(AGENPARL) – Thu 10 July 2025 PRESS RELEASE No 89/25
Luxembourg, 10 July 2025
Advocate General’s Opinion in Joined Cases C-722/23 | [Rugu] and C-91/24 | [Aucroix] 1
Advocate General Rantos: a Member State which refuses to execute a
European arrest warrant on account of the conditions of detention in the
issuing Member State is required to order the execution, on its own
territory, of the sentence imposed in the issuing Member State
That rule, which is intended to combat impunity, applies to nationals or residents of the executing Member
State where that State undertakes to execute the sentence in accordance with its domestic law
A Romanian national and a Belgian national, both residing in Belgium, were each the subject of a European arrest
warrant (EAW) issued, respectively, by the Romanian and Greek judicial authorities for the purpose of executing
prison sentences.
The Belgian appeal courts seised refused to execute those EAWs on the ground that, in the event of surrender, the
conditions of detention in Romania and Greece would expose the requested persons to the risk of their
fundamental rights being infringed.
In that context, the Belgian Court of Cassation referred a question to the Court of Justice concerning the
interpretation of Framework Decision 2002/584/JHA. 2 In particular, it seeks to ascertain whether the executing
judicial authority has the option or is required, in order to avoid impunity of the sentenced persons, to order the
execution, on its own territory, of sentences imposed on them in the issuing Member State.
In his Opinion, Advocate General Athanasios Rantos proposes that the Court should rule that a Member State
which refuses to execute an EAW an account of there being such a risk that the persons concerned would
suffer a breach of their fundamental rights is required to order that the sentence be served in its territory
where those persons are nationals of, or reside in, that Member State.
First of all, the Advocate General recalls that, in principle, Member States are required to execute any EAW. They
may refuse to execute an EAW only on the grounds expressly provided for by Framework Decision 2002/584.
Exceptionally, however, the existence of a real risk that the person in respect of whom an EAW has been issued
would, if that person is surrendered to the issuing judicial authority, suffer a breach of his or her fundamental
rights, constitutes a new ground for mandatory non-execution, established by the EU Courts, in addition to those
already provided for in that framework decision.
Next, the Advocate General observes that, in addition to the grounds for mandatory non-execution of an EAW,
Framework Decision 2002/584 also provides for grounds for optional non-execution, inter alia, where, first, the
requested person is staying in, or is a national or resident of, the executing Member State and, second, that Member
State undertakes to execute, in accordance with its domestic law, the sentence in respect of which the EAW has
been issued.
In that regard, the Advocate General considers that the executing judicial authority must apply, in addition, that
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ground for optional non-execution where the conditions for its application have been satisfied and execute the
custodial sentence in its territory. He points out that, if the EAW were not executed, a person who has been finally
sentenced could be released even if they present a high degree of danger to society, which would be incompatible
with the objective of the EAW mechanism, namely to combat impunity. In addition, that ground for non-execution is
intended to increase the changes of reintegrating the sentenced person into society after the end of his or her
sentence, which presupposes, by definition, that the sentence is actually executed in the only Member State where
that remains possible.
Lastly, according to the Advocate General, it appears inconsistent with the EAW mechanism to give the executing
judicial authority no more than the option to order the execution of the custodial sentence in its own territory. The
optional nature of that ground for non-execution should, in the Advocate General’s view, become an
obligation, provided that, first, the conditions for its application are satisfied and, second, the procedure and
conditions laid down by Framework Decision 2008/909/JHA 3 are complied with a view to effectively taking charge of
that sentence in the executing Member State.
NOTE: The Advocate General’s Opinion is not binding on the Court of Justice. It is the role of the Advocates General
to propose to the Court, in complete independence, a legal solution to the cases for which they are responsible. The
Judges of the Court are now beginning their deliberations in this case. Judgment will be given at a later date.
NOTE: A reference for a preliminary ruling allows the courts and tribunals of the Member States, in disputes which
have been brought before them, to refer questions to the Court of Justice about the interpretation of EU law or the
validity of an EU act. The Court of Justice does not decide the dispute itself. It is for the national court or tribunal to
dispose of the case in accordance with the Court’s decision, which is similarly binding on other national courts or
tribunals before which a similar issue is raised. Unofficial document for media use, not binding on the Court of
Justice.
Unofficial document for media use, not binding on the Court of Justice.
The full text of the Opinion is published on the CURIA website on the day of delivery.
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The names of the present cases are fictitious names. They do not correspond to the real names of any party to the proceedings.
Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States,
as amended by Council Framework Decision 2009/299/JHA of 26 February 2009.
Council Framework Decision 2008/909/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments in criminal
matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union.
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