CELEX: 62016CJ0452
Reference for a preliminary ruling
Urgent preliminary ruling procedure
Police and judicial cooperation in criminal matters
European arrest warrant
Framework Decision 2002/584/JHA
Article 1(1)
Concept of ‘judicial decision’
Article 6(1)
Concept of ‘issuing judicial authority’
European arrest warrant issued by the Rikspolisstyrelsen (National Police Board, Sweden) with a view to executing a custodial sentence

This request for a preliminary ruling concerns the interpretation of Article 1(1) and Article 6(1) 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
; ‘the Framework Decision’).
The request has been made in connection with the execution in the Netherlands of a European arrest warrant issued by the Rikspolisstyrelsen (National Police Board, Sweden; ‘the Swedish police board’) against Mr Krzysztof Marek Poltorak with a view to executing a custodial sentence of one year and three months in Sweden.
Legal context
EU law
Recitals 5 to 9 of the Framework Decision are worded as follows:
‘(5)
The objective set for the Union to become an area of freedom, security and justice leads to abolishing extradition between Member States and replacing it by a system of surrender between judicial authorities. Further, the introduction of a new simplified system of surrender of sentenced or suspected persons for the purposes of execution or prosecution of criminal sentences makes it possible to remove the complexity and potential for delay inherent in the present extradition procedures. Traditional cooperation relations which have prevailed up till now between Member States should be replaced by a system of free movement of judicial decisions in criminal matters, covering both pre-sentence and final decisions, within an area of freedom, security and justice.
(6)
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.
(7)
Since the aim of replacing the system of multilateral extradition built upon the European Convention on Extradition of 13 December 1957 cannot be sufficiently achieved by the Member States acting unilaterally and can therefore, by reason of its scale and effects, be better achieved at Union level, the Council may adopt measures in accordance with the principle of subsidiarity as referred to in Article 2 [EU] and Article 5 [EC]. In accordance with the principle of proportionality, as set out in the latter Article, this Framework Decision does not go beyond what is necessary in order to achieve that objective.
(8)
Decisions on the execution of the European arrest warrant must be subject to sufficient controls, which means that a judicial authority of the Member State where the requested person has been arrested will have to take the decision on his or her surrender.
(9)
The role of central authorities in the execution of a European arrest warrant must be limited to practical and administrative assistance.’
Article 1 of the Framework Decision, entitled ‘Definition of the European arrest warrant and obligation to execute it’, provides:
‘1.   The European arrest warrant is a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order.
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.
…’
Articles 3, 4 and 4a of the Framework Decision list the grounds for mandatory and optional non-execution of the European arrest warrant. Article 5 of the Framework Decision sets out the guarantees to be given by the issuing Member State in particular cases.
Article 6 of the Framework Decision, entitled ‘Determination of the competent judicial authorities’, provides:
‘1.   The issuing judicial authority shall be the judicial authority of the issuing Member State which is competent to issue a European arrest warrant by virtue of the law of that State.
2.   The executing judicial authority shall be the judicial authority of the executing Member State which is competent to execute the European arrest warrant by virtue of the law of that State.
3.   Each Member State shall inform the General Secretariat of the Council of the competent judicial authority under its law.’
Article 7 of the Framework Decision, entitled ‘Recourse to the central authority’, provides:
‘1.   Each Member State may designate a central authority or, when its legal system so provides, more than one central authority to assist the competent authorities.
2.   A Member State may, if it is necessary as a result of the organisation of its internal judicial system, make its central authority(ies) responsible for the administrative transmission and reception of European arrest warrants as well as for all other official correspondence relating thereto.
Member State[s] wishing to make use of the possibilities referred to in this Article shall communicate to the General Secretariat of the Council information relating to the designated central authority or central authorities. These indications shall be binding upon all the authorities of the issuing Member State.’
Netherlands law
The Overleveringswet (Law on surrender) transposes the Framework Decision into Netherlands law. Article 1 of that law is worded as follows:
‘For the purposes of the present law:
…
(b)
“European arrest warrant” means the written decision of a judicial authority of a Member State of the European Union with a view to the arrest or surrender of a person by the judicial authority of another Member State;
…
(i)
“issuing judicial authority” means the judicial authority of a Member State of the European Union, competent under domestic law to issue a European arrest warrant;
…’
Article 5 of the Law on surrender states:
‘Surrender shall be effected exclusively to the issuing judicial authorities of other Member States of the European Union in accordance with the provisions of the present law or those adopted pursuant to it.’
The dispute in the main proceedings and the questions referred for a preliminary ruling
On 21 December 2012 the Göteborgs Tingsrätt (District Court, Gothenburg, Sweden) imposed on Mr Poltorak, a Polish national, a custodial sentence of one year and three months, for acts involving infliction of grievous bodily injury. On 30 June 2014 the Swedish police board issued a European arrest warrant against Mr Poltorak, with a view to executing that sentence in Sweden.
The matter came before the rechtbank Amsterdam (District Court, Amsterdam, Netherlands), as the executing judicial authority of that European arrest warrant, with a view to arresting and surrendering Mr Poltorak to the Swedish authorities.
Following a request for information addressed to the Swedish authorities concerning the issuing authority of the same European arrest warrant, the rechtbank Amsterdam (District Court, Amsterdam) received information, inter alia, on the structure, independence, functioning and powers of that authority, as well as on the procedure and criteria on the basis of which that authority decided to issue European arrest warrants for the execution of a custodial sentence or detention order.
In the light of that information, as well as the information in the evaluation report of the Council of 21 October 2008 concerning national practices relating to the European arrest warrant [Evaluation report on the fourth round of mutual evaluations — ‘the practical application of the European arrest warrant and corresponding surrender procedures between Member States’: Report on Sweden (9927/1/08 REV 2)], the referring court harbours doubts as to whether the European arrest warrant issued by a police service, such as the Swedish police board, is to be regarded as having been issued by a ‘judicial authority’, within the meaning of Article 6(1) of the Framework Decision, and whether, consequently, that European arrest warrant constitutes a ‘judicial decision’, within the meaning of Article 1(1) of the Framework Decision.
In that regard, that court questions whether the terms ‘judicial decision’ and ‘judicial authority’, within the meaning of the Framework Decision, are to be interpreted as autonomous concepts of EU law or whether Member States are free to define their meaning and scope.
If those terms are to be regarded as autonomous concepts of EU law, the referring court considers that they would imply that the European arrest warrant is issued by an authority with a status and powers enabling it to offer sufficient judicial protection at the stage of the issue of the European arrest warrant. In the light of the principle of mutual recognition on which the Framework Decision is based, it takes the view that such an authority must be a judge or prosecutor, thereby ruling out the possibility that the European arrest warrant can be issued by a police service.
If those terms fall within the scope of the national law of the Member States, the referring court takes the view that they would still be required to observe EU law in exercising their discretion. It thereby refers to the principles set forth by the Court of Justice, regarding the right to an effective remedy in the context of the surrender procedure, in paragraphs 46 and 47 of the judgment of 20 May 2013, F. (
C‑168/13 PPU
,
EU:C:2013:358
), and, regarding the judicial protection that must be guaranteed at the stage of the issue of the European arrest warrant, in paragraph 56 of the judgment of 1 June 2016, Bob-Dogi (
C‑241/15
,
EU:C:2016:385
).
In those circumstances, the rechtbank Amsterdam (District Court, Amsterdam) decided to stay proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1)
Are the expressions “judicial authority”, within the meaning of Article 6(1) of [the] Framework Decision …, and “judicial decision”, within the meaning of Article 1(1) of [the] Framework Decision …, autonomous terms of EU law?
(2)
If the answer to Question 1 is in the affirmative: what are the criteria for determining whether an authority of the issuing Member State is such a “judicial authority” and whether the [European arrest warrant] issued by it is consequently such a “judicial decision”?
(3)
If the answer to Question 1 is in the affirmative: is the Swedish [police board] covered by the term “judicial authority”, within the meaning of Article 6(1) of [the] Framework Decision …, and is the European arrest warrant issued by that authority consequently a “judicial decision” within the meaning of Article 1(1) of [the] Framework Decision …?
(4)
If the answer to Question 1 is in the negative: is the designation of a national police authority, such as the Swedish [police board], as the issuing judicial authority in conformity with EU law?’
The urgent procedure
The referring court has requested that the present reference for a preliminary ruling be dealt with under the urgent preliminary ruling procedure provided for in Article 107 of the Rules of Procedure of the Court of Justice.
In support of that request, it cites inter alia the fact that Mr Poltorak is currently deprived of his liberty, pending his actual surrender to the Swedish authorities.
It should be observed, in the first place, that the present reference for a preliminary ruling concerns the interpretation of the Framework Decision, which comes within the sectors covered by Title V of Part Three of the FEU Treaty on the area of freedom, security and justice. It may therefore be dealt with under the urgent preliminary ruling procedure.
In the second place, according to the case-law of the Court, it is appropriate to take into account the fact that the person concerned in the main proceedings is currently deprived of his liberty and that the question as to whether he may continue to be held in custody depends on the outcome of the dispute in the main proceedings (judgment of 16 July 2015, Lanigan,
C‑237/15 PPU
,
EU:C:2015:474
, paragraph
). According to the explanations provided by the referring court, the detention measure against Mr Poltorak was ordered in the context of the execution of the European arrest warrant issued against him.
In those circumstances, on 31 August 2016, the Fourth Chamber of the Court of Justice, acting on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decided to accede to the referring court’s request that the present reference for a preliminary ruling be dealt with under the urgent preliminary ruling procedure.
Consideration of the questions referred
Questions 1 to 3
By its first three questions, which it is appropriate to examine jointly, the referring court asks, in essence, whether the term ‘judicial authority’, referred to in Article 6(1) of the Framework Decision, is an autonomous concept of EU law and whether that provision must be interpreted as meaning that a police service, such as that at issue in the main proceedings, is covered by the term ‘issuing judicial authority’, within the meaning of the same Article 6(1), meaning that the European arrest warrant issued by that police service with a view to executing a judgment imposing a custodial sentence can be regarded as a ‘judicial decision’, within the meaning of Article 1(1) of the Framework Decision.
As a preliminary point, it should be noted that, as is apparent from Article 1(1) and (2) and recitals 5 and 7 thereof in particular, the purpose of the Framework Decision is to replace the multilateral system of extradition based on the European Convention on Extradition of 13 December 1957 with a system of surrender between judicial authorities of convicted or suspected persons for the purpose of enforcing judgments or of conducting prosecutions, the system of surrender being based on the principle of mutual recognition (judgment of 5 April 2016, Aranyosi and Căldăraru,
C‑404/15 and C‑659/15 PPU
,
EU:C:2016:198
, paragraph
and the case-law cited).
The Framework Decision thus seeks, by the establishment of a new simplified and more 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 to become an area of freedom, security and justice, founded on the high level of confidence which should exist between the Member States (judgment of 5 April 2016, Aranyosi and Căldăraru,
C‑404/15 and C‑659/15 PPU
,
EU:C:2016:198
, paragraph
and the case-law cited).
Both the principle of mutual trust between the Member States and the principle of mutual recognition 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 with regard to 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 5 April 2016, Aranyosi and Căldăraru,
C‑404/15 and C‑659/15 PPU
,
EU:C:2016:198
, paragraph
and the case-law cited).
The principle of mutual recognition, which is the ‘cornerstone’ of judicial cooperation, means that, pursuant to Article 1(2) of the Framework Decision, Member States are in principle obliged to give effect to a European arrest warrant. The executing judicial authority may refuse to execute such a warrant only in the cases, exhaustively listed, of obligatory non-execution, laid down in Article 3 of the Framework Decision, or of optional non-execution, laid down in Articles 4 and 4a of the Framework Decision. Moreover, the execution of the European arrest warrant may be made subject only to one of the conditions exhaustively laid down in Article 5 of the Framework Decision (judgment of 5 April 2016, Aranyosi and Căldăraru,
C‑404/15 and C‑659/15 PPU
,
EU:C:2016:198
, paragraphs
and
and the case-law cited).
However, only European arrest warrants, within the meaning of Article 1(1) of the Framework Decision, must be executed in accordance with the provisions of that decision. It follows from Article 1(1) of the Framework Decision that the European arrest warrant constitutes a ‘judicial decision’, which requires that it be issued by a ‘judicial authority’, within the meaning of Article 6(1) thereof.
According to that provision, the issuing judicial authority is to be the judicial authority of the issuing Member State which is competent to issue a European arrest warrant by virtue of the law of that State.
Although Article 6(1) of the Framework Decision does refer, in accordance with the principle of the procedural autonomy of the Member States, to the law of those States, it must be held that that reference is limited to designating the judicial authority with the competence to issue the European arrest warrant. Accordingly, that reference does not concern the definition of the term ‘judicial authority’ in itself.
In those circumstances, the meaning and scope of the term ‘judicial authority’, within the meaning of Article 6(1) of the Framework Decision, cannot be left to the assessment of each Member State (see, by analogy, judgments of 17 July 2008, Kozłowski,
C‑66/08
,
EU:C:2008:437
, paragraph
, and of 16 November 2010, Mantello,
C‑261/09
,
EU:C:2010:683
, paragraph
).
It follows that the term ‘judicial authority’, contained in Article 6(1) of the Framework Decision, requires, throughout the Union, an autonomous and uniform interpretation, which, in accordance with the settled case-law of the Court, must take into account the terms of that provision, its context and the objective of the Framework Decision (see, by analogy, judgment of 28 July 2016, JZ,
C‑294/16 PPU
,
EU:C:2016:610
, paragraph
and the case-law cited).
Thus, as regards the wording of Article 6(1) of the Framework Decision, it should be noted that the words ‘judicial authority’, contained in that provision, are not limited to designating only the judges or courts of a Member State, but may extend, more broadly, to the authorities required to participate in administering justice in the legal system concerned.
It must, however, be held that the term ‘judicial authority’, referred to in that provision, cannot be interpreted as also covering the police services of a Member State.
In the first place, it is generally accepted that the term ‘judiciary’ does not cover police services. That term refers to the judiciary, which must, as the Advocate General observed in point 39 of his Opinion, be distinguished, in accordance with the principle of the separation of powers which characterises the operation of the rule of law, from the executive. Thus, judicial authorities are traditionally construed as the authorities that administer justice, unlike, inter alia, administrative authorities or police authorities, which are within the province of the executive.
In the second place, that interpretation of the terms of Article 6(1) of the Framework Decision is supported by the background to that provision.
On the one hand, judicial cooperation in criminal matters, as laid down in Article 31 EU, must be distinguished from police cooperation, as laid down in Article 30 EU.
On the other hand, it is necessary to interpret the term ‘judicial authority’, in the context of the Framework Decision, as covering the Member State authorities that administer criminal justice, but not police services.
In that regard, the Court has held that the entire surrender procedure between Member States provided for by the Framework Decision is, in accordance with that decision, carried out under judicial supervision, ensuring that decisions relating to European arrest warrants are attended by all the guarantees appropriate for decisions of such a kind (see, to that effect, judgment of 30 May 2013, F.,
C‑168/13 PPU
,
EU:C:2013:358
, paragraphs
and
).
In particular, it is stated in recital 8 of the Framework Decision that decisions on the execution of the European arrest warrant must be subject to sufficient controls, which means that a judicial authority of the Member State where the requested person has been arrested has to take a decision on his surrender. Moreover, Article 6 of the Framework Decision provides that not only that decision but also the decision on issuing the warrant must be taken by a judicial authority. Action by a judicial authority is likewise required at other stages of the surrender procedure, such as hearing the requested person, deciding to keep him in detention, or deciding on his temporary transfer (see, to that effect, judgment of 30 May 2013, F.,
C‑168/13 PPU
,
EU:C:2013:358
, paragraph
).
In that context, Article 7 of the Framework Decision authorises Member States, subject to the conditions set out in that provision and if necessary as a result of the organisation of their internal judicial systems, to have recourse to a non-judicial authority, namely a central authority, as regards the transmission and reception of European arrest warrants.
However, while the central police services of a Member State may be covered by the term ‘central authority’, within the meaning of that article, it is nevertheless apparent from that same article, read in the light of recital 9 of the Framework Decision, that action by such an authority is limited to practical and administrative assistance for the competent judicial authorities. Thus, the possibility offered in Article 7 of the Framework Decision cannot extend to permitting Member States to substitute that central authority for the competent judicial authorities in relation to the decision to issue the European arrest warrant.
In the third place, it is appropriate to hold that interpreting Article 6(1) of the Framework Decision as meaning that it also covers police services would run counter to the objectives pursued by it, recalled in paragraphs 24 to 27 of the present judgment.
Therefore, the principle of mutual recognition, enshrined in Article 1(2) of the Framework Decision, pursuant to which the executing judicial authority is required to execute the arrest warrant issued by the issuing judicial authority, is founded on the premiss that a judicial authority has intervened prior to the execution of the European arrest warrant, for the purposes of exercising its review.
However, the issue of an arrest warrant by a non-judicial authority, such as a police service, does not provide the executing judicial authority with an assurance that the issue of that European arrest warrant has undergone such judicial approval and cannot, therefore, suffice to justify the high level of confidence between the Member States, mentioned in paragraph 25 of the present judgment, which forms the very basis of the Framework Decision. In that regard, the specific organisation of police services within the executive and the degree of autonomy they might have is irrelevant.
It follows that the term ‘judicial authority’, within the meaning of Article 6(1) of the Framework Decision, must be interpreted as meaning that police services are not covered by that term, meaning that the European arrest warrant issued by such services cannot be regarded as a ‘judicial decision’, within the meaning of Article 1(1) of the Framework Decision.
That interpretation is not called into question by the fact that, as the Swedish Government mentioned in its observations submitted to the Court, the police service at issue in the main proceedings is competent only in the strict context of executing a judgment handed down, following court proceedings, by a court and which has become legally binding.
It is apparent from the material provided to this Court by the Swedish Government that the decision on the issue of a European arrest warrant is ultimately a matter for the police service at issue in the main proceedings and not a judicial authority.
First, that police service issues the European arrest warrant not at the request of the judge that adopted the judgment imposing the custodial sentence, but at the request of the prison services.
Second, the police service at issue in the main proceedings has a discretion over the issue of the European arrest warrant, given that it is the only service with the competence to ensure that the conditions of that issue, as set out by the Framework Decision, are fulfilled, and to decide, following an assessment of the various interests at issue, including those of the person concerned, that such issue is proportionate.
However, in the light of the information provided to the Court by the Swedish Government, that discretion is not subject to judicial approval
ex officio
.
In view of all the foregoing considerations, the answer to the first three questions is that the term ‘judicial authority’, referred to in Article 6(1) of the Framework Decision, is an autonomous concept of EU law and that that provision must be interpreted as meaning that a police service, such as the Swedish police board, is not covered by the term ‘issuing judicial authority’, within the meaning of the same Article 6(1), meaning that the European arrest warrant issued by that police service with a view to executing a judgment imposing a custodial sentence cannot be regarded as a ‘judicial decision’, within the meaning of Article 1(1) of the Framework Decision.
Question 4
In view of the answer given to Questions 1 to 3, there is no need to answer Question 4.
The limitation of the temporal effects of the present judgment
During the hearing, the Netherlands Government and the European Commission requested the Court to limit the temporal effects of the present judgment, should the Court find that a police service, such as the Swedish police board, is not covered by the term ‘judicial authority’, within the meaning of Article 6(1) of the Framework Decision. They raised, in essence, potential consequences of the present judgment for cases in which a European arrest warrant has been issued by an authority which is not a ‘judicial authority’, within the meaning of that provision.
It should be recalled in this connection that, according to settled case-law, the interpretation which, in the exercise of the jurisdiction conferred upon it by Article 267 TFEU, the Court gives to a rule of EU law clarifies and defines the meaning and scope of that rule as it must be, or ought to have been, understood and applied from the time of its coming into force. It follows that the rule as thus interpreted may and must be applied by the courts to legal relationships arising and established before the judgment ruling on the request for interpretation, provided that in other respects the conditions for bringing before the courts having jurisdiction an action relating to the application of that rule are satisfied (judgment of 17 September 2014, Liivimaa Lihaveis,
C‑562/12
,
EU:C:2014:2229
, paragraph
and the case-law cited).
It is only quite exceptionally that the Court may, in application of the general principle of legal certainty inherent in the EU legal order, be moved to restrict for any person concerned the opportunity of relying on a provision which it has interpreted with a view to calling into question legal relationships established in good faith. Two essential criteria must be fulfilled before such a limitation can be imposed: those concerned must have acted in good faith and there must be a risk of serious difficulties (judgments of 27 February 2014, Transportes Jordi Besora,
C‑82/12
,
EU:C:2014:108
, paragraph
, and of 22 September 2016, Microsoft Mobile Sales International and Others,
C‑110/15
,
EU:C:2016:717
, paragraph
).
In the present case, it is apparent inter alia from the evaluation report of the Council of 21 October 2008, mentioned in paragraph 13 of this judgment, that the Council has, in the past, criticised the issue of arrest warrants by the police service at issue in the main proceedings as incompatible with the requirement of designating a ‘judicial authority’. In such circumstances, it cannot be held that the Kingdom of Sweden was prompted to adopt behaviour not in conformity with EU law on account of objective and significant uncertainty as regards the scope of the provisions of EU law.
Accordingly, there is no need to limit the temporal effects of the present judgment.
Costs
Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national 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 (Fourth Chamber) hereby rules:

The term ‘judicial authority’, within the meaning of Article 6(1) 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, is an autonomous concept of EU law and that provision must be interpreted as meaning that a police service, such as the Rikspolisstyrelsen (National Police Board, Sweden), is not covered by the term ‘issuing judicial authority’, within the meaning of the same Article 6(1), meaning that the European arrest warrant issued by that police service with a view to executing a judgment imposing a custodial sentence cannot be regarded as a ‘judicial decision’, within the meaning of Article 1(1) of Framework Decision 2002/584, as amended by Framework Decision 2009/299.

[Signatures]
(
*1
)	Language of the case: Dutch.