CJEU Case C-241/15 / Opinion

Niculaie Aurel Bob-Dogi
Policy area
Justice, freedom and security
Deciding body type
Court of Justice of the European Union
Deciding body
Advocate General
Decision date
ECLI (European case law identifier)
  • CJEU Case C-241/15 / Opinion

    Key facts of the case:

    Reference for a preliminary ruling — Police and judicial cooperation in criminal matters — Framework Decision 2002/584/JHA — European arrest warrant — Article 8(1)(c) — No prior national arrest warrant that is separate from the European arrest warrant — Effect

    Outcome of the case:

    In light of the foregoing considerations, I propose the following reply to the questions referred by the Curtea de Apel Cluj (Appeal Court, Cluj):

    Article 8 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, read in the light of the principle of legality and the principle of proportionality, must be interpreted as meaning that:

    • a European arrest warrant may be issued only for the execution of a separate national arrest warrant, or other enforceable judicial decision having the same effect, which orders the arrest of the prosecuted person and was adopted in accordance with the rules of criminal procedure of the issuing Member State; 
    • if that is not the case, the executing judicial authority must refuse to execute the act as a European arrest warrant.
  • Paragraphs referring to EU Charter

    59) The principle of mutual recognition on which the European arrest warrant system is based is itself founded on the mutual confidence which, according to the wording of the judgment in West, ( 12 ) ‘should exist’ between the Member States. ( 13 ) In the case of F., ( 14 ) the Court stated that mutual recognition between the Member States relates to the fact that their respective national legal systems are capable of providing ‘equivalent and effective protection of the fundamental rights recognised at EU level, particularly in the Charter (of Fundamental Rights of the European Union (‘the Charter’))’. ( 15 )


    74) It is true that the criminal prosecution procedure remains outside the scope of the Framework Decision and of Union law. Nonetheless, the Member States remain subject to the obligation to respect the fundamental rights enshrined in the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 or in national law, ( 18 ) including the right to an effective remedy referred to in Article 13 of the Convention and Article 47 of the Charter. The issue of a European arrest warrant cannot exempt the Member States from observance of the procedural safeguards provided for by their national law where a decision is made to deprive a person of his liberty.


    89) Moreover, Article 1(3) of the Framework Decision states that it is not to have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 EU and reflected in the Charter.

    90) Under Article 52(1) of the Charter, limitations may be imposed on the exercise of the rights and freedoms recognised by the Charter only if ‘[s]ubject to the principle of proportionality … they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others’. ( 30 )

    91) In criminal matters, that principle of proportionality finds specific expression in the principle of proportionality between offences and penalties enshrined in Article 49 of the Charter.