Opinion of the Advocate General — ECLI:EU:C:2023:191
Date: 2023-03-09
Language of the case: German;English
Subject matter: Judicial cooperation in criminal matters;Police cooperation;Area of freedom, security and justice
Procedure: Reference for a preliminary ruling
Origin: Ireland

summary does not deal with the related concepts of collateral attack, abuse of process 
or the rule that parties must bring forward the whole of their case in the first 
proceedings, and may not hold back a ground in their favour for the purpose of raising 
it in fresh proceedings aimed at overturning a negative decision.
26. In principle, a matter can give rise to an issue estoppel where
(i) A judgment has been given by a court of competent jurisdiction;
(ii) The decision was a final decision on the merits;
(iii) The judgment determined a question which a party is attempting to raise in the 
subsequent proceedings; and
(iv) The parties were the same persons (or their privies) as the parties in the 
proceedings in which the estoppel point is argued.
27. The above criteria are derived from the decisions of the Supreme Court in Belton v. 
Carlow County Council [1997] 1 I.R. 172 and Sweeney v. Bus Atha Cliath [2004] 1 
I.R. 576, and were discussed recently in the judgment of McDonald J. in George v. 
AVA Trade (EU) Limited [2019] IEHC 187.
28. However, it is important to state that, leaving aside matters such as fraud (which 
clearly does not arise here), the role of issue estoppel is subject to a number of 
limitations. One such limitation is the potential effect of a judicial decision which sets 
a precedent in law. It will not permit a litigant whose case has been disposed of to 
reopen proceedings, but it can be relied upon in matters or cases not yet finally 
determined even if an earlier decision on Ihe point, in a separate case, went against the
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person concerned. Similarly, it is possible that a legislative change will preclude the 
raising of an estoppel.
29. In the public law context, estoppel cannot be relied upon where the issue is the correct 
interpretation of a statute or a provision of the Constitution. It would be contrary to 
public policy to allow such a matter to be determined by concessions or admissions by 
parties, or by an error of a judge. Thus, where the issue concerns the interpretation of 
a statute authorising the collection of a tax or other public charge on a recurring basis, 
the fact that a court has previously determined liability on the basis of a judge’s 
interpretation of the relevant provision may render the decision in which that 
interpretation was given res judicata so far as the claim made in those proceedings is 
concerned. However, it will not prevent a party from rearguing the question in the 
context of a subsequent claim (although, depending on the circumstances, the party 
may lose by virtue of the doctrine of precedent, because the point has already been 
decided by a court of higher or coordinate jurisdiction).
30. Issue estoppel has no role in criminal trials.
31. Extradition has traditionally been described as a unique area in Irish law. That was so 
before the introduction of the European arrest warrant system, and was generally 
attributed to the fact that the court dealing with extradition proceedings had a more 
inquisitorial role than in normal, adversarial proceedings. This feature has been seen 
as continuing in the EAW context, and is underlined by the right of the court to seek 
information from the requesting State if such is considered necessary. The decision of 
the court is therefore less dependent upon the evidence and arguments put forward by 
the parties than might otherwise be the case.
32. It has sometimes been said that the principles of res judicata have no role in 
extradition. However, on closer examination it is apparent that this is something of an 
oversimplification. A decision to order or to refuse surrender will become res judicata 
when it has the status of a final judgment. However, it is well established by 
numerous decisions that a decision to refuse surrender because of defects in the 
warrant grounding the request is no bar to consideration of a fresh warrant. There are 
dicta in some of the relevant judgments to suggest that it is however possible that an
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estoppel might arise in respect of a particular issue that was determined in the earlier 
proceedings. So, for example, where a refusal was based on a finding on a particular 
matter, and the subsequent warrant did not address that matter, the executing judicial 
authority might find that an estoppel arises (or that the second application for 
surrender is an abuse of process).
33. The Supreme Court is concerned that, if it were to decide that an estoppel arises in 
this case, that conclusion might limit the retrospective effect of judgments of the 
CJEU, permit the perpetuation of a legal error and lessen the effectiveness of the 
judicial protection in the EAW process to an impermissible extent. On the other hand, 
if it decides that no estoppel arises, the appellant will gain a windfall that he could not 
have obtained had he argued the point in the earlier litigation on the issue of 
surrender. That conclusion follows from the 1'act that such an argument would 
inevitably have had to succeed at that stage, even if a reference to the CJEU was 
necessary. However, there would then have been no bar under Irish law to 
consideration of a fresh warrant issued by a judge after the change in the relevant 
Dutch law. Given the sequence of events as they actually occurred, if the appellant 
succeeds now, the situation appears to be irremediable.
34. It is the view of the Supreme Court that the answer to the question whether the 
appellant should now be permitted to rely upon an argument about the status of the 
original warrants depends upon the correct legal characterisation of the relationship 
between the surrender process and the consent process. If they are properly to be seen 
as separate, “stand-alone” procedures, where any point of objection that was open to 
the person concerned in the surrender application may be open to new argument, or to 
further argument, in the consent application, then no estoppel can arise. If, on the 
other hand, they are seen as so closely linked that an issue that was necessarily 
determined in the surrender decision must be taken as having been determined for the 
purposes of the consent decision, the appellant will not be permitted to rely at this 
stage upon an argument about the status of the “issuing judicial authority”.
35. As the consent process is governed by legislation that implements Article 27 of the 
Framework Decision, the Court considers that this is a matter to be determined by EU 
law. The Court further considers that it is not acte clair. Having had regard to the
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judgments in CILFITC-283/81 EU:C: 1982:335 and Consorzio Italian Management 
and Catania Multiservizi C-561/19 EU:C:2021:779, and to its own obligations as a 
court against whose decisions there is no remedy under national law, the Court 
therefore considers it necessary to seek a ruling from the CJEU pursuant to Article 
267 of the Treaty on the Functioning of the European Union,
Request for expedited or urgent procedure
36. The appellant is in custody in the Netherlands, and the authorities of that State are 
naturally concerned to clarify his legal status there as a matter of urgency. In those 
circumstances the Supreme Court requests that the CJEU consider utilising either the 
expedited or urgent procedures provided for in its rules of procedure.
Questions referred
1. Should Article 27 of the Framework Decision be interpreted as meaning that 
a decision to surrender a person creates a legal relationship between him, the 
executing State and the requesting State such that any issue taken to have 
been finally determined in that decision must also be taken to have been 
determined for the purposes of the procedure for obtaining consent to 
further prosecution or punishment for other offences?
2. If the answer to Question 1 is that Article 27 does not require that 
interpretation, does a national procedural rule breach the principle of 
effectiveness if it operates so as to prevent the person concerned from relying, 
in the context of the consent application, upon a relevant judgment of the 
Court of Justice of the European Union delivered in the period of time after 
the order for surrender?
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