Case C‑168/21

Procureur général près la cour d’appel d’Angers

(Request for a preliminary ruling from the Cour de cassation (France))

Judgment of the Court (Third Chamber), 14 July 2022

(Reference for a preliminary ruling – Judicial cooperation in criminal matters – Framework Decision 2002/584/JHA – Article 2(4) – Condition of double criminality of the act – Article 4(1) – Ground for optional non-execution of the European arrest warrant – Verification by the executing judicial authority – Acts some of which constitute an offence under the law of the executing Member State – Article 49(3) of the Charter of Fundamental Rights of the European Union – Principle of proportionality of criminal offences and penalties)

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 – Condition of double criminality – Arrest warrant issued for the purposes of enforcing a custodial sentence or detention order – Custodial sentence handed down for acts which constitute a criminal offence under the law of the issuing Member State and of the executing Member State – Classification as an offence requiring, in the issuing Member State alone, the impairment of a protected legal interest – Fulfilment of the condition of double criminality

   (Council Framework Decision 2002/584, as amended by Framework Decision 2009/299, Arts 2(4) and 4(1))

   (see paragraphs 44-47, 49-51, operative part 1)

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 – Condition of double criminality – Arrest warrant issued for the purposes of enforcing a custodial sentence or detention order – Custodial sentence imposed for a single offence consisting of multiple acts – Acts only some of which constitute a criminal offence in the executing Member State – Fulfilment of the condition of double criminality – Infringement of the principle of proportionality of penalties – None – Obligation to execute the European arrest warrant

   (Charter of Fundamental Rights of the European Union, Art. 49(3); Council Framework Decision 2002/584, as amended by Framework Decision 2009/299, Arts 2(4), 4(1) and 5)

   (see paragraphs 58, 60-64, 68, 69, operative part 2)

Résumé

European arrest warrant and condition of double criminality of the act: there does not have to be an exact match between the constituent elements of the offence concerned in the issuing Member State and in the executing Member State

The executing judicial authority may not therefore refuse to execute the European arrest warrant on the ground that only some of the acts constituting that offence in the issuing Member State also constitute an offence in the executing Member State

In June 2016, the Italian judicial authorities issued a European arrest warrant (EAW) against KL for the purpose of enforcing a custodial sentence of 12 years and 6 months. This is a cumulative sentence representing four sentences handed down for four offences, one of which is classified as ‘devastation and looting’. The cour d’appel d’Angers (Court of Appeal, Angers, France) refused to surrender KL on the ground that two of the acts underlying that offence did not constitute an offence in France. In that regard, the referring court, hearing an appeal on a point of law against that refusal to surrender, states that the constituent elements of the offence of ‘devastation and looting’ are different in the two Member States concerned, since, under Italian law (unlike French law), a breach of the public peace is an essential element for the purposes of the classification of that offence.

Accordingly, the referring court questions whether the condition of double criminality of the act, as laid down in Framework Decision 2002/584 ( 1 ) and to which the surrender of KL is subject, is fulfilled in the case at hand. If that condition does not prevent the surrender of KL, the referring court considers that the question then arises as to whether, in such circumstances, there should be a refusal to execute the EAW in the light of the principle of proportionality of penalties, laid down in Article 49(3) of the Charter of Fundamental Rights of the European Union. ( 2 ) Consequently, that court has referred those questions to the Court of Justice.

The Court holds that the condition of double criminality of the act laid down in Framework Decision 2002/584 ( 3 ) is met where an EAW is issued for the purpose of enforcing a custodial sentence handed down for acts which relate, in the issuing Member State, to a single offence requiring that those acts impair a legal interest protected in that Member State when such acts also constitute a criminal offence, under the law of the executing Member State, of which the impairment of that protected legal interest is not a constituent element. In addition, the Court holds that, in the light of that condition and of the principle of proportionality of penalties, the executing judicial authority may not refuse to execute an EAW issued for the purpose of enforcing a custodial sentence where that sentence was imposed in the issuing Member State for the commission, by the requested person, of a single offence consisting of multiple acts, only some of which constitute a criminal offence in the executing Member State.

Findings of the Court

In the first place, as regards the scope of the condition of double criminality of the act, the Court states, first of all, that, in order to determine whether that condition is met, it is necessary and sufficient that the acts giving rise to the issuing of the EAW also constitute an offence under the law of the executing Member State. Thus, the offences do not need to be identical in the two Member States concerned. It follows that, when assessing the condition referred to above, in order to establish whether there are grounds for non-execution of the EAW, ( 4 ) the executing judicial authority is required to verify whether the factual elements underlying the offence which gave rise to the issuing of that EAW would also, per se, constitute an offence under the law of the executing Member State if they were present in that State.

Next, the Court notes that, as an exception to the rule that the EAW must be executed, the ground for optional non-execution of the EAW which the condition of double criminality of the act constitutes must be interpreted strictly and, therefore, cannot be interpreted in a way which would frustrate the objective of facilitating and accelerating surrenders between judicial authorities. If that condition were to be interpreted as requiring there to be an exact match between the constituent elements of the offence as defined in the law of the issuing Member State and those of the offence as provided for in the law of the executing Member State, as well as between the legal interests protected under the laws of those two Member States, the effectiveness of the surrender procedure would be undermined. Indeed, given the minimal harmonisation in the field of criminal law at EU level, it is likely that there will be no exact match for a large number of offences. The interpretation envisaged above would therefore considerably limit the situations in which the condition referred to above could be met, thereby jeopardising the objective pursued by Framework Decision 2002/584. Moreover, such an interpretation would also disregard the objective of combating the impunity of a requested person who is present in a territory other than that in which he or she has committed an offence.

In the second place, the Court notes, first of all, that, unless the ground for non-execution relating to the condition of double criminality of the act is transposed to those acts which constitute an offence under the law of the executing Member State and which thus fall outside the scope of that ground, the fact that only some of the acts constituting an offence in the issuing Member State also constitute an offence under the law of the executing Member State does not permit the executing judicial authority to refuse to execute the EAW. Framework Decision 2002/584 ( 5 ) does not lay down any condition that the person concerned must not serve the sentence in the issuing Member State for those acts which do not constitute an offence in the executing Member State. The execution of the EAW may be made subject only to one of the conditions exhaustively laid down in that framework decision.

In addition, the Court states that interpreting the condition of double criminality of the act as meaning that execution of the EAW may be refused on the ground that some of the elements of the offence in the issuing Member State do not constitute an offence in the executing Member State would create an obstacle to the effective surrender of the person concerned and would lead to the impunity of that person for all the acts concerned. Accordingly, in such circumstances, that condition is met. Lastly, the Court states that it is not for the executing judicial authority, when assessing the condition referred to above, to assess the sentence handed down in the issuing Member State in the light of the principle of proportionality of penalties.

( 1 ) 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) (‘Framework Decision 2002/584’). The condition of double criminality of the act is laid down in Article 2(4) of that framework decision.

( 2 ) According to that principle, the severity of penalties must not be disproportionate to the criminal offence.

( 3 ) See Article 2(4) of that framework decision, which provides for the possibility of making surrender subject to that condition for offences other than those covered by Article 2(2), and Article 4(1) thereof, under which the executing judicial authority may refuse to execute the EAW if, in one of the cases referred to in Article 2(4), the act on which the EAW is based does not constitute an offence under the law of the executing Member State.

( 4 ) See Article 4(1) of Framework Decision 2002/584.

( 5 ) See Article 5 of Framework Decision 2002/584, which lays down the conditions to which, by the law of the executing Member State, the execution of the EAW may be made subject.