Article 49 - Principles of legality and proportionality of criminal offences and penalties
Article 52 - Scope and interpretation
Key facts of the case:
Reference for a preliminary ruling – Trade and Cooperation Agreement between the European Union and the European Atomic Energy Community, of the one part, and the United Kingdom of Great Britain and Northern Ireland, of the other – Surrender of a person to the United Kingdom for criminal prosecution – Competence of the executing judicial authority – Risk of breach of a fundamental right – Article 49(1) and Article 52(3) of the Charter of Fundamental Rights of the European Union – Principle that offences and penalties must be defined by law – Changes, to the detriment of that person, to the licence regime
Outcome of the case:
On those grounds, the Court (Grand Chamber) hereby rules:
Article 524(2) and Article 604(c) of the Trade and Cooperation Agreement between the European Union and the European Atomic Energy Community, of the one part, and the United Kingdom of Great Britain and Northern Ireland, of the other part, read in conjunction with Article 49(1) of the Charter of Fundamental Rights of the European Union
must be interpreted as meaning that, where a person who is the subject of an arrest warrant issued on the basis of that agreement invokes a risk of a breach of Article 49(1) in the event of surrender to the United Kingdom of Great Britain and Northern Ireland, on account of a change, which is unfavourable to that person, in the conditions for release on licence, which occurred after the alleged commission of the offence for which that person is being prosecuted, the executing judicial authority must undertake an independent examination as to the existence of that risk before deciding on the execution of that arrest warrant, in a situation where that judicial authority has already ruled out the risk of a breach of Article 7 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, by relying on the guarantees offered generally by the United Kingdom as regards compliance with the ECHR and on the possibility for that person to bring an action before the European Court of Human Rights. Following that examination, that executing judicial authority will have to refuse to execute that arrest warrant only if, after requesting additional information and guarantees from the issuing judicial authority, it has objective, reliable, specific and properly updated information establishing that there is a real risk of a change to the actual scope of the penalty provided for on the day on which the offence at issue was committed, involving the imposition of a heavier penalty than the one that was initially provided for.
37. Accordingly, the Court of Justice takes the view that, by its question, the referring court asks, in essence, whether the TCA, read in conjunction with Article 49(1) of the Charter, must be interpreted as meaning that, where a person who is the subject of an arrest warrant issued on the basis of that agreement invokes a risk of a breach of Article 49(1) in the event of surrender to the United Kingdom, on account of a change, which is unfavourable to that person, in the conditions for release on licence, which occurred after the alleged commission of the offence for which that person is being prosecuted, the executing judicial authority must assess the existence of that risk before deciding on the execution of that arrest warrant, in a situation where that judicial authority has already ruled out the risk of a breach of Article 7 ECHR by relying on the guarantees offered generally by the United Kingdom as regards compliance with the ECHR and on the possibility for that person to bring an action before the European Court of Human Rights.
...
48. Although it follows from the foregoing that an executing judicial authority is in principle required to give effect to an arrest warrant such as those at issue in the main proceedings, the fact remains that Article 524(2) of the TCA states that no provision of Part Three of that agreement alters the obligation to respect fundamental rights and legal principles as set out, in particular, in the ECHR and, in the case of the European Union and its Member States, in the Charter.
49. The obligation to comply with the Charter, recalled in Article 524(2), is binding on the Member States when they decide on the surrender of a person to the United Kingdom, given that a decision on such surrender constitutes an implementation Union law within the meaning of Article 51(1) of the Charter. The executing judicial authorities of the Member States are therefore required, when adopting that decision, to ensure respect for the fundamental rights afforded by the Charter to the person who is the subject of an arrest warrant issued on the basis of the TCA, without the fact that the Charter is not applicable to the United Kingdom being relevant in that regard (see, by analogy, judgment of 6 September 2016, Petruhhin, C‑182/15, EU:C:2016:630, paragraphs 52 and 53).
50. Those rights include, in particular, the rights arising from Article 49(1) of the Charter, which states, inter alia, that no heavier penalty is to be imposed than that which was applicable at the time the criminal offence was committed.
52. 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 (see, to that effect, judgments of 5 April 2016, Aranyosi and Căldăraru, C‑404/15 and C‑659/15 PPU, EU:C:2016:198, paragraphs 89 to 94; of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice), C‑216/18 PPU, EU:C:2018:586, paragraphs 60, 61 and 68; of 18 April 2023, E.D.L. (Ground for refusal based on illness), C‑699/21, EU:C:2023:295, paragraph 55, and of 21 December 2023, GN (Ground for refusal based on the best interests of the child), C‑261/22, EU:C:2023:1017, paragraph 46 and the case-law cited).
55. However, as the Advocate General observed, in essence, in point 76 of his Opinion, the requirement to carry out such a two-step examination cannot be transposed to the assessment, during the procedure for the execution of an arrest warrant issued on the basis of the TCA, of the risk of a breach of Article 49(1) of the Charter.
64. The Court has further stated that the limitation to exceptional cases of the possibility of verifying whether another Member State has actually complied, in a specific case, with the fundamental rights enshrined in the Charter is linked to the intrinsic nature of the European Union and contributes to the balance on which the Charter is founded (see, to that effect, Opinion 2/13 (Accession of the European Union to the ECHR) of 18 December 2014, EU:C:2014:2454, paragraphs 193 and 194).
79. Therefore, where the person who is the subject of an arrest warrant issued on the basis of the TCA claims before that executing judicial authority that there is a risk of a breach of Article 49(1) of the Charter if that person is surrendered to the United Kingdom, that executing judicial authority cannot, without disregarding the obligation to respect the fundamental rights enshrined in Article 524(2) of that agreement, order that surrender without having specifically determined, following an appropriate examination, within the meaning of paragraph 51 above, whether there are valid reasons to believe that that person is exposed to a real risk of such a breach.
83. Therefore, as the Advocate General observed in points 78 and 79 of his Opinion, the executing judicial authority must carry out an independent assessment, in the light of the provisions of the Charter, without merely taking into account the case-law of the Supreme Court of the United Kingdom, referred to in paragraph 27 above, or the general guarantees provided by the judicial system of that State, referred to in paragraph 28 above.
84. In that context, the possible finding of a real risk, if the person concerned is surrendered to the United Kingdom, of a breach of Article 49(1) of the Charter must have a sufficient factual basis (see, by analogy, judgment of 22 February 2022, Openbaar Ministerie (Tribunal established by law in the issuing Member State), C‑562/21 PPU and C‑563/21 PPU, EU:C:2022:100, paragraphs 60 and 61).
85. Consequently, the executing judicial authority may refuse to give effect to an arrest warrant on the basis of Article 524(2) and Article 604(c) of the TCA, read in conjunction with Article 49(1) of the Charter, only if it has, having regard to the individual situation of the requested person, objective, reliable, specific and properly updated information establishing substantial grounds for believing that there is a real risk of a breach of Article 49(1) of the Charter (see, by analogy, judgments of 6 September 2016, Petruhhin, C‑182/15, EU:C:2016:630, paragraph 59, and of 19 September 2018, RO, C‑327/18 PPU, EU:C:2018:733, paragraph 61).
86. In the second place, in accordance with the obligation of mutual assistance in good faith laid down in Article 3(1) of the TCA, the executing judicial authority must, when examining whether there is a risk of a breach of Article 49(1) of the Charter, make full use of the instruments provided for in that agreement in order to foster cooperation between it and the issuing judicial authority.
89. Thus, since a finding that there is a serious risk of infringement of Article 49(1) of the Charter is necessarily based on an analysis of the law of the issuing State, the executing judicial authority cannot, if it is not to infringe the obligation of mutual assistance in good faith laid down in Article 3(1) of the TCA, make that finding without first requesting from the issuing judicial authority information concerning the rules of that law and the manner in which they may be applied to the individual situation of the requested person.
90. Second, in accordance with Article 604(c) of the TCA, it is for the executing judicial authority to request the grant of additional guarantees where it considers that there are valid reasons to believe that there is a real risk of a breach of Article 49(1) of the Charter.
91. Therefore, the executing judicial authority will be able to refuse to give effect to an arrest warrant issued on the basis of the TCA on the ground that such a risk exists only in the situation where additional guarantees have been requested by the executing judicial authority and where that authority has not obtained sufficient guarantees to rule out the risk of a breach of Article 49(1) of the Charter which it had initially identified.
92. In the third place, as regards, more specifically, the scope of Article 49(1) of the Charter, it follows from the case-law of the Court that Article 49 of the Charter contains, at the very least, the same guarantees as those provided for in Article 7 ECHR, which must be taken into account by virtue of Article 52(3) of the Charter as a minimum threshold of protection (see, to that effect, judgments of 28 March 2017, Rosneft, C‑72/15, EU:C:2017:236, paragraph 164; of 5 December 2017, M.A.S. and M.B., C‑42/17, EU:C:2017:936, paragraph 54; of 2 February 2021, Consob, C‑481/19, EU:C:2021:84, point 37, and of 10 November 2022, DELTA STROY 2003, C‑203/21, EU:C:2022:865, paragraph 46 and the case-law cited).
97. Therefore, a measure relating to the execution of a sentence will be incompatible with Article 49(1) of the Charter only if it retroactively alters the actual scope of the penalty provided for on the day on which the offence at issue was committed, thus entailing the imposition of a heavier penalty than the one initially provided for. Although that is not, in any event, the case where that measure merely delays the eligibility threshold for release on licence, the position may be different, in particular, if that measure essentially repeals the possibility of release on licence or if it forms part of a series of measures which have the effect of increasing the intrinsic seriousness of the sentence initially provided for.
98. In the light of all of the foregoing, the answer to the question referred is that Article 524(2) and Article 604(c) of the TCA, read in conjunction with Article 49(1) of the Charter, must be interpreted as meaning that, where a person who is the subject of an arrest warrant issued on the basis of that agreement invokes a risk of a breach of Article 49(1) in the event of surrender to the United Kingdom, on account of a change, which is unfavourable to that person, in the conditions for release on licence, which occurred after the alleged commission of the offence for which that person is being prosecuted, the executing judicial authority must undertake an independent examination as to the existence of that risk before deciding on the execution of that arrest warrant, in a situation where that judicial authority has already ruled out the risk of a breach of Article 7 ECHR by relying on the guarantees offered generally by the United Kingdom as regards compliance with the ECHR and on the possibility for that person to bring an action before the European Court of Human Rights. Following that examination, that executing judicial authority will have to refuse to execute that arrest warrant only if, after requesting additional information and guarantees from the issuing judicial authority, it has objective, reliable, specific and properly updated information establishing that there is a real risk of a change to the actual scope of the penalty provided for on the day on which the offence at issue was committed, involving the imposition of a heavier penalty than the one that was initially provided for.
