CJEU Case C‑528/24 / Opinion

40. This distinction is fundamental to the application of the rule of speciality, whose enforcement under the EAW regime presupposes that both Member States act within a framework of mutual trust. It is on the basis of that mutual trust that the issuing State is permitted to assume responsibility for the prosecution or enforcement of a sentence once surrender has been authorised. ( 21 ) Equally, that mutual trust guarantees that the fundamental rights of the persons concerned, including those enshrined in the Charter, are protected through national legal systems deemed capable of providing equivalent and effective protection within the European Union. ( 22 )

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42. In particular, the Court emphasised that the TCA contains derogations and additional guarantees, such as those provided for in Article 602, Article 603 and Article 604(c) of the TCA, that are not found in Framework Decision 2002/584. The judgment in Alchaster I states that the TCA framework necessitates a case-by-case, ex ante examination of the applicable legal safeguards and limits. ( 25 ) It follows that the EU Courts must perform an individualised risk assessment in the light of the Charter. The Court concluded that this regime requires an independent assessment by the executing judicial authority, without reliance on a general presumption of trust. ( 26 )

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57. In the light of the Court’s reasoning in the judgment in Alchaster I, the executing judicial authority must conduct an ex ante review to ensure that the anticipated post-surrender treatment will comply with the rule of speciality. Thus, whether the rule of speciality applies to the case at hand is a question that must be invoked pre-surrender as part of the executing judge’s assessment in the light of the Charter.

58. It follows that the consent mechanism in Article 625(3)(g) and (4) of the TCA and the assessment in the light of the Charter, as applied to the rule of speciality, are two distinct questions. The procedure in relation to consent takes place after surrender: it is triggered only when the issuing State formally requests an extension of the scope of the surrender in order to prosecute the person surrendered for ‘other offences’. ( 45 ) By contrast, the executing judicial authority’s ex ante review takes place before surrender and concerns the baseline guarantee in Article 625(2) of the TCA, namely that the individual will not be prosecuted, sentenced or otherwise deprived of liberty for unauthorised offences, that is to say, offences other than those authorised in the warrant. That is an immediate and ex ante form of protection; it is part of what makes the surrender decision lawful in the first place.

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65. On the other hand, from a systemic perspective, the rule of speciality operates as a procedural shield that gives concrete effect to rights conferred by the Charter, such as the right to liberty (Article 6), ( 50 ) the right to effective judicial protection (Article 47) and the principle of legality and foreseeability of penalties (Article 49(1)). ( 51 ) Although not an independent right expressly enshrined in the Charter, it is comparable to essential procedural guarantees such as the right to legal assistance or the right to be present at trial.

66. In particular, according to Article 47 of the Charter, which constitutes a reaffirmation of the principle of effective judicial protection, national courts must be able to do what is necessary to secure the full force and effect of directly effective EU rights. ( 52 ) Article 625(2) of the TCA, as an essential procedural guarantee forming part of EU law, ( 53 ) confers such a right. Consequently, the executing judicial authority must have the jurisdiction and duty to ensure its observance by refusing surrender or by requiring binding assurances where a breach of that guarantee is likely. Any national rule or practice preventing that authority from exercising that power would impair the effectiveness of EU law and contravene Article 47 of the Charter. ( 54 ) Article 47 of the Charter thus presupposes that Article 625(2) of the TCA be judicially enforceable, empowering the executing authority to ensure its compliance.

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70. In my view, such a narrow reading should not be upheld. First and foremost, the TCA is an integral part of the EU legal order ( 55 ) and, therefore, its interpretation must be consistent with the Charter, which applies whenever Member States act within the scope of EU law, including in surrender proceedings under Part Three of the TCA. It follows that the rule of speciality under Article 625(2) of the TCA must be construed in a manner that respects the Charter. In particular, the rights to liberty enshrined in Article 6 of the Charter and to effective judicial protection under Article 47 of the Charter, as well as the principle of legality and foreseeability of penalties under Article 49(1) of the Charter, require that the protection afforded by the rule of speciality not be confined to offences formally labelled as ‘criminal’ by the issuing State, but that it extend to any conduct or procedure that is criminal in nature or effect.

71. That requires, therefore, that an autonomous interpretation be given to the term ‘offence’, as established by the Court’s case-law in Bonda, ( 56 ) which mirrors the Engel criteria developed by the European Court of Human Rights ( 57 ) (‘the Bonda criteria’), whereby the Court established the three-step test for determining whether a sanction is ‘criminal in nature’: (i) the legal classification under national law; (ii) the intrinsic nature of the offence; and (iii) the severity of the penalty. That approach ensures that deprivation of liberty cannot be excluded from the protection of the rule of speciality merely because a national system classifies a sanction as ‘civil’, ‘administrative’ or ‘disciplinary’. In other words, Article 625(2) of the TCA cannot be interpreted in a way that would exclude from its scope conduct and sanctions governed by the rights safeguarded by the Charter. ( 58 )

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77. In that respect, I observe that Article 599(2) and Article 625(2) of the TCA regulate different stages of the surrender process and serve different purposes. Article 599(2) of the TCA, applying the rule of double criminality, concerns the admissibility of surrender for the conduct that forms the basis of the request for surrender. By contrast, Article 625(2) is a protective safeguard, preventing prosecution or otherwise deprivation of liberty for ‘other offences’ committed before surrender. In order to guarantee the protections granted by the Charter and to be effective, the rule of speciality requires an autonomous interpretation of ‘offence’, following the Bonda criteria. ( 64 )

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88. In the same vein, it should be considered that, under the TCA, both the content of the rule of speciality (substantive observance) and the ability to enforce it (procedural access to justice) are indispensable for ensuring compatibility with the fundamental rights standards arising from the Charter. Where either dimension is uncertain, the executing judicial authority cannot proceed with surrender. It has a duty to assess the foreseeable situation of the requested person in the United Kingdom.

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93. The rule of speciality under Article 625(2) of the TCA constitutes an essential procedural guarantee ensuring that the person surrendered is not prosecuted, sentenced or otherwise deprived of liberty for offences other than those for which surrender is authorised by the executing judicial authority. The TCA forms part of EU law, which means that its interpretation must be consistent with the Charter, in particular Article 6, Article 47 and Article 49(1) thereof, which safeguard the right to liberty, effective judicial protection and the legality and foreseeability of penalties. Accordingly, the term ‘offence’ in Article 625(2) of the TCA cannot be interpreted solely according to the classification used by the issuing State, but must be given an autonomous interpretation, determined by reference to the Bonda criteria; in particular, the nature of the offence, its intrinsic character and the severity of the penalty. Since Article 625(2) of the TCA constitutes an enforceable right within the EU legal order, an individual must be able to rely on it as an objection to surrender being authorised. In case of a substantive or procedural breach of the rule of speciality, the executing judicial authority must intervene pursuant to Article 604(c) of the TCA to suspend or prevent surrender, as the absence of substantive observance or procedural enforceability of the rule of speciality would render the surrender incompatible with the Charter.

94. Accordingly, I propose that in response to the first four questions the Court should decide that Article 604(c) and Article 625(2) of the TCA, read in conjunction with Article 6, Article 47 and Article 49(1) of the Charter, must be interpreted as meaning that the rule of speciality constitutes an enforceable essential procedural guarantee, the breach or likely breach of which, assessed by reference to a concept of ‘offence’ that is autonomously defined, taking into account the legal classification under national law, the intrinsic nature of the offence, and the severity of the penalty, requires the executing judicial authority to make surrender conditional upon adequate guarantees from the issuing State that the person surrendered will not be prosecuted, sentenced or otherwise deprived of liberty for offences other than those for which that person was surrendered.

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98. If the rule of speciality is absent, ineffective or cannot be relied on by individuals – as may occur where the issuing State treats certain conduct (such as civil contempt) as being outside the criminal sphere – that factor already indicates a structural risk of infringement of Article 625(2) and Article 604(c) of the TCA, read in conjunction with Article 6, Article 47 and Article 49(1) of the Charter. Where the issuing State’s law expressly excludes such conduct and the related sanctions from the protection of the rule of speciality, the risk becomes certain rather than hypothetical.

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100. In that respect, under the TCA surrender regime, cooperation between the executing judicial authority and the issuing State’s authorities is essential. In practice, such cooperation may take the form of judicial dialogue and the exchange of information under Article 604(c), enabling the executing judicial authority to request clarification or guarantees from the issuing State as to the scope of the offences, the applicable procedural safeguards or the respect of the rule of speciality. Where doubts persist, the issuing State may provide formal assurances addressing specific concerns, such as the limits of prosecution or the availability of effective remedies. That process allows both authorities to balance the individual’s rights with the public interest in the effective administration of justice, ensuring that surrender proceeds only once adequate guarantees are in place. Subsequently, the executing judicial authority may need to assess whether the additional guarantees satisfy the requirements of Article 47 of the Charter, while also taking into account the victims’ right to justice. ( 77 )

101. That approach ensures that Article 625(2) of the TCA operates as an effective, enforceable safeguard against unauthorised prosecution or deprivation of liberty. It is consistent with Article 47 and Article 49(1) of the Charter, which require that surrender proceedings under the TCA be lawful and foreseeable, and provide effective judicial protection.

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103. In the light of the foregoing, I take the view that Article 604(c) and Article 625(2) of the TCA, read in conjunction with Article 6, Article 47 and Article 49(1) of the Charter, must be interpreted as meaning that the surrender of a requested person who has been sentenced to six months’ deprivation of liberty for contempt of court, where such surrender has not been sought for the purpose of serving that sentence on the ground that such contempt is classified as civil under the law of the issuing State, is incompatible with EU law if, according to the executing judicial authority, that contempt is, in essence, criminal in nature and there are substantial grounds for believing that, after surrender, there would be substantial or procedural breach of the rule of speciality, insofar as the person would be deprived of liberty in breach of the rule of speciality or that the person cannot invoke the rule of speciality; the executing judicial authority being required, before authorising the surrender, to obtain adequate additional guarantees from the issuing State that the person will not be prosecuted, sentenced or otherwise deprived of liberty for that contempt, failing which surrender must be refused.