JR and YC.
Date: 2019-12-12
It should be recalled at the outset that both the principle of mutual trust between the Member States and the principle of mutual recognition, which is itself based on the mutual trust between the latter, are of fundamental importance in EU law because they allow an area without internal borders to be created and maintained. More specifically, the principle of mutual trust requires, particularly as regards the area of freedom, security and justice, each of those States, save in exceptional circumstances, to consider all the other Member States to be complying with EU law and particularly with the fundamental rights recognised by EU law (judgment of 25 July 2018, Minister for Justice and Equality (Deficiencies of the system of justice), C‑216/18 PPU, EU:C:2018:586, paragraph 36 and the case-law cited).
The principle of mutual recognition, which underpins Framework Decision 2002/584, means that, in accordance with Article 1(2) thereof, the Member States are in principle obliged to act upon a European arrest warrant (judgment of 16 November 2010, Mantello, C‑261/09, EU:C:2010:683, paragraph 36 and the case-law cited).
According to the provisions of Framework Decision 2002/584, the Member States may refuse to execute such a warrant only in the cases of mandatory non-execution provided for in Article 3 thereof and in the cases of optional non-execution listed in Articles 4 and  4a. Furthermore, the executing judicial authority may make the execution of a European arrest warrant subject only to the conditions set out in Article 5 of the framework decision (judgment of 29 January 2013, Radu, C‑396/11, EU:C:2013:39, paragraph 36 and the case-law cited).
It should also be noted that the effectiveness and proper functioning of the simplified system for the surrender of persons convicted or suspected of having infringed criminal law, established by Framework Decision 2002/584, are based on compliance with certain requirements laid down by that framework decision, the scope of which has been established by the Court’s case-law.
In that regard, and as the Advocate General also noted in point 70 of his Opinion, the existence of a judicial remedy against the decision taken by an authority other than a court to issue a European arrest warrant is not a condition for classification of that authority as an issuing judicial authority within the meaning of Article 6(1) of Framework Decision 2002/584. That requirement does not fall within the scope of the statutory rules and institutional framework of that authority, but concerns the procedure for issuing such a warrant.
According to the Court’s case-law, although, in accordance with the principle of procedural autonomy, the Member States may designate, in their national law, the ‘judicial authority’ with competence to issue a European arrest warrant, the meaning and scope of that term cannot be left to the assessment of each Member State. That term requires, throughout the European Union, an autonomous and uniform interpretation, which must take into account the wording of Article 6(1) of Framework Decision 2002/584, its legislative scheme and the objective of that framework decision (see, to that effect, judgment of 27 May 2019, OG and PI (Public Prosecutor’s Offices in Lübeck and Zwickau)  C‑508/18 and C‑82/19 PPU, EU:C:2019:456, paragraphs 48 and 49 and the case-law cited).
Thus, the Court has held that the term ‘issuing judicial authority’, within the meaning of Article 6(1) of Framework Decision 2002/584, is capable of including authorities of a Member State which, although not necessarily judges or courts, participate in the administration of criminal justice in that Member State and act independently in the execution of those of their responsibilities which are inherent in the issuing of a European arrest warrant, that independence requiring that there are statutory rules and an institutional framework capable of guaranteeing that the issuing judicial authority is not exposed, when adopting a decision to issue such an arrest warrant, to any risk of being subject, inter alia, to an instruction in a specific case from the executive (see, to that effect, judgment of 27 May 2019, OG and PI (Public Prosecutor’s Offices in Lübeck and Zwickau), C‑508/18 and C‑82/19 PPU, EU:C:2019:456, paragraphs 51 and 74).
In the present case, it is not disputed that members of the public prosecutor’s office, who in France have the status of judges, participate in the administration of criminal justice.
Nor is the independence of the Public Prosecutor’s Office called into question by the fact that it is responsible for conducting prosecutions. As the Parquet général du Grand-Duché de Luxembourg (Principal Public Prosecutor’s Office of the Grand Duchy of Luxembourg) pointed out at the hearing before the Court, the term ‘issuing judicial authority’, within the meaning of Article 6(1) of Framework Decision 2002/584, does not refer only to the judges or courts of a Member State. In that regard, the Court has held that that term also applies to the Prosecutor General of a Member State who is responsible for the conduct of criminal proceedings, provided that his legal position affords him a guarantee of independence from the executive in connection with the issuing of a European arrest warrant (see, to that effect, judgment of 27 May 2019, PF (Prosecutor General of Lithuania), C‑509/18, EU:C:2019:457, paragraph 57).
The European arrest warrant system entails a dual level of protection of procedural rights and fundamental rights which must be enjoyed by the requested person, since, in addition to the judicial protection provided at the first level, at which a national decision, such as a national arrest warrant, is adopted, there is the protection that must be afforded at the second level, at which a European arrest warrant is issued, which may occur, depending on the circumstances, shortly after the adoption of the national judicial decision (judgment of 27 May 2019, OG and PI (Public Prosecutor’s Offices in Lübeck and Zwickau), C‑508/18 and C‑82/19 PPU, EU:C:2019:456, paragraph 67 and the case-law cited).
Thus, as regards a measure, such as the issuing of a European arrest warrant, which is capable of impinging on the right to liberty of the person concerned, that protection means that a decision meeting the requirements inherent in effective judicial protection should be adopted, at least, at one of the two levels of that protection (judgment of 27 May 2019, OG and PI (Public Prosecutor’s Offices in Lübeck and Zwickau), C‑508/18 and C‑82/19 PPU, EU:C:2019:456, paragraph 68).
In particular, the second level of protection of the rights of the person concerned requires that the issuing judicial authority review observance of the conditions to be met when issuing a European arrest warrant and examine objectively — taking into account all incriminatory and exculpatory evidence, without being exposed to the risk of being subject to external instructions, in particular from the executive — whether it is proportionate to issue that warrant (see, to that effect, judgment of 27 May 2019, OG and PI (Public Prosecutor’s Offices in Lübeck and Zwickau), C‑508/18 and C‑82/19 PPU, EU:C:2019:456, paragraphs 71 and 73).
Furthermore, where the law of the issuing Member State confers competence to issue a European arrest warrant on an authority which, whilst participating in the administration of justice in that Member State, is not itself a court, the decision to issue such an arrest warrant and, inter alia, the proportionality of such a decision must be capable of being the subject, in the Member State, of court proceedings which meet in full the requirements inherent in effective judicial protection (judgment of 27 May 2019, OG and PI (Public Prosecutor’s Offices in Lübeck and Zwickau), C‑508/18 and C‑82/19 PPU, EU:C:2019:456, paragraph 75).
Such proceedings against a decision to issue a European arrest warrant taken by an authority which, whilst participating in the administration of justice and having the necessary independence from the executive, does not constitute a court serve to ensure that the monitoring of compliance with the conditions to be met when issuing a European arrest warrant in connection with criminal proceedings and, in particular, the proportionality of such a warrant is carried out in a procedure which complies with the requirements inherent in effective judicial protection.
Accordingly, it is for the Member States to ensure that their legal orders effectively safeguard the level of judicial protection required by Framework Decision 2002/584, as interpreted by the Court’s case-law, by means of the procedural rules which they implement and which may vary from one system to another.
In particular, introducing a separate right of appeal against the decision to issue a European arrest warrant taken by a judicial authority other than a court is just one possibility in that regard.
Framework Decision 2002/584 does not prevent a Member State from applying its procedural rules with respect to the issuing of a European arrest warrant provided that the objective of that framework decision and the requirements deriving from it are not frustrated (see, to that effect, judgment of 30 May 2013, F, C‑168/13 PPU, EU:C:2013:358, paragraph 53).
Moreover, according to the French Government, in the French legal system, the decision to issue a European arrest warrant may, as a procedural step, be the subject of an action for a declaration of invalidity on the basis of Article 170 of the CCP. Such an action, which is available as long as the criminal investigation is ongoing, enables the parties to the proceedings to enforce their rights. If the European arrest warrant is issued in respect of a person who is not yet a party to the proceedings, that person may bring an action for a declaration of invalidity after his actual surrender and appearance before the investigating judge.
The inclusion of such procedural rules in the French legal system thus demonstrates that the proportionality of the decision of the Public Prosecutor’s Office to issue a European arrest warrant may be subject to judicial review before or almost at the same time as it is issued and, in any event, after the European arrest warrant has been issued, since such scrutiny may take place, depending on the circumstances, before or after the actual surrender of the requested person.
Such a system therefore meets the requirement of effective judicial protection.