(Police and judicial cooperation in criminal matters Framework Decision 2002/584/JHA European arrest warrant and surrender procedures between Member States Article 4(6) Ground for optional non-execution of the European arrest warrant Implementation in national law Person arrested a national of the issuing Member State Non-execution of the European arrest warrant by the executing Member State conditional upon the person having spent a period of five years in its territory Article 12 EC)
In Case C-123/08,
REFERENCE for a preliminary ruling under Articles 35 EU and 234 EC from the Rechtbank Amsterdam (Netherlands), made by decision of 28 December 2007, received at the Court on 21 March 2008, in the proceedings concerning execution of a European arrest warrant issued against
composed of V. Skouris, President, P. Jann, C.W.A. Timmermans, K. Lenaerts and M. Ilešič, Presidents of Chambers, A. Tizzano, A. Borg Barthet, J. Malenovský, J. Klučka, U. Lõhmus and L. Bay Larsen (Rapporteur), Judges,
Advocate General: Y. Bot,
Registrar: M. Ferreira, Principal Administrator,
having regard to the application of the national court of 17 March 2008, received at the Court on 21 March 2008, to deal with the reference for a preliminary ruling under the urgent procedure in accordance with Article 104b of the Rules of Procedure,
having regard to the decision of the Third Chamber of the Court of 2 April 2008 not to deal with the reference for a preliminary ruling under the urgent procedure,
having regard to the written procedure continued by virtue of the fifth subparagraph of Article 104b(2) of the Rules of Procedure and further to the hearing on 17 February 2009,
after considering the observations submitted on behalf of:
Mr Wolzenburg, by D. Wiersum and J. van der Putte, advocaten,
the Netherlands Government, by C. Wissels and M. Noort, acting as Agents,
the Danish Government, by C. Pilgaard Zinglersen, acting as Agent,
the German Government, by M. Lumma and J. Kemper, acting as Agents,
the French Government, by G. de Bergues and J.-C. Niollet, acting as Agents,
the Austrian Government, by E. Riedl and T. Fülöp, acting as Agents,
the Polish Government, by M. Dowgielewicz, acting as Agent,
the Commission of the European Communities, by S. Grünheid and R. Troosters, acting as Agents,
after hearing the Opinion of the Advocate General at the sitting on 24 March 2009,
gives the following
Title VI of the EU Treaty
Framework Decision 2002/584/JHA
'The objective set for the Union to become an area of freedom, security and justice leads to abolishing extradition between Member States and replacing it by a system of surrender between judicial authorities. ... Traditional cooperation relations which have prevailed up till now between Member States should be replaced by 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.'
'Since the aim of replacing the system of multilateral extradition built upon the European Convention on Extradition of 13 December 1957 cannot be sufficiently achieved by the Member States acting unilaterally and can therefore, by reason of its scale and effects, be better achieved at Union level, the Council may adopt measures in accordance with the principle of subsidiarity as referred to in Article 2 of the Treaty on European Union and Article 5 of the Treaty establishing the European Community. ...'
'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 will have to take the decision on his or her surrender.'
'1. The European arrest warrant is 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.
2. Member States shall execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of this Framework Decision.'
'The executing judicial authority may refuse to execute the European arrest warrant:
(6) if the European arrest warrant has been issued for the purposes of execution of a custodial sentence or detention order, where the requested person is staying in, or is a national or a resident of the executing Member State and that State undertakes to execute the sentence or detention order in accordance with its domestic law'.
'The execution of the European arrest warrant by the executing judicial authority may, by the law of the executing Member State, be subject to the following conditions:
(3) where a person who is the subject of a European arrest warrant for the purposes of prosecution is a national or resident of the executing Member State, surrender may be subject to the condition that the person, after being heard, is returned to the executing Member State in order to serve there the custodial sentence or detention order passed against him in the issuing Member State'.
'When a requested person is arrested, the executing competent judicial authority shall, in accordance with its national law, inform that person of the European arrest warrant and of its contents, and also of the possibility of consenting to surrender to the issuing judicial authority'.
Framework Decision 2008/909/JHA
'Enjoyment of permanent residence by Union citizens who have chosen to settle long term in the host Member State would strengthen the feeling of Union citizenship and is a key element in promoting social cohesion, which is one of the fundamental objectives of the Union. A right of permanent residence should therefore be laid down for all Union citizens and their family members who have resided in the host Member State in compliance with the conditions laid down in this Directive during a continuous period of five years without becoming subject to an expulsion measure.'
'Union citizens who have resided legally for a continuous period of five years in the host Member State shall have the right of permanent residence there. ...'
'Upon application Member States shall issue Union citizens entitled to permanent residence, after having verified duration of residence, with a document certifying permanent residence.'
'2. The surrender of a Netherlands national shall not be permitted if that surrender is sought for the purposes of execution of a custodial sentence imposed on him by final judicial decision.
3. Where surrender is refused solely on the ground of paragraph 2, the public prosecutor shall notify the issuing judicial authority that it is willing to execute the judgment in accordance with the procedure laid down in Article 11 of the Convention on the Transfer of Sentenced Persons of 21 March 1983 or on the basis of another applicable convention.'
'Paragraphs 1 to 4 shall also apply to a foreign national in possession of a residence permit of indefinite duration in so far as he may be prosecuted in the Netherlands for the offences on which the European arrest warrant is based and in so far as he can be expected not to forfeit his right of residence in the Netherlands as a result of any sentence or measure which may be imposed on him after surrender.'
The main proceedings and the questions referred for a preliminary ruling
'1. Should persons who are staying in or are residents of the executing Member State, as referred to in Article 4(6) of ... Framework Decision [2002/584], be taken to mean persons who do not have the nationality of the executing Member State, but do have the nationality of another Member State and are lawfully resident in the executing Member State pursuant to Article 18(1) EC, regardless of the duration of that lawful residence?
2a. If the answer to question 1 is negative, should the terms referred to in that question be interpreted as meaning that they concern persons who do not have the nationality of the executing Member State, but do have the nationality of another Member State and, prior to their arrest under a European arrest warrant, have been lawfully resident in the executing Member State pursuant to Article 18(1) EC for at least a certain period?
2b. If the answer to question 2a is affirmative, what requirements must lawful residence meet?
3. If the answer to question 2a is affirmative, may the executing Member State lay down, in addition to a requirement concerning the duration of lawful residence, supplementary administrative requirements, such as possession of a residence permit of indefinite duration?
4. Does a national measure specifying the conditions under which a European arrest warrant issued with a view to the enforcement of a custodial sentence is rejected by the judicial authority of the executing Member State come within the (material) scope of the EC Treaty?
5. Given that:
Article 6(2) and (5) OLW lays down rules affording persons who do not have Netherlands nationality, but are in possession of a Netherlands residence permit of indefinite duration, equal treatment with Netherlands nationals
those rules require refusal to surrender such classes of persons if the EAW concerns the enforcement of a final custodial sentence,
does Article 6(2) and (5) OLW result in discrimination prohibited by Article 12 EC, in that the aforementioned equal treatment does not apply equally to nationals of other Member States with a right of residence under Article 18(1) EC who will not forfeit that right of residence as a result of the imposition on them of a final custodial sentence, but who are not in possession of a Netherlands residence permit of indefinite duration?'
The questions referred
The fourth question
The third question
The fifth question
The first and second questions
On those grounds, the Court (Grand Chamber) hereby rules:
1. A national of one Member State who is lawfully resident in another Member State is entitled to rely on the first paragraph of Article 12 EC against national legislation, such as the Law on the surrender of persons (Overleveringswet), of 29 April 2004, which lays down the conditions under which the competent judicial authority can refuse to execute a European arrest warrant issued with a view to the enforcement of a custodial sentence.
2. Article 4(6) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States must be interpreted as meaning that, in the case of a citizen of the Union, the Member State of execution cannot, in addition to a condition as to the duration of residence in that State, make application of the ground for optional non-execution of a European arrest warrant laid down in that provision subject to supplementary administrative requirements, such as possession of a residence permit of indefinite duration.
3. Article 12 EC is to be interpreted as not precluding the legislation of a Member State of execution under which the competent judicial authority of that State is to refuse to execute a European arrest warrant issued against one of its nationals with a view to the enforcement of a custodial sentence, whilst such a refusal is, in the case of a national of another Member State having a right of residence on the basis of Article 18(1) EC, subject to the condition that that person has lawfully resided for a continuous period of five years in that Member State of execution.
* Language of the case: Dutch.