MM*

On 9 December 2020, AG de la Tour delivered his opinion in Case C-414/20, giving him the opportunity to clarify the conditions for the validity of the issuance of a “European arrest warrant” as laid down in Article 8(1)(c) of Framework Decision 2002/584/JHA on the European arrest warrant (EAW Framework Decision).

The case originates from a request for a preliminary ruling from a Bulgarian court in the context of a criminal proceeding instituted against several individuals suspected of participating in a criminal organization. Among the persons suspected of the offence in question was MM, who absconded. On 16 January 2020, the Bulgarian prosecutor issued a European arrest warrant against MM indicating that this EAW is based on an investigation order adopted on 9 August 2019 for the purpose of putting the requested person under investigation. On 5 July 2020, MM was arrested in Spain and was surrendered to the Bulgarian judicial authorities on 28 July 2020. He was later placed in pre-trial detention.

The referring judicial authority before which proceeding in the dispute was brought considered the EAW issued against MM illegal as it originated from an authority lacking competence, namely a prosecutor without any intervention of a judicial authority. However, the Bulgarian court expressed doubts over her capacity to declare the EAW at issue unlawful as it would lead to the indirect control of the decision of the prosecutor to issue a EAW in breach of Bulgarian law. Furthermore, the referring court expressed concerns with regard to the consequences of such a decision to declare the EAW unlawful.

The AG replies with a three-step reasoning addressing separately the questions referred by the Bulgarian court.

First, regarding the question concerning the validity of the EAW the AG starts by recalling that the EAW system entails a dual level of protection of procedural rights and fundamental rights which must be enjoyed by the requested person. In addition to the judicial protection provided at the first level, at which a national decision, such as a national arrest warrant, is adopted, there is the protection that must be afforded at the second level, at which a EAW is issued, which may occur, depending on the circumstances, shortly after the adoption of the national judicial decision. It follows that, where the law of the issuing Member State confers the competence to issue a EAW on an authority which, whilst participating in the administration of justice in that Member State, is not a judge or a court, as in the present case, the national decision on which the EAW is based must meet the requirements inherent in effective judicial protection. Recalling the opinion of AG Bot in Bob-Dogi, AG de la Tour notes that this implies in particular that the EAW must be based on a distinct national warrant ordering the arrest of the accused person in the territory of the issuing Member State. In the AG’s view, this requirement is not satisfied in the present case since the EAW at issue cannot be regarded as being based on a ‘[national] arrest warrant or […] any other enforceable judicial decision having the same effect’ as required by Article 8(1)(c) of the Framework Decision 2002/584 in order for the EAW to be valid. According to the AG, while the investigation order delivered on 9 August 2019 by the Bulgarian prosecution authority may be considered as a judicial decision within the meaning of Article 8(1)(c), it cannot be regarded as producing equivalent effects to those of a national arrest warrant as required by the same provision. In the light of the foregoing, the AG suggests that Article 8(1)(c) of the Framework Decision 2002/584 must be interpreted as meaning that an EAW should be considered invalid since it is not based on ‘[national] arrest warrant or […] any other enforceable judicial decision having the same effect’ within the meaning of this provision. He considers that such notions cover national measures adopted by a judicial authority for the purpose of searching and arresting the concerned person with a view to bringing him or her before a judge.

Second, the AG moves on to the question as to whether the referring court is competent to control the validity of the decision to issue a EAW insofar as Bulgarian procedural law does not provide for a judicial review of such a decision. He considers that in order to fulfill the requirements of providing effective judicial protection as required by EU law, the examination of the conditions necessary for the valid issuance of the EAW can take place in incidental proceedings which main purpose is different, as in the present case. In his view, when the national law of the issuing Member State does not provide for a judicial review of the conditions necessary to issue the EAW, notably to assess the proportionality of such a decision, neither before or simultaneously to its adoption, nor subsequently, a jurisdiction asked to intervene after the surrender of the person concerned should be enabled to assess, even incidentally, the conditions for the issuance of the EAW.

Third, regarding the consequences of the invalidity of the EAW on the pre-trial detention of MM, AG de la Tour underlines that there is no harmonization of procedural rules concerning pre-trial detention at EU level. While estimating that EU law still applies in the proceeding brought before the referring court, he considers that neither Framework Decision 2002/584, nor Article 47 of the Charter require the referring court to release the person subject to pre-trial detention in case the EAW concerning that person is considered invalid. According to the AG, the consequences on the pre-trial detention of the person concerned resulting from the invalidity of an EAW must be determined according to the national law of the issuing Member State. However, AG notes that those consequences should not undermine EU law and in particular the efficiency of the mechanism put in place by Framework Decision 2002/584. Hence, the AG suggests that in case where the invalidity of the EAW lead to the release of the person concerned, adequate measures should be adopted in order to prevent flight risk insofar as it would contravene the objectives pursued under Framework Decision 2002/584.