The evolution of European Union criminal law (1957-2012)

In the post Lisbon period, the CJEU gave further guidance on the interpretation of the
grounds for non-execution of an EAW. It did so in Lopes da Silva. 1026 The facts of the
case are as follows: Mr Lopes da Silva, a Portuguese national, was living in France, was
employed by a French company since February 2008 as a long-distance lorry driver
under an open-ended contract and had married a French national in 2009. On 14
September 2006, the Court of Appeal of Amiens (France) was seised of proceedings
relating to the execution of an EAW issued by the Lisbon Criminal Court in respect to
Mr Lopes da Silva, who had been sentenced in Portugal to five years’ imprisonment for
drug trafficking. He did not consent to his surrender and asked to be imprisoned in
France, relying on Article 4(6) of the Framework Decision and on his right to private
and family life as enshrined in the ECHR. However, the French legislation, which
transposes the Framework Decision on the EAW, restricted the power not to execute an
EAW on the grounds provided by Article 4(6) solely to French nationals. The Court of
Appeal of Amiens decided to stay national proceedings and refer to the CJEU whether
the French legislation limiting the possibility of refusal of the EAW’s execution to
nationals only—thus absolutely excluding nationals from other Member States who are
staying in, or a resident of its territory—was compatible with the Framework Decision.
In its decision, the CJEU pointed out that although Member States are, in principle,
obliged to act upon an EAW, they may allow their national authorities to decide that a
sentence imposed can be enforced in the territory of the executing Member State in
some circumstances, namely in the cases provided for in Article 4(6) of the Framework
Decision. In this regard, the CJEU noted that this ground for non-execution has the
objective of enabling the judicial authority to give particular weight to the possibility of
increasing the requested person’s chances of reintegrating into society when his sentence
expires. That objective is legitimately pursued when a certain degree of integration in
the society of that Member State is demonstrated. The Court went on to note that it had
already held in Wolzenburg 1027 that a Member State may limit the benefit of that ground
for non-execution of an EAW to its own nationals or to the nationals of the other
Member States who have lawfully resided within the national territory for a continuous
period of five years or more. That condition is justified in that it ensures the requested
person is sufficiently integrated in the Member State of execution. Accordingly, in
Lopes da Silva, the Court found that the Member States cannot, without undermining the
principle that there should be no discrimination on the grounds of nationality—as
enshrined in Article 18 TFEU—limit the non-execution of a warrant on the ground in
question, solely to their own nationals, by automatically and absolutely excluding
nationals of other Member States who are staying in or a resident of the territory of the
1026 Case C-42/11, supra note 770.
1027 Case C-123/08, supra note 767.
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