CJEU Case C-8/24 / Opinion

40. Furthermore, it must be stated that the obligation to comply with the Charter is binding on the Member States when they decide on an application for recognition and execution of a confiscation order, given that such a decision constitutes an implementation of Union law within the meaning of Article 51(1) of the Charter. The competent authorities of the executing Member State are therefore required, when adopting a decision on such an application, to ensure respect for the fundamental rights afforded by the Charter to the person subject to the confiscation order in respect of which recognition and execution are sought. ( 18 )

41. Those rights include, in particular, the right to an effective remedy and to a fair trial laid down in Article 47 of the Charter, and the rights of the defence guaranteed by Article 48(2) thereof.

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43. In addition, Article 19(1)(h) of that regulation provides that the executing authority may decide not to recognise or execute a confiscation order only where, in exceptional situations, there are substantial grounds to believe, on the basis of specific and objective evidence, that the execution of that confiscation order would, in the particular circumstances of the case, entail a manifest breach of a relevant fundamental right as set out in the Charter, in particular the right to an effective remedy, the right to a fair trial or the right of defence. ( 20 )

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47. It is on the basis of Article 1(3) of Framework Decision 2002/584 that the Court has held that the existence of a risk of a breach of the fundamental rights recognised by the Charter is capable of permitting the executing judicial authority to refrain, exceptionally and following an appropriate examination, from giving effect to a European arrest warrant. ( 21 )

48. As regards the manner in which such an examination is carried out, it is apparent from the Court’s case-law on Framework Decision 2002/584 that the assessment, during a procedure for the execution of a European arrest warrant, of whether there is real risk of a breach of the fundamental rights enshrined in Articles 4, 7, 24 and 47 of the Charter must, in principle, be carried out by means of an examination in two separate steps which cannot overlap with one another, in so far as they involve an analysis on the basis of different criteria, and which must therefore be carried out in turn. ( 22 )

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62. Admittedly, the Court has answered in the affirmative the question whether the two-step examination required under Framework Decision 2002/584 could be applied to a case involving a request seeking not the surrender to the issuing authorities of a person who is the subject of a European arrest warrant, on the basis of that framework decision, but the recognition of a judgment and the enforcement in the executing State, on the basis of Framework Decision 2008/909, of a criminal sentence handed down in another Member State, where there is evidence that the conditions prevailing in that latter Member State on the date of the adoption of the decision to be enforced or of related subsequent decisions are incompatible with the fundamental right to a fair trial laid down in the second paragraph of Article 47 of the Charter. ( 32 )

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68. In that regard, it should be noted that, as regards a risk of a ‘manifest breach’ of a fundamental right ‘in the particular circumstances of the case’, Article 19(1)(h) of that regulation unequivocally requires an individual examination of the existence of such a risk. I note that neither that provision nor any other provision of that regulation requires that, before that individual examination can be carried out, there must be a finding of systemic or generalised deficiencies, or deficiencies affecting more specifically an objectively identifiable group of persons. ( 39 ) When adopting Regulation 2018/1805, the Court had already formulated the requirement for a two-step examination in relation to the European arrest warrant, ( 40 ) including in order to check whether there is a risk of a breach the fundamental right to a fair trial, as set out in the second paragraph of Article 47 of the Charter, ( 41 ) so it was, in my view, a conscious and deliberate choice on the part of the EU legislature not to impose such a two-step examination in the context of that regulation. Therefore, although a finding of such deficiencies may of course enable the finding of a breach of a fundamental right in the circumstances of the present case, it is not a mandatory step if the wording used by the EU legislature in Article 19(1)(h) of that regulation is taken into account.

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78. Having made those clarifications, the fact remains that, by limiting the executing authority’s power to invoke the ground for non-recognition and non-execution provided for in Article 19(1)(h) of Regulation 2018/1805 to ‘exceptional situations’ where there is a ‘manifest breach’ of a fundamental right protected by the Charter, the EU legislature intended to require the executing authority to exercise that power only where such a breach reaches a particularly high level of severity, in line with what the Court held in paragraph 192 of Opinion 2/13 (Accession of the European Union to the ECHR), of 18 December 2014. ( 50 )

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86. In the third place, recital 18 of Regulation 2018/1805 states that, in any event, the safeguards under the Charter should apply to all proceedings covered by that regulation. In particular, that recital states that the essential safeguards for criminal proceedings set out in the Charter should apply to proceedings in criminal matters that are not criminal proceedings but which are covered by that regulation.

87. In that regard, it should be recalled that, under the first and second paragraphs of Article 47 of the Charter, everyone whose rights and freedoms guaranteed by the law of the European Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in that article and, in particular, is entitled to a fair hearing. ( 58 ) Thus, the principle of effective judicial protection of the rights which individuals derive from EU law, which is reaffirmed by Article 47 of the Charter, comprises various elements; in particular, the rights of the defence, the principle of equality of arms, the right of access to a tribunal and the right to be advised, defended and represented. ( 59 ) It is also appropriate to cite Article 48(2) of the Charter, the aim of which is to guarantee respect for the rights of the defence of anyone who has been charged.

88. It follows from the foregoing that, at the very least and even if his or her situation does not fall within the scope of the various directives relating to procedural rights in the criminal proceedings to which I have referred above, a person who is subject, in one Member State, to a confiscation order the recognition and execution of which are sought in another Member State, on the basis of Regulation 2018/1805, must have been placed in a position to benefit in the issuing Member State from the essential safeguards for criminal proceedings set out in the Charter.

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93. A situation in which the person affected by a confiscation order seeks a declaration by a court of the executing Member State that such rights have been infringed, even though he or she is afforded an effective remedy to that end in the issuing Member State, cannot, in my view, meet the particularly high level of severity required by that provision. In other words, I cannot identify any element capable of demonstrating the existence of an ‘exceptional situation’ characterised by the presence of ‘specific and objective evidence’ capable of constituting ‘substantial grounds’ to believe that the execution of the confiscation order at issue would, ‘in the particular circumstances of the case’, entail a ‘manifest breach’ of a fundamental right set out in the Charter, within the meaning of Article 19(1)(h) of Regulation 2018/185.

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97. As is shown, in particular, by Article 18(1), ( 68 ) Article 23(1) ( 69 ) and Article 33(2) ( 70 ) of Regulation 2018/1805, the system of judicial cooperation established by that regulation is also based on a distinction between responsibilities relating to the justification and issuing of a confiscation order, which fall within the remit of the issuing authority, and those relating to the execution of that order, which fall within the remit of the executing authority. In that context, it is primarily the responsibility of the issuing Member State to ensure that a confiscation order observes the rights which the person affected by that order derives from EU law, which include the fundamental rights protected by the Charter. ( 71 ) It is therefore only exceptionally that the executing authority may refrain, under Article 19(1)(h) of that regulation, from recognising and executing a confiscation order transmitted to it. Only a division of responsibilities of that nature is capable of ensuring effective cross-border cooperation in order to freeze and confiscate the instrumentalities and proceeds of crime. ( 72 )

98. In accordance with its primary responsibility to guarantee fundamental rights in the context of proceedings leading to the adoption of a confiscation order, the issuing Member State must guarantee effective judicial protection to the person subject to such an order, in particular by putting in place legal remedies so that respect for those rights may be reviewed. If it is common ground that there was a legal remedy available to that person in that Member State and he or she did not pursue it, although by pursuing that legal remedy, he or she could have had any infringement of his or her fundamental rights, such as those guaranteed by Article 47 of the Charter, established and, where appropriate, rectified or penalised, there is no reason for the executing authority to call into question the presumption that the confiscation order to which that person is subject was issued in accordance with those fundamental rights. ( 73 ) In accordance with the principle of mutual trust, that approach prohibits a court of the executing Member State, hearing claims such as those at issue in the main proceedings, from monitoring the application by a court of the issuing Member State of its rules of procedure in criminal matters in an individual case.

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101. In that regard, according to that case-law, recourse to that public policy clause may be justified where there is a manifest and disproportionate breach of the defendant’s right to a fair trial referred to in the second paragraph of Article 47 of the Charter. ( 76 ) In particular, as regards the circumstances in which the fact that a judgment of a court of a Member State was delivered in breach of procedural safeguards may constitute a ground for refusal of recognition under Article 34(1) of Regulation No 44/2001, the Court has held that the public policy clause in that article would apply only where such a breach means that the recognition of the judgment concerned in the Member State in which recognition is sought would result in the manifest breach of an essential rule of law in the EU legal order and therefore in the legal order of that Member State. ( 77 ) I would also point out that, according to the Court, it is that trust which the Member States accord to one another’s legal systems and judicial institutions which permits the inference that, in the event of the misapplication of national law or EU law, the system of legal remedies in each Member State, together with the preliminary ruling procedure provided for in Article 267 TFEU, affords a sufficient guarantee to individuals. ( 78 ) Thus, Regulation No 44/2001 must be interpreted as being based on the fundamental idea that individuals are required, in principle, to use all the legal remedies made available by the law of the Member State of origin. Save where specific circumstances make it too difficult or impossible to make use of the legal remedies in the Member State of origin, the individuals concerned must avail themselves of all the legal remedies available in that Member State with a view to preventing a breach of public policy before it occurs. ( 79 ) When determining whether there is a manifest breach of public policy in the Member State in which recognition is sought, the court of that Member State must take account of that fact. ( 80 )

102. In the context of the present case, in order to determine whether there is a manifest breach of a fundamental right as set out in the Charter, pursuant to Article 19(1)(h) of Regulation 2018/1805, the competent court of the executing Member State should therefore take account of the fact that D. did not avail itself of the legal remedies available in the issuing Member State in order to prevent a breach of its fundamental rights, such as those guaranteed by Article 47 of the Charter, before it occurred. If D. has referred to particular circumstances which made it too difficult or impossible to make use of the legal remedies in that Member State, that court should take them into consideration.

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116. In the light of all the foregoing, I suggest that the Court’s answer to the third question referred for a preliminary ruling should be that Article 19(1)(h) of Regulation 2018/1805 must be interpreted as meaning that the recognition and execution of a confiscation order may not be refused by the executing authority under that provision in a situation where the person affected by that order, which was duly served on that person, did not avail him or herself of an effective remedy which was available in the issuing Member State, although by pursuing that remedy, that person could have had a court of that Member State review the observance of his or her fundamental rights, in particular those guaranteed by Article 47 of the Charter, by alleging before that court, first, that he or she did not participate in all the stages of the criminal proceedings which led to the issuing of that order, second, that he or she was not advised of the right of access to a lawyer and, third, that he or she was not served the full text of the judgment containing the confiscation order in a language he or she understood.