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

Provisional text

OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 11 July 2024 (1)

Case C‑318/24 PPU [Breian] (i)

Direcţia Naţională Anticorupţie – Serviciul Teritorial Braşov (National Anti-Corruption Directorate – Braşov Regional Department, Romania)

(Request for a preliminary ruling from the Curtea de Apel Braşov (Court of Appeal, Braşov, Romania))

(Reference for a preliminary ruling – Judicial cooperation in criminal matters – European arrest warrant – Framework Decision 2002/584/JHA – Refusal to surrender requested persons – Force of res judicata attaching to the refusal – Mutual recognition and mutual trust – Systemic or generalised deficiencies in the judicial system of the issuing Member State – Oath of Romanian judges – Obligation to make a reference to the Court concerning the compatibility of a final refusal decision with EU law – Decision of the Commission for the Control of Interpol’s Files (CCF) – Rights of the issuing judicial authority to participate in proceedings before the executing judicial authority – Referral to the Commission – Cooperation between judicial authorities – Higher standard of protection in Member States)

I.      Introduction

1.        The present case concerns a European arrest warrant issued on the basis of Framework Decision 2002/584 (2) to enforce a custodial sentence in Romania. However, the executing judicial authority in France has definitively refused to surrender the requested person (‘the convicted person’). It has observed systemic or generalised deficiencies in Romania with regard to the taking of an oath by judges and has doubts in particular as to whether two of the three judges who imposed the custodial sentence have actually taken that oath.

2.        The Romanian court which is responsible for enforcing the prison sentence has now made a request for a preliminary ruling to the Court in order to clarify the impact of the refusal decision on the European arrest warrant. That request mainly concerns the effect of the force of res judicata attaching to the refusal decision vis-à-vis other Member States, and doubts regarding the oath of office. In addition, the referring court raises the question of the significance of a decision by Interpol relied on by the French executing judicial authority, and whether it may itself participate in the proceedings before the executing judicial authority or at least refer the matter to the Commission.

3.        In the meantime, another executing judicial authority in Malta, where the convicted person was re-arrested, is examining whether he should be surrendered to Romania. Since the Maltese court with jurisdiction at first instance refused to execute the arrest warrant due to doubts concerning the detention conditions in Romania, the Romanian court has referred an additional question to the Court. That question concerns, first, the cooperation with the Maltese court and, second, the standard of protection of fundamental rights applied by the Maltese court.

II.    Legal framework

A.      International law

4.        Under Article 2(1) of the Constitution of Interpol, which was adopted in 1956 and last amended in 2023, one of Interpol’s aims is

‘to ensure and promote the widest possible mutual assistance between all criminal police authorities within the limits of the laws existing in the different countries and in the spirit of the “Universal Declaration of Human Rights”’.

5.        Article 5 of the Constitution of Interpol names the Commission for the Control of Interpol’s Files (‘the CCF’) as part of Interpol.

6.        Under Article 36 of the Constitution of Interpol, the CCF is an independent body which is to ensure that the processing of personal information by Interpol is in compliance with the applicable regulations (first paragraph). To that end, it must, inter alia, decide on any complaint in that regard (third paragraph).

7.        The CCF has its own statute (Statute of the Commission for the Control of Interpol’s Files), which specifies its functions and powers. It may, inter alia, order the deletion of personal data from the Interpol information system (Article 3(1)(c)).

B.      European Union Law

8.        Article 1 of Framework Decision 2002/584 defines the European arrest warrant and establishes the obligation of the Member States to execute it:

‘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 TEU].’

9.        The surrender decision and the relationship between the issuing judicial authority and the executing judicial authority are governed by Article 15 of Framework Decision 2002/584:

‘1.      The executing judicial authority shall decide, within the time limits and under the conditions defined in this Framework Decision, whether the person is to be surrendered.

2.      If the executing judicial authority finds the information communicated by the issuing Member State to be insufficient to allow it to decide on surrender, it shall request that the necessary supplementary information, in particular with respect to Articles 3 to 5 and Article 8, be furnished as a matter of urgency and may fix a time limit for the receipt thereof, taking into account the need to observe the time limits set in Article 17.

3.      The issuing judicial authority may at any time forward any additional useful information to the executing judicial authority.’

III. Facts and the request for a preliminary ruling

10.      The request for a preliminary ruling concerns a European arrest warrant issued for the purposes of executing a custodial sentence. Romanian courts have sentenced the convicted person to several years’ imprisonment. As the convicted person had left Romania, the referring court issued a European arrest warrant.

11.      The convicted person was subsequently detained in France. However, according to the request for a preliminary ruling, the competent French court refused extradition to Romania in a decision that has since become final. It found that the Romanian judicial system suffers from systemic deficiencies which, in the present case, had manifested themselves in particular in the fact that one of the judges involved in the conviction at last instance had taken an oath of office only as a public prosecutor and it could not be proved that another judge involved in the case had taken the oath. There was therefore considered to be a real risk that the conviction was not handed down in a fair hearing by an independent and impartial tribunal previously established by law within the meaning of the second paragraph of Article 47 of the Charter.

12.      It is also apparent from the request for a preliminary ruling that the French court relied on the CCF which, following a complaint by the convicted person, had raised concerns regarding political elements and respect for human rights in the Romanian criminal proceedings which had led to his conviction. The CCF therefore decided that the information relating to the convicted person would be deleted from Interpol’s files.

13.      Subsequently, on 29 April 2024, the convicted person was arrested in Malta on the basis of the same European arrest warrant. The Maltese executing judicial authority then requested additional information from the referring court and stated that the requested person was relying on the decision of the French executing judicial authority.

14.      In those circumstances, on 30 April 2024, the Curtea de Apel Braşov (Court of Appeal, Braşov, Romania) referred the following questions to the Court:

‘(1)      May Article 15(1) of Framework Decision 2002/584 be interpreted as meaning that the final judgment regarding the decision of an executing judicial authority to refuse to surrender a requested person has the authority of res judicata with regard to another executing judicial authority of another Member State or must it be interpreted as not precluding the repetition of a request for surrender on the basis of the same European Arrest Warrant, where the factors which prevented the execution of a previous European Arrest Warrant have been ruled out, or where the decision refusing to execute that European Arrest Warrant was not consistent with EU law, in so far as the execution of a new European Arrest Warrant would not result in an infringement of Article 1(3) of Framework Decision 2002/584, and the repetition of the request for surrender would be proportionate, in accordance with the interpretation of Framework Decision 2002/584 given in the judgment of 31 January 2023 (Puig Gordi and Others, C‑158/21, paragraph 141 and the answer to the sixth question referred in that case)?

(2)      May Article 1(3) of Framework Decision 2002/584, read in conjunction with the second paragraph of Article 47 of the Charter, be interpreted as meaning that an executing judicial authority may not refuse to execute a European Arrest Warrant where, when reviewing the obligation to respect human rights in proceedings for the execution of a European Arrest Warrant, as regards the right to a fair trial, from the point of view of the requirement of a tribunal established by law, provided for in the second paragraph of Article 47 of the Charter, irregularities have been found regarding the taking of an oath by members of the adjudicating panel of the court which delivered the conviction, without the interference by other public authorities in the process of appointing judges being called into question?

(3)      May Article 1(3) of Framework Decision 2002/584, read in conjunction with the second paragraph of Article 47 of the Charter, be interpreted as meaning that, in a situation in which a person who is the subject of a European Arrest Warrant claims that his or her surrender to the issuing Member State would result in an infringement of his or her right to a fair trial, the existence of a decision of the CCF, which refers directly to that person’s situation, cannot per se justify a refusal by the executing judicial authority to execute the European Arrest Warrant in question, but may be taken into consideration by that judicial authority, among other factors, in order to assess whether there are systemic or generalised deficiencies in the functioning of the judicial system of that Member State or deficiencies affecting the judicial protection of an objectively identifiable group of persons to which that person belongs?

(4)      May Framework Decision 2002/584 be interpreted as not precluding the repetition of a request for surrender of a requested person on the basis of the same European Arrest Warrant, the execution of which was initially refused by an executing court of one Member State, before another executing court of another Member State, where the issuing judicial authority itself finds that the earlier decision to refuse to execute the European Arrest Warrant was not consistent with EU law, in the light of the existing judicial practice of the Court of Justice or solely due to the fact that a question on the interpretation of EU law applicable in that case has been referred to the Court of Justice for a preliminary ruling?

(5)      Do the principle of mutual recognition, provided for in Article 1(2) of Framework Decision 2002/584, and the principles of mutual trust and sincere cooperation, provided for in the first subparagraph of Article 4(3) TEU, in conjunction with the need to ensure effective judicial protection of the rights of the persons involved in the proceedings, and also in the light of Articles 15 and 19 of Framework Decision 2002/584, permit the judicial authorities of the issuing Member State (the issuing court, being represented by a direct representative or, at the request of that court, by other judicial bodies such as a liaison magistrate, the national member of Eurojust or the public prosecutor of the issuing Member State), to participate directly – by making requests, offering evidence and participating in legal discussions – in the judicial proceedings for the execution of the European Arrest Warrant conducted by the executing judicial authority, and to use a remedy against the decision regarding the refusal to surrender – under the conditions laid down in the domestic law of the executing Member State for the use of that remedy, in so far as such a remedy is provided for in that law – on the basis of and in accordance with the principle of equivalence?

(6)      May Article 17(1) TEU, relating to the tasks of the Commission, read in the light of Framework Decision 2002/584, be interpreted as meaning that the tasks of the Commission concerning the promotion of the general interest of the Union through the taking of appropriate initiatives to that end and the tasks relating to ensuring the overseeing of the application of Union law can be performed in relation to a European Arrest Warrant, also at the request of the judicial authority which issued the European Arrest Warrant, where that judicial authority considers that the executing judicial authority’s refusal to execute the European arrest warrant seriously undermines the principles of mutual trust and sincere cooperation, so that the Commission may take the measures it deems necessary in the light of those tasks and fully independently?’

15.      On 16 May 2024, the Fifth Chamber of the Court decided to deal with the present request for a preliminary ruling under the urgent preliminary ruling procedure provided for in Article 23a of the Statute of the Court of Justice and Article 107 et seq. of the Rules of Procedure. At the same time, it asked the referring court for further clarification regarding the proceedings pending before it.

16.      On 20 May 2024, the Maltese court with jurisdiction at first instance refused to surrender the convicted person to Romania on the ground that it was unable to determine, on the basis of the detention conditions in Romania and the information available to it, that the prohibition of inhuman or degrading treatment or punishment laid down in Article 4 of the Charter would be complied with in respect of the convicted person. On 22 May 2024, alongside the information requested by the Court, the referring court referred a further question to the Court:

‘(7)      Must Article 1(3) of Framework Decision 2002/584, in conjunction with Article 4 of the Charter, relating to the prohibition of inhuman or degrading treatment, be interpreted as meaning that, when examining detention conditions in the issuing Member State, first, the executing judicial authority cannot refuse to execute the European Arrest Warrant on the basis of information which has not been brought to the attention of the issuing judicial authority and in respect of which the latter has not had the opportunity to provide supplementary information as referred to in Article 15(2) and (3) of Framework Decision 2002/584 and, second, the executing judicial authority cannot apply a higher standard than that provided for by the Charter and without clarifying precisely the rules to which it refers, in particular as regards the requirements in matters of detention such as the drawing up of a ‘precise plan for … execution of the sentence’, the establishment of precise criteria for determining a particular ‘regime of execution’ and guarantees in relation to non-discrimination on account of a ‘particularly unique and delicate position’?’

17.      The Maltese Public Prosecutor’s Office has in the meantime successfully appealed against the refusal to surrender, so that the proceedings are once again pending at first instance and the convicted person remains in custody. According to the latest available information, the court with jurisdiction at first instance has since ordered that the convicted person be surrendered, against which he has, however, lodged an appeal.

18.      The Parchetul de pe lângă Înalta Curte de Casaţie şi Justiţie – Direcţia Naţională Anticorupţie (Public Prosecutor’s Office attached to the High Court of Cassation and Justice – National Anti-Corruption Directorate, Romania), the convicted person, Romania, the French Republic, the Republic of Malta and the European Commission have submitted written observations. The convicted person, Romania, Ireland and the Commission participated at the hearing which took place on 24 June 2024.

IV.    Legal assessment

19.      The present request for a preliminary ruling is in response to the decisions of the French and Maltese courts not to execute the European arrest warrant at issue. First, the admissibility of the request for a preliminary ruling and its urgency must be addressed (Section A). As regards the substance, the force of res judicata attaching to the French decision prompts questions about its effect in other Member States (Section B) and about the need for a request for a preliminary ruling in order to assess its compatibility with EU law (Section C). At the same time, the referring court asks whether the objections raised by the French court with regard to the oath of office taken by the Romanian judges who handed down the conviction may justify a refusal to surrender (Section D). In addition, it questions the significance of the findings made by an Interpol body (Section E) and whether it may itself participate directly in the proceedings before the executing judicial authority (Section F) or whether it may refer the matter to the Commission (Section G). Lastly, the Maltese refusal decision raises questions relating to the cooperation between the issuing and executing judicial authorities and the standard of protection of fundamental rights to be applied (Section H).

A.      Admissibility and urgency

20.      At first sight, doubts could arise as to whether the request for a preliminary ruling is actually relevant to a decision, and thus whether it is admissible. The question also arises as to whether it is urgent in accordance with the conditions for the urgent preliminary ruling procedure.

21.      The referring Romanian court issued a European arrest warrant the execution of which is currently being examined in Malta. Thus, it is not the referring court but a Maltese court which is deciding whether and for how long the convicted person is to remain in detention there. A decision on detention by the referring court can be contemplated only in the future in the event that the convicted person is surrendered from Malta to Romania.

22.      Thus, with regard to relevance to a decision, the question arises as to whether the referring court must in fact take a decision that requires an answer from the Court to the questions referred.

23.      However, the Court has already clarified that the observance of the fundamental rights of the requested person in the context of proceedings relating to a European arrest warrant falls primarily within the responsibility of the issuing Member State. Therefore, and given that the issuing of such a warrant may result in that person being arrested, an issuing judicial authority must, in order to ensure observance of those rights, be able to refer questions to the Court for a preliminary ruling in order to determine whether it may maintain a European arrest warrant or whether it must withdraw or revoke it. (3)

24.      In order to comply with the principles of mutual trust and sincere cooperation, the issuing judicial authority must, in particular, refrain from maintaining a European arrest warrant the execution of which should be refused in order to avoid an infringement of the second paragraph of Article 47 of the Charter. (4)

25.      It is precisely this question which arises in the present proceedings: in view of the objections which prompted the French court and the Maltese court of first instance to decline to execute the European arrest warrant, the referring Romanian court must decide whether to maintain the arrest warrant and request its execution by the Maltese court which now has jurisdiction, or whether to withdraw or revoke it. In order to reach that decision, it has submitted a request for a preliminary ruling to the Court. The request is therefore in principle material to its decision. I shall discuss any doubts about the relevance of individual questions separately.

26.      As regards urgency, it is true that, at the present time, the referring Romanian court is not itself ruling on the detention of the convicted person, as he is being detained in Malta. However, he is being detained only on the basis of the European arrest warrant, the maintenance of which must be decided by the referring court on the basis of the answers to be given to the request for a preliminary ruling. For as long as the detention in Malta continues, the request is therefore urgent and will rightly be dealt with under the urgent preliminary ruling procedure.

B.      Effect of a final refusal to surrender in another Member State

27.      By its first question, the referring court seeks to ascertain the significance of the refusal to surrender by the courts of one Member State (in this case, France) for the execution of the European arrest warrant in another Member State (in this case, Malta). Strictly speaking, the question in this form is not material to the decision of the referring court, since it does not have to decide directly on the execution of the arrest warrant. Rather, that decision is a matter for the courts of the other Member State, that is to say, in the present case, Malta.

28.      However, the Court has already answered questions raised by an issuing court concerning the powers of an executing court in another Member State. (5) That approach is explained by the fact that the referring court wanted to know whether it could maintain or was required to withdraw the European arrest warrants in question on the basis of the executing court’s decisions. (6)

29.      The relevance of the present question to the resolution of the dispute is even clearer if it is reformulated so as to establish whether the final refusal to execute a European arrest warrant in one Member State in itself precludes its execution in all other Member States, even if the grounds for refusal prove to be incompatible with EU law. If the final refusal were to have this effect, the arrest warrant would no longer be valid and would have to be annulled by the referring court.

30.      It is true that the principle of res judicata is of great importance both for the EU legal order and for the national legal systems. Therefore, in order to ensure stability of the law and legal relations, as well as the sound administration of justice, it is important that judicial decisions which have become definitive after all rights of appeal have been exhausted or after expiry of the time limits provided to exercise those rights can no longer be called into question. (7)

31.      In that sense, decisions of the Court of Justice on the re-issue of a European arrest warrant (8) may be understood as meaning that a final refusal to surrender – whether or not it is compatible with EU law – could prevent the execution of the original arrest warrant at least in the Member State in which the refusal was issued.

32.      However, Framework Decision 2002/584 does not provide that the final refusal to execute a European arrest warrant in one Member State prevents execution in other Member States. In particular, such a refusal cannot be equated with a final judgment in accordance with the principle ne bis in idem laid down in Article 3(2) of the framework decision, which prevents criminal proceedings from being brought against that person in respect of the same acts in the issuing State, or from being instituted in any other State. (9)

33.      The legislative content of the provisions on refusal to surrender in Articles 3, 4 and 4a of Framework Decision 2002/584 confirms that the refusal to surrender in one Member State does not have to preclude surrender by other Member States.

34.      Articles 4 and 4a of Framework Decision 2002/584 allow for the non-execution of a European arrest warrant on various grounds, but do not lay down any obligation in that regard. If a Member State refuses surrender on that basis, that decision cannot, by its very nature, have a binding effect on the courts of other Member States, since those courts are not obliged to follow the example of other Member States when exercising that power.

35.      By contrast, although Article 3 of Framework Decision 2002/584 contains grounds for mandatory non-execution, at least the grounds under Article 3(1) and (3) depend on the rules of the respective executing Member State. Nor can such decisions be binding on other Member States, as different rules apply in those States.

36.      The situation is different in the case of a refusal under Article 3(2) of Framework Decision 2002/584, which sets out the principle ne bis in idem laid down in Article 50 of the Charter in connection with the European arrest warrant. If a court of a Member State rightly refuses surrender because the offence has already been tried in another Member State, the courts of other Member States must also refuse surrender.

37.      The same should apply mutatis mutandis to a refusal based on a real risk that surrender or its consequences would infringe EU fundamental rights which must be respected in the application of Framework Decision 2002/584. (10) The Court has accepted that, where there is such a risk, the executing judicial authority may refrain, by way of exception on the basis of Article 1(3) of Framework Decision 2002/584, from executing a European arrest warrant. (11) I would even go one step further: in such a case, the executing judicial authority must not execute the arrest warrant as otherwise it would be accepting an infringement of fundamental rights. (12)

38.      In practice, therefore, if the executing judicial authority of one Member State correctly determines that there is a real risk of infringement of EU fundamental rights, an executing judicial authority of another Member State may not execute the arrest warrant. That follows, however, not from the force of res judicata attaching to the finding of the first executing judicial authority, but from the risk of infringement of fundamental rights.

39.      This is also supported by the fact that the issuing Member State is primarily responsible for the observance of fundamental rights in connection with the European arrest warrant. (13) The courts of that Member State are closest to the criminal and enforcement proceedings and are therefore best placed to assess whether fundamental rights are observed. It would be inconsistent with this for an executing judicial authority in another Member State to able to determine definitively and in a manner binding on all Member States that fundamental rights preclude the execution of the arrest warrant.

40.      Similarly, the principles of mutual trust and mutual recognition mentioned in the request for a preliminary ruling cannot confer such binding effect on a final decision of an executing judicial authority in other Member States. On the contrary, they preclude such an effect. By refusing to execute a European arrest warrant, the executing judicial authority is refusing the recognition that is the general rule, as provided for in Article 1(2) of Framework Decision 2002/584, and which may be derogated from only as an exception which must be interpreted strictly. (14) In doing so, it also expresses its lack of confidence in the issuing judicial authority in respect of compliance with fundamental rights.

41.      Thus, if an executing judicial authority definitively refuses to execute a European arrest warrant, it cannot bind the judicial authorities of other Member States. (15)

42.      However, the grounds on which an executing judicial authority bases its refusal must be given due consideration in further decisions on the arrest warrant, particularly if the executing judicial authority fears an infringement of fundamental rights. (16) This is not only another expression of the principle of mutual trust, this time between executing judicial authorities, but is also a necessary consequence of the obligation to respect EU fundamental rights.

43.      However, as the Court has already ruled, that also means that the issuing judicial authority must take note of such concerns and examine, in the light of those concerns, whether it can maintain the European arrest warrant or whether it must revoke it. (17)

44.      The answer to the first question must therefore be that the final refusal to execute a European arrest warrant in one Member State does not prevent executing judicial authorities in other Member States from executing the arrest warrant. However, the issuing judicial authority and, where that arrest warrant is under consideration, the other executing judicial authorities also, must examine whether the refusal to execute was correctly based on grounds which preclude the execution of the arrest warrant in other Member States.

C.      Is the issuing judicial authority obliged to refer the matter to the Court in the event of a final refusal to execute?

45.      The fourth question is closely linked to the answer to the first question and, consequently, to the examination, where appropriate, of whether an executing judicial authority was entitled to refuse to surrender the requested person. It seeks to determine whether the issuing judicial authority is entitled itself to review whether the refusal to surrender is compatible with EU law, or whether it is obliged to submit a request for a preliminary ruling to the Court in that regard.

46.      Under Article 267 TFEU, the courts of the Member States may refer questions on the interpretation of EU law to the Court where the answer to those questions is necessary in order to resolve a dispute before them. Where there is doubt which is material to the decision as to whether the refusal to surrender by the executing judicial authority is compatible with EU law, the issuing judicial authority is, as a general rule, permitted to make a request for a preliminary ruling.

47.      Only where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law must that court or tribunal bring the matter before the Court under the third paragraph of Article 267 TFEU. Moreover, according to settled case-law, all courts and tribunals of the Member States are obliged to refer questions to the Court of Justice where there is doubt as to the validity of provisions of EU law that are material to the decision. (18)

48.      In the present case, there is nothing to suggest that there is no judicial remedy under national law against the decisions of the referring court on the European arrest warrant. (19) Nor is there any claim that provisions of EU law are invalid.

49.      Rather, the question is whether the fact that an executing judicial authority has refused to surrender the requested person by means of a final decision constitutes a further case of the duty of those courts against whose decisions there is a judicial remedy to make a reference for a preliminary ruling. According to the referring court, the importance of res judicata militates in favour of that view.

50.      As has already been stated, the authority of res judicata is indeed of particular importance in EU law by virtue of the principles of legal certainty and the protection of legitimate expectations. (20)

51.      However, an obligation to make a reference to the Court is justified only if otherwise there would be specific risks for the uniform application of EU law and thus also for legal certainty. (21) Such risks are presumed to exist where courts adjudicate at last instance, as this would make it possible for a body of national case-law to be established in that Member State which is not in accordance with the provisions of EU law. (22) In addition, differences between courts of the Member States as to the validity of EU acts would be liable to jeopardise the essential unity of the EU legal order and to undermine the fundamental requirement of legal certainty. (23)

52.      If an issuing judicial authority against whose decision there is a judicial remedy contradicts the final findings of the executing judicial authority of another Member State with regard to the interpretation of EU law, EU law in the form of Framework Decision 2002/584 will not be applied uniformly throughout the European Union. However, such contradiction has the same quality as any other contradiction between judicial decisions against which an appeal may be brought.

53.      This is not altered by the force of res judicata attaching to a refusal decision by an executing judicial authority. This is because other divergent decisions by lower courts may also become final if no appeal is brought against them. Moreover, it has already been established that a final decision of an executing judicial authority of one Member State is not binding on the judicial authorities of other Member States. (24)

54.      Consequently, the issuing judicial authority is entitled to verify whether the final refusal to surrender by the executing judicial authority is compatible with EU law without referring the matter to the Court of Justice if there is a judicial remedy under national law against its decision.

D.      Importance of the oath

55.      By its second question, the referring court seeks to ascertain whether irregularities in the taking of the oath by judges who have handed down a criminal conviction allow an executing judicial authority to refuse to execute a European arrest warrant with a view to enforcing that conviction on the basis of Article 1(3) of Framework Decision 2002/584 and the second paragraph of Article 47 of the Charter.

56.      As I have already stated, Article 1(3) of Framework Decision 2002/584 requires the executing judicial authority to refuse to execute the arrest warrant if there is a real risk of breach of a fundamental right. (25)

57.      The executing judicial authority must thus assess, in the context of a two-step examination, whether such a risk actually exists. (26) To that end, it must, as a first step, determine whether there is objective, reliable, specific and properly updated information to demonstrate that there is a real risk of breach, in the issuing Member State, of those fundamental rights on account of systemic or generalised deficiencies. (27) In a second step, the executing judicial authority must determine, specifically and precisely, whether the person concerned will run a real risk of breach of those fundamental rights. (28)

58.      In the present case, the executing judicial authority, the French court, refused surrender on the ground that it was apparent from the information provided by the Romanian issuing judicial authority that proof that the Romanian judges had taken the oath was not guaranteed in all cases. The executing judicial authority based the specific risk of a breach of fundamental rights on the fact that, for one of the three judges involved in the conviction in question, there was no evidence that the oath had been taken. Another judge had taken an oath of office only as a public prosecutor. It appears that the French court therefore concluded that there was a risk that the convicted person would serve a sentence which had not been imposed by an independent and impartial tribunal previously established by law, within the meaning of the second paragraph of Article 47 of the Charter.

59.      However, do those circumstances actually give rise to a real risk of infringement of the second paragraph of Article 47 of the Charter?

1.      The requirements of the second paragraph of Article 47 of the Charter

60.      The guarantees of access to an independent and impartial tribunal previously established by law laid down in the second paragraph of Article 47 of the Charter and, in particular, those which determine what constitutes a tribunal and how it is composed, represent the cornerstone of the right to a fair trial. (29)

61.      Since the first sentence of the second paragraph of Article 47 of the Charter corresponds to the first sentence of Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms (‘ECHR’), its meaning and scope are, in accordance with Article 52(3) of the Charter, the same as those laid down by the ECHR. The Court must therefore ensure that the interpretation which it gives to the second paragraph of Article 47 of the Charter safeguards a level of protection which does not fall below the level of protection established in Article 6 of the ECHR. (30)

62.      The reference to the law in the second paragraph of Article 47 of the Charter and in Article 6(1) of the ECHR reflects, in particular, the principle of the rule of law and covers not only the legal basis for the very existence of a tribunal, but also the composition of the bench in each case and any other provision of domestic law which, if breached, would render the participation of one or more judges in the examination of a case irregular. (31) Verification of compliance with those guarantees is necessary for the confidence which the courts in a democratic society must inspire in those subject to their jurisdiction. (32)

63.      However, not every error is of such a nature as to undermine that confidence by giving rise to reasonable doubt as to whether a formation can be considered to be an ‘independent and impartial tribunal previously established by law’ within the meaning of EU law. (33) Rather, it depends on the nature and gravity of the infringement and whether what is at issue are fundamental rules forming an integral part of the establishment and functioning of that judicial system. (34)

64.      The European Court of Human Rights (‘ECtHR’) also reviews the appointment of judges when applying Article 6(1) of the ECHR. However, as a rule, it criticises only manifest breaches of the domestic rules applicable to appointments. (35) It is only if the application of the rules in force produces results that are incompatible with the object and purpose of the human rights concerned that the ECtHR considers that further examination is necessary. (36) In both cases, a breach of Article 6(1) of the ECHR in connection with the appointment of a judge presupposes as a general rule a serious breach of the applicable rules, in particular through undue interference. (37) In that regard, a review of the appointment procedure by the national court is of particular importance, at least in so far as it actually ensures compliance with Article 6(1) of the ECHR. (38)

65.      The relevant case-law of the Court and of the ECtHR relates to breaches of rules that affect the independence and impartiality of courts vis-à-vis other public authorities. At first sight, this seems rather remote in the case of infringements relating to the oath of office.

66.      However, the oath of office is not a mere formality, but above all an affirmation of particularly important official duties. Thus, Romanian judges swear that they will respect the Constitution and the laws of the country, defend the fundamental rights and freedoms of the person and perform their duties with honour, conscience and without bias. (39) Infringements that may give rise to reasonable doubt as to the lawful conduct of the courts are not irrelevant from the point of view of a fair trial.

67.      In particular, the refusal to take an oath which is mandatory under national law may constitute a sufficiently serious breach of the rules governing the composition of a court to give rise to reasonable doubt as to whether that tribunal satisfies the requirements of the second paragraph of Article 47 of the Charter or of Article 6(1) of the ECHR. Such a refusal may show that the person concerned is not prepared to fulfil his or her official duties. (40) In that case, he or she should be barred from holding judicial office.

68.      However, it is doubtful whether the objections in the present case demonstrate sufficiently serious infringements, especially when measured against the standard of the two-step examination, which is a prerequisite for a refusal to surrender under Article 1(3) of Framework Decision 2002/584.

69.      That is the case both as regards the record of the oath of one of the judges which can no longer be found and as regards the judge who had taken the oath only as a public prosecutor.

2.      The missing record

70.      The French court considers that the fact that the records of the oath taken by Romanian judges before April 2014 were not kept in their personal file, but only at the court where they had taken the oath, constitutes a systemic or generalised deficiency which must be established in the first step of the examination.

71.      That practice has indeed proved to be problematic in the present case, since one of the three judges who sentenced the convicted person to imprisonment had, according to the request for a preliminary ruling, taken his oath 26 years earlier, but the record of it could no longer be found.

72.      However, it is already doubtful whether the previous Romanian legislation can be regarded as a deficiency at all, not to mention whether it poses a systemic or general risk of infringement of the second paragraph of Article 47 of the Charter. In fact, it does not concern the taking of an oath as such, but only the proof thereof.

73.      The question of proof that an oath has been taken is governed neither by the second paragraph of Article 47 of the Charter or Article 6(1) of the ECHR nor elsewhere in EU law. It therefore falls, in principle, within the procedural autonomy of the Member States. (41) It is true that that principle is circumscribed by the principles of equivalence and effectiveness, but there is no apparent infringement of those principles by the Romanian legislation.

74.      Although more effective means of guaranteeing proof of the taking of an oath are conceivable, the principle of effectiveness does not require the most effective rule, but merely prohibits the exercise of rights conferred by EU law – in this case the right to a tribunal established by law – from being rendered practically impossible or excessively difficult. (42)

75.      As Romania submits, however, the record of the taking of an oath is not the only means of proving that the oath was taken in the event of doubt. Thus, as a general rule, it must already be presumed that a judge performing his or her duties has also taken an oath of office, in so far as that oath is provided for. (43) It must be assumed that, before the performance of duties, the court administration and the judge himself or herself were certain that the judge had taken the oath. In order for that presumption to be called into question, there must be substantial doubt. The fact that the record of the oath can no longer be found is not sufficient in that regard.

76.      In the absence of specific rules of EU law on proof that an oath has been taken, it is therefore not for the Court of Justice or the courts of other Member States, when executing European arrest warrants, to regard previous Romanian practice as a systemic or generalised deficiency.

77.      Consequently, as regards that judge, it has not been established that the convicted person’s right to have his case heard by a tribunal previously established by law, within the meaning of the second paragraph of Article 47 of the Charter, has been infringed.

3.      Oath of office as a public prosecutor

78.      With regard to the judge who took her oath of office as a public prosecutor, the Romanian practice identified by the French court as a systemic or generalised deficiency had no impact in her regard, since the record that she had taken an oath was found.

79.      Rather, the French court criticises the fact that she took her oath of office not as a judge but as a public prosecutor.

80.      Even if this were in line with general Romanian practice, it would not constitute a systemic or generalised deficiency from the point of view of EU law. The question of whether and under what conditions an oath of office is to be taken also falls within the procedural autonomy of the Member States.

81.      As far as can be seen, the oath of office of public prosecutors corresponds to the oath of office of judges under the applicable Romanian rules. (44) Furthermore, Romanian law provides and has provided that judges and public prosecutors do not have to re-take the oath in the event of a change of office. (45) That could include both the transfer between different courts or formations and the transfer between the Public Prosecutor’s Office and the court (and vice versa), since the status of judges and public prosecutors has been governed by the same laws since 1992 at least. In any event, according to the request for a preliminary ruling, a Romanian court has already dismissed an appeal in the main proceedings concerning the fact that the judge concerned has not re-taken the oath in the present case. (46) Consequently. it must be assumed that that practice does not in any event constitute a serious infringement under Romanian law.

82.      Therefore, the taking of an oath by that second judge also does not create the risk that the convicted person will have to serve a sentence which has not been imposed by a tribunal established by law, within the meaning of the second paragraph of Article 47 of the Charter.

4.      Interim conclusion

83.      Article 1(3) of Framework Decision 2002/584 and the second paragraph of Article 47 of the Charter therefore do not permit the executing judicial authority to refuse to surrender a convicted person for the purpose of executing a custodial sentence imposed in Romania solely on the ground that the record of the oath taken by one of the judges involved in the conviction cannot be found and another judge who participated took her oath of office as a public prosecutor.

E.      Decision of the CCF

84.      By its third question, the referring court asks about the significance of a decision of the CCF, which is part of Interpol, which raised serious concerns regarding political elements in the general context of the prosecution of the convicted person and respect for human rights in the criminal proceedings.

85.      Framework Decision 2002/584 contains no explicit reference to such decisions. However, the Court has already ruled that evidence of systemic or generalised deficiencies may be obtained, inter alia, from decisions, reports and other documents produced by bodies of the Council of Europe or under the aegis of the United Nations. (47)

86.      Although the decision referred to does not originate from one of those organisations, Interpol has a similar status as a source of information.

87.      Within Interpol, 196 States are represented. Although it was not established by a formal international treaty, it has statutes that were adopted by the General Assembly – that is to say representatives of the participating States – and are even referred to as a constitution in the English version.

88.      The cooperation between the European Union and Interpol is long-standing and deep, as the Commission indicates in a Recommendation on the conclusion of a cooperation agreement with Interpol, in which it describes Interpol as a key partner for the European Union. (48) The Council subsequently authorised the Commission to open negotiations on the cooperation agreement. (49) The United Nations also cooperates with Interpol. (50)

89.      Under the sixth indent of Article 5 of the Constitution of Interpol, the CCF is part of the organisation. The third paragraph of Article 36 provides that the CCF is to process requests concerning the information contained in Interpol’s files. According to the Statute of the CCF, that means in practice that the CCF must handle the complaints of wanted persons like an independent legal protection body and, in particular, ensure that human rights are respected.

90.      The CCF may therefore, as in the present case, take a decision on a person who is wanted for the same reason via Interpol and under a European arrest warrant. Unlike the texts that the Court has dealt with so far, such a decision is therefore not only of interest for determining systemic or generalised deficiencies in the issuing Member State, (51) but also for determining whether the requested person has to fear a specific infringement of his or her human rights.

91.      However, it is not apparent from Framework Decision 2002/584, or from other provisions of EU law, including the fundamental rights under EU law, or the rules governing Interpol, that a decision of the CCF is binding on an executing or issuing judicial authority. On the contrary, those judicial authorities must themselves verify whether it is clear from the information contained in a decision that the execution of a European arrest warrant should be refused.

92.      As a general rule, the decision of the CCF does not in itself authorise an executing judicial authority to refuse to surrender the requested person. The duty of sincere cooperation enshrined in the first subparagraph of Article 4(3) TEU (52) requires at the very least that the issuing judicial authority is given the opportunity to comment on the CCF’s decision. (53)

93.      Article 1(3) of Framework Decision 2002/584 and the second paragraph of Article 47 of the Charter must therefore be interpreted as meaning that, where there are indications of a real risk of a breach of the requested person’s fundamental rights under EU law as a result of the execution of the European arrest warrant resulting from a decision of the Commission for the Control of Interpol’s Files, the issuing and executing judicial authorities must assess whether that arrest warrant can still be executed.

F.      Participation of the issuing judicial authority in proceedings before the executing judicial authority

94.      By its fifth question, the referring court seeks to ascertain whether, as the issuing judicial authority, it may, on the basis of Framework Decision 2002/584, the principles of mutual recognition and mutual trust, of sincere cooperation and of effective judicial protection, participate directly in the proceedings before the executing judicial authority and in particular take procedural steps in those proceedings.

95.      That question reflects the referring court’s dissatisfaction with the cooperation with the French court and in particular with the fact that the French court’s decision refusing surrender became final because the French Public Prosecutor’s Office lodged an appeal but failed to state reasons for it within the prescribed period. However, even with an answer to the present question, the referring court is no longer in a position to change what has happened. It is therefore not relevant to the outcome of the dispute as regards the French refusal to execute the arrest warrant.

96.      By contrast, for other enforcement proceedings, in particular the proceedings in Malta, an answer from the Court may be entirely relevant to the outcome of the dispute, since the referring court could still exercise any participation rights established by the Court. Therefore, that question must be answered.

97.      The referring court rightly states that Framework Decision 2002/584 does not preclude such participation. However, it does not require it either, but merely establishes the mutual recognition of European arrest warrants and thus the mutual trust in the criminal proceedings on which those warrants are based. As regards instruments of cooperation, in addition to the issuing of arrest warrants and the information referred to in Article 8, it provides in particular, in Article 15(2) and (3), for requests for information and the transmission of information.

98.      The possibility of further involvement of the issuing judicial authority in the proceedings before the executing judicial authority therefore falls within the procedural autonomy of the Member States.

99.      It is limited above all by the principle of effectiveness, which the referring court brings into play by the reference to effective judicial protection. Admittedly, it could be doubtful whether a right conferred by EU law actually exists, the exercise of which is to make the involvement of the issuing judicial authority necessary in the proceedings before the executing judicial authority. However, there is at the very least an obligation under EU law to execute the European arrest warrant, as laid down in Article 1(2) of Framework Decision 2002/584. Direct participation in the proceedings by the issuing judicial authority could contribute to the implementation of that obligation, at least if it were possible to overcome the practical difficulties involved.

100. As with the proof that an oath has been taken, (54) the principle of effectiveness does not require, for the implementation of an obligation, that procedural rules be adopted which are particularly effective in supporting that implementation, but merely prohibits rules which make such implementation practically impossible or excessively difficult.

101. At the very least, the EU legislature clearly considered, with regard to the provisions of Framework Decision 2002/584 on cooperation between judicial authorities, that those provisions were sufficient to ensure the effective execution of European arrest warrants. Otherwise, it would have laid down more far-reaching rules.

102. That assumption on the part of the EU legislature is justified as, when implementing the framework decision, the judicial authorities concerned must in any event fulfil the duty of sincere cooperation enshrined in the first subparagraph of Article 4(3) TEU. (55) They must therefore fully support each other and give each other sufficient opportunity to communicate the necessary information. It can therefore be ruled out that the execution of a European arrest warrant would be practically impossible or excessively difficult if the issuing judicial authority was not entitled to participate in proceedings before the executing judicial authority.

103. Framework Decision 2002/584 and the principle of sincere cooperation enshrined in the first subparagraph of Article 4(3) TEU therefore do not confer any rights on the issuing judicial authority to participate in proceedings before the executing judicial authority over and above those provided for by Article 8 and Article 15(2) and (3) of that framework decision.

G.      Referral to the Commission

104. The sixth question seeks to ascertain whether the referring court, as the issuing judicial authority, may refer the matter to the Commission if it considers that an executing judicial authority’s refusal to surrender seriously infringes the principles of mutual trust and sincere cooperation. That question is also based on the referring court’s dissatisfaction with the conduct of the proceedings in France. However, unlike the fifth question, it is not material to a judicial decision and is therefore inadmissible.

105. The matter of whether the referring court may complain to the Commission about the conduct of an executing judicial authority is not a decision to be taken by that court in pending judicial proceedings. Nor does the referring court in any way claim that the Commission plays a direct role in the procedure for the enforcement of a European arrest warrant.

106. Rather, the question relates to the review of the application of the framework decision by the Commission under the third sentence of Article 17(1) TEU. However, even that review does not justify the Commission’s involvement in the enforcement proceedings. It is true that the Commission’s strongest control instrument, infringement proceedings under Articles 258 and 260 TFEU, may lead to a finding that a Member State has infringed EU law through its courts in the context of the execution of a European arrest warrant. At least since the expiry of the transitional period provided for in Article 10(3) of Protocol No 36 on transitional provisions, it must be assumed that the Commission is authorised to initiate infringement proceedings even in the event of an infringement of a framework decision, in particular since it has already obtained similar judgments. (56) However, such a finding does not have a direct effect on the enforcement proceedings themselves.

107. There is therefore no need to answer that question.

H.      Refusal to surrender by Malta

108. The seventh question concerns the refusal by a Maltese court to surrender the convicted person due to doubts concerning the detention conditions in Romania.

109. According to settled case-law, the executing judicial authority must postpone the surrender if the requested person will be exposed in the issuing Member State to a real risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter due to the expected conditions of detention. (57)

110. The referring court wishes to know whether, in accordance with Article 1(3) of Framework Decision 2002/584 and Article 4 of the Charter, the executing judicial authority may base a refusal on information on which the issuing judicial authority has not previously been able to comment (see 1 below) and whether the refusal may be based on higher standards of protection than provided for in the Charter (see 2 below).

1.      Judicial cooperation

111. By the first part of the seventh question, the referring court challenges two findings of the Maltese court in respect of which that court has not requested further information. Rather, the Maltese court relied on its own internet research and found that the Romanian court’s position on assurances given by the Romanian prison administration that the person concerned would not be subjected to inhuman or degrading treatment was insufficient.

112. Internet searches are generally suitable for providing indications of systemic or generalised deficiencies in the Member States. The documents from international organisations (58) which have been mentioned above can often be found relatively easily on the internet.

113. However, the Court has already rightly pointed out that the executing judicial authority cannot, without infringing the principle of sincere cooperation, make findings that are necessarily based on an analysis of the law of the issuing Member State without having first requested that the issuing judicial authority provide supplementary information concerning those rules. (59) Otherwise, there is a risk of misunderstandings and errors regarding the content or applicability of the provisions found. The same must apply to factual information relating to the application of domestic law.

114. Thus, an executing judicial authority may use the results of its own research or the submissions of the requested person only after it has given the issuing judicial authority the opportunity to express its views. In the interests of an expedited decision, the executing judicial authority can set short time limits in that regard.

115. The question of assurances (60) is based on the case-law of the Court. Accordingly, the assurance provided by the competent authorities of the issuing Member State that the person concerned, irrespective of the prison in which he or she is detained in the issuing Member State, will not suffer inhuman or degrading treatment on account of the actual and precise conditions of his or her detention is a factor which the executing judicial authority cannot disregard. (61) The executing judicial authority, in view of the mutual trust which must exist between the judicial authorities of the Member States and on which the European arrest warrant system is based, must rely on that assurance, at least when it has been given or at least endorsed by the issuing judicial authority and there are no specific indications that the detention conditions in a particular detention centre are in breach of Article 4 of the Charter. (62) However, it must carry out a full examination of the reliability of assurances given by other authorities. (63)

116. According to the referring court, it intended, by the information sent to the Maltese court, to express its endorsement of the assurance, in accordance with that case-law. In that communication, it therefore expressly referred to the relevant passage of one of the relevant judgments. (64)

117. On account of that reference alone, it is surprising that the Maltese court assumed, without further enquiry, that the issuing judicial authority had not endorsed the assurance.

118. However, the Maltese court is also likely to have fallen victim to a translation issue. It based the finding that the issuing judicial authority had not endorsed the assurance on the fact that the Romanian court had expressed its position in the English translation of its communication using the verb ‘to approve’ rather than ‘to endorse’. In fact, the English version of the relevant judgments of the Court uses the verb ‘to endorse’. (65) However, the French version, over which the Court deliberated, uses the verb ‘approuver’ and the Romanian translation, the verb ‘a aproba’. If the Romanian court followed the Romanian translation of the case-law in its statement and used the verb ‘a aproba’, it is likely that, in the English translation of the statement, the verb ‘to approve’ was used without meaning anything other than endorsement in accordance with the case-law of the Court.

119. Translation issues can often influence the interpretation and application of the Court’s case-law. Formally, only the version of a judgment in the language of the case is authentic; for the two judgments relevant to this case, (66) that is the German version. However, the judges of the Court have not discussed or jointly verified either that version or the English, Maltese or Romanian versions. Only the French version is therefore truly reliable, since the Court deliberated over and wrote the judgment in that language.

120. Furthermore, when judicial authorities cooperate in connection with the European arrest warrant, a statement by one authority often has to be translated before it can be used by the other judicial authority. Additional errors may arise as a result.

121. Therefore, the judicial authorities concerned must not impose excessive requirements as to the use of certain terms. Rather, if they have doubts as to the meaning of expressions which are material to the decision, in the interests of sincere cooperation, they must enquire.

2.      Applicable standard of protection of fundamental rights

122. As regards the higher standard of protection of fundamental rights referred to in the second part of the seventh question, the Court has already held on several occasions that the Member States may not demand a higher level of national protection of fundamental rights from another Member State than that provided by EU law. (67)

123. In particular, the Court has held that, while it is open to the Member States to make provision in respect of their own prison system for minimum standards in terms of detention conditions that are higher than those resulting from Article 4 of the Charter and Article 3 of the ECHR, as interpreted by the ECtHR, a Member State may nevertheless, as the executing Member State, make the surrender to the issuing Member State of the person concerned by a European arrest warrant subject only to compliance with the latter requirements, and not with those resulting from its own national law. The opposite solution would, by casting doubt on the uniformity of the standard of protection of fundamental rights as defined by EU law, undermine the principles of mutual trust and recognition which Framework Decision 2002/584 is intended to uphold and would, therefore, compromise the efficacy of that framework decision. (68)

124. For the sake of completeness, it should be noted that the particular personal characteristics of the convicted person highlighted by the Maltese court, such as his age, must be taken into account in order to avoid a breach of Article 4 of the Charter due to detention. That risk must be assessed by taking account of all the circumstances of the case, such as the duration of the conditions in question, their physical and mental effects and, in some cases, the sex, age and state of health of the individual. (69) However, it is incompatible with the objectives and function of enforcement proceedings, which must be executed as a matter of urgency under Article 17(1) of Framework Decision 2002/584, for the executing judicial authority to require, before surrender, certainty that those conditions will be taken into account for the entire period of detention. (70) Unless there is specific evidence that the requested person’s fundamental right under Article 4 of the Charter will be infringed, the executing judicial authority must place its trust in the competent judicial authorities of the issuing Member State.

3.      Interim conclusion

125. Accordingly, Article 1(3) of Framework Decision 2002/584, in conjunction with Article 4 of the Charter, relating to the prohibition of inhuman or degrading treatment, must be interpreted as meaning that the executing judicial authority cannot refuse to execute the European arrest warrant on the basis of information concerning detention conditions in the issuing Member State on which the issuing judicial authority has not been able to comment, and, if there is any doubt about the scope of statements made by that authority, must make enquiries of it. In addition, as regards the protection of EU fundamental rights, the executing judicial authority cannot apply a higher standard than that resulting from EU law and in particular the Charter.

V.      Conclusion

126. I therefore propose that the Court answer the questions referred for a preliminary ruling by the Curtea de Apel Braşov (Court of Appeal, Braşov, Romania) as follows:

(1)      The final refusal to execute a European arrest warrant under Framework Decision 2002/584/JHA on the European arrest warrant and the surrender procedures between Member States as amended by Framework Decision 2009/299/JHA in one Member State does not prevent executing judicial authorities in other Member States from executing the arrest warrant. However, the issuing judicial authority and, where that arrest warrant is under consideration, the other executing judicial authorities also, must examine whether the refusal to execute was correctly based on grounds which preclude the execution of the arrest warrant in other Member States.

(2)      The issuing judicial authority is entitled to verify whether the final refusal to surrender by the executing judicial authority is compatible with EU law without referring the matter to the Court of Justice if there is a judicial remedy under national law against its decision.

(3)      Article 1(3) of Framework Decision 2002/584 and the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union do not permit the executing judicial authority to refuse to surrender a convicted person for the purpose of executing a custodial sentence imposed in Romania solely on the ground that the record of the oath taken by one of the judges involved in the conviction cannot be found and another judge who participated took her oath of office as a public prosecutor.

(4)      Article 1(3) of Framework Decision 2002/584 and the second paragraph of Article 47 of the Charter must be interpreted as meaning that, where there are indications of a real risk of a breach of the requested person’s fundamental rights under EU law as a result of the execution of the European arrest warrant resulting from a decision of the Commission for the Control of Interpol’s Files, the issuing and executing judicial authorities must assess whether that arrest warrant can still be executed.

(5)      Framework Decision 2002/584 and the principle of sincere cooperation enshrined in the first subparagraph of Article 4(3) TEU do not confer any rights on the issuing judicial authority to participate in proceedings before the executing judicial authority over and above those provided for by Article 8 and Article 15(2) and (3) of that framework decision.

(6)      Article 1(3) of Framework Decision 2002/584, in conjunction with Article 4 of the Charter, relating to the prohibition of inhuman or degrading treatment, must be interpreted as meaning that the executing judicial authority cannot refuse to execute the European arrest warrant on the basis of information concerning detention conditions in the issuing Member State on which the issuing judicial authority has not been able to comment, and, if there is any doubt about the scope of statements made by that authority, must make enquiries of it. In addition, as regards the protection of EU fundamental rights, the executing judicial authority cannot apply a higher standard than that resulting from EU law and in particular the Charter.

1      Original language: German.

i      The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings.

2      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).

3      Judgments of 25 July 2018, AY (Arrest warrant – Witness) (C‑268/17, EU:C:2018:602, paragraphs 28 and 29), and of 31 January 2023, Puig Gordi and Others (C‑158/21, EU:C:2023:57, paragraph 54). With regard to a request for a preliminary ruling prior to the initial issuing of an arrest warrant, judgment of 16 December 2021, AB and Others (Revocation of an amnesty) (C‑203/20, EU:C:2021:1016, paragraphs 47 to 49).

4      Judgment of 31 January 2023, Puig Gordi and Others (C‑158/21, EU:C:2023:57, paragraph 55).

5      Judgment of 31 January 2023, Puig Gordi and Others (C‑158/21, EU:C:2023:57, operative part, points 1, 2, 3 and 5).

6      Judgment of 31 January 2023, Puig Gordi and Others (C‑158/21, EU:C:2023:57, paragraphs 52 and 53).

7      See, for example, judgment of 6 July 2023, Minister for Justice and Equality (Request for consent – Effects of the original European arrest warrant) (C‑142/22, EU:C:2023:544, paragraph 35).

8      Judgment of 31 January 2023, Puig Gordi and Others (C‑158/21, EU:C:2023:57, paragraphs 52, 141, 143 and 146), and of 14 September 2023, Sofiyska gradska prokuratura and Others (Successive arrest warrants) (C‑71/21, EU:C:2023:668, paragraph 36).

9      See judgment of 14 September 2023, Sofiyska gradska prokuratura and Others (Successive arrest warrants) (C‑71/21, EU:C:2023:668, paragraphs 51 and 52).

10      To that effect, judgments of 5 April 2016, Aranyosi and Căldăraru (C‑404/15 and C‑659/15 PPU, EU:C:2016:198, paragraph 84), and of 6 June 2023, O. G. (European arrest warrant issued against a third-country national) (C‑700/21, EU:C:2023:444, paragraph 40).

11      Judgments of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice) (C‑216/18 PPU, EU:C:2018:586, paragraph 59); of 31 January 2023, Puig Gordi and Others (C‑158/21, EU:C:2023:57, paragraph 72); and of 21 December 2023, GN (Ground for refusal based on the best interests of the child) (C‑261/22, EU:C:2023:1017, paragraph 43).

12      See judgments of 5 April 2016, Aranyosi and Căldăraru (C‑404/15 and C‑659/15 PPU, EU:C:2016:198, paragraph 88); of 15 October 2019, Dorobantu (C‑128/18, EU:C:2019:857, paragraphs 50 and 51); and of 31 January 2023, Puig Gordi and Others (C‑158/21, EU:C:2023:57, paragraphs 97 and 98).

13      Judgments of 23 January 2018, Piotrowski (C‑367/16, EU:C:2018:27, paragraph 50); of 31 January 2023, Puig Gordi and Others (C‑158/21, EU:C:2023:57, paragraphs 54, 96 and 115); and of 21 December 2023, GN (Ground for refusal based on the best interests of the child) (C‑261/22, EU:C:2023:1017, paragraph 43).

14      Judgments of 29 June 2017, Popławski (C‑579/15, EU:C:2017:503, paragraph 19), and of 31 January 2023, Puig Gordi and Others (C‑158/21, EU:C:2023:57, paragraph 68).

15      Thus, with regard to the Agreement between the European Union and the Republic of Iceland and the Kingdom of Norway on the surrender procedure between the Member States of the European Union and Iceland and Norway (OJ 2006 L 292, p. 2), judgment of 14 September 2023, Sofiyska gradska prokuratura and Others (Successive arrest warrants) (C‑71/21, EU:C:2023:668, paragraphs 52, 55 and 61).

16      See judgment of 14 September 2023, Sofiyska gradska prokuratura and Others (Successive arrest warrants) (C‑71/21, EU:C:2023:668, paragraph 55).

17      Judgments of 31 January 2023, Puig Gordi and Others (C‑158/21, EU:C:2023:57, paragraphs 55 and 57 and, to that effect, 142 and 143), and of 14 September 2023, Sofiyska gradska prokuratura and Others (Successive arrest warrants) (C‑71/21, EU:C:2023:668, paragraphs 39 and 40, concerning the agreement with Iceland and Norway).

18      Judgment of 22 October 1987, Foto-Frost (314/85, EU:C:1987:452, paragraph 15).

19      In that case, an obligation to refer the matter to the Court would have to be assessed according to the criteria set out in the judgment of 6 October 1982, Cilfit and Others (283/81, EU:C:1982:335).

20      See point 30 above.

21      See judgment of 22 October 1987, Foto-Frost (314/85, EU:C:1987:452, paragraph 15).

22      Judgments of 24 May 1977, Hoffmann-La Roche (107/76, EU:C:1977:89, paragraph 5), and of 4 October 2018, Commission v France (Advance payment) (C‑416/17, EU:C:2018:811, paragraph 109).

23      Judgments of 22 October 1987, Foto-Frost (314/85, EU:C:1987:452, paragraph 15); of 10 January 2006, IATA and ELFAA (C‑344/04, EU:C:2006:10, paragraph 27); and of 28 March 2017, Rosneft (C‑72/15, EU:C:2017:236, paragraph 80).

24      See points 38 to 41 above.

25      See point 37 above.

26      Judgments of 17 December 2020, Openbaar Ministerie (Independence of the issuing judicial authority) (C‑354/20 PPU and C‑412/20 PPU, EU:C:2020:1033, paragraph 53), and of 21 December 2023, GN (Ground for refusal based on the best interests of the child) (C‑261/22, EU:C:2023:1017, paragraph 46).

27      Judgments of 5 April 2016, Aranyosi and Căldăraru (C‑404/15 and C‑659/15 PPU, EU:C:2016:198, paragraph 89), and of 21 December 2023, GN (Ground for refusal based on the best interests of the child) (C‑261/22, EU:C:2023:1017, paragraph 47).

28      Judgments of 5 April 2016, Aranyosi and Căldăraru (C‑404/15 and C‑659/15 PPU, EU:C:2016:198, paragraph 94), and of 21 December 2023, GN (Ground for refusal based on the best interests of the child) (C‑261/22, EU:C:2023:1017, paragraph 48).

29      Judgments of 1 July 2008, Chronopost and La Poste v UFEX and Others (C‑341/06 P and C‑342/06 P, EU:C:2008:375, paragraph 46); of 26 March 2020, Review Simpson v Council and HG v Commission (C‑542/18 RX-II and C‑543/18 RX-II, EU:C:2020:232, paragraph 57); and of 5 June 2023, Commission v Poland (Independence and private life of judges) (C‑204/21, EU:C:2023:44, paragraph 71).

30      Judgments of 26 March 2020, Review Simpson v Council and HG v Commission (C‑542/18 RX-II and C‑543/18 RX-II, EU:C:2020:232, paragraph 72), and of 29 March 2022, Getin Noble Bank (C‑132/20, EU:C:2022:235, paragraph 116).

31      Judgments of 6 October, W.Ż. (Chamber of Extraordinary Control and Public Affairs of the Supreme Court – Appointment) (C‑487/19, EU:C:2021:798, paragraph 129), and of 29 March 2022, Getin Noble Bank (C‑132/20, EU:C:2022:235, paragraph 121).

32      Judgments of 1 July 2008, Chronopost and La Poste v UFEX and Others, (C‑341/06 P and C‑342/06 P, EU:C:2008:375, paragraph 46); of 26 March 2020, Review Simpson v Council and HG v Commission (C‑542/18 RX-II and C‑543/18 RX-II, EU:C:2020:232, paragraph 57); and of 8 May 2024, Asociaţia ‘Forumul Judecătorilor din România’ (Associations of judges) (C‑53/23, EU:C:2024:388, paragraph 55).

33      Judgments of 26 March 2020, Review Simpson v Council and HG v Commission (C‑542/18 RX-II and C‑543/18 RX-II, EU:C:2020:232, paragraph 75), and of 29 March 2022, Getin Noble Bank (C‑132/20, EU:C:2022:235, paragraph 123).

34`      Judgment of 29 March 2022, Getin Noble Bank (C‑132/20, EU:C:2022:235, paragraph 122).

35      Judgment of the ECtHR of 1 December 2020, Guðmundur Andri Ástráðsson v. Iceland (CE:ECHR:2020:1201JUD002637418, § 244).

36      Judgment of the ECtHR of 1 December 2020, Guðmundur Andri Ástráðsson v. Iceland (CE:ECHR:2020:1201JUD002637418, § 245).

37      Judgment of the ECtHR of 1 December 2020, Guðmundur Andri Ástráðsson v. Iceland (CE:ECHR:2020:1201JUD002637418, §§ 246 and 247).

38      Judgment of the ECtHR of 1 December 2020, Guðmundur Andri Ástráðsson v. Iceland (CE:ECHR:2020:1201JUD002637418, §§ 248 to 252).

39      Article 80(1) of Law No 303 of 2022, and previously Article 34(1) of Law No 303 of 2004, and Article 48(1) of Law No 92 of 1992.

40      See in that regard the judgment of the Înalta Curte de Casație și Justiție (High Court of Cassation and Justice, Romania) of 22 April 2021 in Case 125/A, mentioned in the request for a preliminary ruling, which was delivered in an action relating to the oath of the judge who had taken her oath of office as a public prosecutor.

41      See judgments of 9 July 2020, Vueling Airlines (C‑86/19, EU:C:2020:538, paragraph 38), and of 6 October 2020, La Quadrature du Net and Others (C‑511/18, C‑512/18 and C‑520/18, EU:C:2020:791, paragraphs 222 to 225).

42      Judgments of 16 December 1976, Rewe-Zentralfinanz and Rewe-Zentral (33/76, EU:C:1976:188, paragraph 5); of 15 April 2008, Impact (C‑268/06, EU:C:2008:223, paragraphs 44 and 46); and of 19 December 2019, Deutsche Umwelthilfe (C‑752/18, EU:C:2019:1114, paragraph 33).

43      To that effect, judgment of 29 March 2022, Getin Noble Bank (C‑132/20, EU:C:2022:235, paragraph 69).

44      See the references in footnote 39.

45      Article 80(5) of Law No 303 of 2022, and previously Article 34(5) of Law No 303 of 2004, and Article 49 of Law No 92 of 1992.

46      See the judgment cited in footnote 40.

47      Judgments of 5 April 2016, Aranyosi and Căldăraru (C‑404/15 and C‑659/15 PPU, EU:C:2016:198, paragraph 89); of 15 October 2019, Dorobantu (C‑128/18, EU:C:2019:857, paragraph 52); and of 31 January 2023, Puig Gordi and Others (C‑158/21, EU:C:2023:57, paragraph 124).

48      Recommendation of 14 April 2021 for a Council Decision authorising the opening of negotiations for a cooperation agreement between the European Union and the International Criminal Police Organisation (ICPO-INTERPOL) (COM(2021) 177 final, p. 1).

49      Council Decisions (EU) 2021/1312 and 2021/1313 of 19 July 2021 authorising the opening of negotiations for a cooperation agreement between the European Union and the International Criminal Police Organisation (ICPO-INTERPOL) (OJ 2021 L 287, pp. 2 and 6).

50      See Resolution 51/1 of the General Assembly of the United Nations of 15 October 1996, the 1997 Cooperation Agreement between the United Nations and INTERPOL, UNTS 1996, No 1200 (p. 391) and UN Security Council Resolution 1699 (2006) of 8 August 2006.

51      See judgment of 31 January 2023, Puig Gordi and Others (C‑158/21, EU:C:2023:57, paragraph 123).

52      Judgments of 25 July 2018, Generalstaatsanwaltschaft (Conditions of detention in Hungary) (C‑220/18 PPU, EU:C:2018:589, paragraphs 108 to 110); of 22 February 2022, Openbaar Ministerie (Tribunal established by law in the issuing Member State) (C‑562/21 PPU and C‑563/21 PPU, EU:C:2022:100, paragraphs 48 and 49); and of 31 January 2023, Puig Gordi and Others (C‑158/21, EU:C:2023:57, paragraphs 131 and 132).

53      See also, in this respect, point 111 et seq. below.

54      See point 74 above.

55      Judgments of 25 July 2018, Generalstaatsanwaltschaft (Conditions of detention in Hungary) (C‑220/18 PPU, EU:C:2018:589, paragraphs 108 to 110); of 22 February 2022, Openbaar Ministerie (Tribunal established by law in the issuing Member State) (C‑562/21 PPU and C‑563/21 PPU, EU:C:2022:100, paragraphs 48 and 49); and of 31 January 2023, Puig Gordi and Others (C‑158/21, EU:C:2023:57, paragraphs 131 and 132).

56      Judgments of 24 March 2022, Commission v Ireland (Transposition of Framework Decision 2008/909) (C‑125/21, EU:C:2022:213), and Commission v Ireland (Transposition of Framework Decision 2009/829) (C‑126/21, EU:C:2022:214).

57      Judgments of 5 April 2016, Aranyosi and Căldăraru (C‑404/15 and C‑659/15 PPU, EU:C:2016:198, in particular paragraph 98), and of 25 July 2018, Generalstaatsanwaltschaft (Conditions of detention in Hungary) (C‑220/18 PPU, EU:C:2018:589, paragraph 65).

58      See point 85 above.

59      Judgment of 31 January 2023, Puig Gordi and Others (C‑158/21, EU:C:2023:57, paragraph 134).

60      See point 111 above.

61      Judgment of 25 July 2018, Generalstaatsanwaltschaft (Conditions of detention in Hungary) (C‑220/18 PPU, EU:C:2018:589, paragraph 111).

62      Judgments of 25 July 2018, Generalstaatsanwaltschaft (Conditions of detention in Hungary) (C‑220/18 PPU, EU:C:2018:589, paragraph 112), and of 15 October 2019, Dorobantu (C‑128/18, EU:C:2019:857, paragraph 68).

63      Judgment of 25 July 2018, Generalstaatsanwaltschaft (Conditions of detention in Hungary) (C‑220/18 PPU, EU:C:2018:589, paragraph 114).

64      The request for a preliminary ruling refers to the judgment of 15 October 2019, Dorobantu (C‑128/18, EU:C:2019:857, paragraph 68), in which only the case of the endorsement of the assurance by the issuing judicial authority is mentioned.

65      Judgments of 25 July 2018, Generalstaatsanwaltschaft (Conditions of detention in Hungary) (C‑220/18 PPU, EU:C:2018:589, paragraph 112), and of 15 October 2019, Dorobantu (C‑128/18, EU:C:2019:857, paragraph 68).

66      Judgments of 25 July 2018, Generalstaatsanwaltschaft (Conditions of detention in Hungary) (C‑220/18 PPU, EU:C:2018:589, paragraph 112), and of 15 October 2019, Dorobantu (C‑128/18, EU:C:2019:857, paragraph 68).

67      Opinion 2/13 (Accession of the European Union to the Convention for the Protection of Human Rights and Fundamental Freedoms, EU:C:2014:2454, paragraph 192); and judgments of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice) (C‑216/18 PPU, EU:C:2018:586, paragraph 37); of 25 July 2018, Generalstaatsanwaltschaft (Conditions of detention in Hungary) (C‑220/18 PPU, EU:C:2018:589, paragraph 50); and of 15 October 2019, Dorobantu (C‑128/18, EU:C:2019:857, paragraph 47).

68      Judgment of 15 October 2019, Dorobantu (C‑128/18, EU:C:2019:857, paragraph 79).

69      Judgments of 25 July 2018, Generalstaatsanwaltschaft (Conditions of detention in Hungary) (C‑220/18 PPU, EU:C:2018:589, paragraph 91), and of 15 October 2019, Dorobantu (C‑128/18, EU:C:2019:857, paragraph 59).

70      See judgments of 25 July 2018, Generalstaatsanwaltschaft (Conditions of detention in Hungary) (C‑220/18 PPU, EU:C:2018:589, paragraphs 82 to 84 and 87), and of 15 October 2019, Dorobantu (C‑128/18, EU:C:2019:857, paragraphs 65 and 66).

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