Dominic Wolzenburg.
Date: 2009-10-06
51. With regard to Union citizens who have been lawfully resident in another Member State for a continuous period of five years, those provisions provided merely for the issue, upon application, of a document attesting to the permanence of their residence, without requiring that formality.  Such a document has only declaratory and probative force but does not give rise to any right (see, to that effect, Case C‑85/96 Martínez Sala  [1998] ECR I‑2691, paragraph 53).
56. It is clear, in particular, from Article 1(1) and (2) of the Framework Decision and from recitals 5 and 11 in the preamble thereto that the purpose of the decision is to replace the multilateral system of extradition between Member States with a system of surrender, as between judicial authorities, of convicted persons or suspects for the purpose of enforcing judgments or of criminal proceedings, that system of surrender being based on the principle of mutual recognition (Case C‑66/08 Kozłowski  [2008] ECR I‑6041, paragraph 31).
57. 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. Apart from the cases of mandatory non-execution laid down in Article 3 of the Framework Decision, the Member States may refuse to execute such a warrant only in the cases listed in Article 4 thereof (Case C‑388/08 PPU Leymann and Pustovarov  [2008] ECR I‑0000, paragraph 51).
58. It follows that a national legislature which, by virtue of the options afforded it by Article 4 of the Framework Decision, chooses to limit the situations in which its executing judicial authority may refuse to surrender a requested person merely reinforces the system of surrender introduced by that Framework Decision to the advantage of an area of freedom, security and justice.
59. Indeed, by limiting the situations in which the executing judicial authority may refuse to execute a European arrest warrant, such legislation only facilitates the surrender of requested persons, in accordance with the principle of mutual recognition set out in Article 1(2) of Framework Decision 2002/584, which constitutes the essential rule introduced by that decision.
61. When implementing Article 4 of Framework Decision 2004/584 and in particular paragraph 6 thereof, referred to in the decision for reference, the Member States have, of necessity, a certain margin of discretion.
62. In that regard, it must be emphasised that, although the ground for optional non-execution set out in Article 4(6) of the Framework Decision has, just like Article 5(3) thereof, in particular the objective of enabling the executing judicial authority to give particular weight to the possibility of increasing the requested person’s chances of reintegrating into society when the sentence imposed on him expires ( Kozłowski , paragraph 45), such an objective, while important, cannot prevent the Member States, when implementing that Framework Decision, from limiting, in a manner consistent with the essential rule stated in Article 1(2) thereof, the situations in which it is possible to refuse to surrender a person who falls within the scope of Article 4(6) thereof.
63. Next, with regard to whether a requirement for residence for a continuous period of five years, as laid down in the national legislation at issue in the main proceedings, is contrary to the principle of non-discrimination based on nationality, it must be borne in mind that that principle requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (see, inter alia, Case C‑303/05 Advocaten voor de Wereld  [2007] ECR I‑3633, paragraph 56).
67. It is necessary to point out, as has already been stated in paragraph 62 of the present judgment, that the ground for optional non-execution set out in Article 4(6) of Framework Decision 2002/584 has in particular the objective of enabling the executing judicial authority to give particular weight to the possibility of increasing the requested person’s chances of reintegrating into society when the sentence imposed on him expires.  The Member State of execution is therefore entitled to pursue such an objective only in respect of persons who have demonstrated a certain degree of integration in the society of that Member State.
68. In the present case, the single condition based on nationality for its own nationals, on the one hand, and the condition of residence of a continuous period of five years for nationals of other Member States, on the other, may be regarded as being such as to ensure that the requested person is sufficiently integrated in the Member State of execution.  By contrast, a Community national who does not hold the nationality of the Member State of execution and has not resided in that State for a continuous period of a given length generally has more connection with his Member State of origin than with the society of the Member State of execution.
69. In order to be justified in the light of Community law, the difference in treatment provided for by the Netherlands legislation must also be proportionate to the legitimate objective pursued by the national law. It may not go beyond what is necessary in order to attain that objective (see, inter alia, Case C‑158/07 Förster  [2008] ECR I‑0000, paragraph 53).
73. It must also be noted that a requirement for residence for a continuous period of five years, as laid down in the national legislation at issue in the main proceedings, does not go beyond what is necessary to attain the objective of ensuring that requested persons who are nationals of other Member States achieve a degree of actual integration in the Member State of execution.
74. In the light of the foregoing, the answer to the fifth question is that Article 12 EC is to be interpreted as not precluding the legislation of a Member State of execution under which  the competent judicial authority of that State is to refuse to execute a European arrest warrant issued against one of its nationals with a view to the enforcement of a custodial sentence, whilst such a refusal is, in the case of a national of another Member State having a right of residence on the basis of Article 18(1) EC, subject to the condition that that person has lawfully resided for a continuous period of five years in that Member State of execution.
The first and second questions
76. It must be borne in mind that, where a Member State has implemented Article 4(6) of that decision without, however, laying down specific conditions relating to the application of that provision, it is for the executing judicial authority to make an overall assessment in order to determine, initially, whether the person concerned falls within the scope of the provision.  A single factor characterising the requested person, such as the length of time that person has resided in the Member State concerned, cannot, in principle, have a conclusive effect of itself (see, to that effect, Kozłowski , paragraph 49).