EuGH · C-583/24 · 03.11.2026 · ECLI:EU:C:2026:920
Provisional text
JUDGMENT OF THE COURT (Grand Chamber)
3 November 2026 (*)
( Reference for a preliminary ruling – Judicial cooperation in criminal matters – European arrest warrant and surrender procedures between Member States – Framework Decision 2002/584/JHA – Article 1(3) – Obligation to respect fundamental rights – Article 49(3) of the Charter of Fundamental Rights of the European Union – Principle of proportionality of criminal offences and penalties – Proportionality of the custodial sentence in relation to the offence referred to in the European arrest warrant – Possibility to refuse the execution of the European arrest warrant for breach of that principle – Serious and manifest breach – None )
In Case C‑583/24 [Tagu], (i)
REQUEST for a preliminary ruling under Article 267 TFEU from the rechtbank Amsterdam (District Court, Amsterdam, Netherlands), made by decision of 5 September 2024, received at the Court on 5 September 2024, in the proceedings relating to the execution of a European arrest warrant issued against:
DZ,
other party:
Openbaar Ministerie
THE COURT (Grand Chamber),
composed of K. Lenaerts, President, T. von Danwitz, Vice-President, F. Biltgen, I. Jarukaitis, M.L. Arastey Sahún, Z. Csehi, B. Smulders, Presidents of Chambers, E. Regan (Rapporteur), I Ziemele, J Passer, D. Gratsias, M. Gavalec, O. Spineanu-Matei, M. Condinanzi and M. Bošnjak, Judges,
Advocate General: J. Richard de la Tour,
Registrar: A. Lamote, Administrator,
having regard to the written procedure and further to the hearing on 23 September 2025,
after considering the observations submitted on behalf of:
– DZ, by F.P. Slewe, advocaat,
– Openbaar Ministerie, by K. van der Schaft and A.L. Wagenaar, acting as Agents,
– the German Government, by J. Möller and A. Sahner, acting as Agents,
– Ireland, by M. Browne, Chief State Solicitor, A. Joyce, A. Burke and M. Lane, acting as Agents, and by G. Mullan, Barrister-at-Law,
– the Hungarian Government, by Zs. Biró-Tóth and M.Z. Fehér, acting as Agents,
– the Polish Government, by B. Majczyna and J. Sawicka, acting as Agents,
– the Romanian Government, by M. Chicu, E. Gane O.-C. Ichim and L. Liţu, acting as Agents,
– the European Commission, by H. Leupold, S. Noë and J. Vondung, acting as Agents,
after hearing the Opinion of the Advocate General at the sitting on 22 January 2026,
gives the following
Judgment
1 This request for a preliminary ruling concerns the interpretation of Article 1(3) of 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), as amended by Council Framework Decision 2009/299/JHA of 26 February 2009 (OJ 2009 L 81, p. 24) (‘Framework Decision 2002/584’), Article 49(3) of the Charter of Fundamental Rights of the European Union (‘the Charter’), Article 2(1) and (2), Article 4(1) and (2) and Article 5 of Council Framework Decision 2004/757/JHA of 25 October 2004 laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking (OJ 2004 L 335, p. 8).
2 The request has been made in the context of proceedings relating to the execution, in the Netherlands, of a European arrest warrant issued in respect of DZ for the purposes of executing a final custodial sentence of seven years imposed in Romania for an offence consisting of the importation of ‘risk and high-risk’ drugs into that Member State.
Legal context
European Union law
The Charter
3 Article 4 of the Charter, entitled ‘Prohibition of torture and inhuman or degrading treatment or punishment’, states:
‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment.’
4 Article 49 of the Charter, entitled ‘Principles of legality and proportionality of criminal offences and penalties’, provides:
‘1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed. If, subsequent to the commission of a criminal offence, the law provides for a lighter penalty, that penalty shall be applicable.
…
3. The severity of penalties must not be disproportionate to the criminal offence.’
Framework Decision 2002/584
5 Recital 6 of Framework Decision 2002/584 states:
‘The European arrest warrant provided for in this Framework Decision is the first concrete measure in the field of criminal law implementing the principle of mutual recognition which the European Council referred to as the “cornerstone” of judicial cooperation.’
6 Article 1 of that framework decision, entitled ‘Definition of the European arrest warrant and obligation to execute it’, is worded as follows:
‘…
2. Member States shall execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of this Framework Decision.
3. This Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 [TEU].’
7 Article 2 of that framework decision, entitled ‘Scope of the European arrest warrant’, provides:
‘1. A European arrest warrant may be issued for acts punishable by the law of the issuing Member State by a custodial sentence or a detention order for a maximum period of at least 12 months or, where a sentence has been passed or a detention order has been made, for sentences of at least four months.
2. The following offences, if they are punishable in the issuing Member State by a custodial sentence or a detention order for a maximum period of at least three years and as they are defined by the law of the issuing Member State, shall, under the terms of this Framework Decision and without verification of the double criminality of the act, give rise to surrender pursuant to a European arrest warrant:
…
– illicit trafficking in narcotic drugs and psychotropic substances,
…
4. For offences other than those covered by paragraph 2, surrender may be subject to the condition that the acts for which the European arrest warrant has been issued constitute an offence under the law of the executing Member State, whatever the constituent elements or however it is described.’
8 Article 3 of Framework Decision 2002/584 sets out the grounds for mandatory non-execution of the European arrest warrant. The grounds for optional non-execution are listed in Articles 4 and 4a of that framework decision. In particular, Article 4, entitled ‘Grounds for optional non-execution of the European arrest warrant’, provides:
‘The executing judicial authority may refuse to execute the European arrest warrant:
1. if, in one of the cases referred to in Article 2(4), the act on which the European arrest warrant is based does not constitute an offence under the law of the executing Member State; …
…’
9 Article 5 of that framework decision, entitled ‘Guarantees to be given by the issuing Member State in particular cases’, sets out the conditions to which the law of the executing Member State may subject the execution of the European arrest warrant by the executing judicial authority.
10 Article 15 of that framework decision, entitled ‘Surrender decision’, provides, in paragraph 2 thereof:
‘If the executing judicial authority finds the information communicated by the issuing Member State to be insufficient to allow it to decide on surrender, it shall request that the necessary supplementary information, in particular with respect to Articles 3 to 5 and Article 8, be furnished as a matter of urgency and may fix a time limit for the receipt thereof, taking into account the need to observe the time limits set in Article 17.’
Framework Decision 2004/757
11 Recitals 3 and 4 of Framework Decision 2004/757 state:
‘(3) It is necessary to adopt minimum rules relating to the constituent elements of the offences of illicit trafficking in drugs and precursors which will allow a common approach at European Union level to the fight against such trafficking.
(4) By virtue of the principle of subsidiarity, European Union action should focus on the most serious types of drug offence. The exclusion of certain types of behaviour as regards personal consumption from the scope of this Framework Decision does not constitute a Council [of the European Union] guideline on how Member States should deal with these other cases in their national legislation.’
12 Article 2 of that framework decision, entitled ‘Crimes linked to trafficking in drugs and precursors’, provides:
‘1. Each Member State shall take the necessary measures to ensure that the following intentional conduct when committed without right is punishable:
(a) the production, manufacture, extraction, preparation, offering, offering for sale, distribution, sale, delivery on any terms whatsoever, brokerage, dispatch, dispatch in transit, transport, importation or exportation of drugs;
…
2. The conduct described in paragraph 1 shall not be included in the scope of this Framework Decision when it is committed by its perpetrators exclusively for their own personal consumption as defined by national law.’
13 Article 4 of that framework decision, entitled ‘Penalties’, provides:
‘1. Each Member State shall take the measures necessary to ensure that the offences defined in Articles 2 and 3 are punishable by effective, proportionate and dissuasive criminal penalties.
Each Member State shall take the necessary measures to ensure that the offences referred to in Article 2 are punishable by criminal penalties of a maximum of at least between one and three years of imprisonment.
2. Each Member State shall take the necessary measures to ensure that the offences referred to in Article 2(1)(a), (b) and (c) are punishable by criminal penalties of a maximum of at least between 5 and 10 years of imprisonment in each of the following circumstances:
…
(b) the offence either involves those drugs which cause the most harm to health, or has resulted in significant damage to the health of a number of persons.
…’
14 Article 5 of that framework decision, entitled ‘Particular circumstances’, sets out the circumstances in which, notwithstanding Article 4 of that framework decision, each Member State may take the necessary measures to ensure that the penalties referred to in Article 4 may be reduced.
National law
Romanian law
– Law No 143/2000
15 The Legea nr. 143/2000 privind prevenirea și combaterea traficului și consumului ilicit de droguri (Law No 143/2000 on preventing and combating illegal drug trafficking and consumption) of 26 July 2000 (Monitorul Oficial al României, Part I, No 362 of 3 August 2000, as republished in Monitorul Oficial al României, Part I, No 163 of 6 March 2014), in the version applicable to the main proceedings, provides, in Article 3 thereof:
‘(1) The introduction into or removal from the country, as well as the import or export of risk drugs, without right, shall be punishable by imprisonment for a term of 3 to 10 years and disqualification from the exercise of certain rights.
(2) If the acts referred to in paragraph 1 relate to high-risk drugs, the penalty shall be imprisonment for a term of 7 to 15 years and disqualification from certain rights.’
16 Article 15 of Law No 143/2000, in the version applicable to the main proceedings, provides:
‘A person who has committed one of the offences referred to in Articles 2 to 9 and who, during the criminal proceedings, reports other persons who have committed drug-related offences and assists the authorities in identifying and prosecuting them, shall benefit from a reduction by half of the penalty limits provided for by law.’
– The Criminal Code
17 Article 46 of the Codul penal (Criminal Code), in the version applicable to the main proceedings (‘the Criminal Code’), entitled ‘Perpetrators and co-perpetrators’, provides, in paragraph 2 thereof:
‘Co-perpetrators are persons who directly commit the same act provided for by criminal law.’
18 Article 75 of the Criminal Code, entitled ‘Mitigating circumstances’, is worded as follows:
‘(1) The following situations constitute statutory mitigating circumstances:
(a) the fact that the offence was committed while in a state of significant distress or extreme emotion caused by the victim, either because of an act of violence, an infringement of a person’s dignity or by other serious unlawful actions;
(b) exceeding the limits of legitimate defence;
(c) exceeding the limits of a state of necessity;
(d) covering all material damage caused by an offence …
(2) The following situations may be recognised by the court as constituting mitigating circumstances:
(a) efforts made by an offender to eliminate or reduce the consequences of their offence;
(b) circumstances relating to the offence committed that reduce the seriousness of the offence or the threat posed by the offender.’
19 Under Article 76 of the Criminal Code, entitled ‘The effects of mitigating circumstances’:
‘(1) Where there are mitigating circumstances, the individual penalty limits prescribed by law for the offence committed shall be reduced by one third.
…
(3) The individual penalty limits shall be reduced only once, regardless of the number of mitigating circumstances that apply.’
– The Code of Criminal Procedure
20 Article 374 of the Legea nr. 135/2010, privind Codul de procedură penală (Law No 135/2010 on the Code of Criminal Procedure) of 1 July 2010 (Monitorul Oficial al României, Part I, No 486 of 15 July 2010), in the version applicable to the main proceedings (‘the Code of Criminal Procedure’), entitled ‘Information on the charges, clarifications and applications’, provides in paragraph 4 thereof:
‘Where the public prosecution does not relate to an offence punishable by life imprisonment, the president shall inform the accused person that he or she may apply for the trial to take place solely on the basis of the evidence gathered during the pre-trial investigation phase and the documentary evidence submitted by the parties, if the defendant or the accused person fully admits all the acts of which he or she is accused, and shall inform the defendant or the accused person of the provisions of Article 396(10).’
21 Article 375 of the Code of Criminal Procedure, entitled ‘Procedure in the event of an admission of guilt’, provides:
‘(1) Where the accused person applies for the trial to take place in the conditions provided for in Article 374(4), the court shall hear him or her and, after the arguments by the prosecutor and the other parties are made, shall take a decision on that application.
(2) If the court grants the application, it shall ask the parties and the victim whether they propose the submission of documentary evidence.
(3) If the court dismisses the application, it shall act in accordance with Article 374(5) to (10).’
22 Article 396 of the Code of Criminal Procedure, entitled ‘Decision on the public prosecution’, provides in paragraph 10 thereof:
‘Where the court proceedings were conducted in accordance with the requirements under Article 375(1) and (2), where the application made by the accused person for the trial to take place under those conditions was dismissed or where the investigation of the case was conducted in accordance with the requirements under Article 377(5) or Article 395(2), and the court accepts the same facts as those described in the indictment, which are admitted by the accused person, in the event of conviction or deferral of the imposition of the penalty, the statutory penalty limits shall be reduced by one third in the case of a custodial sentence and by one quarter in the case of a fine. …’
Netherlands law
23 The Wet tot implementatie van het kaderbesluit van de Raad van de Europese Unie betreffende het Europees aanhoudingsbevel en de procedures van overlevering tussen de lidstaten van de Europese Unie (Overleveringswet) (Law implementing the Framework Decision of the Council of the European Union on the European arrest warrant and the surrender procedures between the Member States of the European Union (Law on the surrender of persons) of 29 April 2004 (Stb. 2004, No 195), in the version applicable to the main proceedings (Stb. 2021, No 155) (‘the OLW’), seeks to implement Framework Decision 2002/584 into Netherlands law.
24 Article 11 of the OLW is worded as follows:
‘1. ‘A [European arrest warrant] shall not be executed in cases where, in the opinion of the court, there are substantial grounds to believe that, after surrender, the requested person will face a real risk that his or her fundamental rights, as guaranteed by the [Charter], will be infringed.
2. If there is a possibility that, in the event of a change of circumstances, the real risk of the infringement referred to in paragraph 1 can ultimately be ruled out, the court should defer the decision on surrender.
3. The issuing authority shall be notified of such deferral, giving reasons, and the court shall consider whether there is any change in circumstances during the period of such deferral.
4. If, after paragraph 3 has been applied, the real risk of an infringement referred to in paragraph 1 cannot be ruled out within a reasonable period of time, the rechtbank [(District Court)] shall hand down a decision such as that referred to in Article 22(6).’
25 Under Article 22(6) of the OLW:
‘If, in exceptional circumstances, the court has deferred its decision under Article 11(2), it may thereafter extend the period by up to 60 days, on each occasion until a decision is made.’
26 Article 28(3) of the OLW provides:
‘In cases other than those provided for in paragraph 2, the rechtbank [(District Court)] shall authorise the surrender in its judgment, unless it considers that the [European arrest warrant] should not be executed pursuant to Article 11(1) …’
The main proceedings and the questions referred for a preliminary ruling
27 On 9 January 2024, the Judecătoria Constanța (Court of First Instance, Constanța, Romania) issued a European arrest warrant against DZ for the purposes of the execution of a final custodial sentence of seven years, imposed by the Curtea de Apel Constanța (Court of Appeal, Constanța, Romania) on 20 December 2023, at the end of a trial in which DZ appeared in person.
28 The rechtbank Amsterdam (District Court, Amsterdam, Netherlands), which is the referring court, became the executing judicial authority following an application for examination of the European arrest warrant made by the officier van justitie (public prosecutor) on 7 May 2024.
29 That court notes that none of the grounds for non-execution referred to in Articles 3, 4 and 4a of Framework Decision 2002/584 is applicable.
30 However, the referring court states that it is apparent from the European arrest warrant that the sentence referred to in paragraph 27 above relates to acts of unlawful importation into Romania of three grams of cannabis and four pills containing methylenedioxymethamphetamine (MDMA), committed by DZ together with his wife. According to the European arrest warrant, under Romanian law, those acts are punishable pursuant to Article 3(1) and (2) of Law No 143/2000 in the version applicable to the main proceedings and Article 46(2) of the Criminal Code and constitute a single offence, namely ‘introducing risk and high-risk drugs into the country’.
31 Furthermore, it is apparent from the supplementary information provided by the issuing judicial authority and by the Romanian desk of Eurojust that – at the time of its commission – the offence was punishable by a minimum sentence of seven years’ imprisonment.
32 Having regard to the quantities of drugs specified in the European arrest warrant and the statement made by DZ before the referring court that the drugs were intended for personal consumption by his wife who used them as pain relief, the referring court mentions ‘small quantities of “risk” and “high risk” drugs for personal consumption’' In any event, that court notes that the requested person and his wife were in possession of those small quantities of drugs ‘with no intention of trafficking them’.
33 The referring court states that Romanian law provides for the possibility of sentence reductions. However, in response to a question, the issuing judicial authority stated that, in the case of DZ, there were no mitigating circumstances. In addition, even if DZ had been eligible for a reduction in the sentence and that such a measure had been applied, suspension of the execution of the sentence imposed on him would not have been possible because of the length of that sentence. According to the issuing judicial authority, in the event that a ground for a reduction in the sentence was applied, that sentence would have amounted to approximately four years and eight months and would therefore have exceeded the maximum limit of three years applicable in order to qualify for a suspension of the execution of the sentence.
34 The referring court concludes that, on the date on which the acts giving rise to the main proceedings were committed, apart from the circumstances justifying a reduction in sentence, the Romanian legislation required the court, in the event of a conviction for the unlawful importation of ‘risk and high-risk drugs’, to impose a minimum sentence of seven years and the fact that that conduct involved a small quantity of drugs or that the person concerned had engaged in that conduct for personal consumption or at least without the intention of trafficking could not be taken into account by that court.
35 The referring court states that DZ’s lawyer opposed his client’s surrender, arguing, before that court, that the custodial sentence that had been imposed on his client was disproportionate and that it was therefore contrary to Article 49(3) of the Charter.
36 That court is of the view that the minimum sentence that the Romanian legislation required the Romanian criminal court to impose in this case, considered together with the limited statutory possibilities for sentence reduction, set out in paragraph 33 above, raises questions about the interpretation of EU law, in particular the principle of proportionality referred to in Article 49(3) of the Charter.
37 In the first place, the argument made by DZ’s lawyer raises the question as to whether, where the requested person invokes a real risk of a sentence being executed that is disproportionate to the offence on which the European arrest warrant issued in respect of that person is based, the executing judicial authority must verify whether that risk means that that person must not be surrendered.
38 The referring court recalls that, in paragraphs 65 to 68 of the judgment of 14 July 2022, Procureur général près la cour d’appel d’Angers (C‑168/21, EU:C:2022:558), the Court of Justice held that observance of the rights of the requested person – in that case, compliance with the principle of proportionality of criminal offences and penalties laid down in Article 49(3) of the Charter – falls primarily within the responsibility of the issuing Member State, that the possible disproportionality of the sentence handed down in that Member State is not among the grounds for non-execution listed in Articles 3, 4 and 4a of Framework Decision 2002/584 and that, accordingly, it is not for the executing judicial authority, in the application of the ground for non-execution provided for in Article 4(1) of that framework decision, to assess that sentence in the light of Article 49(3) of the Charter.
39 By contrast, contrary to the officier van justitie (public prosecutor) at the referring court, that court is unsure whether that judgment results in it not being possible to rely on Article 1(3) of Framework Decision 2002/584, in conjunction with Article 49(3) of the Charter. First, unlike in the present case, in the case which gave rise to that judgment, the questions referred did not concern the discretion available to the criminal court in the issuing Member State in determining the sentence imposed. Next, the Court’s case-law resulting from paragraphs 49 to 53 of the judgment of 3 May 2007, Advocaten voor de Wereld (C‑303/05, EU:C:2007:261), leads to the conclusion that compliance with the principle of the legality of offences and penalties, as laid down in Article 49(1) of the Charter, is also the primary responsibility of the issuing Member State, while it follows from paragraphs 50 and 51 of the judgment of 29 July 2024, Alchaster (C‑202/24, EU:C:2024:649), that a real risk of an infringement of Article 49(1) may preclude the surrender of the requested person. Consequently, in the present case, it cannot be automatically ruled out that, despite Romania’s primary responsibility for compliance with Article 49(3) of the Charter, a real risk of infringement of that provision may preclude surrender.
40 In the second place, if the first question is answered in the affirmative, a number of additional questions arise as to how the executing judicial authority should assess whether there is a real risk of a disproportionate final sentence being executed in the issuing Member State.
41 First, the question arises as to what review that authority must carry out in that assessment. It follows from the case-law arising from the judgment of 19 October 2023, G. ST. T (Proportionality of the penalty for trade mark infringement) (C‑655/21, EU:C:2023:791, paragraphs 67 and 81), that the principle of proportionality requires that the individual circumstances of the particular case be taken into account in determining the penalty in the Member State concerned and that the provision of criminal law in question guarantee that the competent authorities are able to ensure in each individual case that the severity of the penalty imposed does not exceed the seriousness of the offence identified.
42 The question then arises as to the extent to which it is necessary to take into account, in that review, the obligation to impose a minimum sentence, considered together with the possibilities of reducing the sentence and suspending enforcement of the sentence imposed which are provided for by the law of the issuing Member State.
43 Lastly, since the custodial sentence imposed on DZ is already final, the question arises as to whether any guarantee given by the authorities of the issuing Member State – for example, that DZ may be pardoned or that he may still apply for a review of the sentencing judgment – could remove, in relation to him, a real risk of infringement of Article 49(3) of the Charter.
44 In those circumstances, the rechtbank Amsterdam (District Court, Amsterdam) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1) Should Article 1(3) of [Framework Decision 2002/584], read in conjunction with Article 49(3) of the [Charter] and with Article 2(1)(a) and (2), Article 4(1) and (2)(b) and Article 5 of [Framework Decision 2004/757], be interpreted as meaning that
if the person sought opposes his or her surrender on the grounds that he or she has been finally sentenced in the issuing Member State to a disproportionate minimum term of imprisonment for the importation of small quantities of drugs for personal consumption, or at least for the importation of small quantities of drugs without the intention of trafficking them,
the executing judicial authority must examine whether, in the event of surrender for the purpose of executing that sentence, the person sought would face a real risk of serving a sentence that is disproportionate to the offence on which the European arrest warrant is based?
(2) If the answer to the [first question] is in the affirmative:
(a) what test should the executing judicial authority apply in assessing whether there is a real risk of the execution of a final disproportionate sentence as referred to in [the first question];
(b) what role in that test is played by the fact that the law of the issuing Member State,
implementing Article 4(2)(b) of [Framework Decision 2004/757], and the consequent obligation of criminalisation with provision for a maximum sentence of at least 5 to 10 years’ imprisonment,
obliges the national court to impose a minimum sentence of seven years’ imprisonment in the event of conviction for, in essence, the importation of drugs that are [the] most harmful to health, irrespective of the quantity of drugs to which such conduct relates and irrespective of whether such conduct was intended to provide for personal consumption or was carried out with a view to trafficking such drugs, when:
– the court may only reduce that mandatory minimum sentence by up to one third in total if there are circumstances that reduce the seriousness of the offence or the threat posed by the offender or if the person concerned confesses to the offence, or by up to one half in total if the person concerned facilitates the identification and prosecution of other persons who have committed drug-related offences, and
– the length of that (possibly reduced) minimum sentence precludes the court from ordering the suspension of its enforcement;
(c) can any real risk of the execution of a final disproportionate sentence as referred to in [the first question] still be removed by a guarantee on the part of the issuing Member State, and what form might such a guarantee take?’
Consideration of the questions referred
45 By its questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 1(3) of Framework Decision 2002/584, read in the light of Article 49(3) of the Charter and in conjunction with the provisions of Framework Decision 2004/757, must be interpreted as allowing the executing judicial authority to refuse to execute a European arrest warrant issued for the purposes of executing a custodial sentence, on the ground that it considers that sentence to be disproportionate in the light of the specific circumstances of the offence which gave rise to that sentence. In that regard, that court asks, in particular, about the conditions, if any, governing the possibility of such a refusal. In that context, it also asks whether a guarantee to be given by the issuing Member State may remove a real risk of infringement of Article 49(3) of the Charter in the event of enforcement of a disproportionate final sentence and, if so, in what form such a guarantee may be provided by that Member State.
46 As the Advocate General observed in point 28 of his Opinion, the questions raised by the referring court arise essentially from the differences between Netherlands criminal law and Romanian criminal law as regards the degree of severity of the punishment for an offence such as that at issue in the main proceedings, namely the introduction into national territory of ‘high-risk’ drugs. While, according to the explanations provided by the Openbaar Ministerie (Public Prosecutor’s Office, Netherlands) at the hearing, the introduction of drugs belonging to that category, in quantities of up to 10 grams, would be punishable by a term of imprisonment of one to three weeks in the Netherlands, the minimum term of imprisonment is seven years in Romania. Those questions are thus based on the fact that the lower limit of the custodial sentence provided for under Romanian law is high compared with the sentence provided for under Netherlands law and that the options available to the Romanian court to reduce the sentence or suspend its enforcement are limited.
47 Article 49(3) of the Charter provides that the severity of penalties must not be disproportionate to the criminal offence and gives concrete expression, as is apparent from the Explanations relating to the Charter of Fundamental Rights (OJ 2007 C 303, p. 17), to the general principle of proportionality between penalties and criminal offences, which is enshrined in the common constitutional traditions of the Member States.
48 The obligation to comply with the Charter and thus Article 49(3) thereof, is binding on the Member States when they apply Framework Decision 2002/584, given that that application constitutes an implementation of EU law within the meaning of Article 51(1) of the Charter. The issuing judicial authorities and the executing judicial authorities of the Member States are therefore required, when the European arrest warrant is issued and executed, to ensure respect for the fundamental rights afforded by the Charter to the person who is the subject of that European arrest warrant (see, by analogy, judgments of 29 July 2024, Alchaster, C‑202/24, EU:C:2024:649, paragraph 49, and of 23 April 2026, Boothnesse, C‑528/24, EU:C:2026:332, paragraph 45.
49 However, in the system established by Framework Decision 2002/584, it is for the judicial authorities of the issuing Member State to ensure compliance with the principle of proportionality of criminal offences and penalties. The observance of the fundamental rights of the person whose surrender is sought falls primarily within the responsibility of the issuing Member State (see judgments of 14 July 2022, Procureur général près la cour d’appel d’Angers, C‑168/21, EU:C:2022:558, paragraph 65 and the case-law cited, and of 29 July 2024, Breian, C‑318/24 PPU, EU:C:2024:658, paragraphs 32 and 52).
50 In that regard, it must be recalled that both the principle of mutual trust between the Member States and the principle of mutual recognition, which is itself based on the mutual trust between the latter, are, in EU law, of fundamental importance given that they allow an area without internal borders to be created and maintained. More specifically, the principle of mutual trust requires, particularly as regards the area of freedom, security and justice, each of those States, save in exceptional circumstances, to consider all the other Member States to be complying with EU law and particularly with the fundamental rights recognised by EU law (judgment of 21 December 2023, GN (Ground for refusal based on the best interests of the child), C‑261/22, EU:C:2023:1017, paragraph 33 and the case-law cited).
51 Thus, when implementing EU law, the Member States are required to presume that fundamental rights have been observed by the other Member States, so that they may neither demand a higher level of national protection of fundamental rights from another Member State than that provided by EU law, nor check, save in exceptional cases, whether that other Member State has actually, in a specific case, observed the fundamental rights guaranteed by the European Union (judgment of 21 December 2023, GN (Ground for refusal based on the best interests of the child), C‑261/22, EU:C:2023:1017, paragraph 34 and the case-law cited).
52 In that respect, Framework Decision 2002/584 seeks, by the establishment of a simplified and effective system for the surrender of persons convicted or suspected of having infringed criminal law, to facilitate and accelerate judicial cooperation with a view to contributing to the attainment of the objective set for the European Union of becoming an area of freedom, security and justice, and has as its basis the high level of trust which must exist between the Member States (judgments of 30 May 2013, F, C‑168/13 PPU, EU:C:2013:358, paragraph 35, and of 21 December 2023, GN (Ground for refusal based on the best interests of the child), C‑261/22, EU:C:2023:1017, paragraph 35 and the case-law cited).
53 The principle of mutual recognition, which underpins that framework decision, implies that each Member State accepts the application of the criminal law in force in the other Member States, even though the implementation of its own national law might produce a different outcome, and does not therefore allow the executing judicial authority to substitute its own assessment of the criminal responsibility of the person who is the subject of a European arrest warrant for that previously carried out in the issuing Member State in connection with the judicial decision on which the warrant is based (see, to that effect, judgment of 23 January 2018, Piotrowski, C‑367/16, EU:C:2018:27, paragraph 52).
54 The principle of mutual recognition, which, according to recital 6 of Framework Decision 2002/584, constitutes the ‘cornerstone’ of judicial cooperation in criminal matters, is thus expressed in Article 1(2) thereof which lays down the rule that Member States are required to execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of the framework decision (judgment of 21 December 2023, GN (Ground for refusal based on the best interests of the child), C‑261/22, EU:C:2023:1017, paragraph 36 and the case-law cited).
55 It follows, first, that the executing judicial authorities may refuse to execute a European arrest warrant only on grounds stemming from Framework Decision 2002/584, as interpreted by the Court. Second, while execution of the European arrest warrant constitutes the rule, refusal to execute is intended to be an exception which must be interpreted strictly (judgment of 21 December 2023, GN (Ground for refusal based on the best interests of the child), C‑261/22, EU:C:2023:1017, paragraph 37 and the case-law cited).
56 Thus, Framework Decision 2002/584 explicitly states the grounds for mandatory non-execution (Article 3) and optional non-execution (Articles 4 and 4a) of a European arrest warrant, as well as the guarantees to be given by the issuing Member State in particular cases (Article 5) (judgment of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice), C‑216/18 PPU, EU:C:2018:586, paragraph 42 and the case-law cited).
57 The possible disproportionality of the sentence handed down in the issuing Member State is not among the grounds for mandatory and optional non-execution of a European arrest warrant set out in Articles 3, 4 and 4a of Framework Decision 2002/584 (judgment of 14 July 2022, Procureur général près la cour d’appel d’Angers, C‑168/21, EU:C:2022:558, paragraph 66).
58 Furthermore, the Court has held that the optional ground for non-execution provided for in Article 4(1) of Framework Decision 2002/584 – pursuant to which the executing judicial authority may refuse to execute the European arrest warrant if, in one of the cases referred to in Article 2(4) of that framework decision, the act on which the European arrest warrant is based does not constitute an offence under the law of the executing Member State – requires only verification of whether the factual elements of the offence which gave rise to the issuing of that European arrest warrant would also, per se, constitute an offence under the law of the executing Member State if they were present in that State. Consequently, that optional ground for non-execution does not permit the executing judicial authority to assess the sentence incurred or handed down in the issuing Member State in the light of Article 49(3) of the Charter (see, to that effect, judgment of 14 July 2022, Procureur général près la cour d’appel d’Angers, C‑168/21, EU:C:2022:558, paragraphs 67 and 68).
59 That said, it is apparent from Article 1(3) of Framework Decision 2002/584 that that framework decision is not to have the effect of modifying the obligation to respect the fundamental rights guaranteed by the Charter (judgment of 21 December 2023, GN (Ground for refusal based on the best interests of the child), C‑261/22, EU:C:2023:1017, paragraph 39).
60 On the basis of that provision, the Court has recognised that limitations may be placed on the principles of mutual recognition and mutual trust between Member States in exceptional circumstances (judgment of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice), C‑216/18 PPU, EU:C:2018:586, paragraph 43).
61 In particular, the Court has acknowledged that, subject to certain conditions, the executing judicial authority has the option, or even the obligation, to refrain from giving effect to a European arrest warrant, under Article 1(3) of Framework Decision 2002/584, where, in the event of the surrender of the person concerned to the issuing judicial authority, there is a real risk of a breach of the fundamental rights enshrined in Articles 4 (prohibition of torture and inhuman or degrading treatment or punishment), 7 (respect for private and family life), 24 (the rights of the child) or 47 (right to an effective remedy and to a fair trial) (see, to that effect, judgments of 5 April 2016, Aranyosi and Căldăraru, C‑404/15 and C‑659/15 PPU, EU:C:2016:198, paragraphs 89 to 94; of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice), C‑216/18 PPU, EU:C:2018:586, paragraphs 59, 73 and 78; and of 21 December 2023, GN (Ground for refusal based on the best interests of the child), C‑261/22, EU:C:2023:1017, paragraphs 43 and 55 and the case-law cited).
62 In that regard, the Court has stated that the assessment, during a procedure for the execution of a European arrest warrant pursuant to Framework Decision 2002/584, of whether there is real risk of a breach of the fundamental rights enshrined in the Charter, as hitherto envisaged with regard to the rights enshrined in Articles 4, 7, 24 and 47, must, in principle, be carried out by means of an examination in two separate steps which cannot overlap with one another, in so far as they involve an analysis on the basis of different criteria, and which must therefore be carried out in turn (‘the two-step examination’) (judgments of 5 April 2016, Aranyosi and Căldăraru, C‑404/15 and C‑659/15 PPU, EU:C:2016:198, paragraphs 88 to 94; of 29 July 2024, Alchaster, C‑202/24, EU:C:2024:649, paragraph 52 and the case-law cited; and of 17 March 2026, Županijsko državno odvjetništvo, C‑8/24, EU:C:2026:210, paragraph 65).
63 To that end, the executing judicial authority must, as the first step in the two-step examination, determine whether there is objective, reliable, specific and properly updated information to demonstrate that there is a real risk of infringement, in the issuing Member State, of one of those fundamental rights on account of either systemic or generalised deficiencies, or deficiencies affecting more specifically an objectively identifiable group of persons to which the person concerned belongs (see, to that effect, judgments of 5 April 2016, Aranyosi and Căldăraru, C‑404/15 and C‑659/15 PPU, EU:C:2016:198, paragraph 89; of 31 January 2023, Puig Gordi and Others, C‑158/21, EU:C:2023:57, paragraph 102; and of 21 December 2023, GN (Ground for refusal based on the best interests of the child), C‑261/22, EU:C:2023:1017, paragraph 47).
64 As the second step in the two-step examination, the executing judicial authority must determine, specifically and precisely, to what extent the deficiencies identified in the first step of the examination, referred to in the preceding paragraph of the present judgment, are liable to have an impact on the person who is the subject of a European arrest warrant and whether, having regard to his or her personal situation, there are substantial grounds for believing that that person will run a real risk of a breach of those fundamental rights if surrendered to the issuing Member State (see, to that effect, judgments of 5 April 2016, Aranyosi and Căldăraru, C‑404/15 and C‑659/15 PPU, EU:C:2016:198, paragraph 94; of 31 January 2023, Puig Gordi and Others, C‑158/21, EU:C:2023:57, paragraph 106; and of 21 December 2023, GN (Ground for refusal based on the best interests of the child), C‑261/22, EU:C:2023:1017, paragraph 48).
65 As the Advocate General noted, in essence, in points 54 to 69 of his Opinion, the considerations set out in paragraphs 60 to 64 of the present judgment also apply where the person who is the subject of a European arrest warrant claims before the executing judicial authority that there is a real risk of a breach of the fundamental right enshrined in Article 49(3) of the Charter. Consequently, although that authority may, exceptionally, refuse the surrender of that person where it finds that there is in fact a real risk of breach of the principle of proportionality of criminal offences and penalties, as enshrined in Article 49(3), the fact remains that such a finding can be made only on the basis of the two-step examination which is based, in the absence of a specific ground for refusal of recognition and execution on the ground of infringement of fundamental rights laid down by the EU legislature, on the interpretation of the general provision expressed in Article 1(3) of Framework Decision 2002/584.
66 In particular, the obligation to find that there are deficiencies such as those referred to in paragraph 63 above before being able to verify, specifically and precisely, whether the person who is the subject of a European arrest warrant runs a real risk of a breach of a fundamental right is precisely aimed at preventing such an investigation from being conducted outside exceptional cases and is thus the consequence of the presumption of respect for fundamental rights by the issuing Member State which stems from the principle of mutual trust (see, to that effect, judgments of 31 January 2023, Puig Gordi and Others, C‑158/21, EU:C:2023:57, paragraphs 114 to 116, and of 29 July 2024, Alchaster, C‑202/24, EU:C:2024:649, paragraph 59).
67 Compliance with that obligation makes it possible, in particular, to ensure the division of responsibilities between the issuing Member State and the executing Member State as regards safeguarding the requirements inherent in the fundamental rights arising from the full application of the principles of mutual trust and mutual recognition which underpin the operation of the European arrest warrant (judgment of 29 July 2024, Alchaster, C‑202/24, EU:C:2024:649, paragraph 60 and the case-law cited).
68 To consider that the assessment of the proportionality of the custodial sentence imposed on the requested person by the courts of the issuing Member State may be verified, specifically and precisely, by the executing judicial authority on the sole ground that an argument alleging that that sentence is disproportionate is relied on before the latter authority would amount to conferring on that authority a general function of reviewing substantive judicial decisions adopted in the issuing Member State, which would run counter to the principles of trust and mutual recognition and would call into question the effectiveness of the system of judicial cooperation between the Member States of which the European arrest warrant, as provided for by the EU legislature, is one of the essential elements (see, by analogy, judgment of 31 January 2023, Puig Gordi and Others, C‑158/21, EU:C:2023:57, paragraph 88).
69 The Court has further stated that the limitation to exceptional cases of the possibility of verifying whether another Member State has actually complied, in a specific case, with the fundamental rights enshrined in the Charter is linked to the intrinsic nature of the European Union and contributes to the balance on which the Charter is founded (see, to that effect, Opinion 2/13 (Accession of the European Union to the ECHR) of 18 December 2014, EU:C:2014:2454, paragraphs 193 and 194, and judgment of 29 July 2024, Alchaster, C‑202/24, EU:C:2024:649, paragraph 64).
70 In that context, the facts of the present case must be distinguished from those which gave rise to the judgment of 18 April 2023, E.D.L. (Ground for refusal based on illness) (C‑699/21, EU:C:2023:295), in which the Court accepted that an executing judicial authority may, subject to certain strict conditions, refuse to execute a European arrest warrant where it is established that the surrender of a seriously ill person would expose him or her to a real risk of a significant reduction in his or her life expectancy or of a rapid, significant and irreversible deterioration in his or her state of health. In such a situation, the real risk of a breach of fundamental rights to which such a person is exposed arises, in essence, from factual circumstances linked to his or her state of health which, first, are inherent and specific to that person and, second, are examined only by the executing judicial authority when that person is on the territory of the executing Member State. A two-step examination in the circumstances set out in paragraphs 65 to 69 of the present judgment is therefore not necessary.
71 As regards the assessment in the present case, for the purposes of the first step in the two-step examination, of the existence of deficiencies such as those referred to in paragraph 63 above, it should be recalled that Framework Decision 2002/584 does not seek to harmonise the criminal offences falling within the scope of that framework decision, as defined in Article 2(1) thereof, in respect of their constituent elements or the penalties which they attract. Accordingly, the definition of those offences and of the penalties applicable continue, in the absence of harmonisation measures, to be matters determined by the law of the issuing Member State. That said, as is apparent from Article 1(3) of that framework decision, that Member State, when it issues a European arrest warrant, must respect the fundamental rights guaranteed by the Charter and the general principles of EU law as enshrined in Article 6 TEU and, consequently, the principle of proportionality of criminal offences and penalties (see, to that effect, judgment of 3 May 2007, Advocaten voor de Wereld, C‑303/05, EU:C:2007:261, paragraphs 52 and 53).
72 As regards Framework Decision 2004/757, to which the referring court makes reference in its questions, it is apparent from recital 3 that that framework decision lays down minimum rules relating to the constituent elements of criminal acts and penalties in the field of illicit drug trafficking and precursors, the aim of which is to define a common approach at EU level to the fight against drug trafficking. That framework decision was adopted, inter alia, on the basis of Article 31(1)(e) TEU, which provided, in particular, that common action on judicial cooperation in criminal matters is to include progressively adopting measures establishing minimum rules (see judgment of 11 June 2020, Prokuratura Rejonowa w Słupsku, C‑634/18, EU:C:2020:455, paragraphs 32 and 33).
73 It follows from Article 2(1)(a) and Article 4(1) of Framework Decision 2004/757 that each Member State is to take the necessary measures to ensure that, inter alia, the transport and importation of drugs are categorised as criminal offences and are punishable by an effective, proportionate and dissuasive criminal penalty of a maximum of at least between one and three years of imprisonment. In addition, it follows from Article 4(2)(b) of that framework decision that the Member States must penalise that offence, where it involves ‘those drugs which cause the most harm to health’, with a maximum penalty of at least 5 to 10 years’ imprisonment.
74 That said, first, Article 2(2) of Framework Decision 2004/757 excludes from the scope of that framework decision, inter alia, the transport and importation of drugs exclusively for their own personal consumption, as defined by national legislation. Second, as is apparent from recital 4 of that framework decision, although, by virtue of the principle of subsidiarity, European Union action should focus on the most serious types of drug offence, the exclusion of certain types of behaviour as regards personal consumption from the scope of that framework decision does not constitute a Council guideline on how Member States should deal with these other cases in their national legislation (see, to that effect, judgment of 11 June 2020, Prokuratura Rejonowa w Słupsku, C‑634/18, EU:C:2020:455, paragraph 36).
75 Accordingly, since Framework Decision 2004/757 lays down only minimal rules relating to the constituent elements of criminal acts and penalties in the field of illicit trafficking in drugs and precursors, the existence of differences between the measures implementing that framework decision in the various national legal orders and, a fortiori, differences – even significant ones – between national measures that fall outside the scope of that framework decision cannot, in itself, be regarded as sufficient to find that there is in fact a real risk of breach of the principle of proportionality of criminal offences and penalties (see, by analogy, judgment of 11 June 2020, Prokuratura Rejonowa w Słupsku, C‑634/18, EU:C:2020:455, paragraph 46 and the case-law cited).
76 In that regard, it is important to point out that the assessment of such a risk must be carried out by the executing judicial authority having regard to the standard of protection of fundamental rights guaranteed by EU law and not on the basis of national law (see, to that effect, judgment of 21 December 2023, GN (Ground for refusal based on the best interests of the child), C‑261/22, EU:C:2023:1017, paragraph 44 and the case-law cited).
77 In the absence of complete harmonisation of substantive criminal law rules, the choices in the area of criminal policy of the executing Member State may depart significantly from the choices made in that area by the issuing Member State. Consequently, the existence of differences, even notable ones, between the provisions applicable in those two Member States as regards the determination of the length of the custodial sentence applicable to the offence which gave rise to the European arrest warrant cannot permit the inference that that risk has been established.
78 Furthermore, if the existence of such differences between the penalties applicable to the type of offence in question under the legislation of the issuing Member State and those that would have been applicable under the legislation of the executing Member State were, in itself, sufficient to justify a finding, by the executing judicial authority, of systemic or generalised deficiencies or deficiencies affecting more specifically an objectively identifiable group of persons to which the person concerned belongs in the issuing Member State as regards compliance with the principle of proportionality of criminal offences and penalties, provided for in Article 49(3) of the Charter, for the purposes of refusing to execute a European arrest warrant under Article 1(3) of Framework Decision 2002/584, that would entail a high risk of impunity for persons who attempt to flee from justice after having been convicted of, or after they have been suspected of committing, an offence. One of the objectives of that framework decision is specifically to combat impunity (see, by analogy, judgment of 22 February 2022, Openbaar Ministerie (Tribunal established by law in the issuing Member State), C‑562/21 PPU and C‑563/21 PPU, EU:C:2022:100, paragraph 62).
79 As regards the requirements arising from Article 49(3) of the Charter, the Court has had occasion to rule that, pursuant to the principle set out in that provision, the severity of sanctions must be commensurate with the seriousness of the infringements they address, in particular by ensuring that they have a genuinely dissuasive effect, while at the same time not exceeding the limits of what is necessary to achieve the objectives legitimately pursued by the legislation in question (see judgments of 6 October 2021, A (Crossing of borders in a pleasure boat), C‑35/20, EU:C:2021:813, paragraph 84, and of 19 October 2023, G. ST. T (Proportionality of the penalty for trade mark infringement), C‑655/21, EU:C:2023:791, paragraph 65 and the case-law cited).
80 The Court has further held that the principle of proportionality of criminal offences and penalties requires that the individual circumstances of the particular case are taken into account in determining the penalty – in particular where that penalty consists of a custodial sentence – and fixing the amount of the fine (see, to that effect, judgment of 19 October 2023, G. ST. T (Proportionality of the penalty for trade mark infringement), C‑655/21, EU:C:2023:791, paragraphs 67 and 81).
81 In order to assess the proportionality of penalties, account must also be taken of the possibility for national courts to amend the categorisation as set out in the bill of indictment, that possibility being capable of leading to a less severe penalty, and of the possibility to vary the penalty depending on the seriousness of the offence identified (judgments of 19 October 2023, G. ST. T. (Proportionality of the penalty for trade mark infringement), C‑655/21, EU:C:2023:791, paragraph 68, and of 3 July 2025, Beach and bar management, C‑733/23, EU:C:2025:515, paragraph 50).
82 Consequently, in view of the division of responsibilities in the system established by Framework Decision 2002/584 and the central role accorded to the principles of mutual recognition and mutual trust between Member States for the functioning of that system and for the creation of the area of freedom, security and justice, it must be held that, in the execution of a European arrest warrant, the executing judicial authority may find systemic or generalised deficiencies, or deficiencies affecting more specifically an objectively identifiable group of persons to which the person concerned belongs in the issuing Member State as regards compliance with the principle of proportionality of criminal offences and penalties, provided for in Article 49(3) of the Charter, only where the legislation or judicial practice of the issuing Member State on the basis of which the custodial sentence in question was imposed constitutes a manifest and serious breach of that principle and there is no effective judicial remedy, in that Member State, to redress that breach.
83 The high threshold of seriousness for such a breach must necessarily be established by the executing judicial authority where the national legislation of that Member State on the basis of which the custodial sentence in question was imposed provides for the possibility, or even the obligation, for the competent national court to impose custodial sentences which are so disproportionate as to be equivalent to inhuman or degrading punishment, within the meaning of Article 4 of the Charter, the meaning and scope of which correspond to Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950.
84 In addition to the situations referred to in the preceding paragraph of the present judgment, a manifest and serious breach of the principle of proportionality of criminal offences and penalties, laid down in Article 49(3) of the Charter, must also be established by the executing judicial authority where it is apparent from the objective, reliable, specific and properly updated information available to that authority that the national legislation in question of the issuing Member State not only fails to take any account of the seriousness of the offence committed for the purposes of determining the penalties which it sets out, but also does not allow the national court to take account of the individual circumstances of the particular case regarding the seriousness of the offence committed for the purposes of adjusting the sentence imposed, where appropriate within the range established by that legislation, or of the possibilities for reducing the sentence provided for by that legislation or by reclassifying the offence, as referred to in paragraph 81 above.
85 In that regard, if the executing judicial authority considers that the information available to it is insufficient to enable it to verify whether there are, in the issuing Member State, systemic or generalised deficiencies or deficiencies affecting more specifically an objectively identifiable group of persons as regards compliance with the principle of proportionality of criminal offences and penalties, it has the option, provided for in Article 15(2) of Framework Decision 2002/584, to request that the competent authority of that State provide supplementary information as a matter of urgency, in order to obtain further details necessary for that purpose.
86 However, while it is open to that authority to have recourse to that option, this should only be a last resort, in exceptional cases in which that authority considers that it does not have the official evidence necessary to adopt a decision on surrender as a matter of urgency (see, by analogy, judgment of 23 January 2018, Piotrowski, C‑367/16, EU:C:2018:27, paragraph 61).
87 In any event, the examination carried out by that authority should be strictly limited to aspects relating to compliance with the principle of proportionality of criminal offences and penalties and should not amount, in reality, to a re-examination of the analysis previously conducted by the criminal courts ruling on the substance in the issuing Member State, which forms the basis of the European arrest warrant.
88 In the present case, first, the Romanian legislation at issue in the main proceedings, in so far as it provides for a minimum custodial sentence of seven years in the event of conviction for the importation of ‘high-risk’ drugs, such as those at issue in the main proceedings, cannot be regarded as imposing inhuman or degrading punishment, within the meaning of Article 4 of the Charter, the meaning and scope of which correspond to Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
89 Second, although the minimum sentence threshold is set at seven years, it should be noted that that legislation allows for the individualisation of the sentence, including to take account of the seriousness of the offence and the personal circumstances of the convicted person. In particular, it is apparent from the documents before the Court that factors such as the purpose of the criminal offence and the quantity of those ‘high-risk’ drugs may be taken into account by the Romanian court which has jurisdiction to impose a sentence aligned with the minimum threshold of seven years and that that court appears to have actually made use of that possibility in the present case. Moreover, as the Advocate General observed in points 79 to 84 of his Opinion, Romanian law does not appear to deprive that court of the possibility of amending the categorisation of the offence as set out in the bill of indictment, in particular where it finds that they are not ‘high-risk’ drugs, that possibility being capable of leading to a less severe penalty. In addition, mitigating circumstances and other circumstances specific to the case – such as circumstances relating to the offence committed which reduce its seriousness or reduce the threat posed by its perpetrator – may lead that court to reduce the sentence imposed to below that minimum threshold.
90 Although the competent Romanian court considered that none of those mitigating circumstances or other specific circumstances was applicable in the present case, that assessment was a matter for that court alone to determine, in the light of, inter alia, the evidence available to it and DZ’s conduct.
91 Moreover, there is nothing in the documents before the Court to suggest that there are no legal remedies in Romania sufficient to ensure effective legal protection for the accused person. On the contrary, it is apparent from those documents, as well as from the oral arguments at the hearing before the Court, that DZ made use of the available legal remedies which enabled him to challenge the sentence imposed on him both on appeal and on a further appeal on a point of law.
92 Accordingly, national legislation such as that at issue in the main proceedings cannot give rise to a finding of deficiencies such as those referred to in paragraph 63 above. The execution of a European arrest warrant issued for the purposes of executing a custodial sentence imposed in accordance with such legislation cannot, therefore, be refused under Article 1(3) of Framework Decision 2002/584, read in the light of Article 49(3) of the Charter.
93 In those circumstances, there is no need to examine whether the criteria that must be analysed in the second step of the two-step examination, referred to in paragraph 64 above, are satisfied on account of a real risk of breach of the principle of proportionality of criminal offences and penalties in the event of surrender to the issuing Member State. Nor is there any need to answer the referring court’s more specific question as to whether a guarantee to be given by the issuing Member State would be able to eliminate a real risk of infringement of Article 49(3) of the Charter in the event of enforcement of a disproportionate final sentence and, if so, what form such a guarantee might take.
94 In the light of all the foregoing considerations, the answer to the questions referred is that Article 1(2) and (3) of Framework Decision 2002/584, read in the light of Article 49(3) of the Charter, must be interpreted as precluding the executing judicial authority from refusing to execute a European arrest warrant issued for the purpose of executing a custodial sentence on the ground that it considers that sentence to be disproportionate in the light of the specific circumstances characterising the offence which gave rise to that sentence, where that authority does not have objective, reliable, specific and properly updated information demonstrating a real risk of a breach, in the issuing Member State, of the principle of proportionality of criminal offences and penalties enshrined in that provision of the Charter, on account of the existence either of systemic or generalised deficiencies or of deficiencies affecting more specifically an objectively identifiable group of persons to which the person concerned belongs. Such deficiencies can be established only where the legislation or judicial practice of the issuing Member State on the basis of which the custodial sentence concerned was imposed constitutes a manifest and serious breach of that principle – in particular because they do not allow the competent court of that issuing Member State to take account of the individual circumstances of the particular case regarding the seriousness of the offence committed for the purposes of adjusting the sentence imposed, where appropriate within the range established by that legislation, or of the possibilities for reducing the sentence provided for by that legislation or by reclassifying the offence – and where there is no effective judicial remedy in that Member State to redress that breach.
Costs
95 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Grand Chamber) hereby rules:
Article 1(2) and (3) of 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, read in the light of Article 49(3) of the Charter of Fundamental Rights of the European Union,
must be interpreted as precluding the executing judicial authority from refusing to execute a European arrest warrant issued for the purpose of executing a custodial sentence on the ground that it considers that sentence to be disproportionate in the light of the specific circumstances characterising the offence which gave rise to that sentence, where that authority does not have objective, reliable, specific and properly updated information demonstrating a real risk of a breach, in the issuing Member State, of the principle of proportionality of criminal offences and penalties enshrined in that provision of the Charter of Fundamental Rights, on account of the existence either of systemic or generalised deficiencies or of deficiencies affecting more specifically an objectively identifiable group of persons to which the person concerned belongs. Such deficiencies can be established only where the legislation or judicial practice of the issuing Member State on the basis of which the custodial sentence concerned was imposed constitutes a manifest and serious breach of that principle – in particular because they do not allow the competent court of that issuing Member State to take account of the individual circumstances of the particular case regarding the seriousness of the offence committed for the purposes of adjusting the sentence imposed, where appropriate within the range established by that legislation, or of the possibilities for reducing the sentence provided for by that legislation or by reclassifying the offence – and where there is no effective judicial remedy in that Member State to redress that breach.
[Signatures]
*Language of the case: Dutch.
i The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings.