deficiencies such as those referred to in paragraph 45 above. That information may be obtained from, inter alia, judgments of international courts, decisions, reports and other documents produced by bodies of the Council of Europe or under the aegis of the United Nations, or information collected in the database of the European Union Agency for Fundamental Rights (FRA) on the conditions of criminal detention in the European Union (Criminal Detention Database) (see, to that effect, judgments of 5 April 2016, Aranyosi and Căldăraru, C‑404/15 and C‑659/15 PPU, EU:C:2016:198, paragraph 89, and of 31 January 2023, Puig Gordi and Others, C‑158/21, EU:C:2023:57, paragraph 102).
48
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, referred to in the preceding paragraph of the present judgment, are liable to have an impact on the conditions of detention of the person who is the subject of the European arrest warrant or of the care of his or her children, and whether, having regard to their personal situation, there are substantial grounds for believing that that person or his or her children will run a real risk of breach of those fundamental rights (see, to that effect, judgments of 5 April 2016, Aranyosi and Căldăraru, C‑404/15 and C‑659/15 PPU, EU:C:2016:198, paragraph 94, and of 31 January 2023, Puig Gordi and Others, C‑158/21, EU:C:2023:57, paragraph 106).
49
To that end, 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) 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 and the care of that person’s children will be organised (see, to that effect, judgment of 5 April 2016, Aranyosi and Căldăraru, C‑404/15 and C‑659/15 PPU, EU:C:2016:198, paragraph 95).
50
In that regard, it must be pointed out that the information which the executing judicial authority is entitled to request may concern both the first and the second steps of the examination which that authority must carry out in accordance with paragraph 46 above. However, that authority may not request information from the issuing judicial authority concerning only the second step of that examination when it considers that the existence of systemic or generalised deficiencies or of deficiencies affecting an objectively identifiable group of persons to which the person concerned or his or her children belong, as referred to in paragraph 45 above, has not been established (see, to that effect, judgment of 31 January 2023, Puig Gordi and Others, C‑158/21, EU:C:2023:57, paragraph 135).
51
In accordance with Article 15(2) of Framework Decision 2002/584, the executing judicial authority may fix a time limit for the receipt of the supplementary information requested from the issuing judicial authority. That time limit must be adjusted to the particular case, so as to allow to that authority the time required to collect the information, if necessary by seeking assistance to that end from the central authority or one of the central authorities of the issuing Member State, under Article 7 of that framework decision. Under Article 15(2) of that framework decision, that time limit must however take into account the need to observe the time limits set in Article 17 thereof (judgment of 5 April 2016, Aranyosi and Căldăraru, C‑404/15 and C‑659/15 PPU, EU:C:2016:198, paragraph 97).
52
The issuing judicial authority is, for its part, required to provide the executing judicial authority with the supplementary information requested, failing which the principle of sincere cooperation will not be observed (see, to that effect, judgments of 5 April 2016, Aranyosi and Căldăraru, C‑404/15 and C‑659/15 PPU, EU:C:2016:198, paragraph 97, and of 25 July 2018, Generalstaatsanwaltschaft (Conditions of detention in Hungary), C‑220/18 PPU, EU:C:2018:589, paragraph 64).
53
In order, in particular, to ensure that the operation of the European arrest warrant 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 (judgments of 25 July 2018, Generalstaatsanwaltschaft (Conditions of detention in Hungary), C‑220/18 PPU, EU:C:2018:589, paragraph 104, and of 31 January 2023, Puig Gordi and Others, C‑158/21, EU:C:2023:57, paragraph 131).
54
In a situation where the issuing judicial authority does not respond in a satisfactory manner to the request for supplementary information of the executing judicial authority, the latter must then carry out an overall assessment of all the information available to it in the context of each of the two steps referred to in paragraphs 47 and 48 above (see, to that effect, judgment of 25 July 2018, Generalstaatsanwaltschaft (Conditions of detention in Hungary), C‑220/18 PPU, EU:C:2018:589, paragraph 114).
55
It is only where the executing judicial authority considers, having regard to all the information available to it, including the possible absence of assurances provided by the issuing judicial authority, that there are, first, deficiencies such as those referred to in paragraph 45 above in the issuing Member State and, second, substantial grounds for believing that, in the light of their personal situation, the person concerned and/or his or her children will run a real risk of breach of the fundamental rights enshrined in Article 7 and Article 24(2) and (3) of the Charter, that the executing judicial authority must refrain, on the basis of Article 1(3) of Framework Decision 2002/584, from giving effect to a European arrest warrant in respect of that person. Otherwise, it must execute that warrant, in accordance with the obligation laid down in Article 1(2) of that framework decision.
56
Lastly, it must be stated, with regard to the possibility of deferring the surrender raised by the referring court in its first question, that, while it is possible, on the basis of Article 23(4) of Framework Decision 2002/584, to postpone the surrender of the person who is the subject of a European arrest warrant, that possibility may be exercised only temporarily, exceptionally and for serious humanitarian reasons. Having regard to the wording of that provision and the general scheme of Article 23 of that framework decision, such a postponement is, furthermore, impracticable for a considerable period of time (see, to that effect, judgment of 18 April 2023, E.D.L. (Ground for refusal based on illness), C‑699/21, EU:C:2023:295, paragraph 51).
57
In the light of all the grounds set out above, the answer to the first question is that Article 1(2) and (3) of Framework Decision 2002/584, read in the light of Article 7 and Article 24(2) and (3) of the Charter, must be interpreted as precluding the executing judicial authority from refusing to surrender the person who is the subject of a European arrest warrant on the ground that that person is the mother of young children living with her, unless, first, that authority has available to it information demonstrating that there is a real risk of breach of that person’s fundamental right to respect for her private and family life enshrined in Article 7 of the Charter and of disregard for the best interests of her children, as protected by Article 24(2) and (3) of the Charter, on account of systemic or generalised deficiencies in the conditions of detention of mothers of young children and of the care of those children in the issuing Member State, and second, there are substantial grounds for believing that, in the light of their personal situation, the persons concerned will run that risk on account of those conditions.
The second question
58
In view of the answer given to the first question, there is no need to answer the second question.
Costs
59
Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Grand Chamber) hereby rules:
Article 1(2) and (3) 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, read in the light of Article 7 and Article 24(2) and (3) of the Charter of Fundamental Rights of the European Union,
must be interpreted as precluding the executing judicial authority from refusing to surrender the person who is the subject of a European arrest warrant on the ground that that person is the mother of young children living with her, unless, first, that authority has available to it information demonstrating that there is a real risk of breach of that person’s fundamental right to respect for her private and family life enshrined in Article 7 of the Charter of Fundamental Rights and of disregard for the best interests of her children, as protected by Article 24(2) and (3) of that charter, on account of systemic or generalised deficiencies in the conditions of detention of mothers of young children and of the care of those children in the issuing Member State, and second, there are substantial grounds for believing that, in the light of their personal situation, the persons concerned will run that risk on account of those conditions.
[Signatures]
(
*1
)	Language of the case: Italian.