1.

Mothers go to prison, too.

2.

A convicted person can indeed sometimes be a mother to small children. For the first time before this Court, a situation arose where a European arrest warrant (‘EAW’) was issued for the execution of a prison sentence against one such mother. Is the best interest of the child relevant for the execution of such an EAW?

3.

The referring court, the Corte suprema di cassazione (Supreme Court of Cassation, Italy), is thus seeking the interpretation of the EAW Framework Decision: ( 2 ) is it possible to refuse or postpone the execution of an EAW if the requested person is a mother who lives with her minor children?

4.

On 26 June 2020, a Belgian judicial authority issued an EAW against GN for the execution of a sentence of five years’ imprisonment for the offences of trafficking in human beings and facilitating unlawful immigration. GN was convicted in absentia and, in accordance with Belgian law, she was duly notified about the proceedings.

5.

GN was arrested in Bologna (Italy) on 2 September 2021. At the time of the arrest, her minor son, who had been with her up until this point, was placed in the care of social services. As GN did not consent to her surrender, she was kept in custody, which was later replaced by house arrest, at which time she was reunited with her son.

6.

At the hearing on 17 September 2021, the Corte d’appello di Bologna (Court of Appeal, Bologna, Italy), submitted a request for information from the issuing judicial authority under Article 15(2) of the EAW Framework Decision. It asked about the procedures for the execution of a sentence in Belgium for mothers living with minor children, the prison treatment to which GN would be subjected, the measures that would be taken in relation to her son and the possibility of a retrial given that the trial that resulted in GN being convicted was conducted in absentia. The Antwerp Royal Public Prosecutor’s Office responded that the questions submitted could be answered by the Federal Public Service (Justice) in Belgium. Following this response, there was no further communication between the two judicial authorities.

7.

By judgment of 15 October 2021, the Corte d’appello di Bologna (Court of Appeal, Bologna), refused to surrender GN to the issuing judicial authority, as she was the mother of a child under three years of age who had been living with her alone at the time of her arrest, and ordered her immediate release. According to that court, in the absence of a response from the issuing judicial authority, there was no certainty that Belgian law recognised custody arrangements comparable to those in Italy, which protect a mother’s right not to be deprived of her relationship with her children and to ensure that children receive the necessary maternal and family assistance, as guaranteed by the Italian Constitution, Article 3 of the Convention on the Rights of the Child, ( 3 ) and Article 24 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

8.

The Procuratore generale presso la Corte di appello di Bologna (Prosecutor General at the Court of Appeal, Bologna, Italy) and GN lodged separate appeals against the above judgment. The Corte suprema di cassazione (Supreme Court of Cassation), hearing that appeal, decided to refer the following questions to the Court of Justice for a preliminary ruling:

9.

Written observations were submitted by GN, the Prosecutor General at the Court of Appeal, Bologna, the Governments of Italy, Hungary and the Netherlands, the Council of the European Union, and the European Commission. A hearing was held on 28 March 2023 where GN, the Governments of Italy and the Netherlands, the Council, and the European Commission presented oral argument.

10.

In order to provide the Court with a useful answer, I propose to reformulate the questions asked by the referring court. That court, in the first place, seeks to establish whether it is entitled to refuse the execution of an EAW if by such a surrender it risks breaching the fundamental rights of a mother whose surrender is requested as well as the fundamental rights of the minor children living with her. As a subsidiary issue, the referring court asks whether it could defer such surrender. At issue are the right to family life, guaranteed by Article 7 of the Charter, and the best interests of the child, guaranteed by Article 24 thereof.

11.

By the second question, the referring court questions the compatibility of the EAW Framework Decision with the two fundamental rights at issue, if it is to be interpreted as precluding a refusal or deferral of the execution of an EAW in the circumstances of the main case. That question thus becomes relevant only if the Court denies the possibility of refusing the execution of the EAW. Given the answer to the first question which I will propose to the Court, there will be no need to answer the second question.

12.

The problem raised by the referring court is both standard and novel. It is standard because it is yet another in the line of preliminary references asking whether a risk of violating a fundamental right may be a reason to refuse the execution of an EAW outside the express mandatory or optional grounds for non-execution in Articles 3, 4, and 4a of the EAW Framework Decision. ( 4 )

13.

However, it is also entirely novel because, for the first time, non-execution might be based on the possible breach of fundamental rights not (only) of the requested person, but (also) of a third person: the minor child of the mother whose surrender is sought.

14.

To my mind, those two issues ought to be distinguished. Therefore, I will first deal with the circumstances under which the mother’s right to family life, as guaranteed by Article 7 of the Charter, may justify the refusal of her surrender. The answer to that question can be given based on the already well-developed line of case-law interpreting Article 1(3) of the EAW Framework Decision. I will then analyse the consequences that arise for the executing authority from the obligation to act in the best interests of the child, as required under Article 24 of the Charter. I will argue that the rights of the child might justify the refusal of surrender. Finally, I will deal separately with the possibility to defer surrender.

15.

It was not until the 2016 judgment in Aranyosi and Căldăraru that the Court recognised the possibility to refuse the execution of an EAW for a reason not expressly provided for in the EAW Framework Decision itself. ( 5 )

16.

In that case, the Court considered that a serious risk of violation of the prohibition of inhuman and degrading treatment, an absolute fundamental right guaranteed by Article 4 of the Charter, might be a reason to refuse surrender. The Court relied on Article 1(3) of the EAW Framework Decision, and held that the refusal was conditional on the requirement that the executing authority, first, confirms that there are systemic or generalised deficiencies in relation to the respect of Article 4 of the Charter in the issuing Member State and, second, that the right of the particular person at issue risks being breached. ( 6 )

17.

That is the so-called ‘two-step test’. ( 7 ) In the several judgments that followed, in which the Court was mostly asked to explain the scope of inquiry befalling the executing judicial authority when applying that test, the Court confirmed its position from Aranyosi and Căldăraru. ( 8 )

18.

In another line of cases, which relied on the same argumentation as the one in Aranyosi and Căldăraru, the Court considered that the refusal to surrender, under the conditions of the two-step test, is justified also when it comes to the possible breach of the right to a fair trial of the requested person, as guaranteed by Article 47 of the Charter. That was decided in LM, ( 9 ) and was confirmed in a number of subsequent cases. ( 10 )

19.

In all those cases, without exception, the fundamental right at stake was that of the requested person. This case would raise a question similar to those raised in the cases mentioned in the preceding points, if the Court is asked whether GN might rely on her right to family life, as enshrined in Article 7 of the Charter, to oppose surrender.

20.

The possibility to depart from the obligation to execute an EAW was thus far confirmed only in relation to two fundamental rights, those guaranteed by Article 4 and 47 of the Charter. ( 11 ) However, I do not see any principled reason why the same would not apply if the suspicion of the existence of systemic or generalised deficiencies in the protection of a different fundamental right arose, ( 12 ) such as the right to family life as in the present case.

21.

The starting point for this inquiry is that the imposition of a prison sentence, as the Commission rightly pointed out at the hearing, necessarily interferes with GN’s right to family life. However, that restriction is, in principle, seen as necessary for the achievement of another societal interest, that of avoiding impunity of perpetrators of crimes. ( 13 ) Nevertheless, in the use of their coercive powers over individuals, Member States are required to respect the principle of proportionality. Therefore, they are under an obligation to restrict the right to family life of mothers in prison in the least possible manner. However, they do enjoy discretion in choosing the way in which they will accommodate that right. ( 14 )

22.

Therefore, I am of the opinion that GN could invoke her right to family life as justification for the non-execution of the EAW only if the executing authority has reason to suspect that the issuing state will not respect her right to family life.

23.

As the Court has repeated on multiple occasions, ( 15 ) the EAW mechanism rests on the presumption that Member States respect fundamental rights.

24.

Thus, the starting position, consistent with Article 1(3) of the EAW Framework Decision, is that the issuing Member State has measures in place, within its legal system and practice, which do not disproportionately restrict the imprisoned person’s right to maintain his or her family ties. That presumption can only be brought into question if the executing authority has knowledge ( 16 ) of systemic or generalised deficiencies in ensuring the right to family life of persons imprisoned in the issuing state.

25.

Crucially, that conclusion cannot be based on the knowledge that, when it comes to the protection of family life of imprisoned persons, the issuing Member State made a different legislative choice than the executing Member State.

26.

Without exception, in all the cases interpreting Article 1(3) of the EAW Framework Decision in such a way as to allow for the refusal of surrender, the trigger for the two-step test was the knowledge on the part of the executing authority of possible systemic or generalised deficiencies in the protection of the respective fundamental right in the issuing state. Only in such a scenario was the executing authority allowed to depart from the principle of mutual trust and question the protection of fundamental rights in the issuing state through the application of the two-step test.

27.

In the present case, there is no reason to put the two-step test in motion. The necessary trigger – the suspicion that Belgium systematically breaches the right to family life of mothers serving prison sentences – does not exist.

28.

In such circumstances, the executing authority cannot refuse to execute the EAW on the ground of a possible breach of GN’s right to family life.

29.

One still may rightfully ask whether GN’s rights might end up being overly restricted (for example, in a hypothetical scenario where the rules of the prison where she serves the sentence allow family visits only once a week). It is, of course, impossible to exclude an individual breach in any given situation.

30.

However, the system of mutual recognition on which the EAW, and other similar instruments of EU law ( 17 ) are based, does not rely on the (improbable) expectation that fundamental rights are never violated. Rather, it relies on the presumption that an individual fundamental right breach will be addressed. That, however, is the responsibility of the issuing state. ( 18 ) Individual instances of violations of fundamental rights are to be resolved by the issuing, and not the executing, Member State, including by ensuring access to its courts. ( 19 )

31.

Furthermore, even if individual violations cannot be excluded, it would be impossible for the executing authority to predict such violations unless there is an indication that they systematically occur in the issuing Member State.

32.

In the present case, absent any indication as to the existence of systemic or generalised deficiencies in the guarantees of family life of imprisoned persons in Belgium, I am of the view that the executing authority cannot refuse surrender on this ground. ( 20 )

33.

Finding otherwise would render the principle of mutual trust, on which mutual recognition is based, devoid of any substance.

34.

The other person (or persons, given that it was reported that after the issuance of the EAW, GN gave birth to a second child) whose fundamental rights are at issue in the present case are GN’s children.

35.

GN’s children also enjoy the right to family life. Moreover, when it comes to children, their right to family life must always be interpreted in light of another provision of the Charter, specifically, Article 24 thereof. ( 21 )

36.

Article 24 of the Charter protects the rights of the child. Paragraph 2 thereof is of particular importance to this case. It provides: ‘In all actions relating to children, whether taken by public authorities or private institutions, the child's best interests must be a primary consideration.’ Furthermore, its paragraph 3 states: ‘Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests.’ ( 22 )

37.

The possible breach of fundamental rights of GN’s children is related to the EAW only indirectly: they are potential collateral victims of the execution of the EAW by which their mother is to be surrendered.

38.

However, Article 24 of the Charter applies to all activities that result from the application of EU law, even when they do not concern directly the child, but have significant consequences for him or her. ( 23 )

39.

Therefore, the decision whether to execute an EAW may be affected by the concern for the best interest of the child.

40.

Nevertheless, as children are only indirectly concerned with the execution of the EAW, ( 24 ) the question of protecting their rights is different from the one at the heart of previous cases dealing with Article 1(3) of the EAW Framework Decision.

41.

A possible non-execution of an EAW in order to protect the best interests of the child does not arise as a question of mutual trust. The best interests of the child require attention even when the issuing Member State offers a high level of protection of children whose mothers are in prison.

42.

The protection of that interest inherently demands a different assessment: the beginning of any analysis is the concrete situation of the child at issue, rather than the conditions in the issuing Member State. How the issuing state treats prisoners with small children plays a role in the decision of the executing authority not because of the mistrust in the issuing Member State, but rather as a factor in deciding what the best decision for a specific child is.

43.

In that respect, the two-step test, as the guardian of the principle of mutual trust, is irrelevant for answering the question whether the execution of an EAW may be refused in order to protect the best interests of the child. ( 25 )

44.

Before addressing whether the best interests of the child could justify a refusal to surrender and which steps the executing and issuing authorities need to take in that respect, I will first shortly reflect on how that fundamental right was dealt with in the case-law of the Court.

45.

The best interests of the child has been described in the literature as ‘one of the most amorphous and least understood of legal concepts’. ( 26 ) In the same vein, other scholars have worked on figuring out the exact nature of the obligations under Article 24 of the Charter ( 27 ) and emphasised the need to specify further how it is to be used in EU law. ( 28 ) What do we know about the best interests of the child from the case-law of the Court?

46.

The judgment of the Court in Piotrowski is the only case that specifically concerned the EAW system. ( 29 ) That case dealt with the possibility of executing an EAW where the requested person was a minor. The Court emphasised that Directive 2016/800 ( 30 ) was enacted in order to protect the rights of the child in such situations. It sets out minimum rules that deal specifically with procedural rights of children who are subject to an EAW. ( 31 ) In effect, there is no automatic refusal to execute an EAW when the requested person is a minor, unless that minor is below the age of criminal liability. ( 32 )

47.

However, in my view, that decision is of little help in situations such as the one at hand, in which the child whose rights are in question is not the requested person himself or herself.

48.

Nevertheless, that judgment echoes the Court’s emphasis on the need to make a concrete assessment of the situation of the particular child. The same was emphasised in other areas of EU law. For example, in the context of the return of an unaccompanied minor in the area of asylum, the Court found that ‘only by carrying out a general and in-depth assessment of the situation of the unaccompanied minor in question is it possible to determine the “best interests of the child”’. ( 33 )

49.

Furthermore, in the context of a return decision of a father of a minor daughter, the Court listed very specific circumstances that must be taken into account when making the return decision. Those are, among others, the age of the child, the child’s physical and emotional development, the extent of the child’s emotional ties to each of his or her parents and the risk of separation from the parent for that child’s equilibrium. ( 34 )

50.

The Court also found, in the context of family reunification of third-country nationals, that any assessment of an individual decision that might affect a child must take into account his or her need to maintain a personal relationship with his or her parents on a regular basis. ( 35 ) The authority making a decision that affects a child must also take into account the closeness of the personal relationship that the child developed with his or her guardians and the extent to which the child is dependent on his or her guardians, inasmuch as they assume parental responsibility and legal and financial responsibility for the child in question. ( 36 )

51.

Another important consideration is the ability of the parent to take full responsibility for the care of the child, ( 37 ) and the dependency of the child on the parent. ( 38 )

52.

What these judgments share is that, in assessing the best interest of the child, determining his or her situation is always the first step in any decision-making, and what needs to be determined is the concrete situation of the child. ( 39 )

53.

This tells us something about the requirement stated in Article 24(2) of the Charter, according to which the interests of the child must be a primary consideration: whenever children are involved, their interests are the first to be assessed and always in respect of the concrete situation of the child. ( 40 )

54.

Only after such an assessment is conducted does the competent authority have sufficient information to proceed with making the relevant decision – in our case, whether to execute an EAW.

55.

Does the best interests of the child as a primary consideration also mean that any decision of a public authority that interferes with them is prohibited outright? Or, is it required by the best interests of the child that those interests should be balanced against other public interests at stake in a particular case? ( 41 )

56.

As I will show in the next section, my view is that the best interests of the child is not an a priori absolute bar to the execution of an EAW. Nevertheless, it is quite a high hurdle: as I will suggest, it is too high a hurdle for the executing judicial authority deciding on the EAW in the present case to overcome.

57.

To begin with, Article 1(3) of the EAW Framework Decision applies not only to requested persons, but also to all other persons possibly affected by an EAW. ( 42 ) There is nothing to suggest that that provision shields only the requested persons from a violation of their fundamental rights. Additionally, even if Article 1(3) did not exist in the EAW Framework Decision, when EU law applies, so too do fundamental rights as embodied in the Charter. ( 43 )

58.

Thus, there is undoubtedly an obligation for the executing judicial authority to make a decision that safeguards the best interests of GN’s children.

59.

The first step in any case that concerns the rights of the child must be a concrete and detailed assessment of the individual situation of the child concerned. ( 44 ) The executing judicial authority must take into account all relevant information for that appraisal.

60.

Crucially, for the operation of the EAW, gathering such information includes ( 45 ) the communication with the issuing judicial authority under Article 15(2) of the EAW Framework Decision. ( 46 )

61.

In the present case, the executing judicial authority indeed submitted a request for additional information to the issuing judicial authority under Article 15(2) of the EAW Framework Decision. It asked about the prison conditions in Belgium for mothers with small children. The issuing judicial authority did not answer that question, but instead referred the executing judicial authority to the Belgian Federal Public Service (Justice), which is responsible for those matters. The executing judicial authority did not submit any follow-up questions.

62.

Is this a satisfactory use of the communication mechanism under Article 15(2) of the EAW Framework Decision?

63.

Most certainly not.

64.

The Court has stressed on several occasions the importance of the communication mechanism between the two judicial authorities in the execution of the EAW. It stated that it is an expression of the duty of sincere cooperation, whereby ‘the Member States are, in full mutual respect, to assist each other in carrying out tasks which flow from the Treaties’. ( 47 )

65.

This led the Court to conclude that the two judicial authorities must make full use of the instruments provided for in the EAW Framework Decision, ( 48 ) such as the communication mechanism under Article 15(2) of the EAW Framework Decision.

66.

In the present case, this means that the judicial authorities concerned must make use of Article 15(2) of the EAW Framework Decision in order for the executing judicial authority to be sufficiently informed about the situation that would await GN and her children in Belgium.

67.

During such a communication process, it is possible to imagine that the issuing judicial authority would provide information on the prison conditions for mothers with small children, or the alternatives that are in place. It is, however, also possible that it refuses to receive GN’s children. The options are endless. Any and all of this information is of relevance for determining whether the execution of an EAW in respect of GN is in the best interests of her children.

68.

The important question from the perspective of the executing judicial authority, especially in a case such as the one at hand, is what consequence follows if the issuing judicial authority ignores a request for information. Should that lead to the automatic non-execution of the EAW?

69.

The Commission argued at the hearing that that indeed should be the consequence if there is no response within a reasonable time. ( 49 )

70.

I disagree that the EAW Framework Decision attaches an automatic consequence of non-execution whenever no response is received from the issuing judicial authority.

71.

Still, the best interest of the child as a primary consideration takes concrete shape here. If the executing authority does not receive sufficient information that would allow it to be absolutely certain that the execution of the EAW would not go against the best interests of the child, it should refuse surrender.

72.

In such a scenario, the best interests of the child would indeed pose too high of a hurdle for the executing judicial authority to cross.

73.

A large part of the case-law explaining the meaning and effects of the best interests of the child has been developed in the area of asylum and migration. While useful for determining the criteria that pertain to the best interests of the child, the danger of impunity does not arise in that area of law.

74.

The present case thus invites the Court to reconcile the aim of ensuring the best interests of the child, which should be a primary consideration, with the aim of avoiding impunity, one of the main aims of the EAW system. ( 50 )

75.

The participants in this case discussed other possibilities for approaching the best interests of the child in their written observations and at the hearing. The aim of these discussions was to find an alternative to the refusal of execution of the EAW (and thus preventing GN’s impunity), while ensuring that the best interests of the child are protected.

76.

Whereas the introduction of any novel solution is a matter for the EU legislature and not for the Court, I believe that the EAW Framework Decision provides for some tools that are of use for dealing with situations such as the one at issue. In my view, they may reduce the danger of impunity when protecting the best interests of the child. Among those provisions specifically are Article 23(4), as well as Articles 4(6) and 5(3) of the EAW Framework Decision.

77.

By its first question, the referring court asked not only whether execution of the EAW might be refused, but also whether, alternatively, it could be deferred.

78.

The participants before the Court discussed the possibility of applying Article 23(4) of the EAW Framework Decision to this case. That provision reads as follows: ‘The surrender may exceptionally be temporarily postponed for serious humanitarian reasons, for example if there are substantial grounds for believing that it would manifestly endanger the requested person's life or health. The execution of the [EAW] shall take place as soon as these grounds have ceased to exist. The executing judicial authority shall immediately inform the issuing judicial authority and agree on a new surrender date. In that event, the surrender shall take place within 10 days of the new date thus agreed.’

79.

The Prosecutor General at the Court of Appeal, Bologna, is of the view, and the same was argued by the Italian Government at the hearing, that the execution should in any event not be refused, but simply postponed under Article 23(4) of the EAW Framework Decision, until such a time when the child reaches a higher level of maturity. The Council suggested that the serious risk for the child could, in some cases, be interpreted as a serious humanitarian reason that would warrant the application of Article 23(4) of the EAW Framework Decision.

80.

At the hearing, the Commission disagreed and added that this provision could only be used once the decision on the execution is in fact made.

81.

Aside from the fact that Article 23(4) of the EAW Framework Decision refers specifically to the requested person, in my opinion, using it in the case such as the one at issue is not possible. Its very text recalls serious humanitarian reasons and gives the example of a manifest danger to the health of the requested person (not a third person).

82.

In E.D.L., the Court found that Article 23(4) of the EAW Framework Decision may be used when the executing judicial authority has substantial and material grounds to believe that ‘the surrender of the requested person, who is seriously ill, would expose him or her to a real risk of a significant reduction in his or her life expectancy or of a rapid, significant and irreversible deterioration in his or her state of health’. ( 51 )

83.

In my view, that approach is indeed suited for an application to the requested person: although there would be no reason to refuse the execution of the EAW, its postponement is necessary due to the condition of the requested person.

84.

In the scenario of the present case, the best interests of the child are a necessary consideration for the person other than the requested person herself – that is to say, her children. If there is a danger that the transfer of their mother would pose a serious danger to the children (for example, to their health or emotional development), that should have, in my view, already been an important consideration before deciding on the surrender.

85.

Even if we look beyond the text of Article 23(4) of the EAW Framework Decision and imagine that it might be possible to apply it to the children of the requested person, waiting until the child is of a more mature age, as the Italian Government suggested, would not meet the standard of humanitarian reasons as interpreted by the Court in E.D.L.

86.

This would, in my opinion, distort the purpose of Article 23(4) of the EAW Framework Decision.

87.

In this case, thus, the use of Article 23(4) of the EAW Framework Decision is not of assistance.

88.

Article 4(6) of the EAW Framework Decision is another option that executing judicial authorities might use when they determine that it is in the best interests of the child to keep both the mother and the child in the executing Member State.

89.

It provides an option for the executing judicial authority not to execute an EAW that was issued for the purposes of executing a custodial sentence or a detention order, if the requested person is staying in or is a national or a resident of the executing Member State, where that State undertakes to execute the custodial sentence or the detention order.

90.

The main purpose of that provision is 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 expires. ( 52 )

91.

There is, however, no reason why that provision should not be used also for the purpose of safeguarding the best interests of the child while, at the same time, avoiding impunity. Employing Article 4(6) of the EAW Framework Decision might be the best option if, for whatever reason related to the child at issue, it would be in his or her best interests not to leave the executing Member State, but it would simultaneously be important that he or she maintains frequent contact and a close relationship with his or her mother (for instance, in a situation where the other parent or wider family lives in the executing Member State).

92.

According to the referring court, Italy transposed Article 4(6) of the EAW Framework Decision into its law by imposing a condition requiring at least five years of residence of the requested person in Italy to be able to benefit from this provision.

93.

The Court considered that the terms ‘staying in’ and ‘resident’ in Article 4(6) of the EAW Framework Decision are autonomous concepts of EU law that cannot be defined by Member States. ( 53 ) According to the Court, those terms ‘cover, respectively, the situations in which the person who is the subject of an EAW has either established his actual place of residence in the executing Member State or has acquired, following a stable period of presence in that State, certain connections with that State which are of a similar degree to those resulting from residence.’ ( 54 )

94.

This places an obligation on the referring court to interpret its national law in conformity with the autonomous interpretation of those terms provided by the Court, which does not impose the requirement of staying in the state for five years.

95.

It is true that Article 4(6) of the EAW Framework Decision gives the executing judicial authority an option, and does not create an obligation, to carry out the custodial sentence in the executing Member State. However, when it comes to protecting the best interests of the child, this option may well become an obligation if the executing judicial authority finds that it is in the best interests of the child not to leave the executing Member State. ( 55 )

96.

Therefore, this provision, in my opinion, provides another procedural tool with which the executing judicial authority may mitigate the danger of impunity and reconcile it with the best interests of the child.

97.

Article 5(3) of the EAW Framework Decision provides that when an EAW is issued for the purposes of prosecuting a person who is a national or a resident ( 56 ) of the executing Member State, surrender may be made subject to the condition that the person, after being heard, is returned to the executing Member State in order to serve the custodial sentence or the detention order issued in respect of him or her in the issuing Member State.

98.

Arguably, this provision is the flipside of Article 4(6) of the EAW Framework Decision: whether the EAW is issued for prosecution (as in the case of Article 5(3)) or the execution of a sentence (Article 4(6)), residents of the executing state may benefit from serving a sentence in the Member State of their residence.

99.

Article 5(3) concerns situations in which an EAW is issued for the purposes of prosecution, which is arguably not the case here. GN was convicted in Belgium and the EAW was issued explicitly for the purpose of execution of a custodial sentence.

100.

At the hearing, however, GN and the Commission explained that, because GN was convicted in absentia, there is a possibility of a retrial in Belgium, which would, in their view, make this EAW also one for the purposes of prosecution.

101.

In such a scenario, Article 5(3) of the EAW Framework Decision would allow the executing judicial authority to impose as a condition for the surrender of persons who are nationals or residents in the executing Member State that that person subsequently be returned to serve the custodial sentence or the detention order in that Member State.

102.

First, the facts of the case cast doubt on GN being a resident in Italy. Nevertheless, that assessment is for the referring court to make.

103.

Second, the first sentence of Article 5 of the EAW Framework Decision provides that the executing authority may make use of this option. Thus, Article 5(3) of the EAW Framework Decision is another option for executing judicial authorities to use when they determine that it is in the best interests of the child to keep both the mother and the child in the executing Member State.

104.

However, given that the EAW against GN is explicitly issued for the purposes of executing a custodial sentence, I am of the view that that provision cannot be made use of in the present case.

105.

In light of the foregoing considerations, I propose that the Court answer the questions referred for a preliminary ruling by the Corte suprema di cassazione (Supreme Court of Cassation, Italy) as follows: