delivered on 17 September 2019 (1)

Case C‑489/19 PPU

NJ (Public Prosecutor’s Office, Vienna)

Criminal proceedings

in the presence of:

Generalstaatsanwaltschaft Berlin

(Request for a preliminary from the Kammergericht Berlin (Higher Regional Court, Berlin, Germany))

(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) – Issuing judicial authority – Independence of the public prosecutor’s office vis-à-vis the executive – Assessment criteria – European arrest warrant issued by a public prosecutor’s office and endorsed, following a comprehensive exhaustive review, by an ordinary court prior to implementation)

1.In the judgment in OG and PI, (2) delivered in the Grand Chamber, the Court ruled that the concept of ‘issuing judicial authority’, within the meaning of Article 6(1) of Framework Decision 2002/584/JHA, (3) must be interpreted as not including public prosecutor’s offices of a Member State which are exposed to the risk of being subject to directions or instructions in a specific case from the executive, in connection with the adoption of a decision to issue a European arrest warrant. By its request for a preliminary ruling, the Kammergericht Berlin (Higher Regional Court, Berlin, Germany), which is hearing an application for surrender issued by the Austrian authorities, asks the Court about the application of that requirement of independence and the assessment criteria to be applied in the present case, which concerns a European arrest warrant issued by a public prosecutor’s office and endorsed in advance by a court. (4)

Legal framework

European Union law

Framework Decision 2002/584

In the recitals of Framework Decision 2002/584, the EU legislature states the following:

(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.

(8)Decisions on the execution of the European arrest warrant must be subject to sufficient controls, which means that a judicial authority of the Member State where the requested person has been arrested will have to take the decision on his or her surrender.

(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) of the Treaty on European Union, determined by the Council pursuant to Article 7(1) of the said Treaty 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 of the Treaty on European Union and reflected in [the Charter], in particular Chapter VI thereof. …’

Article 1 of that framework decision, entitled ‘Definition of the European arrest warrant and obligation to execute it’, provides:

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.

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.

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 2(1) of that framework decision provides:

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.

According to Article 2(2), offences, if they are punishable in the issuing Member State by a custodial sentence or a detention order for a maximum period of at least 3 years and as they are defined by the law of the issuing Member States, are, without verification of the double criminality of the act, to give rise to surrender pursuant to a European arrest warrant. That is the case of organised or armed robbery. (5)

Articles 3, 4 and 4a of the framework decision set out the grounds for optional and mandatory non-execution of the European arrest warrant.

In the words of Article 6 of Framework Decision 2002/584, entitled ‘Determination of the competent judicial authorities’:

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.

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.

Each Member State shall inform the General Secretariat of the Council of the competent judicial authority under its law.

Article 8 governs the content and form of the European arrest warrant.

Article 11 of that framework decision, on the rights of a requested person, provides that ‘when a requested person is arrested, the executing competent judicial authority shall, in accordance with its national law, inform that person of the European arrest warrant and of its contents, and also of the possibility of consenting to surrender to the issuing judicial authority’.

Article 14 states that ‘where the arrested person does not consent to his or her surrender as referred to in Article 13, he or she shall be entitled to be heard by the executing judicial authority, in accordance with the law of the executing Member State’.

Austrian law

Paragraph 2(1) of the Staatsanwaltschaftsgesetz (Law on public prosecutor’s offices, ‘the StAG’), states:

At the seat of each Landesgericht (Regional Court) exercising criminal jurisdiction, there shall be a public prosecutor’s office, at the seat of each Oberlandesgericht (Higher Regional Court) a higher public prosecutor’s office, and at the Oberster Gerichtshof (Supreme Court) the principal public prosecutor’s office. The public prosecutor’s offices shall be directly subordinate to, and act on the instructions of, the higher public prosecutor’s offices, just as the latter and the principal public prosecutor’s office shall be directly subordinate to, and act on the instructions of, the Federal Minister for Justice.

Paragraph 29 of the Gesetz über die Justizielle Zusammenarbeit in Strafsachen mit den Mitgliedstaaten der Europäischen Union (Law on judicial cooperation in criminal matters with the Member States of the European Union, ‘the EU-JZG’) lays down the requirement of judicial endorsement of the European arrest warrant (which was given in the present case). The first sentence of Paragraph 29(1) of the EU-JZG provides as follows:

‘The public prosecutor’s office shall make an order for arrest by issuing a court-endorsed European arrest warrant and, where appropriate, have an alert relating to the requested person entered into the Schengen Information System, in accordance with Article 95 of the Schengener Durchführungsübereinkommen (SDÜ) [Convention implementing the Schengen Agreement], by the competent security authorities, in cases where there are grounds for initiating a search with a view to the arrest of the person sought in at least one Member State’.

In the context of that review by a court, the criteria of legality and proportionality are to be observed in accordance with Paragraph 5(1) and (2) of the Strafprozessordnung (Code of Criminal Procedure, ‘the StPO’):

‘(1) When exercising their powers and taking evidence, the criminal police, the public prosecutor’s office and the court shall interfere with individuals’ rights only to the extent to which this is expressly provided for in law and is necessary to enable them to carry out their tasks. Any such impairment of legal interests must be proportionate to the seriousness of the offence, the degree of guilt of the suspect and the outcome sought.

(2) From the various effective investigative and enforcement measures available to them, the criminal police, the public prosecutor’s office and the court shall apply those which least adversely affect the rights of the persons concerned. Powers granted by law shall in any circumstances obtaining in the proceedings be exercised in such a way as to avoid unnecessary publicity, respect the dignity of the persons concerned and safeguard their rights and interests that are worthy of protection.’

Under Paragraph 87(1) of the StPO, judicial endorsement is to be open to challenge. (6)

The judicial endorsement procedure is governed by Paragraph 105 of the StPO:

‘(1) The court shall decide on applications for the imposition and continuation of provisional detention as well as applications for the endorsement of certain other enforcement measures. For the purposes of the implementation of a measure which it has endorsed (Paragraph 101(3)), the court shall lay down a period on the expiry of which, if the measure in question has not been implemented, the endorsement shall lapse. In the case of an order for the issue of an arrest alert under Paragraph 169, that period shall not include the period of validity of the alert, although the public prosecutor’s office shall review at least once a year whether the conditions of arrest still obtain.

(2) To the extent necessary on legal or factual grounds for the purposes of deciding on an application under subparagraph 1, the court can order further investigations by the criminal police or undertake them of its own motion. It can also require the public prosecutor’s office and the criminal police to provide factual clarifications from the case file and to submit a report on the implementation of the endorsed measure and the further investigations. Even after the imposition of provisional detention, the court can continue to order that copies of the documents referred to in Paragraph 52(2), points 2 and 3, be submitted to it.’

The dispute in the main proceedings and the question for a preliminary ruling

Pursuant to the European arrest warrant issued in the present case, the Austrian authorities requested that NJ be arrested and surrendered in order to face criminal proceedings, on the ground that he had committed the following offences in Vienna, in Austria.

On 9 August 2018, NJ, with an accomplice, is alleged to have broken into a coach belonging to the undertaking SQ Equipment Leasing Polska and to have stolen a camera and a camera bag, two rucksacks, a purse and 1000 Chinese yuan (CNY) (approximately EUR 128) in cash. In the course of doing so, NJ is alleged to have stolen a credit card belonging to a victim. On 10 August 2018, NJ, with an accomplice, is alleged to have broken into a vehicle belonging to the undertaking W.E. Blaschitz, in order to steal valuables from the vehicle, but to have fled empty-handed after being surprised by a third party, who was deterred from pursuing them on seeing a knife. On 17 August 2018, NJ, with an accomplice, is alleged to have stolen a handbag containing a purse, a mobile phone and a pair of glasses worth a total of EUR 950, together with EUR 50 in cash; NJ is alleged to have taken the bag while his accomplice distracted the victim’s husband. On 18 August 2018, NJ, with an accomplice, is alleged to have broken into a vehicle belonging to a third party by breaking the side window in order to steal valuables, but to have found nothing there (‘the alleged criminal offences’).

Since 14 May 2019, NJ has been the subject of a provisional detention order for theft in the context of proceedings initiated by the Public Prosecutor’s Office, Berlin (Germany). The European arrest warrant issued by the Public Prosecutor’s Office, Vienna, on 16 May 2019, given judicial endorsement by order of the Landesgericht Wien (Regional Court, Vienna, Austria) of 20 May 2019, shows that NJ is the subject, under the same case number, of a national arrest warrant issued by the Public Prosecutor’s Office, Vienna, on 14 May 2019, given judicial endorsement by the same Regional Court on 16 May 2019, for the alleged criminal offences.

On 24 May 2019, NJ stated that he did not consent to simplified extradition. (7) By order of 29 May 2019, the referring court made only a provisional detention order against NJ (owing to doubts in relation to the judicial authority that had issued the European arrest warrant), observing that he was already being detained.

According to the statement (8) which it made following the judgment in OG and PI, (9) the Austrian Government considers that that judgment has no impact for Austria, since, in its view, the procedure established in Austrian law (10) corresponds with the requirements laid down in that judgment. However, the referring court does not share that analysis since, in its view, the conditions laid down in paragraphs 74 and 75 of the judgment in OG and PI are cumulative (and not alternative, as the Austrian Government seemed to assert in that statement). (11)

The referring court therefore decided to stay proceedings and to refer the following question to the Court for a preliminary ruling:

‘Does the fact that a public prosecutor’s office is required to act on instruction preclude it from effectively issuing a European arrest warrant even in the case where that decision is subject to a comprehensive judicial review prior to the execution of the European arrest warrant?’

Written observations have been lodged by the Austrian and German Governments and by the European Commission. Those parties and the Spanish Government presented oral observations at the hearing on 3 September 2019.

The application of the urgent preliminary ruling procedure

The referring court requested that the present reference for a preliminary ruling be dealt with under the urgent preliminary ruling procedure provided for in Article 107 of the Rules of Procedure of the Court.

In support of that request, the referring court claimed that NJ was currently deprived of his freedom on two counts. First, he is subject to provisional detention in the context of criminal proceedings brought against him in Germany (‘the first provisional detention’), for offences unconnected with the main proceedings. That first provisional detention, of a maximum duration of 6 months, could come to an end at any time. Second, while expressing doubts about the issuing judicial authority and the validity of the European arrest warrant issued in the present case, the referring court made a second provisional detention order, with a view to NJ’s possible surrender to the Austrian authorities (‘the second provisional detention’). That second measure would take effect only on expiry of the first provisional detention and could not lawfully exceed 2 months.

It follows from the material communicated by the referring court that, on the one hand, the judgment that the Court will deliver may well have an influence on the second provisional detention and therefore on the total period of NJ’s detention and that, on the other, there is a genuine risk, depending in particular on the duration of the first provisional detention and the preliminary ruling procedure before the Court, that NJ will have to be released and that he may evade the criminal proceedings brought against him, thus preventing the European arrest warrant issued by the Austrian authorities from being executed.

In the first place, it should be observed that this reference for a preliminary ruling concerns the interpretation of Framework Decision 2002/584, which comes within the areas covered by Title V of Part Three of the FEU Treaty, on the area of freedom, security and justice. The reference can therefore be dealt with under the urgent preliminary ruling procedure, pursuant to Article 107(1) of the Rules of Procedure of the Court.

The referring court requested that the present reference for a preliminary ruling be dealt with under the urgent preliminary ruling procedure provided for in Article 107 of the Rules of Procedure of the Court.

In the second place, as regards the criterion relating to urgency, it must be stated that the person involved in the main proceedings is currently deprived of liberty, and the resolution of the main proceedings may have considerable influence on the length of that deprivation. Furthermore, the situation of the person concerned must be assessed as it stands at the time when consideration is given to the request that the reference be dealt with under the urgent preliminary ruling procedure.

In addition, it is appropriate to take account of the risk that the person concerned will be released, which might impair, in the present case, the effectiveness of the surrender system put in place by Framework Directive 2002/584 and compliance with the obligation to execute the European arrest warrant, which, in accordance with the Court’s case-law, constitutes a central function.

In the light of those considerations, the Second Chamber of the Court decided, on 11 July 2019, on a proposal from the Judge-Rapporteur and after hearing the Advocate General, to grant the referring court’s request that the present reference for a preliminary ruling be dealt with under the urgent procedure.

Analysis

Preliminary observations

It is apparent from the request for a preliminary ruling that the present case falls within the scope of Framework Decision 2002/584. The alleged facts constitute, in part, offences that satisfy the criterion of double criminality, set out in Article 2(1) of the framework decision, and the offences listed in Article 2(2) of the framework decision (since the facts might constitute organised or armed robbery).

Furthermore, it is also apparent from that request that the European arrest warrant issued by the Public Prosecutor’s Office, Vienna, satisfies the criteria as to content and form set out in Article 8 of Framework Decision 2002/584.

Before embarking on my analysis, I must further clarify the scope of the question for a preliminary ruling.

In its reference for a preliminary ruling, the referring court seeks to establish, in essence, whether the Public Prosecutor’s Office, Vienna, is an ‘issuing judicial authority’ and satisfies the requirements of independence, in the light of Article 6(1) of Framework Decision 2002/584 and the judgment of the Court in OG and PI, having regard to the fact that, first, that public prosecutor’s office may be subject to instructions on the part of the executive in a specific case, but that, second, its decision to issue a European arrest warrant is still the subject of review by a court before it takes effect (namely an ex ante review, taking the form, in the present case, of endorsement by a court).

In other words, the question referred for a preliminary ruling therefore does not relate to a situation in which a public prosecutor’s office that is potentially subject to instructions on the part of the executive in a specific case issues a European arrest warrant that has effects and against which the person concerned may bring an action, leading to subsequent review by a court (review ex post facto). Like the Commission, I observe that the Court has made clear that such judicial review a posteriori is not a guarantee of the independence of the public prosecutor’s office.

A reminder of the lessons to be learnt from the judgment in OG and PI

I note at the outset that the judgment in OG and PI was delivered in response to questions for a preliminary ruling submitted by two Irish courts in the context of the execution of European arrest warrants issued, respectively, in Case C‑508/18, by the Staatsanwaltschaft bei dem Landgericht Lübeck (Public Prosecutor’s Office, Lübeck, Germany) for the purposes of criminal proceedings against OG and, in Case C‑82/19 PPU, by the Staatsanwaltschaft Zwickau (Public Prosecutor’s Office, Zwickau, Germany) for the purposes of criminal proceedings against PI.

The persons concerned, OG and PI, had claimed that the public prosecutor’s offices which had issued those arrest warrants were not ‘issuing judicial authorities’ within the meaning of Article 6(1) of the framework decision and that the warrants were therefore not valid.

The referring courts asked the Court whether the concept of ‘issuing judicial authority’ within the meaning of Article 6(1) of the framework decision must be interpreted as including the Public Prosecutor’s Offices of a Member State which are responsible for the prosecution of criminal offences and are subordinate to a body of the executive of that Member State, such as a Minister for Justice, and may be subject, directly or indirectly, to directions or instructions in a specific case from that body in connection with the adoption of a decision to issue a European arrest warrant.

The Court answered that question in the negative.

In its judgment, the Court referred first of all to the principle that the term ‘judicial authority’ must be given an autonomous and uniform interpretation. Citing its earlier case-law, moreover, the Court also made clear that those words ‘are not limited to designating only the judges or courts of a Member State, but must be construed as designating, more broadly, the authorities participating in the administration of criminal justice in that Member State, as distinct from, inter alia, ministries or police services which are part of the executive’.

In that regard, the Court held that an authority, such as a public prosecutor’s office, which is competent, in criminal proceedings, to prosecute a person suspected of having committed a criminal offence so that that person may be brought before a court, must be regarded as participating in the administration of justice of the relevant Member State.

The Court then addressed the requirement of independence applicable to the issuing judicial authorities.

After observing that the European arrest warrant system entailed a ‘dual level of protection’ of procedural rights and fundamental rights which must be enjoyed by the requested person, the Court drew attention to the principle, enshrined (in particular) in its judgment in Kovalkovas, that the second level of protection of the rights of the person concerned ‘means that the judicial authority competent to issue a European arrest warrant must review, in particular, observance of the conditions necessary for the issuing of the European arrest warrant and examine whether, in the light of the particular circumstances of each case, it is proportionate to issue that warrant’. In that respect, that second level of protection therefore entails a review of the legality and the proportionality of the European arrest warrant thus issued.

In that connection, the Court held, in paragraphs 74 and 75 of the judgment in OG and PI

‘74. … the issuing judicial authority must be in a position to give assurances to the executing judicial authority that, as regards the guarantees provided by the legal order of the issuing Member State, it acts independently in the execution of those of its responsibilities which are inherent in the issuing of a European arrest warrant. That independence requires 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.

75. In addition, where the law of the issuing Member State confers the 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.’

Furthermore, as regards the risk that the executive may influence a public prosecutor’s office in a specific case, the Court further explained, in paragraphs 85 and 87 of its judgment, that:

‘85. That finding cannot be called into question by the fact that, as argued by the German Government at the hearing before the Court, the decision of public prosecutor’s offices, such as those at issue in the main proceedings, to issue a European arrest warrant may be the subject of an action brought by the person concerned before the relevant German court having jurisdiction.

…

87. Although the effect of that legal remedy is to ensure that the exercise of the responsibilities of a public prosecutor’s office is subject to the possibility of review by a court a posteriori, any instruction in a specific case from the minister for justice to the public prosecutor’s offices concerning the issuing of a European arrest warrant remains nevertheless, in any event, permitted by the German legislation.’

Those statements by the Court reflect the judgment in PF, (23) delivered on the same day as the judgment in OG and PI and relating to the independence of the Prosecutor General of Lithuania. I would point out here that paragraphs 52 and 53 of the judgment in PF are identical to paragraphs 74 and 75 of the judgment in OG and PI.

Although in the judgment in OG and PI the Court considered that the German public prosecutor’s offices did not meet the abovementioned requirement of independence, it considered, conversely, in the judgment in PF, that the Lithuanian Prosecutor General was free of any external influence and that his constitutional status was such as to ensure ‘not only the objectivity of his role’, but also to afford him a guarantee of independence from the executive when issuing a European arrest warrant. (24)

It is now appropriate to apply the lessons taken from that case-law in the context of the present case.

Is a national body such as the Austrian Public Prosecutor’s Office a judicial authority within the meaning of Article 6(1) of Framework Decision 2002/584?

In the light of the parties’ written submissions and their oral submissions at the hearing, it is common ground that the fact that that public prosecutor’s office may be subject to instructions from the executive in a specific case is not a barrier to the valid issue of a European arrest warrant, in so far as that warrant is subject to prior systematic endorsement by a court. (25) I would observe in that regard that in Austrian law a European arrest warrant can have legal effects only with effect from that endorsement. A European arrest warrant which has not been endorsed (where the court seised has refused to endorse it) remains ineffective.

It should be observed, first of all, that that public prosecutor’s office is an authority participating in the administration of criminal justice, (26) since it is competent, in criminal proceedings, to prosecute a person suspected of having committed a criminal offence so that that person may be brought before a court. (27)

As is apparent from the order for reference and also from the Austrian Government’s written and oral observations, in Austrian criminal law, the charge is the responsibility of the public prosecutor’s office, which thus has to gather the necessary information beforehand. The public prosecutor’s office plays the leading role in the criminal investigation procedure. The public prosecutor’s office is responsible for the progress in the investigation procedure and it maintains the criminal file. In that context, the public prosecutor’s office may issue directions to the criminal police responsible for the investigations or – where that is more effective – may itself carry out the investigative measures.

In the context of the issue of a European arrest warrant during the criminal investigation procedure (which precedes the judicial investigation), the public prosecutor’s office orders the arrest, subject to the judicial endorsement referred to in the first sentence of Paragraph 29(1) of the EU-JZG (which is amenable to appeal, pursuant to Paragraph 87(1) of the StPO, unlike the decision of the public prosecutor’s office as such).

On that basis, the Austrian public prosecutor’s office may assume the role of issuing judicial authority, within the meaning of Article 6(1) of Framework Decision 2002/584, if the criterion of independence highlighted in the judgment in OG and PI is satisfied. I shall return to that element later in this Opinion. (28)

Before I go on to examine the guarantees of independence in connection with the issuing of a European arrest warrant by that public prosecutor’s office, it is nonetheless appropriate to clarify the following point. Contrary to what the Austrian and German Governments and the Commission seemed to claim, referring in that respect to the judgment in Özçelik, (29) it seems to me that the court responsible for endorsing the European arrest warrant cannot be classified as the actual author of that warrant by assimilation, for three reasons.

First, I would point out that the procedure challenged in the case of Özçelik involved a national arrest warrant issued by a Hungarian police service and ‘confirmed’ by the public prosecutor’s office. In that context, the Court considered that the decision whereby the public prosecutor’s office had confirmed the arrest warrant issued by the police service constituted the basis of the European arrest warrant issued in that context. The Court added that the confirmation by the public prosecutor’s office of the arrest warrant issued by the police service was a legal act by which the public prosecutor’s office verified and validated that arrest warrant. Owing to that confirmation, which appeared in the European arrest warrant, the public prosecutor’s office had to be regarded as being responsible for the issuing of the national arrest warrant, by assimilation.

On that basis, it should be observed that, unlike the public prosecutor’s office, such a police service could never have been classified as a judicial authority, since structurally it formed part of the executive. (30) It was precisely for that reason that the public prosecutor’s office was, by the confirmation mechanism, the only judicial authority capable of validly issuing a European arrest warrant within the meaning of Article 6(1) of Framework Decision 2002/584.

In the present case, as I observed earlier in point 53 above, the Austrian Public Prosecutor’s Office is capable of constituting an authority participating in the administration of criminal justice, and is thus empowered to issue a European arrest warrant. Ipso facto, the situation of such a public prosecutor’s office cannot be compared with the situation of the police service involved in the case of Özçelik.

Second, it should be observed that under the procedural rules established by the Austrian legislature, a very clear distinction is drawn between the criminal investigation stage (which precedes the judicial investigation), in the context of which the public prosecutor’s office plays the leading role in gathering the necessary evidence, and the main proceedings, in which the management of the proceedings is the responsibility of the court seised (which, in that capacity, is authorised to order an arrest by means of the European arrest warrant, where appropriate on a proposal by the public prosecutor’s office).

During the investigation stage, the public prosecutor’s office and the court responsible for endorsing a European arrest warrant exercise powers of a different nature. The initiative for issuing the arrest warrant lies with the public prosecutor’s office (which orders the arrest, on the basis of Paragraph 171 of the StPO). In that capacity, it is the public prosecutor’s office that is the ‘manager of the procedure’ and that determines, in particular, whether such a measure is appropriate. In that context, the court’s role consists essentially in examining the legality and the proportionality of the decision taken by the public prosecutor’s office (adopted, in practice, in a form), in application of Paragraph 5(1) and (2) of the StPO. In that context, the Court examines the file submitted to it in full (and containing a copy of the orders given to the public prosecutor’s office by higher authorities such as the executive). If it deems it necessary to do so, the court may order or carry out additional investigative measures in that context. If, following that verification, the court agrees to give its endorsement, that endorsement takes the form of a simple sentence, added to the form. The endorsement is not accompanied by an order given to the public prosecutor’s office concerning the enforcement of the measure concerned: the court merely sets a time limit on the validity of the endorsement (and failure to observe that time limit renders the measure concerned void). Once that endorsement has been given, the public prosecutor’s office is responsible for signing the European arrest warrant, for implementing it and for transmitting it to the enforcing Member State. The public prosecutor’s office might decide, for example, not to implement and transmit the warrant thus endorsed.

As the Austrian Government explained in its written and oral observations, the allocation of powers between the public prosecutor’s office and the court is the result of a reform of Austrian criminal law that entered into force on 1 January 2008. Following that reform, the function previously performed by the investigating judges was entrusted to the public prosecutor’s office, that transfer of powers being counterbalanced by the introduction of judicial supervision (the endorsement).

Third, and last, it should be pointed out that, in accordance with Article 6(3) of Framework Decision 2002/584, each Member State is to inform the General Secretariat of the Council of the judicial authority competent, under its own law, to issue a European arrest warrant. It seems that, on 28 January 2008 (see Council document No 5711/08), Austria declared that the competent judicial authority within the meaning of that provision was the public prosecutor’s office of the place where a Landesgericht (Regional Court) has its seat.

At the hearing, the parties expressed doubts in particular as to the possibility of the existence of a ‘double’ issuing authority in the Austrian system, consisting of the public prosecutor’s office and the court (which means that the information communicated to the General Secretariat of the Council by the Republic of Austria would be inaccurate in part). That also raises the question whether Framework Decision 2002/584, which refers to the competent authority in the singular, would allow such a binary or complex structure that might well dilute the responsibility for the issuing of a European arrest warrant.

In my view, we should adhere to the information transmitted to the General Secretariat of the Council by the Austrian Government. It is the Member State concerned that is competent to designate – pursuant to Article 6(3) of the framework decision – the competent authority under its own law. It seems to me that it is not for the Court, when giving a preliminary ruling, or for the authorities of the executing Member State to supplement or correct information duly notified to the Council by the issuing Member State and to adjudicate on that basis on the (potentially) binary or complex structure of the issuing authority.

To my mind, it seems artificial, for all of those reasons, to regard the court – which intervenes only downstream, in so far as the public prosecutor’s office is responsible for directing the criminal investigation stage – as the author of the European arrest warrant. The fact that the action brought, where relevant, by the person concerned relates to the endorsement by a court (and not to the decision of the public prosecutor’s office stricto sensu) does not seem to me to have any impact in that regard. Contrary to the position defended by the Commission at the hearing, I consider that the public prosecutor’s office continues to be the author of the warrant even though, in a certain manner, responsibility for that decision is shared with the court that consented to its implementation and whose decision is amenable to challenge on that basis.

I therefore do not share the Austrian Government’s view that the endorsement by a court means that the court can be treated as the author of the national or European arrest warrant.

In my view, the public prosecutor’s office is therefore indeed the authority that issues the European arrest warrant in the Austrian criminal system. It is therefore appropriate to examine its position and, in particular, its independence, while taking account of the mechanism of judicial endorsement established by the first sentence of Paragraph 29(1) of the EU-JZG.

The requirement of independence of the issuing judicial authority

As I observed above, in its judgment in OG and PI the Court stated that the European arrest warrant system entails a dual level of protection of procedural rights and fundamental rights which must be enjoyed by the requested person. The person in question must have the benefit of judicial protection, in the first place, when a national decision, such as a national arrest warrant, is adopted and, in the second place, when a European arrest warrant is issued. (34)

At the heart of the case at issue, the question arises whether the Austrian system can guarantee the rights of the person concerned in complete independence, in the light of the requirements inherent in effective judicial protection.

The concept of independence in the Austrian system in the light of the case of OG and PI

The Court has held that ‘it is for the “issuing judicial authority”, referred to in Article 6(1) of the Framework Decision 2002/584, namely the entity which, ultimately, takes the decision to issue the European arrest warrant, to ensure that second level of protection, even where the European arrest warrant is based on a national decision delivered by a judge or a court’. Thus, the ‘issuing judicial authority’ must be independent, which means that it cannot be ‘exposed to the risk that its decision-making power be subject to external directions or instructions, in particular from the executive, such that it is beyond doubt that the decision to issue a European arrest warrant lies with that authority and not, ultimately, with the executive’. (35)

As I have indicated, the Court stated that that concept of independence rests essentially on two factors. The issuing judicial authority must be able to give assurances to the executing judicial authority 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. In addition, where the issuing judicial authority is a body which is not a court (like a public prosecutor’s office, as in this case), the decision to issue an arrest warrant and, in particular, the proportionality of such a decision must be capable of being the subject, in that Member State, of court proceedings which meet in full the requirements inherent in effective judicial protection. (36)

The discussion at the hearing revealed that the Austrian system of judicial endorsement of the decision of the public prosecutor’s office as regards the issue of a European arrest warrant is atypical by comparison with the rules in force within the other Member States. Nonetheless, I consider that such a national system is consistent with the requirements of Article 6(1) of the Framework Decision 2002/584. (37)

According to the information provided in the order for reference, the relevant legal provisions in Austrian law provide that, in the context of the judicial review undertaken with a view to endorsement, the court seised of the matter considers whether the decision of the public prosecutor’s office meets the legal requirements, including in the light of fundamental rights, and whether that decision is proportionate, (38)

while taking the factual context of the decision into account.

In addition, the requested person has the right to bring an action against the endorsement as such.

73.It seems to me that in the present case, having regard to the matters brought to light in the order for reference, and in the Austrian Government’s written and oral observations, such a national system (including, in particular, the endorsement procedure) is capable of ensuring a rigorous examination of the decision of the public prosecutor’s office by the court seised. The objective of that judicial review is to ensure that the issue of the European arrest warrant conforms to the applicable legal requirements, including from the viewpoint of proportionality. To my mind, the purpose of the review carried out by the court is not to ascertain whether instructions were given to the public prosecutor’s office by the executive in a specific case (although, according to the Austrian Government, such instructions must be given in writing and placed on the criminal file, which is transmitted to the endorsing court). The nuance is subtle, but important. In my view, it is necessary, above all, that the judicial review carried out allow the court seised to establish that the conditions of legality have been met in full. The system in question must ensure that the judicial authority concerned issued the European arrest warrant in complete conformity with the law. Accordingly, such a system must make it possible to eliminate the unlawful consequences of the power enjoyed by the executive to issue directions, by preventing the implementation of unlawful decisions of the public prosecutor’s office, owing to the prior review by the court.

74.I consider that such a system ensures compliance with the basis on which the European arrest warrant system established by Framework Decision 2002/584 rests, namely mutual confidence between Member States in the context of their cooperation in criminal matters.

75.In the interest of completeness, I would add that if there should be a risk that the public prosecutor’s office would receive orders from the executive post endorsement, relating to the implementation and transmission of the European arrest warrant to the executing Member States (a risk which, moreover, has not been in any way established in the present case), it would be for the authorities of the executing Member State to examine that question and to draw any necessary conclusions. I observe in any event that such a risk might exist in any other system for the issue of a European arrest warrant and that, moreover, the failure on the part of the authorities of the issuing Member State to implement and transmit the arrest warrant is hardly likely to harm the rights of the requested person – which is the subject of my analysis in the present case.

The conditions laid down in the judgment in OG and PI

76.The referring court is unsure whether the conditions laid down in paragraphs 74 and 75 of the judgment in OG and PI should be read together or as alternatives.

77.The German Government maintains that both the conclusion which the Court reached in the judgment in OG and PI with respect to the German public prosecutor’s offices and the wording of paragraphs 74 and 75 of that judgment (which contain the words ‘in addition’) argue in favour of a cumulative reading of the two conditions. The Republic of Austria contends that there is no need to examine the question of the relationship between paragraphs 74 and 75 of the judgment in OG and PI on the ground that in the present case it is the court entrusted with endorsing the arrest warrant that must be held responsible for issuing it, and that the question is thus irrelevant. The Commission submits, last, that the two questions are separate, with no cumulative or alternative relationship between them, but must, on the contrary, be assessed according to their own criteria and requirements. According to the Commission, it is a matter of legal requirements applicable, on the one hand, to the valid issue of a European arrest warrant and, on the other hand, to legal protection against the European arrest warrants thus issued.

78.At the outset, I consider that, in accordance with the Court’s settled case-law, it is necessary to carry out the analysis taking account of both the wording of Article 6(1) of the Framework Decision 2002/584, its legislative scheme and the objective of that framework decision. Furthermore, it should be noted that, in the context of the procedure laid down in Article 267 TFEU, when it gives an interpretation of EU law in a specific action pending before a national court, the Court limits itself to deducing the meaning of the rules established by EU law from the wording and spirit of EU law, it being left to the national court to apply in the particular case the rules which are thus interpreted.

79.Thus, in the present case it is for the Court to interpret Article 6(1) of Framework Decision 2002/584 and to supply the national court with the criteria of analysis that are necessary in order to establish that the national system at issue is consistent with the requirements of that framework decision. It is the Court that must clarify the rules on verification highlighted by the Grand Chamber in the judgment in OG and PI. In that respect, it is not a matter of imposing additional requirements by reference to the provision concerned, but of elucidating the requirements that flow from the very concept of ‘issuing judicial authority’.

80.In my view, both of the conditions laid down in paragraphs 74 and 75 of the judgment in OG and PI are relevant for the purposes of assessing the judicial review carried out by the endorsing court with regard to the decision of the public prosecutor’s office. I share the Commission’s view that it does not seem appropriate to classify those conditions as ‘alternative’ or ‘cumulative’, since they each relate to a different subject and must be assessed according to their own criteria and requirements. In that respect, I consider that the Court thus highlighted two necessary stages in the evaluation of the judicial review of the decision of the public prosecutor’s office.

81.Thus, without a verification of the guarantees relating to the independence of the authority empowered to issue a European arrest warrant in the legal order of the issuing Member State, and to the proportionality of the European arrest warrant concerned, that warrant should have no legal effects.

The guarantees

82.I shall begin by observing that it is for the issuing judicial authority to establish that the requirements of Article 6(1) of Framework Decision 2002/584 have been met within the issuing Member State. I fully support the approach taken by my late lamented colleague and friend, Advocate General Bot, who emphasised, in his Opinion in Bob-Dogi, that:

‘In my view, the strict terms in which the grounds for non-execution of the European arrest warrant have been framed presuppose that there must, by way of counterweight, be specific and effective procedural safeguards of the rights of the defence in the Member State issuing the European arrest warrant. If not, the essential balance between the requirements of an effective criminal justice system and the need to safeguard fundamental rights, which forms an integral part of the creation of a European judicial area, will be lost.’

83.Every national system must therefore be able to present procedural guarantees that comply fully with the Charter. That follows from the settled case-law that the European arrest warrant is based on the principle of mutual recognition. The principle of mutual recognition, which, as is apparent, in particular, from recital 6 of the framework decision, is the ‘cornerstone’ of judicial cooperation in criminal matters, is expressed in Article 1(2) of Framework Decision 2002/584, pursuant to which Member States are required in principle to give effect to a European arrest warrant.

84.As regards the requirements of independence and proportionality under Article 6(1) of Framework Decision 2002/584, it should be observed that the former covers the fundamental rights of the requested person. The latter is designed to ensure that the judicial authorities of the Member States do not pursue the requested person for minor offences. As regards that second requirement, it is generally accepted that the question of the review of proportionality is one of the major difficulties which the European arrest warrant system has faced since it was implemented. Now, following the judgment in OG and PI, it is clear that the review of proportionality is a fundamental requirement.

The Court has already drawn attention to the requirements of independence and proportionality that must be applied where an issuing Member State has allocated the power to issue the European arrest warrant to an authority which, while participating in the administration of justice of that Member State, is not itself a court (as in the present case), in the light of the objectives and the general scheme of Framework Decision 2002/584. (53)

In my view, if the Court clarified the reference norms to be followed in that regard, it would be easier to resolve the question of whether a national authority authorised to issue a European arrest warrant satisfied the conditions of Article 6(1) of Framework Decision 2002/584. In that regard, I would emphasise that it is essential to provide procedural guarantees at the stage of the issue of a European arrest warrant.

To my mind, when the legal order of an issuing Member State allows the decision to issue a European arrest warrant to be taken by an authority that is not itself a court, but requires that the decision be endorsed by a court, it is of fundamental importance that that State be in a position to demonstrate that the judicial supervision thus established does not consist in granting a mere ‘nihil obstat’, without a genuine examination of the initial decision of a body such as a public prosecutor’s office.

I shall further state that, when the judicial authority that took the decision to issue the European arrest warrant is a public prosecutor’s office that may be subject to orders issued by, in particular, the executive (as in the present case), it is necessary that the judicial endorsement of such a decision be given before that arrest warrant has legal effects.

Last, since the issue of a European arrest warrant is by its nature liable to infringe the right to liberty of the person concerned, enshrined in Article 6 of the Charter, it seems to me that the national endorsement system should allow the requested person to be heard by a court in order to challenge the validity of that decision in accordance with Article 47 of the Charter.

Application in the present case

What is the impact of the Court’s decision in the case of OG and PI on the dispute in the main proceedings?

To my mind, the Austrian system is clearly different from the German system at the origin of that judgment, on a number of essential points. (54)

Admittedly, the public prosecutor’s offices are subordinate to the executive in the hierarchy of the Austrian system. According to the information provided in the order for reference, the public prosecutor’s offices are directly subordinate to and act on the instructions of the higher public prosecutor’s offices; the higher public prosecutor’s offices and the principal prosecutor’s office are in turn subordinate to the Federal Minister for Justice.

However, as the referring court itself observes, the procedure for issuing a European arrest warrant in Austria is distinct from the circumstances that gave rise of the judgment in OG and PI. First, the Austrian system provides for endorsement of the European arrest warrant (an endorsement that was actually given in the present case). Second, that judicial endorsement entails verification of compliance with the criteria of legality and proportionality (in accordance with Paragraph 5(1) and (2) of the StPO). Third, the judicial endorsement procedure is governed by law; if additional investigative measures are necessary in order to adjudicate on the endorsement of the arrest warrant, the court seised may order the criminal police to carry them out or may itself assume responsibility for doing so. (55) Fourth, and last, the endorsement may form the subject of an action before the courts, pursuant to Paragraph 87(1) of the StPO. (56) I consider that such an action is an element that meets in full the requirements inherent in effective judicial protection.

I note, moreover, that the judicial endorsement is given before the decision of the public prosecutor’s office takes effect.

In the light of the information provided in the order for reference, in the Austrian Government’s written and oral observations and in the latter’s answers to the questions put by the Court at the hearing, it seems to me that under the Austrian legislation the national courts are required to carry out a thorough and rigorous examination of each mandate submitted to them and of the related criminal file. In that judicial review, the criteria of legality and proportionality must be observed.

Since the system established by Framework Decision 2002/584 is based on a high degree of confidence between Member States, which entails a presumption that each Member State observes the rights enshrined in the Charter, it seems to me that, without duly established proof to the contrary, the conformity to the Charter and to that framework decision of a legal system such as that in the present case, which makes the issue of a European arrest warrant by the public prosecutor’s office subject to prior judicial review, cannot be called into question. That presumption can be rebutted only on the basis of material that is objective, reliable, specific and properly updated concerning the operation of justice in the issuing Member State, (57) constituting such proof to the contrary – material which seems to be absent in the present case.

I therefore consider that, in the light of the material submitted for the Court’s appraisal, a system such as that at present in force in Austria is consistent with the requirements of Article 6(1) of Framework Decision 2002/584.

I conclude that it is for the referring court to verify, taking account of all of the circumstances of the case in the main proceedings, whether the system of the issuing Member State concerned provides the procedural guarantees necessary in order to safeguard the rights of defence of the person covered by the European arrest warrant and to ensure a review of the proportionality of that warrant, in accordance with the requirements of Article 6(1) of Framework Decision 2002/584. In a case such as that in the main proceedings, that national system must contain the following elements: (i) the initial decision to issue the European arrest warrant must be the subject of judicial review, in the context of which the court seised carries out a rigorous examination of the decision before issuing an endorsement; (ii) that judicial review must take place before the warrant has legal effects; and (iii) the endorsement of the European arrest warrant (resulting from that judicial review) must itself be amenable to appeal.

Conclusion

In the light of all of the foregoing considerations, I consider that the question referred to the Court by the Kammergericht Berlin (Higher Regional Court, Berlin, Germany) calls for the following answer:

It is for the referring court to verify, taking into account all the circumstances of the case at issue, on the basis 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, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009, (i) whether a judicial authority issued the European arrest warrant in the present case; (ii) whether that judicial authority acted in complete independence; and (iii) whether that authority assessed the legality and the proportionality of the decision to issue such a warrant.

In a case such as that in the main proceedings, the following elements may be relied on in order to establish that the system of the issuing Member State meets the requirements inherent in effective judicial protection:

the initial decision to issue a European arrest warrant is the subject of judicial review, in the context of which the court seised carries out a rigorous examination of that decision before issuing an endorsement;

that judicial review takes place before the warrant has legal effects;

the endorsement of the European arrest warrant (resulting from that judicial review) is itself amenable to appeal.

* * *

(1) Original language: French.

(2) Judgment of 27 May 2019(Public Prosecutor’s Offices of Lübeck and Zwickau) (C‑508/18 and C‑82/19 PPU, EU:C:2019:456).

(3) Council Framework Decision 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’).

(4) It should be noted that three requests for a preliminary ruling (C‑625/199 PPU, C‑626/19 PPU and C‑627/199 PPU), submitted on 22 August 2019 by the same court (the Rechtbank Amsterdam (District Court, Amsterdam, the Netherlands), have been made concerning the same legal issue.

(5) See the 18th indent of Article 2(2).

(6) See point 93 of this Opinion.

(7) See points 9 and 10 of this Opinion.

(8) In its order for reference, the referring court refers (in paragraph 22) to a statement made by the Austrian Government. It seems likely to me that this is the statement referred to in the Council document of 12 June 2019, entitled ‘Judgments of the CJEU of 27 May 2019 in joined cases C‑508/18 and C‑82/19 PPU and in case C‑509/18 – public prosecutor’s offices acting as judicial authorities – Exchange of views on the follow-up – Paper by the Presidency’, Document No ST 9974 2019, p. 13.

(9) As defined above (see footnote 2).

(10) See points 11 to 15 of this Opinion.

(11) See points 76 to 81 of this Opinion.

(12) See judgment of 30 May 2013, F (C‑168/13 PPU, EU:C:2013:358, paragraph 31).

(13) See judgment of 12 February 2019, TC (C‑492/18 PPU, EU:C:2019:108, paragraph 30 and the case-law cited).

(14) See points 24 and 25 of this Opinion.

(15) See judgment of 16 July 2015, Lanigan (C‑237/15 PPU, EU:C:2015:474, paragraph 37).

(16) See the 18th indent of Article 2(2) of Framework Decision 2002/584. The referring court states that the person concerned committed at least attempted theft with the assistance of an accomplice and using a knife in order to intimidate a third party (see points 4 and 17 of this Opinion).

(17) See judgment in OG and PI (paragraphs 85 to 87).

(18) Judgments of 10 November 2016, Poltorak (C‑452/16 PPU, EU:C:2016:858, paragraphs 33 and 35), and of 10 November 2016, Kovalkovas (C‑477/16 PPU, EU:C:2016:861, paragraphs 34 and 36).

(19) See point 76 et seq. of this Opinion.

(20) See paragraph 67 of the judgment in OG and PI.

(21) See judgment of 10 November 2016 (C‑477/16 PPU, EU:C:2016:861, paragraph 47).

(22) See paragraph 71 of the judgment in OG and PI.

(23) Judgment of 27 May 2019 (Prosecutor General of Lithuania) (C‑509/18).

EU:C:2019:457

Ibid., paragraphs 55 and 56. However, the Court did not rule on whether the decisions taken by the Prosecutor General of Lithuania in connection with a European arrest warrant might be the subject of court proceedings that meet in full the requirements inherent in effective judicial protection: it requested the referring court to determine that point.

The Commission further observes that that court must verify the conditions of the issue of the European arrest warrant and of its proportionality.

In the sense referred to in the judgments of 10 November 2016, Poltorak (C‑452/16 PPU, EU:C:2016:858, paragraphs 33 and 35); of 10 November 2016, Kovalkovas (C‑477/16 PPU, EU:C:2016:861, paragraphs 34 and 36); and the judgment in OG and PI (paragraph 50).

See judgment in OG and PI (paragraph 60).

See point 67 et seq. of this Opinion.

Judgment of 10 November 2016, Özçelik (C‑453/16 PPU, EU:C:2016:860).

See judgment in OG and PI (paragraph 50), where the Court refers to ‘ministries or police services which are part of the executive’. See also judgment of 10 November 2016, Özçelik (C‑453/16 PPU, EU:C:2016:860, paragraph 32).

I am referring here to the expression used by the Austrian Government in its pleadings.

This element was confirmed by the Austrian Government at the hearing. The public prosecutor’s office directs the investigation and is best placed to determine whether it is appropriate to issue a European arrest warrant.

The parties explained at the hearing that that notification mentioned in particular the reform referred to in point 60 of this Opinion – a reform which transferred the powers of the investigating judges to the public prosecutor’s office. See also ‘Statement by the Republic of Austria pursuant to Article 6 of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, Annex to Council of the European Union, Council Framework Decision 2002/584/JHA on the European arrest warrant and the surrender procedures between Member States – Statement by the Republic of Austria on a change in the competent Authorities, Brussels, 5711/08, 28 January 2008’.

See paragraph 67 of the judgment in OG and PI. See also point 42 and footnote 21 of this Opinion.

Judgment in OG and PI (paragraphs 72 and 73).

Judgment in OG and PI (paragraphs 74 and 75).

See point 66 of this Opinion.

See point 66 of this Opinion.

See point 15 of this Opinion.

See point 14 of this Opinion.

The Court has referred, by way of example, to instructions given by the executive in a specific case (see the judgment in OG and PI, paragraph 74).

See point 59 of this Opinion.

See recital 10 of Framework Decision 2002/584.

Judgment in OG and PI (paragraph 49 and the case-law cited).

See, mutatis mutandis, judgment of 27 March 1963, Da Costa and Others (28/62 to 30/62, EU:C:1963:6, page 38).

See judgment of 10 November 2016, Özçelik (C‑453/16 PPU, EU:C:2016:860, paragraph 25 and the case-law cited).

See recital 12 and Article 1(3) of Framework Decision 2002/584.

See Opinion of Advocate General Bot in Bob-Dogi (C‑241/15, EU:C:2016:131, points 77 to 83).

See my Opinion in Radu (C‑396/11, EU:C:2012:648, point 60).

See recital 8 of Framework Decision 2002/584, judgment of 10 November 2016, Kovalkovas (C‑477/16 PPU, EU:C:2016:861, paragraph 47), and judgment in OG and PI (paragraph 71).

See point 58 et seq. of this Opinion.

See point 13 of this Opinion.

See point 14 of this Opinion.

See, by analogy, judgment of 25 July 2018, Minister for Justice and Equality (Deficiencies in the legal system) (C-216/18 PPU, EU:C:2018:586, paragraph 61 and the case-law cited).