Article 7 - Respect for private and family life
Article 20 - Equality before the law
Key facts of the case:
Reference for a preliminary ruling – Judicial cooperation in criminal matters – European arrest warrant – Framework Decision 2002/584/JHA – Grounds for optional non-execution of the European arrest warrant – Article 4(6) – Objective of social rehabilitation – Third-country nationals staying or residing on the territory of the executing Member State – Equal treatment – Article 20 of the Charter of Fundamental Rights of the European Union.
Outcome of the case:
On those grounds, the Court (Grand Chamber) hereby rules:
1) Article 4(6) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, read in conjunction with the principle of equality before the law, enshrined in Article 20 of the Charter of Fundamental Rights of the European Union,
must be interpreted as precluding a law of a Member State transposing that Article 4(6), which excludes, absolutely and automatically, any third-country national staying or resident in the territory of that Member State from benefiting from the ground for optional non-execution of a European arrest warrant laid down in that provision, without the executing judicial authority being able to assess the connections that that national has with that Member State.
2) Article 4(6) of Framework Decision 2002/584
must be interpreted as meaning that, in order to assess whether it is appropriate to refuse to execute the European arrest warrant issued against a third-country national who is staying or resident in the territory of the executing Member State, the executing judicial authority must make an overall assessment of all the specific elements that characterise that national’s situation which are capable of showing that there are, between that person and the executing Member State, connections demonstrating that he or she is sufficiently integrated into that State such that the execution in that Member State of the custodial sentence or detention order pronounced against that person in the issuing Member State will contribute to increasing the chances of social rehabilitation after that sentence or detention order has been executed. Those elements include the family, linguistic, cultural, social or economic links that the third-country national has with the executing Member State as well as the nature, duration and conditions of his or her stay in that Member State.
1) This request for a preliminary ruling concerns the interpretation of Article 1(3) and Article 4(6) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (OJ 2002 L 190, p. 1) and of Article 7 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
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15) That court states that the Corte d’appello di Bologna (Court of Appeal, Bologna) has in particular observed that the ground of optional non-execution of the European arrest warrant, laid down in Article 4(6) of Framework Decision 2002/584 has the aim of ensuring that the sentence has a genuine function of social rehabilitation. That presupposes the maintenance of the sentenced person’s family and social connections so that he or she may properly reintegrate into society after the end of his or her sentence. However, Article 18a of Law No 69/2005 unduly restricts the scope of Article 4(6) to the extent that the option of refusing surrender, in the case of a European arrest warrant for the purposes of executing a custodial sentence or detention order, is limited to Italian nationals and nationals of other Member States only, to the exclusion of third-country nationals, even where the latter prove that they have established stable economic, occupational and emotional ties in Italy. By imposing surrender on third-country nationals residing permanently in Italy for the purposes of executing a custodial sentence abroad, Article 18a of Law No 69/2005 is inconsistent with the rehabilitation purpose of the sentence, or with the right to family life of the person concerned, enshrined in Article 7 of the Charter.
18) In the order for reference the Corte costituzionale (Constitutional Court) considers that, before determining whether the national legislation at issue in the main proceedings complies with the Italian constitution, it is necessary to examine whether that legislation is consistent with EU law and, in particular, with Article 4(6) of Framework Decision 2002/584, read in the light of Article 7 of the Charter. It observes that the case-law of the Court has already recognised that some limits on the grounds for refusal set out in Member States’ legislation were justified to the extent that they contribute to strengthening the surrender system established by that framework decision in respect of the area of freedom, security and justice.
22) In those circumstances, the Corte costituzionale (Constitutional Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
'(1) Does Article 4(6) of the [Framework Decision 2002/584] interpreted in the light of Article 1(3) of that framework decision and Article 7 of the [Charter], preclude legislation, such as the Italian legislation, that – in the context of a European arrest warrant procedure for the purpose of executing a custodial sentence or detention order – absolutely and automatically precludes the executing judicial authorities from refusing to surrender third-country nationals staying or residing in Italian territory, irrespective of the links those individuals have with that territory?
(2) If the answer to the first question is in the affirmative, what criteria and conditions must be used to establish that such links are to be regarded as so significant as to require the executing judicial authority to refuse surrender?’
40) Those fundamental principles include the principle of equality before the law, which is guaranteed by Article 20 of the Charter. Member States are required, in accordance with Article 51(1) of the Charter, to comply with that provision when implementing EU law, which is the case when they transpose that ground of optional non-execution of a European arrest warrant laid down in Article 4(6) of Framework Decision 2002/584.
41) Unlike the first paragraph of Article 18 TFEU, which is not intended to apply to cases where there may be a difference in treatment between nationals of Member States and third-country nationals, Article 20 of the Charter, does not contain any express limitation on its scope and is therefore applicable to all situations governed by EU law (see, to that effect, Opinion 1/17 (EU-Canada CET Agreement), of 30 April 2019, EU:C:2019:341, paragraphs 169 and 171 and the case-law cited).
42) In that regard, according to the settled case-law of the Court, equality before the law, set out in Article 20 of the Charter, is a general principle of EU law that requires that similar situations must not be treated differently and that different situations must not be treated in the same manner, unless such different treatment is objectively justified (see, to that effect, judgment of 2 September 2021, État belge (Right of residence in the event of domestic violence), C‑930/19, EU:C:2021:657, paragraph 57 and the case-law cited).
43) The requirement that situations must be comparable, for the purpose of determining whether there is a breach of the principle of equal treatment, must be assessed in the light of all the elements that characterise them and, in particular, in the light of the subject matter and purpose of the act that makes the distinction in question, while the principles and objectives of the field to which the act relates must also be taken into account. In so far as the situations are not comparable, a difference in treatment of the situations concerned does not infringe equality before the law as enshrined in Article 20 of the Charter (judgment of 2 September 2021, État belge (Right of residence in the event of domestic violence), C‑930/19, EU:C:2021:657, paragraph 58 and the case-law cited).
51) Therefore a national law transposing Article 4(6) of that framework decision cannot be regarded as complying with the principle of equality before the law enshrined in Article 20 of the Charter if it treats differently, on the one hand, its own nationals and other citizens of the Union and, on the other hand, third-country nationals, by refusing the latter, absolutely and automatically, the benefit of the ground for optional non-execution of a European arrest warrant provided for in that provision, even where those third-country nationals are staying or resident in the territory of that Member State and without account being taken of the degree of integration of those third-country nationals within the society of that Member State. It is not possible for such a difference in treatment to be regarded as being objectively justified, within the meaning of the case-law recalled in paragraph 42 of this judgment.
58) Having regard to all the foregoing considerations, the answer to the first question is that Article 4(6) of Framework Decision 2002/584, read in conjunction with the principle of equality before the law enshrined in Article 20 of the Charter, must be interpreted as precluding a law of a Member State transposing that Article 4(6), which excludes, absolutely and automatically, any third-country national staying or resident in the territory of that Member State from benefiting from the ground for optional non-execution of a European arrest warrant laid down in that provision, without the executing judicial authority being able to assess the connections that that national has with that Member State.
(1) Article 4(6) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, read in conjunction with the principle of equality before the law, enshrined in Article 20 of the Charter of Fundamental Rights of the European Union,
