OPINION OF ADVOCATE GENERAL

CAMPOS SÁNCHEZ-BORDONA

delivered on 19 October 2016 ( 1 )

Case C‑452/16 PPU

Openbaar Ministerie

v

Krzysztof Marek Poltorak

(Request for a preliminary ruling from the rechtbank Amsterdam (Court of First Instance, Amsterdam, Netherlands))

‛Police and judicial cooperation in criminal matters — Framework Decision 2002/584/JHA — European arrest warrant — The terms ‘judicial authority’ and ‘judicial decision’’

1. In the system established by Framework Decision 2002/584/JHA, ( 2 ) which has replaced the traditional extradition mechanism, the judicial authorities of the Member States are the protagonists. In particular, the Framework Decision concerns both the issuing judicial authority, which issues the European arrest warrant, ( 3 ) and the executing judicial authority, in the receiving State, which must duly execute it.

2. The Court of Justice has not previously been asked to interpret the terms ‘judicial authority’ (which appears in Article 6 of the Framework Decision) and ‘judicial decision’ (Article 1 of the same legislative text). In this request, the rechtbank Amsterdam (Court of First Instance, Amsterdam, Netherlands) refers four questions by which it seeks, in essence, clarification of the meaning of those expressions, in order to issue or, if appropriate, to reject an EAW issued by a Swedish police authority, with the aim of enforcing a final judgment.

3. In parallel with this case, the same national court has referred other questions for a preliminary ruling concerning the meaning of ‘judicial decision’, contained in one of the requirements of Article 8 of the Framework Decision, although they do not relate to the EAW, but to the national arrest warrant, which must precede it. On this same date I am delivering the Opinion in that other case. ( 4 )

I – Legal framework

A – EU law

1. EU Treaty

4. According to Article 6: ‘1. The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights [“the Charter”], which shall have the same legal value as the Treaties. The provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties. The rights, freedoms and principles in the Charter shall be interpreted in accordance with the general provisions in Title VII of the Charter governing its interpretation and application and with due regard to the explanations referred to in the Charter, that set out the sources of those provisions. 2. The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms [signed in Rome on 4 November 1950 (“ECHR”)]. Such accession shall not affect the Union’s competences as defined in the Treaties. 3. Fundamental rights, as guaranteed by [the ECHR] and as they result from the constitutional traditions common to the Member States, are to constitute general principles of the Union’s law.’

2. The Charter

5. Under Article 47, entitled ‘Right to an effective remedy and to a fair trial’: ‘Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article. Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented. ...’

3. Framework Decision

6. Recital 5 states: ‘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. …’

7. Under recital 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.’

8. Furthermore, recital 10 makes the point that: ‘The mechanism of the European arrest warrant is based on a high level of confidence between Member States. Its implementation may be suspended only in the event of a serious and persistent breach by one of the Member States of the principles set out in Article 6(1) of the Treaty on European Union, determined by the Council pursuant to Article 7(1) of the said Treaty with the consequences set out in Article 7(2) thereof.’

9. Under Article 1, entitled ‘Definition of the European arrest warrant and obligation to execute it’: ‘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. 3. This Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on European Union.’

10. Article 6, under the heading ‘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.’

11. Under Article 7, relating to the central authority: ‘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 judicial 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. ...’

12. As regards the relation to other legal instruments, Article 31(1)(a) states: ‘1. Without prejudice to their application in relations between Member States and third States, this Framework Decision shall, from 1 January 2004, replace the corresponding provisions of the following conventions applicable in the field of extradition in relations between the Member States: (a) the European Convention on Extradition of 13 December 1957, its additional protocol of 15 October 1975, its second additional protocol of 17 March 1978, and the European Convention on the suppression of terrorism of 27 January 1977 as far as extradition is concerned; ...’

B – Swedish law

13. On 29 May 2009, Sweden sent ( 5 ) to the General Secretariat of the Council of the European Union, in accordance with Article 6(3) of the Framework Decision, updated information relating to the judicial authorities competent under its national law, in which it was stated: [As to] Article 6(3) The following authorities in Sweden are competent to issue and execute a European arrest warrant: Issuing judicial authority ... A European arrest warrant for the enforcement of a custodial sentence or other form of detention is issued by the National Police Board (Rikspolisstyrelsen) ...’

14. According to the order for reference, and as the Swedish Government confirmed in its written observations and at the hearing, execution of final judgments, and decisions in that regard which have to be adopted subsequently in that country, are assigned to authorities other than the judicial authorities and, in particular, other than the courts which have delivered those judgments. ( 6 )

15. Furthermore, in reply to the request for information from the rechtbank Amsterdam (Court of First Instance, Amsterdam), the Swedish Police Authority told it, in a letter of 1 August 2016, that that authority: (a) is the authority competent to adopt an EAW for the enforcement of a custodial sentence; (b) issues EAWs only at the request of the Swedish Prison and Probation Service (‘Prison Service’), of which it is, however, independent; (c) has delegated competences to one or more members of the police force assigned to the International Police Cooperation Division; (d) exercises those powers without any supervision by judicial bodies, the Ministry of Justice or the court which pronounced the sentence.

II – The main proceedings and the questions referred for a preliminary ruling

16. On 23 May 2016, the prosecutor attached to the rechtbank Amsterdam (Court of First Instance, Amsterdam) requested that court to act upon the EAW issued on 30 June 2014 by the Swedish National Police Board, ( 7 ) for the arrest and surrender of Mr K.M. Poltorak, who is in the Detention Centre in Alphen aan de Rijn (Netherlands).

17. The EAW is based on the final judgment delivered by a court in Göteborg (Gothenburg, Sweden) of 21 December 2012 (reference B 9380/12), imposing on Mr Poltorak a custodial sentence of one year and three months for assault causing serious injuries. ( 8 )

18. The referring court wishes to ascertain whether the EAW has been issued by a ‘judicial authority’, within the meaning of Article 6(1) of the Framework Decision and, therefore, whether it is a ‘judicial decision’, within the meaning of Article 1(1) of that Framework Decision. It adds that this problem arises, above all, in the light of the observations of the Court of Justice in its judgment of 1 June 2016, Bob-Dogi. ( 9 )

19. In those circumstances, the rechtbank Amsterdam (Court of First Instance, Amsterdam) decided to suspend the 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 Framework Decision 2002/584/JHA, and “judicial decision”, within the meaning of Article 1(1) of Framework Decision 2002/584/JHA, 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 EAW issued by it is consequently such a “judicial decision”? (3) If the answer to Question 1 is in the affirmative: is the Swedish National Police Board covered by the term “judicial authority”, within the meaning of Article 6(1) of Framework Decision 2002/584/JHA, and is the EAW issued by that authority consequently a “judicial decision” within the meaning of Article 1 (1) of Framework Decision 2002/584/JHA? (4) If the answer to Question 1 is in the negative: is the designation of a national police authority such as the Swedish National Police Board as the issuing judicial authority in conformity with EU law?’

20. In the opinion of the national court, set out in paragraphs 4.2 to 4.6 of the order for reference: — The expression ‘judicial authority’ in Article 6(1) of the Framework Decision may be interpreted as a delegation in the law of the issuing Member State of the term ‘judicial authority’, or as meaning that it is the responsibility of that legal order alone to designate the competent authority. ( 10 ) In the first case, ‘judicial authority’ would not be a term of EU law and would therefore not have to be given an autonomous and uniform interpretation. In the second, it would be an autonomous term of EU law but with neither an obvious interpretation ( 11 ) nor previous rulings of the Court of Justice which transform it into an ‘acte éclairé’. ( 12 ) — From the context, and in particular from the European Convention on Extradition (ECE), and also the legislative history, especially the Proposal for a Framework Decision, ( 13 ) it is not clear whether other authorities, as well as judicial authorities, may be competent to issue EAWs, within the meaning of Article 6(1), in spite of the tendency, observed in legislative development since the ECE, to replace relations between Member States with relations between judicial authorities. — The aim of the Framework Decision of establishing a simplified system for the surrender of persons, based on the principle of mutual recognition and carried out under judicial supervision, ( 14 ) entails a dual level of judicial protection for procedural rights and fundamental rights, ( 15 ) that is, in the issuing Member State and the executing Member State, so that the lack of that protection at one of the two levels may adversely affect those principles of mutual recognition and confidence.

III – Procedure before the Court of Justice

21. The reference was received at the Court of Justice on 16 August 2016, with the request that it be dealt with under the urgent preliminary ruling procedure (fourth paragraph of Article 267 TFEU). The referring court gave as a reason for its request the fact that Mr Poltorak was incarcerated and whether he remained so depended on the outcome of the main proceedings.

22. At the administrative meeting on 1 September 2016, the Court of Justice decided to handle the matter under the urgent preliminary ruling procedure.

23. Written observations have been lodged by Mr Poltorak’s defence counsel, the Netherlands and Swedish Governments and the European Commission.

24. On 5 October 2016 a joint hearing was held with Case C‑477/16 PPU (Kovalkovas), at which the interested parties, in particular the Swedish Government, were asked, pursuant to Article 23 of the Statute of the Court of Justice, to reply to the questions which had been put to them.

25. The representatives of Mr Poltorak, of the Netherlands, German, Greek, Finnish and Swedish Governments, and also the Commission, presented their observations at that hearing.

IV – Analysis

A – The first question referred

26. The Netherlands court asks whether the expressions ‘judicial authority’ in Article 6(1) of the Framework Decision, and ‘judicial decision’ in Article 1(1) thereof, are to be interpreted as autonomous terms of EU law.

27. According to settled case-law of the Court of Justice, from the necessity of ensuring both uniform application of EU law and also the principle of equality it follows that the terms of a provision of EU law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the European Union. That case-law has been applied, specifically, to one of the provisions of the Framework Decision ( 16 ) and to the notion of ‘court having jurisdiction in particular in criminal matters’ in Article 1(a)(iii) of Council Framework Decision 2005/214/JHA of 24 February 2005 on the application of the principle of mutual recognition to financial penalties. ( 17 )

28. Neither of the aforementioned articles of the Framework Decision refers to the law of the Member States for the purpose of determining its meaning and scope. Admittedly, Article 6(1) mentions the judicial authority ‘which is competent … by virtue of the law of [the] State’. However, that reference does not point to the definition of ‘judicial authority’, but only to the conferral of competence to issue EAWs on one or more of the national judicial bodies, in accordance with the national law.

29. It must therefore be understood that the expressions ‘judicial authority’ and ‘judicial decision’ which appear in Article 6(1) and Article 1(1) respectively of the Framework Decision are autonomous terms of EU law which must be given an autonomous and uniform interpretation within its territory, which must take into account their terms, their context and the objective of the legislation of which they form part. ( 18 )

30. However, that assertion must be qualified: given the procedural context of both expressions, it will be necessary when interpreting them to take account of the freedom of legislative definition enjoyed by the Member States both in designating the competent judicial bodies and in legislating on the procedural rules governing actions intended to ensure the protection of the rights which the EU legal order confers on its citizens. ( 19 )

31. The affirmative reply to question 1 leaves question 4, which was raised only in case that reply were negative, devoid of purpose.

B – The second and third questions referred

32. By questions 2 and 3, the rechtbank Amsterdam (Court of First Instance, Amsterdam) seeks, in essence, to ascertain whether a body such as the Swedish SNPB fulfils the requirements for classification as a ‘judicial authority’ within the meaning of Article 6(1) of the Framework Decision, so that the EAW which is at issue in the present case constitutes a ‘judicial decision’ within the meaning of Article 1(1) of the Framework Decision.

33. As I have already pointed out, unlike the request for a preliminary ruling in Case C‑453/16 PPU, the questions of the national court in this request do not concern the authority competent to issue the prior national warrant but the one competent to issue the EAW in accordance with the Framework Decision.

34. I should like to make the preliminary point that the rewording of Questions 2 and 3 which I propose stems from my conviction that there is a strong link between the nature of a judicial decision and the status of judicial authority from whom it comes. Therefore, the term which really requires clarification in this case is that of ‘judicial authority’.

35. It is logical to think that, if the SNPB is not one of the entities and bodies defined as judicial authorities, the EAW which it issues will lack the crucial attribute and, at the same time, the principal requirement of a decision of a ‘judicial’ kind, that is, that it must come from one of the bodies belonging to the administration of justice.

36. As there is no definition ( 20 ) of ‘judicial authority’ in the text of the Framework Decision, it will be necessary to adhere, in accordance with the usual criteria of interpretation of the Court of Justice, to the literal meaning of the words, their context and objectives.

37. In order to avoid misunderstandings I think it is essential, however, to stress at the outset that I see no legal basis for treating EAWs for the purposes of enforcing a judgment differently from EAWs for the purpose of executing other criminal procedures, prior to delivery of the judgment (such as arrest warrants and similar procedures). Since they are all directed towards the surrender, by one Member State, of the persons sought in another, it is irrelevant, for interpreting the notions of judicial authority issuing and receiving the EAW, whether the search is carried out with the aim of bringing before the national court a person already convicted or a person against whom criminal proceedings have been brought but who has not yet been sentenced.

38. It is necessary to make this clear because, if it were not taken into consideration, it might be thought that, in the case of EAWs for the purposes of enforcing a judgment, the participation of the ‘judicial authority’ would have ended when it gave that judgment and, consequently, it would then have nothing to do with regard to its enforcement. In my view, that is not the case and, in a system of surrender characterised by judicialisation and the subsequent mutual recognition of judicial decisions, the EAW following judgment also involves the prior adoption of certain decisions, which cannot be other than judicial, insofar as they concern the deprivation, temporary or otherwise, of liberty and the analysis of proportionality before the EAW is granted. ( 21 )

39. With regard to the interpretation of Article 6 and, firstly, to the usual meaning of the words‘authority’ and ‘judicial’, it should be pointed out that the former of those terms refers to an entity which exercises control in some sphere of public life, because it has been allocated powers and has the legal capacity to do so. The adjective ‘judicial’ brings to the noun it accompanies the connotation that that authority has to belong to the administration of justice, ( 22 ) as opposed, in accordance with the traditional separation of powers, to the legislative and executive powers.

40. Thus, the language versions of the Framework Decision which I have used invariably mention justice: ‘autorité judiciaire’, in the French version; ‘judicial authority’, in the English; ‘Justizbehörde’, in the German; ‘autorità giudiziaria’, in the Italian; ‘autoridade judiciária’, in the Portuguese; ‘rättsliga myndighet’, in the Swedish and ‘tiesu iestāde’, in the Latvian.

41. There is already at this stage an early indication that the authority referred to, in particular, by Article 6 of the Framework Decision has to be part of the administration of justice. And this first pointer is confirmed, as the rechtbank Amsterdam (Court of First Instance, Amsterdam) rightly points out, in the legislative history. Both the ECE and the Proposal for a Framework Decision ( 23 ) opted to use the expressions ‘competent authority’ and ‘judicial authority’, respectively, as including the courts and the Public Prosecutor’s Office but expressly excluding the police authority. ( 24 )

42. This impression is corroborated, secondly, by the context of the aforementioned Article 6. Together with Article 7 which, as its title states, concerns ‘recourse to the central authority’, it forms the institutional architecture of the simplified procedure established by the Framework Decision. And that system operates in accordance with a basic scheme, to which I shall refer below.

43. In principle, as is inferred from recital 5, extradition between Member States is replaced by a system of surrender between judicial authorities based on the principle of mutual recognition. ( 25 ) The mainstay of that recognition consists, specifically, in the dialogue inter pares created by Article 6, that is, between the issuing judicial authority, which issues the EAW, and the executing or receiving judicial authority, which has to act upon it. Because of that configuration of relations between the Member States, through their respective judicial authorities, mutual confidence is established, in which their national legal orders are able to provide equivalent and effective protection of the fundamental rights, recognised at EU level, particularly in the Charter. ( 26 )

44. The only deviation from the operation of this scheme accepted by the legislature is contained in Article 7 of the Framework Decision, when it allows, as an exception, the participation of authorities which do not belong to the ‘judicial’ sphere. However, and for once, the literal content of that provision leaves no room for doubt: the words used to describe the subordinate nature of the action of those ‘central authorities’ have been chosen with care, in order to delimit the functions they perform within the framework of the dialogue between judicial authorities.

45. Accordingly, under Article 7(1) of the Framework Decision, the power of the Member States to designate that kind of central authority is granted to them in order that those authorities may ‘assist’ the competent judicial authorities. That clearly shows that their role is merely collaborative and in no way a decision-making or leading role, an instrumental function reinforced by the words used in paragraph 2 of that article: the tasks for which the designated central authority may be responsible are the administrative ‘transmission’ and ‘reception’ of EAWs as well as for ‘all other official correspondence relating thereto’.

46. When those tasks are compared with those assigned to the judicial authorities (the issuing authority is ‘competent to issue a … warrant’ and the executing authority ‘competent to execute a … warrant’, in the words of Article 6(1) and (2) respectively), it is clear that central authorities are confined to merely administrative activities and have no power whatsoever to instigate the necessary procedure, that is, to set in motion the mechanism for issuing an EAW.

47. Consequently, although the legislature has provided for the entry of a special type of administrative body into the dialogue between judicial authorities sought by the Framework Decision, its participation is very limited: (a) on the one hand, only the authority expressly designated by the Member State (which will have notified the General Secretariat of the Council) and no other, may act; and (b) on the other hand, the functions it may perform are limited to administrative support for the real decision-making bodies, that is, the judicial authorities which must take the decision to issue or execute EAWs.

48. This interpretation is also inferred from the statement of reasons of the proposal for a Framework Decision. ( 27 ) In the article-by-article commentary it states, in relation to the current Article 7, that it ‘is inspired by the 1996 convention and the European Union convention of 2000 on mutual judicial assistance in criminal matters … it is a practical provision to facilitate the transmission of information between Member States …’ and that ‘the role of these central authorities must be to facilitate the distribution and execution of the [EAWs] [which] are to deal in particular with translation and with administrative support for the execution of warrants’. ( 28 )

49. The institutional architecture of the EAW thus configured is, in the third place, that which best accords with the aim of establishing a new simplified and more effective system for the surrender of persons convicted or suspected of having infringed criminal law, facilitating and accelerating judicial cooperation with a view to contributing to the objective set for the European Union to become an area of freedom, security and justice by basing itself on the high degree of confidence which should exist between the Member States. ( 29 )

50. The dialogue between judicial authorities, which essentially share constitutional features of belonging to the judicial power in their respective Member States, and their undertaking to ensure respect for the fundamental rights and freedoms to which Article 6 TEU refers, represents the element of that mutual confidence. Inherent to it is the lack of interference from another kind of authority which is not judicial, the function of which, if any, can only be to provide support within the limits laid down by Article 7 of the Framework Decision.

51. Moreover, as this Court has already held, the entire surrender procedure between Member States provided for by the Framework Decision is carried out under judicial supervision. ( 30 )

52. Furthermore, there is a secondary argument which supports limiting criminal cooperation, as regards EAWs, to judicial bodies: the substantive legal basis of the Framework Decision itself, Article 31(1)(a) and (b) TEU. In the version of that Treaty in force in 2002, ( 31 ) there was still mention of facilitating and accelerating cooperation ‘between … ministries and judicial or equivalent authorities’. However, after the Treaty of Lisbon, that provision passed into the FEU Treaty, giving rise to Article 82, paragraph 1 of which introduces the principle of mutual recognition of judgments and decisions in criminal matters, and letter (d) of which adopts the content of the former Article 31(1)(a) TEU, but making the significant change of removing the express mention of the ministries. ( 32 ) This change must be taken into account for interpreting the Framework Decision in accordance with the new spirit, which restricts even further this pattern of cooperation in criminal matters to the judicial sphere. ( 33 ) In this regard, it is important to mention the settled case-law of the Court of Justice, according to which the wording of secondary EU legislation must be interpreted, in so far as possible, in a manner consistent with the provisions of the Treaties. ( 34 )

53. In the context of police and judicial cooperation in criminal matters, the Court of Justice has stated that the Treaty of Lisbon has substantially altered the institutional framework, and that Article 9 of Protocol No 36 on transitional provisions is intended mainly to ensure that acts adopted in the context of that cooperation may continue to be applied effectively, notwithstanding the change to the institutional framework which governs it. ( 35 )

54. This assertion, made in an action for annulment, is not incompatible, quite the contrary, with an evolving exegesis of the Framework Decision which, even though it was adopted on an earlier legal basis, brings it into line with the wording and objectives of the new basis, that is to say, renders it more in keeping with the turn taken by the legislature in respect of judicial cooperation in criminal matters. To continue interpreting the legislative act in accordance only with the spirit of the former legal basis would risk making the legislation rigid, which would run counter to the FEU Treaty itself and to the express subsequent intention of the legislature.

55. In the light of the foregoing considerations, if, in the present case, the authority from which the EAW comes forms part of the ‘police’, without its decision being taken over by any judge, it is reasonable for there to be doubt as to whether a police body may constitute a ‘judicial authority’, within the meaning of the Framework Decision. Although it is true that the police are part of the coercive force of the State, normally under the control of the heads of the executive power, it is no less true that, often, it also assists the judicial authorities, in the investigation of crimes and, sometimes, in the enforcement of judicial decisions. But this element of cooperation or assistance does not make it a judicial authority.

56. The information provided by the Swedish Police Authority ( 36 ) in reply to the questions from the referring court reveals the following characteristics of the authority responsible for issuing EAWs: (a) the police force is a repressive authority with extensive powers of action; (b) that authority does not receive instructions from the Minister for Justice in relation to EAWs; (c) it has no direct or indirect connection with the court which has convicted the person sought; (d) it acts, with regard to EAWs, at the request of the Prison Service, but does not receive instructions from it, and has a certain discretion in issuing them; and (e) it has delegated to the IPO, ( 37 ) an administrative subdivision made up of lawyers, of whom only three are authorised to sign the Swedish EAWs, the power to issue an EAW with a view to the enforcement of a final conviction or a custodial sentence.

57. Of all those distinctive features, that relating to the designation of the EAW issuing authority, under the Swedish law which adapted the Framework Decision to the national legal order, is definitely the feature which causes the greatest concern, in the light of the communication from the Swedish Government to the Council in 2009, in relation to Article 6(3) of the Framework Decision. ( 38 )

58. It is established that the Council had recommended to Sweden ( 39 ) that it take appropriate measures to ensure that, in cases of enforcement of sentences, EAWs were issued by a judicial authority or under the supervision of a judicial authority, in accordance with the Framework Decision.

59. The negative response of the Swedish Government to this recommendation is clear as regards the method of transposing the EAW in its national legal order. In essence, ( 40 ) that government considers it is right that enforcement of a criminal judgment, for which surrender of the convicted person is requested from another Member State, should not require the EAW to emanate from a judicial authority stricto sensu. It argues, on the contrary, that, as the national system of enforcement of judgments delivered by courts and tribunals confers competence on another kind of authority, not necessarily judicial, it is not contrary to the Framework Decision for those authorities, which it acknowledges to be non-judicial, also to decide on the issue of the EAW.

60. In the light of the above considerations, I believe that the institutional system defined by the Swedish Government does not comply with the Framework Decision. It could only be in accordance with it, possibly, if the police authority which issues the EAW for enforcement of a judgment satisfied the following requirements, which I consider an absolute must for maintaining the level of judicial guarantees on which the EAW system is based: (a) it would have to act by mandate and under the supervision of a judicial authority, within the meaning of Article 6 of the Framework Decision; and (b) it could not have discretionary powers or a margin of appreciation concerning the issue of the EAW, and would have to adhere to the mandate received from the judicial authority. Furthermore, if there were any doubts concerning the warrant, it would be the responsibility of the judicial authority to consult the Court of Justice concerning the interpretation to be given to the Framework Decision, in a request for a preliminary ruling.

61. It is apparent from the documents in the case and the written observations of the Swedish Government that the SNPB does not satisfy those requirements. Its organic integration places it outside the administration of justice, and given its lack of connection with the courts and the Public Prosecutor’s Office, the mandatory supervision by a judicial authority of decisions to issue EAWs, in respect of which the SNPB has a discretion, is absent.

62. This conclusion is not undermined by the fact that the police authority may be independent of the Ministry of Justice and the Prison Service, from which it does not receive instructions. In my view, that is irrelevant for classifying the police authority as a ‘judicial authority’. Also, as regards the margin of discretion it enjoys when issuing an EAW, what is relevant is that it does not have to request a decision from the court which has convicted the requested person nor is it accountable to that court. Although this fact reinforces its autonomy with regard to the sentencing court, at the same time it shows the lack of judicial supervision, contrary to the case-law which has declared that the entire surrender procedure between Member States provided for by the Framework Decision must be carried out under judicial supervision. ( 41 )

63. The autonomy of the Member States gives them the necessary degree of freedom to determine, within their domestic legal systems, on which authorities they will confer the procedural powers (in this case, those relating to the issue of EAWs). It is settled case-law of the Court of Justice that, in the absence of EU legislation on the matter, it is for the domestic legal system of each Member State to designate the courts and tribunals having jurisdiction and to lay down the procedural rules governing actions at law for safeguarding the rights which EU law confers on persons awaiting trial, provided that those procedural rules are not less favourable than those governing similar domestic actions (principle of equivalence), and are not framed in such a way as to render impossible in practice or excessively difficult the exercise of rights conferred by the legal order of the Union (principle of effectiveness). ( 42 )

64. Following the adoption of the Framework Decision, some Member States informed the General Secretariat of the Council, pursuant to Article 6(3) thereof, which authorities were competent under their national law to issue or execute EAWs, and Sweden included the police authority (the National Police Board or Rikspolisstyrelsen) in respect of EAWs for the execution of a sentence or a custodial measure.

65. These communications, however, neither prejudge nor constitute a precondition, in strictly legal terms, for the adaptation of the action of each Member State to the content of the Framework Decision. The provision authorises the Member States to designate or select, from among their judicial authorities, those which will be competent to receive or issue EAWs, but does not permit them to widen the concept of judicial authority by extending it to bodies which do not enjoy that status.

66. In that context, I do not think that it constitutes an excessive interference in the model chosen by each Member State for controlling the enforcement of judgments, in the exercise of its procedural autonomy, to require it (in line with the Council’s recommendation to the Swedish Government) to adopt the necessary measures so that, if it wishes to maintain the participation of the police authorities in the EAWs, it does so by making it subject to the mandate and control of a proper judicial authority which will supervise it. That modulation would not undermine the foundations of its domestic system and would facilitate its adjustment to the model for judicial cooperation established in this matter by the Framework Decision.

67. I therefore consider that a police authority whose powers are configured like those of the SNPB does not correspond to the concept of ‘judicial authority’ in Article 6(1) of the Framework Decision, and consequently an EAW issued by that authority cannot be classified as a ‘judicial decision’ within the meaning of Article 1(1) of the Framework Decision.

V – Temporal limitation of the effects of the judgment of the Court of Justice

68. Some of the governments which attended the hearing, and also the Commission, have suggested to the Court of Justice that, if it ultimately decides that the EAWs issued by the SNPB are not judicial decisions (which, logically and rightly, would prevent the judicial authority of the executing State from acting on them), it should limit the temporal effect of its judgment, so that it would merely be pro futuro.

69. In my view, that suggestion should not be accepted. As I have pointed out in another recent Opinion, ( 43 ) the general rule is that ‘the interpretation which, in the exercise of the jurisdiction conferred on it by Article 267 TFEU, [the Court of Justice] 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 entry into force. It follows that the rule as thus interpreted may, and must, be applied by the courts even to legal relationships which arose and were established before the judgment ruling on the request for interpretation, provided that in other respects the conditions for bringing a dispute relating to the application of that rule before the competent courts are satisfied’.

70. I do not believe that there are grounds for making an exception to that rule in this case, since: (a) The referring court has not formulated any question concerning the temporal scope of the judgment of the Court of Justice (strictly speaking, it has not even done so regarding its immediate consequences for the EAWs), confining its doubts to the matters already considered. (b) It is for the courts of each Member State to assess, on a case-by-case basis, whether the EAWs in progress meet the criteria which the Court of Justice lays down in its judgment, which may also affect pending situations, particularly as what is at stake is the deprivation of liberty of persons who are in detention pending their surrender. The solution in each case will depend on the variables which, at this time, are difficult to anticipate, among them, for example, the possibility of a rectification a posteriori of the ‘defect’ in the original EAW. (c) Finally, with regard to surrenders already carried out (the fate of which seems to be the key concern expressed by the Commission) it will again be for the national courts to evaluate the implications for these of the judgment of the Court of Justice, and in making that evaluation they will not be able to disregard the requirements inherent in the principle of res judicata.

VI – Conclusion

71. In the light of the foregoing considerations, I propose that the Court of Justice reply to the questions referred by the rechtbank Amsterdam (Court of First Instance, Amsterdam, Netherlands) as follows: (1) The expressions ‘judicial decision’ and ‘judicial authority’ which appear in Article 1(1) and Article 6(1), respectively, 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, are autonomous terms of EU law and are to be interpreted uniformly throughout the European Union. 2 An authority whose powers are configured like those of the Swedish National Police Board does not fulfil the criteria for being classified as a ‘judicial authority’, within the meaning of Article 6(1) of Framework Decision 2002/584, nor does the European arrest warrant which it issued in this case constitute a ‘judicial decision’, within the meaning of Article 1(1) of that Framework Decision.

( 1 ) Original language: Spanish.

( 2 ) Council Framework Decision 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 amending Framework Decisions 2002/584/JHA, 2005/214/JHA, 2006/783/JHA, 2008/909/JHA and 2008/947/JHA, thereby enhancing the procedural rights of persons and fostering the application of the principle of mutual recognition to decisions rendered in the absence of the person concerned at the trial (OJ 2009 L 81, p. 24) (‘Framework Decision’).

( 3 ) ‘EAW’.

( 4 ) Özçelik, C‑453/16 PPU, pending before this Court.

( 5 ) ‘Update of the Swedish notifications and statements in accordance with the Framework Decision on the European arrest warrant and the surrender procedure between Member States’ (Council document No 10400/09, p. 2).

( 6 ) The explanation of that government, which may be consulted in full in Council Document 14876/11 (Evaluation report on the fourth round of mutual evaluations ‘the practical application of the European Arrest Warrant and corresponding surrender procedures between Member States’ Follow-up to Report on Sweden), p. 2, states: ’Sweden would like to stress that when a judgment is final all subsequent decisions concerning the enforcement of the sentence in our legal system are taken by other authorities than the court. ... In Sweden we have three different enforcement authorities and in order to coordinate the issuing of the EAWs: in these cases, the International Police Cooperation Division (IPO) was designated as the issuing authority. ... To conclude, the existing system is the most effective and in line with our national procedure and no complaints has been put forward. Thus, Sweden has not found any convincing reason to change the current system.’

( 7 ) ‘SNPB’.

( 8 ) As described under heading (e) of the EAW, Mr Poltorak, on 4 May 2012, in Husargatan (Gothenburg, Sweden), attacked the victim and poked him in the eye with the end of a broom, as a consequence of which the victim suffered tearing of the ligament and of the nasolacrimal duct of the eye, which bleeds in the event of conjunctivitis, and also fracture of the lower and upper osseous walls of the eye socket. The offence was considered aggravated by the harshness and brutality with which the convicted man acted.

( 9 ) C‑241/15, EU:C:2016:385.

( 10 ) Although Article 1(1) of the Framework Decision does not refer to the law of the Member States, the close association of the term ‘judicial decision’ with the term ‘judicial authority’ argues in favour — according to the national court — of treating it in the same way.

( 11 ) Within the meaning of the case-law regarding the ‘acte clair’ in the judgment of 6 October 1982, CILFIT (C‑283/81, EU:C:1982:335).

( 12 ) According to the case-law commencing with the judgment of 27 March 1963, Da Costa en Schaake NV and Others (C‑28/62 to C‑30/62, EU:C:1963:6).

( 13 ) Proposal for a Council Framework Decision on the European arrest warrant and the surrender procedures between the Member States, presented by the Commission on 19 September 2001 (COM(2001) 522 final — CNS 2001/0215) OJ 2001 C 332 E, p. 305.

( 14 ) Judgment of 30 May 2013, F. (C‑168/13 PPU, EU:C:2013:358, paragraph 46).

( 15 ) Judgment of 1 June 2016, Bob-Dogi (C‑241/15, EU:C:2016:385, paragraph 57).

( 16 ) Judgment of 28 July 2016, J.Z. (C‑294/16 PPU, EU:C:2016:610, paragraph 35 and the case-law cited).

( 17 ) Judgment of 14 November 2013, Baláž (C‑60/12, EU:C:2013:733, paragraphs 24 to 32).

( 18 ) Judgment of 28 July 2016, J.Z. (C‑294/16 PPU, EU:C:2016:610, paragraph 37).

( 19 ) See, by analogy, the judgment of 30 June 2016, Toma (C‑205/15, EU:C:2016:499, paragraph 33).

( 20 ) The European Parliament has pointed out the differences in interpretation to which the expression ‘judicial authority’ in the Framework Decision gives rise, and it therefore adopted a Resolution, on 27 February 2014, with recommendations to the Commission on the review of the EAW, in which it criticised ‘the lack of a definition of the term “judicial authority” in Framework Decision 2002/584/JHA and other mutual recognition instruments which has led to a variation in practice between Member States, causing uncertainty, harm to mutual trust, and litigation’ (Procedure 2013/2019(INL). The European Parliament requested the Commission to submit ‘legislative proposals following the detailed recommendations set out in the Annex hereto and providing for … a procedure whereby a mutual recognition measure can, if necessary, be validated in the issuing Member State by a judge, court, investigating magistrate or public prosecutor, in order to overcome the differing interpretations of the term “judicial authority” …’.

( 21 ) As regards proportionality in connection with the EAW, I refer to the Opinion (with which I wholly agree) of Advocate General Bot in the case which led to the judgment of 5 April 2016, Aranyosi and Căldăraru (C‑404/15 and C‑659/15 PPU, EU:C:2016:140, point 137 et seq.), particularly with regard to the issuing judicial authority, points 145 to 155. See also Council Document 17195/1/10 REV 1, Revised version of the European handbook on how to issue a European Arrest Warrant, of 17 December 2010, p. 14, in which the issuing authorities are urged to carry out a proportionality test before issuing the EAW.

( 22 ) I do not deal in this Opinion, but in the Opinion in Özçelik, C‑453/16 PPU, pending before this Court, with the question of the extent to which the Public Prosecutor’s Office may be deemed to be a judicial authority in an interpretation of the Framework Decision.

( 23 ) COM(2001) 522 final; see footnote 13 of this Opinion.

( 24 ) The explanation of Article 3 of the Proposal states: ‘The procedure of the European arrest warrant is based on the principle of mutual recognition of court judgments. State-to-State relations are therefore substantially replaced by court-to-court relations between judicial authorities. The term “judicial authority” corresponds, as in the 1957 Convention (cf. Explanatory Report, Article 1), to the judicial authorities as such and the prosecution services, but not to the authorities of police force. The issuing judicial authority will be the judicial authority which has authority to issue the European arrest warrant in the procedural system of the Member State (Article 4).’

( 25 ) Judgment of 5 April 2016, Aranyosi and Căldăraru (C‑404/15 and 659/15 PPU, EU:C:2016:198, paragraph 75).

( 26 ) Judgment of 1 June 2016, Bob-Dogi (C‑241/15, EU:C:2016:385, paragraph 33 and the case-law cited).

( 27 ) See point 41 of this Opinion and the corresponding footnote.

( 28 ) Emphasis added. The explanatory memorandum accepted administrative intervention, in circumstances which are exhaustively listed: if, in the system of the Member State in question, an administrative authority has to decide whether a person enjoys immunity (Article 31); where there are significant humanitarian grounds justifying deferment of execution of the warrant (Article 38); or to examine the assurances given by another Member State that a sentence of life imprisonment will not be carried out (Article 37).

( 29 ) Judgment of 24 May 2016, Dworzecki (C‑108/16 PPU, EU:C:2016:346, paragraph 27 and the case-law cited).

( 30 ) Judgment of 30 May 2013, F. (C‑168/13 PPU, EU:C:2013:358, paragraph 46).

( 31 ) Article 31(1)(a) provided: ‘[Common action on judicial cooperation in criminal matters shall include:] facilitating and accelerating cooperation between competent ministries and judicial or equivalent authorities of the Member States, including, where appropriate, cooperation through Eurojust, in relation to proceedings and the enforcement of decisions’.

( 32 ) Article 82(1)(d) TFEU: ‘facilitate cooperation between judicial or equivalent authorities of the Member States in relation to proceedings in criminal matters and the enforcement of decisions’.

( 33 ) Both Article 30 TEU pre-Lisbon and, now, Articles 87 to 89 TFEU (inserted in Chapter 5 of Title V under the heading ‘Police Cooperation’) concern police cooperation, which may include relations between the Swedish police authorities and homonymous authorities of other Member States. On the other hand, the rules relating to the EAW, among other measures, are set out in Chapter 4 of the same title, under the heading ‘Judicial cooperation in criminal matters’.

( 34 ) Judgment of 16 April 2015, Parliament v Council (C‑540/13, EU:C:2015:224, paragraph 38 and the case-law cited).

( 35 ) Ibid., paragraph 44.

( 36 ) Successor of the SNPB.

( 37 ) International Police Cooperation Division (the acronym ‘IPO’ comes from the documents sent to the Court of Justice by the rechtbank Amsterdam (Court of First Instance, Amsterdam).

( 38 ) See point 13 of this Opinion.

( 39 ) Evaluation report on the fourth round of mutual evaluations ‘the practical application of the European Arrest Warrant and corresponding surrender procedures between Member States’ (Council Document No 9927/2/08 REV 2), p. 46.

( 40 ) See point 13 and footnote 5 of this Opinion.

( 41 ) Judgment of 30 May 2013, F. (C‑168/13 PPU, EU:C:2013:358, paragraph 46).

( 42 ) Judgments of 6 October 2015, Târșia (C‑69/14, EU:C:2015:662, paragraph 27), and of 15 September 1998, Ansaldo Energiaand Others (C‑279/96, C‑280/96 and C‑281/96, EU:C:1998:403, paragraph 16), which refers to the pioneering judgments of 16 December 1976, Rewe (33/76, EU:C:1976:188, paragraph 5), and Comet (45/76, EU:C:1976:191, paragraphs 13 and 16), and to the judgment of 14 December 1995, Peterbroeck (C‑312/93, EU:C:1995:437, paragraph 12).

( 43 ) Delivered on 13 July 2016 in Eco-Emballages and Melitta France and Others, C‑313/15 and C‑530/15, EU:C:2016:551, point 56.