Court of Justice of the European Communities (including Court of First Instance Decisions)

JUDGMENT OF THE COURT (First Chamber)

10 March 2021 (*)

(Reference for a preliminary ruling – Urgent preliminary ruling procedure – Judicial cooperation in criminal matters – European arrest warrant – Framework Decision 2002/584/JHA – Article 8(1)(c) – European arrest warrant issued by the public prosecutor’s office of a Member State for the purposes of a criminal prosecution on the basis of a detention order issued by the same authority – No judicial review prior to surrender of the requested person – Consequences – Effective judicial protection – Article 47 of the Charter of Fundamental Rights of the European Union)

In Case C‑648/20 PPU,

REQUEST for a preliminary ruling under Article 267 TFEU from the Westminster Magistrates’ Court (United Kingdom), made by decision of 26 November 2020, received at the Court on 1 December 2020, in the proceedings relating to the execution of a European arrest warrant issued for

PI,

THE COURT (First Chamber),

composed of J.-C. Bonichot, President of the Chamber, R. Silva de Lapuerta, Vice-President of the Court, L. Bay Larsen, C. Toader (Rapporteur) and N. Jääskinen, Judges,

Advocate General: J. Richard de la Tour,

Registrar: C. Strömholm,

having regard to the written procedure and further to the hearing on 27 January 2021,

after considering the observations submitted on behalf of:

–        PI, by H. Malcolm QC, and J. Kern, Barrister, instructed by S. Bisnauthsing, Solicitor,

–        the Bulgarian Government, by L. Zaharieva and T. Tsingileva, acting as Agents,

–        the European Commission, by M. Wilderspin and S. Grünheid, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 11 February 2021,

gives the following

Judgment

1        This request for a preliminary ruling concerns the interpretation of Article 8(1)(c) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (OJ 2002 L 190, p. 1), as amended by Council Framework Decision 2009/299/JHA of 26 February 2009 (OJ 2009 L 81, p. 24) (‘Framework Decision 2002/584’), read in the light of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

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

 Legal context

 European Union law

3        Recitals 5, 6, 10 and 12 of Framework Decision 2002/584 are worded as follows:

‘(5) 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. Further, the introduction of a new simplified system of surrender of sentenced or suspected persons for the purposes of execution or prosecution of criminal sentences makes it possible to remove the complexity and potential for delay inherent in the present extradition procedures. 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.

(6)      The European arrest warrant provided for in this Framework Decision is the first concrete measure in the field of criminal law implementing the principle of mutual recognition which the European Council referred to as the “cornerstone” of judicial cooperation.

…

(10)      The mechanism of the European arrest warrant is based on a high level of confidence between Member States. Its implementation may be suspended only in the event of a serious and persistent breach by one of the Member States of the principles set out in Article 6(1) [EU], determined by the Council pursuant to Article 7(1) [EU] with the consequences set out in Article 7(2) thereof.

…

(12)      This Framework Decision respects fundamental rights and observes the principles recognised by Article 6 [EU] and reflected in the Charter of Fundamental Rights of the European Union …, in particular Chapter VI thereof. …’

4        Article 1 of that framework decision, entitled ‘Definition of the European arrest warrant and obligation to execute it’, provides:

‘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.

3.      This Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 [EU].’

5        Article 2 of that framework decision, entitled ‘Scope of the European arrest warrant’, provides in paragraph 1 thereof:

‘A European arrest warrant may be issued for acts punishable by the law of the issuing Member State by a custodial sentence or a detention order for a maximum period of at least 12 months or, where a sentence has been passed or a detention order has been made, for sentences of at least four months.’

6        Under Article 6 of the framework decision, entitled ‘Determination of the competent judicial authorities’:

‘1.      The issuing judicial authority shall 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.

2.      The executing judicial authority shall be the judicial authority of the executing Member State which is competent to execute the European arrest warrant by virtue of the law of that State.

3.      Each Member State shall inform the General Secretariat of the Council of the competent judicial authority under its law.’

7        Article 8 of Framework Decision 2002/584, entitled ‘Content and form of the European arrest warrant’, provides in paragraph 1 thereof:

‘The European arrest warrant shall contain the following information set out in accordance with the form contained in the Annex:

…

(c)      evidence of an enforceable judgment, an arrest warrant or any other enforceable judicial decision having the same effect, coming within the scope of Articles 1 and 2;

…’

 United Kingdom law

8        The procedure for executing a European arrest warrant is governed by the Extradition Act 2003. Part 1 of that Act defines the territories to which extradition by the United Kingdom may be carried out. The Republic of Bulgaria is amongst those territories. Under section 2(7) of the Act, the designated central authority is to issue a certificate if it believes that the arrest warrant has been issued by an issuing authority from one of those territories.

 Bulgarian law

 The ZEEZA

9        The Zakon za ekstraditsiata i evropeiskata zapoved za arest (Law on extradition and the European arrest warrant, DV No 46, of 3 June 2005), in the version applicable to the dispute in the main proceedings (‘the ZEEZA’), transposes Framework Decision 2002/584 into Bulgarian law. Article 37 of the ZEEZA sets out the provisions relating to the issuing of a European arrest warrant in terms almost identical to those of Article 8 of that framework decision.

10      Pursuant to Article 56(1)(1) of the ZEEZA, the public prosecutor is competent, at the pre-trial stage of criminal proceedings, to issue a European arrest warrant for the accused person.

 The NPK

11      Pursuant to Article 14(1) of the Nakazatelno-protsesualen kodeks (Criminal Procedure Code, DV No 86, of 28 October 2005), in the version applicable to the dispute in the main proceedings (‘the NPK’), the public prosecutor is to take decisions in accordance with his own firm conviction, on the basis of an objective, impartial and comprehensive examination of all the circumstances of the case, in accordance with the law.

12      In criminal proceedings, the prosecutor is the competent authority which, in accordance with Article 46 of the NPK, brings the prosecution, directs the investigation and supervises its lawful and proper conduct.

13      The placement in provisional detention of a person who is the subject of a criminal prosecution is governed, at the pre-trial stage of criminal proceedings, by Article 64 of the NPK.

14      Under Article 64(1) of the NPK, ‘the provisional detention order shall be adopted during the preliminary proceedings by the court of first instance having jurisdiction on application by the public prosecutor’.

15      In accordance with Article 64(2) of the NPK, the public prosecutor may adopt a measure ordering the detention of the accused person for a maximum of 72 hours with a view to ensuring that that person is brought before the court with jurisdiction to make a provisional detention order, if appropriate.

16      Article 64(3) of the NPK provides that ‘the court, acting by a single judge, shall immediately examine the case, in open court, with the participation of the prosecutor, the accused person and his or her counsel’.

17      Furthermore, in accordance with Article 64(4) of the NPK, the court is the competent authority to examine the application to place the accused person in provisional detention and to assess whether such detention should be ordered, or to choose to impose a less severe measure or refuse generally to impose a restrictive procedural measure in respect of the accused person.

 The dispute in the main proceedings and the question referred for a preliminary ruling

18      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 PI (‘the European arrest warrant at issue’).

19      As is apparent from the information before the Court, PI 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 7 500), punishable by a term of imprisonment of between one and ten years.

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

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

22      Before the referring court, the Westminster Magistrates’ Court (United Kingdom), PI challenges the validity of the European arrest warrant at issue, arguing that the Bulgarian judicial system does not satisfy the requirements of Framework Decision 2002/584, as interpreted by the case-law of the Court of Justice, in particular by the judgments of 27 May 2019, OG and PI (Public Prosecutor’s Offices, Lübeck and Zwickau) (C‑508/18 and C‑82/19 PPU, EU:C:2019:456), and PF (Prosecutor General of Lithuania) (C‑509/18, EU:C:2019:457).

23      It is apparent from the request for a preliminary ruling that, according to the prosecutor of Svishtov Regional Prosecutor’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.

24      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.

25      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.

26      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 paragraph 56 of the judgment of 1 June 2016, Bob-Dogi (C‑241/15, EU:C:2016:385), 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 PI by the United Kingdom.

27      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:

‘Where surrender is sought in order to prosecute a requested person, and where the decision to issue an underlying national arrest warrant (“NAW”) and the decision to issue a European arrest warrant (“EAW”) 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 [in the judgment of 1 June 2016] in Bob-Dogi (C‑241/15, EU:C:2016:385) if:

(a)      the effect of the NAW 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?’

 The urgent procedure

28      The referring court requested that the present reference for a preliminary ruling be dealt with under the urgent procedure provided for in Article 107 of the Rules of Procedure of the Court of Justice.

29      In that regard, it should be stated, in the first place, that the present reference for a preliminary ruling concerns the interpretation of Framework Decision 2002/584, which comes within the sectors covered by Title V of Part Three of the TFEU on the area of freedom, security and justice. It is therefore amenable to being dealt with under the urgent preliminary ruling procedure provided for in Article 23a of the Statute of the Court of Justice of the European Union and Article 107 of the Court’s Rules of Procedure.

30      As regards, in the second place, the criterion relating to urgency, it is necessary, in accordance with the settled case-law of the Court, to take into account the fact that the person concerned in the case in the main proceedings is currently deprived of his liberty and that the question as to whether he may continue to be held in custody depends on the outcome of the dispute in the main proceedings (order of 12 February 2019, RH, C‑8/19 PPU, EU:C:2019:110, paragraph 24 and the case-law cited).

31      In the present case, as is clear from paragraphs 18 to 21 of the present judgment, PI was arrested and detained in the United Kingdom on the basis of the European arrest warrant at issue.

32      It follows that the continued provisional detention of PI depends on the Court’s decision, in so far as its answer to the question put by the referring court could have an immediate effect on the execution of the European arrest warrant at issue and, therefore, on the continuation of PI’s provisional detention.

33      In those circumstances, on 17 December 2020, the First Chamber of the Court, acting on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decided to grant the referring court’s request that the present reference be dealt with under the urgent preliminary ruling procedure.

 Consideration of the question referred

34      By its question, the referring court asks, in essence, whether Article 8(1)(c) of Framework Decision 2002/584, read in the light of Article 47 of the Charter 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.

35      It should be recalled at the outset that both the principle of mutual trust between the Member States and the principle of mutual recognition, which is itself based on the mutual trust between the latter, are of fundamental importance in EU law because they allow an area without internal borders to be created and maintained. More specifically, the principle of mutual trust requires, particularly as regards the area of freedom, security and justice, each of those States, save in exceptional circumstances, to consider all the other Member States to be complying with EU law and particularly with the fundamental rights recognised by EU law (judgment of 12 December 2019, Openbaar Ministerie (Swedish Public Prosecutor’s Office), C‑625/19 PPU, EU:C:2019:1078, paragraph 33 and the case-law cited).

36      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 Framework Decision 2002/584, are based on compliance with certain requirements laid down by that framework decision, the scope of which has been established by the case-law of the Court.

37      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 Framework Decision 2002/584 (see, by analogy, judgment of 12 December 2019, Parquet général du Grand-Duché de Luxembourg and Openbaar Ministerie (Public Prosecutors of Lyons and Tours), C‑566/19 PPU and C‑626/19 PPU, EU:C:2019:1077, paragraph 52 and the case-law cited). Moreover, this classification is not disputed by PI, as his counsel stated at the hearing before the Court.

38      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 Framework Decision 2002/584, 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, MM, C‑414/20 PPU, EU:C:2021:4, paragraph 44 and the case-law cited). Thus, the status of ‘issuing judicial authority’, within the meaning of Article 6(1) of Framework Decision 2002/584, 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 Framework Decision 2002/584 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.

39      In the third place, like the Advocate General in points 37 and 38 of his Opinion, 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 Framework Decision 2002/584.

40      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 Framework Decision 2002/584, 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 of 13 January 2021, MM, C‑414/20 PPU, EU:C:2021:4, paragraph 57).

41      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 Framework Decision 2002/584, 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.

42      In that connection, it should be recalled that, in paragraph 56 of the judgment of 1 June 2016, Bob-Dogi (C‑241/15, EU:C:2016:385), the Court ruled that the European arrest warrant system entails, in view of the requirement laid down in Article 8(1)(c) of Framework Decision 2002/584, 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.

43      That protection means that a decision meeting the requirements inherent in effective judicial protection should be adopted, at least, at one of the two levels of that protection (judgment of 27 May 2019, OG and PI (Public Prosecutor’s Offices, Lübeck and Zwickau), C‑508/18 and C‑82/19 PPU, EU:C:2019:456, paragraph 68).

44      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 of 27 May 2019, OG and PI (Public Prosecutor’s Offices, Lübeck and Zwickau), C‑508/18 and C‑82/19 PPU, EU:C:2019:456, paragraph 69).

45      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 Framework Decision 2002/584 (judgment of 27 May 2019, OG and PI (Public Prosecutor’s Offices, Lübeck and Zwickau), C‑508/18 and C‑82/19 PPU, EU:C:2019:456, paragraph 70).

46      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 of 27 May 2019, OG and PI (Public Prosecutor’s Offices, Lübeck and Zwickau), C‑508/18 and C‑82/19 PPU, EU:C:2019:456, paragraph 75).

47      As the Advocate General notes in point 61 of his Opinion, 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.

48      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.

49      That requirement makes it possible, under the system established by Framework Decision 2002/584, which is based, as recalled in paragraph 35 of this judgment, 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 Framework Decision 2002/584, as is clear from paragraph 45 of the present judgment.

50      These considerations are in no way called into question by the case-law established by the judgments of 12 December 2019, Parquet général du Grand-Duché de Luxembourg and Openbaar Ministerie (Public Prosecutors of Lyons and Tours) (C‑566/19 PPU and C‑626/19 PPU, EU:C:2019:1077) and Openbaar Ministerie (Swedish Public Prosecutor’s Office) (C‑625/19 PPU, EU:C:2019:1078), which were relied upon during the hearing before the Court.

51      In paragraphs 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, as is clear from paragraphs 68 and 69 thereof, 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.

52      Similarly, in the case which gave rise to the judgment of 12 December 2019, Openbaar Ministerie (Swedish Public Prosecutor’s Office) (C‑625/19 PPU, EU:C:2019:1078), the European arrest warrant issued by the public prosecutor was based on a judicial decision on pre-trial detention.

53      Thus, as the Advocate General observes in points 69 and 72 of his Opinion, in the judgments cited in paragraph 50 of this judgment, 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.

54      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.

55      As to the fact that, in its written answer to questions put by the Court, the Bulgarian Government, referring to the judgment of 13 January 2021, MM (C‑414/20 PPU, EU:C:2021:4), 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 Framework Decision 2002/584.

56      It should be stated, as the Advocate General observes in points 33 and 34 of his Opinion, that, by that judgment, 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.

57      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.

58      Admittedly, in implementing Framework Decision 2002/584, 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, which underpins it.

59      It follows therefrom that the objective of Framework Decision 2002/584 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 cooperation 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 TEU and reflected in the Charter, an obligation which, moreover, concerns all Member States, and in particular both the issuing and the executing Member State (see, to that effect, judgment of 12 February 2019, TC, C‑492/18 PPU, EU:C:2019:108, paragraphs 41 and 54 and the case-law cited).

60      In the light of all these considerations, the answer to the question submitted is that Article 8(1)(c) of Framework Decision 2002/584, read in the light of Article 47 of the Charter 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.

 Costs

61      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (First Chamber) hereby rules:

Article 8(1)(c) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009, read in 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.

Delivered in open court in Luxembourg on 10 March 2021.

*      Language of the case: English.

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