29 April 2021 (*1)

(Reference for a preliminary ruling – Urgent preliminary ruling procedure – Judicial cooperation in criminal matters – Framework Decision 2002/584/JHA – European arrest warrant – Grounds for optional non-execution – Article 4(5) – Requested person has been finally judged in a third State in respect of the same acts – Sentence has been served or may no longer be executed under the law of the sentencing country – Implementation – Margin of discretion of the executing judicial authority – Concept of ‘same acts’ – Remission of sentence granted by a non-judicial authority as part of a general leniency measure)

In Case C‑665/20 PPU,

REQUEST for a preliminary ruling under Article 267 TFEU from the rechtbank Amsterdam (District Court, Amsterdam, Netherlands), made by decision of 7 December 2020, received at the Court on 7 December 2020, in the proceedings concerning the execution of a European arrest warrant issued against

THE COURT (Fifth Chamber),

composed of E. Regan, President of the Chamber, K. Lenaerts, President of the Court, acting as Judge of the Fifth Chamber, M. Ilešič (Rapporteur), C. Lycourgos and I. Jarukaitis, Judges,

Advocate General: G. Hogan,

Registrar: M. Ferreira, Principal Administrator,

having regard to the written procedure and further to the hearing on 3 March 2021,

after considering the observations submitted on behalf of:

–X, by D.W.H.M. Wolters and S.W. Kuijpers, advocaten,

–the Openbaar Ministerie, by N. Bakkenes and K. van der Schaft,

–the Netherlands Government, by M.K. Bulterman and J. Langer, acting as Agents,

–the German Government, by J Möller, M. Hellmann and F. Halabi, acting as Agents,

–the European Commission, by M. Wasmeier and F. Wilman, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 15 April 2021,

gives the following

This request for a preliminary ruling concerns the interpretation of Article 4(5) 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) (‘the Framework Decision’).

The request has been made in the context of the execution, in the Netherlands, of a European arrest warrant issued on 19 September 2019 by the Amtsgericht Tiergarten (Local Court, Tiergarten, Germany) for the purposes of criminal proceedings brought against X.

Legal framework

EU law

The CISA

Article 54 of the Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders, which was signed at Schengen (Luxembourg) on 19 June 1990 and entered into force on 26 March 1995 (OJ 2000 L 239, p. 19) (‘the CISA’), contained in Chapter 3, entitled ‘Application of the ne bis in idem principle’, of Title III of that convention, provides:

‘A person whose trial has been finally disposed of in one [c]ontracting [p]arty may not be prosecuted in another [c]ontracting [p]arty for the same acts provided that, if a penalty has been imposed, it has been enforced, is actually in the process of being enforced or can no longer be enforced under the laws of the sentencing [c]ontracting [p]arty.’

The Framework Decision

Recitals 5, 6, 10 and 12 of the Framework Decision state:

(5)‘(5)

The objective set for the [European] 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. …

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.

…

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) [TEU], determined by the Council pursuant to Article 7(1) of the said Treaty with the consequences set out in Article 7(2) thereof.

…

This Framework Decision respects fundamental rights and observes the principles recognised by Article 6 [TEU] and reflected in the Charter of Fundamental Rights of the European Union, in particular Chapter VI thereof. …’

In accordance with Article 1 of that Framework Decision, entitled ‘Definition of the European arrest warrant and obligation to execute it’:

‘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.

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 [TEU].’

Article 3 of the Framework Decision, entitled ‘Grounds for mandatory non-execution of the European arrest warrant’, provides:

‘The judicial authority of the Member State of execution (hereinafter “executing judicial authority”) shall refuse to execute the European arrest warrant in the following cases:

if the offence on which the arrest warrant is based is covered by amnesty in the executing Member State, where that State had jurisdiction to prosecute the offence under its own criminal law;

if the executing judicial authority is informed that the requested person has been finally judged by a Member State in respect of the same acts provided that, where there has been sentence, the sentence has been served or is currently being served or may no longer be executed under the law of the sentencing Member State;

if the person who is the subject of the European arrest warrant may not, owing to his age, be held criminally responsible for the acts on which the arrest warrant is based under the law of the executing State.’

Article 4 of that Framework Decision, entitled ‘Grounds for mandatory non-execution of the European arrest warrant’, provides:

‘The executing judicial authority may refuse to execute the European arrest warrant:

…

if the executing judicial authority is informed that the requested person has been finally judged by a third State in respect of the same acts provided that, where there has been sentence, the sentence has been served or is currently being served or may no longer be executed under the law of the sentencing country;

…’

Netherlands law

The Framework Decision was transposed into Netherlands law by the Wet tot implementatie van het kaderbesluit van de Raad van de Europese Unie betreffende het Europees aanhoudingsbevel en de procedures van overlevering tussen de lidstaten van de Europese Unie (Law implementing the Framework Decision of the Council of the European Union on the European arrest warrant and the surrender procedures between the Member States of the European Union) of 29 April 2004 (Stb. 2004, No 195), as last amended by the Law of 22 February 2017 (Stb. 2017, No 82) (‘the OLW’).

Article 9(1)(d) and (e) of the OLW, which transposes Article 3(2) and Article 4(5) of the Framework Decision, states: