Request for a preliminary ruling from the Rechtbank Amsterdam (Netherlands) lodged on 26 October 2023 – European arrest warrant issued against YM; other party: Openbaar Ministerie

(Case C-641/23, Dubers) ¹

Language of the case: Dutch

Referring court

Rechtbank Amsterdam

Parties to the main proceedings

European arrest warrant issued against: YM

Other party to the proceedings: Openbaar Ministerie

Questions referred

Does Article 17(4) and (7) of Framework Decision 2002/584/JHA, ¹ read in conjunction with Article 267 of the Treaty on the Functioning of the European Union, preclude a Member State from transposing the former provision in such a way that an executing judicial authority against whose decisions no ordinary appeal is available cannot extend the time limit of 90 days for taking a decision for the sole purpose of carrying out its intention to refer questions to the Court of Justice of the European Union for a preliminary ruling outside that time limit, with the result that that authority is thus required to take a decision on the execution of the European arrest warrant without referring those questions?

Does Article 5(3) of Framework Decision 2002/584/JHA, read in conjunction with Article 18 of the Treaty on the Functioning of the European Union and, as the case may be, in conjunction with Articles 20 and 21(2) of the Charter of Fundamental Rights of the European Union, preclude a Member State from transposing the former provision in such a way that the surrender for the purpose of prosecution of residents of the executing Member State may be made subject to a guarantee of return only if that Member State has jurisdiction over the acts in respect of which the surrender for the purpose of prosecution is sought, with the result that that condition is not satisfied if those acts do not constitute offences under the law of that Member State, whereas that Member State does not lay down the same condition in respect of its own nationals?

If Question 2 is answered in the affirmative: does Article 9(1)(d) of Framework Decision 2008/909/JHA, ¹ read in conjunction with Article 25 of that framework decision and Article 4(1) and Article 5(3) of Framework Decision 2002/584/JHA, preclude a Member State which has applied Article 7(4) of Framework Decision 2008/909/JHA from transposing the former provision in such a way that,

after the executing judicial authority has authorised surrender for the purpose of prosecution to the issuing Member State subject to a guarantee of return in respect of an act referred to in Article 2(4) of Framework Decision 2002/584/JHA that does not constitute an offence under the law of the executing Member State, but in respect of which the executing judicial authority has expressly refrained from non-execution of surrender on that ground,

other authorities in the executing Member State (as the Member State in which enforcement is sought) must or may subsequently refuse to recognise and enforce the custodial sentence imposed in the issuing Member State for that act because it does not constitute an offence under the law of the executing Member State (as the Member State in which enforcement is sought) and must or may therefore refuse to implement the guarantee of return?

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¹ The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings.

¹ Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (OJ 2002 L 190, p. 1).

¹ 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 (OJ 2008 L 327, p. 27).