Opinion of the Advocate General — ECLI:EU:C:2018:875
Date: 2018-11-06
Language of the case: Dutch
Subject matter: Judicial cooperation in criminal matters;Police cooperation;Area of freedom, security and justice
Procedure: Preliminary reference - urgent procedure
Origin: Netherlands

Translation C-492/18 PPU — 1 
Case C-492/18 PPU 
Request for a preliminary ruling: 
Date lodged:  
27 July 2018 
Referring court:  
Rechtbank Amsterdam (Netherlands) 
Date of the decision to refer:  
27 July 2018 
Applicant:  
Openbaar Ministerie 
Defendant:  
TC 
  
RECHTBANK AMSTERDAM (DISTRICT COURT, AMSTERDAM)  
INTERNATIONALE RECHTSHULPKAMER (CHAMBER FOR 
INTERNATIONAL COOPERATION IN LEGAL MATTERS) 
[...] 
INTERLOCUTORY ORDER 
on the application, received on 27 June 2018, for suspension of the detention 
pending surrender of: 
TC 
born in [birthplace] (United Kingdom) on [date of birth], 1985, without any 
fixed place of residence or stay in the Netherlands, detained in [address of 
the place of detention]. 
1. Procedure 
1.1 The Rechtbank dealt with the application on 6 July 2018 [...] 
EN 
REQUEST FOR A PRELIMINARY RULING OF 27. 7. 2018 — CASE C-492/18 PPU 
 
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2. Question referred for a preliminary ruling 
EU legislation 
2.1 Articles 12 and 17 of 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), in so far as is relevant, read as follows: 
Article 12 
Keeping the person in detention 
When a person is arrested on the basis of a European arrest warrant, the 
executing judicial authority shall take a decision on whether the requested 
person should remain in detention, in accordance with the law of the 
executing Member State. The person may be released provisionally at any 
time [Or. 2] in conformity with the domestic law of the executing Member 
State, provided that the competent authority of the said Member State takes 
all the measures it deems necessary to prevent the person absconding. 
Article 17 
Time limits and procedures for the decision to execute the European 
arrest warrant 
1. A European arrest warrant shall be dealt with and executed as a matter 
of urgency. 
... 
3. In other cases, the final decision on the execution of the European 
arrest warrant should be taken within a period of 60 days after the arrest of 
the requested person. 
4. Where in specific cases the European arrest warrant cannot be 
executed within the time limits laid down in paragraphs 2 or 3, the executing 
judicial authority shall immediately inform the issuing judicial authority 
thereof, giving the reasons for the delay. In such case, the time limits may be 
extended by a further 30 days. 
5. As long as the executing judicial authority has not taken a final 
decision on the execution of the European arrest warrant, it shall ensure that 
the material conditions necessary for effective surrender of the person 
remain fulfilled.  
... 
TC 
 
3 
7. Where in exceptional circumstances a Member State cannot observe 
the time limits provided for in this Article, it shall inform Eurojust, giving 
the reasons for the delay. In addition, a Member State which has experienced 
repeated delays on the part of another Member State in the execution of 
European arrest warrants shall inform the Council with a view to evaluating 
the implementation of this Framework Decision at Member State level. 
National legislation 
2.2 The Overleveringswet (Staatsblad (Netherlands Official Journal), 2004, 
195) (Law on the Surrender of Sentenced Persons; ‘the OLW’) transposes 
Framework Decision 2002/584/JHA. Articles 22 and 64 of the OLW, in so far as 
is relevant, read as follows: 
Article 22 [Or. 3] 
1. The judgment concerning the decision on the surrender must be 
delivered by the Rechtbank no later than sixty days following the arrest of 
the requested person, within the meaning of Article 21. 
... 
3. In exceptional cases, and subject to the obligation to give reasons to 
the issuing judicial authority, the Rechtbank may extend the 60-day period 
by a maximum of 30 days. 
4. If the Rechtbank has not yet delivered its judgment within the period 
referred to in paragraph 3, it can once again extend the period, indefinitely 
and subject to simultaneous suspension, subject to conditions being set, of 
the deprivation of liberty of the requested person and notification of the 
issuing judicial authority. 
Article 64 
1. In cases in which, pursuant to this Law, a decision relating to the 
deprivation of liberty can or must be taken, it can be ordered that that 
deprivation of liberty be conditionally stayed or suspended until the time of 
the Rechtbank’s judgment authorising surrender. The conditions to be set 
may be aimed solely at preventing absconding. 
2. Article 80, with the exception of paragraph 2, and Articles 81 to 88 of 
the Wetboek van Strafvordering (Code of Criminal Procedure) shall apply 
mutatis mutandis to orders made pursuant to the first paragraph by the 
Rechtbank or by the rechter-commissaris (investigating judge). ... 
2.3 Article 87 of the Wetboek van Strafvordering, in so far as is relevant, reads 
as follows: 
REQUEST FOR A PRELIMINARY RULING OF 27. 7. 2018 — CASE C-492/18 PPU 
 
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Article 87 
... 
2. An accused person who has applied to the Rechtbank for suspension of 
detention on remand pending trial may, on one single occasion, bring an 
appeal before the Gerechtshof (Court of Appeal) against a negative decision 
on that application, no later than three days after service of that decision. 
Relevant facts and circumstances [Or. 4] 
2.4 On 12 June 2017, a judicial authority of the United Kingdom issued a 
European arrest warrant (EAW) against TC, a British national living in Spain. 
2.5 The EAW seeks surrender for the purposes of criminal prosecution. TC is 
suspected of being involved as a senior member of an organised crime group in 
the importation, supply and sale of hard drugs (inter alia 300 kilogrammes of 
cocaine). Under United Kingdom law, that offence carries a maximum sentence of 
life imprisonment. 
2.6 On 4 April 2018, TC was arrested in the Netherlands. On that day, the 60-
day decision period within the meaning of Article 22(1) of the OLW and 
Article 17(3) of Framework Decision 2002/584/JHA started to run. 
2.7 The Rechtbank dealt with the EAW during the hearing of 31 May 2018. At 
that hearing, it ordered that TC be detained in custody and it extended the 60-day 
decision period by 30 days. By interim decision of 14 June 2018, it reopened the 
investigation and stayed proceedings pending the reply by the Court of Justice of 
the European Union to the questions referred for a preliminary ruling by the Irish 
High Court in Case C-327/18 PPU (RO) and ruled that the decision period which 
had commenced on that date was to be suspended. 
2.8  TC’s legal adviser requested that his detention be suspended as from 4 July 
2018, 90 days after the day of his arrest. 
2.9 It follows from the case-law of the Court of Justice on Article 17 of 
Framework Decision 2002/584/JHA that: 
- Article 17 of Framework Decision 2002/584/JHA contains no general 
and unconditional obligation to release the requested person 
(provisionally) after expiry of the 90-day period (judgment of 16 July 
2015, Francis Lanigan, C-237/15 PPU, EU:C:2015:474, paragraph 50) 
and 
- the expiry of that period does not, in principle, preclude the 
maintenance of [Or. 5] detention pending surrender ‘in accordance 
with the law of the executing Member State’ (Francis Lanigan, 
TC 
 
5 
paragraph 52), provided that the surrender procedure has been carried 
out in a sufficiently diligent manner and the duration of the detention is 
thus not excessive (Francis Lanigan, paragraph 58). 
2.10 The Netherlands legislature transposed Article 17 of Framework Decision 
2002/584/JHA in Article 22 of the OLW. According to Article 22(4) of the OLW, 
the Rechtbank must always suspend the detention pending surrender of the 
requested person once the 90-day period for taking a final decision on the 
execution of the EAW has expired. That provision is based on the legislature’s 
assumption that, in such a situation, Framework Decision 2002/584/JHA 
presupposes that the requested person is no longer in detention pending surrender 
[...]. 
2.11 Article 22(4) of the OLW is a rule which is not required by Framework 
Decision 2002/584/JHA (see point 2.9 above) and which is therefore based on an 
incorrect assumption as to the interpretation of that framework decision (see 
point 2.10). In addition, that rule does not sufficiently take into account 
obligations on the Rechtbank under primary and directly effective EU law: 
- (a) as the highest judicial body in EAW cases, the Rechtbank is — in 
principle — required to refer questions on the interpretation of EU law 
for a preliminary ruling if the answer to those questions is necessary 
for its decision on the execution of the EAW (third paragraph of 
Article 267 of the Treaty on the Functioning of the European Union 
(TFEU)). Moreover, it considers itself obliged to await the reply to 
questions referred for a preliminary ruling by the judicial authorities of 
other Member States, if it considers the reply to those questions 
necessary for its decision; 
- (b) under Article 4 of the Charter of Fundamental Rights of the 
European Union (‘the Charter’), too, the Rechtbank is obliged to 
suspend the decision on surrender if there is a real danger that the 
requested person will be subjected to inhuman or degrading detention 
conditions in the issuing Member State (judgment of 5 April 2016, 
Aranyosi and Căldăraru, C-404/15 and C-659/15 PPU, 
EU:C:2016:198, paragraph 98). [Or. 6] 
2.12 Compliance with the obligation referred to in point 2.11(a) or (b) above 
results in an ‘exceptional circumstance’ within the meaning of Article 17(7) 
Framework Decision 2002/584/JHA, where the executing Member State cannot 
comply with the 90-day decision period (see judgment of 30 May 2013, 
Jeremy F., C-168/13 PPU, EU:C:2013:358, paragraphs 64 and 65; Aranyosi and 
Căldăraru, paragraph 99). Under Article 22(4) of the OLW, detention pending 
surrender would, in such cases, always have to be suspended, even before the 
Rechtbank has been able to take a decision on the execution of the EAW and 
irrespective of whether the requested person is a flight risk. This creates a real risk 
of the requested person escaping the execution of a potential decision to surrender 
REQUEST FOR A PRELIMINARY RULING OF 27. 7. 2018 — CASE C-492/18 PPU 
 
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and therefore — in contravention of Article 17(5) of Framework Decision 
2002/584/JHA — of ‘the material conditions necessary for effective surrender’ 
not ‘remain[ing] fulfilled’. 
2.13 That risk indubitably obtains in the present case. To wit, TC is a flight risk: 
- he has no demonstrable link with the Netherlands; 
- he was staying in a hotel at the time of his arrest in the Netherlands, 
and was not registered under his own name in the hotel register; 
- the acts of which he is accused, as described in the EAW, include 
strong indications as to the existence of an international network that 
can facilitate possible absconding and to the availability of financial 
means that may be used for that purpose. 
That flight risk cannot be reduced to acceptable levels through the setting of 
conditions. While it has been argued that the requested person could, after a 
possible suspension of the detention pending surrender, reside at a fixed address 
and work as a conveyor in national transport, it is not sufficiently substantiated to 
support the conclusion that suspending the detention pending surrender is 
justified. 
2.14 TC has now spent 114 days in detention pending surrender. In view of, inter 
alia, the flight risk and the punishment in the United Kingdom for the offence of 
which he is accused — a maximum life prison sentence — the Rechtbank is of the 
view that the duration [Or. 7] of the detention pending surrender is not ‘excessive’ 
at this stage (see Francis Lanigan, paragraphs 59 and 60). 
2.15 Application of Article 22(4) of the OLW in a case such as the present one, 
therefore, does indeed carry the risk referred to in point 2.12 — and a significant 
one at that — that the ‘material conditions necessary for effective surrender’ will 
not ‘remain fulfilled’ and that it may be impossible to take a decision to surrender. 
2.16 In earlier decisions, the Rechtbank has held that it can interpret Article 22(4) 
of the OLW in conformity with the framework decision in a manner that is not 
contra legem, in the sense that the decision period is suspended in situations such 
as those referred to in point 2.11 (a) and (b). That interpretation does not prevail 
over Article 22(4) of the OLW. After all, the decision period does not run if that 
period is suspended. As long as the period is suspended, it cannot exceed the 90-
day limit, with the result that no obligation for the suspension of the detention 
pending surrender arises. That interpretation is naturally without prejudice to the 
fact that the detention pending surrender can be suspended. The Rechtbank 
commits to doing that if the flight risk can indeed be brought within acceptable 
levels through the setting of conditions and if the surrender procedure is carried 
out in an insufficiently diligent manner and the duration of the detention pending 
surrender is consequently excessive (Rechtbank Amsterdam, 5 April 2016, 
ECLI:NL:RBAMS:2016:1995; Rechtbank Amsterdam, 28 April 2016, 
TC 
 
7 
ECLI:NL:RBAMS:2016:2630; Rechtbank Amsterdam, 10 June 2016, 
ECLI:NL:RBAMS:2016:9382). 
2.17 On appeal, the Gerechtshof Amsterdam (Court of Appeal, Amsterdam) has 
held in a number of cases that such an interpretation that is compatible with the 
framework decision is impossible. The Gerechtshof, too, is of the view that the 
‘strict application’ of Article 22(4) of the OLW may ‘come into conflict with’ EU 
law. The Gerechtshof solves the matter — as the Rechtbank understands: in 
abstracto — by striking a balance between the interests of the European legal 
order and the interests of upholding the national legal order and ensuring legal 
certainty. According to the Gerechtshof, the interests of the European legal 
order — the obligation to refer questions for a preliminary ruling (which is to be 
equated with the obligation to await the reply to questions referred for a 
preliminary ruling by other courts) and the obligation to postpone the decision on 
surrender if there is a real danger of inhuman or degrading detention conditions — 
must prevail over the interest of upholding the national legal order and the legal 
certainty the latter represents for the requested persons. The outcome of that 
abstract balancing of interests entails [Or. 8] that, in such cases, the decision 
period must be deemed suspended from the point at which the Rechtbank has 
decided to refer questions to the Court of Justice for a preliminary ruling or from 
the point at which the Rechtbank has postponed the decision on surrender, unless 
the continuation of the detention pending surrender contravenes Article 6 of the 
Charter (Gerechtshof Amsterdam, 3 May 2016, ECLI:NL:GHAMS:2016:1838; 
Gerechtshof Amsterdam, 4 July 2016, ECLI:NL:GHAMS:2016:4900; 
Gerechtshof Amsterdam, 30 January 2017, ECLI:NL:GHAMS:2017:220). 
2.18 The Rechtbank has — in spite of that — held onto its framework decision-
compatible interpretation of Article 22(4) of the OLW which, as has been stated, 
does not lead — or, at least, has not led — to an outcome other than the abstract 
balancing of interests by the Gerechtshof Amsterdam (see, for example, 
Rechtbank Amsterdam, 23 December 2016, ECLI:NL:RBAMS:2016:9691; 
Rechtbank Amsterdam, 31 October 2017, ECLI:NL:RBAMS:2017:8813). 
2.19 TC’s legal adviser has, inter alia, argued that the framework decision-
compatible interpretation previously given by the Rechtbank to Article 22(4) of 
the OLW infringes, inter alia, the principle of legal certainty, and that continuation 
of the detention pending surrender consequently infringes Article 5 of the ECHR 
and Article 6 of the Charter. She has pointed out that the person concerned in the 
decisions in ECLI:NL:RBAMS:2016:1995 and ECLI:NL:GHAMS:2016:1838 
lodged an application with the European Court of Human Rights (ECtHR) against 
the Netherlands for infringement of Article 5 of the ECHR (Cernea v. the 
Netherlands, no 62318/16). In that case, the Netherlands has issued a unilateral 
declaration stating that Article 5 of the ECHR has been infringed. The ECtHR has 
not yet given its ruling. 
2.20 One of the limits to the obligation of interpretation in conformity with a 
framework decision is contained in the principle of legal certainty (see, for 
REQUEST FOR A PRELIMINARY RULING OF 27. 7. 2018 — CASE C-492/18 PPU 
 
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example, judgment of 29 June 2017, Popławski, C-579/15, EU:C:2017:503, 
paragraph 32). 
2.21 Independently of the obligation of interpretation in conformity with the 
framework decision, detention pending surrender must be in line with Article 6 of 
the Charter. On the basis of that provision, which corresponds to Article 5 of the 
ECHR, deprivation of liberty must in any case be in accordance with the principle 
of legal certainty, which requires that the conditions for deprivation of liberty 
under domestic law be clearly set out and that the law itself be [Or. 9] foreseeable 
in its application (see, for example, judgment of the ECtHR of 24 July 2014 in 
Čalovskis v. Latvia, ECLI:CE:ECHR:2014:0724JUD002220513, paragraph 181). 
2.22 The question arises as to whether maintaining detention pending surrender in 
a situation such as that of TC contravenes Article 6 of the Charter, in particular the 
principle of legal certainty enshrined therein. 
2.23 The case-law of the Rechtbank on suspension of the decision period is 
limited to two delineated situations (see point 2.11), is clear and consistent and is 
in the public domain (see points 2.16 and 2.18). The same is true of the case-law 
of the Gerechtshof Amsterdam (see point 2.17). It is true that the Gerechtshof 
Amsterdam uses different reasoning; however, application of that reasoning does 
not lead in concreto — or, at least, has not led in concreto — to outcomes at 
variance with the application of the Rechtbank’s reasoning. TC was able, on the 
basis of Article 22(4) of the OLW together with the case-law of the Rechtbank 
and the Gerechtshof Amsterdam — if necessary, after consulting his legal 
adviser — to foresee that his detention pending surrender could continue beyond 
90 days from his arrest (save in the event of suspension of the detention pending 
surrender on a ground other than that of Article 22(4) of the OLW). 
2.24 An affirmative answer to the question in point 2.22 has the result that the 
Rechtbank, in situations in which the Rechtbank is complying with an obligation 
arising from EU law and in which it cannot, therefore, take a decision within 90 
days of the requested person’s arrest on the execution of the EAW, must suspend 
the detention pending surrender of the requested person, irrespective of his flight 
risk. 
2.25 If the Court of Justice answers the question in point 2.22 in the affirmative, 
the Rechtbank will then also be faced with the question of whether it must 
disapply Article 22(4) of the OLW, as the application of that provision leads to a 
result at variance with EU law and an interpretation of that provision in 
conformity with EU law is impossible (cf. the first question referred for a 
preliminary ruling in Case C-573/17, Popławski). Furthermore, the question then 
arises as to whether disapplying Article 22(4) of the OLW, for its part, 
contravenes the principle of legal certainty (cf. judgment of 5 December 2017, 
M.A.S. and M.B., C-42/17, EU:C:2017:936, paragraph 46). [Or. 10] 
TC 
 
9 
2.26 In the light of the foregoing, the Rechtbank is minded to refer the following 
question to the Court of Justice: 
In a case in which: 
- the executing Member State has transposed Article 17 of Framework 
Decision 2002/584/JHA in such a way that the detention pending 
surrender of the requested person must in all cases be suspended once 
the 90-day period for taking a final decision on the execution of the 
European arrest warrant has expired and 
- the courts of that Member State have interpreted domestic law as 
meaning that the decision period is suspended as soon as the executing 
judicial authority decides to refer a question to the Court of Justice for 
a preliminary ruling or to await the reply to a question referred for a 
preliminary ruling by another executing judicial authority or to 
postpone the decision on surrender owing to a real danger of inhuman 
or degrading detention conditions in the issuing Member State, 
does the maintenance of the detention pending surrender of a requested 
person who represents a flight risk once that detention has continued for 
more than 90 days after that person’s arrest contravene Article 6 of the 
Charter of Fundamental Rights of the European Union? 
2.27 The foregoing means that the Rechtbank cannot yet decide on the 
application for suspension of the detention pending surrender. 
3. Application of the urgent preliminary ruling procedure 
3.1 The Rechtbank requests the Court of Justice to deal with this request for a 
preliminary ruling pursuant to the urgent procedure within the meaning of the 
fourth paragraph of Article 267 TFEU and Article 107 of the Rules of Procedure. 
3.2 The question referred for a preliminary ruling relates to an area covered by 
Title V of Part Three of the TFEU, concerning the area of freedom, security and 
justice. [Or. 11] 
3.3 The requested person is in detention pending surrender, awaiting the 
decision of the Rechtbank on the application for suspension of that detention. The 
Rechtbank cannot take that decision until the Court of Justice has given a 
preliminary ruling on the question referred. A prompt reply from the Court of 
Justice to the question referred will therefore have a direct and decisive bearing on 
the duration of the requested person’s detention pending surrender. 
4. Decision 
The Rechtbank Amsterdam 
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REOPENS the investigation; 
REQUESTS the Court of Justice to reply to the question set out in point 2.26 
above.  
[...] [Or. 12] 
Decision made on 27 July 2018 by: 
[...]