Contents
Judgment of the Court (First Chamber)12 December 2019note(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) — Definition of issuing judicial authority — Criteria — European arrest warrant issued by the public prosecutor’s office of a Member State for the purpose of criminal proceedings)in Joined Cases C‑566/19 PPU and C‑626/19 PPU,REQUESTS for a preliminary ruling under Article 267 TFEU from the Cour d’appel (Court of Appeal, Luxembourg), made by decision of 9 July 2019, received at the Court on 25 July 2019, and from the Rechtbank Amsterdam (District Court, Amsterdam, Netherlands), made by decision of 22 August 2019, received at the Court on 22 August 2019, in proceedings relating to the execution of European arrest warrants issued in respect ofTHE COURT (First Chamber),composed of J.-C. Bonichot, President of the Chamber, M. Safjan, L. Bay Larsen, C. Toader (Rapporteur) and N. Jääskinen, Judges,Advocate General: M. Campos Sánchez-Bordona,Registrar: M. Ferreira, Principal Administrator,having regard to the written procedure and further to the hearing on 24 October 2019,after considering the observations submitted on behalf of:– JR, by P.-F. Onimus, E. Moyne, G. Goubin and F. Joyeux, avocats,– YC, by T.E. Korff and H.G. Koopman, advocaten,– the Parquet général du Grand-Duché de Luxembourg, by J. Petry,– the Openbaar Ministerie, by K. van der Schaft and N. Bakkenes,– the Netherlands Government, by M.K. Bulterman and J. Langer, acting as Agents,– Ireland, by G. Hodge and M. Browne, acting as Agents, and R. Kennedy, SC,– the Spanish Government, by L. Aguilera Ruiz, acting as Agent,– the French Government, by A. Daniel and A.-L. Desjonquères, acting as Agents,– the Italian Government, by G. Palmieri, acting as Agent, and L. Fiandaca, avvocato dello Stato,– the Finnish Government, by M. Pere, acting as Agent,– the European Commission, by S. Grünheid and R. Troosters, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 26 November 2019,gives the following
Judgment
1These requests for a preliminary ruling concern the interpretation of Article 6(1) 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), as amended by Council Framework Decision 2009/299/JHA of 26 February 2009 (OJ 2009 L 81, p. 24) (‘Framework Decision 2002/584’).
2The requests have been made in proceedings in Luxembourg and the Netherlands, respectively, concerning the execution of European arrest warrants issued on 24 April 2019 by the public prosecutor at the tribunal de grande instance de Lyon (Regional Court, Lyon, France) in connection with criminal proceedings in respect of JR (Case C‑566/19 PPU) and on 27 March 2019 by the public prosecutor at the tribunal de grande instance de Tours (Regional Court, Tours, France) in connection with criminal proceedings in respect of YC (Case C‑626/19 PPU).
Legal context
European Union law
3Recitals 5, 6, 10 and 12 of Framework Decision 2002/584 read as follows:(5) The objective set for the Union to become an area of freedom, security and justice leads to abolishing extradition between Member States and replacing it by a system of surrender between judicial authorities. Further, the introduction of a new simplified system of surrender of sentenced or suspected persons for the purposes of execution or prosecution of criminal sentences makes it possible to remove the complexity and potential for delay inherent in the present extradition procedures. Traditional cooperation relations which have prevailed up till now between Member States should be replaced by a system of free movement of judicial decisions in criminal matters, covering both pre-sentence and final decisions, within an area of freedom, security and justice.(6) The European arrest warrant provided for in this Framework Decision is the first concrete measure in the field of criminal law implementing the principle of mutual recognition which the European Council referred to as the “cornerstone” of judicial cooperation.…(10) The mechanism of the European arrest warrant is based on a high level of confidence between Member States. Its implementation may be suspended only in the event of a serious and persistent breach by one of the Member States of the principles set out in Article 6(1) [EU], determined by the Council pursuant to Article 7(1) [EU] with the consequences set out in Article 7(2) thereof.…(12) This Framework Decision respects fundamental rights and observes the principles recognised by Article 6 [EU] and reflected in the Charter of Fundamental Rights of the European Union …, in particular Chapter VI thereof. …’
4Article 1 of that framework decision, entitled ‘Definition of the European arrest warrant and obligation to execute it’, provides:1. The European arrest warrant is a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order.2. Member States shall execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of this Framework Decision.3. 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 [EU].’
5Article 2 of that framework decision, entitled ‘Scope of the European arrest warrant’, provides in paragraph 1 thereof:‘A European arrest warrant may be issued for acts punishable by the law of the issuing Member State by a custodial sentence or a detention order for a maximum period of at least 12 months or, where a sentence has been passed or a detention order has been made, for sentences of at least four months.’
6Under Article 6 of the framework decision, entitled ‘Determination of the competent judicial authorities’:1. The issuing judicial authority shall be the judicial authority of the issuing Member State which is competent to issue a European arrest warrant by virtue of the law of that State.2. The executing judicial authority shall be the judicial authority of the executing Member State which is competent to execute the European arrest warrant by virtue of the law of that State.3. Each Member State shall inform the General Secretariat of the Council of the competent judicial authority under its law.’
French law
The Constitution
7Under the first paragraph of Article 64 of the Constitution of 4 October 1958:‘The President of the Republic shall be the guarantor of the independence of judicial authorities.’
Order establishing the Basic Law on the statute governing the judiciary
8Under Article 5 of ordonnance no 58-1270, du 22 décembre 1958, portant loi organique relative au statut de la magistrature (Order No 58-1270 of 22 December 1958 establishing the Basic Law on the statute governing the judiciary) (JORF of 23 December 1958, p. 11551):‘Public prosecutors shall act under the direction and supervision of their hierarchical superiors and under the authority of the Minister for Justice. They may express themselves freely at hearings.’
Code of Criminal Procedure
9Book I of the legislative part of the code de procédure pénale (Code of Criminal Procedure) (‘the CCP’), entitled ‘The conduct of criminal justice policy, prosecutions and pre-trial investigations’, contains four titles.
10Title I of Book I of the CCP, entitled ‘Authorities responsible for conducting criminal justice policy, prosecutions and pre-trial investigations’, includes, inter alia, Articles 30, 31 and 36. Article 30 states:‘The Minister for Justice shall implement the criminal justice policy determined by the Government. He shall ensure that it is applied consistently throughout the territory of the [French] Republic.To that end, he shall issue general instructions to the judges attached to the Public Prosecutor’s Office.He cannot issue instructions to them in individual cases.…’
11Article 31 of the CCP is worded as follows:‘The public prosecutor’s office shall conduct prosecutions and enforce the law with due regard for the principle of impartiality by which it is bound.’
12Article 36 of the CCP provides:‘The Principal Public Prosecutor may, by written instructions placed in the case file, direct public prosecutors to commence criminal proceedings, or arrange for such proceedings to be brought, or to refer to the competent court such written submissions as the Principal Public Prosecutor considers appropriate.’
13Title III of Book I of the CCP, entitled ‘Investigating courts’, includes, inter alia, Chapter I, entitled ‘The investigating judge: first-tier investigating court’, which is subdivided into 13 sections.
14Article 122 of the CCP, which is in Section 6 of Chapter I, entitled ‘Warrants and their execution’, provides as follows:‘The investigating judge may, as appropriate, issue a search warrant, a subpoena, a summons or an arrest warrant. The judge responsible for matters relating to liberty and detention may issue a committal order.…An arrest warrant is the order given to the law enforcement authorities to search for the person in respect of whom it is issued and to bring him before the investigating judge, having first taken him, if appropriate, to the remand prison indicated on the warrant, where he will be received and detained.…’
15According to Article 131 of the CCP, which is also part of Section 6:‘If the person has absconded or resides outside the territory of the Republic, the investigating judge, after consulting the public prosecutor, may issue an arrest warrant against him if the offence carries a penalty of imprisonment or a more serious penalty.’
16Article 170 of the CCP, which is in Section 10 of Chapter I of Title III of Book I of the CCP, entitled ‘Invalidity of investigations’, provides as follows:‘In relation to any matter, the investigating judge, public prosecutor, parties or assisted witness may seise the investigating chamber, in the course of the investigation, with a view to seeking the annulment of a procedural instrument or document.’
17Book IV of the CCP, covering ‘a number of specific procedures’, includes, inter alia, Title X, which is entitled ‘International mutual legal assistance’ and is subdivided into seven chapters, Chapter IV thereof being entitled ‘The European arrest warrant and the surrender procedures between Member States of the European Union in accordance with the Framework Decision of the Council of the European Union of 13 June 2002 and the surrender procedures in accordance with agreements concluded by the European Union with other States’. The first paragraph of Article 695-16 of the CCP, which is in Chapter IV, provides as follows:‘The Public Prosecutor’s Office attached to the investigating court, trial court or court responsible for the execution of sentences which has issued an arrest warrant shall execute it in the form of a European arrest warrant, acting either at the request of the court or of its own motion, in accordance with the rules and under the conditions laid down in Articles 695-12 to 695-15.’
The disputes in the main proceedings and the questions referred for a preliminary ruling
Case C‑566/19 PPU
18On 24 April 2019, the public prosecutor at the tribunal de grande instance de Lyon (Regional Court, Lyon) issued a European arrest warrant in connection with criminal proceedings in respect of JR, suspected of having been involved in offences linked to a criminal organisation.
19The warrant was issued pursuant to a national arrest warrant issued on the same day by the investigating judge of the tribunal de grande instance de Lyon (Regional Court, Lyon).
20On the same day, JR was arrested in Luxembourg on the basis of the European arrest warrant. However, on 25 April 2019, the investigating judge of the tribunal d’arrondissement de Luxembourg (District Court, Luxembourg) before which JR had been brought, released him after concluding that the description of the facts contained in that European arrest warrant was very succinct and did not enable the investigating judge to understand the nature of the offences of which JR was accused.
21On 28 May 2019, the procureur d’État du Luxembourg (State Prosecutor, Luxembourg) requested that the chambre du conseil du tribunal d’arrondissement de Luxembourg (Investigation Chamber of the District Court, Luxembourg) declare that JR should be surrendered to the French authorities.
22By order of 19 June 2019, the chambre du conseil du tribunal d’arrondissement de Luxembourg (Pre-trial Chamber of the District Court, Luxembourg) stated that it had no jurisdiction to hear JR’s application for a declaration that the European arrest warrant was invalid and granted the request for the surrender of JR to the French authorities.
23JR appealed against that order to the Cour d’appel (Court of Appeal, Luxembourg), arguing, primarily, that public prosecutors in France cannot be regarded as an issuing judicial authority within the meaning of Article 6(1) of Framework Decision 2002/584, as they may be subject to indirect instructions from the executive.
24The referring court considers that, prima facie, the judges attached to the Public Prosecutor’s Office could be regarded as fulfilling the requirements of independence laid down by the judgment of 27 May 2019, OG and PI (Public Prosecutor’s Offices in Lübeck and Zwickau) (C‑508/18 and C‑82/19 PPU, EU:C:2019:456), as, according to Article 30 of the CCP, the Minister for Justice cannot issue instructions to them in individual cases. Nevertheless, the referring court notes that Article 36 of the CCP authorises the Principal Public Prosecutor, if he considers it appropriate, to direct public prosecutors, by written instructions, to commence criminal proceedings or make written submissions to the competent court.
25Accordingly, referring to the Opinion of Advocate General Campos Sánchez-Bordona in OG and PI (Public Prosecutor’s Offices in Lübeck and Zwickau) (C‑508/18 and C‑82/19 PPU, EU:C:2019:337), the referring court is uncertain whether that hierarchical constraint is compatible with the requirements of independence to be fulfilled for classifying a national authority as an issuing judicial authority within the meaning of Article 6(1) of Framework Decision 2002/584.
26That court also argues that the Public Prosecutor’s Office is characterised by its indivisibility, in that an action taken by one prosecutor is one which is performed on behalf of the Public Prosecutor’s Office as a whole. Moreover, while it is supposed to monitor, in any given case, whether the conditions to be met when issuing a European arrest warrant have been complied with and to examine whether such a warrant is proportionate, the Public Prosecutor’s Office is, at the same time, the authority responsible for conducting criminal proceedings in the same case, with the result that its impartiality may be in doubt.
27In those circumstances, the Cour d’appel (Court of Appeal), decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:‘Can the French Public Prosecutor’s Office at the investigating court or trial court, which has jurisdiction in France, under the law of that State, to issue a European arrest warrant, be considered to be an issuing judicial authority, within the autonomous meaning of that term in Article 6(1) of … Framework Decision [2002/584] in circumstances where, deemed to monitor compliance with the conditions necessary for the issue of a European arrest warrant and to examine whether such a warrant is proportionate in relation to the details of the criminal file, it is, at the same time, the authority responsible for the criminal prosecution in the same case?’
Case C‑626/19 PPU
28On 27 March 2019, the public prosecutor at the tribunal de grande instance de Tours (Regional Court, Tours) issued a European arrest warrant in connection with criminal proceedings in respect of YC, suspected of having participated in an armed robbery in France.
29That warrant was issued pursuant to a national arrest warrant issued the same day by the investigating judge of the tribunal de grande instance de Tours (Regional Court, Tours).
30On 5 April 2019, YC was arrested in the Netherlands on the basis of the European arrest warrant.
31On the same day, the Openbaar Ministerie (Public Prosecutor’s Office, Netherlands) lodged an application for consideration of that European arrest warrant before the Rechtbank Amsterdam (District Court, Amsterdam, Netherlands), pursuant to Article 23 of the Overleveringswet (Law on surrender) of 29 April 2004, in the version applicable to the main proceedings.
32The referring court considers that, as is apparent from paragraphs 50, 74 and 75 of the judgment of 27 May 2019, OG and PI (Public Prosecutor’s Offices in Lübeck and Zwickau) (C‑508/18 and C‑82/19 PPU, EU:C:2019:456), a public prosecutor may be regarded as an issuing judicial authority within the meaning of Article 6(1) of Framework Decision 2002/584, if he or she participates in the administration of justice in the issuing Member State, if he acts independently and if his decision to issue a European arrest may be the subject of court proceedings.
33In the present case, that court considers that the first two requirements are fulfilled, in so far as, in France, judges attached to the Public Prosecutor’s Office participate in the administration of justice and are not exposed to any risk of being directly or indirectly subject to orders or instructions in a specific case from the executive.
34On the other hand, as regards the third requirement, that court observes that, as is apparent from the information provided to it by the French authorities, the decision to issue a European arrest warrant and the question whether such a warrant is proportionate are not capable of being the subject of separate court proceedings. However, in practice, an investigating judge, when issuing the national arrest warrant on which the European arrest warrant is based, also examines the conditions under which the European arrest warrant was issued and whether it is proportionate.
35In the light of those considerations, the referring court is uncertain, first, whether a judicial assessment of the proportionality of the prospective issuing a European arrest warrant carried out at the time of issuing the national arrest warrant, and thus prior to the actual decision by the Public Prosecutor’s Office to issue the European arrest warrant, fulfils, in essence, the requirements set out in paragraph 75 of the judgment of 27 May 2019, OG and PI (Public Prosecutor’s Offices in Lübeck and Zwickau) (C‑508/18 and C‑82/19 PPU, EU:C:2019:456), under which the decision of the Public Prosecutor’s Office to issue a European arrest warrant must be capable of being the subject of court proceedings which meets in full the requirements inherent in effective judicial protection.
36Secondly, given that, according to the information provided to the referring court by the French authorities, an application for a declaration that a European arrest warrant is invalid may be brought before a court by the person concerned after his actual surrender to the issuing Member State, the referring court asks whether that possibility fulfils those requirements.
37In those circumstances, the Rechtbank Amsterdam (District Court, Amsterdam) decided to stay proceedings and to refer the following questions to the Court for a preliminary ruling:(1) Can a Public Prosecutor who participates in the administration of justice in the issuing Member State, who acts independently in the execution of those of his responsibilities which are inherent in the issuing of a European arrest warrant, and who has issued such a warrant, be regarded as an issuing judicial authority within the meaning of Article 6(1) of Framework Decision [2002/584] if a judge in the issuing Member State has assessed the conditions for issuing a European arrest warrant and, in particular, the proportionality thereof, prior to the actual decision of that Public Prosecutor to issue that warrant?(2) If the answer to the first question is in the negative: has the condition been met that the decision of the Public Prosecutor to issue a European arrest warrant and, in particular, the question of its proportionality, must be capable of being the subject of court proceedings which meet in full the requirements inherent in effective judicial protection as referred to in paragraph 75 of the judgment of the Court of Justice of 27 May 2019 [OG and PI (Public Prosecutor’s Offices in Lübeck and Zwickau)] (Cases C‑508/18 and C‑82/19 PPU, EU:C:2019:456) if, after his actual surrender, the requested person can avail himself of a legal remedy under which the invalidity of that warrant may be invoked before a court in the issuing Member State and under which that court examines, inter alia, whether the decision to issue the warrant was proportionate?’
38By order of the President of the Court of 17 September 2019, Cases C‑566/19 PPU and C‑626/19 PPU were joined for the purposes of the written and oral procedure and the judgment.
The urgent procedure
39On 17 September 2019, the First Chamber of the Court of Justice, acting on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decided to deal with Cases C‑566/19 PPU and C‑626/19 PPU under the urgent preliminary ruling procedure.
40After pointing out that the two references for a preliminary ruling concerned the interpretation of Framework Decision 2002/584, which falls within the scope of Title V of Part Three of the FEU Treaty concerning the area of freedom, security and justice, and could therefore be dealt with under the urgent preliminary ruling procedure provided for in Article 23a of the Statute of the Court of Justice of the European Union and Article 107 of the Court’s Rules of Procedure, the First Chamber of the Court noted — as regards Case C‑626/19 PPU, which the Rechtbank Amsterdam (District Court, Amsterdam) had requested be dealt with under the urgent procedure — that YC had been deprived of his liberty and that the question whether he could continue to be held in custody depended on the outcome of the dispute in the main proceedings. As regards Case C‑566/19 PPU, the First Chamber of the Court took the view that, although JR had not been deprived of his liberty, the question raised in that case was intrinsically linked to those at issue in Case C‑626/19 PPU, with the result that, in order to fulfil the requirements of the proper administration of justice, it was appropriate for the Court, of its own motion, to deal with that case under the urgent preliminary ruling procedure.
Consideration of the questions referred
41By their questions, which it is appropriate to examine together, the referring courts ask, in essence (i) whether Article 6(1) of Framework Decision 2002/584 must be interpreted as meaning that the concept of ‘issuing judicial authority’, within the meaning of that provision, includes the public prosecutors of a Member State, who are responsible for conducting prosecutions and act under the direction and supervision of their hierarchical superiors, and (ii) whether the requirement to monitor compliance with the conditions to be met when issuing a European arrest warrant for the purpose of criminal proceedings, and in particular the proportionality of such a warrant, as referred to in paragraph 75 of the judgment of 27 May 2019, OG and PI (Public Prosecutor’s Offices in Lübeck and Zwickau) (C‑508/18 and C‑82/19 PPU, EU:C:2019:456), is fulfilled where a court in the issuing Member State monitors compliance with those conditions and examines the proportionality of the decision to issue a European arrest warrant before that decision is adopted and, if not, whether that requirement is fulfilled where the decision is also amenable to judicial review after the actual surrender of the requested person.
Preliminary observations
42It should be recalled at the outset that both the principle of mutual trust between the Member States and the principle of mutual recognition, which is itself based on the mutual trust between the latter, are of fundamental importance in EU law because they allow an area without internal borders to be created and maintained. More specifically, the principle of mutual trust requires, particularly as regards the area of freedom, security and justice, each of those States, save in exceptional circumstances, to consider all the other Member States to be complying with EU law and particularly with the fundamental rights recognised by EU law (judgment of 25 July 2018, Minister for Justice and Equality (Deficiencies of the system of justice), C‑216/18 PPU, EU:C:2018:586, paragraph 36 and the case-law cited).
43It should also be observed that, as stated in recital 6 thereof, Framework Decision 2002/584 is the first concrete measure in the field of criminal law implementing the principle of mutual recognition of judgments and judicial decisions enshrined in Article 82(1) TFEU, which replaced Article 31 EU, on the basis of which that framework decision was adopted. Since then, the field of judicial cooperation in criminal matters has gradually acquired legal instruments whose coordinated application is intended to strengthen the confidence of Member States in their respective national legal orders with a view to ensuring that judgments in criminal matters are recognised and enforced within the European Union in order to ensure that persons who have committed offences do not go unpunished.
44The principle of mutual recognition, which underpins Framework Decision 2002/584, means that, in accordance with Article 1(2) thereof, the Member States are in principle obliged to act upon a European arrest warrant (judgment of 16 November 2010, Mantello, C‑261/09, EU:C:2010:683, paragraph 36 and the case-law cited).
45According to the provisions of Framework Decision 2002/584, the Member States may refuse to execute such a warrant only in the cases of mandatory non-execution provided for in Article 3 thereof and in the cases of optional non-execution listed in Articles 4 and 4a. Furthermore, the executing judicial authority may make the execution of a European arrest warrant subject only to the conditions set out in Article 5 of the framework decision (judgment of 29 January 2013, Radu, C‑396/11, EU:C:2013:39, paragraph 36 and the case-law cited).
46It should also be noted that the effectiveness and proper functioning of the simplified system for the surrender of persons convicted or suspected of having infringed criminal law, established by Framework Decision 2002/584, are based on compliance with certain requirements laid down by that framework decision, the scope of which has been established by the Court’s case-law.
47In the present case, the requirements in respect of which the referring courts seek clarification relate, on the one hand, to the concept of ‘issuing judicial authority’, within the meaning of Article 6(1) of Framework Decision 2002/584, and, on the other hand, to the scope of the effective judicial protection to be afforded to persons subject to a European arrest warrant.
48In that regard, and as the Advocate General also noted in point 70 of his Opinion, the existence of a judicial remedy against the decision taken by an authority other than a court to issue a European arrest warrant is not a condition for classification of that authority as an issuing judicial authority within the meaning of Article 6(1) of Framework Decision 2002/584. That requirement does not fall within the scope of the statutory rules and institutional framework of that authority, but concerns the procedure for issuing such a warrant.
49That interpretation is supported by the judgment of 27 May 2019, PF (Prosecutor General of Lithuania) (C‑509/18, EU:C:2019:457), in which the Court held that the Prosecutor General of a Member State who, whilst institutionally independent of the judiciary, is responsible for the conduct of prosecutions and whose legal position, in that Member State, affords him a guarantee of independence from the executive in connection with the issuing of a European arrest warrant, must be regarded as an issuing judicial authority, within the meaning of Framework Decision 2002/584, and left it to the referring court to verify also whether a decision of that prosecutor may be the subject of court proceedings which meet in full the requirements inherent in effective judicial protection.
The concept of issuing judicial authority
50Article 6(1) of Framework Decision 2002/584 describes the issuing judicial authority as the judicial authority of the issuing Member State which is competent to issue a European arrest warrant by virtue of the law of that State.
51According to the Court’s case-law, although, in accordance with the principle of procedural autonomy, the Member States may designate, in their national law, the ‘judicial authority’ with competence to issue a European arrest warrant, the meaning and scope of that term cannot be left to the assessment of each Member State. That term requires, throughout the European Union, an autonomous and uniform interpretation, which must take into account the wording of Article 6(1) of Framework Decision 2002/584, its legislative scheme and the objective of that framework decision (see, to that effect, judgment of 27 May 2019, OG and PI (Public Prosecutor’s Offices in Lübeck and Zwickau) C‑508/18 and C‑82/19 PPU, EU:C:2019:456, paragraphs 48 and 49 and the case-law cited).
52Thus, the Court has held that the term ‘issuing judicial authority’, within the meaning of Article 6(1) of Framework Decision 2002/584, is capable of including authorities of a Member State which, although not necessarily judges or courts, participate in the administration of criminal justice in that Member State and act independently in the execution of those of their responsibilities which are inherent in the issuing of a European arrest warrant, that independence requiring that there are statutory rules and an institutional framework capable of guaranteeing that the issuing judicial authority is not exposed, when adopting a decision to issue such an arrest warrant, to any risk of being subject, inter alia, to an instruction in a specific case from the executive (see, to that effect, judgment of 27 May 2019, OG and PI (Public Prosecutor’s Offices in Lübeck and Zwickau), C‑508/18 and C‑82/19 PPU, EU:C:2019:456, paragraphs 51 and 74).
53In the present case, it is not disputed that members of the public prosecutor’s office, who in France have the status of judges, participate in the administration of criminal justice.
54As regards the question whether those judges act independently in the execution of those of their responsibilities which are inherent in the issuing of a European arrest warrant, it is apparent from the written and oral observations submitted at the hearing before the Court by the French Government that Article 64 of the Constitution guarantees the independence of the judicial authorities, which comprises judges and public prosecutors, and that, under Article 30 of the CCP, the Public Prosecutor’s Office carries out its duties objectively, free from any instruction in a specific case from the executive, since the Minister for Justice may issue only general instructions concerning criminal justice policy to public prosecutors in order to ensure that that policy is consistently applied throughout the territory. According to that government, under no circumstances can those general instructions have the effect of preventing a public prosecutor from exercising his discretion as to the proportionality of issuing a European arrest warrant. Moreover, in accordance with Article 31 of the CCP, the Public Prosecutor’s Office conducts prosecutions and ensures that the law is applied in accordance with the principle of impartiality.
55The facts outlined above are sufficient to demonstrate that, in France, public prosecutors have the power to assess independently, in particular in relation to the executive, the necessity and proportionality of a decision to issue a European arrest warrant and exercise that power objectively, taking into account all incriminatory and exculpatory evidence.
56While it is true that public prosecutors are required to comply with instructions from their hierarchical superiors, it is clear from the Court’s case-law, in particular the judgments of 27 May 2019, OG and PI (Public Prosecutor’s Offices in Lübeck and Zwickau) (C‑508/18 and C‑82/19 PPU, EU:C:2019:456), and of 27 May 2019, PF (Prosecutor General of Lithuania) (C‑509/18, EU:C:2019:457), that the requirement of independence, which means that the decision-making powers of public prosecutors cannot be subject to instructions from outside the judiciary, in particular those issued by the executive, does not prohibit any internal instructions which may be given to public prosecutors by their hierarchical superiors, who are themselves public prosecutors, on the basis of the hierarchical relationship underpinning the functioning of the Public Prosecutor’s Office.
57Nor is the independence of the Public Prosecutor’s Office called into question by the fact that it is responsible for conducting prosecutions. As the Parquet général du Grand-Duché de Luxembourg (Principal Public Prosecutor’s Office of the Grand Duchy of Luxembourg) pointed out at the hearing before the Court, the term ‘issuing judicial authority’, within the meaning of Article 6(1) of Framework Decision 2002/584, does not refer only to the judges or courts of a Member State. In that regard, the Court has held that that term also applies to the Prosecutor General of a Member State who is responsible for the conduct of criminal proceedings, provided that his legal position affords him a guarantee of independence from the executive in connection with the issuing of a European arrest warrant (see, to that effect, judgment of 27 May 2019, PF (Prosecutor General of Lithuania), C‑509/18, EU:C:2019:457, paragraph 57).
58In the light of all the foregoing considerations, Article 6(1) of Framework Decision 2002/584 must be interpreted as meaning that the public prosecutors of a Member State who are responsible for conducting prosecutions and act under the direction and supervision of their hierarchical superiors are covered by the term ‘issuing judicial authority’, within the meaning of that provision, provided that their status affords them a guarantee of independence, in particular in relation to the executive, in connection with the issuing of a European arrest warrant.
The right to effective judicial protection
59The European arrest warrant system entails a dual level of protection of procedural rights and fundamental rights which must be enjoyed by the requested person, since, in addition to the judicial protection provided at the first level, at which a national decision, such as a national arrest warrant, is adopted, there is the protection that must be afforded at the second level, at which a European arrest warrant is issued, which may occur, depending on the circumstances, shortly after the adoption of the national judicial decision (judgment of 27 May 2019, OG and PI (Public Prosecutor’s Offices in Lübeck and Zwickau), C‑508/18 and C‑82/19 PPU, EU:C:2019:456, paragraph 67 and the case-law cited).
60Thus, as regards a measure, such as the issuing of a European arrest warrant, which is capable of impinging on the right to liberty of the person concerned, that protection means that a decision meeting the requirements inherent in effective judicial protection should be adopted, at least, at one of the two levels of that protection (judgment of 27 May 2019, OG and PI (Public Prosecutor’s Offices in Lübeck and Zwickau), C‑508/18 and C‑82/19 PPU, EU:C:2019:456, paragraph 68).
61In particular, the second level of protection of the rights of the person concerned requires that the issuing judicial authority review observance of the conditions to be met when issuing a European arrest warrant and examine objectively — taking into account all incriminatory and exculpatory evidence, without being exposed to the risk of being subject to external instructions, in particular from the executive — whether it is proportionate to issue that warrant (see, to that effect, judgment of 27 May 2019, OG and PI (Public Prosecutor’s Offices in Lübeck and Zwickau), C‑508/18 and C‑82/19 PPU, EU:C:2019:456, paragraphs 71 and 73).
62Furthermore, where the law of the issuing Member State confers competence to issue a European arrest warrant on an authority which, whilst participating in the administration of justice in that Member State, is not itself a court, the decision to issue such an arrest warrant and, inter alia, the proportionality of such a decision must be capable of being the subject, in the Member State, of court proceedings which meet in full the requirements inherent in effective judicial protection (judgment of 27 May 2019, OG and PI (Public Prosecutor’s Offices in Lübeck and Zwickau), C‑508/18 and C‑82/19 PPU, EU:C:2019:456, paragraph 75).
63Such proceedings against a decision to issue a European arrest warrant taken by an authority which, whilst participating in the administration of justice and having the necessary independence from the executive, does not constitute a court serve to ensure that the monitoring of compliance with the conditions to be met when issuing a European arrest warrant in connection with criminal proceedings and, in particular, the proportionality of such a warrant is carried out in a procedure which complies with the requirements inherent in effective judicial protection.
64Accordingly, it is for the Member States to ensure that their legal orders effectively safeguard the level of judicial protection required by Framework Decision 2002/584, as interpreted by the Court’s case-law, by means of the procedural rules which they implement and which may vary from one system to another.
65In particular, introducing a separate right of appeal against the decision to issue a European arrest warrant taken by a judicial authority other than a court is just one possibility in that regard.
66Framework Decision 2002/584 does not prevent a Member State from applying its procedural rules with respect to the issuing of a European arrest warrant provided that the objective of that framework decision and the requirements deriving from it are not frustrated (see, to that effect, judgment of 30 May 2013, F, C‑168/13 PPU, EU:C:2013:358, paragraph 53).
67In the present case, as is apparent from the documents before the Court, the issuing of a European arrest warrant in connection with criminal proceedings is, in the French legal system, necessarily based on a national arrest warrant issued by a court, usually by an investigating judge. According to Article 131 of the CCP, if the requested person has absconded or lives outside French territory, the investigating judge, after consulting the public prosecutor, may issue an arrest warrant against that person if the alleged offence carries a penalty of imprisonment or a more serious penalty.
68It follows from the order for reference in Case C‑626/19 PPU that, when a European arrest warrant is issued by the Public Prosecutor’s in connection with criminal proceedings, the court which issued the national arrest warrant on the basis of which the European arrest warrant was issued at the same time requests the Public Prosecutor’s Office to issue a European arrest warrant and carries out an assessment of the conditions to be met when issuing such a European arrest warrant and, in particular, whether it is proportionate.
69Moreover, according to the French Government, in the French legal system, the decision to issue a European arrest warrant may, as a procedural step, be the subject of an action for a declaration of invalidity on the basis of Article 170 of the CCP. Such an action, which is available as long as the criminal investigation is ongoing, enables the parties to the proceedings to enforce their rights. If the European arrest warrant is issued in respect of a person who is not yet a party to the proceedings, that person may bring an action for a declaration of invalidity after his actual surrender and appearance before the investigating judge.
70The inclusion of such procedural rules in the French legal system thus demonstrates that the proportionality of the decision of the Public Prosecutor’s Office to issue a European arrest warrant may be subject to judicial review before or almost at the same time as it is issued and, in any event, after the European arrest warrant has been issued, since such scrutiny may take place, depending on the circumstances, before or after the actual surrender of the requested person.
71Such a system therefore meets the requirement of effective judicial protection.
72In addition, as noted in paragraph 43 above, Framework Decision 2002/584 forms part of a comprehensive system of safeguards relating to effective judicial protection provided for by other EU rules, adopted in the field of judicial cooperation in criminal matters, which contribute to helping a person requested on the basis of a European arrest warrant to exercise his rights, even before his surrender to the issuing Member State.
73In particular, Article 10 of Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty (OJ 2013 L 294, p. 1) requires the competent authority of the executing Member State to inform the persons whose surrender is sought without undue delay after they have been deprived of their liberty that they have the right to appoint a lawyer in the issuing Member State.
74In the light of those considerations, the answer the questions referred is that Article 6(1) of Framework Decision 2002/584 must be interpreted as meaning that the public prosecutors of a Member State who are responsible for conducting prosecutions and act under the direction and supervision of their hierarchical superiors are covered by the term ‘issuing judicial authority’, within the meaning of that provision, provided that their status affords them a guarantee of independence, in particular in relation to the executive, in connection with the issuing of a European arrest warrant. Framework Decision 2002/584 must be interpreted as meaning that the requirements inherent in effective judicial protection which must be afforded any person in respect of whom a European arrest warrant is issued in connection with criminal proceedings are fulfilled if, according to the law of the issuing Member State, the conditions for issuing such a warrant, and in particular its proportionality, are subject to judicial review in that Member State.
Costs
75Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
Operative part
On those grounds, the Court (First Chamber) hereby rules: Article 6(1) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009, must be interpreted as meaning that the public prosecutors of a Member State, who are responsible for conducting prosecutions and act under the direction and supervision of their hierarchical superiors are covered by the term ‘issuing judicial authority’, within the meaning of that provision, provided that their status affords them a guarantee of independence, in particular in relation to the executive, in connection with the issuing of a European arrest warrant.Council Framework Decision 2002/584, as amended by Framework Decision 2009/299, must be interpreted as meaning that the requirements inherent in effective judicial protection which must be afforded any person in respect of whom a European arrest warrant is issued in connection with criminal proceedings are fulfilled if, according to the law of the issuing Member State, the conditions for issuing such a warrant, and in particular its proportionality, are subject to judicial review in that Member State.
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