Provisional text
OPINION OF ADVOCATE GENERAL
RICHARD DE LA TOUR
delivered on 22 January 2026 (1)
Case C‑583/24 [Tagu] (i)
Criminal proceedings
against
DZ,
other party:
Openbaar Ministerie
(Request for a preliminary ruling from the rechtbank Amsterdam (District Court, Amsterdam, Netherlands))
( Reference for a preliminary ruling – Judicial cooperation in criminal matters – European arrest warrant – Framework Decision 2002/584/JHA – Article 1(3) – Framework Decision 2004/757/JHA – Article 2(1)(a) and (2) – Article 4(1) and (2)(b) – Minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking – Charter of Fundamental Rights of the European Union – Article 49(3) – Proportionality of penalties – Verification by the judicial authority of the executing Member State )
I.      Introduction
1.        Consideration by the issuing and executing judicial authorities of the principle of proportionality when implementing Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, (2) as amended by Council Framework Decision 2009/299/JHA of 26 February 2009, (3) has already been written about extensively, a phenomenon that has certainly been amplified by the fact that Framework Decision 2002/584 is silent on that point. (4)
2.        That framework decision does not contain any express requirement for the judicial authorities of the Member States to comply with the principle of proportionality in its scope. (5) To compensate for that silence, that requirement has been stipulated in the various handbooks on how to issue and execute a European arrest warrant, (6) and by the European Parliament. (7)
3.        In its 2023 handbook, the Commission thus states that a European arrest warrant ‘should always be proportional to its aim’. (8) From that perspective, issuing judicial authorities ‘should consider whether other judicial cooperation measures could be used instead of issuing [a European arrest warrant]’, in so far as such measures could be ‘effective but less coercive’. More generally, the Commission points out that ‘applying the proportionality check before issuing [a European arrest warrant] can reinforce mutual trust among Member State’s competent authorities’, which contributes to ‘the effective operation of the [European arrest warrant] throughout the [European] Union’. (9)
4.        Although it is not expressly mentioned in Framework Decision 2002/584, the requirement of proportionality therefore underpins the surrender process established by that framework decision. That must be so, since, under Article 5(4) TEU, ‘under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties’. In view of the consequences of a European arrest warrant on the rights of requested persons and in order to guarantee the effectiveness and speed of surrender procedures, it is, therefore, particularly important that the issuing judicial authorities examine carefully and with a degree of restraint in each case whether such a warrant is necessary.
5.        The Court itself, at the instigation of several of its Advocates General, (10) has emphasised the need for a proportionality check by the issuing judicial authority. Since the issuing of a European arrest warrant may result in the arrest of the person for whom it has been issued and may therefore prejudice that person’s individual freedom, the Court considers that it is for the judicial authority that is considering issuing a European arrest warrant to examine whether, in the light of the particular circumstances of the case, it is proportionate to issue that warrant. (11) In that regard, the Court appears to draw a distinction between a European arrest warrant issued for the purpose of prosecution and one issued for the purpose of executing a sentence, since it has specified that, in the latter case, the proportionality of that warrant results from the sentence imposed, which, as is clear from Article 2(1) of Framework Decision 2002/584, must consist of a custodial sentence or a detention order of at least four months. (12)
6.        As regards the executing judicial authority, it does not follow from the Court’s case-law that it is required to examine the proportionality of the European arrest warrant it is required to execute. (13)
7.        Moreover, the Commission emphasises in its 2023 handbook that the proportionality check of a European arrest warrant is a matter for the issuing judicial authority alone. It notes, in that regard, that Framework Decision 2002/584 ‘does not provide for the possibility of evaluation of the proportionality of [a European arrest warrant] by the executing Member State’. According to that institution, that is ‘in line with the principle of mutual recognition’. If, however, the executing judicial authority were to have serious doubts as to the proportionality of a European arrest warrant, the route of ‘direct communication’ between that authority and the issuing judicial authority should be preferred in order to find ‘a more suitable solution’. (14) The Commission considers that such situations should arise only ‘in exceptional circumstances’. (15)
8.        Those clarifications having been made, it should be noted at the outset that the present request for a preliminary ruling asks the Court to examine from a particular angle the issue of proportionality in the context of the surrender mechanism, even though, as I shall explain below, the division of the checks to be carried out by the issuing and executing judicial authorities respectively is also at the heart of the legal debate.
9.        This request will therefore require the Court to rule on whether the executing judicial authority may and, if so, under what conditions, refuse to execute a European arrest warrant issued for the purpose of executing a custodial sentence where it considers that the surrender of the requested person would entail a risk of infringement of the principle of proportionality of penalties, enshrined in Article 49(3) of the Charter of Fundamental Rights of the European Union. (16) From that perspective, it is not so much the verification of compliance with the principle of proportionality at the stage of issuing the European arrest warrant that is at issue, but rather the verification of compliance with that principle at the stage of the execution of that warrant, as regards the sentence imposed in the issuing Member State, and the European arrest warrant is merely the procedural instrument used to enforce that sentence. (17)
10.      More specifically, the present request for a preliminary ruling concerns the interpretation of Article 1(3) of Framework Decision 2002/584, read in conjunction with Article 49(3) of the Charter and with Article 2(1) and (2), Article 4(1) and (2) and Article 5 of Council Framework Decision 2004/757/JHA of 25 October 2004 laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking. (18)
11.      The request has been made in criminal proceedings brought against DZ concerning a European arrest warrant issued against him for the purpose of enforcing a final custodial sentence of seven years for an offence consisting of the introduction into Romania of ‘risk and high-risk’ drugs.
12.      In that context, it will be necessary to determine whether and, if so, to what extent and under what conditions, the executing judicial authority may refuse to surrender DZ where it considers that such a sentence is disproportionate and that the execution of the European arrest warrant would thus undermine the principle of proportionality of penalties, enshrined in Article 49(3) of the Charter. In particular, is that authority required to carry out a two-step examination in order to be able to refuse that surrender on the basis of Article 1(3) of Framework Decision 2002/584? If so, what specific content should be given to each of the two steps of that examination?
II.    Facts of the main proceedings and the questions referred for a preliminary ruling
13.      On 9 January 2024, the Judecătoria Constanța (Court of First Instance, Constanța, Romania) issued a European arrest warrant against DZ. The rechtbank Amsterdam (District Court, Amsterdam, Netherlands), which is the referring court, must, as the executing judicial authority, rule on the execution of that warrant. That court considers that none of the grounds for non-execution referred to in Articles 3, 4 and 4a of Framework Decision 2002/584 can be relied on.
14.      The European arrest warrant seeks the enforcement of a custodial sentence of seven years, which has become final following a decision of the Curtea de Apel Constanța (Court of Appeal, Constanța, Romania), of 20 December 2023, following a trial at which DZ appeared in person. (19) The referring court states that it is apparent from that warrant that that conviction concerns the unauthorised importation into Romania, committed by DZ together with his wife, of three grams of cannabis and four pills containing methylenedioxymethamphetamine (MDMA). That court states that those acts are punishable in Romania under Article 3 of Legea nr. 143/2000 privind prevenirea și combaterea traficului și consumului ilicit de droguri (Law No 143/2000 on preventing and combating illegal drug trafficking and consumption) (20) of 26 July 2000, in the version applicable to the dispute in the main proceedings (‘Law No 143/2000’), (21) and Article 46(2) of the Codul penal (Criminal Code). (22) Under Romanian law, this constitutes a single offence, namely the ‘[introduction] into the country of risk and high-risk drugs’.
15.      The referring court also states that, in so far as ‘high-risk’ drugs are concerned, Article 3 of Law No 143/2000 is intended to implement Article 4(2)(b) of Framework Decision 2004/757. (23) Whereas the latter provision requires Member States to criminalise that act with provision for a maximum sentence of at least 5 to 10 years’ imprisonment, it is apparent from the additional information provided by the issuing judicial authority and by the Romanian office of the European Union Agency for Criminal Justice Cooperation (Eurojust) that, at the time when the offences was committed, the offence of ‘introducing into the country of risk and high-risk drugs’ was punishable by a minimum penalty of 7 years’ imprisonment.
16.      Having regard to the quantities of drugs indicated in the European arrest warrant and the statement made by DZ during the hearing before the referring court – namely that the drugs were intended for personal consumption by his wife, who used them as pain relief (24) – that court notes that the drugs in question were small quantities of ‘risk’ and ‘high risk’ drugs for personal consumption. In any event, that court notes that DZ and his wife were in possession of those small quantities of drugs with no intention of trafficking them.
17.      Romanian law provides for opportunities to reduce the sentence, in particular by taking into account mitigating circumstances. However, in response to a question, the issuing judicial authority stated that, in the case of DZ, there were no aggravating circumstances, such as recidivism, nor were there any mitigating circumstances. Even if DZ had been eligible for a reduction in the sentence and that reduction had been applied, suspension of the execution of the sentence would not have been possible because of the length of that sentence. According to that authority, if grounds for reducing the sentence had been applied, the sentence would have been four years and eight months and would therefore have been more than three years. (25)
18.      The referring court infers from those factors that, apart from the circumstances justifying a reduction in the sentence, Romanian legislation required the court, in the case of a conviction for the unauthorised importation of ‘risk and high-risk drugs’ at the time the offences were committed, to impose a minimum sentence of seven years’ imprisonment regardless of whether that conduct involved a small quantity of drugs or whether that conduct was committed for personal consumption, or at least with no intention of trafficking the drugs.
19.      However, to the extent that one or more of the statutory options for reducing the sentence were applicable, that legislation allowed the court to reduce that minimum sentence for the unauthorised importation of small quantities of ‘risk and high-risk drugs’ for personal consumption, or at least with no intention of trafficking them, by half (where Article 15 of Law No 143/2000 was applied) or by up to one third (where one or more of the other options for reducing the sentence were applied).
20.      The referring court states that DZ’s lawyer opposed his surrender, arguing that the custodial sentence imposed is disproportionate and therefore contrary to Article 49(3) of the Charter. That court considers that, in view of the arguments put forward by that counsel, the minimum sentence which Romanian law requires the Romanian criminal court to adopt in this case, viewed in conjunction with the limited statutory possibilities for reducing the sentence, raises questions from the point of view of the principle of proportionality of penalties referred to in that provision.
21.      In the first place, according to that court, the question arises as to whether, where the requested person invokes a real risk of a sentence being executed that is disproportionate to the offence on which the European arrest warrant is based, the executing judicial authority must verify whether that risk may lead to a refusal of surrender.
22.      The referring court notes, in that regard, that it is not certain that it can be inferred from the judgment of 14 July 2022, Procureur général près la cour d’appel d’Angers, (26) that reliance on Article 1(3) of Framework Decision 2002/584 in conjunction with Article 49(3) of the Charter would not be possible.
23.      In the second place, according to that court, several additional questions arise as to how the executing judicial authority should assess whether there is a real risk of a final disproportionate sentence being executed in the issuing Member State.
24.      Thus, the question arises as to what test that authority should apply in the context of that assessment and what role in that test is played by the obligation to impose a minimum sentence, considered in conjunction with the possibilities of reducing the sentence and suspending enforcement of the sentence provided for by the law of the issuing Member State. In addition, since the custodial sentence imposed on the person sought is final, the question arises as to whether any guarantee on the part of the authorities of the issuing Member State – for example, that the person sought may be pardoned or that he or she may still apply for a review of the judgment imposing the sentence – would still be able to remove, in relation to the person sought, any real risk that may be established of infringement of Article 49(3) of the Charter.
25.      In those circumstances, the rechtbank Amsterdam (District Court, Amsterdam) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:
‘(1)      Should Article 1(3) of [Framework Decision 2002/584], read in conjunction with Article 49(3) of the Charter … and with Article 2(1)(a) and (2), Article 4(1) and (2)(b) and Article 5 of [Framework Decision 2004/757], be interpreted as meaning that
if the person sought opposes his or her surrender on the grounds that he or she has been finally sentenced in the issuing Member State to a disproportionate minimum term of imprisonment for the importation of small quantities of drugs for personal consumption, or at least for the importation of small quantities of drugs without the intention of trafficking them,
the executing judicial authority must examine whether, in the event of surrender for the purpose of executing that sentence, the person sought would face a real risk of serving a sentence that is disproportionate to the offence on which the European arrest warrant is based?
(2)      If the answer to [the first question] is in the affirmative:
(a)      what test should the executing judicial authority apply in assessing whether there is a real risk of the execution of a final disproportionate sentence as referred to in [the first question];
(b)      what role in that test is played by the fact that the law of the issuing Member State,
implementing Article 4(2)(b) of [Framework Decision 2004/757], and the consequent obligation of criminalisation with provision for a maximum sentence of at least 5 to 10 years’ imprisonment,
obliges the national court to impose a minimum sentence of seven years’ imprisonment in the event of conviction for, in essence, the importation of drugs that are most harmful to health, irrespective of the quantity of drugs to which such conduct relates and irrespective of whether such conduct was intended to provide for personal consumption or was carried out with a view to trafficking such drugs, when:
–        the court may only reduce that mandatory minimum sentence by up to one third in total if there are circumstances that reduce the seriousness of the offence or the threat posed by the offender or if the person concerned confesses to the offence, or by up to one half in total if the person concerned facilitates the identification and prosecution of other persons who have committed drug-related offences, and
–        the length of that (possibly reduced) minimum sentence precludes the court from ordering the suspension of its enforcement;
(c)      can any real risk of the execution of a final disproportionate sentence as referred to in [the first question] still be removed by a guarantee on the part of the issuing Member State, and what form might such a guarantee take?’
26.      DZ, the Openbaar Ministerie (Public Prosecutor’s Office, Netherlands), the Romanian, Hungarian and Polish Governments, Ireland and the Commission submitted written observations and, together with the German Government, participated at the hearing held on 23 September 2025, during which they replied to the questions put by the Court for an oral answer.
III. Analysis
27.      By its questions, which I propose to examine together, the referring court essentially asks the Court to rule on whether, and, if so, under what conditions and to what extent, Article 1(3) of Framework Decision 2002/584, read in the light of Article 49(3) of the Charter, allows an executing judicial authority to refuse to execute a European arrest warrant issued for the purpose of executing a custodial sentence, where that authority considers that the sentence imposed is excessive and that the execution of that warrant could undermine the principle of proportionality of penalties, enshrined in that provision of the Charter.
28.      The questions raised by the referring court arise essentially from the differences between Netherlands criminal law and Romanian criminal law as regards the degree of severity of the punishment for an offence such as that at issue in the main proceedings, namely the introduction into Romania of ‘high-risk’ drugs. While, according to the explanations provided by the Public Prosecutor’s Office at the hearing, the introduction into Romania of drugs belonging to that category, in quantities of up to 10
grams, would be punishable by a term of imprisonment of one to three weeks in the Netherlands, the minimum term of imprisonment is seven years in Romania. Those questions are therefore based on the finding that the lower limit of the custodial sentence laid down by Romanian law is high in comparison with the sentence provided for under Netherlands law. In addition, the possibilities available to the Romanian courts to reduce the sentence or suspend its enforcement are limited.
29.      In order to answer the referring court’s questions, it should be noted 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. (27)
30.      In the field governed by that framework decision, the principle of mutual recognition, which, according to recital 6, 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 European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of that framework decision. (28)
31.      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 the execution of a European arrest warrant constitutes the rule, refusal to execute that warrant is intended to be an exception, which must therefore be interpreted strictly. (29) As regards such grounds, that framework decision lays down, in Article 3 thereof, the grounds for mandatory non-execution of a European arrest warrant and, in Articles 4 and 4a, the grounds for optional non-execution of that warrant. (30)
32.      After finding that none of those grounds relates to the disproportionate nature of the sentence handed down in the issuing Member State (A), I shall explain what conclusions may be drawn from Article 1(3) of Framework Decision 2002/584 where there is a risk of infringement of the principle of proportionality of penalties, enshrined in Article 49(3) of the Charter (B).
A.      The absence in Framework Decision 2002/584 of a ground for non-execution relating to the disproportionate nature of the sentence handed down in the issuing Member State
33.      Framework Decision 2002/584 does not provide that the executing judicial authority may refuse to execute a European arrest warrant for the purpose of executing a custodial sentence on the sole ground that that sentence is disproportionate to the offence which it seeks to punish.
34.      Such a finding may also be inferred from the case-law of the Court.
35.      Thus, in the case which gave rise to the judgment in Procureur général près la cour d’appel d’Angers, the Court was called upon to interpret the condition of double criminality of the act provided for in Article 2(4) and Article 4(1) of Framework Decision 2002/584. In particular, the Court held that that condition is met where the European arrest warrant is issued for the purpose of enforcing a custodial sentence, even if that sentence was imposed in the issuing Member State for the commission by the requested person of a single offence consisting of multiple acts, only some of which constitute a criminal offence in the executing Member State. (31)
36.      Having been asked by the referring court to examine that issue also from the perspective of Article 49(3) of the Charter, the Court made clear that such an interpretation is consistent with the principle of proportionality of criminal offences and penalties, provided for in that provision. (32)
37.      In that regard, the Court pointed out, first, that, in the system established by Framework Decision 2002/584, it is for the judicial authorities of the issuing Member State to ensure compliance with the principle of proportionality of criminal offences and penalties, adding, more generally, that observance of the rights of the person whose surrender is sought falls primarily within the responsibility of the issuing Member State. (33)
38.      Second, the Court noted that possible disproportionality of the sentence handed down in the issuing Member State is not among the grounds for mandatory and optional non-execution of a European arrest warrant set out in Articles 3, 4 and 4a of Framework Decision 2002/584. (34)
39.      Furthermore, the Court stated that the condition of double criminality of the act requires only verification of whether the factual elements of the offence which gave rise to the issuing of that European arrest warrant would also, per se, constitute an offence under the law of the executing Member State if they were present in that State. (35)
40.      The Court inferred from those factors that it is therefore not for the executing judicial authority, when assessing that condition, to assess the sentence handed down in the issuing Member State in the light of Article 49(3) of the Charter. (36)
41.      It is true that the Court’s answer in its judgment in Procureur général près la cour d’appel d’Angers must be analysed in the light of the condition of double criminality of the act, in so far as the Court merely emphasises that its interpretation of that condition is compatible with the principle of proportionality of criminal offences and penalties, enshrined in Article 49(3) of the Charter.
42.      The fact remains that, by the general wording of paragraphs 65 and 66 of that judgment, the Court suggests that an assessment by the executing judicial authority of the possible disproportionality of the sentence handed down in the issuing Member State appears to be incompatible with the system established by Framework Decision 2002/584. It seems to me that the Court should, in the context of the present proceedings, state clearly that a refusal to execute a European arrest warrant cannot, in principle, be based on the assessment carried out by the executing judicial authority that, on the basis of various factors of assessment including its own national law, the sentence handed down in the issuing Member State is disproportionate. Such an assessment by that judicial authority is, in my view, neither desirable nor possible in practice.
43.      That assessment by the executing judicial authority of the proportionality of the sentence is not desirable, since it would lead that authority to re-examine the substance of the sentence handed down in the issuing Member State, calling into question, as the case may be, its merits. That authority would thus turn into an appeal body before which the requested person could challenge the proportionality of the sentence imposed on him or her by a court of the issuing Member State. Such an appeal body can be located only in that Member State and cannot be relocated to the executing Member State, whose judicial authorities cannot assume such a role. Moreover, the executing judicial authority does not have heads of jurisdiction enabling it to apply rules of substantive criminal law of the executing Member State to an offence the punishment of which is a matter for the courts of the issuing Member State, one of which has independently delivered the judgment forming the basis of the European arrest warrant whose execution is sought.
44.      Thus, it is not for the executing judicial authority to assess whether the sentence imposed by a court of the issuing Member State is appropriate for attaining the objectives pursued by the legislation of that Member State and whether it does not go beyond what is necessary to attain those objectives. I would add that, for obvious reasons of legal certainty, the final judgment handed down in the issuing Member State cannot be called into question at the stage of its enforcement, by the executing judicial authority, as this would undermine the principle of res judicata.
45.      In addition, verification by the executing judicial authority of the proportionality of the sentence handed down in the issuing Member State is fundamentally contrary to the principle of mutual recognition. (37) I would point out that that principle presupposes that the Member States have mutual trust in their criminal justice systems and that each Member State accepts the application of the criminal law in force in the other Member States, even though the implementation of its own national law might produce a different outcome. (38) That means that the executing judicial authority cannot call into question the proportionality of penalties by referring to its own criminal law, (39) giving precedence to its own assessment of the proportionality of penalties, irrespective of the rules laid down by the substantive criminal law of the issuing Member State. It should also be pointed out that the differences in the criminal law of the Member States reflect the diversity of the choices made by them in the area of criminal policy, (40) according to the priorities defined by the national legislatures, (41) including in the area of substantive criminal law, which is subject to minimum harmonisation within the European Union. In that regard, it is important to avoid a situation where some Member States become, to the detriment of the objective of combating impunity and the rights of victims, a place of refuge for convicted persons on the ground that they punish certain offences less severely. It should also be noted that, as the Court has already held, even though Framework Decision 2002/584 lists, in Article 2(2) thereof, categories of offences for the purposes of its implementation, the actual definition of those offences and the penalties applicable are those which follow from the law of the issuing Member State. That framework decision does not seek to harmonise substantive criminal law, that is to say the criminal offences in question in respect of their constituent elements or of the penalties which they attract. (42)
46.      In addition to those observations, it seems difficult, if not impossible, for the executing judicial authority to carry out a rigorous and informed assessment of the proportionality of the sentence imposed by a court of the issuing Member State, for the simple reason that the trial did not take place before it, it does not have the complete file and it is not familiar with the specific features of the criminal justice system of that Member State. (43) The exchange of information provided for in Article 15(2) and (3) of Framework Decision 2002/584 does not seem to me to be capable of remedying that problem, since it is intended to enable the executing judicial authority to decide on surrender and not to provide it with the information that would enable it to assess the merits of the sentence handed down in the issuing Member State. (44)
47.      More generally, such a solution fails to have regard to the fact that the purpose of that framework decision is not to harmonise the substantive criminal law of the Member States, and therefore the diversity of rules in this area cannot, by giving the executing judicial authority the possibility of reviewing compliance by a court of the issuing Member State with the principle of proportionality of penalties, lead to the paralysis of the surrender mechanism established by that framework decision. In order to avoid that risk, it is therefore essential to ensure that compliance with the principle of proportionality of penalties is, in principle, solely a matter for the courts of the issuing Member State, under the conditions laid down by the criminal law of that Member State. To decide otherwise would inevitably undermine the objective of establishing a simplified and effective system in order to facilitate and accelerate surrender between Member States.
48.      However, it cannot be completely ruled out that, in exceptional circumstances, a risk of breach of the principle of proportionality of penalties could lead the executing judicial authority to refuse to execute a European arrest warrant. I note, moreover, that, in its judgment in Procureur général près la cour d’appel d’Angers, the Court did not rule on whether a risk of breach of the principle of proportionality of penalties, provided for in Article 49(3) of the Charter, could, on the basis of Article 1(3) of Framework Decision 2002/584, constitute an independent ground for refusal to execute a European arrest warrant.
B.      The conclusions to be drawn from Article 1(3) of Framework Decision 2002/584 where there is a risk of breach of the principle of proportionality of penalties, enshrined in Article 49(3) of the Charter
49.      It follows from Article 1(3) of Framework Decision 2002/584 that that decision is not to have the effect of modifying the obligation to observe fundamental rights guaranteed by the Charter.
50.      That obligation is binding on the Member States when they decide on the surrender of a person, given that a decision on such surrender constitutes an implementation of EU law within the meaning of Article 51(1) of the Charter. The executing judicial authorities of the Member States are therefore required, when adopting that decision, to ensure respect for the fundamental rights afforded by the Charter to the person who is the subject of a European arrest warrant. (45)
51.      In that context, it is important to point out that Article 49(3) of the Charter provides that the severity of penalties must not be disproportionate to the criminal offence. That provision applies where a national provision implements EU law. (46) In accordance with the principle of proportionality, the punitive measures provided for by national legislation must not go beyond what is necessary in order to attain the objectives legitimately pursued by that legislation. The severity of the sanctions must be commensurate with the seriousness of the infringements for which they are imposed, in particular by ensuring a genuinely deterrent effect, while not going beyond what is necessary to attain those objectives. (47)
52.      Moreover, the principle of proportionality requires that the individual circumstances of the particular case are taken into account when determining the penalty and setting its level. (48) In order to assess the proportionality of penalties, account must also be taken of the possibility for national courts to amend the categorisation as set out in the bill of indictment, that possibility being capable of leading to a less severe penalty, and of the possibility to vary the penalty depending on the seriousness of the offence identified. (49)
53.      On the basis of Article 1(3) of Framework Decision 2002/584, the Court has identified an independent ground which may, if certain conditions are met, justify, in exceptional circumstances, a refusal to surrender on the part of the executing judicial authority where there is a risk of infringement of the fundamental rights of the requested person. Until now, the possibility of relying on such a ground has been considered in relation to a risk of infringement of the fundamental rights guaranteed in Article 4 (prohibition of torture and inhuman or degrading treatment or punishment), Article 7 (right to respect for family and private life) and Article 47 (right to an effective remedy before an independent and impartial tribunal previously established by law) of the Charter.
54.      In my view, there is no reason to exclude outright and categorically the possibility that a risk of infringement of the fundamental right enshrined in Article 49(3) of the Charter may also justify, in exceptional circumstances, a refusal to surrender on the basis of Article 1(3) of Framework Decision 2002/584. I also note that the Court, in its judgment in Alchaster, albeit in the context of interpreting another act of EU law, (50) has already held that the executing judicial authorities of the Member States are required, when adopting a decision on surrender, to ensure respect for the fundamental rights arising from Article 49(1) of the Charter, which states, inter alia, that no heavier penalty is to be imposed than that which was applicable at the time the criminal offence was committed. That assessment should, in my view, be capable of extending to Article 49(3) of the Charter. (51)
55.      Consequently, the existence of a risk of infringement of the fundamental right protected by Article 49(3) of the Charter is, in my view, capable of allowing the executing judicial authority to refuse, following an appropriate examination, to give effect to a European arrest warrant.
56.      As regards the manner in which such an examination is carried out, I consider that the Court should not depart from its case-law which seeks to preserve the exceptional nature of a refusal to surrender based on Article 1(3) of Framework Decision 2002/584 by making the verification of a risk of infringement of fundamental rights subject to a two-step examination.
57.      In that regard, it is clear from the Court’s case-law that the assessment, during a procedure for the execution of a European arrest warrant, of whether there is a real risk of a breach of the fundamental rights enshrined in Articles 4, 7, 24 and 47 of the Charter must, in principle, be carried out by means of an examination in two separate steps which cannot overlap with one another, in so far as they involve an analysis on the basis of different criteria, and which must therefore be carried out in turn. (52)
58.      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. (53)
59.      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 a European arrest warrant 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. (54)
60.      When assessing whether the execution of a European arrest warrant is likely to result in a risk of infringement of fundamental rights, the executing judicial authority must therefore distance itself from the specific case and return to it only if it detects the existence in the issuing Member State of either systemic or generalised deficiencies or of deficiencies affecting an objectively identifiable group of persons. A systemic analysis therefore, in principle, precedes an individual analysis.
61.      The implementation of the ground for refusal to surrender based on Article 1(3) of Framework Decision 2002/584 is therefore strictly circumscribed by the Court, and requires the executing judicial authority to carry out a rigorous and demanding examination. That is justified by the finding that the simplified and effective system for the surrender of convicted or suspected persons established by Framework Decision 2002/584 has as its basis the high level of trust which must exist between the Member States and the principle of mutual recognition. (55) Therefore, the principle of mutual trust requires each of the Member 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. (56) Consequently, when Member States implement EU law, they may, under that law, be required to presume that fundamental rights have been observed by the other Member States, so that not only may they not demand a higher level of national protection of fundamental rights from another Member State than that provided by EU law, but also, save in exceptional cases, they may not check whether that other Member State has actually, in a specific case, observed the fundamental rights guaranteed by the European Union. (57)
62.      It is in that context of the presumption of respect for fundamental rights by the issuing Member State which stems from the principle of mutual trust that the Court has emphasised that the obligation to find that there are systemic or generalised deficiencies or deficiencies affecting more specifically an objectively identifiable group of persons before being able to verify, specifically and precisely, whether the person who is the subject of a European arrest warrant runs a real risk of a breach of a fundamental right is precisely aimed at preventing such an investigation from being conducted outside exceptional cases. (58)
63.      The Court emphasised that compliance with that obligation makes it possible, in particular, to ensure the division of responsibilities between the issuing Member State and the executing Member State as regards safeguarding the requirements inherent in the fundamental rights arising from the full application of the principles of mutual trust and mutual recognition which underpin the operation of the European arrest warrant mechanism. (59)
64.      As I stated in my Opinion in Puig Gordi and Others, (60) there can be no question that, as authorities responsible for implementing Framework Decision 2002/584, the issuing and executing judicial authorities are required to observe the fundamental rights protected by the Charter. However, in order for the system of surrender established by that framework decision to work, the relevant responsibilities must, in accordance with the principle of mutual trust, be shared between those two authorities. If the issuing judicial authority and the executing judicial authority were allowed to carry out the same checks, the efficacy and speed of the surrender would be compromised. Moreover, mutual trust, by nature, opposes the carrying out of cross-checks by each of the authorities in order to verify the observance of fundamental rights in the Member State to which the other authority belongs. According to that logic, any refusal to execute a European arrest warrant based on the executing judicial authority’s finding that there is a risk of infringement of fundamental rights in the issuing Member State must be exceptional. (61)
65.      Although the Court has been able occasionally to exclude the obligation for the executing judicial authority to conduct, initially, a systemic examination, that is only in cases where such an examination proves inappropriate for the purpose of assessing the alleged risk of infringement of fundamental rights. That is the case, from the perspective of Article 4 of the Charter which sets out an absolute right, where the person whose surrender is sought suffers from serious chronic illnesses of indefinite duration which are likely to deteriorate significantly in the event of surrender. (62) However, the requirement that the refusal to execute the European arrest warrant be exceptional remains in that situation. The Court imposes, in that situation, a minimum level of severity exceeding the unavoidable level of suffering inherent in detention in order to justify such a refusal, namely that the surrender of a requested person, who is seriously ill, would expose him or her to a real risk of a significant reduction in his or her life expectancy or of a rapid, significant and irreversible deterioration in his or her state of health. (63)
66.      I consider that there is no reason to add a new exception to the requirement for a two-step examination in the context of the present case. I therefore consider that the assessment of a risk of infringement of Article 49(3) of the Charter in the event of the execution of a European arrest warrant requires, as a first step, a systemic examination.
67.      Consequently, it is for the executing judicial authority, where the person who is the subject of a European arrest warrant claims to have been sentenced to a disproportionate sentence and, thus, to be exposed to a risk of infringement of Article 49(3) of the Charter in the event of surrender, to assess the merits of that allegation in the context of a two-step examination.
68.      It follows that, where that person claims that he or she will be exposed to such a risk, but the executing judicial authority considers that the information at its disposal does not constitute objective, reliable, specific and properly updated information to demonstrate the existence either of systemic or generalised deficiencies or deficiencies affecting the judicial protection of an objectively identifiable group of persons, in relation to the application of that principle in the issuing Member State, that authority cannot refuse to execute that European arrest warrant on the ground alleged by that person. (64) There is no valid reason for the executing judicial authority to presume that the principle of proportionality of penalties has not been observed in the issuing Member State, since that judicial authority is, on the contrary, required to base its analysis on compliance with that principle, in accordance with the principle of mutual trust. (65)
69.      It is important, in that regard, to recall that the observance of fundamental rights in the context of proceedings relating to a European arrest warrant falls primarily within the responsibility of the issuing Member State. (66) It follows that the executing judicial authority must place its trust in the courts of the issuing Member State. (67) In the absence of such trust, once allegations such as those at issue in the main proceedings have been brought to the attention of the executing judicial authority, it would be led to review the application, by the courts of the issuing Member State, of the substantive criminal law of that Member State in an individual case, which would run counter to the principle of mutual recognition underlying Framework Decision 2002/584. It follows from the Court’s settled case-law that that framework decision, read in the light of the provisions of the Charter, cannot be interpreted in such a way as to call into question the effectiveness of the system of judicial cooperation between the Member States. (68)
70.      As regards the content of the two-step examination to be carried out by the executing judicial authority where a risk of infringement of the principle of proportionality of penalties enshrined in Article 49(3) of the Charter is invoked, the two steps of that examination may be described as follows.
71.      As regards the first step, the executing judicial authority should, in order to determine whether such deficiencies are established, carry out an overall assessment of the rules in force in the issuing Member State in order to determine whether they deprive national courts, for certain categories of criminal offences, of their power to take into account the individual circumstances of the particular case by individualising the sentence. In my view, the executing judicial authority could consider that those deficiencies are established if it is apparent from that overall assessment that the persons convicted of offences falling within those categories are, generally, in that Member State, deprived of the benefit of individualisation of the sentence. (69)
72.      As Advocate General Bot stated in his Opinion in Aranyosi and Căldăraru, (70) ‘at the stage of the imposition of the penalty, the principle of the individualisation of the penalty precludes the rule of an automatic and entirely fixed penalty. The court will decide on the penalty according to the specific characteristics of the offender, as they emerge from inter alia the nature of the offence committed, the circumstances of its commission, the social enquiry report, victim and witness statements, psychological and psychiatric reports and the possibilities of reintegration offered by the specific characteristics of that individual’. The principle that sentences are to be tailored to the individual thus enables the conduct of the convicted person to be taken into account as well as his or her character and financial, family and social situation. (71) The individualisation of the sentence therefore contributes to the imposition of a penalty which is proportionate.
73.      Thus, where the legal system of the issuing Member State provides for rules enabling the national court to individualise the sentence according to the nature and seriousness of the offence and the personal circumstances of the defendant, the risk of that person being sentenced to a disproportionate penalty may, in principle, be ruled out. That is a fortiori the case where compliance by that court with that principle can be reviewed by way of appeal, as in the main proceedings.
74.      I would also point out that, in my view, the finding that the national court’s power to individualise the sentence must be exercised within certain limits under the law of the issuing Member State, such as the setting of a ratio for the reduction of the sentence in the event of mitigating circumstances which is provided for in Romanian law or the introduction of minimum sentences, is not sufficient to establish the existence of systemic, generalised or categorical deficiencies in that Member State. Such deficiencies can be established only if the national court is prevented by its national law from individualising the sentence and not if it can exercise that power only within certain limits.
75.      As a second step, where the risk alleged by the requested person arises from the fact that, if surrendered, that person will have to serve a disproportionate sentence, the existence of such a risk should be established only if, in the light of the rules applicable in the issuing Member State, there is a manifest risk of infringement of that principle. (72) That would be the case where the sentence handed down clearly exceeds with an extreme degree of severity what is necessary to punish the offence in question.
76.      In that regard, the finding that, for the same criminal offence, there is a significant difference between the penalty incurred in the issuing Member State and that in the executing Member State is not sufficient to justify such a finding. The criminal law of the issuing Member State cannot be the appropriate point of comparison, since the level of protection guaranteed by Article 49(3) of the Charter must be determined at EU level and not at that of a single Member State. (73) It follows that the executing judicial authority cannot apply a higher standard as regards compliance with the principle of proportionality of penalties than that guaranteed by that provision. (74) Moreover, a difference between Member States can be explained by differences in criminal policy, which are inevitable in the absence of complete harmonisation of substantive criminal law rules between Member States.
77.      Where, in accordance with Article 83(1) TFEU, minimum rules concerning the definition of criminal offences and sanctions are adopted at EU level in one of the areas of particularly serious crime with a cross-border dimension listed in the second subparagraph of that provision, those rules may also provide the executing judicial authority with useful guidance, where the situation which gave rise to the conviction falls within the scope of the EU act providing for those rules. In the present case, that point of comparison does not seem to me to be decisive since, first, under Article 2(2) of Framework Decision 2004/757, (75) conduct such as the importation of drugs is excluded from the scope of that framework decision ‘when it is committed by its perpetrators exclusively for their own personal consumption as defined by national law’, which appears to be the case here according to DZ. Second, the discretion enjoyed by the Member States in such a context is clear from recital 4 of Framework Decision 2004/757, which provides that ‘the exclusion of certain types of behaviour as regards personal consumption from the scope of [that] Framework Decision does not constitute a Council guideline on how Member States should deal with these other cases in their national legislation’. (76)
78.      I would add that the requirement that the risk of breach of the principle of proportionality of penalties must be manifest does not mean, in my view, that the sentence handed down must necessarily be inhuman and degrading, within the meaning of Article 4 of the Charter. It is clear from the case-law of the European Court of Human Rights that the ‘gross disproportionality’ between the offence and the penalty may be examined in the light of Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. (77) However, I consider that the executing judicial authority could find that the sentence handed down in the issuing Member State clearly exceeds with an extreme degree of severity what is necessary to punish the offence in question, without that sentence necessarily being inhuman or degrading within the meaning of Article 4 of the Charter.
79.      In the present case, the explanation of Romanian law given before the Court does not seem to me to reveal the existence of either systemic or generalised deficiencies or of deficiencies affecting an objectively identifiable group of persons to which DZ belongs, in accordance with the principle of proportionality of penalties. Although the minimum penalty threshold is set at a level which may appear to be high, namely seven years, a number of factors allow the court to individualise the sentence, which may lead it to reduce the sentence handed down to below that minimum threshold.
80.      First, under Article 75(2)(b) of the Criminal Code, (78) read together with Article 76(1) thereof, the special limits of the penalty (lower and upper) may be reduced by one third in the event of mitigating circumstances. The Romanian Government states in its written observations that the application of those provisions may result in a reduction in the sentence from seven years to four years and eight months. (79)
81.      Next, under Article 375 of the Codul de Procedură Penală (Code of Criminal Procedure), entitled ‘Plea bargaining procedure’, read together with Article 396(10) thereof, the special limits of the penalty (lower and upper) may be reduced by one third if the person concerned admits their guilt and if the court finds the same facts as those admitted by that person. The Romanian Government states in its written observations that the application of those provisions may result in a reduction in the length of the sentence from 4
years and 8
months to 1 120
days, thus 3
years, 1
month and 10
days. (80)
82.      Lastly, under Article 15 of Law No 143/2000, if, during the criminal proceedings, the accused person reports other persons who have committed drug-related offences and assists the authorities in identifying and prosecuting them, he or she is to benefit from a reduction by half of the penalty limits provided for by law. The Romanian Government states in its written observations that the application of that provision may result in a reduction in the sentence from 1 120
days, thus 3
years, 1
month and 10
days, to 560
days, thus 1
year, 6
months and 20
days. (81)
83.      In addition to those possibilities of reducing the sentence, the Romanian court may suspend the sentence, under Article 91 of the Criminal Code, in the case of a sentence of up to three years. (82) Moreover, Romanian law does not appear to deprive the national court of the possibility of amending the categorisation of the offence as compared with that set out in the bill of indictment, that possibility being capable of leading to a less severe penalty. (83)
84.      While accepting all those clarifications and calculations with the necessary caution, in so far as the application of Romanian law is concerned, I note that the information available to the Court tends to show that the court which imposed the seven-year prison sentence on DZ was not prevented by the provisions of its national law from individualising the sentence, taking into account all the individual circumstances of the case. That court was therefore able to adjust the sentence according to the seriousness of the offence identified, reducing it, where appropriate, to below the minimum threshold of seven years. Thus, under Romanian law, that court had the possibility of taking into account factors such as the small quantity of drugs involved and the fact that the importation of those drugs appeared to have been for the personal consumption of DZ and his wife as mitigating circumstances in order to reduce the sentence in the proportions laid down by Romanian law. (84) The question of whether mitigating circumstances should have been taken into account in the present case was a matter for the Romanian court alone to assess, based in particular on the evidence available to it and the conduct of DZ. I would also point out that the judgment at first instance was open to appeal, in which the proportionality of the sentence imposed on DZ could be reviewed by the Curtea de Apel Constanța (Court of Appeal, Constanța).
85.      I would also point out that Article 15(2) of Framework Decision 2002/584 expressly provides that, 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 is to request that the necessary supplementary information be furnished as a matter of urgency. In addition, in accordance with Article 15(3) of that framework decision, the issuing judicial authority may at any time forward any additional useful information to the executing judicial authority. (85) It may be inferred from the case-law of the Court that, when examining the applicable rules in the issuing Member State, the executing judicial authority cannot refuse to execute a European arrest warrant on the basis of information concerning those rules which it has obtained itself, and in respect of which it has not requested supplementary information from the issuing judicial authority. (86) In addition to the rules relating to the determination of the sentence, information such as that relating to the procedures for enforcement of the sentence, (87) the possible existence of a right to appeal on a point of law and rules governing pardons could, where appropriate, be requested from the issuing judicial authority.
IV.    Conclusion
86.      Having regard to all of the foregoing considerations, I propose that the Court should answer the questions referred for a preliminary ruling by the rechtbank Amsterdam (District Court, Amsterdam, Netherlands) as follows:
Article 1(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 conjunction with Article 49(3) of the Charter of Fundamental Rights of the European Union,
must be interpreted as meaning that:
the executing judicial authority called upon to decide on the surrender of a person for whom a European arrest warrant has been issued for the purpose of executing a custodial sentence cannot refuse to execute that warrant on the ground that that person is at risk, following his or her surrender to the issuing Member State, of having to serve a sentence that is contrary to the principle of proportionality of penalties enshrined in that provision of the Charter of Fundamental Rights, unless:
–        first, that judicial authority has objective, reliable, specific and properly updated information showing that there are systemic or generalised deficiencies or deficiencies affecting an objectively identifiable group of persons to which the person concerned belongs, in accordance with the principle of proportionality of penalties enshrined in that provision of the Charter of Fundamental Rights, which implies that the rules in force in the issuing Member State deprive national courts, for certain categories of criminal offences, of their power to take into account the individual circumstances of the particular case by individualising the sentence, and
–        second, that judicial authority finds that, in the particular circumstances of the case in question, there are substantial grounds for believing that that person, having regard to the finding that the sentence handed down in the issuing Member State clearly exceeds with an extreme degree of severity what is necessary to punish the offence in question, will manifestly run such a risk in the event of being surrendered to that Member State.
1      Original language: French.
i      The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings.
2      OJ 2002 L 190, p. 1.
3      OJ 2009 L 81, p. 24, ‘Framework Decision 2002/584’.
4      See, inter alia, Carrera, S., Guild, E., and Hernanz, N., ‘Europe’s most wanted? Recalibrating Trust in the European Arrest Warrant System’, CEPS Papers in Liberty and Security in Europe, Centre for European Policy Studies, Brussels, No 55, 2013, in particular Section
3.1, entitled ‘Proportionality’; Helenius, D., ‘Mutual Recognition in Criminal Matters and the Principle of Proportionality: Effective Proportionality or Proportionate Effectiveness?’, New Journal of European Criminal Law, Vol. 5, No 3, Intersentia, Mortsel, 2014, pp. 349 to 369; Glerum, V., and Kijlstra, H., ‘EAW: Next steps, Will Pandora’s Box Be Opened?’, Review of European and Comparative Law, Vol. 54, No 3, Jean-Paul
II Catholic University of Lublin, Lublin, 2023, pp. 125 to 145; Klaus, W., Włodarczyk-Madejska, J., and Wzorek, D., ‘In the Pursuit of Justice: (Ab)Use of the European Arrest Warrant in the Polish Criminal Justice System’, Central and Eastern European Migration Review, Vol. 10, No 1, Centre of Migration Research, University of Warsaw, Warsaw, 2021, pp. 95 to 117; Klip, A., ‘Transposition and Implementation of the Framework Decision’, Report and recommendations, ImprovEAW Research Project, available at: https://improveaw.eu/media/90, in particular Section
2.5.4, entitled ‘Proportionality of issuing an EAW’, Section
2.5.6, entitled ‘Proportionality revisited’, and Section
2.6.3, entitled ‘Proportionality of executing an EAW’; Mitsilegas, V., EU Criminal Law after Lisbon: Rights, Trust and the Transformation of Justice in Europe, Hart Publishing, Oxford, 2016, in particular pp. 142 to 146; Shabbir, A., ‘Proportionality’, The European Arrest Warrant: Trust, Fundamental Rights, and the Rule of Law – A Comparative Report of 14 EU Member States, STREAM Project, available at: https://stream-eaw.eu/wp-content/uploads/2023/09/final-STREAM-Comparative-Report.pdf, pp. 34 to 38, and Xanthopoulou, E., ‘The Quest for Proportionality for the European Arrest Warrant: Fundamental Rights Protection in a Mutual Recognition Environment’, New Journal of European Criminal Law, Vol. 6, No 1, Intersentia, Mortsel, 2015, pp. 32 to 52.
5      This is in contrast to other instruments of recognition in criminal matters. See, inter alia, Article 6(1)(a) of Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the European Investigation Order in criminal matters (OJ 2014 L 130, p. 1), which provides that ‘the issuing authority may only issue an EIO where … the issuing of the EIO is necessary and proportionate for the purpose of the proceedings referred to in Article 4 taking into account the rights of the suspected or accused person’ (emphasis added).
6      See European handbook on how to issue a European arrest warrant, published by the Council of the European Union on 18 June 2008 (8216/2/08 REV 2) and its revised version of 17 December 2010 (17195/1/10 REV 1). That handbook was revised by the European Commission in 2017: see Commission notice of 28 September 2017, Handbook on how to issue and execute a European arrest warrant (C(2017) 6389 (OJ 2017 C 335, p. 1)). In 2023, the latter handbook was revised (C/2023/7782, OJ C, C/2023/1270); ‘the 2023 handbook’).
7      See European Parliament resolution of 27 February 2014 with recommendations to the Commission on the review of the European Arrest Warrant (2013/2109(INL) (OJ 2017 C 285, p. 18)), including ‘a proportionality check when issuing mutual recognition decisions, based on all the relevant factors and circumstances such as the seriousness of the offence, whether the case is trial-ready, the impact on the rights of the requested person, including the protection of private and family life, the cost implications and the availability of an appropriate less intrusive alternative measure’ (point 7(b) and annex).
8      See the 2023 handbook (Section
2.4., entitled ‘Proportionality’, in particular p. 18).
9      See the 2023 handbook (Section
2.4., entitled ‘Proportionality’, in particular p. 19).
10      See, inter alia, Opinions of Advocate General Bot in Aranyosi and Căldăraru (C‑404/15 and C‑659/15 PPU, EU:C:2016:140, points 145 to 155), and of Advocate General Campos Sánchez-Bordona in Poltorak (C‑452/16 PPU, EU:C:2016:782, point 38).
11      See, inter alia, judgment of 31 January 2023, Puig Gordi and Others (C‑158/21, ‘the judgment in Puig Gordi and Others’, EU:C:2023:57, paragraph 144 and the case-law cited). In the review of proportionality to be carried out by the issuing judicial authority, account is taken not only of the infringements of the person concerned’s right to freedom, but also of the effects of the surrender procedure on that person’s social and family relationships, where that person resides in a Member State other than the issuing Member State: see judgment of 9 October 2019, NJ (Public Prosecutor’s Office, Vienna) (C‑489/19 PPU, EU:C:2019:849, paragraph 44).
12      See judgment of 12 December 2019, Openbaar Ministerie (Public Prosecutor in Brussels) (C‑627/19 PPU, EU:C:2019:1079, paragraph 38). Reservations have been expressed in that regard: see, inter alia, Glerum, V., and Kijlstra, H., op. cit., pp. 129 and 130.
13      On the reasons against the introduction of a proportionality test by the executing judicial authority, see, inter alia, Weyembergh, A., Armada, I., and Brière, C., ‘Annex I – Critical Assessment of the Existing European Arrest Warrant Framework Decision’, Revising the European Arrest Warrant, European Added Value Assessment accompanying the European Parliament’s Legislative own-Initiative Report, European Parliamentary Research Service, available at: https://www.europarl.europa.eu/thinktank/en/document/IPOL-JOIN_ET(2013)510979, in particular p. 37. The authors note that the objective of simplifying and speeding up surrender procedures implies that most checks, in particular those relating to the proportionality of the European arrest warrant, are carried out in the issuing Member State and that the executing judicial authority trusts those checks. Moreover, a proportionality test carried out by that authority would be difficult to accept since it is a partially subjective assessment and depends largely on the facts and circumstances of the case and the criminal policy of the issuing Member State. Such a test would require the executing judicial authority to have a certain knowledge of the criminal justice system of that Member State. That said, it should be noted that the margin of discretion enjoyed by the executing judicial authority in the context of the grounds for optional non-execution allows that authority to take into account, to a certain extent, the principle of proportionality.
14      See the 2023 handbook (Section
5.8, entitled ‘Proportionality – the role of the executing Member State’, p. 57). See, also, to that effect, the Parliament resolution cited in footnote
7 of this Opinion, the annex to which contains the following proposal: ‘where the executing authority has reason to believe that the measure is disproportionate, the executing authority can consult the issuing authority on the importance of executing the mutual recognition decision. After such consultation, the issuing authority may decide to withdraw the mutual recognition decision’.
15      See the 2023 handbook (Section
5.8, entitled ‘Proportionality – the role of the executing Member State’, p. 57).
16      ‘The Charter’.
17      The expression ‘retrospective proportionality’ could be used to qualify this scenario: see Haggenmüller, S., ‘The Principle of Proportionality and the European Arrest Warrant’, Oñati Socio-Legal Series, Vol. 3, No 1, Oñati International Institute for the Sociology of Law (online), 2013, pp. 95 to 106, in particular pp. 100 and 101.
18      OJ 2004 L 335, p. 8.
19      At the hearing, the government stated that an appeal on a point of law had been lodged by DZ and had been dismissed as inadmissible.
20      Monitorul Oficial al României, Part
I, No 362 of 3 August 2000, as republished in Monitorul Oficial al României, Part
I, No 163 of 6 March 2014.
21      Under Article 3(1) of that law, ‘the introduction into or removal from the country, as well as the import or export of risk drugs, without right, shall be punishable by imprisonment for a term of 3 to 10 years and disqualification’. Paragraph 2 of that article provides that ‘if the acts referred to in paragraph 1 relate to high-risk drugs, the penalty shall be imprisonment for a term of 7 to 15 years and disqualification’.
22      In accordance with that provision, ‘co-perpetrators are persons who directly commit the same act provided for by the criminal law’.
23      According to that provision, ‘each Member State shall take the necessary measures to ensure that the offences referred to in Article 2(1)(a), (b) and (c) [such as the importation of drugs] are punishable by criminal penalties of a maximum of at least between 5 and 10 years of imprisonment in each of the following circumstances: … the offence either involves those drugs which cause the most harm to health, or has resulted in significant damage to the health of a number of persons’.
24      In paragraph 9 of its written observations, the Romanian Government states, however, that ‘the allegations concerning the medical purpose of the drugs were examined by the court of first instance, which concluded that they were false, after assessing the medical history of [DZ]’s wife and the composition of the medicines prescribed to her’.
25      The referring court states that, under Law No 143/2000, the court may suspend the enforcement of prison sentences only in respect of those of up to three years.
26      C‑168/21, ‘the judgment in Procureur général près la cour d’appel d’Angers’, EU:C:2022:558.
27      See, inter alia, judgment of 4 September 2025, C.J. (Enforcement of a sentence further to an EAW) (C‑305/22, ‘the judgment in C.J.’, EU:C:2025:665, paragraph 39 and the case-law cited).
28      See, inter alia, judgment in C.J. (paragraph 40 and the case-law cited).
29      See, inter alia, judgment in C.J. (paragraph 41 and the case-law cited).
30      See judgment in C.J. (paragraph 42).
31      See judgment in Procureur général près la cour d’appel d’Angers (paragraph 63 and point 2 of the operative part).
32      See judgment in Procureur général près la cour d’appel d’Angers (paragraph 64).
33      See judgment in Procureur général près la cour d’appel d’Angers (paragraph 65).
34      See judgment in Procureur général près la cour d’appel d’Angers (paragraph 66).
35      See judgment in Procureur général près la cour d’appel d’Angers (paragraph 67).
36      See judgment in Procureur général près la cour d’appel d’Angers (paragraph 68).
37      As Helenius, D., op. cit. points out, ‘the principle of mutual recognition … implies that the executing Member State must accept … variations in sentencing levels’ (p. 368).
38      See, inter alia, to that effect, judgments of 11 February 2003, Gözütok and Brügge (C‑187/01 and C‑385/01, EU:C:2003:87, paragraph 33), and of 23 January 2018, Piotrowski (C‑367/16, EU:C:2018:27, paragraph 52). In the latter judgment, the Court held that the determination, by the executing judicial authority, of whether the additional conditions, to which the prosecution and conviction of a minor are specifically subject under the law of the executing Member State, are met may in fact amount to a substantive re-examination of the analysis previously conducted in connection with the judicial decision adopted in the issuing Member State, which forms the basis of the European arrest warrant. Such a re-examination would infringe and render ineffective the principle of mutual recognition. That principle does not therefore allow the executing judicial authority to substitute its own assessment of the criminal responsibility of the minor who is the subject of a European arrest warrant for that previously carried out in the issuing Member State in connection with the judicial decision on which the warrant is based (paragraph 52).
39      See, Lenaerts, K., ‘The Principle of Mutual Recognition in the Area of Freedom, Security and Justice’, speech given at the Fourth Annual Sir Jeremy Lever Lecture at the University of Oxford, 30 January 2015, in particular p. 12.
40      See Haggenmüller, S., op. cit., in particular pp. 100 and 101. The author cites judgment No 2879 of the High Court of Justice (England & Wales) (United Kingdom), Sandru v Government of Romania of 28 October 2009, concerning extradition, which was based on the conviction of a defendant in Romania to 3 years’ imprisonment for having stolen and killed 10 chickens. In that decision, Lord Justice Elias states that ‘the appropriate sentence is, in part, a function of culture …. It may be, for example, that in this case the Romanian courts treat theft of livestock and its subsequent destruction far more seriously than English courts would typically do. If the sentence is thought to be too high, the answer is to challenge it in Romania’ (paragraphs 14 and 15).
41      For an example of where the Court has taken into account the importance in a Member State of combating a particular category of offences, see judgment of 4 May 2023, Agenția Națională de Integritate (C‑40/21, EU:C:2023:367, paragraphs 60 to 66). In paragraph 80 of its written observations, the Romanian Government explains that, ‘due to the scale of drug trafficking and the devastating effects of drug use, particularly among young people and adolescents, the limits of the prison sentence for the criminal offence of the introduction into the country of “high-risk” drugs were raised in 2023. In a context in which they were previously 7 to 15 years, they are currently 10 to 20 years’. That criminal policy, which is based on the observation that the number of drug traffickers and drug users is increasing, aims to combat the ‘extremely high social danger’ posed by drug use (for example, serious road accidents) with a view to prevention and the protection of human life and health (paragraph 81).
42      See judgment of 3 May 2007, Advocaten voor de Wereld (C‑303/05, EU:C:2007:261, paragraphs 52, 53 and 59).
43      In the judgment of the High Court of Justice (England & Wales), cited in footnote
40 of this Opinion, Lord Justice Elias states that, ‘in so far as it is requiring our courts to question or review the appropriateness of the sentence passed by a foreign court, it is asking these courts to exercise a function they are ill equipped to carry out. … The courts here have limited information about the factors leading a foreign court to impose the sentence it did’ (paragraph 14).
44      It should also be mentioned that the judicial authority issuing a European arrest warrant does not have the right to participate, as a party, in the proceedings for the execution of that arrest warrant before the executing judicial authority: see judgment of 29 July 2024, Breian (C‑318/24 PPU, ‘the judgment in Breian’, EU:C:2024:658, paragraph 96).
45      See, by analogy, judgment of 29 July 2024, Alchaster (C‑202/24, ‘the judgment in Alchaster’, EU:C:2024:649, paragraph 49). In that regard, it is irrelevant that the situation which led to the sentence being imposed on DZ falls outside the scope of Framework Decision 2004/757. On that point, I would point out that, under Article 2(2) of that framework decision, conduct such as the importation of drugs ‘shall not be included in the scope of [that] Framework Decision when it is committed by its perpetrators exclusively for their own personal consumption as defined by national law’. On that aspect, see, however, judgment of 11 June 2020, Prokuratura Rejonowa w Słupsku (C‑634/18, EU:C:2020:455), in which the Court acknowledged that it had jurisdiction to answer the questions referred for a preliminary ruling concerning Article 4(2)(a) of Framework Decision 2004/757, read in conjunction with Article 2(1)(c) thereof, and Articles 20, 21 and 49 of the Charter, since the national legislature had chosen to apply the aggravating circumstance of the possession of ‘large quantities of drugs’ within the meaning of Article 4(2)(a) of that framework decision to conduct excluded from the scope of that law, namely the possession of drugs exclusively for personal consumption.
46      See, inter alia, judgment of 19 October 2023, G. ST. T. (Proportionality of the penalty for trade mark infringement) (C‑655/21, ‘the judgment in G. ST. T’, EU:C:2023:791, paragraph 62).
47      See, inter alia, judgments in G. ST. T. (paragraph 65 and the case-law cited) and of 3 July 2025, Beach and bar management (C‑733/23, ‘the judgment in Beach and bar management’, EU:C:2025:515, paragraph 48).
48      See, inter alia, to that effect, judgments in G. ST. T. (paragraph 67 and the case-law cited) and in Beach and bar management (paragraph 49).
49      See, inter alia, judgments in G. ST. T. (paragraph 68 and the case-law cited) and in Beach and bar management (paragraph 50).
50      This was the Trade and Cooperation Agreement between the European Union and the European Atomic Energy Community, of the one part, and the United Kingdom of Great Britain and Northern Ireland, of the other part (OJ 2021 L 149, p. 10).
51      See judgment in Alchaster (paragraphs 49 to 51).
52      See, inter alia, judgment in Alchaster (paragraph 52 and the case-law cited).
53      See, inter alia, judgment in Alchaster (paragraph 53 and the case-law cited).
54      See, inter alia, judgment in Alchaster (paragraph 54 and the case-law cited).
55      See, inter alia, judgment in Alchaster (paragraph 56 and the case-law cited).
56      See, inter alia, judgment in Alchaster (paragraph 57 and the case-law cited).
57      See, inter alia, judgment in Alchaster (paragraph 58 and the case-law cited).
58      See, inter alia, judgment in Alchaster (paragraph 59 and the case-law cited).
59      See, inter alia, judgment in Alchaster (paragraph 60 and the case-law cited).
60      C‑158/21, EU:C:2022:573.
61      See my Opinion in Puig Gordi and Others (C‑158/21, EU:C:2022:573, point 85).
62      See judgment of 18 April 2023, E.D.L. (Ground for refusal based on illness) (C‑699/21, EU:C:2023:295).
63      See judgment of 18 April 2023, E.D.L. (Ground for refusal based on illness) (C‑699/21, EU:C:2023:295, paragraphs 40, 42 and 50).
64      See, by analogy, judgment in Puig Gordi and Others (paragraph 111).
65      See, by analogy, judgment in Puig Gordi and Others (paragraph 114).
66      See, inter alia, judgment in Breian (paragraph 32 and the case-law cited, and paragraph 52).
67      See judgment in Puig Gordi and Others (paragraph 115).
68      See, inter alia, judgment in Puig Gordi and Others (paragraph 116 and the case-law cited).
69      I note that, as regards an offence which falls within the scope of Framework Decision 2004/757, the necessary individualisation of the sentence follows from the wording of that framework decision itself. Recital 5 of that framework decision states that, ‘to determine the level of penalties, factual elements such as the quantities and the type of drugs trafficked, and whether the offence was committed within the framework of a criminal organisation, should be taken into account’.
70      C‑404/15 and C‑659/15 PPU, EU:C:2016:140, point 139.
71      See my Opinion in AV (Aggregate sentence) (C‑221/19, EU:C:2020:815, point 35). See, also, Pradel, J., ‘Du Principe de Proportionnalité en Droit Pénal’, Cahiers de Droit, Vol. 60, No 4, Université Laval, Québec, 2019, pp. 1129 to 1150, who notes that ‘the proportionality check is carried out on the basis of the review of the statement of reasons’ and that ‘proportionality, seriousness, reasoning and individualisation constitute an inseparable and reasonable quartet’ (p. 1149). It has also been observed that ‘judges, in the exercise of their duties, are now subject to an ever-increasing obligation to personalise and justify their decisions. For them, proportionality is certainly one of the most effective means of positioning themselves …
“between the law and justice”’: see Saenko, L., ‘De la proportionnalité de la peine encourue’, Gazette du Palais, Lextenso Éditions, Issy-les-Moulineaux, 24 October 2017, No 36, p. 73 to 76, in particular p. 73. See, also, Daubigney, M.-C., and Lavielle, B., ‘La motivation de la proportionnalité de l’infraction et de la peine dans le jugement pénal’, Revue Justice Actualités, No 24, École Nationale de la Magistrature, Bordeaux, 2020, pp. 117 to 127.
72      See, by analogy, judgment in Puig Gordi and Others (paragraphs 107 and 133).
73      The assessment of the risk of infringement of fundamental rights must be carried out by the executing judicial authority having regard to the standard of protection of fundamental rights guaranteed by EU law: see, inter alia, judgment of 21 December 2023, GN (Ground for refusal based on the best interests of the child)
(C‑261/22, EU:C:2023:1017, paragraph 44 and the case-law cited).
74      See, by analogy, judgment in Breian (paragraph 122).
75      That framework decision was adopted, inter alia, on the basis of Article 31(1)(e) TEU, which provided, in particular, that common action on judicial cooperation in criminal matters is to include progressively adopting measures establishing minimum rules relating to the constituent elements of criminal acts and to penalties in the field of illicit drug trafficking.
76      See judgment of 11 June 2020, Prokuratura Rejonowa w Słupsku (C‑634/18, EU:C:2020:455), according to which it follows from those provisions that Member States remain free to treat the possession of large quantities of drugs for personal consumption as an aggravated criminal offence (paragraph 37). In paragraph 76 of its written observations, the Romanian Government states that it is the criterion of the type of drug (‘high risk’) which determines the aggravated nature of the offence. In the present case, the criminal justice system that led to DZ being sentenced to seven years’ imprisonment seems to me to be the expression of a criminal policy intended to punish very severely in Romania the offence of introducing ‘risk and high-risk drugs’ into Romania, which, as such, does not appear to me to be open to challenge in the context of the implementation of the surrender mechanism.
77      Signed in Rome on 4 November 1950. See, in that regard, Simon, A., ‘La disproportion de la répression pénale devant la Cour européenne des droits de l’Homme’, Gazette du Palais, Lextenso Éditions, Issy-les-Moulineaux, No 36, 24 October 2017, pp. 64 to 67. See, inter alia, judgments of the ECtHR of 12 February 2008, Kafkaris v. Cyprus (CE:ECHR:2008:0212JUD002190604); of 9 July 2013, Vinter and Others v. the United Kingdom (CE:ECHR:2013:0709JUD006606909); of 4 September 2014, Trabelsi v. Belgium (CE:ECHR:2014:0904JUD000014010), and of 29 June 2023, Bijan Balahan v. Sweden (CE:ECHR:2023:0629JUD000983922).
As the European Court of Human Rights stated in its judgment of 4 September 2014, Trabelsi v. Belgium (EC:ECHR:2014:0904JUD000014010), Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms prohibits, in particular, a life sentence from being irreducible de jure and de facto (§ 113). That case-law of the European Court of Human Rights is reflected in Article 5(2) of Framework Decision 2002/584, which provides that  if the offence on the basis of which the European arrest warrant has been issued is punishable by custodial life sentence or lifetime detention order, the execution of the said arrest warrant may be subject to the condition that the issuing Member State has provisions in its legal system for a review of the penalty or measure imposed, on request or at the latest after 20 years, or for the application of measures of clemency to which the person is entitled to apply for under the law or practice of the issuing Member State, aiming at a non-execution of such penalty or measure.
78      Under that provision, the following situations may constitute judicial mitigating circumstances: efforts made by an offender to eliminate or reduce the consequences of their offence (a) and circumstances relating to the committed offence, which reduce the seriousness of the offence or the threat posed by the offender (b).
79      See paragraph 85 of the Romanian Government’s written observations.
80      Ibid. In paragraph 11 of its written observations, the Romanian Government states that the court of first instance imposed a lesser sentence on DZ’s wife since she confessed to the offences committed.
81      See paragraph 85 of the Romanian Government’s written observations.
82      As the Romanian Government states in paragraph 86 of its written observations, under Article 91(d) of the Criminal Code, the decision on suspending the sentence is a matter for the court, which will assess whether, ‘having regard to the offender’s character, his conduct prior to the commission of the offence, the efforts made by the offender to eliminate or mitigate the consequences of the criminal offence, and his capacity for reform …, the sentence imposed is sufficient and, even without its enforcement, the convicted person will not commit further offences’.
83      See, inter alia, in that regard, judgment in Beach and bar management (paragraph 50 and the case-law cited).
84      That possibility does not appear to be limited to cases where the mitigating circumstances are either exceptional or numerous, unlike in the case which gave rise to the judgment in G. ST. T. (paragraph 85).
85      See, inter alia, judgment in Breian (paragraph 109).
86      See, by analogy, judgment in Breian (paragraph 122). In addition, 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. 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 belongs has not been established: see, inter alia, judgment of 21 December 2023, GN (Ground for refusal based on the best interests of the child) (C‑261/22, EU:C:2023:1017, paragraph 50 and the case-law cited).
87      I am thinking in particular of the rules on early release, which may, to a certain extent, offset the severity of the sentence imposed.