Provisional text

delivered on 12 December 2024 (1)

Case C‑305/22

Criminal proceedings

(Request for a preliminary ruling from the Curtea de Apel Bucureşti (Court of Appeal, Bucharest, Romania))

( Reference for a preliminary ruling – Area of freedom, security and justice – Judicial cooperation in criminal matters – Framework Decision 2002/584/JHA – European arrest warrant for the purposes of enforcing a custodial sentence – Ground of optional non-execution of the European arrest warrant – Undertaking on the part of the executing Member State to enforce the custodial sentence imposed on the requested person – Framework Decision 2008/909/JHA – Mutual recognition of judgments in criminal matters for the purpose of their enforcement in another Member State – Lack of consent of the issuing Member State – Right of the issuing Member State to enforce the sentence itself – Maintenance of the European arrest warrant – Obligation of the executing judicial authority to execute the European arrest warrant )

and

Case C‑595/23 [Cuprea] (i)

EDS

Criminal proceedings

other party:

Procura generale presso la Corte d’appello di Napoli

(Request for a preliminary ruling from the Corte d’appello di Napoli (Court of Appeal, Naples, Italy))

(Reference for a preliminary ruling – Area of freedom, security and justice – Judicial cooperation in criminal matters – European arrest warrant – Framework Decision 2002/584/JHA – European arrest warrant for the purposes of enforcing a custodial sentence – Refusal to surrender – Article 4(6) – Ground for optional non-execution – Framework Decision 2008/909/JHA – Mutual recognition of judgments in criminal matters – Article 8, Article 22(1) and Article 25 – Enforcement of a sentence following a European arrest warrant – Possible obligation of the issuing Member State to withdraw that warrant – Regulation (EU) 2018/1862 – Schengen Information System (SIS) – Article 26(1), Article 27(1), Article 53(1), Article 55(1) and Article 59(1) and (3) – Possible obligation of the issuing Member State to delete the alert entered in the SIS relating to the requested person)

1.In view of the connection between Case C‑305/22 and Case C‑595/23, I consider it relevant to deliver a joint Opinion on them. That has, in my view, the merit of highlighting the problems which are likely to arise from the manner in which the Italian judicial authorities propose to implement the ground for optional non-execution stated in Article 4(6) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States. (2)

2.Case C‑595/23 is a perfect illustration of the disruption that can result from the executing judicial authority’s disregard, in implementing the ground of optional non-execution, of the rules laid down in Council Framework Decision 2008/909/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union. (3)

3.The request for a preliminary ruling in Case C‑305/22 concerns the interpretation of Article 4(5) and (6) and Article 8(1)(c) of Framework Decision 2002/584 and of Article 4(2), Article 22(1) and Article 25 of Framework Decision 2008/909.

4.That request was made in the context of national proceedings in which the Curtea de Apel Bucureşti (Court of Appeal, Bucharest, Romania) must rule on the validity of a national warrant for enforcement of a custodial sentence imposed on C.J., who lives in Italy, and on the validity of a European arrest warrant issued in respect of him. The Italian judicial authorities refused to execute the European arrest warrant on the basis of the ground of optional non-execution laid down in Article 4(6) of Framework Decision 2002/584. (4) At the same time, those authorities adopted a decision to recognise the judgment and enforce the custodial sentence imposed on C.J. in spite of the Romanian authorities’ opposition to the enforcement of the sentence in Italy.

5.On 23 January 2024, the Court decided to refer Case C‑305/22 to the First Chamber. A hearing took place on 13 March 2024 and I delivered my Opinion on 13 June 2024, (5) which, in keeping with the Court’s request, was focused on the first, second and third questions referred for a preliminary ruling by the Curtea de Apel Bucureşti (Court of Appeal, Bucharest).

6.In that Opinion, I proposed that the Court’s answer to the referring court should be that Article 4(6) and Article 8(1)(c) of Framework Decision 2002/584 and Article 4(2) and (5), Article 8(1), Article 22(1) and Article 25 of Framework Decision 2008/909 must be interpreted as meaning that a judicial authority cannot refuse to execute a European arrest warrant issued for the purposes of enforcing a custodial sentence by relying on the ground for optional non-execution provided for in the first of those provisions, where the convicting judgment is recognised and enforced contrary to the procedure and the conditions laid down in Framework Decision 2008/909. In such circumstances, the issuing Member State retains the right to execute that sentence and it falls to the executing judicial authority to execute the European arrest warrant by surrendering the requested person to that Member State.

7.At the request of the First Chamber, submitted pursuant to Article 60(3) of the Rules of Procedure of the Court of Justice, the Court decided, on 9 July 2024, to refer Case C‑305/22 to the Grand Chamber and to provide for the delivery of an Opinion focused on the first, second and third questions referred.

8.Accordingly, pursuant to Article 83 of the Rules of Procedure, the Court decided, by order of 13 September 2024, C.J. (Enforcement of a sentence further to an EAW), (6) to order the reopening of the oral part of the procedure and to hold a new hearing. The interested persons referred to in Article 23 of the Statute of the Court of Justice of the European Union were invited, at that hearing, to express their views, if any, on the questions set out in the annex to that order.

9.The Romanian, Czech, French and Netherlands Governments and the European Commission took part in the hearing, which was held on 14 October 2024.

10.During that hearing, the positions expressed by the participants at the hearing of 13 March 2024 were restated on the basis of essentially the same arguments.

11.Therefore, the Court is still faced with two radically opposing views. Whereas the Netherlands Government maintains that the ground of optional non-execution set out in Article 4(6) of Framework Decision 2002/584 can be implemented outside the framework set by Framework Decision 2008/909, the other participants in the present proceedings take the opposite stance. They include the Czech Government, which differs from the Romanian and French Governments, and from the Commission, in that, unlike them, it appears to consider that the implementation of the ground of optional non-execution does not require the consent of the sentencing Member State, whilst accepting that the judgment must be recognised and the sentence enforced in accordance with the provisions of Framework Decision 2008/909.

12.For my part, upon hearing again the positions expressed by the participants in the present proceedings, I still consider that the analysis which I have set out in my Opinion of 13 June 2024 is the only one which makes it possible to achieve, first, the objective of combating impunity pursued by Framework Decision 2002/584 and, second, the objective of facilitating the social rehabilitation of the sentenced person, which is pursued both by Article 4(6) of that framework decision and by Framework Decision 2008/909. In particular, Article 25 of Framework Decision 2008/909 should not, in my view, be interpreted in a manner prejudicial to the objective of preventing the impunity of the person concerned, which implies actual enforcement of the sentence, as regards both its length and its nature. (7) Moreover, it should be noted that that objective is expressly referred to in the final part of that article.

13.I therefore refer the Court to my previous Opinion, which I confirm and reiterate in its entirety.

14.The request for a preliminary ruling in Case C‑595/23 concerns the interpretation of Article 4(6) of Framework Decision 2002/584, Article 22(1) and Article 25 of Framework Decision 2008/909 and recital 46 and Articles 24, 25 and 26 and Article 55(1) of Regulation (EU) 2018/1862 of the European Parliament and of the Council of 28 November 2018 on the establishment, operation and use of the Schengen Information System (SIS) in the field of police cooperation and judicial cooperation in criminal matters, amending and repealing Council Decision 2007/533/JHA, and repealing Regulation (EC) No 1986/2006 of the European Parliament and of the Council and Commission Decision 2010/261/EU, (8) as amended by Regulation (EU) 2022/1190 of the European Parliament and of the Council of 6 July 2022. (9)

15.The request has been made in proceedings relating to the execution, in Italy, of a European arrest warrant issued by the Romanian authorities in respect of EDS for the purposes of enforcing a custodial sentence.

16.The background to the present case is the same as that in Case C‑305/22, namely the divergence in the approaches of the Romanian and Italian authorities regarding the conditions to be complied with when implementing the ground of optional non-execution referred to in Article 4(6) of Framework Decision 2002/584.

17.That divergence in approach is the cause of the problem which lies at the heart of the present case, namely the decision of the competent authority to delete, in the SIS, an alert (10) relating to the person who is the subject of a European arrest warrant which the executing judicial authority refuses to execute pursuant to that provision but contrary to the procedure and the conditions laid down in Framework Decision 2008/909.

II. The facts of the main proceedings and the questions referred for a preliminary ruling in Case C‑595/23

18.On 10 July 2017, EDS was sentenced in Romania to a term of imprisonment of five years and six months.

19.On 8 February 2019, the Curtea de Apel București (Court of Appeal, Bucharest) issued a European arrest warrant in respect of EDS for the purposes of executing that judgment. Romania simultaneously entered an alert in the SIS for EDS’s arrest with a view to his surrender to Romania on the basis of that European arrest warrant.

20.EDS was arrested in Italy on 13 January 2020.

21.By judgment of 15 September 2020, the referring court, namely the Corte d’appello di Napoli (Court of Appeal, Naples, Italy), first, refused to surrender EDS for the purposes of execution of the sentence imposed in Romania by relying on the ground of non-execution provided for in Article 4(6) of Framework Decision 2002/584. Second, that court recognised the judgment of 10 July 2017 delivered by the Romanian judicial authority on which the European arrest warrant is based and ordered the enforcement of the sentence in Italy, in accordance with its domestic law. (11) The enforcement of the sentence began on 15 July 2022. (12)

22.It is apparent from the written observations of the Romanian Government that, on 20 September 2022, at the requested person’s request, the Corte d’appello di Napoli (Court of Appeal, Naples) asked the Romanian authorities whether, in accordance with the case-law of the Curtea Constituțională (Constitutional Court, Romania) (13) on the limitation period for criminal liability, the limitation period for execution of the sentence was deemed to have elapsed. On 29 September 2022, the Romanian authorities stated that no final judicial decision establishing that the limitation period for criminal liability had elapsed had been made.

23.On 11 October 2022, the referring court declared that the enforcement of the sentence had ceased and revoked recognition of the Romanian criminal conviction on the ground that it was no longer enforceable, relying on judgments No 297/2018 and No 358/2022 of the Curtea Constituțională (Constitutional Court).

24.On 24 August 2022, the Ministero della Giustizia (Ministry of Justice, Italy) requested that the Romanian authorities delete the SIS alert. The Romanian authorities replied, on 30 August 2022, that the European arrest warrant had not been withdrawn because a question had been referred to the Court for a preliminary ruling and the proceedings had therefore been suspended.

25.By judgment of 2 February 2023, the Curtea de Apel București (Court of Appeal, Bucharest) withdrew the request which it had referred to the Court in AR (C‑179/22) and rejected EDS’s application for withdrawal of the European arrest warrant concerning him and deletion of the alert from the SIS.

26.

Consequently, the Italian Ministry of Justice made two further requests to the Curtea de Apel București (Court of Appeal, Bucharest) and to the Ministerului Justiţiei (Ministry of Justice, Romania), dated 9 March 2023 and 9 May 2023 respectively, for the Romanian authorities to withdraw the European arrest warrant and delete the alert from the SIS.

By judgment of 11 March 2023, the Înalta Curte de Casaţie şi Justiţie (High Court of Cassation and Justice, Romania) dismissed EDS’s appeal against the judgment of 2 February 2023 of the Curtea de Apel București (Court of Appeal, Bucharest), ruling that, in so far as the Romanian criminal conviction for enforcement had been recognised in Italy, any question relating to such enforcement was subject to the exclusive jurisdiction of the Italian enforcement court, being the court of the Member State in which the recognised judgment was to be enforced.

In those circumstances, EDS brought the matter before the referring court, pointing out that he has exhausted all legal remedies provided for by Romanian law and that that state of affairs amounts to an unlawful limitation of his personal liberty and his right to free movement, since, until the alert is deleted from the SIS, he cannot enter the territory of another Member State without incurring a real risk of being arrested.

In that regard, EDS states that, in August 2021, after surrender had been refused in a judgment delivered by the Corte d’appello di Napoli (Court of Appeal, Naples), and before the enforcement of the sentence began, he had gone on holiday to Greece and had been arrested by police on the island of Mykonos, under the European arrest warrant issued by the Curtea de Apel București (Court of Appeal, Bucharest) on 8 February 2019.

EDS therefore requests the referring court to order the deletion of the alert from the SIS and the withdrawal of the European arrest warrant issued against him.

In order to rule on that request, the referring court outlines the situation of Italian law in that regard.

Thus, it follows from Article 18<i>bis</i>, entitled ‘Grounds for optional refusal of surrender’, of legge n. 69 – Disposizioni per conformare il diritto interno alla decisione quadro 2002/584/GAI del Consiglio, del 13 giugno 2002, relativa al mandato d’arresto europeo e alle procedure di consegna tra Stati membri (Law No 69 laying down provisions to bring national law into line with [Framework Decision 2002/584]), (14) of 22 April 2005, in the version applicable to the dispute in the main proceedings, that, if the European arrest warrant has been issued for the purposes of execution of a custodial sentence or detention order, the Corte d’appello (Court of Appeal) can refuse surrender where the requested person is an Italian national or a national of another Member State who is legally and actually resident or staying in Italy, on the condition that the court order that sentence or detention to be executed in Italy in accordance with its domestic law.

Article 16 of decreto legislativo n. 161 – Disposizioni per conformare il diritto interno alla Decisione quadro 2008/909/GAI relativa all’applicazione del principio del reciproco riconoscimento alle sentenze penali che irrogano pene detentive o misure privative della libertà personale, ai fini della loro esecuzione nell’Unione europea (Legislative Decree No 161/2010 laying down provisions to bring national law into line with [Framework Decision 2008/909]), (15) of 7 September 2010, provides that, where a foreign judgment is recognised, the sentence is to be enforced in accordance with Italian law, including the rules on pardon or clemency decisions.

It is also apparent from Article 24 of that legislative decree that, in the event that the Corte d’appello (Court of Appeal) refuses the surrender requested with a European arrest warrant based on a criminal conviction and orders the enforcement of the sentence in Italy, it must simultaneously recognise the enforcement in Italy of the criminal conviction on which the European arrest warrant is based, where the relevant requirements are satisfied.

The referring court states that, since EDS satisfied the requirements, the recognised sentence (a term of imprisonment of five years and six months) was declared extinguished, the term having been reduced to three years’ imprisonment as a result of the pardon recognised by legge n. 241 – Concessione di indulto (Law No 241 on granting pardon), (16) of 31 July 2006.

That court considers that, by virtue of the refusal to surrender EDS to the Romanian authorities, the recognition for enforcement in Italy of the criminal conviction and the start of the enforcement of the sentence recognised in Italy, EDS is entitled to the withdrawal of the European arrest warrant issued against him and to the deletion of the corresponding alert entered in the SIS.

That court notes, however, that Italian law does not grant the Italian court, as the court of the executing Member State, the power to order the withdrawal of a European arrest warrant issued by another Member State or to delete an alert entered in the SIS by the issuing Member State. It follows that, on the basis of Italian law alone, EDS’s application could not be granted.

Therefore, according to the referring court, it must be ascertained whether, under EU law, a court of the executing Member State can be recognised as having the power to order the withdrawal of the European arrest warrant issued by another Member State and the deletion of the alert entered in the SIS by the issuing Member State.

In that regard, the referring court cites Article 55(1) of the SIS Regulation, which provides that ‘alerts for arrest for surrender or extradition purposes pursuant to Article 26 shall be deleted when the person has been surrendered or extradited to the competent authorities of the issuing Member State. They shall also be deleted when the judicial decision on which the alert was based has been revoked by the competent judicial authority in accordance with national law. They shall also be deleted upon the expiry of the alert in accordance with Article 53.’

The referring court points out that that provision does not provide for the deletion of the alert entered in the SIS in the event that surrender has been refused under Article 4(6) of Framework Decision 2002/584 and enforcement of the sentence in the executing State has been ordered in accordance with its domestic law, subject to recognition of the criminal conviction in accordance with Article 25 of Framework Decision 2008/909. However, in such a situation, it should be considered that, as with the situation in which the requested person has been surrendered, the European arrest warrant has exhausted its effects, and therefore the person concerned should no longer be sought or arrested in connection with that warrant. Recital 46 of the SIS Regulation also supports the argument in favour of deletion of the alert, since it states that ‘an alert should be kept only for the time required to achieve the purpose for which it was entered’.

According to the referring court, that regulation therefore contains an omission which must be rectified by the Court through interpretation so as to extend to the situation in which the ground of optional non-execution provided for in Article 4(6) of Framework Decision 2002/584 is implemented that in which the alert must be deleted because the requested person has been surrendered.

Consequently, the referring court considers that, where the issuing Member State that entered the alert in the SIS under Article 26 of the SIS Regulation does not delete that alert pursuant to Article 55(1) of that regulation, as interpreted, the executing Member State may request the deletion from the SIRENE Bureau (17) of the issuing Member State. In that regard, the referring court refers to Articles 24 and 25 of that regulation, which provide for the possibility for a Member State to require the issuing Member State to add a flag to the alert. (18)

In those circumstances, the Corte d’appello di Napoli (Court of Appeal, Naples) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘[Must] the combined provisions of the following articles:

–Article 4(6) of [Framework Decision 2002/584];

–Articles 22(1) and 25 of [Framework Decision 2008/909];

–Articles 24, 25, 26 and 55(1) of [the SIS Regulation], [and]

–recital 46 of [the SIS Regulation],

… be interpreted as meaning that:

(a)when the executing State has refused surrender of the person, requested by the issuing State by means of a European arrest warrant issued for the enforcement of a criminal conviction, recognised the judgment and ordered enforcement of the sentence on its territory in accordance with its domestic law, and the enforcement has begun, the issuing State is obliged to delete the alert entered in the SIS and to discharge the European arrest warrant;

(b)until the issuing State has proceeded with the discharge [of the European arrest warrant] and the deletion, the judicial authority of the executing State has the power to request the SIRENE Bureau of the issuing State to delete the alert from the SIS, and that SIRENE Bureau is obliged to comply with that request[?]’

The referring court requested the initiation of the urgent preliminary ruling procedure provided for in Article 107 of the Rules of Procedure. By decision of 9 October 2023, the Court decided to reject that request.

By a separate application lodged at the Registry of the Court of Justice on 18 October 2023, the referring court also requested that the present case be dealt with under the expedited procedure laid down in Article 105 of the Rules of Procedure, which was rejected by decision of the President of the Court on 5 December 2023. (19)

By decision of the President of the Court of 24 April 2024, a request for information was sent to the referring court seeking to establish whether an alert in respect of EDS was, in spite of the time elapsed, entered in the SIS and, if that question was answered in the negative, whether that court wished to maintain its request for a preliminary ruling.

Following the reply given to that request for information by that court of 3 May 2024, proceedings before the Court of Justice were resumed.

On 17 June 2024, the proceedings in the present case were stayed under Article 55(1)(b) of the Rules of Procedure, pending the final decision in Case C‑305/22.

Following the decision of the First Chamber to request the Court to refer Case C‑305/22 to the Grand Chamber, pursuant to Article 60(3) of the Rules of Procedure, and to reopen the oral part of the procedure, in accordance with Article 83 thereof, it was decided on 18 July 2024 to end the stay of proceedings and to resume the proceedings in the present case.

EDS, the Italian and Romanian Governments and the Commission submitted written observations and participated in the hearing held on 14 October 2024, during which they responded to questions put to them by the Court for oral answer.

III. Analysis

In its request for a preliminary ruling in Case C‑595/23, the referring court has referred to the Court two questions.

First, that court asks, in essence, whether, when a judicial authority of a Member State has refused to execute, pursuant to Article 4(6) of Framework Decision 2002/584, a European arrest warrant issued for the purposes of enforcing a custodial sentence, has recognised the judgment which imposed that sentence, and the enforcement of that sentence has begun in that Member State, the issuing Member State is obliged to delete the alert entered in the SIS and to discharge that European arrest warrant.

Second, that court asks whether, until the issuing Member State has discharged the European arrest warrant and deleted the alert, the executing Member State has the power to request that Member State to delete the alert entered in the SIS, and whether that Member State is obliged to comply with that request.

In the first place, the Commission states that, in so far as the present case concerns a European arrest warrant and an alert issued by the Romanian authorities, the first question referred for a preliminary ruling relates to an obligation which is to be fulfilled, where necessary, by those authorities, since the Italian court has no jurisdiction in that regard. That question is therefore abstract and hypothetical in a case pending before an Italian court and can be taken into consideration only in relation to the second question asked by the referring court.

In my view, the fact that the first question concerns the issuing Member State’s possible obligation to delete the SIS alert in a situation such as that at issue in the main proceedings does not make it possible to infer that it is hypothetical. Since EDS has not obtained from the Romanian judicial authorities the deletion of the alert relating to him, he has brought the matter before the referring court which rightly asks the Court whether such an obligation exists, in order to determine the scope of its jurisdiction in the matter, and therefore the first question cannot, in my view, be considered to be inadmissible. That said, I think it useful to examine the two questions asked by the referring court together, in so far as they seek to determine the respective obligations and competences of the competent authorities of the issuing Member State and those of the executing Member State regarding the deletion of an alert following a refusal to execute a European arrest warrant pursuant to Article 4(6) of Framework Decision 2002/584.

In the second place, I note that the European arrest warrant was issued in respect of EDS on 8 February 2019 and that the alert entered in the SIS under Article 26(1) of the SIS Regulation was registered on 11 February 2019.

However, according to Article 53(2) of that regulation, an alert such as that at issue in the main proceedings is valid, unless extended, for a period of five years and the need to retain the alert must be reviewed within that five-year period. According to Article 53(7) of the SIS Regulation, an alert must be deleted automatically after the review period referred to in paragraphs 2, 3 and 4 of that article has expired, except where the alert has been extended pursuant to paragraph 6 of that article.

The referring court was asked whether the alert against EDS was still active or whether it had been automatically deleted in February 2024, with the result that the request for a preliminary ruling has become devoid of purpose. That court was also asked whether, in the event that the alert entered in the SIS against EDS was no longer active, it wished to maintain its request for a preliminary ruling.

In its letter of 3 May 2024, the referring court confirmed its wish to maintain its request for a preliminary ruling. Following the request for information sent by the Court, the referring court had asked the SIRENE Bureau in Italy to ascertain whether the alert of 11 February 2019 was still included in the SIS, whether it was still valid, whether it had been extended and whether other alerts relating to the same European arrest warrant had been entered by the SIRENE Bureau in Romania.

By its note of 2 May 2024, the SIRENE Bureau in Italy replied to that court that ‘the alert in question is still entered in the SIS II database. A flag has been added to the alert following the arrest of the requested person’.

In those circumstances, as stated by the referring court, it is necessary to proceed on the basis of the premiss that the alert in respect of EDS is still active. That was confirmed by the Romanian Government at the hearing, which stated that the alert had been extended.

In the light of those considerations, I consider that the reference for a preliminary ruling is admissible.

The SIS is the mechanism by which the national authorities send each other information for the purpose of police and judicial cooperation in criminal matters. Under Article 1 of the SIS Regulation, ‘the purpose of SIS shall be to ensure a high level of security within the area of freedom, security and justice of the Union including the maintenance of public security and public policy and the safeguarding of security in the territories of the Member States, and to ensure the application of the provisions of Chapter 4 and Chapter 5 of Title V of Part Three TFEU relating to the movement of persons on their territories, using information communicated through this system’.

According to Article 4(1) of the SIS Regulation, the SIS is composed, inter alia, of a central system and a national system – in each of the Member States – which communicate with each other. It follows from Article 4(2) of that regulation that Member States must enter, update and delete SIS data and search SIS data through their own national system.

The entire information exchange mechanism is based on alerts on persons and objects.

The central role of the Member State entering an alert in the SIS, which is the ‘issuing Member State’ within the meaning of point 9 of Article 3 of the SIS Regulation, must be emphasised.

Under Article 26(1) of that regulation, ‘alerts on persons wanted for arrest for surrender purposes on the basis of a European Arrest Warrant, or alerts on persons wanted for arrest for extradition purposes, shall be entered at the request of the judicial authority of the issuing Member State’. Moreover, Article 27(1) of that regulation provides that, ‘where a person is wanted for arrest for surrender purposes on the basis of a European Arrest Warrant, the issuing Member State shall enter into SIS a copy of the original of the European Arrest Warrant’.

Under Article 59(1) of the SIS Regulation, ‘an issuing Member State shall be responsible for ensuring that the data are accurate, up-to-date, and entered and stored in SIS lawfully’.

Moreover, Article 59(3) of that regulation states that ‘only the issuing Member State is authorised to modify, add to, correct, update or delete data which it has entered into SIS’.

It follows from those provisions that the issuing Member State has sole responsibility for maintaining or deleting an alert. Although the executing Member State may request the SIRENE Bureau of the issuing Member State to delete the alert and although the persons concerned may bring an action before the competent authorities of that Member State under Article 67(1) and Article 68(1) of the SIS Regulation, the fact remains that it is for the issuing Member State to make the final decision in that regard after examining the circumstances specific to each individual case. It should also be stated that the issuing Member State’s exclusive responsibility for maintaining or deleting an alert is consistent with the exclusive responsibility of the issuing judicial authority of that same Member State for maintaining or discharging a European arrest warrant which may form the basis for such an alert.

As to the situations in which the issuing Member State may need to delete the alert which it entered in the SIS, I note that, under Article 53(1) of the SIS Regulation, ‘alerts on persons shall be kept only for the time required to achieve the purposes for which they were entered’. That article also sets the time periods for review of alerts and, more specifically, provides that an alert entered for the purposes of Article 26 of the SIS Regulation lasts for a period of five years. The Member States may, however, set shorter review periods in accordance with their national law. The issuing Member State may, within the review period, decide, following a comprehensive individual assessment, to retain the alert on a person for longer than the review period, where this proves necessary and proportionate for the purposes for which the alert was entered.

In addition, I observe that, under Article 55(1) of the SIS, ‘alerts for arrest for surrender or extradition purposes pursuant to Article 26 shall be deleted when the person has been surrendered or extradited to the competent authorities of the issuing Member State. They shall also be deleted when the judicial decision on which the alert was based has been revoked by the competent judicial authority in accordance with national law. They shall also be deleted upon the expiry of the alert in accordance with Article 53’.

As the referring court rightly points out, that provision does not expressly provide for the deletion of the alert entered in the SIS in the event that surrender has been refused under Article 4(6) of Framework Decision 2002/584, with an order for enforcement of the sentence in the executing State in accordance with its domestic law subject to recognition of the criminal conviction in accordance with Framework Decision 2008/909.

However, I consider that, as follows from Article 53(1) of the SIS Regulation, it is for the issuing Member State to check whether, where the ground of optional non-execution laid down in Article 4(6) of Framework Decision 2002/584 is implemented by the executing Member State, the purpose for which the alert on the requested person was entered in the SIS has been achieved. If that is the case, the issuing Member State must delete that alert. The decision of that Member State will then be closely dependent on the issuing judicial authority’s assessment of the need to maintain the European arrest warrant in respect of that person.

In that regard, the Court held, in its judgment of 29 July 2024, Breian, that ‘nothing in Framework Decision 2002/584 prevents the issuing authority from maintaining the request for surrender under a European arrest warrant where the executing authority of a Member State has refused to execute that arrest warrant’, even though such a refusal should prompt the issuing judicial authority to exercise vigilance.

In particular, it may prove necessary for the judicial authority issuing a European arrest warrant to maintain it, in particular after the factors which led to the previous request for surrender have been ruled out, or where the decision refusing to execute that European arrest warrant was not consistent with EU law, in order to conduct the procedure for the surrender of a requested person to its conclusion and thus to promote the attainment of the objective of combating impunity pursued by that framework decision.

However, in my view, a judicial authority cannot refuse to execute a European arrest warrant issued for the purposes of enforcing a custodial sentence by relying on the ground of optional non-execution referred to in Article 4(6) of Framework Decision 2002/584 where the conviction is recognised and executed contrary to the procedure and the conditions laid down in Framework Decision 2008/909. In such circumstances, the European arrest warrant can be maintained by the issuing judicial authority, the issuing Member State retains the right to enforce that sentence and it falls to the executing judicial authority to execute that European arrest warrant by surrendering the requested person to that Member State.

In the present case, I note that it follows from Italian law that a refusal to surrender pursuant to Article 4(6) of Framework Decision 2002/584 goes hand in hand with the recognition of the conviction on which the European arrest warrant is based without the consent of the sentencing Member State being required. It follows that the executing Member State could unilaterally decide to have that conviction executed on its own territory, even where the sentencing Member State is expressly opposed to it. I have stated in detail in the Opinion which I delivered on 13 June 2024 in C.J. (Enforcement of a sentence further to an EAW), to which I refer, the reasons why I consider, contrary to what follows from Italian law and from the practice adopted by the Italian judicial authorities, that, in implementing the ground of optional non-execution stated in that provision, the conviction by the judicial authorities of the executing Member State must be recognised and executed in accordance with the procedure and conditions laid down in Framework Decision 2008/909, which requires the consent of the sentencing Member State to be given to the executing Member State being responsible for executing the sentence.

Moreover, I seriously doubt that the alternative measure of placement under the supervision of social services, which EDS enjoyed from 15 July 2022 until the Corte d’appello di Napoli (Court of Appeal, Naples) decided, on 11 October 2022, to declare the termination of the execution of the sentence and to revoke the decision recognising the conviction, is compatible with Article 22(1) of Framework Decision 2008/909.

That provision lays down the rule that the issuing Member State must not proceed with the enforcement of the sentence once its enforcement in the executing Member State has begun. The implementation of that rule presupposes, in my view, that two conditions are fulfilled.

First, the enforcement of the sentence in the executing Member State must take place in accordance with the rules laid down in Framework Decision 2008/909. However, that is not the case where a criminal conviction has been recognised contrary to the procedure and the conditions laid down in that framework decision and, in particular, where the judgment, together with the certificate provided for in that framework decision, has not been forwarded by the issuing Member State. To accept that, in such a situation, the commencement of enforcement of the sentence in the executing Member State can deprive the issuing Member State of its power to enforce that sentence would open the way to circumvention of the rules laid down in the framework decision.

Second, the commencement of enforcement of the sentence, within the meaning of Article 22(1) of Framework Decision 2008/909, presupposes that it is the sentence, as decided by the competent judicial authority of the sentencing Member State as regards both its length and its nature, which is enforced in the executing Member State. However, I note that the enforcement in Italy of the prison sentence imposed on EDS in Romania was suspended until 15 July 2022, even though that sentence was not accompanied by a suspension. Moreover, after that date, it was not the prison sentence which was enforced but an alternative measure involving placement under the supervision of social services until 11 October 2022, the date on which the referring court declared the sentence to be terminated and revoked the recognition of the Romanian conviction. Both the suspension of enforcement of the sentence and the alteration of its nature, except in the cases where the sentence may be adapted as provided for in Article 8(2) to (4) of Framework Decision 2008/909, appear to me to be incompatible with the finding that the enforcement of the prison sentence imposed on EDS in Romania had commenced in Italy, in accordance with Article 22(1) of that framework decision.

I wish to emphasise that compliance with those conditions is crucial in order to prevent the rule under which the refusal to execute a European arrest warrant on the basis of Article 4(6) of Framework Decision 2002/584 presupposes an actual undertaking on the part of the executing Member State to enforce the custodial sentence imposed on the requested person from becoming a dead letter.

It must also be made clear that the undertaking which is required of the executing Member State effectively to enforce the custodial sentence imposed on the requested person, as regards both its length and its nature, is incompatible with the decision taken by a judicial authority of that Member State to revoke the recognition of the judgment convicting that person delivered in the issuing Member State on the ground that that judgment was no longer enforceable. I would add that, by analogy with the Court’s finding in its judgment of 31 January 2023, Puig Gordi and Others, the finding by the executing judicial authority of the existence of a limitation period for criminal liability in the issuing Member State, even though that State stated that no decision had been made on that point, runs counter to the principle of mutual recognition, which is, according to recital 6 of Framework Decision 2002/584, the cornerstone of judicial cooperation.

In the light of those elements and subject to the verifications to be made by the referring court, it seems to me to be inconceivable that, in the circumstances of the main proceedings, the issuing Member State can be regarded as being required, on account of the implementation by the executing judicial authority of the ground of optional non-execution referred to in Article 4(6) of Framework Decision 2002/584, to delete the alert relating to EDS in the SIS.

In the light of all the foregoing considerations, I propose that the Court of Justice answer the first, second and third questions referred for a preliminary ruling by the Curtea de Apel Bucureşti (Court of Appeal, Bucharest, Romania) in Case C‑305/22 as follows:

Article 4(6) and Article 8(1)(c) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, and Article 4(2) and (5), Article 8(1), Article 22(1) and Article 25 of Council Framework Decision 2008/909/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union,

must be interpreted as meaning that a judicial authority cannot refuse to execute a European arrest warrant issued for the purposes of enforcing a custodial sentence by relying on the ground for optional non-execution provided for in the first of those provisions, where the convicting judgment is recognised and enforced contrary to the procedure and the conditions laid down in Framework Decision 2008/909. In such circumstances, the European arrest warrant can be maintained by the issuing judicial authority, the issuing Member State retains the right to enforce that sentence and it falls to the executing judicial authority to execute that European arrest warrant by surrendering the requested person to that Member State.

87.

In the light of all the foregoing considerations, I propose that the Court of Justice answer the questions referred for a preliminary ruling by the Corte d’appello di Napoli (Court of Appeal, Naples, Italy) in Case C‑595/23 as follows:

Article 26(1), Article 27(1), Article 53(1), Article 55(1) and Article 59(1) and (3) of Regulation (EU) 2018/1862 of the European Parliament and of the Council of 28 November 2018 on the establishment, operation and use of the Schengen Information System (SIS) in the field of police cooperation and judicial cooperation in criminal matters, amending and repealing Council Decision 2007/533/JHA, and repealing Regulation (EC) No 1986/2006 of the European Parliament and of the Council and Commission Decision 2010/261/EU, as amended by Regulation (EU) 2022/1190 of the European Parliament and of the Council of 6 July 2022,

must be interpreted as meaning that in the event of a refusal by a judicial authority to execute a European arrest warrant for the purposes of enforcing a custodial sentence, on the basis of Article 4(6) of Framework Decision 2002/584, it is entirely a matter for the issuing Member State to check whether the purpose for which the alert on the requested person was entered in the SIS has been achieved, in which case the alert must be deleted.

That Member State is entitled to consider that that purpose has not been achieved and that the alert must therefore be retained where, in the context of the implementation by the executing judicial authority of the ground of optional non-execution stated in that provision, the convicting judgment is recognised and enforced contrary to the procedure and the conditions laid down in Framework Decision 2008/909. In such circumstances, the judicial authority may consider it necessary to maintain the European arrest warrant on which the alert relating to the requested person is based.

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Original language: French.

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

OJ 2002 L 190, p. 1.

3

OJ 2008 L 327, p. 27.

That provision provides that the executing judicial authority may refuse to execute the European arrest warrant ‘if the European arrest warrant has been issued for the purposes of execution of a custodial sentence or detention order, where the requested person is staying in, or is a national or a resident of the executing Member State and that State undertakes to execute the sentence or detention order in accordance with its domestic law’.

5

Opinion in C.J. (Enforcement of a sentence further to an EAW) (C‑305/22, EU:C:2024:508).

6

C‑305/22, EU:C:2024:783.

7

See in particular, to that effect, judgment of 15 April 2021, AV (Aggregate sentence) (C‑221/19, EU:C:2021:278, paragraph 35 and the case-law cited). In my view, paragraph 48 of the judgment of 13 December 2018, Sut (C‑514/17, EU:C:2018:1016), deserves further elaboration by the Court to make clear that the ground of optional non-execution stated in Article 4(6) of Framework Decision 2002/584 cannot be implemented to the detriment of the objective of preventing the impunity of the person concerned, which presupposes compliance with the procedure and conditions laid down in Framework Decision 2008/909.

8

OJ 2018 L 312, p. 56.

9

OJ 2022 L 185, p. 1; ‘the SIS Regulation’.

10

According to point 1 of Article 3 of the SIS Regulation, an alert is ‘a set of data entered into SIS allowing the competent authorities to identify a person or an object with a view to taking specific action’.

11

In its written observations, the Romanian Government states that the Romanian authorities informed the Italian authorities, first, that they had not given their consent to the Italian authorities’ recognition of the final judgment in criminal proceedings delivered in Romania and, second, that, as long as the Romanian authorities have not been informed of the commencement of the execution of the sentence in Italy, Romania reserves the right to execute that sentence in its territory.

In its written observations, the Romanian Government states that EDS began the execution not of the term of imprisonment to which that person had been sentenced, but of the alternative measure of placement under the supervision of social services.

13

The case-law referred to consists of judgments of the Curtea Constituțională (Constitutional Court) No 297/2018, published in the Monitorul Oficial al României No 518 of 25 June 2018, and No 358/2022, published in the Monitorul Oficial al României No 565 of 9 June 2022, relating to the objection of unconstitutionality of the provisions of Article 155(1) of the Codul penal (Criminal Code). See, on the interruption of the limitation period for criminal liability in cases relating to offences affecting the financial interests of the European Union, judgment of 24 July 2023, Lin (C‑107/23 PPU, EU:C:2023:606).

14

GURI No 98 of 29 April 2005, p. 6.

15

GURI No 230 of 1 October 2010, p. 1.

16

GURI No 176 of 31 July 2006, p. 4.

17

The SIS includes a single network of national offices called ‘SIRENE Bureaux’, which are fully operational 24 hours a day, 7 days a week, and which ensure, inter alia, the exchange and availability of all supplementary information (see recital 5 and Article 7 of the SIS Regulation).

18

That is particularly the case where a Member State considers that the implementation of an alert is not compatible with its national law, its international obligations or essential national interests, (Article 24(1)), or where the executing judicial authority has refused execution of a European arrest warrant on the basis of a ground for non-execution (Article 25(1)). According to point 8 of Article 3 of the SIS Regulation, a flag is defined as ‘a suspension of the validity of an alert at the national level that may be added to alerts for arrest, alerts on missing and vulnerable persons and alerts for discreet, inquiry and specific checks and to information alerts’.

19

See order of the President of the Court of 5 December 2023, Cuprea (C‑595/23, EU:C:2023:955).

Under Article 67(1) of that regulation, ‘data subjects shall be able to exercise the rights laid down in Articles 15, 16 and 17 of Regulation (EU) 2016/679 [of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ 2016 L 119, p. 1, and corrigendum OJ 2018 L 127, p. 2)] and in Article 14 and Article 16 (1) and (2) of Directive (EU) 2016/680 [of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data, and repealing Council Framework Decision 2008/977/JHA (OJ 2016 L 119, p. 89)]’. Moreover, Article 68(1) of the SIS Regulation provides that, ‘without prejudice to the provisions on remedies of Regulation [2016/679] and of Directive [2016/680], any person may bring an action before any competent authority, including a court, under the law of any Member State to access, rectify, erase, obtain information or obtain compensation in connection with an alert relating to him or her’.

21

See, also, recital 46 of that regulation. It should also be noted that, according to Section 2.9 of the Sirene Manual contained in the annex to Commission Implementing Decision (EU) 2015/219 of 29 January 2015 replacing the Annex to Implementing Decision 2013/115/EU on the Sirene Manual and other implementing measures for the second generation Schengen Information System (SIS II) (OJ 2015 L 44, p. 75), ‘as soon as the conditions for maintaining the alert are no longer fulfilled, the issuing Member State shall delete the alert without delay’.

22

See Article 53(5) of the SIS Regulation.

23

See Article 53(6) of the SIS Regulation.

See, by analogy, judgment of 15 December 2022, Lietuva Respublikos vidaus reikalų ministerija (Registration of reported vehicles) (C‑88/21, EU:C:2022:982, paragraphs 46 and 47). I also note that Article 55(1) of the SIS Regulation refers, in its last sentence, to Article 53 of that regulation, which supports that interpretation.

25

C‑318/24 PPU, EU:C:2024:658.

26

Judgment of 29 July 2024, Breian (C‑318/24 PPU, EU:C:2024:658, paragraph 48).

27

See judgment of 29 July 2024, Breian (C‑318/24 PPU, EU:C:2024:658, paragraph 49).

28

See judgment of 29 July 2024, Breian (C‑318/24 PPU, EU:C:2024:658, paragraph 51 and the case-law cited). However, the Court stated in that judgment that it follows from its case-law that, since maintaining a European arrest warrant which another Member State has refused to execute may result in the arrest of the person in respect of whom it has been issued in another Member State and, therefore, may prejudice that person’s individual freedom, it is for the issuing judicial authority to examine whether, in the light of the particular circumstances of the case, it is proportionate to maintain that warrant. In the context of such an examination, it is for that authority, inter alia, to take into account the nature and gravity of the offence for which the requested person is being prosecuted, the consequences for that person of the maintenance of that European arrest warrant issued against him or her and the prospects of execution of that arrest warrant (paragraph 54 and the case-law cited).

29

C‑305/22, EU:C:2024:508.

30

It is apparent from the case-law of the Court that ‘Article 8(2) to (4) of Framework Decision 2008/909 … lays down strict conditions for the adaptation, by the competent authority of the executing State, of the sentence handed down in the issuing State, those conditions being the sole exceptions to the obligation imposed on that authority, under Article 8(1) of that framework decision, to recognise a judgment which has been forwarded to it and forthwith take all the necessary measures for the enforcement of the sentence, which is to correspond in its length and nature to the sentences imposed in the judgment delivered in the issuing State’: see, in particular, judgment of 15 April 2021, AV (Aggregate sentence) (C‑221/19, EU:C:2021:278, paragraph 35 and the case-law cited). Moreover, it follows from Article 12(1), Article 13 and Article 21(e) of Framework Decision 2008/909, taken together, first, that the competent authority of the executing Member State must inform the issuing Member State of any decision to adapt the sentence in accordance with Article 8(2) and (3) of that framework decision and, second, that the issuing Member State, where it does not agree with the decision to adapt the sentence and as long as the enforcement of the sentence in the executing State has not begun, may withdraw the certificate from that State (which presupposes that the certificate has been previously forwarded by the competent authority of the issuing Member State in accordance with Article 4(2) of that framework decision). I would add that a distinction should be drawn between the cases where the sentence may be adapted as provided for in Article 8(2) to (4) of Framework Decision 2008/909 and the procedure for enforcement of that sentence which, under Article 17(1) of that framework decision, is governed by the law of the executing Member State. In that regard, the Court has stated, inter alia, that that provision covers measures seeking to ensure the physical enforcement of a custodial sentence: see judgment of 15 April 2021, AV (Aggregate sentence) (C‑221/19, EU:C:2021:278, paragraph 39). That distinction lies at the heart of the case currently pending, Fira

(C‑215/24), concerning the suspension by a judicial authority of the executing Member State of the prison sentence imposed by a judicial authority of the issuing Member State.

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31See, in particular, judgment of 6 June 2023, O. G. (European arrest warrant issued against a third-country national) (C‑700/21, EU:C:2023:444, paragraph 48 and the case-law cited). Moreover, any refusal to execute a European arrest warrant must be preceded by the executing judicial authority’s examination of whether it is actually possible to execute the sentence in accordance with its domestic law: see, in particular, judgment of 24 June 2019, Popławski (C‑573/17, EU:C:2019:530, paragraph 88 and the case-law cited).

32The recognition of the conviction by the executing Member State also implies that, in accordance with Article 19(2) of Framework Decision 2008/909, ‘only the issuing State may decide on applications for review of the judgment imposing the sentence to be enforced under this Framework Decision’.

33C‑158/21, EU:C:2023:57.

34See judgment of 31 January 2023, Puig Gordi and Others (C‑158/21, EU:C:2023:57, paragraph 88). The existence of such a limitation period in the present case was also challenged in detail by the Romanian Government at the hearing.

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