In the case of E.D.L. (C-699/21, 18.4.2023) the CJEU was again called upon to rule on how to handle the situation arising out of a legal obligation to deport a person who is seriously ill to a State where the required medical treatment might not be available. Whereas in Staatssecretaris van Justitie en Veiligheid (Éloignement – Cannabis thérapeutique) this issue presented itself in the context of a return procedure, in the case at hand it did so in the context of the execution of a European arrest warrant (EAW).

In its ruling the CJEU distinguished three different scenarios:

a) Where there are substantial grounds to believe that the surrender of the requested person manifestly risks endangering his or her health, the executing judicial authority may, exceptionally, postpone that surrender temporarily, on the basis of Article 23(4) of Framework Decision 2002/584.

b) Where the executing judicial authority concludes that there are substantial and established grounds for believing that the surrender of the requested person would expose that person to a risk as the one which was at stake in Staatssecretaris van Justitie en Veiligheid (Éloignement – Cannabis thérapeutique) referred to above, i.e. 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, that authority is required, in accordance with Article 4 of the Charter, to exercise the power provided for in Article 23(4) of Framework Decision 2002/584 by deciding to postpone the surrender. It is also required to ask the issuing judicial authority to provide all information relating to the conditions under which it intends to prosecute or detain that person and to the possibility of adapting those conditions to his or her state of health in order to prevent such a risk from materialising.

c) If, in the light of the information provided by the issuing judicial authority and all the other information available to the executing judicial authority, it appears that that risk cannot be ruled out within a reasonable period of time, the executing judicial authority must refuse to execute the European arrest warrant, by virtue of Article 1(3) of Framework-Decision 2002/584, which provides that that 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]”. On the other hand, if the said risk can be ruled out within such a period of time, a new surrender date must be agreed with the issuing judicial authority.

What is noteworthy about this case is that the CJEU here did not apply its two-step methodology for the assessment of the existence of a risk in the issuing Member State such as to justify an exception, based on the duty to respect fundamental rights, from the obligation to execute a EAW. On this methodology, see e.g. Openbaar Ministerie (Tribunal established by law in the issuing Member State). The CJEU indeed immediately dealt with the nature of the risk incurred by the requested person in the issuing Member State (Croatia), without also assessing the existence of any systemic or generalised deficiencies in that Member State, as it did for instance in Aranyosi and Căldăraru, which also concerned a risk of a breach of Article 4 of the EU-Charter in the issuing Member State. The future will tell whether this case is to be seen as an exception or a new trend.