4.)  will go on to set out why I consider that Article 3(3) of that framework decision, read in the light of Article 24(2) of the Charter of Fundamental Rights of the European Union, ( 4 ) must be interpreted as meaning that the executing Member State may refuse to surrender a minor where, having regard to his age at the time of commission of the offence, no penalty can be imposed on him under the law of that State. On the other hand, the executing Member State must surrender the minor wherever, having regard to his age at the time of commission of the offence, the penalty which may be imposed in the issuing Member State corresponds, in nature and severity, to one which could equally have been imposed in the executing Member State.

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47) This feature of the criminal law relating to minors has such weight that, in my opinion, it is a matter of fundamental rights. Confirmation of this is found in Article 24(2) of the Charter, which provides that ‘in all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration’.

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57) That said, the essential question remains whether, owing to his age, the minor is liable to have a penalty imposed on him. This fundamental question is raised by Article 3(3) of the framework decision, which makes it, if answered in the negative, a ground for mandatory refusal of surrender. That provision ensures absolute respect on the part of all Member States for one of the fundamental concepts of the law relating to minors. In so doing, it observes the fundamental right deriving inter alia from Article 24(2) of the Charter.

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62) Accordingly, for all the foregoing reasons, I consider that Article 3(3) of Framework Decision 2002/584, read in the light of Article 24(2) of the Charter, must be interpreted as meaning that the executing Member State may refuse to surrender a minor where, owing to his age at the time of commission of the offence, no penalty can be imposed on him under the law of that State. On the other hand, the executing Member State must surrender the minor whenever, having regard to his age at the time of commission of the offence, the penalty which could be imposed in the issuing Member State corresponds, in nature and severity, to one which could equally have been imposed in the executing Member State.

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64) In view of all the foregoing, I propose that the questions referred for a preliminary ruling by the Hof van beroep te Brussel (Court of Appeal of Brussels, Belgium) be answered as follows: 

1. Article 3(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 24(2) of the Charter of Fundamental Rights of the European Union, is to be interpreted as meaning that:
   • the ground for mandatory non-execution of the warrant contained in that provision does not apply simply because the perpetrator of the offence in respect of which the warrant was issued is a minor; 
   • the executing Member State may refuse to surrender a minor where, owing to his age at the time of commission of the offence, no penalty can be imposed on him under the law of that State; 
   • on the other hand, the executing Member State must surrender the minor whenever, having regard to his age at the time of commission of the offence, the penalty which could be imposed in the issuing Member State corresponds, in nature and severity, to one which could equally have been imposed in the executing Member State. 
2. Where the executing Member State refuses to surrender the minor, it must meet, in relation to that minor, its duty of care with respect to him within the framework of the educational support it is required to provide.