Case C‑627/19 PPU

ZB

(Request for a preliminary ruling from the rechtbank Amsterdam)

Judgment of the Court (First Chamber), 12 December 2019

(Reference for a preliminary ruling — Urgent preliminary ruling procedure — Police and judicial cooperation in criminal matters — European arrest warrant — Framework Decision 2002/584/JHA — Article 6(1) — Concept of ‘issuing judicial authority’ — Criteria — European arrest warrant issued by the prosecuting authorities of a Member State for the purpose of the enforcement of a penalty)

Police cooperation — Judicial cooperation in criminal matters — Framework Decision on the European arrest warrant and surrender procedures between Member States — Issue of a European arrest warrant for the purpose of the enforcement of a penalty — Competence attributed to a non-judicial authority of a Member State participating in the administration of criminal justice in that Member State — Compliance with the requirements of effective judicial protection — Obligation to provide for judicial oversight of the conditions of the issue of the European arrest warrant — Scope — Obligation to provide for a separate appeal against the decision to issue the European arrest warrant — None

(Council Framework Decision 2002/584, as amended by Framework Decision 2009/299)

(see paragraphs 29-39)

Résumé

The Court considers that the French, Swedish and Belgian prosecuting authorities satisfy the requirements for the issue of a European arrest warrant and also clarifies the scope of the judicial protection enjoyed by persons covered by such a warrant

In the judgments in Parquet général du Grand-Duché de Luxembourg and Openbaar Ministerie (Public Prosecutors’ Offices, Lyons and Tours) (C‑566/19 PPU and C‑626/19 PPU), Openbaar Ministerie (Swedish Public Prosecutor’s Office) (C‑625/19 PPU) and Openbaar Ministerie (Public Prosecutor, Brussels) (C‑627/19 PPU), delivered on 12 December 2019, in the context of the urgent preliminary ruling procedure, the Court supplemented its recent case-law ( 1 ) on Framework Decision 2002/584 on the European arrest warrant, ( 2 ) by providing information about the requirement of independence of the ‘issuing judicial authority’ responsible for a European arrest warrant and on the requirement of effective judicial protection that must be guaranteed to persons subject to such an arrest warrant.

In the cases in the main proceedings, the European arrest warrants had been issued by the French (Cases C‑566/19 PPU and C‑626/19 PPU), Swedish (Case C‑625/19 PPU) and Belgian prosecuting authorities (Case C‑627/19 PPU), for the purposes, in the first three cases, of criminal prosecutions and, in the last case, of the enforcement of a penalty. The question of the enforcement of those warrants arose, such enforcement being dependent, in particular, on the status of ‘issuing judicial authority’ of those respective prosecuting authorities.

The Court began by examining whether the rules governing the French prosecuting authorities conferred on them a sufficient guarantee of independence for them to issue European arrest warrants and held that that was so.

In order to arrive at that conclusion, the Court first of all observed that the concept of ‘issuing judicial authority’ is capable of encompassing the authorities of a Member State who, without being judges or courts, participate in the administration of criminal justice and act independently. The latter condition assumes the existence of rules governing their constitution and organisation will ensure that, when issuing a European arrest warrant, the authorities concerned are not exposed to any risk of being subjected to orders or individual instructions from the Executive.

As regards the law officers in the French prosecuting authorities, according to the Court, the evidence submitted is sufficient to show that they have the power to assess independently, in particular independently of the Executive, whether it is necessary to issue a European arrest warrant and whether the issue of such a warrant is proportionate, and that they exercise that power objectively, taking all the inculpatory and exculpatory evidence into account. Their independence is not called into question by the fact that they are responsible for bringing the prosecution, or by the fact that the Minister for Justice may issue general criminal policy instructions to them or by the fact that they are placed under the direction and supervision of their superiors — who are themselves members of the Public Prosecutor’s Office — and are therefore required to comply with their instructions.

The Court then proceeded to clarify the requirement laid down in its recent case-law, according to which the decision to issue a European arrest warrant must, when it is taken by an authority that participates in the administration of justice without being a court, be capable of being the subject, in the issuing Member State, of judicial proceedings which meet the requirements of effective judicial protection.

In the first place, the Court emphasised that the existence of such judicial proceedings is not a condition that must be satisfied in order for the authority to be classified as an issuing judicial authority.

In the second place, the Court observed that it is for the Member States to ensure that their legal orders effectively ensure the requisite level of judicial protection by means of procedural rules which they implement and which may differ from one system to another. The establishment of a separate right of appeal against a decision to issue a European arrest warrant is only one possibility. Thus, the Court held that the requirements inherent in effective judicial protection, which must be enjoyed by a person named in a European arrest warrant issued by an authority other than a court for the purposes of a criminal prosecution, are satisfied provided that the conditions for the issue of that warrant, and in particular its proportionate nature, are the subject of judicial oversight in the issuing Member State.

In this instance, the French and Swedish systems satisfy those requirements, since the national procedural rules make it possible to establish that the proportionate nature of the prosecuting authorities’ decision to issue a European arrest warrant can be the subject of judicial oversight prior to, or indeed virtually concomitantly with, the adoption of that decision, and also of subsequent judicial review. In particular, such an assessment is carried out, in particular, in advance by the court which adopts the national decision that may subsequently form the basis of the European arrest warrant.

Where the European arrest warrant has been issued by the prosecuting authorities, not for the purpose of a criminal prosecution but for the purpose of enforcing a custodial penalty imposed by a sentence which has become final, the Court considered that here, too, the requirements arising from effective judicial protection do not mean that a separate appeal against the decision of the prosecuting authorities must be available. The Belgian system, which makes no provision for such an appeal, therefore also meets those requirements. In that regard, the Court emphasised that, where the European arrest warrant is aimed at the enforcement of a penalty, judicial oversight is achieved by the enforceable judgment on which the arrest warrant is based. The enforcing judicial authority may presume that the decision to issue such an arrest warrant was taken in judicial proceedings in which the person sought was the beneficiary of guarantees as regards the protection of his fundamental rights. Furthermore, the proportionality of that arrest warrant also follows from the sentence imposed, since the Framework Decision on the European arrest warrant provides that that sentence must consist in a custodial sentence or a detention order of at least four months.

( 1 ) See, in particular, judgments of 27 May 2019, OG and PI(Public Prosecutor’s Office of Lübeck and Zwickau) (C‑508/18 and C‑82/19 PPU, EU:C:2019:456); of 27 May 2019, PF(Prosecutor General, Lithuania) (C‑509/18, EU:C:2019:457); and of 9 October 2019, NJ(Public Prosecutor’s Office, Vienna) (C‑489/19 PPU, EU:C:2019:849).

( 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).