Case C‑318/24 PPU [Breian] ( i )

P.P.R.

(Request for a preliminary ruling from the Curtea de Apel Braşov)

Judgment of the Court (Fifth Chamber) of 29 July 2024

(Reference for a preliminary ruling – Judicial cooperation in criminal matters – European arrest warrant – Framework Decision 2002/584/JHA – Surrender of requested persons to issuing judicial authorities – Respect for fundamental rights – Systemic or generalised deficiencies concerning the independence of the judiciary of the issuing Member State – Deficiencies concerning the absence of proof of the taking of an oath by judges – Prohibition of inhuman or degrading treatment – Detention conditions in the issuing Member State – Assessment undertaken by the executing judicial authority – Refusal by the executing judicial authority to execute the European arrest warrant – Effects of that refusal for the executing judicial authority of another Member State)

1. Judicial cooperation in criminal matters – Framework Decision on the European arrest warrant and the surrender procedures between Member States – Questions referred for a preliminary ruling – Admissibility – Questions concerning the obligations of the judicial authority executing a European arrest warrant put by the issuing judicial authority – Questions admissible

   (Art. 267 TFEU; Council Framework Decision 2002/584, as amended by Framework Decision 2009/299)

   (see paragraphs 30-32)

2. Judicial cooperation in criminal matters – Framework Decision on the European arrest warrant and the surrender procedures between Member States – Surrender of convicted or suspected persons to the issuing judicial authorities – Obligation to respect fundamental rights and fundamental legal principles – Right of access to an independent and impartial tribunal previously established by law – Systemic or generalised deficiencies concerning the independence of the judiciary of the issuing Member State – Deficiencies concerning the procedure for the appointment of the members of the judiciary – Risk of infringement of the fundamental right to a fair trial – Verification by the executing judicial authority – Scope – Consequences

   (Charter of Fundamental Rights of the European Union, Art. 47, second para.; Council Framework Decision 2002/584, as amended by Framework Decision 2009/299, Art. 1(3))

   (see paragraphs 37, 38, 76-82)

3. Judicial cooperation in criminal matters – Framework Decision on the European arrest warrant and the surrender procedures between Member States – Surrender of convicted or suspected persons to the issuing judicial authorities – Obligation to respect fundamental rights and fundamental legal principles – Refusal to execute an arrest warrant on the ground of a risk of infringement of the fundamental right to a fair trial – Effects of the refusal – Effects for the executing authorities of other Member States – Obligation to refuse the execution of that arrest warrant – None – Obligation, for each executing authority, to examine whether there are any grounds for non-execution of that warrant

   (Charter of Fundamental Rights of the European Union, Art. 47, second para.; Council Framework Decision 2002/584, as amended by Framework Decision 2009/299, Art. 1(3), Art. 3(2) and Art. 15(1))

   (see paragraphs 39-46, 55, operative part 1)

4. Judicial cooperation in criminal matters – Framework Decision on the European arrest warrant and the surrender procedures between Member States – Surrender of convicted or suspected persons to the issuing judicial authorities – Obligation to respect fundamental rights and fundamental legal principles – Refusal to execute an arrest warrant on the ground of a risk of infringement of the fundamental right to a fair trial – Effects of the refusal – Effects for the issuing authority – Whether the issuing authority may maintain that arrest warrant – Conditions

   (Charter of Fundamental Rights of the European Union, Art. 47, second para.; Council Framework Decision 2002/584, as amended by Framework Decision 2009/299, Art. 1(3))

   (see paragraphs 47-49, 52-55, operative part 1)

5. Judicial cooperation in criminal matters – Framework Decision on the European arrest warrant and the surrender procedures between Member States – Surrender of convicted or suspected persons to the issuing judicial authorities – Obligation to respect fundamental rights and fundamental legal principles – Right of access to an independent and impartial tribunal previously established by law – Systemic or generalised deficiencies concerning the independence of the judiciary of the issuing Member State – Assessment of the risk of infringement of the fundamental right to a fair trial – Deletion of the international wanted persons notice in respect of the person subject to a European arrest warrant – Circumstance which does not, in itself, justify the refusal to execute the arrest warrant – Circumstance which may be taken into account in the context of that assessment

   (Charter of Fundamental Rights of the European Union, Art. 47, second para.; Council Framework Decision 2002/584, as amended by Framework Decision 2009/299, Art. 1(3))

   (see paragraphs 59-61, operative part 2)

6. Questions referred for a preliminary ruling – Reference to the Court – Issues of interpretation – Obligation to make a reference for a preliminary ruling – Scope – Refusal to execute a European arrest warrant – Need for the judicial authority which issued that warrant to decide whether to maintain or withdraw it – No obligation to make a reference – Condition – Judicial remedy against the decision of that authority in national law

   (Art. 267 TFEU; Council Framework Decision 2002/584, as amended by Framework Decision 2009/299)

   (see paragraphs 65-69, operative part 3)

7. Judicial cooperation in criminal matters – Framework Decision on the European arrest warrant and the surrender procedures between Member States – Surrender of convicted or suspected persons to the issuing judicial authorities – Obligation to respect fundamental rights and fundamental legal principles – Right of access to an independent and impartial tribunal previously established by law – Systemic or generalised deficiencies concerning the independence of the judiciary of the issuing Member State – Deficiencies concerning the procedure for the appointment of the members of the judiciary – Doubts as to the lawfulness of the oath taken by the judges of the formation – Circumstances which do not, in themselves, justify the refusal to execute the arrest warrant

   (Charter of Fundamental Rights of the European Union, Art. 47, second para.; Council Framework Decision 2002/584, as amended by Framework Decision 2009/299, Art. 1(3))

   (see paragraphs 84-88, operative part 4)

8. Judicial cooperation in criminal matters – Framework Decision on the European arrest warrant and the surrender procedures between Member States – Surrender of convicted or suspected persons to the issuing judicial authorities – Principles of mutual recognition and sincere cooperation – No right of the judicial authority issuing a European arrest warrant to participate, as a party, in the proceedings for the execution of that warrant before the executing judicial authority

   (Council Framework Decision 2002/584, as amended by Framework Decision 2009/299, Arts 15 and 19)

   (see paragraphs 90, 93, 95, 96, operative part 5)

9. Judicial cooperation in criminal matters – Framework Decision on the European arrest warrant and the surrender procedures between Member States – Surrender of convicted or suspected persons to the issuing judicial authorities – Consequences of a finding of a risk of inhuman or degrading treatment of the person subject to the European arrest warrant

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

   (see paragraphs 101, 102)

10. Judicial cooperation in criminal matters – Framework Decision on the European arrest warrant and the surrender procedures between Member States – Surrender of convicted or suspected persons to the issuing judicial authorities – Obligation to respect fundamental rights and fundamental legal principles – Detention conditions in the issuing Member State – Risk of inhuman or degrading treatment – Verification by the executing judicial authority – Scope – Obligation to request from the issuing judicial authority supplementary information on the detention conditions – No possibility of applying a higher standard as regards detention conditions than that guaranteed by the Charter of Fundamental Rights

    (Charter of Fundamental Rights of the European Union, Art. 4; Council Framework Decision 2002/584, as amended by Framework Decision 2009/299, Art. 1(3) and Art. 15(2) and (3))

    (see paragraphs 103-112, 114-117, 119-122, operative part 6)

Résumé

Hearing a request for a preliminary ruling from the Curtea de Apel Braşov (Court of Appeal, Braşov, Romania), the Court clarifies, in the context of an urgent reference for a preliminary ruling, its case-law on the ground for non-execution of a European arrest warrant (EAW) relating to the risk of infringement of the fundamental rights of the person concerned in the event of being surrendered to the Romanian authorities.

On 17 December 2020 the Curtea de Apel Braşov (Court of Appeal, Braşov) issued an EAW against P.P.R. for the purpose of executing a custodial sentence. P.P.R. was arrested in France in 2020, but was not surrendered to the Romanian authorities. By judgment of 29 November 2023, the cour d’appel de Paris (Court of Appeal, Paris, France) refused to execute the EAW on the ground of a risk of infringement of the fundamental right to a fair trial by an independent and impartial tribunal previously established by law. ( 1 ) According to that court, there are systemic and generalised deficiencies in the Romanian judicial system, in so far as the place where the records of the oath of office taken by judges are kept is uncertain, which gives rise to doubts regarding the proper composition of the courts in that Member State. Furthermore, in the present case, the record of the oath taken by one of the judges of the formation which imposed the custodial sentence cannot be found, while another judge of that formation took an oath only as a public prosecutor. Moreover, by a decision of the Requests Chamber of Interpol’s Commission for the Control of Files (CCF), the international wanted persons notice in respect of P.P.R. was deleted from the Interpol database on the ground that the data concerning P.P.R. did not comply with Interpol’s rules on the processing of personal data. That raised serious concerns, inter alia, regarding respect for fundamental rights in the proceedings against P.P.R. in Romania.

On 29 April 2024, P.P.R. was arrested in Malta on the basis of the EAW. On the same day, the Maltese executing judicial authority requested further information from the referring court, stating that P.P.R had relied on the judgment of the cour d’appel de Paris (Court of Appeal, Paris) of 29 November 2023.

Then, on 20 May 2024 the Maltese court decided not to surrender P.P.R. to the Romanian authorities, considering that it was unable to conclude, on the basis of the information on the detention conditions in Romania available to it, that the prohibition of inhuman and degrading treatment or punishment, provided for in Article 4 of the Charter, would be complied with if P.P.R. were to be surrendered to the Romanian authorities.

In those circumstances, the referring court decided to refer to the Court for a preliminary ruling a number of questions concerning, in essence: first of all, the effects produced, for other executing authorities and for the issuing authority, by an executing authority’s refusal to execute an EAW; secondly, the reasons underlying the French and Maltese executing authorities’ refusals to execute the EAW issued by the issuing authority; and, lastly, its own obligation to make a reference to the Court for a preliminary ruling following such a refusal, and its right to participate in the proceedings for the execution of the EAW before the executing authority.

Findings of the Court

In the first place, as regards the effects that a refusal to execute an EAW has for other executing authorities, the Court observes that the Framework Decision on the EAW ( 2 ) does not provide for the possibility, or obligation, for an executing authority of a Member State to refuse to execute an EAW solely on the ground that the executing authority of another Member State has refused to execute it, without examining itself whether there are any grounds for non-execution of that EAW. Thus, the executing authority of a Member State is not obliged to refuse to execute an EAW where the executing authority of another Member State has previously refused to execute it on the ground that the surrender of the person concerned may infringe the fundamental right to a fair trial. Nevertheless, within the framework of its own examination of the existence of a ground for non-execution, that authority must give due consideration to the reasons underlying the refusal decision adopted by the first executing authority.

As regards the effects of that decision for the issuing authority, the Court points out that Framework Decision 2002/584 does not prevent the issuing authority from maintaining its request for surrender under an EAW despite the refusal to execute it. However, although the issuing authority is not obliged, following such a refusal, to withdraw its EAW, a refusal to execute that EAW must nonetheless prompt it to exercise vigilance. It cannot, especially in the absence of a change in circumstances, maintain an EAW where an executing judicial authority has legitimately refused ( 3 ) to give effect to that EAW on the ground of a real risk of infringement of the fundamental right to a fair trial. Conversely, if there is no such risk, following in particular a change in circumstances, the mere fact that the executing authority has refused to execute that EAW cannot prevent the issuing judicial authority from maintaining it. Furthermore, it is for that authority to examine whether, in the light of the particular circumstances of the case, it is proportionate to maintain the EAW.

In the second place, as regards the reasons underlying the French and Maltese executing authorities’ decisions to refuse to execute the EAW at issue, the Court recalls, first, that in order to determine whether there is a real risk of infringement of the fundamental right to a fair trial on account of systemic or generalised deficiencies in the operation of the judicial system of the issuing Member State, the executing authority must base its examination both on objective, reliable, specific and properly updated information relating to the operation of that judicial system, and on a specific and precise analysis of the individual situation of the requested person. Therefore, a decision of the CCF concerning the situation of the person in respect of whom an EAW has been issued ( 4 ) cannot suffice to justify a refusal to execute that EAW. However, such a decision may be taken into account by the executing judicial authority in order to decide whether it is appropriate to refuse to execute the EAW.

Secondly, the Court holds that a judicial authority executing an EAW issued for the purpose of executing a custodial sentence cannot refuse to execute that EAW on the ground that the record of the oath taken by one of the judges who imposed that sentence cannot be found, or that another judge of the same formation has taken an oath only as a public prosecutor. Not every error that takes place during the procedure for the appointment of a judge, or when a judge takes up office, is of such a nature as to cast doubts on the independence and impartiality of that judge and, accordingly, on whether a formation which includes that judge can be considered to be an ‘independent and impartial tribunal previously established by law’ within the meaning of EU law. In particular, the fact that the domestic law of a Member State may provide that a public prosecutor who has taken the oath on taking up office does not have to re-take the oath in the event of subsequently taking up the office of judge cannot constitute a systemic or generalised deficiency as regards the independence of the judiciary. In addition, uncertainty as to the place where the records of the oath taken by the judges of a Member State are kept or the fact that those records cannot be located, in particular if several years have elapsed since the judge concerned took the oath, are not, in themselves and in the absence of other relevant evidence, capable of showing that the judges concerned were performing their duties without ever having taken the required oath. In any event, uncertainty as to whether the judges of a Member State have, before taking up office, taken the oath provided for by national law cannot be regarded as constituting a systemic or generalised deficiency as regards the independence of the judiciary in that Member State, if national law provides effective legal remedies which make it possible to invoke a possible failure to take the oath by the judges who have delivered a particular judgment, and thus to obtain the annulment of that judgment. It will be for the referring court to ascertain whether such remedies exist under Romanian law.

Thirdly, the Court rules that, when examining detention conditions in the issuing Member State, the executing judicial authority cannot refuse to execute an EAW on the basis of information concerning the detention conditions in prisons in the issuing Member State which it has obtained itself, and in respect of which it has not requested supplementary information from the issuing judicial authority. Furthermore, the executing judicial authority cannot apply a higher standard as regards detention conditions than that guaranteed by Article 4 of the Charter. In that regard, the mere absence of a ‘precise plan for … execution of the sentence’ or ‘precise criteria for determining a particular regime of execution’ does not fall within the concept of ‘inhuman or degrading treatment’ within the meaning of Article 4 of the Charter.

Even if the drawing up of such a plan or establishment of such criteria were required in the executing Member State, it should be recalled that, in accordance with the principle of mutual trust, the Member States may be required to presume that fundamental rights have been observed by the other Member States, so that they may not, in particular, demand a higher level of national protection of fundamental rights from another Member State than that provided by EU law. Therefore, the executing judicial authority cannot refuse to surrender the requested person solely on the ground that the issuing judicial authority has not communicated to it a ‘precise plan for … execution of the sentence’ or ‘precise criteria for determining a particular regime of execution’.

In the third and last place, as regards the obligations and rights of the issuing judicial authority, the Court explains, first, that that authority is not obliged to make a reference to the Court for a preliminary ruling before deciding, in the light of the grounds on the basis of which the executing judicial authority refused to execute an EAW, whether to withdraw or maintain it, unless there is no judicial remedy under national law against the decision it will be called upon to make, in which case it is, in principle, obliged to make a reference to the Court. It cannot be relieved of that obligation unless it has established that the question raised is irrelevant or that the EU law provision in question has been interpreted by the Court or that the correct interpretation of EU law is so obvious as to leave no scope for any reasonable doubt. Furthermore, the Court considers that the judicial authority issuing an EAW does not have the right to participate, as a party, in the proceedings for the execution of that EAW before the executing judicial authority. Such participation is not essential in order to ensure compliance with the principles of mutual recognition and sincere cooperation which underpin the operation of the EAW mechanism.

( i ) The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings.

( 1 ) That right is enshrined in the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

( 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) (‘Framework Decision 2002/584’).

( 3 ) In accordance with Article 1(3) of Framework Decision 2002/584, which provides: ‘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 of the Treaty on European Union.’

( 4 ) In the present case, by its decision, the CCF ordered the deletion of the international wanted persons notice in respect of P.P.R. on the ground of an infringement of Interpol’s rules on the processing of personal data.