Opinion of the Advocate General — ECLI:EU:C:2016:826
Date: 2016-10-27
Language of the case: 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, the pre-existence or continuity of circumstances of the same nature leading to the application of Article 23(3) renders particularly difficult the possibility to fulfil the requirements of unforeseeability and due care intrinsic to the concept of force majeure. 82. The third situation concerns where ‘circumstances beyond the control …’ have ceased, but different such circumstances have arisen which have prevented, or are likely to prevent, surrender of the requested person within the required period. 83. In my opinion, this third situation is indeed most likely to validly trigger the renewed application of Article 23(3) of the Framework Decision. Granted, the probability of different and genuine force majeure happening more than once in the course of one surrender procedure is quite unlikely. However, as truth is often stranger than fiction, the occurrence of such events can certainly not be excluded. 84. In conclusion, if the narrow interpretation of force majeure as suggested in this Opinion is embraced, it is clear that any rerun of Article 23(3) of the Framework Decision will occur only in very exceptional situations. On this understanding, the aggressive behaviour of the requested person frustrating a first surrender attempt could be qualified as force majeure only if there was nothing in the file and the facts of the individual case which would have led the national judicial authorities to have reasonably foreseen such a course of events. By contrast, a repetition of almost identical behaviour preventing a subsequent surrender attempt could not be reasonably qualified as force majeure, unless, on the facts of the case, the competent authority had reason to believe that such a scenario could not reoccur. 85. It is for the national court to ascertain, on the basis of all the facts at its disposal, whether the requirements of Article 23(3) of the Framework Decision have been fulfilled a second time in the present case. 4. Response to the second question 86. It is my view that Article 23(3) of the Framework Decision is to be interpreted as allowing for the agreement of a new surrender date on more than one occasion only if the new or reoccurring circumstances having prevented surrender constitute in themselves a new instance of force majeure. C – Postscript 87. There are two conflicting broader interests lingering in the shadows of this case, perhaps not entirely articulated, but certainly relevant: the basic moral principle that nobody can be better off because of having behaved illegally, (43) and the need to induce the Member States to approach the surrender procedure responsibly in terms of its planning and execution. 88. This Opinion sought a reasonable compromise between these two interests, while respecting the fundamental rights of the requested person: in case of new or reoccurring circumstances beyond the control of any of the Member States, interpreted narrowly, a new surrender date may be set under Article 23(3) of the Framework Decision on more than one occasion. There are, however, clear limits, both internal and external, to this possibility. Internally, within the Framework Decision, there must be genuine circumstances beyond the Member States’ control — not just situations arising out of the lack of preparation or Member States’ convenience. If no such circumstances are present, the requested person must be released immediately pursuant to Article 23(5). Externally, the length and conditions of custody under the repetitive use of Article 23(3) are subject to the Charter interpreted in the light of the ECHR. 89. Finally, it should be pointed out that the scope of this Opinion is limited to the interpretation of the notion of ‘circumstances beyond the control …’ and of the possibility of a repeated application of Article 23(3). However, it is fair to acknowledge that the legal issues addressed in this Opinion, which aims to give a useful response to the specific questions asked by the referring court in the present case, do not exhaust the interpretative problems potentially posed by the current wording of Article 23 of the Framework Decision. In particular, this Opinion takes no position on the legal status or validity of an EAW once Article 23(5) of the Framework Decision is triggered, leading to the obligatory release of the requested person from custody. IV – Conclusion 90. In view of the foregoing, I recommend that the Court answer the questions referred to it by the Court of Appeal (Ireland) as follows: (1) Article 23(3) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States is to be interpreted as allowing for the agreement of a new surrender date on more than one occasion. In the case of a repeated application of Article 23(3), the requested person can only be kept in custody in accordance with Article 6 of the Charter of Fundamental Rights of the European Union if the surrender procedure complies with the requirement of due diligence, if the relevant provisions of national law are foreseeable, accessible and precise, and if the detention respects the principle of proportionality. (2) Article 23(3) of the Framework Decision is to be interpreted as allowing for the agreement of a new surrender date on more than one occasion only if the new or reoccurring circumstances having prevented surrender constitute in themselves a new instance of force majeure. 1 – Original language: English. 2 – Midnight Run (1988), directed by Martin Brest, produced by Universal Pictures. 3 – 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’). 4 – Vilkas (C‑640/15, EU:C:2015:862). 5 – For example, Article 11(3) of the Convention drawn up on the basis of Article K.3 of the Treaty on European Union, on simplified extradition procedure between the Member States of the European Union (OJ 1995 C 78, p. 2) and Article 18(5) of the 1957 European Convention on extradition. With regard to the latter, it has been put forward that there would be no objection for the repetition of the application of this rule (See Manzanares Samaniego, J.L., El Convenio Europeo de Extradición, Bosch, Barcelona, 1986, p. 219). 6 – The objective of avoiding impunity has been recognised by the Court as a legitimate objective of general interest in EU law (see judgments of 6 September 2016, Petruhhin, C–182/15, EU:C:2016:630, paragraphs 37 to 39, and of 27 May 2014, Spasic, C‑129/14 PPU, EU:C:2014:586, paragraphs 63 and 65). 7 – Judgment of 5 April 2016, Aranyosi andCăldăraru, C‑404/15 and C‑659/15 PPU, EU:C:2016:198 paragraph 76 and the case-law cited). 8 – Judgment of 30 May 2013, F. (C‑168/13 PPU, EU:C:2013:358, paragraph 58). 9 – See, for example, 7 October 2010 in Lassal (C‑162/09, EU:C:2010:592, paragraph 51). See also, in this regard, judgment of 16 July 2015, Lanigan (C‑237/15 PPU, EU:C:2015:474, paragraphs 35 to 42). 10 – See, similarly, with regard to Article 12, judgment of 16 July 2015, Lanigan (C‑237/15 PPU, EU:C:2015:474, paragraph 54). 11 – Judgment of 16 July 2015, Lanigan (C‑237/15 PPU, EU:C:2015:474, paragraph 53). 12 – The issue of detention in criminal proceedings is not currently regulated at EU level. Even though the Council invited the Commission to present a Green Paper on pretrial detention, no further steps have been taken in order to adopt EU instruments in this field. See Green Paper ‘Strengthening mutual trust in the European judicial area — A Green Paper on the application of EU criminal justice legislation in the field of detention’, Brussels, 14 June 2011, COM(2011) 327 final. There is a marked divergence in the approach to the question of pre-surrender or extradition detention in the different Member States. See, in particular, European Committee on Crime Problems — Committee of Experts on the Operation of European conventions in the penal field, ‘Provisional arrest and detention pending extradition — time limits applicable in each country’, Strasbourg, 2 July 2012, PC-OC/Inf 71, available at http://www.coe.int/tcj/. 13 – See, to that effect, on the situation before the final decision on execution has been taken, judgment of 16 July 2015, Lanigan (C‑237/15 PPU, EU:C:2015:474, paragraph 61). 14 – According to Article 12, the decision on continued detention has to be taken ‘in accordance with the law of the executing Member State’. Article 12 also provides that the person may be provisionally released at any time ‘in conformity with the domestic law of the executing Member State’. In that case, the competent authority shall attach to the provisional release ‘all the measures it deems necessary to prevent the person absconding’. 15 – See page 4 of the Commission’s Proposal for a Council Framework Decision on the European arrest warrant and the surrender procedures between the Member States, COM(2001) 522 final. 16 – See also judgment of 16 July 2015, Lanigan (C‑237/15 PPU, EU:C:2015:474, paragraph 56). 17 – See, judgments of 28 July 2016, JZ (C‑294/16 PPU, EU:C:2016:610, paragraph 48) and of 15 February 2016, N. (C‑601/15 PPU, EU:C:2016:84, paragraphs 47 and 77). 18 – See, in particular, Opinion of Advocate General Ruiz-Jarabo Colomer in Advocaten voor de Wereld (C‑303/05, EU:C:2006:552, points 38 to 47). 19 – See, for example, judgment of 5 April 2016, Aranyosi and Căldăraru (C‑404/15 and C‑659/15 PPU, EU:C:2016:198, paragraph 75 and the case-law cited). 20 – See judgment of 16 July 2015, Lanigan (C‑237/15 PPU, EU:C:2015:474, paragraph 56 to 58). 21 – Judgment of 16 July 2015, Lanigan (C‑237/15 PPU, EU:C:2015:474, paragraph 57). 22 – Judgments of 5 April 2016, Aranyosi and Căldăraru (C‑404/15 and C‑659/15 PPU, EU:C:2016:198, paragraph 100) and of 16 July 2015, Lanigan (C‑237/15 PPU, EU:C:2015:474, paragraph 58). 23 – Judgment of the ECtHR of 26 June 2012, Toniolo v. San Marino and Italy (CE:ECHR:2012:0626JUD004485310, paragraph 44). 24 – Judgment of the ECtHR of 19 February 2009, A. and Others v. the United Kingdom (CE:ECHR:2009:0219JUD000345505, paragraph 164). 25– Judgment of the ECtHR of 24 July 2014, Čalovskis v. Latvia (CE:ECHR:2014:0724JUD002220513, paragraph 182). 26 – View of Advocate General Sharpston in N. (C‑601/15 PPU, EU:C:2016:85, paragraph 131). 27 – Judgments of the ECtHR of 23 October 2008, Soldatenko v. Ukraine (CE:ECHR:2008:1023JUD000244007, paragraph 112), and of 26 June 2012, Toniolo v. San Marino and Italy (CE:ECHR:2012:0626JUD004485310, paragraphs 46 to 50). 28 – Judgment of 5 April 2016, Aranyosi and Căldăraru (C‑404/15 and C‑659/15 PPU, EU:C:2016:198, paragraph 101). 29 – See, to that effect, judgment of 16 July 2015, Lanigan (C‑237/15 PPU, EU:C:2015:474, paragraph 59). 30 – That is the case, for example, of the Bulgarian, Spanish, Czech, German, Estonian, Greek, Croatian, Latvian, Lithuanian, Maltese, Dutch, Polish, Slovak, Slovenian and Swedish versions. 31 – In particular, the French, Italian, Portuguese, Romanian and Finnish versions. 32 – See for example, judgment of 18 July 2013, Eurofit (C‑99/12, EU:C:2013:487, paragraph 31 and the case-law cited). 33 – This differentiation is explicitly made in some instruments of secondary law which contain references to separate regimes for force majeure and for ‘circumstances beyond control’. That was the case of the (derogated) Regulation (EEC) No 1380/75 of the Commission of 29 May 1975 laying down detailed rules for the application of monetary compensatory amounts (OJ 1975 L 139, p. 37). In this connection, see Opinion of Advocate General Lenz in Denkavit France (266/84, not published, EU:C:1985:425, point 1, claiming that ‘force majeure must therefore be given a different, narrower construction than that of circumstances beyond the control of the person concerned’). 34 – Proposal for a Council Framework Decision on the European arrest warrant and the surrender procedures between the Member States, COM(2001) 522 final (OJ 2001 C 332E, p. 305). 35 – Convention drawn up on the basis of Article K.3 of the Treaty on European Union, on simplified extradition procedure between the Member States of the European Union (OJ 1995 C 78, p. 2). 36 – Spanish, Danish, German, Greek, French, Italian, Dutch, Portuguese and Finnish. Only the English and Swedish versions do not use that notion. 37 – Convention on simplified extradition procedure between the Member States of the European Union — Explanatory Report (OJ 1996 C 375, p. 4). 38 – See, by analogy, judgments of 14 February 2016, C & J Clark International (C‑659/13 and C‑34/14, EU:C:2016:74, paragraph 191), and of 18 July 2013, Eurofit (C‑99/12, EU:C:2013:487, paragraph 37). 39 – Judgment of 18 December 2007, Société Pipeline Méditerranée et Rhône (C‑314/06, EU:C:2007:817, paragraph 23 and the case-law cited). 40 – Judgment of 18 December 2007, Société Pipeline Méditerranée et Rhône (C‑314/06, EU:C:2007:817, paragraph 24 and the case-law cited). 41 – See, judgment of 18 July 2013, Eurofit (C‑99/12, EU:C:2013:487, paragraph 32 and the case-law cited). 42 – See, for example, judgments of the ECtHR of 28 September 2015, Bouyid v. Belgium, (CE:ECHR:2015:0928JUD002338009, paragraph 88), and of 4 December 1995, Ribitsch v. Austria (CE:ECHR:1995:1204JUD001889691, paragraph 38). 43 – At the hearing, the Lithuanian and Irish Governments suggested that the respondent’s behaviour could be qualified as abuse of rights. They argued that by behaving violently Mr Vilkas has artificially created conditions for his release under Article 23(5). I do not think that the concept of abuse of rights is pertinent in the present context. According to a consistent line of case-law, proof of an abuse requires an objective element — that despite formal observance of the conditions laid down by the EU rules, the purpose of those rules has not been achieved — and a subjective element consisting of the intention to obtain an advantage from the EU rules by artificially creating the conditions laid down for obtaining it. See, for example, judgment of 18 December 2014, McCarthy and Others (C‑202/13, EU:C:2014:2450, paragraph 54 and the case-law cited). I have difficulties seeing how, by violently resisting surrender, the respondent would have formally observed any condition laid down by EU law. If anything, such behaviour would rather qualify, under a number of national legal systems, as an obstruction of the execution of an official decision or whatever a similar offence might be called under national law.