1.

The Corte costituzionale (Constitutional Court, Italy) seeks from the Court of Justice an interpretation of Article 4(6) of Framework Decision 2002/584/JHA, ( 2 ) the transposition of which into Italian law may be in breach of the Italian Constitution.

2.

This reference provides the Court with an opportunity to expand upon its already extensive case-law concerning arrest and surrender warrants (‘EAWs’). In particular, it will be called upon to determine whether the discretion granted to Member States in Article 4(6) of Framework Decision 2002/584 allows them to avail themselves of a ground for optional non-execution of an EAW which will not apply to nationals of a third country.

3.

Recital 12 states:

‘This Framework Decision respects fundamental rights and observes the principles recognised by Article 6 [TEU] and reflected in the Charter of Fundamental Rights of the European Union, [ ( 3 )] in particular Chapter VI thereof. Nothing in this Framework Decision may be interpreted as prohibiting refusal to surrender a person for whom a[n] [EAW] has been issued when there are reasons to believe, on the basis of objective elements, that the said [EAW] has been issued for the purpose of prosecuting or punishing a person on the grounds of his or her sex, race, religion, ethnic origin, nationality, language, political opinions or sexual orientation, or that that person’s position may be prejudiced for any of these reasons.

This Framework Decision does not prevent a Member State from applying its constitutional rules relating to due process, freedom of association, freedom of the press and freedom of expression in other media.’

4.

Article 1 (‘Definition of the [EAW] and obligation to execute it’) provides:

‘1.   The [EAW] 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 [EAW] 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].’

5.

Article 4 (‘Grounds for optional non-execution of the European arrest warrant’) provides:

‘The executing judicial authority may refuse to execute the [EAW]:

…

…’

6.

Article 5 (‘Guarantees to be given by the issuing Member State in particular cases’) states:

‘The execution of the European arrest warrant by the executing judicial authority may, by the law of the executing Member State, be subject to the following conditions:

…

7.

Recital 9 states:

‘Enforcement of the sentence in the executing State should enhance the possibility of social rehabilitation of the sentenced person. In the context of satisfying itself that the enforcement of the sentence by the executing State will serve the purpose of facilitating the social rehabilitation of the sentenced person, the competent authority of the issuing State should take into account such elements as, for example, the person’s attachment to the executing State, whether he or she considers it the place of family, linguistic, cultural, social or economic and other links to the executing State.’

8.

According to recital 12:

‘This Framework Decision should also, mutatis mutandis, apply to the enforcement of sentences in the cases under Articles 4(6) and 5(3) of [Framework Decision 2002/584]. This means, inter alia, that, without prejudice to that Framework Decision, the executing State could verify the existence of grounds for non-recognition and non-enforcement as provided in Article 9 of this Framework Decision, including the checking of double criminality to the extent that the executing State makes a declaration under Article 7(4) of this Framework Decision, as a condition for recognising and enforcing the judgment with a view to considering whether to surrender the person or to enforce the sentence in cases pursuant to Article 4(6) of [Framework Decision 2002/584].’

9.

Recital 16 states:

‘This Framework Decision should be applied in accordance with applicable Community legislation, including in particular … Directive 2003/86/EC [ ( 5 )] … [and] … Directive 2003/109/EC [ ( 6 )] …’

10.

Article 3 (‘Purpose and scope’) states:

‘1.   The purpose of this Framework Decision is to establish the rules under which a Member State, with a view to facilitating the social rehabilitation of the sentenced person, is to recognise a judgment and enforce the sentence.

2.   This Framework Decision shall apply where the sentenced person is in the issuing State or in the executing State.

3.   This Framework Decision shall apply only to the recognition of judgments and the enforcement of sentences within the meaning of this Framework Decision. …’

11.

Article 25 (‘Enforcement of sentences following a[n] [EAW]’) states:

‘Without prejudice to Framework Decision [2002/584], provisions of this Framework Decision shall apply, mutatis mutandis to the extent they are compatible with provisions under that Framework Decision, to enforcement of sentences in cases where a Member State undertakes to enforce the sentence in cases pursuant to Article 4(6) of that Framework Decision, or where, acting under Article 5(3) of that Framework Decision, it has imposed the condition that the person has to be returned to serve the sentence in the Member State concerned, so as to avoid impunity of the person concerned.’

12.

According to Article 18bis(1)(c):

Surrender may be refused, ‘where the EAW has been issued for the purpose of executing a custodial sentence or detention order, if the requested person is an Italian national or a national of another Member State of the European Union who is lawfully and actually resident or staying in Italian territory, on condition that the appeal court orders that the custodial sentence or detention order is enforced in Italy in accordance with domestic law’.

13.

In accordance with Article 19(1):

‘Execution of the EAW by the Italian judicial authority … is subject to the following conditions:

…

14.

O. G., a Moldovan national, was finally convicted and sentenced in Romania to five years’ imprisonment. ( 9 ) The referring courts notes that, according to the court which itself referred the constitutional question to the referring court, O. G. ‘has stable family and occupational roots in Italy’. ( 10 )

15.

On 13 February 2012, the Judecătoria Brașov (Court of First Instance, Brașov, Romania) issued an EAW against O. G. for the purpose of enforcing the sentence.

16.

On 7 July 2020, the Corte d’appello di Bologna (Court of Appeal, Bologna, Italy) ordered that the requested person be surrendered to the issuing judicial authority.

17.

On 16 September 2020, following the appeal brought by O. G., the Corte di cassazione (Court of Cassation, Italy) set aside the judgment of the appeal court, to which it referred the case back, asking it to consider whether an issue of constitutionality should be referred to the Corte costituzionale (Constitutional Court).

18.

The appeal court raised the matter before the Corte costituzionale (Constitutional Court) and asked it whether Article 18bis(1)(c) of Law No 69 of 2005 was consistent with Articles 2, 3, 11, 27(3) and 117(1) of the Italian Constitution.

19.

The appeal court’s doubts were based, in essence, on the fact that, in accordance with the provision incorporating into Italian law the ground for optional non-execution under Article 4(6) of Framework Decision 2002/584:

20.

The Corte costituzionale (Constitutional Court), after noting that this aspect of Article 4(6) of Framework Decision 2002/584 has not yet been addressed by the Court of Justice, ( 11 ) has referred the following questions to it:

21.

The request for a preliminary ruling was registered at the Court on 22 November 2021. It was given priority treatment.

22.

Written observations have been lodged by the Austrian, Hungarian and Italian Governments and the European Commission.

23.

The public hearing held on 11 October 2022 was attended only by the Italian Government and the Commission.

24.

The first question referred for a preliminary ruling seeks to determine, in essence, whether Article 4(6) of Framework Decision 2002/584, read in the light of Article 1(3) thereof and Article 7 of the Charter, is compatible with Italian law, which precludes a national of a third country who has received a custodial sentence in the State issuing the EAW (Romania) from serving that sentence in the executing State (Italy), where he appears ( 12 ) to be lawfully and stably resident.

25.

In accordance with Article 4(6) of Framework Decision 2002/584, the judicial authority may refuse to execute an EAW issued for the purposes of execution of a custodial sentence or detention order, provided that two, cumulative, conditions are met:

26.

When incorporating the ground for optional non-execution into its legal system, the Italian legislature introduced two modifications:

27.

In order to answer the first question raised by the referring court, it seems appropriate to analyse: (a) the margin of discretion available to Member States in implementing Article 4 of Framework Decision 2002/584; (b) how that provision is to be interpreted from the point of view of the right to equality; and (c) what, if any, impact the answer to this question may have on other fundamental rights protected by the Charter.

28.

It is the settled case-law of the Court that, when implementing Article 4 of Framework Decision 2002/584, and in particular paragraph 6 thereof, Member States have ‘a margin of discretion’. ( 14 ) That margin of discretion does not, however, include the option to extend the grounds for non-execution exhaustively listed ( 15 ) in Framework Decision 2002/584. ( 16 )

29.

In accordance with that case-law, execution of the EAW constitutes the rule, while refusal to execute it is intended to be an exception which must be interpreted strictly. ( 17 )

30.

There is nothing to stop Member States from choosing to limit, or not to take up, the option granted to them by Article 4 of Framework Decision 2002/584. Since these are grounds for optional non-execution, each Member State is free to decide when not to apply them: in such circumstances, the executing judicial authorities of the Member State concerned cannot refuse to surrender a person requested under an EAW. ( 18 )

31.

In fact, as the Court has stated, the decision by Member States, as permitted by Framework Decision 2002/584, not to avail themselves of this ground for non-execution ‘… merely reinforces the system of surrender introduced by that Framework Decision to the advantage of an area of freedom, security and justice’. ( 19 )

32.

The reason for this is that, ‘by limiting the situations in which the executing judicial authority may refuse to execute a[n] [EAW], such legislation only facilitates the surrender of requested persons, in accordance with the principle of mutual recognition set out in Article 1(2) of Framework Decision 2002/584, which constitutes the essential rule introduced by that decision’. ( 20 )

33.

However, the national legislature’s freedom of choice is not unlimited. There are several reasons why this is the case.

34.

First, Framework Decision 2002/584 does not change ‘the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 [TEU]’. ( 21 ) So far as the present case is concerned, therefore, Article 4(6) of that decision does not permit the transposition thereof by Member States in a manner which results in the infringement of fundamental rights or the principles of Article 6 TEU.

35.

Second, the margin of discretion available to Member States in transposing the aforementioned Article 4(6) is restricted not only by the terms of that provision but also by the purpose it serves within Framework Decision 2002/584 and by the general context of which that decision forms part, that is to say by EU law as a whole.

36.

From that point of view, I concur with the Commission that the approach adopted by the Italian legislature is not supported by the wording of Article 4(6) of Framework Decision 2002/584, the objective which that provision pursues or the context of which it forms part. ( 22 )

37.

As regards its wording, Article 4(6) of Framework Decision 2002/584 does not attach any relevance to nationalities other than that of the executing Member State. It provides only that the requested person must be a national of that State.

38.

Nationalities other than that of the executing Member State are therefore immaterial and are replaced by the category of ‘residence’ (or stay). The scope of Article 4(6) of Framework Decision 2002/584 is defined, for nationals of any Member State other than the executing State, by reference to the concept of residence (or stay).

39.

As regards the objective of Article 4(6) of Framework Decision 2002/584, the Court has stated that it is ‘in particular … [to enable] the executing judicial authority to give particular weight to the possibility of increasing the requested person’s chances of reintegrating into society when the sentence imposed on him expires’. ( 23 )

40.

So far as attaining the objective of reintegration is concerned, the nationality of the requested person is not in itself relevant: what that provision seeks to ensure is that anyone residing or staying ( 24 ) in the executing Member State qualifies for that option.

41.

With respect to the normative context in which Article 4(6) of Framework Decision 2002/584 must be interpreted, it is appropriate to mention Framework Decision 2008/909 on the mutual recognition of judgments in criminal matters. Its inclusive scope covers foreign nationals of any nationality, who, if they have roots of some degree in the executing Member State, ( 25 ) also benefit from the purpose of social reintegration served by the enforcement of custodial sentences.

42.

In accordance with Article 25 of Framework Decision 2008/909, the latter is to apply, mutatis mutandis to the extent that it is compatible with Framework Decision 2002/584, to the enforcement of sentences under Article 4(6) of the latter decision. ( 26 )

43.

Everything would therefore suggest that the EU legislature, sensitive to the objective of rehabilitation that is pursued by the serving of sentences, ( 27 ) intended Article 4(6) of Framework Decision 2002/584 as a means of attaining that objective, in cases where the specific circumstances listed above are present, without nationality (other than nationality of the executing State itself) being a relevant factor.

44.

The Court has held that, in the light of the foregoing, nationals of the Member State of execution and nationals of other Member States staying or resident in the Member State of execution and who are integrated into the society of that State should not, as a rule, be treated differently. ( 28 )

45.

The question now is whether a rule that applies to the nationals of Member States must also apply to nationals of third countries in the context of the non-execution of an EAW.

46.

In my opinion, there is no reason why this should not be the case.

47.

It is true that there is no reason why the legal status of nationals of a third country should generally be regarded as being the same as that of nationals of Member States. ( 29 ) Nonetheless, a difference in treatment between the former and the latter cannot prevail where the EU secondary legislation in question itself provides, implicitly or explicitly, for a uniform regime for both groups. In those circumstances, the principle of equality before the law laid down in Article 20 of the Charter applies.

48.

Given the inviolability of the obligation to respect the fundamental rights and principles enshrined in Article 6 TEU, Article 1(3) of Framework Decision 2002/584 precludes Article 4(6) thereof from permitting forms of transposition by Member States which have the effect of infringing the Charter or the fundamental principles of the European Union.

49.

Those principles include the principle of equality, which is guaranteed by Article 2 TEU and Article 20 of the Charter. Both of those articles provide a sufficiently robust benchmark to support the assertion that Article 4(6) of Framework Decision 2002/584 has not been incorporated into Italian law in a manner compatible with them.

50.

In particular, the principle of equality before the law has to operate in the manner I have proposed given that Article 4(6) of Framework Decision 2002/584 does not attach any relevance to the criterion of nationality, which it replaces with that of residence (or stay), the only exception to this being in relation to nationals of the Member State of execution.

51.

Thus, the scope ratione personae of Article 4(6) of Framework Decision 2002/584 covers persons who, if they are not nationals of the Member State of execution, are staying or resident in that Member State. ( 30 ) The law before which nationals of a third country are entitled to be treated equally does not therefore provide any basis for treating them differently from nationals of Member States of the European Union.

52.

The net effect of the margin of discretion available when it comes to transposing that provision of EU law cannot therefore be a set of rules which treats nationals of third countries worse than nationals of Member States. As noted by the Commission, when considered in the light of the objective of Article 4(6) of Framework Decision 2002/584, the situation of a national of a third country actually resident in the State of execution is comparable to that of a national of a Member State.

53.

For these purposes, stable and actual residence by a national of a third country entails in principle a degree of integration into the country where he or she is staying equivalent to that of the nationals of that State. Such a link with the executing Member State is capable of facilitating the social reintegration of the requested person once the custodial sentence imposed on him or her has been enforced there. ( 31 )

54.

In my opinion, the foregoing is sufficient to support the conclusion that the contested national provision is incompatible with Article 4(6) of Framework Directive 2002/584. I do not therefore consider it necessary to analyse the (further) impact of other fundamental rights of the Charter on the interpretation of that article.

55.

The rights in question include those enshrined in Article 7 of the Charter (respect for private and family life), which the referring court cites, and in Article 24(3) of the Charter (the right of the child to maintain on a regular basis a personal relationship and direct contact with both his or her parents), on which the Commission relies. ( 32 )

56.

It stands to reason that those rights are not capable of overriding the enforcement of a custodial sentence. They are, however, capable of supporting the choice that such a sentence be served in one Member State (where the EAW is executed) rather than in another (where the EAW is issued), in cases involving a person residing or staying in the former State who retains family links there.

57.

This operates to the benefit of the right of the requested person to maintain the minimum degree of family relations compatible with his or her stay in prison. Those relations will be facilitated in the place where his or her vital interests are located, that is to say in the State where he or she is actually resident.

58.

In the event that, as I propose, the Court answers the first question referred in the affirmative, the Corte costituzionale (Constitutional Court) wishes to ascertain ‘what criteria and assumptions are used to establish that such links [which a national of a third country has with the executing State] are to be regarded as so significant as to require the executing judicial authority to refuse surrender’.

59.

The wording of the second question referred calls in my opinion for two preliminary observations on the conditions for not executing an EAW and the alleged ‘obligation’ to refuse surrender.

60.

The question referred concerns only one of the two conditions which Article 4(6) of Framework Decision 2002/584 attaches to any refusal to surrender the requested person.

61.

Article 4(6) of Framework Decision 2002/584 deals first and foremost with the conditions (nationality of, or residence or stay in, the executing State) establishing a link between the requested person and the executing Member State. That link must be sufficient to support his or her social reintegration once the sentence imposed expires. ( 33 )

62.

However, the provision under examination also lays down another inescapable condition: that the executing Member State give an undertaking ( 34 ) that the custodial sentence giving rise to the EAW will be enforced there. In the present case, the referring court takes it as read that this condition is met, and confines itself to the condition relating to the requested person’s link with the executing Member State.

63.

Although the referring court refers to the ‘obligation’ to refuse surrender where the established links are sufficiently relevant, Article 4(6) of Framework Decision 2002/584 does not provide for such an obligation in any circumstances. It simply provides that the judicial authority ‘may’ refuse to execute the EAW if the conditions laid down in that provision are fulfilled.

64.

Just as the principle of mutual recognition, on which the system under Framework Decision 2002/584 is based, does not entail an absolute obligation to execute the EAW, ( 35 ) so it is also the case, once the ground for optional non-execution at issue here has been incorporated into domestic law, that the executing judicial authority must have a margin of discretion as to whether or not it is appropriate to refuse to execute the EAW. ( 36 )

65.

In the words of the Court:

66.

It is not sufficient, therefore, for the executing judicial authority to find that the two conditions laid down in Article 4(6) of Framework Decision 2002/584 are met. It must also ascertain whether there is a legitimate interest in the sentence imposed in the issuing Member State being enforced in the executing Member State. ( 39 )

67.

The answer to the second question referred for a preliminary ruling, concerning the criteria for determining whether the requested person has roots in the executing Member State, should therefore indicate to the referring court that:

68.

The ground for optional non-execution set out in Article 4(6) of Framework Decision 2002/584 is based on the possibility of increasing the requested person’s chances of reintegrating into society once the sentence imposed on him or her expires. The executing Member State is therefore entitled to pursue such an objective only in respect of persons who have demonstrated a certain degree of integration in the society of that Member State. ( 40 )

69.

Consequently, the criteria forming the subject of the referring court’s question must make it possible to establish a degree of integration such that the requested person’s chances of rehabilitation are significantly greater in the executing Member State than in the issuing Member State.

70.

This makes it easier to understand why Article 4(6) of Framework Directive 2002/584, on the one hand, refers to having the nationality of the executing Member State and, on the other, uses the terms ‘residing’ and ‘staying’ in that State without distinction:

71.

In particular, ‘in order to determine whether, in a specific situation, there are connections between the requested person and the executing Member State which lead to the conclusion that that person is covered by the term ‘staying’ within the meaning of Article 4(6) of the Framework Decision, it is necessary to make an overall assessment of various objective factors characterising the situation of that person, which include, in particular, the length, nature and conditions of his presence and the family and economic connections which he has with the executing Member State’. ( 43 )

72.

Those objective factors will be particularly relevant where the requested person is not only staying but residing in the executing Member State.

73.

I agree with the Commission that the factors listed in recital 9 of Framework Decision 2008/909, concerning the mutual recognition of judgments imposing custodial sentences, may be illustrative in this regard: ‘family, linguistic, cultural, social or economic and other links to the executing State’.

74.

As the referring court has rightly noted, ( 44 ) the Court’s case-law contains rulings in which the requested person’s degree of integration in the executing Member State is linked to his or her genuine and actual connection with the society of that Member State.

75.

It is true that that case-law was developed for situations in which the requested person was a national of a Member State. However, in keeping with my proposed answer to the first question referred for a preliminary ruling, the criteria for assessing how integrated nationals of Member States are in the executing Member State can also be used for nationals of a third country.

76.

Consequently, it is for the executing judicial authority to carry out an overall assessment of the factors enabling it to determine whether the requested person, whatever his or her nationality, maintains with the society of the executing Member State a link sufficient to support the anticipation that, if his or her sentence is enforced in the territory of that Member State, he or she has a greater chance of integrating into society and, therefore, of attaining the objective pursued by Article 4(6) of Framework Decision 2002/584.

77.

Those factors include the length of the requested person’s stay to date, ( 45 ) the nature and strength of his or her family links with the executing Member State (together, where appropriate, with the absence of such links with his or her country of origin), his or her degree of integration and the linguistic, cultural, occupational, social or economic links which he or she has developed in that Member State.

78.

That list is, inevitably, not exhaustive, since a particular case might entail specific circumstances which it will be for the court to consider when ruling on the surrender of the requested person.

79.

In the light of the foregoing, I propose that the Court’s answer to the Corte costituzionale (Constitutional Court, Italy) should be as follows:

Article 4(6) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009,

must be interpreted as meaning that:

It precludes national legislation which, after choosing to adopt one of the grounds for optional non-execution of a European arrest warrant issued for the purpose of executing a custodial sentence or detention order, absolutely precludes the executing judicial authorities from refusing to surrender nationals of a third country staying or residing in national territory, irrespective of any links they may maintain with that territory.

The relevant criteria for establishing that the requested person has sufficient links with the executing Member State are all of those which, when considered as a whole, support the presumption that, if the sentence is enforced in that State, the requested person, whatever his or her nationality, will have a greater chance of reintegration there than in the issuing Member State.

The length of the requested person’s stay to date, the nature and conditions of that stay and his or her family, linguistic, cultural, occupational, social and economic links with the executing Member State are some of the factors which the executing judicial authority must take into account in this regard.