Vice-President R Silva de Lapuerta,
Presidents of Chambers J–C Bonichot, A Arabadjiev, E Regan, PG Xuereb, LS Rossi (Rapporteur), I Jarukaitis,
Judges M Ilešič, J Malenovský, L Bay Larsen, T von Danwitz, C Toader, K Jürimäe, C Lycourgos
Advocate General M Bobek
The defendant was convicted in Spain of terrorism offences and sentenced to the maximum available at the time of two years in prison. He left Spain for Belgium and the Spanish court issued a European arrest warrant against him and subsequently an additional European arrest warrant, for the offence of “terrorism”, within the meaning of the second indent of article 2(2) of Council Framework Decision (2002/584/JHA), with a view to the execution of the sentence. By the time the arrest warrant was issued, Spanish law was amended, such that the offences in question would henceforth be punishable by a prison sentence of three years. In accordance with article 2(2) of the Framework Decision, terrorism punishable with a sentence of three years gave rise to surrender pursuant to a European arrest warrant without verification of the double criminality of the act. However, the Belgian court, as executing judicial authority, took into account the version of Spanish law in force at the date of the sentence and refused execution of the additional European arrest warrant. On appeal by the Belgian public prosecutor, the Court of Appeal, Ghent, Belgium entertained doubts as to the version of the law of the issuing member state to be taken into account for determining whether the condition setting the threshold of a custodial sentence for a period of three years, laid down in article 2(2) of the Framework Decision, was satisfied. The court accordingly stayed the proceedings and referred to the Court of Justice of the European Union for a preliminary ruling the question whether the executing judicial authority should take into account the law of the issuing member state in the version applicable to the facts giving rise to the case in which the European arrest warrant was issued or the law of the issuing member state in the version in force at the date of issue of the arrest warrant.
On the reference—
Held, if the law of the issuing member state, which had to be mentioned by the issuing judicial authority in accordance with the form in the Annex to Council Framework Decision (2002/584/JHA) and which the executing judicial authority had take into account to determine whether a European arrest warrant should be executed, pursuant to article 2(2) of the Framework Decision, without verification of the double criminality of the act, was not the one which was applicable to the facts giving rise to the case in which that arrest warrant had been issued, the executing judicial authority could experience difficulties in identifying the relevant version of that law where it had been amended between the date of the act and the date on which the executing judicial authority had to decide whether to execute the European arrest warrant. A different interpretation would be a source of uncertainty, in view of the difficulties the executing judicial authority might encounter in identifying the various versions of that law that might be relevant and would, consequently, be contrary to the principle of legal certainty. In addition, making the execution of a European arrest warrant dependent on the law applicable at the time of its issuance would undermine the requirements of foreseeability that stemmed from that same principle of legal certainty. Accordingly, article 2(2) of Framework Decision 2002/584 meant that, in order to ascertain whether the offence for which a European arrest warrant had been issued, was punishable in the issuing member state by a custodial sentence or a detention order for a maximum period of at least three years, the executing judicial authority had to take into account the law of the issuing member state in the version applicable to the facts giving rise to the case in which the European arrest warrant was issued and not the version of the law in force at the time of issue of the European arrest warrant (judgment, paras 36, 38, 43, operative part).
I De Tandt for the Belgian public prosecutor.
S Bekaert, P Bekaert and G Boye for the defendant.
C Van Lul and C Pochet and by J-C Halleux, agents, for the Belgian Government.
M Sampol Pucurull and subsequently S Centeno Huerta, agents, for the Spanish Government.
S Grünheid and R Troosters, agents, for the European Commission.