Summaries of judgments made in collaboration with the Portuguese judge and référendaire of the CJEU (Nuno Piçarra and Sophie Perez)

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Judgment of the Court (Grand Chamber) of 6 June 2023, Presidente del Consiglio dei Ministri and Others (European arrest warrant issued against a third-country national), Case C‑700/21, EU:C:2023:444

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

Facts

On 13 February 2012, the Judecătoria Brașov (Court of First Instance, Brașov, Romania) issued a European arrest warrant (EAW) against O.G., a Moldovan national, for the purposes of executing a custodial sentence.

Finding that O.G. had proof that met the legal standard necessary to demonstrate his stable family and employment situation in Italy, the Corte d’appello di Bologna (Court of Appeal, Bologna, Italy) raised before the Corte costituzionale (Constitutional Court, Italy) questions as to the constitutionality of Article 18a of Law No 69/2005 (GURI No 98 of 29 April 2005).

The Corte d’appello di Bologna observed, in particular, that Article 18a of Law No 69/2005 unduly restricts the scope of the ground of optional non-execution of the EAW, laid down in Article 4(6) of Framework Decision 2002/584 [1], to the extent that the option of refusing surrender 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.

The Corte costituzionale considers that, before determining whether the national legislation at issue complies with the Italian constitution, it is necessary to examine whether it is consistent with EU law and, therefore, asked the ECJ whether Article 4(6) of Framework Decision 2002/584 precludes a national provision which excludes, absolutely and automatically, any third-country national staying or residing in the territory of that Member State from benefiting from the ground for optional non-execution of a EAW laid down in that provision, without the executing judicial authority being able to assess the connections that that national has with that Member State.

Findings of the ECJ

Article 4(6) of Framework Decision 2002/584 provides that the executing judicial authority may refuse to execute a EAW if it has been issued for the purposes of executing a custodial sentence or detention order, where the requested person is staying in, or is a national or a resident of the executing Member State, and that State undertakes to execute the sentence or detention order in accordance with its domestic law.

The application of the ground of optional non-execution of the EAW laid down in that provision is subject to two conditions being met: first, the requested person is staying in the executing Member State, is a national of or resident in that Member State; and, second, that State undertakes to execute, in accordance with its domestic law, the sentence or detention order in respect of which the EAW has been issued. As regards the first condition, the ECJ emphasizes that Article 4(6) of Framework Decision 2002/584 “makes no distinction depending on whether the person, who is the subject of the European arrest warrant and who is not a national of the executing Member State, is or is not a national of another Member State.” Therefore, a national law transposing that Article 4(6) cannot be regarded as complying with the principle of equality before the law, enshrined in Article 20 CFREU, if it treats differently, on the one hand, its own nationals and other EU citizens 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 EAW provided for in that provision.

The ECJ thus ruled that Article 4(6) of Decision 2002/584, read in conjunction with the principle of equality before the law, enshrined in Article 20  CFREU, 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”.

However, there is nothing to preclude a Member State, when transposing Article 4(6) of Framework Decision 2002/584 into its domestic law, from making the benefit of the ground of optional non-execution of a EAW that that provision lays down subject to the condition that that national has stayed or resided continuously in that Member State for a minimum period of time. Furthermore, where the executing judicial authority finds that the requested person falls within the scope of application of that Article 4(6), it must also be able to ascertain whether there is a legitimate interest to justify the sentence imposed in the issuing Member State being enforced on the territory of the executing Member State. The ECJ then adds 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”.

Judgment of the Court (Grand Chamber) of 24 July 2023, Lin, Case C‑107/23 PPU, EU:C:2023:606

Reference for a preliminary ruling – Protection of the financial interests of the European Union – Article 325(1) TFEU – PFI Convention – Article 2(1) – Obligation to counter fraud affecting the financial interests of the European Union by taking effective deterrent measures – Obligation to provide for criminal penalties – Value added tax (VAT) – Directive 2006/112/EC – Serious VAT fraud – Limitation period for criminal liability – Judgment of a constitutional court invalidating a national provision governing the grounds for interrupting that period – Systemic risk of impunity – Protection of fundamental rights – Article 49(1) of the Charter of Fundamental Rights of the European Union – Principle that offences and penalties must be defined by law – Requirements of foreseeability and precision of criminal law – Principle of the retroactive application of the more lenient criminal law (lex mitior) – Principle of legal certainty – National standard of protection of fundamental rights – Duty on the courts of a Member State to disapply judgments of the constitutional court and/or the supreme court of that Member State in the event that they are incompatible with EU law – Disciplinary liability of judges in the event of non-compliance with those judgments – Principle of the primacy of EU law

Facts

Several Romanian nationals sentenced to imprisonment for tax evasion, concerning inter alia value added tax (VAT), lodged an appeal before the Curtea de Apel Brașov (Court of Appeal of Brașov, Romania) challenging their final convictions on the basis that the limitation period for their criminal liability had expired.

In support of their position, those convicted persons relied, inter alia, on two judgments of the Curtea Constituțională (Constitutional Court, Romania). The first judgment, of 26 April 2018 and published on 25 June 2018, invalidated Article 155(1) of the Criminal Code in so far as it provided for the limitation period for criminal liability to be interrupted by the performance of ‘any procedural act’, given that the expression ‘any procedural act’ also covered acts which were not notified to the suspect or accused person and, therefore, lacked foreseeability. The second judgment, of 26 May 2022 and published on 9 June 2022, emphasised the lack of action by the legislature since the first judgment and stated that, until the entry into force of a legislative measure determining the applicable rule, Romanian positive law did not provide for any ground for interrupting the limitation period for criminal liability.

According to the appellants in the main proceedings, that absence of grounds for interrupting the limitation period constitutes a more lenient criminal law (lex mitior), which they claim should be applied retroactively in order to preclude the interruption of the limitation period by procedural acts carried out in 2018. Therefore, in view of the date of the offending acts, the limitation period expired before their convictions became final. They rely on a judgement of the Înalta Curte de Casație și Justiție (High Court of Cassation and Justice, Romania), of 25 October 2022, that held that a final conviction may, in principle, be the subject of an extraordinary appeal based on the effects of those two judgments of the Curtea Constituțională as a more lenient criminal law (lex mitior).

The Curtea de Apel Brașov has doubts as to the compatibility of that interpretation with EU law, as it would result in the convicted persons in question and a considerable number of other persons being absolved of their criminal liability for tax evasion offences liable to harm the financial interests of the EU. The Curtea de Apel Brașov also highlights that, in order to comply with EU law, it might be required to disapply the case-law of the national Constitutional Court and/or Supreme Court. However, the new disciplinary regime in Romania allows for the imposition of penalties on judges who disregard that case-law. It therefore decided to refer questions to the ECJ concerning each of those matters.

Findings of the ECJ

The ECJ recalls that EU law, in particular Article 325(1) TFEU, requires Member States to counter fraud and any other illegal activities affecting the financial interests of the EU through effective deterrent measures and, accordingly, those Member States must ensure that the limitation rules laid down by national law allow effective punishment of infringements linked to such fraud. According to the ECJ, the legal situation resulting from the application of the judgments of both the Curtea Constituțională and the Înalta Curte de Casație și Justiție entails a systemic risk of offences of serious fraud affecting the financial interests of the EU going unpunished, is incompatible with the requirements of, inter alia, Article 325(1) TFEU. Therefore, the national courts are, in principle, required to disapply those judgments.

The ECJ acknowledges, however, that the obligation to disapply such judgments may conflict with the protection of fundamental rights. It recalls that “where, as in the present case, a court of a Member State is called upon to review whether fundamental rights are complied with by a national provision or measure which, in a situation where action of the Member States is not entirely determined by EU law, implements the latter for the purposes of Article 51(1) of the Charter, national authorities and courts remain free to apply national standards of protection of fundamental rights, provided that the level of protection provided for by the Charter, as interpreted by the Court, and the primacy, unity and effectiveness of European Union law are not thereby compromised”. In this context, the ECJ distinguishes the principle that offences and penalties must be defined by law and the principle of the retroactive application of the more lenient criminal law (lex mitior).

On the one hand, after recalling the importance given, both in the EU legal order and in national legal systems, to the principle that offences and penalties must be defined by law, the ECJ interprets EU law as meaning that “the courts of a Member State are not required to disapply the judgments of the constitutional court of that Member State invalidating the national legislative provision governing the grounds for interrupting the limitation period in criminal matters, as a result of a breach of the principle that offences and penalties must be defined by law, as protected under national law, as to its requirements relating to the foreseeability and precision of criminal law, even if, as a consequence of those judgments, a considerable number of criminal cases, including cases relating to offences of serious fraud affecting the financial interests of the European Union, will be discontinued because of the expiry of the limitation period for criminal liability”.

On the other hand, the ECJ considers that the application of the national standard of protection relating to the principle of the retroactive application of more lenient criminal law (lex mitior) permits, at least in certain cases, the neutralisation of the interrupting effect of procedural acts which took place even before the judgments of the constitutional court invalidating the national legislative provision governing the grounds for interrupting the limitation period in criminal matters, and during a period of more than four years. This situation being liable to compromise the primacy, unity and effectiveness of EU law, the ECJ interprets EU law as meaning that “the courts of that Member State are required to disapply a national standard of protection relating to the principle of the retroactive application of the more lenient criminal law (lex mitior) which makes it possible, including in the context of appeals brought against final judgments, to call into question the interruption of the limitation period for criminal liability in such cases by procedural acts which took place before such a finding of invalidity”.

Finally, after recalling its case-law on the primacy of EU law, the ECJ clarifies that this principle must be interpreted as “precluding national legislation or a national practice under which the ordinary national courts of a Member State are bound by the decisions of the constitutional court and by those of the supreme court of that Member State and cannot, for that reason and at the risk of incurring the disciplinary liability of the judges concerned, disapply of their own motion the case-law resulting from those decisions, even if they consider, in the light of a judgment of the Court, that that case-law is contrary to provisions of EU law having direct effect”.

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[1] 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).