Case C‑700/21

O.G.

(Request for a preliminary ruling from the Corte costituzionale)

Judgment of the Court (Grand Chamber), 6 June 2023

(Reference for a preliminary ruling – Judicial cooperation in criminal matters – European arrest warrant – Framework Decision 2002/584/JHA – Grounds for optional non-execution of the European arrest warrant – Article 4(6) – Objective of social rehabilitation – Third-country nationals staying or residing on the territory of the executing Member State – Equal treatment – Article 20 in the Charter of the Fundamental Rights of the European Union)

1. Judicial cooperation in criminal matters – Framework decision on the European arrest warrant and the surrender procedures between Member States – Grounds for optional non-execution of the European arrest warrant – Arrest warrant issued for the purposes of enforcing a custodial sentence or detention order – Requested person staying in, or being a resident of, the executing Member State within the meaning of Article 4(6) of the framework decision – Discretion of the executing Member State to determine the situations which permit a refusal to surrender a person within the scope of Article 4(6) – Limits – Compliance with the principle of equality before the law guaranteed by Article 20 of the Charter of Fundamental Rights – Preservation of the necessary discretion for the executing judicial authority to be able to decide to refuse, in view of the objective of social rehabilitation, the execution of the European arrest warrant

   (Charter of Fundamental Rights of the European Union, Arts 20 and 51(1); Council Framework Decision 2002/584, Art. 4(6))

   (see paragraphs 36-38, 40, 53, 55, 56)

2. Judicial cooperation in criminal matters – Framework decision on the European arrest warrant and the surrender procedures between Member States – Grounds for optional non-execution of the European arrest warrant – Arrest warrant issued for the purposes of enforcing a custodial sentence or detention order – Requested person staying in, or being a resident of, the executing Member State within the meaning of Article 4(6) of the framework decision – Conditions for non-execution of the arrest warrant – Concepts of residence and stay – Executing Member State’s undertaking to enforce the sentence – Legitimate interest justifying the enforcement of the sentence in the executing Member State – Objective of social rehabilitation after the execution of the sentence – Elements to be taken into account by the executing judicial authority to assess whether there are sufficient links between the requested person and the executing Member State to justify a refusal to execute the European arrest warrant

   Council Directive 2003/109, recital 12; Council Framework Decisions 2002/584, Art. 4(6), and 2008/909, recital 9 and Art. 25)

   (see paragraphs 46-49, 61-65, 67-68, operative part 2)

3. Judicial cooperation in criminal matters – Framework decision on the European arrest warrant and the surrender procedures between Member States – Grounds for optional non-execution of the European arrest warrant – Non-execution limited solely to nationals and nationals of other Member States, to the absolute and automatic exclusion of third-country nationals – Unlawful

   (Charter of Fundamental Rights of the European Union, Art 20; Council Framework Decision 2002/584, Art. 4(6))

   (see paragraphs 51, 57, 58, operative part 1)

Résumé

O.G., a Moldovan national, was convicted and sentenced in Romania to five years’ imprisonment for tax evasion and misappropriation of funds due for payment of income tax and value added tax (VAT), committed between September 2003 and April 2004. On 13 February 2012, the Judecătoria Brașov (Court of First Instance, Brașov, Romania) issued a European arrest warrant against O.G., who in the meantime had moved to Italy, for the purposes of executing a custodial sentence.

By a first judgment of 7 July 2020, the competent Court of Appeal ( 1 ) ordered that O.G. be surrendered to the issuing judicial authority. O.G. appealed against that decision before the Corte suprema di cassazione (Supreme Court of Cassation, Italy), which set aside that judgment and referred the case back to the Court of Appeal.

Under EU law, ( 2 ) Member States may only refuse to execute a European arrest warrant on the grounds laid down in Framework Decision 2002/584, ( 3 ) which include optional grounds for non-execution, namely grounds that the Member States have the power – but not the obligation – to make provision for when transposing that framework decision. One of those grounds concerns the option for the executing judicial authority to refuse to execute that warrant if it has been issued for the purpose of executing a custodial penalty where the requested person is staying in, or is a national or a resident of the executing Member State, and that State undertakes to execute the sentence or detention order in accordance with its domestic law. ( 4 )

The Court of Appeal held that the law transposing that ground of optional non-execution into Italian law limits the option of refusing surrender to Italian nationals and nationals of other Member States only, to the exclusion of third-country nationals, even where the latter prove that they have established stable economic, occupational and emotional ties in Italy.

Finding that O.G.’s stable family and employment situation in Italy was sufficiently proven, that court raised questions as to the constitutionality of that law before the Corte costituzionale (Constitutional Court, Italy), which is the referring court in this case. The referring court asks whether, by imposing surrender on third-country nationals residing permanently in Italy for the purposes of executing a custodial sentence abroad, that law improperly restricts the scope of the ground of optional non-execution laid down in Article 4(6) of the framework decision, the objective of which is to ensure the social rehabilitation of the sentenced person after the end of his or her sentence, which presupposes the maintenance of the sentenced person’s family and social connections.

The referring court considers that it is necessary, before ascertaining whether the national law at issue in the main proceedings is consistent with the Italian constitution, to examine whether it complies with EU law.

Asked by the referring court as to the interpretation of Article 4(6) of the framework decision, the Court of Justice, sitting as the Grand Chamber, held that that provision precludes a law of a Member State which, in transposing it, excludes, absolutely and automatically, any third-country national staying or residing in the territory of that Member State from benefiting from the ground for optional non-execution of a European arrest that it lays down, without the executing judicial authority being able to assess the connections that that national has with that Member State. It also clarifies the nature of the assessment that that authority must undertake to determine whether it is appropriate to refuse to execute the European arrest warrant issued against a third-country national who is resident in the executing Member State, and as to the elements which are capable of showing that there are, between that person and the executing Member State, connections demonstrating sufficient integration into that State such that the execution in that Member State of the custodial sentence pronounced against that person in the issuing Member State will contribute to increasing the chances of social rehabilitation after that sentence has been executed.

Findings of the Court

As a first step, the Court recalls that, in accordance with the principle of mutual recognition, the execution of the European arrest warrant constitutes the rule. The refusal of execution, which is only possible on the grounds of mandatory or optional non-execution laid down in the framework decision, is intended to be an exception, which must be interpreted strictly.

As regards the grounds for optional non-execution of the European arrest warrant listed in the framework decision, it is clear from the case-law of the Court that, when transposing that framework decision into national law, the Member States have a margin of discretion. Therefore, they are free to transpose those grounds into their domestic law or not to do so. They may also choose to limit the situations in which the executing judicial authority may refuse to execute a European arrest warrant, thus facilitating the surrender of requested persons, in accordance with the principle of mutual recognition.

There are, however, limits to the discretion available to Member States when transposing a ground for optional non-execution laid down in Article 4(6) of the framework decision.

In the first place, a Member State choosing to transpose that ground must comply with the fundamental rights and principles of EU law, which include the principle of equality before the law, guaranteed by Article 20 in the Charter of the Fundamental Rights of the European Union, ( 5 ) which requires that similar situations must not be treated differently and that different situations must not be treated in the same manner, unless such different treatment is objectively justified.

The requirement that situations must be comparable, for the purpose of determining whether there is a breach of the principle of equality before the law, must be assessed in the light, in particular, of the subject matter and purpose of the act that makes the distinction in question, taking into account the principles and objectives of the field to which the act relates.

The Court notes, in that regard, that the difference in treatment resulting from the national law at issue in the main proceedings between Italian nationals and those of other Member States, on the one hand, and third-country nationals on the other hand, was established with a view to transposing Article 4(6) of framework decision, which makes no distinction depending on whether the person, who is the subject of the European arrest warrant and who is not a national of the executing Member State, is or is not a national of another Member State.

It follows from the wording of that provision and the objective that it pursues that it cannot be assumed that a third-country national, who is the subject of such a European arrest warrant and staying or resident in the executing Member State, is necessarily in a situation that is different from that of a national of that Member State or that of a national of another Member State staying or resident in the executing Member State and is the subject of such a warrant. On the contrary, those persons may be in comparable situations, for the purpose of applying the ground of optional non-execution provided for in that provision, when they are integrated to a certain extent in the executing Member State.

Therefore, a national law transposing Article 4(6) of the framework decision does not comply with Article 20 of the Charter if it treats differently, on the one hand, its own nationals and other citizens of the Union and, on the other hand, third-country nationals, by refusing the latter, absolutely and automatically, the benefit of the ground for optional non-execution provided for in the framework decision, even where those third-country nationals are staying or resident in the territory of that Member State and without account being taken of their degree of integration within the society of that Member State. That difference of treatment cannot be regarded as objectively justified.

However, there is nothing to preclude a Member State, when transposing that provision into its domestic law, from making the benefit of the ground of optional non-execution that that provision lays down subject to the condition that that national has stayed or resided continuously in that Member State for a minimum period of time, provided that that condition does not go beyond what is necessary to ensure that the requested person is integrated to a certain degree in the executing Member State.

In the second place, a transposition of Article 4(6) of the framework decision cannot have the effect of depriving the executing judicial authority of the discretion necessary to be able to decide whether or not, having regard to the intended objective of social rehabilitation, to refuse to execute the European arrest warrant.

A law such as the one in issue undermines the objective of social rehabilitation by depriving the executing judicial authority of the power to assess whether the connections of the third-country national referred to in an European arrest warrant to the executing Member State are sufficient to decide that the execution of the sentence in that Member State would increase the chances of rehabilitation after the end of that sentence.

As a second step, the Court states that, in order to assess whether it is appropriate to refuse to execute the European arrest warrant issued against a third-country national who is staying or resident in the territory of the executing Member State, the executing judicial authority must make an overall assessment of all of the specific elements characterising the situation of the requested person capable of showing that there are connections between that person and the executing Member State that may lead to the conclusion that that person is sufficiently integrated into that State. Those elements include the family, linguistic, cultural, social or economic links that the third-country national has with the executing Member State as well as the nature, duration and conditions of his or her stay in that Member State.

In particular, where the requested person has established the centre of his or her family life and his or her interests in the executing Member State, account must be taken of the fact that the social rehabilitation of that person after he or she has served his or her sentence will be assisted by the fact that he or she may maintain regular and frequent contact with his or her family and persons close to him or her.

( 1 ) Corte d’appello di Bologna (Court of Appeal, Bologna, Italy; ‘the Court of Appeal’).

( 2 ) Article 1(2) and Articles 4 and 4a of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (OJ 2002 L 190, p. 1).

( 3 ) Hereinafter, ‘the framework decision’.

( 4 ) Optional ground for non-execution laid down in Article 4(6) of the framework decision.

( 5 ) Hereinafter ‘the Charter’.