EUROPEAN ARREST WARRANT ISSUED BY PUBLIC PROSECUTOR’S OFFICES IN THE LIGHT OF THE CASE-LAW OF THE COURT OF JUSTICE OF THE EUROPEAN UNION Текст научной статьи по специальности «Право»

НОВЫЕ РЕШЕНИЯ В ПРАВОТВОРЧЕСТВЕ NEW SOLUTIONS IN LAW-MAKING

DOI: 10.33693/2223-0092-2021-11-5-46-72

European Arrest Warrant Issued by Public Prosecutor's Offices in the Light of the Case-law of the Court of Justice of the European Union

L. Klimek ©

Matej Bel University,

Banska Bystrica, Slovak Republic

E-mail: [email protected]

Abstract. A set of cases of the Court of Justice of the European Union have been adopted, supplementing the Framework Decision 2002/584/JHA on the European arrest warrant and the surrender procedures between Member States. The question repeatedly analysed in its case-law is whether the European arrest warrant can be issued by Public Prosecutor's Offices. The contribution deals with the case-law of the Court of Justice dealing with this question. In seven sections the paper analyses relevant cases. In each case at the outset a reference for a preliminary ruling is mentioned. Further, dispute in the main proceedings and the question(s) referred for a preliminary ruling are analysed. The most important parts of analyses are considerations by the Court of Justice and its rulings.

Key words: European arrest warrant, Public Prosecutor's Office, case-law, Court of Justice of the European Union, case C-509/18 - PF, case C-489/19 PPU - NJ, joined cases C-566/19 PPU and C-626/19 PPU - JR & YC, case C-625/19 PPU - XD, case C-627/19 PPU - ZB, case C-510/19 - AZ, case C-648/20 PPU - PI

Acknowledgments. The contribution was elaborated as a part of the research project VEGA No. 1/0004/20 'Implementation of Mutual Recognition of Judicial Decisions in Criminal Matters into the Legal Order of the Slovak Republic' [Slovak: Zavedenie vzajomneho uznavania justicnych rozhodnuti v trestnych veciach do pravneho poriadku Slovenskej republiky], funded by the Scientific Grant Agency of the Ministry of Education, Science, Research and Sport of the Slovak Republic and the Slovak Academy of Sciences. The funding was awarded to the Matej Bel University in Banska Bystrica, Slovak Republic.

DOI: 10.33693/2223-0092-2021-11-5-46-72

Европеискии ордер на арест, выданный прокуратурой в свете прецедентного права Суда Европейского Союза

Л. Климек ©

Университет Матея Бела,

Банска Быстрица, Республика Словакия

E-mail: [email protected]

Аннотация. В статье рассмотрен ряд дел Суда Европейского Союза, дополняющих Рамочное решение 2002/584/JHA о европейском ордере на арест и процедурах передачи между государствами-членами Европейского Союза. Вопрос неоднократно подвергался полемике и заключается в том, может ли европейский ордер на арест выдаваться прокуратурой. Статья посвящена прецедентной практике Суда Европейского союза, рассматривающей данный вопрос. В семи разделах статьи анализируются соответствующие прецеденты применения рассматриваемой тематики. В каждом случае вначале упоминается ссылка на предварительное решение, далее автор анализирует спор в основном производстве и вопрос/вопросы, переданные для вынесения предварительного решения. Наиболее важными частями анализа являются исключительные соображения Суда.

Ключевые слова: европейский ордер на арест, прокуратура, прецедентное право, Суд Европейского Союза, дело C-509/18-PF, дело C-489/19 PPU-NJ, объединенные дела C-566/19 PPU и C-626/19 PPU-JR & YC, корпус C-625/19 PPU-XD, корпус C-627/19 PPU-ZB, корпус C-510/19-AZ, корпус C-648/20 PPU-PI

Благодарности. Эта статья была разработана в рамках исследовательского проекта VEGA № 1/0004/20 «Внедрение взаимного признания судебных решений по уголовным делам в правовой порядок Словацкой Республики». Финансирование было предоставлено Университетом Матея Бела в Банска-Бистрице, Словацкая Республика.

INTRODUCTION

The Member States of the European Union (hereinafter 'EU') were aware of unwanted side-effect of the free movement of goods, persons, services and capital within Europe, which has been the equally free movement of crime and criminals. This produced a growth in certain forms of trans-national crime. The result has been an increase in the number of suspects and convicted persons whose extradition was sought by one European Union country from another.

In order to speed up and replace extradition procedures in the EU, in 2002 the Council of the EU adopted the Framework Decision 2002/584/JHA on the European arrest warrant and the surrender procedures between Member States1 (hereinafter the "Framework Decision

1 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 the Framework Decision 2009/299/JHA. Official Journal of the European Communities, L 190/1 of 18 July 2002. Details see, for example: Klimek L. European arrest warrant. Cham-Heidelberg-New York-Dordrecht-London: Springer, 2015. 375 p.; Klimek L. Mutual recognition of judicial decisions in European Criminal Law. Cham: Springer, 2017. 742 p.

2002/584/JHA on the European arrest warrant"). The European arrest warrant provided for in that Framework Decision was the first concrete measure in the field of EU Criminal law implementing the principle of mutual recognition which has been repeatedly referred to as the cornerstone of judicial co-operation in the EU.

Despite the operational success of the European arrest warrant, the surrender proceeding is not from perfect. Moreover, the interpretation of polemic issues is needed, since its real application covers also translational aspects. Indeed, competent authorities of the Member States of the EU are eligible to make a request for a preliminary ruling concerning the interpretation of provisions - as well as terminology - of the Framework Decision 2002/584/JHA on the European arrest warrant. The question repeatedly analysed in its case-law is whether the European arrest warrant can be issued by Public Prosecutor's Offices. The contribution deals with the case-law of the Court of Justice dealing with this question.

JUDGMENT OF THE COURT OF JUSTICE OF THE EUROPEAN UNION OF 27 MAY 2019 -CASE C-509/18 - PF

Reference for a preliminary ruling

The request for a preliminary ruling concerns the interpretation of Article 6 (1) of the Framework Decision 2002/584/JHA on the European arrest warrant.

The request has been made in proceedings in Ireland concerning the execution of a European arrest warrant issued on 18 April 2014 by the Prosecutor General's Office of the Republic of Lithuania (Lietuvos Respublikos gen-eralinis prokuroras) for the purposes of the prosecution in Lithuania of PF.

Dispute in the main proceedings

and the questions referred for a preliminary ruling

On 18 April 2014, the surrender of PF, a Lithuanian national, was sought pursuant to a European arrest warrant issued by the Prosecutor General of Lithuania for the prosecution of a criminal offence which PF allegedly committed in 2012 and which, according to the public prosecutor, must be identified as 'armed robbery'.

PF brought an action before the High Court challenging the validity of that European arrest warrant, on the ground, inter alia, that the Prosecutor General of Lithuania is not a 'judicial authority' within the meaning of Article 6 (1) of the Framework Decision 2002/584/JHA on the European arrest warrant.

In support of that contention, PF relied on a legal opinion of a Lithuanian lawyer which stated, inter alia, that, in accordance with Article 109 of the Constitution of the Republic of Lithuania, the administration of justice in that State falls within the exclusive competence of the courts of law. The Prosecutor General of Lithuania is the most senior public prosecutor in Lithuania. He has the status of a public prosecutor and is independent both of the executive and of the judiciary. In respect of public prosecutors, Article 118 of that constitution provides that their function is to organise and direct pre-trial criminal investigations and to conduct criminal prosecutions. However, according to the case-law of the Constitutional Court of the Republic of Lithuania (Lietuvos Respublikos Konstitucinis Teismas), a public prosecutor is not responsible for the administration of justice and he also does not perform any functions related to the administration of justice during any pre-trial criminal investigation for which he is responsible.

In those circumstances, the High Court sought information from the Prosecutor General of Lithuania, via the Central Authority for Ireland, as to whether that public prosecutor is a 'judicial authority', having regard, in particular, to the judgments in case C-452/16 PPU, Poltorak and case C-453/16 PPU, Ozgelik.

The Prosecutor General of Lithuania replied as follows: "The [Prosecutor General of Lithuania] is independent of the executive ... as well as [of] the Ministry of Justice. [The] Prosecution Service of the Republic of Lithuania ... is comprised of the [Prosecutor General of Lithuania] and territorial prosecutor's offices; the Lithuanian Prosecution Service organises and directs pre-trial investigation[s] and ensures the prosecution of criminal [offences] in the name

of the State. These provisions are laid down in Article 118 of the Constitution of the Republic of Lithuania."

On 27 February 2017 the High Court held that the Prosecutor General of Lithuania is a 'judicial authority' within the meaning of Article 6(1) of the Framework Decision 2002/584/JHA on the European arrest warrant and ordered the surrender of PF.

In a judgment of 20 October 2017, the Court of Appeal (Ireland) dismissed PF's appeal against the judgment of the High Court and held that the Prosecutor General of Lithuania is a 'judicial authority' within the meaning of that provision.

The referring court, the Supreme Court (Ireland), granted leave to appeal against the judgment of the Court of Appeal.

In the light of the Court's case-law resulting from the judgments in case C-486/14, Kossowski, C-452/16 PPU, Poltorak, C-453/16 PPU, Ozgelik, and C-477/16 PPU, Koval-kovas, the Supreme Court asks whether the Prosecutor General of Lithuania may be categorised as a 'judicial authority' within the meaning of Article 6 (1) of the Framework Decision 2002/584/JHA on the European arrest warrant.

In particular, the Supreme Court considers that it is clear from the case-law of the Court of Justice that a categorisation of that sort depends upon the question whether the body at issue constitutes an authority responsible for participating in the administration of criminal justice in a Member State. However, that case-law does not provide any clear criteria for the purposes of determining whether a body is an authority which administers justice or is required to participate in the administration of justice in the legal system of a Member State.

In that regard, the referring court asks, in the light of the fact that the concept of 'judicial authority' is an autonomous concept of EU law, whether, for the purposes of determining whether the Prosecutor General of Lithuania participates in the administration of justice, it should rely solely on the national law of the Member State in question. Furthermore, that court seeks to ascertain whether being responsible for pre-trial investigations and the prosecution of criminal offences is sufficiently linked to the administration of justice that a prosecutor who has those functions, but is independent of the judiciary according to national law, may be considered to be a 'judicial authority' within the meaning of Article 6 (1) of the Framework Decision 2002/584/JHA on the European arrest warrant.

In those circumstances the Supreme Court decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:2 1. Are the criteria according to which to decide whether a public prosecutor designated as an issuing judicial authority for the purposes of Article 6 (1) of the Framework Decision 2002/584/JHA on the European arrest warrant is a judicial authority within the autonomous meaning of that phrase in Article 6 (1) of the Framework Decision 2002/584/JHA on the European arrest warrant the public prosecutor is independent from the executive and (2) considered in his own legal system to administer justice or participate in the administration of justice?

2 Reference for a preliminary ruling from the Supreme Court (Ireland) made on 6 August 2018. Minister for Justice and Equality v PF (Case C-509/18).

2. If not, what are the criteria according to which a national court should determine whether a public prosecutor who is designated as an issuing judicial authority for the purposes of Article 6 (1) of the Framework Decision 2002/584/JHA on the European arrest warrant is a judicial authority for the purposes of Article 6 (1)?

3. Insofar as the criteria include a requirement that the public prosecutor administer justice or participate in the administration of justice is that to be determined in accordance with the status he holds in his own legal system or in accordance with certain objective criteria? If, objective criteria what are those criteria?

4. Is the Public Prosecutor of the Republic of Lithuania a judicial authority within the autonomous meaning of that phrase in Article 6 (1) of the Framework Decision 2002/584/JHA on the European arrest warrant?

Consideration by the court of justice3

By its questions, which it is appropriate to consider together, the referring court asks, in essence, whether the concept of an 'issuing judicial authority', within the meaning of Article 6 (1) of the Framework Decision 2002/584/JHA on the European arrest warrant, must be interpreted as including the Prosecutor General of a Member State who, whilst institutionally independent from the judiciary, is responsible for the conduct of criminal prosecutions and is independent from the executive.

As a preliminary matter, it should be noted that both the principle of mutual trust between the Member States and the principle of mutual recognition, which is itself based on the mutual trust between the latter, are, in EU law, of fundamental importance given that they allow an area without internal borders to be created and maintained. More specifically, the principle of mutual trust requires, particularly as regards the area of freedom, security and justice, each of those States, save in exceptional circumstances, to consider all the other Member States to be complying with EU law and particularly with the fundamental rights recognised by EU law [judgment in case C-216/18 PPU, Minister for Justice and Equality, par. 36 and the case-law cited].

In particular, as far as concerns the Framework Decision 2002/584/JHA on the European arrest warrant, it is clear from Recital No. 6 thereof that the European arrest warrant established by that Framework Decision is the first concrete measure in the field of criminal law implementing the principle of mutual recognition.

That principle has been applied in Article 1 (2) of the Framework Decision 2002/584/JHA on the European arrest warrant, which lays down the rule that Member States are required to execute any European arrest warrant on the basis of that principle and in accordance with the provisions of that Framework Decision. Executing judicial authorities may therefore, in principle, refuse to execute such a European arrest warrant only on the grounds for non-execution exhaustively listed in Articles 3, 4 and 4a of the framework decision. Similarly, execution of the arrest warrant may be made subject only to one of the conditions exhaustively laid down in Article 5. Accordingly,

3 See also: Opinion of Advocate General Campos Sánchez-Bordona delivered on 30 April 2019 - Case C-509/18. Minister for Justice and Equality v PF.

while execution of the European arrest warrant constitutes the rule, refusal to execute is intended to be an exception which must be interpreted strictly (see, to that effect, judgment in case C-216/18 PPU, Minister for Justice and Equality, par. 41 and the case-law cited).

However, the principle of mutual recognition proceeds from the assumption that only European arrest warrants, within the meaning of Article 1 (1) of the Framework Decision 2002/584/JHA on the European arrest warrant, must be executed in accordance with the provisions of that decision. It follows from that article that such an arrest warrant is a 'judicial decision', which requires that it be issued by a 'judicial authority' within the meaning of Article 6 (1) of the framework decision (see, to that effect, judgments in case C-452/16 PPU, Poltorak, par. 28, and C-477/16 PPU, Kovalkovas, par. 29).

Under Article 6 (1) of the Framework Decision 2002/584/ JHA on the European arrest warrant, the issuing judicial authority is to be the judicial authority of the issuing Member State which is competent to issue a European arrest warrant by virtue of the law of that State.

Although, in accordance with the principle of procedural autonomy, the Member States may designate, in their national law, the 'judicial authority' with the competence to issue a European arrest warrant, the meaning and scope of that term cannot be left to the assessment of each Member State (see, to that effect, judgments in case C-452/16 PPU, Poltorak, par. 30 and 31, and C-477/16 PPU, Kovalkovas, par. 31 and 32).

That term requires, throughout the European Union, an autonomous and uniform interpretation, which, in accordance with the settled case-law of the Court, must take into account the wording of Article 6 (1) of the Framework Decision 2002/584/JHA on the European arrest warrant, its legislative scheme and the objective of that Framework Decision (see, to that effect, judgments in case C-452/16 PPU, Poltorak, par. 32, and C-477/16 PPU, Kovalkovas, par. 33).

In the first place, in that regard, it should be noted that the Court has previously held that the words 'judicial authority', contained in that provision, are not limited to designating only the judges or the courts of a Member State, but must be construed as designating, more broadly, the authorities participating in the administration of criminal justice in that Member State, as distinct from, inter alia ministries or police services which are part of the executive (see, to that effect, judgments in case C-452/16 PPU, Poltorak, pars. 33 and 35, and C-477/16 PPU, Kovalkovas, pars. 34 and 36).

It follows that the concept of a 'judicial authority', within the meaning of Article 6 (1) of the Framework Decision 2002/584/JHA on the European arrest warrant, 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.

That interpretation is borne out, first, by the legislative scheme of Article 6 (1) of the Framework Decision 2002/584/JHA on the European arrest warrant. In that regard, it must be stated that that Framework Decision is a measure governing judicial co-operation in criminal matters, which concerns mutual recognition not only of final judgments delivered by the criminal courts, but more broadly of decisions adopted by the judicial authorities of the Member States in criminal proceedings, including

the phase of those proceedings relating to criminal prosecution.

Judicial co-operation in criminal matters, as provided for in Article 31 of the Treaty on European union, which is the legal basis for the Framework Decision 2002/584/JHA on the European arrest warrant, referred, inter alia, to co-operation between judicial authorities of the Member States both in relation to proceedings and the enforcement of decisions.

The word 'proceedings', which should be understood in a broad sense, is capable of encompassing the entirety of criminal proceedings, namely the pre-trial phase, the trial itself and the enforcement of a final judgment delivered by a criminal court in respect of a person found guilty of a criminal offence.

That interpretation is supported by the wording of Article 82 (1) (d) pf the Treaty on the Functioning on the European Union, which replaced Article 31 of the Treaty on European Union EU, and which now states that judicial co-operation in criminal matters in the Union covers co-operation between judicial or equivalent authorities of the Member States in relation to proceedings in criminal matters and the enforcement of decisions.

Second, the above interpretation is also supported by the objective of the Framework Decision 2002/584/JHA on the European arrest warrant, which, as is clear from Recital No. 5 thereof, is to establish a system of free movement of judicial decisions in criminal matters, covering both pre-sentence and final decisions, within an area of freedom, security and justice.

The Framework Decision 2002/584/JHA on the European arrest warrant seeks, by the establishment of a simplified and effective system for the surrender of persons convicted or accused of having infringed criminal law, to facilitate and accelerate judicial co-operation with a view to contributing to the objective set for the European Union to become an area of freedom, security and justice, founded on the high level of trust which should exist between the Member States in accordance with the principle of mutual recognition (judgment in case C-571/17 PPU, Ardic, par. 69 and the case-law cited).

The issuing of a European arrest warrant may thus have two distinct aims, as laid down in Article 1 (1) of the Framework Decision 2002/584/JHA on the European arrest warrant. It may be issued either for the purposes of conducting a criminal prosecution in the issuing Member State or for the purposes of executing a custodial sentence or detention order in that Member State (see, to that effect, judgment in case C-306/09, B, par. 49).

Therefore, in so far as the European arrest warrant facilitates free movement of judicial decisions, prior to judgment, in relation to conducting a criminal prosecution, it must be held that those authorities which, under national law, are competent to adopt such decisions are capable of falling within the scope of the framework decision.

It follows that an authority, such as a public prosecutor's office, which is competent, in criminal proceedings, to prosecute a person suspected of having committed a criminal offence so that that person may be brought before a court, must be regarded as participating in the administration of justice of the relevant Member State.

In the present case, it is clear from the information in the case file before the Court that the Prosecutor General

of Lithuania has an essential role in the conduct of criminal proceedings in that Member State.

In that regard, in its written observations, the Lithuanian Government stated that, in accordance with Article 118 of the Constitution of the Republic of Lithuania, the functions of the public prosecutor include, inter alia, the organisation and direction of criminal investigations and the power to issue an indictment. According to the case-law of the Constitutional Court of the Republic of Lithuania (Lietuvos Respublikos Konstitucinis Teismas), those functions may be exercised only by the public prosecutor. Thus, it follows from that information that, in general, the part played by the Prosecutor General of Lithuania is to prepare the ground, in relation to criminal proceedings, for the exercise of judicial power by the criminal courts of that Member State.

In those circumstances, the Prosecutor General of Lithuania is capable of being regarded as participating in the administration of criminal justice in the Member State in question.

In the second place, it must be borne in mind that the Framework Decision 2002/584/JHA on the European arrest warrant aims to introduce a simplified system of surrender directly between judicial authorities designed to replace a traditional system of co-operation between sovereign States - which involves the intervention and assessment of the executive - in order to ensure the free circulation of court decisions in criminal matters, within an area of freedom, security and justice (see, to that effect, judgment in case C-477/16 PPU, Kovalkovas, par. 41).

In that context, where a European arrest warrant is issued with a view to the arrest and surrender by another Member State of a requested person for the purposes of conducting a criminal prosecution, that person must have already had the benefit, at the first stage of the proceedings, of procedural safeguards and fundamental rights, the protection of which it is the task of the judicial authorities of the issuing Member State to ensure, in accordance with the applicable provisions of national law, for the purpose, inter alia, of adopting a national arrest warrant (judgment in case C-241/15, Bob-Dogi, par. 55).

The European arrest warrant system therefore 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 in case C-241/15, Bob-Dogi, par. 56).

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, enshrined in Article 6 of the Charter of Fundamental Rights of the European Union, 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.

It follows that, where the law of the issuing Member State confers the competence to issue a European arrest warrant on an authority which, whilst participating

in the administration of justice in that Member State, is not a judge or a court, the national judicial decision, such as a national arrest warrant, on which the European arrest warrant is based, must, itself, meet those requirements.

Where those requirements are met, the executing judicial authority may therefore be satisfied that the decision to issue a European arrest warrant for the purpose of criminal prosecution is based on a national procedure that is subject to review by a court and that the person in respect of whom that national arrest warrant was issued has had the benefit of all safeguards appropriate to the adoption of that type of decision, inter alia those derived from the fundamental rights and fundamental legal principles referred to in Article 1 (3) of the Framework Decision 2002/584/JHA on the European arrest warrant.

The second level of protection of the rights of the person concerned means that the judicial authority competent to issue a European arrest warrant by virtue of domestic law must review, in particular, observance of the conditions necessary for the issuing of the European arrest warrant and examine whether, in the light of the particular circumstances of each case, it is proportionate to issue that warrant (see, to that effect, judgment in case C-477/16 PPU, Kovalkovas, par. 47).

It is for the 'issuing judicial authority', referred to in Article 6 (1) of the Framework Decision 2002/584/JHA on the European arrest warrant, namely the entity which, ultimately, takes the decision to issue the European arrest warrant, to ensure that second level of protection, even where the European arrest warrant is based on a national decision delivered by a judge or a court.

Thus, the ' issuing judicial authority', within the meaning of Article 6 (1) of the Framework Decision 2002/584/JHA on the European arrest warrant, must be capable of exercising its responsibilities objectively, taking into account all incriminatory and exculpatory evidence, without being exposed to the risk that its decision-making power be subject to external directions or instructions, in particular from the executive, such that it is beyond doubt that the decision to issue a European arrest warrant lies with that authority and not, ultimately, with the executive (see, to that effect, judgment in case C-477/16 PPU, Kovalkovas, par. 42).

Accordingly, the issuing judicial authority must be in a position to give assurances to the executing judicial authority that, as regards the guarantees provided by the legal order of the issuing Member State, it acts independently in the execution of those of its responsibilities which are inherent in the issuing of a European arrest warrant. That independence requires 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.

In addition, where the law of the issuing Member State confers the 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 ca-

pable of being the subject, in the Member State, of court proceedings which meet in full the requirements inherent in effective judicial protection.

In the present case, it is clear from the written observations of the Lithuanian Government that in Lithuania the responsibility for the issuing of European arrest warrants ultimately lies with the Prosecutor General of Lithuania who acts on a request from the specific public prosecutor dealing with the case in connection with which the surrender of the person concerned is sought. In exercising the powers conferred on him, the Prosecutor General of Lithuania must satisfy himself that the requirements necessary in order to issue a European arrest warrant are met, in particular that a judicial decision having the immediate effect of remanding that person in custody has been made and that, in accordance with Lithuanian law, that decision has been made by a judge or a pre-trial investigation court.

The Lithuanian Government also stated in its written observations that, in exercising their functions, Lithuanian public prosecutors enjoy the benefit of independence conferred by the Constitution of the Republic of Lithuania, in particular in the third paragraph of Article 118 thereof, and by the provisions of the Law on the Public Prosecutor's Office of the Republic of Lithuania (Lietuvos Respub-likos prokuraturos \statymas). Since the Prosecutor General of Lithuania is a public prosecutor, he has the benefit of that independence, which allows him to act free of any external influence, inter alia from the executive, in exercising his functions, in particular when he is to decide, as in the case in the main proceedings, whether to issue a European arrest warrant for the purposes of prosecution. In that capacity, the Prosecutor General of Lithuania is also required to ensure respect for the rights of the persons concerned.

In the light of those factors, it is apparent that the Prosecutor General of Lithuania may be considered to be an 'issuing judicial authority', within the meaning of Article 6 (1) of the Framework Decision 2002/584/JHA on the European arrest warrant, in so far as his legal position in that Member State safeguards not only the objectivity of his role, but also affords him a guarantee of independence from the executive in connection with the issuing of a European arrest warrant. Nevertheless, it cannot be ascertained from the information in the case file before the Court whether a decision of the Prosecutor General of Lithuania to issue a European arrest warrant may be the subject of court proceedings which meet in full the requirements inherent in effective judicial protection, which it is for the referring court to determine.

Rulings

The Court of Justice in answer to the questions referred to it rules: The concept of an 'issuing judicial authority', within the meaning of Article 6(1) of the Framework Decision 2002/584/JHA on the European arrest warrant, must be interpreted as including the Prosecutor General of a Member State who, whilst institutionally independent from the judiciary, is responsible for the conduct of criminal prosecutions and whose legal position, in that Member State, affords him a guarantee of independence from the executive in connection with the issuing of a European arrest warrant.

JUDGMENT OF THE COURT OF JUSTICE

OF THE EUROPEAN UNION OF 9 OCTOBER 2019 -

CASE C-489/19 PPU - NJ

Reference for a Preliminary Ruling

The request for a preliminary ruling concerns the interpretation of Article 6 (1) of the Framework Decision 2002/584/JHA on the European arrest warrant.

The request was made in the context of the execution in Germany of a European arrest warrant issued against NJ on 16 May 2019 by Austrian Public Prosecutor's Office in Vienna (Staatsanwaltschaft Wien) and endorsed on 20 May 2019 by a decision of the Regional Court in Vienna (Landesgericht Wien).

Dispute in the Main Proceedings

and the Question Referred for a Preliminary Ruling

The Public Prosecutor's Office, Vienna, brought criminal proceedings against NJ in respect of four acts, which the referring court classifies, in particular, as theft committed in a professional capacity, punishable in the issuing Member State, according to the referring court, by a custodial sentence of 'a maximum of at least 3 years' within the meaning of Article 2 (2) of the Framework Decision 2002/584/JHA on the European arrest warrant. That court considers that other acts of which NJ is accused, such as coercion, are punishable in the issuing and requested Member States by a maximum custodial sentence of at least 12 months.

For the purpose of prosecuting those acts, the Public Prosecutor's Office in Vienna, issued a European arrest warrant against NJ on 16 May 2019, which was endorsed, in accordance with the first sentence of Article 29 (1) of the Law on judicial co-operation in criminal matters with the Member States of the European Union (Gesetz über die Justizielle Zusammenarbeit in Strafsachen mit den Mitgliedstaaten der Europäischen Union; hereinafter "Law on judicial co-operation in criminal matters"), on 20 May 2019, by the Regional Court in Vienna (Landesgericht Wien).

NJ has been placed in provisional detention in Berlin, Germany, since 14 May 2019, in connection with criminal proceedings against him in Germany for theft. According to the referring court, NJ, when questioned on 24 May 2019, did not consent to simplified extradition.

The referring court observes that the Austrian Public Prosecutor's Offices are subject to directions or instructions in a specific case from the executive, in this case the Federal Minister for Justice. Accordingly, it is doubtful as to the compatibility of the procedure for issuing a European arrest warrant in Austria with the requirements arising from the judgment in joined cases C-508/18 and C-82/19 PPU, OG & PI. In particular, that court entertains doubts as to the status of the Public Prosecutor's Office, Vienna, as a 'judicial authority'.

However, Austrian Public Prosecutor's Offices do not independently issue European arrest warrants in so far as Article 29 of the Law on judicial co-operation in criminal matters provides for the endorsement of such a warrant by a court. The endorsement procedure includes an examination of the legality and proportionality of the European arrest warrant concerned and is subject to judicial review. For those reasons, the referring court considers that

it is possible to take the view that the power to decide whether to issue a European arrest warrant ultimately rests with the court responsible for endorsing it.

However, by order of 29 May 2019, the referring court ordered, in view of the doubts raised in the previous Article, NJ to be placed in provisional detention with a view to surrendering him to the Austrian authorities.

In those circumstances, German Higher Regional Court in Berlin (Kammergericht Berlin) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling - Does the fact that a public prosecutor's office is required to act on instruction preclude it from effectively issuing a European arrest warrant even in the case where that decision is subject to a comprehensive judicial review prior to the execution of the European arrest warrant?4

Consideration by the Court of Justice5

By its question, the referring court asks, in essence, whether the concept of 'European arrest warrant' referred to in Article 1 (1) of the Framework Decision 2002/584/ JHA on the European arrest warrant must be interpreted as covering European arrest warrants issued by the public prosecutor's offices of a Member State which are exposed to the risk of being subject, directly or indirectly, to directions or instructions in a specific case from the executive, such as a Minister for Justice, in connection with the issue of those arrest warrants, which must be endorsed by a court which, within the framework of that procedure, in order that they may be transmitted by the public prosecutor's offices, must check the conditions necessary for the issue and the proportionality of those arrest warrants.

In that regard, It is important to bear in mind that the European arrest warrant system introduced by the Framework Decision 2002/584/JHA on the European arrest warrant is based on the principle of mutual recognition, which is itself founded on the mutual confidence between the Member States that their national legal systems are capable of providing equivalent and effective protection of the fundamental rights recognised at EU level, particularly in the Charter of Fundamental Rights of the European Union (judgment in case C-453/16 PPU, Ozgelik, par. 23 and the case-law cited).

Article 1 (1) of the Framework Decision 2002/584/JHA on the European arrest warrant defines the European arrest warrant as 'a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order'. The principle of mutual recognition proceeds from the assumption, in that regard, that only European arrest warrants, within the meaning of that provision, must be executed in accordance with the provisions of the Framework Decision 2002/584/JHA on the European arrest warrant (judgment in joined cases C-508/18 and C-82/19 PPU, OG & PI, par. 46).

4 Reference for a preliminary ruling from the Kammergericht Berlin (Germany) made on 26 June 2019. NJ (Case C-489/19 PPU).

5 See also: Opinion of Advocate General Sharpston delivered on 17 September 2019 - Case C-489/19 PPU. NJ (Public Prosecutor's Office, Vienna). Criminal proceedings in the presence of Generalstaatsanwaltschaft Berlin.

That principle is based on the premiss that the European arrest warrant concerned was issued in accordance with the minimum requirements on which its validity depends, including those laid down in Article 8 of the Framework Decision 2002/584/JHA on the European arrest warrant, in particular the requirement that there be an arrest warrant or other national judicial decision to which the European arrest warrant is attached (see, to that effect, judgment in case C-241/15, Bob-Dogi, par. 53).

As is clear from the established case-law, the concept of 'judicial decision', within the meaning of the Framework Decision 2002/584/JHA on the European arrest warrant, is not limited to designating only decisions of the judges or courts of a Member State, but must be construed as designating, more broadly, the decisions adopted by the authorities participating in the administration of criminal justice in that Member State, such as the Austrian Public Prosecutor's Office, as distinct from, inter alia, ministries or police services which are part of the executive (see, to that effect, judgment in joined cases C-508/18 and C-82/19 PPU, OG & PI, par. 50).

That said, decisions on the issue of a European arrest warrant must include the guarantees specific to judicial decisions, in particular those resulting from the fundamental rights referred to in Article 1 (3) of the Framework Decision 2002/584/JHA on the European arrest warrant.

In that regard, it must be borne in mind that the Framework Decision 2002/584/JHA on the European arrest warrant aims to introduce a simplified system of surrender directly between judicial authorities designed to replace a traditional system of co-operation between sovereign States - which involves the intervention and assessment of the executive - in order to ensure the free circulation of court decisions in criminal matters, within an area of freedom, security and justice (judgment in joined cases C-508/18 and C-82/19 PPU, OG & PI, par. 65).

In that context, where a European arrest warrant is issued with a view to the arrest and surrender by another Member State of a requested person for the purposes of conducting a criminal prosecution, that person must have already had the benefit, at the first stage of the proceedings, of procedural safeguards and fundamental rights, the protection of which it is the task of the judicial authorities of the issuing Member State to ensure, in accordance with the applicable provisions of national law, for the purpose, inter alia, of adopting a national arrest warrant (see, to that effect, judgment in joined cases C-508/18 and C-82/19 PPU, OG & PI, par. 66).

The Court has thus considered that 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 in joined cases C-508/18 and C-82/19 PPU, OG & PI, par. 67).

In addition, it should be recalled that, since the issuing of a European arrest warrant, which is capable of impinging on the right to liberty of the person concerned, enshrined in Article 6 of the Charter of Fundamental Rights

of the European Union, 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 in joined cases C-508/18 and C-82/19 PPU, OG & PI, par. 68).

In that regard, it should be noted, first, that, where those requirements are met, the executing judicial authority may be satisfied that the decision to issue a European arrest warrant for the purpose of criminal prosecution is based on a national procedure that is subject to review by a court and that the person in respect of whom that national arrest warrant was issued has had the benefit of all safeguards derived from the fundamental rights and fundamental legal principles referred to in Article 1 (3) of the Framework Decision 2002/584/JHA on the European arrest warrant (judgment in joined cases C-508/18 and C-82/19 PPU, OG & PI, par. 70).

Second, the review carried out at the time of adoption of an arrest warrant must include an examination of the observance of the conditions necessary for the issuing of that arrest warrant and of whether, in the light of the particular circumstances of each case, it is proportionate to issue that warrant (see, to that effect, judgment in joined cases C-508/18 and C-82/19 PPU, OG & PI, par. 71).

Third, that review must be exercised objectively, taking into account all incriminatory and exculpatory evidence, and independently, which presupposes the existence of statutory rules and an institutional framework capable of excluding any risk that the adoption of a decision to issue such an arrest warrant be subject to external instructions, in particular from the executive (see, to that effect, judgment in joined cases C-508/18 and C-82/19 PPU, OG & PI, pars. 73 and 74).

In the present case, it appears from the information in the file before the Court that, in circumstances such as those at issue in the main proceedings, Austrian law provides that, both in the context of the decision to issue a national arrest warrant and in the context of the decision to issue a European arrest warrant, the Public Prosecutor's Offices of the Republic of Austria are to order an arrest by means of an arrest warrant, which must be endorsed, in order that it may be transmitted by a court which is to carry out, in that regard, a review of the conditions of the issue and its proportionality. The endorsement decision is subject to appeal before the courts.

In addition, it is common ground that the courts responsible for the endorsement of European arrest warrants meet the requirement of objectivity and independence. However, in the case of the Austrian Public Prosecutor's Offices, Article 2 (1) of the Law on Public Prosecutor's Offices (Staatsanwaltschaftsgesetz) states that they are directly subordinate to the higher public prosecutor's offices and subject to their instructions and that the latter are in turn subordinate to the Federal Minister of Justice. Given that the necessary independence requires that there be statutory rules and an institutional framework capable of guaranteeing that the issuing judicial authority is not exposed, when adopting a European arrest warrant, to any risk of being subject, inter alia, to an instruction in a specific case from the executive, the Austrian Public Prosecutor's Offices cannot be regarded as satisfying that requirement (see, by analogy, judgment in joined cases C-508/18 and C-82/19 PPU, OG & PI, pars. 74 and 84).

The question therefore arises as to whether, in those circumstances, decisions relating to the issue of a European arrest warrant, adopted in accordance with the Austrian system, can be regarded as satisfying the minimum requirements on which their validity depends as regards the objectivity and independence of the review carried out when those decisions are adopted.

In that context, it must be pointed out that the concept of 'decision' must be understood as referring to the act in the form which it takes when it is executed. Indeed, it is at that time and in that form that the decision to issue the European arrest warrant is likely to impinge on the right to freedom of the person requested.

In the present case, first of all, it appears from the information in the file submitted to the Court that the decision to issue a national arrest warrant and that to issue a European arrest warrant must, under Article 171 (1) of German Code of Criminal Procedure (Strafprozeßordnung) and the first sentence of Article 29 (1) of the Law on judicial co-operation in criminal matters, respectively, be endorsed by a court before their transmission. Thus, in the absence of endorsement of the decisions of the public prosecutor's office, arrest warrants do not produce legal effects and cannot be transmitted, which was confirmed by the Austrian Government at the hearing.

Second, it is apparent from the request for a preliminary ruling that, in the context of the endorsement procedure, the court examines the conditions necessary for the issue of the arrest warrant concerned and its proportionality, taking into account the particular circumstances of each specific case. In that regard, in its observations and at the hearing before the Court, the Austrian Government specified that, first, any instructions from the executive must be in writing and added to the criminal file which is transmitted in full to the court responsible for the endorsement. Second, the review of proportionality carried out by that court relates, in the context of the endorsement of a national arrest warrant, to the effects of the deprivation of liberty alone caused by it and, in the context of the endorsement of a European arrest warrant, to the impinging on the rights of the person concerned which goes beyond the infringements of his right to freedom already examined. The court responsible for the endorsement of a European arrest warrant is required to take into account, in particular, the effects of the surrender procedure and the transfer of the person concerned residing in a Member State other than the Republic of Austria on that person's social and family relationships.

Finally, it is clear from Article 105 (2) of the German Code of Criminal Procedure (Strafprozeßordnung) that the court responsible for endorsing arrest warrants is not bound by the results of the investigation conducted by the public prosecutor's offices and must not be limited to the indications and grounds for the injunction set out by them. In that regard, the Austrian Government confirmed, at the hearing before the Court, that the court responsible for the endorsement of arrest warrants may, at any time, order additional investigations or carry them out itself.

It therefore appears that the issue of a European arrest warrant is, under Austrian law, subject in its entirety to objective and independent review by a court which carries out a full review in that regard of the conditions for the issue of that arrest warrant and of its proportionality. It is only after the endorsement of the arrest warrant concerned

by that court that that arrest warrant produces legal effects and can be transmitted. However, in that it systematically takes place ex officio before the arrest warrant produces legal effects and can be transmitted, such a review is distinct from a right to a remedy, such as that referred to in pars. 85 to 87 of the judgment in joined cases C-508/18 and C-82/19 PPU, OG & PI, which takes place only a posteriori and at the request of the person concerned.

Moreover, in essence, it is apparent from the file submitted to the Court that the court responsible for the endorsement of a European arrest warrant exercises its review independently and in full knowledge of any instructions that may have been issued in advance and adopts, at the end of that review, a decision that is independent of the decision of the public prosecutor's office, going beyond a mere confirmation of the legality of that decision.

In those circumstances, the decision concerning the European arrest warrant in the form in which it will be transmitted must be deemed to satisfy the requirements of objectivity and independence of the review carried out at the time of the adoption of that decision.

Rulings

The Court of Justice in answer to the question referred to it rules: The concept of a 'European arrest warrant' referred to in Article 1 (1) of the Framework Decision 2002/584/JHA on the European arrest warrant, must be interpreted as meaning that European arrest warrants issued by the public prosecutor's offices of a Member State fall within that concept, despite the fact that those public prosecutor's offices are exposed to the risk of being subject, directly or indirectly, to directions or instructions in a specific case from the executive, such as a Minister for Justice, in the context of the issue of those arrest warrants, provided that those arrest warrants are subject, in order to be transmitted by those public prosecutor's offices, to endorsement by a court which reviews independently and objectively, having access to the entire criminal file to which any specific directions or instructions from the executive are added, the conditions of issue and the proportionality of those arrest warrants, thus adopting an autonomous decision which gives them their final form.

JUDGMENT OF THE COURT OF JUSTICE

OF THE EUROPEAN UNION OF 12 DECEMBER 2019 -

JOINED CASES C-566/19 PPU

AND C-626/19 PPU - JR & YC

References for a preliminary ruling

The requests for a preliminary ruling concern the interpretation of Article 6 (1) of the Framework Decision 2002/584/JHA on the European arrest warrant.

The requests have been made in proceedings in Luxembourg and the Netherlands, respectively, concerning the execution of European arrest warrants issued on 24 April 2019 by the public prosecutor at French Regional Court in Lyon (Tribunal de grande instance de Lyon) in connection with criminal proceedings in respect of case C-566/19 PPU, JR and on 27 March 2019 by the public prosecutor at French Regional Court in Tours (Tribunal de grande instance de Tours) in connection with criminal proceedings in respect of case C-626/19 PPU, YC.

Dispute in the main proceedings

and the question referred for a preliminary ruling -

Case C-566/19 PPU - JR

On 24 April 2019, the public prosecutor at the Regional Court in Lyon (Tribunal de grande instance de Lyon) issued a European arrest warrant in connection with criminal proceedings in respect of JR, suspected of having been involved in offences linked to a criminal organisation.

The warrant was issued pursuant to a national arrest warrant issued on the same day by the investigating judge of the Regional Court in Lyon (Tribunal de grande instance de Lyon).

On the same day, JR was arrested in Luxembourg on the basis of the European arrest warrant. However, on 25 April 2019, the investigating judge of the District Court in Luxembourg (Tribunal d'arrondissement de Luxembourg) before which JR had been brought, released him after concluding that the description of the facts contained in that European arrest warrant was very succinct and did not enable the investigating judge to understand the nature of the offences of which JR was accused.

On 28 May 2019, the State Prosecutor in Luxembourg (Procureur d'État du Luxembourg) requested that the Investigation Chamber of the District Court in Luxembourg (Chambre du conseil du tribunal d'arrondissement de Luxembourg) declare that JR should be surrendered to the French authorities.

By order of 19 June 2019, the Pre-trial Chamber of the District Court in Luxembourg stated that it had no jurisdiction to hear JR's application for a declaration that the European arrest warrant was invalid and granted the request for the surrender of JR to the French authorities.

JR appealed against that order to the Court of Appeal in Luxembourg (Cour d'appel), arguing, primarily, that public prosecutors in France cannot be regarded as an issuing judicial authority within the meaning of Article 6 (1) of the Framework Decision 2002/584/JHA on the European arrest warrant, as they may be subject to indirect instructions from the executive.

The referring court considers that, prima facie, the judges attached to the Public Prosecutor's Office could be regarded as fulfilling the requirements of independence laid down by the judgment in joined cases C-508/18 and C-82/19 PPU, OG & PI, as, according to Article 30 of the Code of Criminal Procedure, the Minister for Justice cannot issue instructions to them in individual cases. Nevertheless, the referring court notes that Article 36 of the Code of Criminal Procedure (Code de procédure pénale) authorises the Principal Public Prosecutor, if he considers it appropriate, to direct public prosecutors, by written instructions, to commence criminal proceedings or make written submissions to the competent court.

Accordingly, the referring court is uncertain whether that hierarchical constraint is compatible with the requirements of independence to be fulfilled for classifying a national authority as an issuing judicial authority within the meaning of Article 6 (1) of the Framework Decision 2002/584/JHA on the European arrest warrant.

That court also argues that the Public Prosecutor's Office is characterised by its indivisibility, in that an action taken by one prosecutor is one which is performed on behalf of the Public Prosecutor's Office as a whole. Moreover,

while it is supposed to monitor, in any given case, whether the conditions to be met when issuing a European arrest warrant have been complied with and to examine whether such a warrant is proportionate, the Public Prosecutor's Office is, at the same time, the authority responsible for conducting criminal proceedings in the same case, with the result that its impartiality may be in doubt.

In those circumstances, the Court of Appeal in Luxembourg (Cour d'appel), decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling - Can the French Public Prosecutor's Office at the investigating court or trial court, which has jurisdiction in France, under the law of that State, to issue a European arrest warrant, be considered to be an issuing judicial authority, within the autonomous meaning of that term in Article 6(1) of the Framework Decision 2002/584/JHA on the European arrest warrant in circumstances where, deemed to monitor compliance with the conditions necessary for the issue of a European arrest warrant and to examine whether such a warrant is proportionate in relation to the details of the criminal file, it is, at the same time, the authority responsible for the criminal prosecution in the same case?6

Dispute in the main proceedings

and the questions referred for a preliminary ruling -

Case C-626/19 PPU, YC

On 27 March 2019, the public prosecutor at the Regional Court in Tours (Tribunal de grande instance de Tours) issued a European arrest warrant in connection with criminal proceedings in respect of YC, suspected of having participated in an armed robbery in France.

That warrant was issued pursuant to a national arrest warrant issued the same day by the investigating judge of the Regional Court in Tours (Tribunal de grande instance de Tours).

On 5 April 2019, YC was arrested in the Netherlands on the basis of the European arrest warrant.

On the same day, the Public Prosecutor's Office in the Netherlands (Openbaar Ministerie) lodged an application for consideration of that European arrest warrant before the District Court in Amsterdam (Rechtbank Amsterdam), pursuant to Article 23 of the Law on Surrender (Overleveringswet) of 29 April 2004, in the version applicable to the main proceedings.

The referring court considers that, as is apparent from pars. 50, 74 and 75 of the judgment joined cases C-508/18 and C-82/19 PPU, OG & PI, a public prosecutor may be regarded as an issuing judicial authority within the meaning of Article 6 (1) of the Framework Decision 2002/584/JHA on the European arrest warrant, if he or she participates in the administration of justice in the issuing Member State, if he acts independently and if his decision to issue a European arrest may be the subject of court proceedings.

In the present case, that court considers that the first two requirements are fulfilled, in so far as, in France, judges attached to the Public Prosecutor's Office participate in the administration of justice and are not exposed to any risk of being directly or indirectly subject to orders or instructions in a specific case from the executive.

6 Reference for a preliminary ruling from the Cour d'appel (Luxem-

bourg) made on 25 July 2019. JR (Case C-566/19).

On the other hand, as regards the third requirement, that court observes that, as is apparent from the information provided to it by the French authorities, the decision to issue a European arrest warrant and the question whether such a warrant is proportionate are not capable of being the subject of separate court proceedings. However, in practice, an investigating judge, when issuing the national arrest warrant on which the European arrest warrant is based, also examines the conditions under which the European arrest warrant was issued and whether it is proportionate.

In the light of those considerations, the referring court is uncertain, first, whether a judicial assessment of the proportionality of the prospective issuing a European arrest warrant carried out at the time of issuing the national arrest warrant, and thus prior to the actual decision by the Public Prosecutor's Office to issue the European arrest warrant, fulfils, in essence, the requirements set out in par. 75 of the judgment in joined cases C-508/18 and C-82/19 PPU, OG & PI, under which the decision of the Public Prosecutor's Office to issue a European arrest warrant must be capable of being the subject of court proceedings which meets in full the requirements inherent in effective judicial protection.

Secondly, given that, according to the information provided to the referring court by the French authorities, an application for a declaration that a European arrest warrant is invalid may be brought before a court by the person concerned after his actual surrender to the issuing Member State, the referring court asks whether that possibility fulfils those requirements.

In those circumstances, the District Court in Amsterdam (Rechtbank Amsterdam)decided to stay proceedings and to refer the following questions to the Court for a preliminary ruling:7

1. Can a Public Prosecutor who participates in the administration of justice in the issuing Member State, who acts independently in the execution of those of his responsibilities which are inherent in the issuing of a European arrest warrant, and who has issued such a warrant, be regarded as an issuing judicial authority within the meaning of Article 6 (1) of the Framework Decision 2002/584/JHA on the European arrest warrant if a judge in the issuing Member State has assessed the conditions for issuing a European arrest warrant and, in particular, the proportionality thereof, prior to the actual decision of that Public Prosecutor to issue that warrant?

2. If the answer to the first question is in the negative: has the condition been met that the decision of the Public Prosecutor to issue a European arrest warrant and, in particular, the question of its proportionality, must be capable of being the subject of court proceedings which meet in full the requirements inherent in effective judicial protection as referred to in par. 75 of the judgment of the Court of Justice in joined cases C-508/18 and C-82/19 PPU, OG & PI if, after his actual surrender, the requested person can avail himself of a legal remedy under which the invalidity of that warrant may be invoked before a court in the issuing Member State and under which that court examines, inter alia, whether the decision to issue the warrant was proportionate?

7 Reference for a preliminary ruling from the Rechtbank Amsterdam (Netherlands) made on 22 August 2019. Openbaar Ministerie (Case C-626/19 PPU).

Consideration by the Court of Justice8: Preliminary observations

By their questions, which it is appropriate to examine together, the referring courts ask, in essence (i) whether Article 6 (1) of the Framework Decision 2002/584/JHA on the European arrest warrant must be interpreted as meaning that the concept of 'issuing judicial authority', within the meaning of that provision, includes the public prosecutors of a Member State, who are responsible for conducting prosecutions and act under the direction and supervision of their hierarchical superiors, and (ii) whether the requirement to monitor compliance with the conditions to be met when issuing a European arrest warrant for the purpose of criminal proceedings, and in particular the proportionality of such a warrant, as referred to in par. 75 of the judgment in joined cases C-508/18 and C-82/19 PPU, OG & PI, is fulfilled where a court in the issuing Member State monitors compliance with those conditions and examines the proportionality of the decision to issue a European arrest warrant before that decision is adopted and, if not, whether that requirement is fulfilled where the decision is also amenable to judicial review after the actual surrender of the requested person.

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 in case C-216/18 PPU, Minister for Justice and Equality, par. 36 and the case-law cited).

It should also be observed that, as stated in Recital No. 6 thereof, the Framework Decision 2002/584/JHA on the European arrest warrant is the first concrete measure in the field of criminal law implementing the principle of mutual recognition of judgments and judicial decisions enshrined in Article 82 (1) of the Treaty on the Functioning on the European Union, which replaced Article 31 EU, on the basis of which that Framework Decision was adopted. Since then, the field of judicial co-operation in criminal matters has gradually acquired legal instruments whose coordinated application is intended to strengthen the confidence of Member States in their respective national legal orders with a view to ensuring that judgments in criminal matters are recognised and enforced within the European Union in order to ensure that persons who have committed offences do not go unpunished.

The principle of mutual recognition, which underpins the Framework Decision 2002/584/JHA on the European arrest warrant, means that, in accordance with Article 1 (2) thereof, the Member States are in principle obliged to act upon a European arrest warrant (judgment in case C-261/09, Mantello, par. 36 and the case-law cited).

8 See also: Opinion of Advocate General Campos Sánchez-Bordona delivered on 26 November 2019 - Joined Cases C-566/19 PPU and C-626/19 PPU - Parquet général du Grand-Duché de Luxembourg versus JR and Openbaar Ministerie versus YC.

According to the provisions of the Framework Decision 2002/584/JHA on the European arrest warrant, 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 in case C-396/11, Radu, par. 36 and the case-law cited).

It should also be noted that the effectiveness and proper functioning of the simplified system for the surrender ofper-sons convicted or suspected of having infringed criminal law, established by the Framework Decision 2002/584/JHA on the European arrest warrant, 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 the present case, the requirements in respect of which the referring courts seek clarification relate, on the one hand, to the concept of 'issuing judicial authority', within the meaning of Article 6 (1) of the Framework Decision 2002/584/JHA on the European arrest warrant, and, on the other hand, to the scope of the effective judicial protection to be afforded to persons subject to a European arrest warrant.

In that regard 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 the Framework Decision 2002/584/JHA on the European arrest warrant. 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.

That interpretation is supported by the judgment in case C-509/18, PF, in which the Court held that the Prosecutor General of a Member State who, whilst institutionally independent of the judiciary, is responsible for the conduct of prosecutions and whose legal position, in that Member State, affords him a guarantee of independence from the executive in connection with the issuing of a European arrest warrant, must be regarded as an issuing judicial authority, within the meaning of the Framework Decision 2002/584/JHA on the European arrest warrant, and left it to the referring court to verify also whether a decision of that prosecutor may be the subject of court proceedings which meet in full the requirements inherent in effective judicial protection.

Consideration by the Court of Justice: The concept of 'issuing judicial authority'

Article 6 (1) of the Framework Decision 2002/584/JHA on the European arrest warrant describes the issuing judicial authority as the judicial authority of the issuing Member State which is competent to issue a European arrest warrant by virtue of the law of that State.

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 the Framework Decision 2002/584/JHA on the European arrest warrant, its legislative scheme and the objective of that Framework Decision (see, to that effect, judgment in joined cases C-508/18 and C-82/19 PPU, OG & PI, pars. 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 the Framework Decision 2002/584/JHA on the European arrest warrant, 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 in joined cases C-508/18 and C-82/19 PPU, OG & PI, pars. 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.

As regards the question whether those judges act independently in the execution of those of their responsibilities which are inherent in the issuing of a European arrest warrant, it is apparent from the written and oral observations submitted at the hearing before the Court by the French Government that Article 64 of the Constitution guarantees the independence of the judicial authorities, which comprises judges and public prosecutors, and that, under Article 30 of the Code of Criminal Procedure, the Public Prosecutor's Office carries out its duties objectively, free from any instruction in a specific case from the executive, since the Minister for Justice may issue only general instructions concerning criminal justice policy to public prosecutors in order to ensure that that policy is consistently applied throughout the territory. According to that government, under no circumstances can those general instructions have the effect of preventing a public prosecutor from exercising his discretion as to the proportionality of issuing a European arrest warrant. Moreover, in accordance with Article 31 of the Code of Criminal Procedure, the Public Prosecutor's Office conducts prosecutions and ensures that the law is applied in accordance with the principle of impartiality.

The facts outlined above are sufficient to demonstrate that, in France, public prosecutors have the power to assess independently, in particular in relation to the executive, the necessity and proportionality of a decision to issue a European arrest warrant and exercise that power objectively, taking into account all incriminatory and exculpatory evidence.

While it is true that public prosecutors are required to comply with instructions from their hierarchical superiors, it is clear from the Court's case-law, in particular the judgments in joined cases C-508/18 and C-82/19 PPU,

OG & PI, and case C-509/18, PF, that the requirement of independence, which means that the decision-making powers of public prosecutors cannot be subject to instructions from outside the judiciary, in particular those issued by the executive, does not prohibit any internal instructions which may be given to public prosecutors by their hierarchical superiors, who are themselves public prosecutors, on the basis of the hierarchical relationship underpinning the functioning of the Public Prosecutor's Office.

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 Principal Public Prosecutor's Office of the Grand Duchy of Luxembourg (Parquet général du Grand-Duché de Luxembourg) pointed out at the hearing before the Court, the term 'issuing judicial authority', within the meaning of Article 6 (1) of the Framework Decision 2002/584/JHA on the European arrest warrant, 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 in case C-509/18, PF, par. 57).

In the light of all the foregoing considerations, Article 6 (1) of the Framework Decision 2002/584/JHA on the European arrest warrant must be interpreted as meaning that the public prosecutors of a Member State who are responsible for conducting prosecutions and act under the direction and supervision of their hierarchical superiors are covered by the term 'issuing judicial authority', within the meaning of that provision, provided that their status affords them a guarantee of independence, in particular in relation to the executive, in connection with the issuing of a European arrest warrant.

Consideration by the Court of Justice: The right to effective judicial protection

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 in joined cases C-508/18 and C-82/19 PPU, OG & PI, par. 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 in joined cases C-508/18 and C-82/19 PPU, OG & PI, par. 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 ob-

jectively - 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 in joined cases C-508/18 and C-82/19 PPU, OG & PI, pars. 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 in joined cases C-508/18 and C-82/19 PPU, OG & PI, par. 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 the Framework Decision 2002/584/JHA on the European arrest warrant, 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.

The Framework Decision 2002/584/JHA on the European arrest warrant 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 in case C-168/13 PPU, F, par. 53).

In the present case, as is apparent from the documents before the Court, the issuing of a European arrest warrant in connection with criminal proceedings is, in the French legal system, necessarily based on a national arrest warrant issued by a court, usually by an investigating judge. According to Article 131 of the Code of Criminal Procedure, if the requested person has absconded or lives outside French territory, the investigating judge, after consulting the public prosecutor, may issue an arrest warrant against that person if the alleged offence carries a penalty of imprisonment or a more serious penalty.

It follows from the order for reference in Case C-626/19 PPU that, when a European arrest warrant is issued by the Public Prosecutor's in connection with criminal proceedings, the court which issued the national arrest warrant on the basis of which the European arrest warrant was issued at the same time requests the Public Prosecutor's Office to issue a European arrest warrant and carries out an assessment of the conditions to be met when issuing

such a European arrest warrant and, in particular, whether it is proportionate.

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 Code of Criminal Procedure. 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.

In addition, the Framework Decision 2002/584/JHA on the European arrest warrant forms part of a comprehensive system of safeguards relating to effective judicial protection provided for by other EU rules, adopted in the field of judicial co-operation in criminal matters, which contribute to helping a person requested on the basis of a European arrest warrant to exercise his rights, even before his surrender to the issuing Member State.

In particular, Article 10 of Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty requires the competent authority of the executing Member State to inform the persons whose surrender is sought without undue delay after they have been deprived of their liberty that they have the right to appoint a lawyer in the issuing Member State.

Rulings

The Court of Justice in answer to the questions referred to it rules:

1. Article 6 (1) of the Framework Decision 2002/584/JHA on the European arrest warrant, must be interpreted as meaning that the public prosecutors of a Member State, who are responsible for conducting prosecutions and act under the direction and supervision of their hierarchical superiors are covered by the term 'issuing judicial authority?, within the meaning of that provision, provided that their status affords them a guarantee of independence, in particular in relation to the executive, in connection with the issuing of a European arrest warrant.

2. The Framework Decision 2002/584/JHA on the European arrest warrant, must be interpreted as meaning that the requirements inherent in effective judicial pro-

tection which must be afforded any person in respect of whom a European arrest warrant is issued in connection with criminal proceedings are fulfilled if, according to the law of the issuing Member State, the conditions for issuing such a warrant, and in particular its proportionality, are subject to judicial review in that Member State.

JUDGMENT OF THE COURT OF JUSTICE

OF THE EUROPEAN UNION OF 12 DECEMBER 2019 -

CASE C-625/19 PPU - XD

Reference for a preliminary ruling

This request for a preliminary ruling concerns the interpretation of Article 6 (1) of the Framework Decision 2002/584/JHA on the European arrest warrant.

The request has been made in proceedings in the Netherlands concerning the execution of a European arrest warrant issued on 27 May 2019 by Swedish Public Prosecutor's Office (Äklagarmyndigheten) for the purposes of criminal proceedings in respect of XD.

Dispute in the main proceedings

and the question referred for a preliminary ruling

On 27 May 2019, the Swedish Public Prosecutor's Office issued a European arrest warrant for the purposes of criminal proceedings in respect of XD, suspected of having participated, as part of a criminal organisation, in narcotics offences in the territory of several States, including Sweden.

The European arrest warrant was issued pursuant to a provisional detention order made on the same day by Swedish District Court in Gothenburg (Göteborgs tingsrätt).

The following day, 28 May 2019, XD was arrested in the Netherlands on the basis of the European arrest warrant.

The next day, 29 May 2019, the Public Prosecutor's Office in the Netherlands (Openbaar Ministerie) lodged an application for consideration of that European arrest warrant before the District Court in Amsterdam (Rechtbank Amsterdam), pursuant to Article 23 of the Law on Surrender (Overleveringswet), in the version applicable to the main proceedings.

The referring court observes, first, that it is apparent from the information provided by the Swedish authorities in the main proceedings that, in Sweden, members of the Public Prosecutor's Office participate in the administration of justice and act independently without being exposed to any risk of being directly or indirectly subject to orders or instructions in a specific case from the executive.

Secondly, although the Swedish legislation relating to the European arrest warrant does not provide for the possibility of lodging an appeal against the decision to issue such a warrant, the referring court explains that the information provided by the Swedish authorities suggests that the proportionality of the decision to issue a European arrest warrant is examined when the provisional detention decision is taken, which occurs before the European arrest warrant is issued.

Thirdly, in the present case, at the hearing before the District Court in Gothenburg (Göteborgs tingsrätt) concerning XD's detention, the exchange of argument also

addressed the question of issuing a European arrest warrant for the surrender of XD to the Swedish authorities. Thus, that court examined the proportionality of any decision to issue a European arrest warrant when it decided to order XD's provisional detention.

Having regard to those circumstances, the referring court is uncertain whether the assessment made by a court when adopting the national judicial decision - before a decision is made by the Public Prosecutor's Office to issue a European arrest warrant - concerning in particular the proportionality of a decision to issue such a warrant, fulfils, in essence, the requirements set out in par. 75 of the judgment in joined cases C-508/18 and C-82/19 PPU, OG & PI, that a decision by the Public Prosecutor's Office to issue a European arrest warrant must be capable of being the subject of court proceedings which meet in full the requirements inherent in effective judicial protection.

In that regard, that court points out that, although, in the present case, the national and European arrest warrants were issued on the same day, it is not possible to rule out the possibility that, between, on the one hand, the adoption of a national judicial decision and the assessment of the proportionality of any decision to issue a European arrest warrant and, on the other hand, the point at which the European arrest warrant is in fact issued, there may elapse a period of time during which new facts come to light that have an impact on the issue of that European arrest warrant. In such a situation, the assessment carried out by the court prior to the actual issuing of the European arrest warrant may not offer effective judicial protection if the decision to issue such a warrant is disproportionate.

In those circumstances, the District Court in Amsterdam (Rechtbank Amsterdam)decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling - Can a Public Prosecutor who participates in the administration of justice in the issuing Member State, who acts independently in the execution of those of his responsibilities which are inherent in the issuing of a European arrest warrant, and who has issued an European arrest warrant, be regarded as an issuing judicial authority within the meaning of Article 6 (1) of the Framework Decision 2002/584/JHA on the European arrest warrant if a judge in the issuing Member State has assessed the conditions for issuing a European arrest warrant and, in particular, its proportionality, prior to the actual decision of that Public Prosecutor to issue the European arrest warrant?9

Consideration by the Court of Justice™

As a preliminary point, it must be observed that it is settled case-law that, under the procedure laid down by Article 267 of the Treaty on the Functioning on the European Union, providing for co-operation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to determine the case before it. To that end, the Court may have to reformulate the ques-

9 Reference for a preliminary ruling from the Rechtbank Amsterdam (Netherlands) made on 22 August 2019. Openbaar Ministerie (Case C-625/19 PPU).

10 See also: Opinion of Advocate General Campos Sánchez-Bordona delivered on 26 November 2019 - Case C-625/19 PPU - Openbaar Ministerie versus XD.

tions referred to it (judgment in joined cases C-119/13 and C-120/13, Eco cosmetics & Raiffeisenbank St. Georgen, par. 32 and the case-law cited).

In the present case, by the question which it has referred for a preliminary ruling, the referring court appears to start from the premiss that the status of issuing judicial authority, within the meaning of Article 6 (1) of the Framework Decision 2002/584/JHA on the European arrest warrant, is subject, inter alia, to the requirement that judicial review of a decision to issue a European arrest warrant must be available.

However, the availability of judicial review of a 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 the Framework Decision 2002/584/JHA on the European arrest warrant. 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.

That interpretation is supported by the judgment in case C-509/18, PF, in which the Court held that the Prosecutor General of a Member State who, whilst institutionally independent from the judiciary, is responsible for the conduct of criminal prosecutions and whose legal position, in that Member State, affords him or her a guarantee of independence from the executive in connection with the issuing of a European arrest warrant must be regarded as an issuing judicial authority, within the meaning of the Framework Decision 2002/584/JHA on the European arrest warrant, and left it to the referring court to verify also whether a decision of that prosecutor may be the subject of court proceedings which meet in full the requirements inherent in effective judicial protection.

In those circumstances, by its question, the referring court must be regarded as asking, in essence, whether the Framework Decision 2002/584/JHA on the European arrest warrant must be interpreted as meaning that, where competence to issue a European arrest warrant for the purpose of criminal proceedings is conferred on an authority which, whilst participating in the administration of justice in that Member State, is not itself a court, the requirements inherent in effective judicial protection are fulfilled if, prior to the actual decision by that authority to issue a European arrest warrant, a court has assessed the conditions for issuing that arrest warrant and, in particular, its proportionality.

In that regard, 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 in case C-216/18 PPU, Minister for Justice and Equality, par. 36 and the case-law cited).

It should also be observed that, as stated in Recital No. 6 thereof, the Framework Decision 2002/584/JHA

on the European arrest warrant is the first concrete measure in the field of criminal law implementing the principle of mutual recognition of judgments and judicial decisions, established in Article 82 (1) of the Treaty on the Functioning on the European Union, which replaced Article 31 EU, on the basis of which that Framework Decision was adopted. Since then, the field of judicial co-operation in criminal matters has gradually acquired legal instruments whose coordinated application is intended to strengthen the confidence of Member States in their respective national legal orders with a view to ensuring that judgments in criminal matters are recognised and enforced within the European Union in order to ensure that persons who have committed offences do not go unpunished.

The principle of mutual recognition, which underpins the Framework Decision 2002/584/JHA on the European arrest warrant, means that, in accordance with Article 1 (2) thereof, the Member States are in principle obliged to act upon a European arrest warrant (judgment in case C-261/09, Mantello, par. 36 and the case-law cited).

According to the provisions of the Framework Decision 2002/584/JHA on the European arrest warrant, 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 solely to the conditions set out in Article 5 of the framework decision (judgment in case C-396/11, Radu, par. 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 the Framework Decision 2002/584/ JHA on the European arrest warrant, 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, it is clear from that case-law that 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 in joined cases C-508/18 and C-82/19 PPU, OG & PI, par. 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 in joined cases C-508/18 and C-82/19 PPU, OG & PI, par. 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 the 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 in joined cases C-508/18 and C-82/19 PPU, OG & PI, pars. 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 in joined cases C-508/18 and C-82/19 PPU, OG & PI, par. 75).

Such proceedings against a decision to issue a European arrest warrant for the purpose of criminal proceedings 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 judicial review of that decision and of the conditions to be met when issuing that arrest warrant, in particular its proportionality, 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 the Framework Decision 2002/584/JHA on the European arrest warrant, as interpreted by the Court's case-law, by means of the remedies which they provide for 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.

The Framework Decision 2002/584/JHA on the European arrest warrant 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 in case C-168/13 PPU, F, par. 53).

In the present case, as is apparent from the documents before the Court, the decision to issue a European arrest warrant for the purpose of criminal proceedings is, in the Swedish legal system, necessarily based on a decision ordering the provisional detention of the person concerned, which is made by a court.

The referring court also states that the information communicated to it by the Swedish authorities shows that, in order to establish that it is necessary to order provisional detention, the court having jurisdiction must also assess the proportionality of other possible measures, such as the issuing of a European arrest warrant.

Moreover, according to the Swedish Government, when examining whether it is necessary to order the provisional detention of a person suspected of having infringed criminal law, the court having jurisdiction must always assess the proportionality of such a measure. If the person suspected of having committed an offence absconds or does not reside in the territory of the issuing Member State, the only reason for a public prosecutor to apply to a court for an arrest warrant to be issued against that person is that it is necessary to issue a European arrest warrant.

Accordingly, the examination of proportionality which that court will be required to carry out in examining whether it is necessary to order provisional detention will also cover the issuing of a European arrest warrant.

This seems to have been the situation in the case in the main proceedings, since, as is apparent from the order for reference, in the course of the hearings before the Swedish courts relating to XD's detention, the exchange of arguments also addressed the need to issue a European arrest warrant for the surrender of the requested person to the Swedish authorities.

Furthermore, the Swedish Government stated in its written observations and at the hearing before the Court that a person requested on the basis of a European arrest warrant has the right to appeal against the decision ordering his or her provisional detention, without any temporal limitation, even after the European arrest warrant has been issued and after he or she has been arrested in the executing Member State. If the decision ordering the contested provisional detention is annulled, the European arrest warrant is automatically invalid, since it was issued on the basis of that decision.

Finally, that government stated that any higher court hearing an appeal against a decision ordering provisional detention also assesses the proportionality of the decision to issue the European arrest warrant.

The inclusion of such procedural rules in the Swedish legal system supports the finding that, even in the absence of a separate remedy against a public prosecutor's decision to issue a European arrest warrant, the conditions for issuing that warrant and, in particular, its proportionality, may be subject to judicial review in the issuing Member State not only before or at the time of its adoption but also thereafter.

Such a system therefore meets the requirement of effective judicial protection.

In addition, the Framework Decision 2002/584/JHA on the European arrest warrant forms part of a comprehensive system of safeguards relating to effective judicial protection provided for by other EU rules, adopted in the field of judicial co-operation in criminal matters, which contribute to helping a person requested on the basis of a European arrest warrant exercise his or her rights, even before his or her surrender to the issuing Member State.

In particular, Article 10 of Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty (OJ 2013 L 294, p. 1) requires the competent authority of the executing Member State to inform persons whose surrender is sought without undue delay after they have been deprived of their liberty that they have the right to appoint a lawyer in the issuing Member State.

Rulings

The Court of Justice in answer to the question referred to it rules - the Framework Decision 2002/584/JHA on the European arrest warrant, must be interpreted as meaning that the requirements inherent in effective judicial protection which must be afforded any person in re-

spect of whom a European arrest warrant is issued in connection with criminal proceedings are fulfilled if, according to the law of the issuing Member State, the conditions for issuing such a warrant, and in particular its proportionality, are subject to judicial review in that Member State.

JUDGMENT OF THE COURT OF JUSTICE

OF THE EUROPEAN UNION OF 12 DECEMBER 2019 -

CASE C-627/19 PPU - ZB

Reference for a preliminary ruling

The request for a preliminary ruling concerns the interpretation of the Framework Decision 2002/584/JHA on the European arrest warrant.

The request has been made in proceedings in the Netherlands concerning the execution of a European arrest warrant issued on 24 April 2019 by Belgian Public Prosecutor's Office in Brussels (Procureur des Konings te Brussel) for the purposes of executing two custodial sentences imposed on ZB.

Dispute in the main proceedings

and the question referred for a preliminary ruling

On 24 April 2019, the Public Prosecutor's Office in Brussels issued a European arrest warrant in respect of ZB for the purposes of enforcing a judgment delivered on 7 February 2019 by Belgian Brussels Court of First Instance (Tribunal de première instance francophone de Bruxelles) by which ZB was sentenced to prison terms of 30 months and 1 year.

On 3 May 2019, ZB was arrested in the Netherlands on the basis of the European arrest warrant.

On the same day, the Public Prosecutor's Office in the Netherlands (Openbaar Ministerie) lodged an application for consideration of that European arrest warrant before the District Court in Amsterdam (Rechtbank Amsterdam), pursuant to Article 23 of the Law on Surrender (Overleveringswet) of 29 April 2004, in the version applicable to the main proceedings.

The referring court observes, first, that it is apparent from the information provided by the Belgian authorities in the main proceedings that, in Belgium, members of the Public Prosecutor's Office participate in the administration of justice and act independently without being directly or indirectly subject to orders or instructions in a specific case from the executive.

Secondly, that court states that the Belgian legislation relating to the European arrest warrant does not provide for the possibility of bringing a separate action against the decision to issue such a warrant.

That court is therefore uncertain whether the requirement in par. 75 of judgment in joined cases C-508/18 and C-82/19 PPU, OG & PI, that the decision to issue a European arrest warrant and, inter alia, the proportionality of such a decision must be capable of being the subject of court proceedings which meet in full the requirements inherent in effective judicial protection, also applies where the European arrest warrant seeks the enforcement of a custodial sentence.

While the referring court considers that the requirements laid down in the judgments in joined cases C-508/18 and C-82/19 PPU, OG & PI, and case C-509/18, PF, must be fulfilled for all European arrest warrants, whether such

warrants are issued for the purposes of conducting criminal proceedings or executing a sentence, including where they are issued on the basis of an enforceable judgment delivered by a court, it nevertheless notes that, in the present case, the issuing judicial authority and the Netherlands Public Prosecutor's Office both take the contrary view.

In those circumstances, the District Court in Amsterdam (Rechtbank Amsterdam) decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling - In the case where an European arrest warrant seeks the enforcement of a custodial sentence imposed by an enforceable decision of a judge or court, whereas the warrant has been issued by a public prosecutor who participates in the administration of justice in the issuing Member State, and there is a guarantee that he acts independently in the execution of those of his responsibilities which are inherent in the issuing of a European arrest warrant, does the condition also apply that there must be a possibility of instituting court proceedings against the decision to issue a European arrest warrant which meet in full the requirements inherent in effective judicial protection, in particular the proportionality of the decision?11

Consideration by the Court ofJustice^2

By its question, the referring court seeks to ascertain, in essence, whether the Framework Decision 2002/584/JHA on the European arrest warrant must be interpreted as precluding the legislation of a Member State which, although conferring competence to issue a European arrest warrant for the purposes of executing a sentence on an authority which, whilst participating in the administration of justice in that Member State, is not itself a court, does not provide for a separate judicial remedy against the decision of that authority to issue such a European arrest warrant.

In that regard, 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 in case C-216/18 PPU, Minister for Justice and Equality, par. 36 and the case-law cited).

It should also be observed that, as stated in Recital No. 6 thereof, the Framework Decision 2002/584/JHA on the European arrest warrant is the first concrete measure in the field of criminal law implementing the principle of mutual recognition of judgments and judicial decisions, established in Article 82 (1) of the Treaty on the Functioning on the European Union, which replaced Article 31 EU, on the basis of which that Framework Decision was adopted. Since then, the field of judicial co-operation in criminal

11 Reference for a preliminary ruling from the Rechtbank Amsterdam (Netherlands) made on 22 August 2019. Openbaar Ministerie (Case C-627/19 PPU).

12 See also: Opinion of Advocate General Campos Sánchez-Bordona delivered on 26 November 2019 - Case C-627/19 PPU. Openbaar Ministerie versus ZB.

matters has gradually acquired legal instruments whose coordinated application is intended to strengthen the confidence of Member States in their respective national legal orders with a view to ensuring that judgments in criminal matters are recognised and enforced within the European Union in order to ensure that persons who have committed offences do not go unpunished.

The principle of mutual recognition, which underpins the Framework Decision 2002/584/JHA on the European arrest warrant, means that, in accordance with Article 1 (2) thereof, the Member States are in principle obliged to act upon a European arrest warrant (judgment in case C-261/09, Mantello, par. 36 and the case-law cited).

According to the provisions of the Framework Decision 2002/584/JHA on the European arrest warrant, 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 in case C-396/11, Radu, par. 36 and the case-law cited).

The Court has also ruled that only European arrest warrants, within the meaning of Article 1 (1) of the Framework Decision 2002/584/JHA on the European arrest warrant, must be executed in accordance with the provisions of that decision. It follows from that article that such an arrest warrant is a 'judicial decision', which requires that it be issued by a 'judicial authority' within the meaning of Article 6 (1) of the framework decision (judgment in joined cases C-508/18 and C-82/19 PPU, OG & PI, par. 46, and the case-law cited).

In the present case, the referring court states that it follows from the information provided by the Belgian authorities in the main proceedings that, in Belgium, public prosecutors fulfil the requirements deriving from pars. 51 and 74 of the judgment in joined cases C-508/18 and C-82/19 PPU, OG & PI, for classification as an 'issuing judicial authority', as they 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.

In that regard, the Belgian Government has also confirmed in its written and oral observations that the independence of the Public Prosecutor's Office in conducting investigations and prosecutions in individual cases is guaranteed by the Belgian Constitution. The Belgian Government has likewise indicated that, while the Minister for Justice may draw up guidelines concerning criminal policy, those guidelines do not constitute directions or instructions concerning a particular case.

The referring court is nevertheless uncertain whether, having regard to par. 75 of the judgment in joined cases C-508/18 and C-82/19 PPU, OG & PI, the decision to issue a European arrest warrant for the purposes of executing a sentence must be capable of being the subject, in the issuing Member State, of court proceedings.

In that regard, 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 in joined cases C-508/18 and C-82/19 PPU, OG & PI, par. 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 in joined cases C-508/18 and C-82/19 PPU, OG & PI, par. 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 the 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 in joined cases C-508/18 and C-82/19 PPU, OG & PI, pars. 71 and 73).

As regards a European arrest warrant issued for the purposes of conducting criminal proceedings, the Court added that, 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 in joined cases C-508/18 and C-82/19 PPU, OG & PI, par. 75).

In this case, unlike the situations giving rise to the judgments in joined cases C-508/18 and C-82/19 PPU, OG & PI, and case C-509/18, PF, which concerned European arrest warrants issued for the purposes of conducting criminal proceedings, the main proceedings concern a European arrest warrant issued for the purposes of executing a sentence.

In that regard, such a warrant is, as is apparent from Article 8 (1) (c) and (f) of the Framework Decision 2002/584/ JHA on the European arrest warrant, based on an enforceable judgment imposing a custodial sentence on the person concerned, by which the presumption of innocence enjoyed by that person is rebutted in judicial proceedings that must meet the requirements laid down in Article 47 of the Charter of Fundamental Rights of the European Union.

In such a situation, the judicial review referred to in par. 75 of the judgment in joined cases C-508/18 and C-82/19 PPU, OG & PI, which meets the need to ensure effective judicial protection for the person requested on the basis of a European arrest warrant issued for the purposes of executing a sentence, is carried out by the enforceable judgment.

The existence of earlier judicial proceedings ruling on the guilt of the requested person allows the executing judicial authority to presume that the decision to issue a European arrest warrant for the purposes of executing

a sentence is the result of a national procedure in which the person in respect of whom an enforceable judgment has been delivered has had the benefit of all safeguards appropriate to the adoption of that type of decision, including those derived from the fundamental rights and fundamental legal principles referred to in Article 1 (3) of the Framework Decision 2002/584/JHA on the European arrest warrant.

Moreover, the provisions of the Framework Decision 2002/584/JHA on the European arrest warrant themselves provide for a procedure that complies with the requirements of Article 47 of the Charter of Fundamental Rights of the European Union, regardless of the methods of implementing that Framework Decision chosen by the Member States (judgment in case C-168/13 PPU, F, par. 47).

Furthermore, where a European arrest warrant is issued for the purposes of executing a sentence, it follows that it is proportional from the sentence imposed, which, as is clear from Article 2(1) of the Framework Decision 2002/584/JHA on the European arrest warrant, must consist of a custodial sentence or a detention order of at least four months.

Rulings

The Court of Justice in answer to the question referred to it rules - the Framework Decision 2002/584/ JHA on the European arrest warrant, must be interpreted as not precluding the legislation of a Member State which, although conferring competence to issue a European arrest warrant for the purposes of executing a sentence on an authority which, whilst participating in the administration of justice in that Member State, is not itself a court, does not provide for a separate judicial remedy against the decision of that authority to issue such a European arrest warrant.

JUDGMENT OF THE COURT OF JUSTICE

OF THE EUROPEAN UNION OF 24 NOVEMBER 2020 -

CASE C-510/19 - AZ

Reference for a preliminary ruling

The request for a preliminary ruling concerns the interpretation of Article 6 (2) and Articles 14, 19 and 27 of the Framework Decision 2002/584/JHA on the European arrest warrant.

The request has been made in the course of criminal proceedings initiated in Belgium against AZ, a Belgian national, accused of forgery of documents, use of forged documents and fraud and surrendered by the Netherlands authorities pursuant to European arrest warrants.

Dispute in the main proceedings

and the questions referred for a preliminary ruling

By order of 26 September 2017, the investigating judge at Belgian Court of First Instance in Leuven (Rechtbank van eerste aanleg te Leuven) issued, at the request of the public prosecutor at that court, a European arrest warrant against AZ, a Belgian national, seeking his surrender for the purposes of conducting a criminal prosecution in respect of offences of forgery of documents, use of forged documents and fraud, committed in Belgium between 5 and 13 May 2017 ('the initial European arrest warrant').

AZ was arrested for those acts in the Netherlands. Pursuant to the initial European arrest warrant, he was surrendered, on 13 December 2017, to the Belgian authorities by decision of the District Court in Amsterdam (Rechtbank Amsterdam).

On 26 January 2018, the investigating judge at the Court of First Instance in Leuven (Rechtbank van eerste aan-leg te Leuven) issued an additional European arrest warrant against AZ ('the additional European arrest warrant') seeking his surrender for forgery of documents, use of forged documents and fraud other than the acts referred to in the initial European arrest warrant and which were the subject of recommendations by the public prosecutor at that court of 26 October 2017, 24 November 2017, 19 January 2018 and 25 January 2018.

By letter of 13 February 2018, sent to the investigating judge at the Court of First Instance in Leuven (Rechtbank van eerste aanleg te Leuven), the public prosecutor in the Public Prosecutor's Office for the Amsterdam District (Arrondissementsparket Amsterdam), in accordance with Article 14 of the Law on Surrender (Overleveringswet), gave his consent for prosecution of the offences referred to in the additional European arrest warrant.

It is apparent from the file before the Court that AZ was prosecuted for the facts referred to in the initial and additional European arrest warrants. Belgian Criminal Court in Leuven (Correctionele rechtbank te Leuven) convicted AZ in respect of those acts, inter alia, to a principal prison sentence of 3 years.

AZ brought an appeal against the judgment of that court before Belgian Court of Appeal in Brussels (Hof van beroep te Brussel). Before that court, AZ has raised the issue whether Article 14 of the Law on Surrender (Over-leveringswet) is consistent with Article 6 (2), Article 14, Article 19 (2) and Article 27 of the Framework Decision 2002/584/JHA on the European arrest warrant. In that context, that court asks, in particular, whether the Public Prosecutor for the Amsterdam District is, in the present case, an 'executing judicial authority' within the meaning of Article 6 (2) of that Framework Decision, which can give the consent provided for in Article 27 (3) (g) and 27 (4) of the Framework Decision.

In those circumstances, the Court of Appeal in Brussels (Hof van beroep te Brussel) decided to stay the proceedings and refer the following questions to the Court of Justice for a preliminary ruling:13

1. a) Does the term 'judicial authority' as referred to in Article 6 (2) of the Framework Decision 2002/584/JHA on the European arrest warrant constitute an autonomous concept of EU law?

b) If the answer to [Question 1 (a)] is in the affirmative: which criteria are to be applied for the purpose of determining whether an authority of the executing Member State is such a judicial authority and whether a European arrest warrant executed by that authority therefore constitutes such a judicial decision?

c) If the answer to [Question 1 (a)] is in the affirmative: is the Netherlands Public Prosecution Service, more

13 Reference for a preliminary ruling from the Hof van beroep te Brussel (Court of Appeal, Brussels, Belgium) made on 4 July 2019. AZ (Case C-510/19).

specifically the Public Prosecutor for the Amsterdam District, covered by the concept of judicial authority, as referred to in Article 6 (2) of the Framework Decision 2002/584/JHA on the European arrest warrant, and does the European arrest warrant executed by that authority thus constitute a judicial decision?

d) If the answer to [Question 1 (c)] is in the affirmative: is it permissible for the initial surrender to be assessed by a judicial authority, more specifically, the Chamber for International co-operation in Legal Matters (Internationale rechtshulpkamer) of the District Court in Amsterdam (Rechtbank amsterdam)], in accordance with Article 15 of the Framework Decision 2002/584/JHA on the European arrest warrant, whereby, inter alia, the defendant's right to be heard and right of access to the courts are respected, whereas the supplementary surrender in accordance with Article 27 of the Framework Decision 2002/584/JHA on the European arrest warrant is assigned to a different authority, namely the Public Prosecutor for the Amsterdam District, whereby the defendant is not guaranteed the right to be heard or to have access to the courts, with the result that there is a manifest lack of coherence within the Framework Decision 2002/584/JHA on the European arrest warrant without any reasonable justification?

e) If the answer to [Questions 1 (c) and 1 (d)] is in the affirmative: should Articles 14, 19 and 27 of the Framework Decision 2002/584/JHA on the European arrest warrant be interpreted as meaning that a public prosecution service acting as the executing judicial authority should first of all respect the defendant's right to be heard and right of access to the courts, before consent can be given for the prosecution, conviction or detention of a person with a view to the execution of a custodial sentence or measure for a criminal offence committed before his or her surrender under a European arrest warrant, the latter offence not being the criminal offence for which his or her surrender was requested?

2. Is the Public Prosecutor for the Amsterdam District who acts under Article 14 of the Law on Surrender (Overleveringswet) the executing judicial authority within the meaning of Article 6 (2) of the Framework Decision 2002/584/JHA on the European arrest warrant which surrendered the requested person and which can grant consent within the meaning of Article 27 (3) (g) and 27 (4) of the Framework Decision?

Consideration by the Court of Justice™: Question 1 (a) and 1 (b)

By Question 1 (a) and (b), the referring court asks, in essence, whether the concept of 'executing judicial authority' within the meaning of Article 6 (2) of the Framework Decision 2002/584/JHA on the European arrest warrant constitutes an autonomous concept of EU law and, if so, what criteria must be applied for the purposes of determining the meaning of that concept.

14See also: Opinion of Advocate General Campos Sánchez-Bordona delivered on 25 June 2020 - Case C-510/19. Openbaar Ministerie, YU, ZV versus AZ.

Under Article 6 (1) and (2) of the Framework Decision 2002/584/JHA on the European arrest warrant, the Member States are to determine the competent judicial authorities by virtue of their national law for the purposes of issuing or executing a European arrest warrant. Those provisions essentially provide that not only the decision on the issue of a European arrest warrant, but also that on the execution of such a warrant must be taken by a 'judicial authority'.

As regards the 'issuing judicial authority' referred to in Article 6 (1) of that Framework Decision, the Court has held that, 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 that Framework Decision, its legislative scheme and its objective (judgments in joined cases C-508/18 and C-82/19 PPU, OG & PI, pars. 48 and 49, and joined cases C-566/19 PPU and C-626/19 PPU, Parquet général du Grand-Duché de Luxembourg & Openbaar Ministerie, par. 51).

For the same reasons, the concept of 'executing judicial authority' referred to in Article 6 (2) of the Framework Decision 2002/584/JHA on the European arrest warrant constitutes an autonomous concept of EU law.

So far as concerns the criteria which must be applied to determine the meaning of that concept, in the first place, the Court has previously held that the words 'judicial authority' in Article 6 (1) of the Framework Decision 2002/584/JHA on the European arrest warrant are not limited to designating only the judges or courts of a Member State, but must be construed as designating, more broadly, the authorities participating in the administration of criminal justice in that Member State, as distinct from, inter alia, ministries or police services which are part of the executive (judgments in joined cases C-508/18 and C-82/19 PPU, OG & PI, par. 50 and case C-509/18, PF, par. 29 and the case-law cited).

Public Prosecutors' Offices participate in the administration of criminal justice in the Member State concerned (see, to that effect, inter alia, judgments in joined cases C-508/18 and C-82/19 PPU, OG & PI, par. 63, and joined cases C-566/19 PPU and C-626/19 PPU, Parquet général du Grand-Duché de Luxembourg & Openbaar Ministerie, par. 53).

In the second place, the Court has stated that the 'issuing judicial authority' referred to in Article 6(1) of the Framework Decision 2002/584/JHA on the European arrest warrant must be capable of exercising its responsibilities objectively, taking into account all incriminatory and exculpatory evidence, without being exposed to the risk that its decision-making power be subject to external directions or instructions, in particular from the executive, such that it is beyond doubt that the decision to issue a European arrest warrant lies with that authority and not, ultimately, with the executive. Accordingly, the issuing judicial authority must be in a position to give assurances to the executing judicial authority that, as regards the guarantees provided by the legal order of the issuing Member State, it acts independently in the execution of those of its responsibilities which are inherent in the issuing of a European arrest war-

rant. That independence requires 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 (judgments in joined cases C-508/18 and C-82/19 PPU, OG & PI, pars. 73 and 74, and case C-509/18, PF, pars. 51 and 52).

In addition, where the law of the issuing Member State confers the 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 (judgments in joined cases C-508/18 and C-82/19 PPU, OG & PI, par. 75, and case C-509/18, PF, par. 53).

In that regard, the Court has stated that 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 the Framework Decision 2002/584/JHA on the European arrest warrant. 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, which must satisfy the requirement of effective judicial protection (see, to that effect, judgments in joined cases C-566/19 PPU and C-626/19 PPU, Parquet général du Grand-Duché de Luxembourg & Openbaar Ministerie, pars. 48 and 63, and case C-625/19 PPU, Swedish Public Prosecutor's Office, pars. 30 and 53).

The status and the nature of the judicial authorities referred to in Article 6 (1) and 6 (2) of the Framework Decision 2002/584/JHA on the European arrest warrant respectively are identical, although those judicial authorities exercise separate functions connected with, first, issuing a European arrest warrant and, secondly, executing such a warrant.

In the first place, the Framework Decision 2002/584/JHA on the European arrest warrant aims to introduce a simplified system of surrender directly between judicial authorities designed to replace a traditional system of co-operation between sovereign States - which involves the intervention and assessment of the executive - in order to ensure the free circulation of court decisions in criminal matters, within an area of freedom, security and justice (judgments in joined cases C-508/18 and C-82/19 PPU, OG & PI, par. 65; case C-509/18, PF, par. 43, and case C-489/19 PPU, NJ, par. 32).

That Framework Decision is founded on the principle that decisions relating to European arrest warrants are attended by all the guarantees appropriate for decisions of such a kind, inter alia those resulting from the fundamental rights and fundamental legal principles referred to in Article 1(3) of the Framework Decision. This means that not only the decision on issuing a European arrest warrant, but also the decision on executing such a warrant, must be taken by a judicial authority that meets the requirements inherent in effective judicial protection, including the guarantee of independence, so that the entire surrender procedure between Member States provided for

by that Framework Decision is carried out under judicial supervision [judgments in case C-477/16 PPU, Kovalko-vas, par. 37, and case C-216/18 PPU, Minister for Justice and Equality, par. 56].

As is indeed apparent from Recital No. 8 of the Framework Decision 2002/584/JHA on the European arrest warrant, decisions on the execution of the European arrest warrant must be subject to sufficient controls, which means that a judicial authority of the Member State where the requested person has been arrested must take the decision on his or her surrender.

In the second place in this connection, the execution of a European arrest warrant is, just as the issue of such a warrant, capable of prejudicing the liberty of the person concerned in so far as that execution will lead to the arrest of the requested person with a view to his or her surrender to the issuing judicial authority for the purposes of conducting a criminal prosecution.

In the third place, as regards the procedure for issuing a European arrest warrant for the purposes of conducting such a prosecution, the European arrest warrant system guarantees a dual level of protection of procedural rights and fundamental rights which must be enjoyed by the requested person, which means, first, 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 (see, to that effect, judgments in joined cases C-508/18 and C-82/19 PPU, OG & PI, par. 68, and joined cases C-566/19 PPU and C-626/19 PPU, Parquet général du Grand-Duché de Luxembourg & Openbaar Ministerie, par. 60) and, second, that 'the issuing judicial authority' referred to in Article 6(1) of the Framework Decision 2002/584/JHA on the European arrest warrant, namely the entity which, ultimately, takes the decision to issue the European arrest warrant, must be able to act objectively and independently in the exercise of those of its responsibilities which are inherent in the issuing of that European arrest warrant, even where that warrant is based on a national decision delivered by a judge or a court (see, to that effect, judgments in joined cases C-508/18 and C-82/19 PPU, OG & PI, pars. 71 to 74, and case C-489/19 PPU, NJ, pars. 37 and 38).

By contrast, the intervention of the executing judicial authority constitutes the sole level of protection provided for by the Framework Decision 2002/584/JHA on the European arrest warrant for the purposes of guaranteeing that, at the stage of executing the European arrest warrant, that person has enjoyed all the guarantees appropriate to the adoption of judicial decisions, in particular those resulting from the fundamental rights and the fundamental legal principles referred to in Article 1 (3) of that Framework Decision.

It follows from the considerations set out in pars. 47 to 53 of the present judgment that the concept of 'executing judicial authority' within the meaning of Article 6 (2) of the Framework Decision 2002/584/JHA on the European arrest warrant refers, like the concept of 'issuing judicial authority' within the meaning of Article 6 (1) of that Framework Decision, to either a judge or a court, or a judicial authority, such as the public prosecution service of a Member State, which participates in the administration of justice of that Member State and which enjoys the necessary independence vis-à-vis the executive, in accordance with the case-law cited above. Where the law of the executing

Member State confers the competence to execute a European arrest warrant on such an authority, that authority must nevertheless exercise its responsibility under a procedure which complies with the requirements inherent in effective judicial protection, which means that the decision of that authority must be capable of being subject, in that Member State, to an effective judicial remedy.

It is for the Member States to ensure that their legal orders effectively safeguard the level of judicial protection required by the Framework Decision 2002/584/JHA on the European arrest warrant, 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 (see, by analogy, judgment in joined cases C-566/19 PPU and C-626/19 PPU, Parquet général du Grand-Duché de Luxembourg & Openbaar Ministerie, par. 64).

Consideration by the Court of Justice: Question 1 (c) and Question 2

By Question 1 (c) and Question 2, which must be examined together, the referring court asks, in essence, whether Article 6 (2) and Article 27 (3) (g) and 27 (4) of the Framework Decision 2002/584/JHA on the European arrest warrant must be interpreted as meaning that the public prosecutor of a Member State constitutes an 'executing judicial authority' within the meaning of those provisions.

As is apparent from the answer given to Question 1 (a) and (b), decisions on the execution of the European arrest warrant must be subject to sufficient controls, which means that a 'judicial authority' of the Member State where the requested person has been arrested, satisfying the conditions listed above, has to take the decision on surrender.

The intervention of a judicial authority which satisfies those conditions is also required in respect of the consent provided for in Article 27 (3) (g) and 27 (4) of the Framework Decision 2002/584/JHA on the European arrest warrant.

Indeed, the decision to grant the consent provided for in Article 27(4) of the Framework Decision 2002/584/JHA on the European arrest warrant is distinct from that relating to the execution of a European arrest warrant and leads, for the person concerned, to effects distinct from those of the latter decision.

It must first be noted in this respect that, under Article 27 (4), that consent is given when the offence for which it is requested is itself subject to surrender in accordance with the provisions of that Framework Decision. In addition, consent is refused on the same grounds of mandatory or optional non-execution as those provided for in respect of the European arrest warrant in Articles 3 and 4 of that Framework Decision.

Secondly, admittedly, as the Netherlands Government argues, when the executing judicial authority is requested to give its consent under Article 27 (4) of the Framework Decision 2002/584/JHA on the European arrest warrant, the person concerned has already been surrendered to the issuing judicial authority pursuant to a European arrest warrant. However, the decision on that consent, like that on the execution of that European arrest warrant, is liable to prejudice the liberty of the person concerned, given that it concerns an offence other than that for which he or she was surrendered and it is liable to lead to a heavier sentence for that person.

By virtue of the rule of speciality set out in Article 27 (2) of that Framework Decision, a person surrendered may not be prosecuted, sentenced or otherwise deprived of his or her liberty for an offence committed prior to his or her surrender other than that for which he or she was surrendered. It is only in the cases provided for in par. 3 of that article, inter alia where consent was given in accordance with Article 27 (3) (g) and 27 (4) of that Framework Decision, that the judicial authorities of the issuing Member State are authorised to prosecute or sentence that person for an offence other than that for which he or she was surrendered.

Accordingly, irrespective of whether or not the judicial authority giving the consent provided for in Article 27 (4) of the Framework Decision 2002/584/JHA on the European arrest warrant must be the same as that which executed the European arrest warrant at issue, that consent cannot in any event be given by an authority which may in exercising its decision-making power receive an instruction in a specific case from the executive and which consequently does not satisfy the necessary conditions to be characterised as an 'executing judicial authority' within the meaning of Article 6 (2) of that Framework Decision.

In the present case, it is apparent from the observations of the Netherlands Government that, in respect of the procedure for surrender of a person pursuant to a European arrest warrant for the purposes of criminal prosecution, under Netherlands law it is for the Public Prosecutor for the Amsterdam District to request the District Court in Amsterdam (Rechtbank Amsterdam) to examine that European arrest warrant with a view to its execution. That government nevertheless pointed out that it is the District Court that ultimately takes the decision on the surrender. The Public Prosecutor for the Amsterdam District merely executes that decision.

It therefore appears that the judicial decision for surrender of a person pursuant to a European arrest warrant is, under Netherlands law, adopted by the District Court in Amsterdam (Rechtbank Amsterdam), whose status as a 'judicial authority' within the meaning of the Framework Decision 2002/584/JHA on the European arrest warrant is in no way disputed.

So far as concerns, on the other hand, the decision to grant the consent provided for in Article 27 (4) of the Framework Decision 2002/584/JHA on the European arrest warrant, the Netherlands Government stated that that decision was taken exclusively by the Public Prosecutor for the Amsterdam District, given that the person concerned had already been surrendered to the issuing judicial authority in accordance with a decision taken by the District Court in Amsterdam (Rechtbank Amsterdam). However, it is apparent from the file before the Court that, under Article 127 of the Law on the Organisation of the Courts, that public prosecutor may be subject to instructions in specific cases from the Netherlands Ministry of Justice. Consequently, having regard to the considerations set out above, it cannot be held that the public prosecutor concerned satisfies the necessary conditions to be characterised as an 'executing judicial authority' within the meaning of Article 6 (2) and Article 27 (3) (g) and 27 (4) of that Framework Decision.

That consideration cannot be called into question by the fact that, as the Netherlands Government sub-

mits in its observations, the consent given by the Public Prosecutor for the Amsterdam District may be the subject of an action brought by the person concerned before the judge hearing applications for interim measures.

In view of the information provided for by that government, it does not appear that the existence of that remedy is such as, in itself, to shield the Public Prosecutor for the Amsterdam District against the risk that his or her decision on the consent referred to in Article 27 (4) of the Framework Decision 2002/584/JHA on the European arrest warrant will be subject to an instruction in a specific case from the Netherlands Ministry of Justice (see, by analogy, judgment in joined cases C-508/18 and C-82/19 PPU, OG & PI, par. 86).

Consideration by the Court of Justice: Question 1 (d) and 1 (e)

In the light of the answers given to Question 1 (a) to (c) and Question 2, there is no need to answer Question 1 (d) and (e).

Rulings

The Court of Justice in answer to the questions referred to it rules:

1. The concept of 'executing judicial authority' within the meaning of Article 6 (2) of Council the Framework Decision 2002/584/JHA on the European arrest warrant, constitutes an autonomous concept of EU law which must be interpreted to the effect that it covers the authorities of a Member State which, without necessarily being judges or courts, participate in the administration of criminal justice in that Member State, acting independently in the exercise of the responsibilities inherent in the execution of a European arrest warrant and which exercise their responsibilities under a procedure which complies with the requirements inherent in effective judicial protection.

2. Article 6 (2) and Article 27 (3) (g) and 27 (4) of as amended by the Framework Decision 2009/299/JHA must be interpreted as meaning that the public prosecutor of a Member State who, although he or she participates in the administration of justice, may receive in exercising his or her decision-making power an instruction in a specific case from the executive, does not constitute an 'executing judicial authority' within the meaning of those provisions.

JUDGMENT OF THE COURT OF JUSTICE OF THE EUROPEAN UNION OF 10 MARCH 2021 -CASE C-648/20 PPU - PI

Reference for a preliminary ruling

The request for a preliminary ruling concerns the interpretation of Article 8 (1) (c) of the Framework Decision 2002/584/JHA on the European arrest warrant, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union.

The request was made in the context of the execution in the United Kingdom of a European arrest warrant issued by Bulgarian prosecutor of Svishtov Regional Prosecutor's Office (Rayonna prokuratura Svishtov) for the purposes of the criminal prosecution of PI.

Dispute in the main proceedings

and the question referred for a preliminary ruling

On 28 January 2020, the prosecutor of Svishtov Regional Prosecutor's Office issued a European arrest warrant for the purposes of the criminal prosecution of P I ('the European arrest warrant at issue').

As is apparent from the information before the Court, P I is suspected of having committed, on 8 December 2019 in the town of Svishtov (Bulgaria), an offence of theft of money and jewellery, with a total estimated value of 14 713.97 Bulgarian leva (BGN) (approximately EUR 7500), punishable by a term of imprisonment of between one and ten years.

The European arrest warrant at issue is based on a decision from that prosecutor, issued on 12 December 2019, ordering that P I be detained for a maximum period of 72 hours.

P I was thus arrested and detained in the United Kingdom on 11 March 2020 on the basis of the European arrest warrant at issue.

Before the referring court, the Westminster Magistrates' Court (United Kingdom), P I challenges the validity of the European arrest warrant at issue, arguing that the Bulgarian judicial system does not satisfy the requirements of the Framework Decision 2002/584/JHA on the European arrest warrant, as interpreted by the case-law of the Court of Justice, in particular by the judgments in joined cases C-508/18 and C-82/19 PPU, OG & P I and case C-509/18, PF.

It is apparent from the request for a preliminary ruling that, according to the prosecutor of Svishtov Regional Pros -ecutor's Office, a requested person under a European arrest warrant is, under Bulgarian law, represented by a lawyer, so that his or her interests are fully protected. In so far as the decision to issue such a warrant is based on a decision ordering detention which requires that, after the surrender of the requested person, the latter be brought before a court which decides on his or her detention, the Bulgarian procedural system is, it is argued, in conformity with Framework Decision 2002/584, as interpreted by the case-law of the Court.

According to the referring court, under Bulgarian law, neither the prosecutor's decision ordering the detention of the requested person nor the European arrest warrant issued by the same authority as a result of that decision is subject to judicial review before the requested person is surrendered. That situation would therefore appear to be different from the procedural systems known in other Member States and which have given rise to the case-law of the Court on the subject.

The referring court annexed to its request for a preliminary ruling the certificate issued by the National Crime Agency (United Kingdom), in accordance with Section 2 (7) of the Extradition Act 2003, certifying that the European arrest warrant at issue has been issued by a competent judicial authority in that regard.

That court asks nonetheless whether the dual level of protection for rights which must be enjoyed by the requested person, as required by the case-law of the Court of Justice, in particular in par. 56 of the judgment in case C-241/15, Bob-Dog is provided in the context of the case before it, in so far as both the European arrest warrant

at issue and the national arrest warrant or the judicial decision having the same effect as the latter were issued by the prosecutor of the Svishtov Regional Prosecutor's Office, without the involvement of a Bulgarian court prior to the surrender of P I by the United Kingdom.

In those circumstances, the Westminster Magistrates' Court decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:15 Where surrender is sought in order to prosecute a requested person, and where the decision to issue an underlying national arrest warrant and the decision to issue a European arrest warrant are both taken by a public prosecutor, without any involvement of a court prior to surrender, does a requested person receive the dual level of protection envisaged by the Court of Justice in case C-241/15, Bob-Dogi if:

a) The effect of the national arrest warrant is limited to detaining the individual for a maximum of 72 hours for the purpose of bringing him before a court; and

b) On surrender, it is solely a matter for the court whether to order release, or to continue detention, in light of all the circumstances of the case?

Consideration by the Court of Justice^6

By its question, the referring court asks, in essence, whether Article 8 (1) (c) of the Framework Decision 2002/584/JHA on the European arrest warrant, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union and the case-law of the Court, must be interpreted as meaning that the requirements inherent in the effective judicial protection that must be afforded to a person who is the subject of a European arrest warrant for the purpose of criminal prosecution are satisfied where both the European arrest warrant and the judicial decision on which that warrant is based are issued by a public prosecutor - who may be classified as an 'issuing judicial authority' within the meaning of Article 6 (1) of that Framework Decision - but cannot be reviewed by a court in the issuing Member State prior to the surrender of the requested person by the executing Member State.

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 in case C-625/19 PPU, Swedish Public Prosecutor's Office, par. 33 and the case-law cited).

Nevertheless, the effectiveness and proper functioning of the simplified system for the surrender of persons convicted or suspected of having infringed criminal law, established by the Framework Decision 2002/584/JHA

15 Reference for a preliminary ruling from the Svishtov Regional Prosecutor's Office (Bulgaria) made on 26 November 2020. P I (Case C-648/20 PPU).

16 See also: Opinion of Advocate General Richard De La Tour delivered on 11 February 2021 - Case C-648/20 PPU - Svishtov Regional Prosecutor's Office versus PI.

on the European arrest warrant, are based on compliance with certain requirements laid down by that Framework Decision, the scope of which has been established by the case-law of the Court.

In the first place, it is apparent from the order for reference that the prosecutor of the Svishtov Regional Public Prosecutor's Office is an authority that participates in the administration of criminal justice and is independent in the execution of those of its responsibilities which are inherent in the issuing of a European arrest warrant, both of which conditions make it possible to classify such an authority as an 'issuing judicial authority' within the meaning of Article 6 (1) of the Framework Decision 2002/584/JHA on the European arrest warrant (see, by analogy, judgment in joined cases C-566/19 PPU and C-626/19 PPU, Parquet général du Grand-Duché de Luxembourg & Openbaar Ministerie, par. 52 and the case-law cited). Moreover, this classification is not disputed by PI, as his counsel stated at the hearing before the Court.

In the second place, it is the settled case-law of the Court that judicial review of 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 the Framework Decision 2002/584/JHA on the European arrest warrant, as such a review 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, which must satisfy the requirement of effective judicial protection (see, to that effect case C-414/20 PPU, MM, par. 44 and the case-law cited). Thus, the status of 'issuing judicial authority', within the meaning of Article 6 (1) of the Framework Decision 2002/584/ JHA on the European arrest warrant, is not conditional on there being a review by a court of the decision to issue the European arrest warrant and of the national decision upon which that warrant is based. Accordingly, the fact that the classification of the prosecutor of the Svishtov Regional Prosecutor's Office as an 'issuing judicial authority' within the meaning of Article 6 (1) of the Framework Decision 2002/584/JHA on the European arrest warrant is not disputed is not sufficient for it to be considered that the Bulgarian procedure relating to the issue of a European arrest warrant by a prosecutor satisfies the requirements inherent in effective judicial protection.

In the third place it should be noted that the prosecutor's decision ordering the detention of the requested person for a maximum of 72 hours, on which the European arrest warrant is based, must be classified as an 'enforceable judicial decision having the same effect' as a national arrest warrant, within the meaning of Article 8 (1) (c) of the Framework Decision 2002/584/JHA on the European arrest warrant.

In that connection, the Court has held that the concept of '[national] arrest warrant or any other enforceable judicial decision having the same effect', within the meaning of Article 8 (1) (c) of the Framework Decision 2002/584/ JHA on the European arrest warrant, covers national measures adopted by a judicial authority to search for and arrest a person who is the subject of a criminal prosecution, with a view to bringing that person before a court for the purpose of conducting the stages of the criminal proceedings (see, to that effect, judgment in case C-414/20 PPU, MM, par. 57).

Accordingly, it must be assessed whether a system of criminal procedure under which both the European arrest warrant and the decision on which it is based are issued by the public prosecutor's office meets the requirements of the Framework Decision 2002/584/JHA on the European arrest warrant, namely compliance with the dual level of protection of the rights which must be enjoyed by the requested person, as interpreted by the Court's case-law, since judicial review in that connection can take place only after the surrender of the requested person.

In that connection, it should be recalled that, in par. 56 of the judgment in case C-241/15, Bob-Dogi, the Court ruled that the European arrest warrant system entails, in view of the requirement laid down in Article 8 (1) (c) of the Framework Decision 2002/584/JHA on the European arrest warrant, a dual level of protection for 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 judicial decision, such as a national arrest warrant, is adopted, 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.

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 in joined cases C-508/18 and C-82/19 PPU, OG & PI, par. 68).

It follows that, where the law of the issuing Member State confers the competence to issue a European arrest warrant on an authority which, whilst participating in the administration of justice in that Member State, is not a judge or a court, the national judicial decision, such as a national arrest warrant, on which the European arrest warrant is based, must, itself, meet those requirements (judgment in joined cases C-508/18 and C-82/19 PPU, OG & PI, par. 69).

Where those requirements are met, the executing judicial authority may therefore be satisfied that the decision to issue a European arrest warrant for the purpose of criminal prosecution is based on a national procedure that is subject to review by a court and that the person in respect of whom that national arrest warrant was issued has had the benefit of all safeguards appropriate to the adoption of that type of decision, inter alia those derived from the fundamental rights and fundamental legal principles referred to in Article 1 (3) of the Framework Decision 2002/584/JHA on the European arrest warrant (judgment in joined cases C-508/18 and C-82/19 PPU, OG & PI, par. 70).

In addition, where the law of the issuing Member State confers the 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 in joined cases C-508/18 and C-82/19 PPU, OG & PI, par. 75).

It follows from the Court's case-law that a person who is the subject of a European arrest warrant for the purpose

of criminal prosecution must be afforded effective judicial protection before being surrendered to the issuing Member State, at least at one of the two levels of protection required by that case-law.

Such protection presupposes, therefore, that judicial review of either the European arrest warrant or the judicial decision on which it is based is possible before that warrant is executed.

That requirement makes it possible, under the system established by the Framework Decision 2002/584/JHA on the European arrest warrant, which is based on mutual trust between Member States, for the executing judicial authority to be satisfied that the European arrest warrant, the execution of which has been requested, has been issued following a national procedure that is subject to judicial review in the context of which the requested person has had the benefit of all safeguards appropriate to the adoption of that type of decision, inter alia those derived from the fundamental rights and fundamental legal principles referred to in Article 1 (3) of the Framework Decision 2002/584/JHA on the European arrest warrant.

These considerations are in no way called into question by the case-law established by the judgments in joined cases C-566/19 PPU and C-626/19 PPU, Parquet général du Grand-Duché de Luxembourg & Openbaar Ministerie and case C-625/19 PPU, Swedish Public Prosecutor's Office, which were relied upon during the hearing before the Court. In pars. 70 and 71 of the first of those judgments, the Court held that the inclusion, within the legal system of the issuing Member State, of procedural rules according to which the proportionality of the decision of the Public Prosecutor's Office to issue a European arrest warrant may be subject, before or after the actual surrender of the requested person, to judicial review before or almost at the same time as the European arrest warrant is issued and, in any event, after it has been issued, meets the requirement of effective judicial protection. In the case that gave rise to that judgment that finding was based on the existence of a set of procedural provisions guaranteeing the involvement of a court as soon as the national arrest warrant was issued against the requested person and, therefore, before he was surrendered.

Similarly, in the case which gave rise to the judgment in case C-625/19 PPU, Swedish Public Prosecutor's Office, the European arrest warrant issued by the public prosecutor was based on a judicial decision on pre-trial detention.

The Court took account of the fact that the conditions for issuing a European arrest warrant by the public prosecutor's office could be subject to judicial review before the requested person was surrendered, in so far as, in the national legislation at issue in the cases that gave rise to those judgments, the European arrest warrant was based on a national arrest warrant issued by a judge, who, moreover, made an assessment of the conditions to be met when issuing a European arrest warrant and, in particular, whether it was proportionate.

However, unlike the cases which gave rise to these two judgments, in the present case it is clear from the order for reference that Bulgarian law provides only for ex post judicial review of the prosecutor's decision to issue a European arrest warrant, since such a review can take place only after the requested person has been surrendered.

As to the fact that, in its written answer to questions put by the Court, the Bulgarian Government states that, after the surrender of the requested person following the execution of a European arrest warrant, that person will immediately be brought before a court which will examine the need to impose a preventive measure involving deprivation or restriction of liberty and will thus also review the proportionality of that warrant, that practice is not, however, such as to ensure that the Bulgarian procedural system is in conformity with the requirements arising from the Framework Decision 2002/584/JHA on the European arrest warrant.

It should be stated that, by the judgment in case C-414/20 PPU, MM, the Court did not rule directly on the question whether the Bulgarian procedure for the issuing of a European arrest warrant by a prosecutor during the pre-trial stage of criminal proceedings satisfied the requirements inherent in effective judicial protection, but confined itself to holding that, where the law of the issuing Member State does not contain a separate legal remedy, EU law confers jurisdiction on a court of that Member State to review indirectly the validity of the European arrest warrant. Accordingly, it cannot be inferred from that judgment that the Court ruled that the existence of such a possibility of ex post judicial review was such as to satisfy the requirements inherent in the effective judicial protection of the rights of the requested person.

Consequently, a judicial review of a prosecutor's decision to issue a European arrest warrant which takes place only after the requested person is surrendered does not satisfy the obligation of the issuing Member State to implement procedural rules allowing a competent court to review, prior to that surrender, the lawfulness of the national arrest warrant or of the judicial decision having the same effect, also adopted by a prosecutor, or of the European arrest warrant.

Admittedly, in implementing the Framework Decision 2002/584/JHA on the European arrest warrant, the Member States retain, in accordance with their procedural autonomy, the option of adopting rules which may differ from one Member State to another. However, they must ensure that those rules do not frustrate the requirements arising from that Framework Decision, in particular as regards the judicial protection, guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union, which underpins it.

It follows therefrom that the objective of the Framework Decision 2002/584/JHA on the European arrest warrant which, by establishing a new simplified and more effective system for surrendering persons convicted or suspected of having infringed criminal law, seeks to facilitate and accelerate judicial co-operation between the judicial authorities of the issuing Member State and those of the Member State executing a European arrest warrant, can only be achieved through respect for fundamental rights and legal principles, as enshrined in Article 6 of the Treaty on European Union and reflected in the Charter of Fundamental Rights of the European Union, an obligation which, moreover, concerns all Member States, and in particular both the issuing and the executing Member State (see, to that effect, judgment in case C-492/18 PPU, TC, pars. 41 and 54 and the case-law cited).

Rulings

The Court of Justice in answer to the question referred to it rules - Article 8(1)(c) of Council the Framework Decision 2002/584/JHA on the European arrest warrant, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union and the case-law of the Court, must be interpreted as meaning that the requirements inherent in the effective judicial protection that must be afforded to a person who is the subject of a European arrest warrant for the purpose of criminal prosecution are not satisfied where both the European arrest warrant and the judicial decision on which that warrant is based are issued by a public prosecutor - who may be classified as an 'issuing judicial authority' within the meaning of Article 6 (1) of that Framework Decision - but cannot be reviewed by a court in the issuing Member State prior to the surrender of the requested person by the executing Member State.

REFERENCES

1. 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 the Framework Decision 2009/299/JHA. Official Journal of the European Communities. L 190/1 of 18 July 2002.

2. Klimek L. European arrest warrant. Cham-Heidelberg-New York-Dordrecht-London: Springer, 2015. 375 p.

3. Klimek L. Mutual recognition of judicial decisions in European Criminal Law. Cham: Springer, 2017. 742 p.

4. Opinion of Advocate General Campos Sánchez-Bordona delivered on 26 November 2019 - Joined Cases C-566/19 PPU and C-626/19 PPU - Parquet général du Grand-Duché de Luxembourg versus JR and Openbaar Ministerie versus YC.

5. Opinion of Advocate General Campos Sánchez-Bordona delivered on 26 November 2019 - Case C-625/19 PPU - Openbaar Ministerie versus XD.

6. Opinion of Advocate General Campos Sánchez-Bordona delivered on 26 November 2019 - Case C-627/19 PPU - Openbaar Ministerie versus ZB.

7. Opinion of Advocate General Campos Sánchez-Bordona delivered on 25 June 2020 - Case C-510/19 - Openbaar Ministerie, YU, ZV versus AZ.

8. Opinion of Advocate General Campos Sánchez-Bordona delivered on 30 April 2019 - Case C-509/18 - Minister for Justice and Equality v PF.

9. Opinion of Advocate General Richard De La Tour delivered on 11 February 2021 - Case C-648/20 PPU - Svishtov Regional Prosecutor's Office versus PI.

10. Opinion of Advocate General Sharpston delivered on 17 September 2019 - Case C-489/19 PPU - NJ (Public Prosecutor's Office, Vienna) - Criminal proceedings in the presence of Generalstaatsanwaltschaft Berlin.

11. Reference for a preliminary ruling from the Cour d'appel (Luxembourg) made on 25 July 2019 - JR (Case C-566/19).

12. Reference for a preliminary ruling from the Hof van beroep te Brussel (Court of Appeal, Brussels, Belgium) made on 4 July 2019 - AZ (Case C-510/19).

13. Reference for a preliminary ruling from the Kammergericht Berlin (Germany) made on 26 June 2019 - NJ (Case C-489/19 PPU).

14. Reference for a preliminary ruling from the Rechtbank Amsterdam (Netherlands) made on 22 August 2019 - Openbaar Ministerie (Case C-626/19 PPU).

15. Reference for a preliminary ruling from the Rechtbank Amsterdam (Netherlands) made on 22 August 2019 - Openbaar Ministerie (Case C-625/19 PPU).

16. Reference for a preliminary ruling from the Rechtbank Amsterdam (Netherlands) made on 22 August 2019 - Openbaar Ministerie (Case C-627/19 PPU).

17. Reference for a preliminary ruling from the Supreme Court (Ireland) made on 6 August 2018 - Minister for Justice and Equality v PF (Case C-509/18).

18. Reference for a preliminary ruling from the Svishtov Regional Prosecutor's Office (Bulgaria) made on 26 November 2020 -P I (Case C-648/20 PPU).

Статья проверена программой Антиплагиат

Статья поступила в редакцию 24.09.2021, принята к публикации 26.10.2021 The article was received on 24.09.2021, accepted for publication 26.10.2021

ABOUT THEAUTHOR

Libor Klimek, Associate Professor at the Department of Criminal Law, Criminology, Criminalistics and Forensic Disciplines; Director of the Criminology and Criminal-istics Research Centre at the Faculty of Law of the Matej Bel University, Banska Bystrica, Slovak Republic; Visiting Professor at the Faculty of Law of the Leipzig University in Germany. ORCID ID: 0000-0003-3826-475X; Scopus Author ID: 55620115400; E-mail: [email protected]

СВЕДЕНИЯ ОБ АВТОРЕ

Климек Либор, доцент юридического факультета Университета Матея Бела. Банска Быстрица, Республика Словакия; приглашенный профессор юридического факультета Лейпцигского университета (Германия). ORCID ID: 0000-0003-3826-475X; Scopus Author ID: 55620115400; E-mail: [email protected]