OPINION OF ADVOCATE GENERAL
CAMPOS SÁNCHEZ-BORDONA
delivered on 26 November 2019(1)
Case C‑625/19 PPU
Openbaar Ministerie
v
XD
(Request for a preliminary ruling
from the rechtbank Amsterdam (District Court, Amsterdam, Netherlands))
(Reference for a preliminary ruling — Police and judicial cooperation in criminal matters — Framework Decision 2002/584/JHA — European arrest warrant — Issuing judicial authority — European arrest warrant issued by a Swedish Public Prosecutor — Condition concerning the existence of an effective judicial remedy against the decision to issue a European arrest warrant)
1.        Once again, the Court of Justice is dealing with references for a preliminary ruling in which it will have to decide whether the Prosecution Authority (in this case, the Swedish authority) may be regarded as an ‘issuing judicial authority’ competent to issue a European arrest warrant (EAW), within the meaning of Article 6(1) of Framework Decision 2002/584/JHA. (2)
2.        The doubts raised by the referring court in this case and in Cases C‑626/19 PPU and C‑627/19 PPU join those raised by a Luxembourg court (Case C‑566/19 PPU) and refer, in particular, to the interpretation to be given to the judgment of the Court of Justice in OG and PI (Public Prosecutors of Lübeck and of Zwickau). (3)
3.        Those same doubts have been raised in respect of the Prosecution Authorities of Belgium (Case C‑627/19 PPU) and France (Cases C‑566/19 PPU and C‑626/19 PPU), on which I deliver my Opinions on this same date.
4.        Specifically, the question in this reference for a preliminary ruling is the same as one of those raised in Case C‑626/19 PPU, joined with Case C‑566/19 PPU, and concerns EAWs issued by the Prosecution Authority for the purposes of conducting a criminal prosecution.
5.        While in principle my position remains as set out in OG (Public Prosecutor of Lübeck) and PI (Public Prosecutor of Zwickau) (4) and in PF (Lithuanian Prosecutor General’s Office), (5) in the remainder of my Opinion today I address the interpretation of the judgment in OG and PI (Public Prosecutors of Lübeck and of Zwickau) and of the judgment given on 9 October 2019 (6) in another similar case.
I.      Legislative framework
A.      EU law
6.        I refer to recitals 5, 6, 8, 10 and 12 and Articles 1 and 9 of the Framework Decision, which are set out in the Opinion in OG and PI (Public Prosecutors of Lübeck and of Zwickau).
B.      National law
7.        According to the information provided by the Swedish Government, Article 2 of the Förordning (2003:1178) om överlämnade till Sverige enligt en europeisk arresteringsorder (Regulation No 1178 of 2003 on the surrender of a person in Sweden under an [EAW] (‘the EAW Regulation’) establishes that an EAW is issued by a Public Prosecutor for the purposes both of conducting a criminal prosecution and of executing a custodial sentence or detention order.
8.        Under Article 3 of the EAW Regulation, an EAW may be issued for the purposes of conducting a criminal prosecution where a provisional arrest warrant for the requested person has been issued on the grounds that he is suspected of having committed an offence punishable by a custodial sentence of at least one year.
9.        According to a statement by the Swedish Government, a provisional arrest warrant is issued by a court on the application of the Public Prosecutor. Once the court issues the provisional arrest warrant, the Public Prosecutor decides completely independently whether to issue the EAW, having particular regard to its proportionality.
II.    Proceedings and question referred
10.      On 27 May 2019 the Swedish Prosecution Authority issued an EAW for the purposes of conducting a criminal prosecution against XD. (7)
11.      Following the arrest of XD in the Netherlands on 28 May 2019, the EAW was forwarded to the rechtbank Amsterdam (District Court, Amsterdam, Netherlands), which has decided to refer the following question for a preliminary ruling:
‘Can a Public Prosecutor who participates in the administration of justice in the issuing Member State, who acts independently in the execution of those of its responsibilities which are inherent in the issuing of a European arrest warrant, and who has issued an EAW, be regarded as an issuing judicial authority within the meaning of Article 6(1) of [the] Framework Decision … if a judge in the issuing Member State has assessed the conditions for issuing an EAW and, in particular, its proportionality prior to the actual decision of that Public Prosecutor to issue the EAW?’
III. Proceedings before the Court of Justice
12.      The case was lodged with the Court of Justice on 22 August 2019. As XD is being held in custody, the referring court requested that the case be dealt with under the urgent procedure, which was agreed to by the Court of Justice.
13.      Written observations have been submitted by XD, the Netherlands and Swedish Governments, the Netherlands Prosecution Authority and the Commission.
14.      The public hearing took place on 24 October 2019 and was held jointly with the hearings in cases C‑566/19 PPU, C‑626/19 PPU and C‑627/19 PPU. The hearing was attended by JR, YC, XD, ZB, the Luxembourg Prosecution Authority, the Netherlands Prosecution Authority, the Netherlands, French, Swedish, Belgian, Irish, Spanish, Italian and Finnish Governments, and the Commission.
IV.    Analysis
A.      Preliminary consideration
15.      The question asked in this case is the same as the first question referred in case C‑626/19 PPU, on which I give my view in the Opinion which I also deliver on this same date.
16.      I can therefore do no more than refer in full to that Opinion. In it, I examine not only judicial oversight of EAWs issued by the Prosecution Authority (the point at issue in this reference), but also whether the members of this institution have the characteristics required to be regarded as an ‘issuing judicial authority’ within the meaning of the Framework Decision.
17.      In these proceedings, the rechtbank Amsterdam (District Court, Amsterdam) takes for granted that the Swedish Prosecution Authority can issue an EAW, on the grounds that it satisfies the characteristics of independence that define an ‘issuing judicial authority’ within the meaning of Article 6(1) of the Framework Decision.
18.      As the independence of the Swedish Prosecution Authority has not been a matter of debate in this case, the information needed in order to assess whether, in the light of its constitutional status and organisational and functional structure, the members of that institution have the characteristics required by the Court of Justice in its judgment of 27 May 2019 in PF (Prosecutor General of Lithuania) (8) has not been provided. Consequently I cannot express an opinion on this point.
B.      Judicial review of the EAW issued by the Prosecution Authority
19.      According to the information provided by the referring court, in this case the EAW was issued by the Public Prosecutor following the issue of a national arrest warrant (NAW) by a court which would already have examined the requirements for issuing the EAW including, specifically, its proportionality.
20.      The situation is, therefore, similar to that in case C‑626/19 PPU, in which an examination of the case led me to conclude that judicial oversight undertaken at the time the NAW is issued cannot, by its very nature, satisfy ‘the requirements inherent in effective judicial protection’ referred to in paragraph 75 of the judgment in OG and PI (Public Prosecutors of Lübeck and of Zwickau), in that such protection is always at the request of the interested party and is provided through a procedure in which he has been able to intervene and take part in the exercise of his right to a defence. (9)
21.      Consequently, the examination of whether the requirements for issuing an EAW that is issued by a Public Prosecutor who may be regarded as an ‘issuing judicial authority’ within the meaning of Article 6(1) of the Framework Decision have been satisfied may take place before the EAW is issued, but it does not exclude the right of the requested person to institute court proceedings to challenge that EAW once it has been issued (unless that would jeopardise the criminal proceedings) or once he has been notified.
V.      Conclusion
22.      In the light of the above, I recommend that the Court of Justice should reply to the rechtbank Amsterdam (District Court, Amsterdam, Netherlands) in the following terms:
A person requested under a European arrest warrant issued by the Prosecution Authority of a Member State which is involved in the administration of justice and whose independent status is guaranteed must be able to challenge the warrant in a court of that State, without needing to wait until he is surrendered, as soon as the warrant has been issued (unless that would jeopardise the criminal proceedings) or once he has been notified.
1      Original language: Spanish.
2      Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (OJ 2002 L 190, p. 1), as amended by Council Framework Decision 2009/299/JHA of 26 February 2009 (OJ 2009 L 81, p. 24; ‘the Framework Decision’).
3      Judgment of 27 May 2019, C‑508/18 and C‑82/19 PPU, EU:C:2019:456 (‘the judgment in OG and PI (Public Prosecutors of Lübeck and of Zwickau)’).
4      Cases C‑508/18 and C‑82/19 PPU, EU:C:2019:337 (‘the Opinion in OG and PI (Public Prosecutors of Lübeck and of Zwickau)’).
5      Case C‑509/18, EU:C:2019:338 (‘the Opinion in PF (Lithuanian Prosecutor General’s Office)’).
6      Case C‑489/19 PPU, NJ (Public Prosecutor’s Office, Vienna), EU:C:2019:849 (‘the judgment in NJ (Public Prosecutor’s Office, Vienna)’).
7      According to the Public Prosecutor’s Office, XD was suspected of drug trafficking.
8      Case C‑509/18, EU:C:2019:457 (‘judgment in PF (Prosecutor General of Lithuania)’).
9      Opinion in C‑566/19 PPU and C‑626/19 PPU, point 84.