Opinion of the Advocate General — ECLI:EU:C:2022:182
Date: 2022-03-10
Language of the case: Finnish
Subject matter: Judicial cooperation in criminal matters;Police cooperation;Area of freedom, security and justice
Procedure: Preliminary reference - urgent procedure
Origin: Finland

Translation C-804/21 PPU – 1 
Case C-804/21 PPU 
Request for a preliminary ruling 
Date lodged: 
20 December 2021 
Referring court: 
Korkein oikeus (Supreme Court, Finland) 
Date of the decision to refer: 
20 December 2021 
Applicant: 
C 
CD 
Defendant:  
Syyttäjä (Public Prosecutor) 
  
ORDER OF THE KORKEIN OIKEUS (Supreme Court, Finland) 
[…]  
Made on 20 December 2021 
[…]  
APPLICANTS  C and CD 
DEFENDANT  Syyttäjä (Public Prosecutor) 
SUBJECT MATTER Continuation of detention 
Postponement of execution of a decision on surrender 
REQUEST FOR THE APPLICATION OF THE URGENT PRELIMINARY 
RULING PROCEDURE 
EN 
REQUEST FOR A PRELIMINARY RULING OF 20.12. 2021 – CASE C-804/21 PPU 
 
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The Korkein oikeus (Supreme Court, Finland) requests this reference for a 
preliminary ruling to be dealt with under the urgent preliminary ruling procedure 
pursuant to Article 107 of the Rules of Procedure of the Court of Justice. The 
present case raises questions of interpretation of Council Framework Decision 
2002/584/JHA on the European arrest warrant and the surrender procedures 
between Member States (‘the framework decision’), which falls within an area 
covered by Title V of Part Three of the TFEU. The applicants have been deprived 
of their liberty and whether they remain in detention depends on the outcome of 
the main proceedings. [Or. 2] 
ORDER OF THE KORKEIN OIKEUS 
1. Subject matter of the proceedings 
1 The present case concerns the final phase of a European arrest warrant procedure, 
in which it has not been possible to execute final decisions on surrender issued for 
the purpose of execution of a sentence in accordance with the usual rapid 
schedule. The surrender has been delayed partly for reasons relating to the covid-
19 pandemic, but mostly because of legal obstacles relating to actions and 
applications for asylum lodged by the individuals ordered to be surrendered. The 
question is whether such reasons can be regarded as constituting circumstances 
preventing surrender which are beyond the control of any of the Member States 
[referred to as ‘force majeure’ in the French version of the framework decision] 
within the meaning of Article 23(3) of that decision, so as to enable the time limit 
for surrender to be extended, which would mean that the individuals ordered to be 
surrendered were not required to be released pursuant to Article 23(5) of that 
decision. In addition, the question arises of the procedure to be followed in the 
context of an extension of the time limit for surrender of the individual, and of and 
the available remedies. 
Facts of the case 
2 The competent Romanian judicial authority issued a European arrest warrant on 
19 May 2015 in respect of C, and on 27 May 2015 in respect of CD, both C and 
CD being Romanian nationals, with a view to their surrender to Romania for the 
purpose of executing prison sentences of five years and additional sentences of 
three years. Those sentences were imposed for trafficking of dangerous and very 
dangerous narcotics and participation in a criminal organisation. 
3 Prior to the current proceedings, the Swedish Supreme Court, by a decision 
delivered on 8 April 2020 (NJA 2020 p. 430) ordered C to be surrendered to 
Romania. By a decision of 30 July 2020, the Svea Court of Appeal, Sweden, 
ordered the surrender of CD [Or. 3] to Romania. Nevertheless, both individuals 
left Sweden for Finland before those decisions on surrender were executed. 
SYYTTÄJÄ 
 
PROVISIONAL TEXT OF 11/01/2022 
4 On 15 December 2020, C and CD were arrested in Finland on the basis of the 
European arrest warrant and placed in detention. By decisions of 16 April 2021, 
the Korkein oikeus (KKO 2021:24 and No. 582) ordered the surrender of C and 
CD to Romania. At the request of the Romanian authorities, the Finnish 
keskusrikospoliisi (National Bureau of Investigation) initially set a surrender date 
of 7 May 2021, as no suitable flight was available before that date because of the 
covid-19 pandemic. 
5 On 3 May 2021, C and CD brought an appeal before the Korkein oikeus. The 
Korkein oikeus initially, on 4 May 2021, made a provisional order preventing 
execution of the decisions on surrender, and subsequently, on 31 May 2021, 
dismissed the appeals, which nullified the decision preventing execution. The 
second date agreed for the surrender, 11 June 2021, was also postponed, as there 
were no direct flights to Romania and it was not possible to arrange air transport 
via another Member State without departing from the agreed schedule. C and CD 
made several other applications for a stay of execution of the decisions on 
surrender before the käräjäoikeus (District Court) and the Korkein oikeus. All of 
those applications were dismissed or declared inadmissible. 
6 Arrangements were ultimately made for CD to be surrendered to Romania on 
17 June 2021, and C on 22 June 2021, but in each case the surrender was 
prevented by an application for asylum in Finland. The Maahanmuuttovirasto 
(National Immigration Office) rejected the applications for asylum on 
12 November 2021, but C and CD brought an action against those decisions 
before the Hallinto-oikeus (Administrative Court). 
The decisions of the Helsingin käräjäoikeusdes of 8 and 29 October 2021 
7 C and CD ask the Helsingin käräjäoikeus, first, for their release from detention on 
the ground that the time limit for surrender has expired, and second for [Or. 4] the 
postponement of their surrender to Romania in view of their applications for 
asylum. By decisions of 8 and 29 October 2021, the käräjäoikeus declared those 
applications inadmissible. The current proceedings concern appeals brought by C 
and CD against those decisions of the käräjäoikeus. 
Procedure before the Korkein oikeus 
8 C and CD have reiterated their claims in their appeal. In the response, the syyttäjä 
(public prosecutor) contends that the applicants should remain in detention and 
that their surrender to Romania should not be postponed. 
9 In a decision on questions of principle delivered on 8 December 2021 
(KKO 2021:86), the Korkein oikeus ruled that persons subject to a decision on 
surrender have a right of access to the court on the issue of continuation of their 
detention. To avoid any delay, the Korkein oikeus seised itself directly of the case. 
REQUEST FOR A PRELIMINARY RULING OF 20.12. 2021 – CASE C-804/21 PPU 
 
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2. Legal framework 
2.1. Surrender 
EU law 
10 The provisions which are relevant to the present case are recital 9 of Framework 
Decision 2002/584/JHA and Article 6(2), Article 12, Article 15(1) and Article 23 
of that decision. [Or. 5] 
National law 
11 The national provisions adopted by way of implementation of the framework 
decision are found in the rikoksen johdosta tapahtuvasta luovuttamisesta Suomen 
ja muiden Euroopan Unionin jäsenvaltioiden välillä annettu laki (Law on 
surrender, by reason of an offence, between Finland and the other Member States 
of the European Union) (Law No 1286 of 30 December 2003; ‘the Law on 
surrender within the European Union’). 
12 In Finland, the executing judicial authorities competent to decide on surrender and 
continuation of detention are the Helsingin käräjäoikeus and, on appeal, the 
Korkein oikeus (Articles 11, 19 and 37 of the Law on surrender within the 
European Union). By virtue of Paragraph 44 of that law, however, it is the 
keskusrikospoliisi that is competent to execute a decision on surrender. 
13 By virtue of Paragraph 46(1) of the Law on surrender within the European Union, 
the person to whom such a decision relates is to be surrendered to the competent 
authorities of the requesting Member State as soon as possible, on a date agreed 
between the authorities concerned. He or she must however be surrendered no 
later than 10 days after the decision on surrender becomes final. 
14 By virtue of Paragraph 46(2) of the Law on surrender within the European Union, 
if the surrender of the person concerned, within the period laid down in 
paragraph 1, is prevented by a situation of force majeure in Finland or the 
Member State making the request, the competent authorities must agree on a new 
surrender date. The surrender must take place within 10 days of the new date thus 
agreed. 
15 By virtue of Paragraph 47 of the Law on surrender within the European Union, the 
court may postpone execution of the decision on surrender where there are 
circumstances which, from a humanitarian perspective, would make such 
execution excessively severe. The execution of the decision on surrender is to take 
place as soon as the grounds for postponement have ceased to exist. The 
competent authorities must then agree a new surrender date. The surrender must 
take place within 10 days of the new date thus agreed. [Or. 6] 
SYYTTÄJÄ 
 
PROVISIONAL TEXT OF 11/01/2022 
16 By virtue of Paragraph 48 of the Law on surrender within the European Union, if, 
upon expiry of the time limits referred to in Paragraphs 46 and 47, the person is 
still being held in custody, he or she is to be released. 
2.2. Application for asylum 
EU Law 
17 The provision that is relevant to the present case is the sole article of the Protocol 
(No 24) on asylum for nationals of Member States of the European Union, which 
is annexed to the FEU Treaty. 
National law 
18 The national provisions on asylum are found in the Ulkomaalaislaki (Law on 
foreign nationals) (Law No 301 of 30 April 2004), which corresponds to the 
provisions of the Geneva Convention on the status of refugees. The provisions of 
the Law on foreign nationals apply to all foreign nationals resident in the country 
and thus also to EU citizens. 
19 Paragraph 40(3) of the Law on foreign nationals provides that a foreign national is 
lawfully entitled to stay in the country while the application is under 
consideration, until a final decision has been made on that application or an 
enforceable decision to remove the foreign national has been made. It is apparent 
from the preparatory work that asylum seekers also have that right. 
20 By virtue of Paragraph 101(3) of the Law on foreign nationals, an application may 
be regarded as manifestly unfounded if the applicant arrived from a safe country 
of origin to which he or she may be returned. By virtue of Paragraph 104(1) of the 
Law on foreign nationals, a decision on an application for international protection 
may be made in an expedited procedure where the application is regarded as 
manifestly unfounded pursuant to Paragraph 101. [Or. 7] 
3. The need for the preliminary ruling 
21 The Korkein oikeus must rule on the applications which the applicants, who are 
still in detention and whose surrender has been ordered by final decisions on 
surrender, have made with a view to securing, first, their release from detention 
and, second, postponement of the surrender. As their applications for asylum are 
under consideration, they have not yet been surrendered to Romania. The referring 
court must rule on questions concerning the interpretation of the framework 
decision on which the Court of Justice does not appear to have addressed in its 
case-law. 
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3.1. The first question 
22 It is necessary in the first place to evaluate the procedure leading to a finding, 
made pursuant to Article 23(3) of the framework decision, that a situation of force 
majeure exists, and to an extension of the time limit for surrender. 
23 It is apparent from the judgment in Vilkas that expiry of the time limits referred to 
in Article 23(1) to (4) of the framework decision does not have the effect of 
terminating the surrender procedure, but simply means that the requested person is 
to be released, pursuant to Article 23(5) of that decision (judgment of 25 January 
2017, Vilkas, C-640/15, EU:C:2017:39, paragraph 70). In accordance with 
Article 23(3) of the framework decision, the expiry of the time limit depends on 
whether surrender has been prevented by a situation of force majeure. The 
judgment in Vilkas does not address the question of which authority is competent 
to assess whether there is a situation of force majeure for the purposes of the 
framework decision, or what procedural requirements are imposed, where 
relevant, by that decision, as regards the assessment of the grounds for exceeding 
the time limit and the release of the person ordered to be surrendered. [Or. 8] 
24 Under the rules of national law, tasks relating to the execution of the surrender are 
transferred to the keskusrikospoliis once the court’s decision on surrender has 
become final. The court’s decision does not set the date of surrender, but it is 
executed in conformity with the time limits laid down in that regard by the Law 
on surrender within the EU, in accordance with the framework decision. The 
keskusrikospoliisi takes responsibility for the practical implementation of the 
decision on surrender, liaises with the competent authorities of the Member State 
which issued the arrest warrant and agrees a new surrender date where surrender 
has not taken place within 10 days, as in the present case. In accordance with a 
decision of the Korkein oikeus (KKO 2021:86), the person to be surrendered 
nevertheless retains the right to put before the court the issue of whether it is 
justified to keep him or her in detention, or whether he or she ought to be released 
on the ground that detention is excessive. It is then incumbent on the court to 
consider, amongst other things, whether the fact that surrender has not taken place 
is due to circumstances amounting for the purposes of Article 23(3) to force 
majeure, in which case the time limit for surrender can be extended and the person 
to be surrendered can remain in detention, notwithstanding Article 23(5). 
However, neither the keskusrikospoliisi nor any other authority systematically 
puts the question of continued detention before the court. 
25 The referring court is not certain that this national procedure meets the 
requirements of Article 23(3) of the framework decision. The wording of 
Article 23(3) – unlike that of Article 23(1), which refers to ‘the authorities 
concerned’ – appears to require actions to be taken specifically by the executing 
judicial authority referred to in Article 6(2) of the framework agreement. Those 
actions would appear to involve, in particular, the executing judicial authority 
negotiating with the issuing judicial authority, agreeing on a new surrender date 
and, above all, considering whether the conditions for continued detention are still 
SYYTTÄJÄ 
 
PROVISIONAL TEXT OF 11/01/2022 
met. It is apparent from the case-law of the Court of Justice that the 
keskusrikospoliisi cannot be regarded as an executing judicial authority within the 
meaning of Article 6(2) of the framework agreement (judgment of 24 November 
2020, Openbaar Ministerie (Forgery of Documents), C-510/19, EU:C:2020:953, 
paragraphs 41 and 42). Action by a police authority is limited to practical and 
administrative assistance [Or. 9] for the competent judicial authorities (judgment 
of 10 November 2016, Poltorak, C-452/16 PPU, EU:C:2016:858, paragraph 42). 
The determination of force majeure, or decision-making as regards continued 
detention cannot be regarded as such tasks. 
26 The concept of force majeure employed in Article 23(3) of the framework 
decision must be understood as referring to abnormal and unforeseeable 
circumstances (judgment in Vilkas, paragraph 53 and the case-law cited). The 
covid-19 pandemic has shown that obstacles arising from travel restrictions and 
reduced availability of transport can be long lasting, that circumstances change 
rapidly and that it is difficult to make a reliable prediction as to when such 
obstacles will cease to exist. The efficiency of the European arrest warrant system 
depends on the execution of final decisions on surrender being rapid and simple, 
subject to guaranteeing, particularly with regard to persons in detention, the rights 
based on Article 6 of the Charter of Fundamental Rights, which also requires the 
application of Article 23(3) and (5) of the framework decision. 
27 Negotiations between Member States concerning the postponement of execution 
of a decision on surrender are essentially practical in nature, their objective being 
to settle the appropriate time for surrender and the logistical aspects, such as 
means of transport and schedules. Such tasks are more suited to administrative 
authorities than to courts acting as judicial authorities. The question therefore 
arises of whether Article 23(3) of the framework decision precludes a procedure 
under which it is the authority responsible for practical execution of the decision 
on surrender which has primary competence to assess whether there are obstacles 
to the surrender and how surrender would be possible, and to agree a new 
surrender date, the person ordered to be surrendered and the prosecutor having, by 
way of a remedy, the right to put the case before the court for examination and ask 
for the detention to be brought to an end (see judgment of 11 November 2021, 
Gavanozov II, C-852/19, EU:C:2021:902, paragraph 33). The court before which 
the case is brought will then determine whether the delay in execution arises out 
of a situation of force majeure and, depending on the answer to that question, and 
on other factors affecting reasonableness, will also determine whether the duration 
of detention is excessive. In the light [Or. 10] of the case-law of the Court of 
Justice (judgments in Openbaar Ministerie (Forgery of Documents), 
paragraph 53, and of 27 May 2019, OG and PI (Offices of the Public Prosecutor 
of Lübeck and Zwickau), C-508/18 and C-82/19 PPU, EU:C:2019:456, 
paragraphs 70 and 75), there is room for doubt as to whether such a judicial 
remedy fully satisfies the requirements inherent in effective judicial protection, 
and whether execution of the decision on surrender is subject to adequate judicial 
review. 
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28 If Article 23 of the framework decision is interpreted as meaning that the judicial 
review-based procedure described above is not satisfactory, as a remedy, with 
respect to the framework decision and its objectives, and does not sufficiently 
guarantee the rights of the person ordered to be surrendered, it will be necessary to 
consider what consequences should follow from this. It is must be determined 
whether the lack of judicial intervention necessarily means that the requested 
person must be released, pursuant to Article 23(5) of the framework agreement – 
even if, having regard to all the relevant features of the case, the duration of the 
custody was not excessive (judgment of 16 July 2015, Lanigan, C-237/15 PPU, 
EU:C:2015:474, paragraph 58 and 59). 
29 Article 23(3) of the framework decision also raises the question of when the 
authorities must contact each other and agree a new surrender date. The wording 
does not indicate whether that action must be taken immediately, as soon as a 
situation of force majeure arises in either of the Member States which prevents the 
surrender from being executed at the intended time, on expiry of the time limit 
previously fixed, or – as in the situation envisaged by Article 23(4) – only when 
the obstacle has ceased to exist. A situation may just as well be one of force 
majeure where it is impossible to make a reliable prediction as to when it will 
come to an end. In such a situation it is impossible, in practice, to agree a new 
surrender date immediately after the obstacle arises. [Or. 11] 
3.2 The second question 
30 The second question relates to whether legal obstacles based on the national 
legislation of a Member State which, in practice, prevent the surrender, can be 
regarded as constituting a situation of force majeure for the purposes of 
Article 23(3) of the framework decision. 
31 In the judgment in Vilkas, the Court interpreted the concept of force majeure in a 
situation of repeated physical resistance on the part of the person to be 
surrendered. In the present case, the authorities with practical responsibility for 
the execution of decisions on surrender have complied with the orders of the 
national court and with the rules intended to preserve the position of applicants 
while their applications are under consideration. If the concept of force majeure is 
interpreted narrowly and so as to give decisive importance to the fact that it relates 
to external causes, beyond the control of the Member States, this type of obstacle 
could be excluded from its scope. 
32 In the present case, the practical implementation of the surrender has been 
complicated by the covid-19 pandemic, as has compliance with the timescales, but 
the main obstacles to the surrender have been, initially, the order of the national 
court that the surrender should not be executed, and, subsequently, the 
applications for asylum made by the persons ordered to be surrendered. Under the 
national legislation, an asylum seeker has the right to remain in the country while 
his or her application is under consideration, or until a decision to remove him or 
her has been made. [Or. 12] 
SYYTTÄJÄ 
 
PROVISIONAL TEXT OF 11/01/2022 
33 The answers to these questions of interpretation are needed in order to resolve the 
dispute in the proceedings before the Korkein oikeus. 
4. The questions referred 
The Korkein oikeus, after giving the parties the opportunity to express their views 
on the content of the request for a preliminary ruling, has decided to stay the 
proceedings and refer the questions below to the Court of Justice of the European 
Union for a preliminary ruling. 
1. Does Article 23(3) of Framework Decision 2002/584/JHA, read in 
conjunction with Article 23(5) thereof, require that, if a person in detention 
has not been surrendered within the time limits, the executing judicial 
authority referred to in Article 6(2) of the Framework Decision is to decide 
on a new surrender date and must determine whether a situation of force 
majeure exists and if the conditions required for detention are met, or is a 
procedure under which the court only examines those matters where the 
parties so request also compatible with the framework decision? If action on 
the part of the judicial authority is required in order for the time limit to be 
extended, does the lack of any such action necessarily mean that the time 
limits laid down in the framework decision have expired, in which case the 
person in detention must be released pursuant to Article 23(5) thereof? 
2. Is Article 23(3) of Framework Decision 2002/584/JHA to be interpreted 
as meaning that the concept of force majeure includes legal obstacles to the 
surrender which are based on the national legislation of the executing 
Member State, such as an order preventing execution which has effect for the 
duration of the legal proceedings, or the right of an asylum seeker to remain 
in the executing Member State until his or her application for asylum has 
been determined? 
Once it has received a preliminary ruling, the Korkein oikeus will give judgment 
in the case. 
[…]