CELEX: 62015CC0640
Language: en
Date: 2016-10-27 00:00:00
Title: Opinion of Advocate General Bobek delivered on 27 October 2016.

OPINION OF ADVOCATE GENERAL
BOBEK
delivered on 27 October 2016 (1)

Case C‑640/15

Minister for Justice and Equality

v

Tomas Vilkas

(Request for a preliminary ruling from the Court of Appeal (Ireland))
(European arrest warrant — Time limits for surrender of the requested person — Surrender prevented by circumstances beyond the control of any of the Member States — Force majeure — Personal behaviour — Possibility to agree on a new surrender date on more than one occasion — Conditions — Article 6 of the Charter of Fundamental Rights of the European Union — New, reoccurring or persisting circumstances beyond the control of the Member States)

1.        In Midnight Run, a film released in 1988, Robert De Niro plays a bounty hunter who is tasked with bringing a former Mafia accountant who skipped bail back to Los Angeles. Having taken custody of him in New York they board a commercial flight. However before take-off the accountant becomes agitated and violent. The pilot asks them to leave the plane. They are forced to take an alternative long cross-country trip to Los Angeles, with the film poster somewhat surprisingly promising that ‘this could be the beginning of a beautiful friendship’. (2)

2.        For Mr Vilkas, the respondent in the present case, the film analogy, if it can be made at all, appears to have ended at the first stage: exclusion from a commercial flight because of violence during the surrender procedure from one Member State to another. On the other hand, it seems that that particular scene has been shot twice. 

3.        Two European arrest warrants (EAWs) were issued against the respondent by the Lithuanian authorities. The surrender was agreed to by the executing judicial authority in Ireland. It was scheduled to take place on a commercial flight. On the agreed date, however, the respondent became agitated, aggressive, and refused to board the plane. The pilot refused to allow him on-board. Two weeks later a second attempt at surrender failed, due to a very similar series of events. The surrender was again prevented by the aggressive behaviour of Mr Vilkas.

4.        Against this background, the Court of Appeal (Ireland), the referring court, seeks guidance on the interpretation of Article 23 of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States. (3) The referring court asks the Court whether Article 23 of the Framework Decision permits the agreement of a date for the surrender of the requested person on more than one occasion and, if so, under what circumstances. The Court is thus invited to analyse whether Article 23(3) may be applied several times and what situations qualify as ‘circumstances beyond the control’ of any of the Member States pursuant to that provision.
I –  Legal framework

A –    EU law

5.        Article 23 of the Framework Decision, entitled ‘Time limits for surrender of the person’, reads as follows: 
‘1. The person requested shall be surrendered as soon as possible on a date agreed between the authorities concerned. 
2. He or she shall be surrendered no later than 10 days after the final decision on the execution of the European arrest warrant. 
3. If the surrender of the requested person within the period laid down in paragraph 2 is prevented by circumstances beyond the control of any of the Member States, the executing and issuing judicial authorities shall immediately contact each other and agree on a new surrender date. In that event, the surrender shall take place within 10 days of the new date thus agreed. 
4. The surrender may exceptionally be temporarily postponed for serious humanitarian reasons, for example if there are substantial grounds for believing that it would manifestly endanger the requested person’s life or health. The execution of the European arrest warrant shall take place as soon as these grounds have ceased to exist. The executing judicial authority shall immediately inform the issuing judicial authority and agree on a new surrender date. In that event, the surrender shall take place within 10 days of the new date thus agreed.
5. Upon expiry of the time limits referred to in paragraphs 2 to 4, if the person is still being held in custody he shall be released.’

B –    Irish law 

6.        The time limits for surrender are regulated by section 16(3) to (5A) of the European Arrest Warrant Act 2003, which, according to the requesting jurisdiction, transposes Article 23 of the Framework Decision. The relevant provisions read as follows: 
‘Section 16
…
(3) An order under subsection (1) or (2) shall, subject to section 18, take effect upon the expiration of 15 days beginning on the date of the making of the order or such earlier date as the High Court, on the application of the Central Authority in the State and with the consent of the person to whom the order applies, directs.
(3A) Subject to subsections (5) and (6), a person to whom an order for the time being in force under subsection (1) or (2) applies shall be surrendered to the issuing state concerned not later than 10 days after the order takes effect in accordance with subsection (3).
(4) Where the High Court makes an order under subsection (1) or (2), it shall, unless it orders postponement of surrender under section 18—
…
(b)      order that that person be detained in a prison … for a period not exceeding 25 days pending the carrying out of the terms of the order, and
(c)       direct that the person be again brought before the High Court—
(i)       if he or she is not surrendered before the expiration of the time for surrender under subsection (3A), as soon as practicable after that expiration, or
(ii)      if it appears to the Central Authority in the State that, because of circumstances beyond the control of the State or the issuing state concerned, that person will not be surrendered on the expiration referred to in subparagraph (i), before that expiration.
(5) Where a person is brought before the High Court pursuant to subsection (4)(c), the High Court shall—
(a)       if satisfied that, because of circumstances beyond the control of the State or the issuing state concerned, the person was not surrendered within the time for surrender under subsection (3A) or, as the case may be, will not be so surrendered—
(i)       with the agreement of the issuing judicial authority, fix a new date for the surrender of the person, and
(ii)       order that the person be detained in a prison … for a period not exceeding 10 days after the date fixed under subparagraph (i), pending the surrender,
and
(b)      in any other case, order that the person be discharged.
(5A) A person to whom an order for the time being in force under subsection (5)(a) applies—
(a)      shall be surrendered to the issuing state concerned not later than 10 days after the order takes effect, or
(b)      if surrender under paragraph (a) has not been effected, shall be discharged.
…’
II –  Facts, preliminary questions and procedure before the Court

7.        On 9 July 2015, the High Court (Ireland), acting in its capacity as executing judicial authority, issued two orders for the surrender of Mr Vilkas (the respondent) to the Republic of Lithuania. Those orders were adopted to execute two European arrest warrants issued by a Lithuanian court (the issuing judicial authority). The orders took effect, in accordance with national procedural law, on 24 July 2015. 

8.        Section 16(3A) of the European Arrest Warrant Act 2003 provides that the Irish Central Authority (the Minister for Justice and Equality, and in this case ‘the appellant’) is required to surrender the respondent to the issuing state ‘not later than 10 days’ after the orders take effect. In the present case this meant not later than 3 August 2015. Arrangements were made together with the Lithuanian authorities to carry out the surrender on 31 July 2015 on a commercial flight. However, on that date, the respondent refused to board the plane. He became agitated and aggressive to such an extent that the pilot of the flight refused to let him on-board.

9.        New arrangements were made for the respondent’s surrender. The High Court set the date of 6 August 2015, and remanded him in custody. On 13 August 2015 a second surrender attempt was made, again on a commercial flight. Once again the respondent’s behaviour prevented his surrender.

10.       The appellant immediately contacted the Lithuanian authorities to agree on a new date for surrender. This time it was proposed that, given the past behaviour of the respondent, he would be transported by sea to mainland Europe and then overland to Lithuania. The arrangements for this type of transportation were more complicated so the new surrender date was 15 September 2015, subject to approval by the High Court. 

11.      On 14 August 2015, the High Court determined, according to its interpretation of section 16(3) to (5A) of the European Arrest Warrant Act 2003, that it did not have jurisdiction to hear an application to fix a new surrender date. The application was refused and the respondent was released from custody. The Irish Central Authority appealed this decision before the referring court, the Court of Appeal (Ireland). The referring court finds that the assistance of the Court is necessary for the clarification of section 16(3) to (5A) of the European Arrest Warrant Act 2003, as those provisions transpose Article 23 of the Framework Decision. 

12.      In those circumstances, the Court of Appeal (Ireland) stayed the proceedings and referred the following questions to the Court:
‘(1)      Does Article 23 of the Framework Decision contemplate or and allow for the agreement of a new surrender date on more than one occasion?
(2)      If so, does it do so in any, or all, of the following situations: i.e., where the surrender of the requested person within the period laid down in paragraph 2 has already been prevented by circumstances beyond the control of any of the Member States, leading to the agreement of a new surrender date, and such circumstances
(i)      are found to be ongoing; or
(ii)      having ceased, are found to be reoccurring; or
(iii) having ceased, different such circumstances have arisen which have prevented, or are likely to prevent, surrender of the requested person within the required period referable to the said new surrender date?’

13.      By order of 24 November 2015, the referring court requested the Court to apply the expedited procedure to the present case pursuant to Article 105(1) of the Court’s Rules of Procedure. That request was rejected by order of the President of the Court dated 23 December 2015. (4)

14.      Written observations have been submitted by Mr Vilkas, the Irish, French, Lithuanian, Austrian, Polish and UK Governments, and the Commission. Mr Vilkas, the Irish, Lithuanian and UK Governments, as well as the Commission, presented oral argument at the hearing of 20 July 2016. 
III –  Analysis

15.      By its first question, the Court of Appeal (Ireland) asks the Court whether Article 23 of the Framework Decision allows the agreement of a new surrender date on more than one occasion. The second question focuses on the interpretation of Article 23(3) of the Framework Decision and seeks the interpretation of ‘circumstances beyond the control of any of the Member States’. 

A –    First question: agreement on a new surrender date on more than one occasion

16.      The referring court has posed the first question generally with regard to Article 23 of the Framework Decision. Two paragraphs of that provision — Article 23(3) and (4) of the Framework Decision — allow a new surrender date to be agreed under specific circumstances once the period of 10 days after the final decision on the execution of the EAW under Article 23(2) has expired. Article 23(3) provides the possibility to agree on a new surrender date when surrender within the period laid down in Article 23(2) has been prevented by circumstances beyond the control of the Member States. That provision is pertinent for the present case. 

17.      In the first part of this Opinion, I shall examine Article 23(3) from a textual, systematic and teleological perspective. As the interpretation of that provision has a direct impact on the possibility to keep the requested person in custody, I shall subsequently examine the compatibility of the proposed approach with the fundamental right to liberty as laid down in Article 6 of the Charter of Fundamental Rights of the European Union (‘the Charter’). 
1.      Textual interpretation of Article 23(3)

18.      According to the respondent, the clear wording of Article 23 prevents the setting of a new surrender date on more than one occasion.  The Commission and all the Member States that submitted observations hold a different view.

19.      First, it should be stressed that the wording of Article 23 of the Framework Decision does not limit, in any way, the number of surrender attempts. The text of that provision, and also its title, refer only to time limits for the effective surrender. 

20.      Thus, considering the mere wording of the provision, the logical conclusion is that there is nothing in Article 23 that prevents more than one surrender attempt within the maximum time limits established in paragraphs 2 to 4, provided this is practicably possible. 

21.      Second, contrary to what the respondent contends, the reference to the ‘period laid down in paragraph 2’ in Article 23(3) does not clearly exclude the possibility to agree a new surrender date on more than one occasion. 

22.       The respondent contends that the words ‘the period laid down in paragraph 2’ refer to the fixed period of time starting on the date of the final decision on the execution of the EAW. As a consequence, Article 23(3) would only allow one new surrender date to be fixed.

23.      I do not share this view. As the Commission and the Polish Government have noted, the reference to ‘the period laid down in paragraph 2’ in Article 23(3), far from being unambiguous, can be understood in different ways.

24.      The Commission has submitted that the words ‘the period laid down in paragraph 2’ can be interpreted as referring to the duration of that period: 10 days. That approach, supported by the Irish Government, entails that after the first occurrence of the ‘circumstances beyond the control of any of the Member States’, the agreed new surrender date would trigger a new period of 10 days. If new ‘circumstances beyond the control …’ were to occur within that period of 10 days, it would be possible for an agreement on a new surrender date. 

25.      A further interpretation can be envisaged: Article 23(3) of the Framework Decision offers an exception if the surrender cannot be carried out within the period set out in paragraph 2. This means that any new surrender date resulting from the repeated application of Article 23(3) would also meet the condition that surrender had been prevented within the initial period ‘laid down in paragraph 2’. 

26.      In my opinion, the reference in Article 23(3) of the Framework Decision to the ‘period laid down in paragraph 2’ should be understood in line with the general approach of Article 23. As indicated, that provision regulates time limits, not the number of surrender attempts. 

27.      In any case, the alternative interpretations put forward by the respondent and the Commission show that, even though the wording of Article 23(3) strongly suggests that the reference to the ‘period laid down in paragraph 2’ refers to time limits rather than to the number of attempts, the wording of this provision is not conclusive: examination of the context and purpose of that provision is therefore necessary. 
2.      Systematic and teleological interpretation 

28.      Article 23(3) is an exception within Article 23. Its purpose is to address those specific and limited situations where surrender within the ‘normal’ time limits laid down in Article 23(2) has been prevented by ‘circumstances beyond the control of any of the Member States’. That enables derogation from the otherwise tight time limits in a very narrow set of circumstances that, as with any other exception in law, has to be interpreted strictly. 

29.      Article 23(3) of the Framework Decision thus acts as a safeguard that acknowledges the complexity of surrender procedures, involving by definition complex international travel arrangements. Similar or equivalent exceptions are traditionally present in extradition treaties. (5) Article 23(3) seeks therefore to avoid the compromising of an EAW, the execution of which has already been agreed to by the executing judicial authority, by unusual or fortuitous events, external to the regular course of procedure. Ultimately, Article 23(3) aims to prevent impunity ‘by chance’. (6)

30.      Thus, in agreement with the Lithuanian Government, I think that the exceptional nature of the circumstances which activate Article 23(3) itself is an argument against a preconceived limitation of the number of permissible agreements on a new surrender date. Otherwise, the risk of rather absurd results arises. To give an extreme example: after a failed attempt to surrender due to the explosion of a volcano, and the ensuing ban on air travel, agreement on a second attempt could be frustrated because of the occurrence of an earthquake. 

31.      Moreover, remaining at the systematic level, it ought to be stressed that Article 23 is placed at the very end of a rather complex surrender procedure provided for in Chapter 2 of the Framework Decision. It comes into play after all the other necessary steps, including the decision on the execution of the EAW pursuant to Article 15, have already been taken by the executing judicial authority. In the event of a repetition of ‘circumstances beyond the control …’, an interpretation preventing a new surrender date on more than one occasion under Article 23(3) would hinder the success of the entire procedure. 

32.      The Commission and the Member States that have submitted observations have also strongly relied on the general objectives of the Framework Decision. The case-law of the Court highlights that this instrument aims to facilitate and accelerate judicial cooperation through the establishment of a new, simplified and more effective system. That is with a view to furthering the more general objective set for the European Union ‘to become an area of freedom, security and justice founded on the high level of confidence which should exist between the Member States’. (7) The objective of accelerating judicial cooperation is particularly evident in the treatment of time limits for adopting decisions relating to an EAW (8) as well as in the time limits for effective surrender. 

33.      Following the case-law of the Court, when different interpretations are possible, the one which ensures that the provision and the legal instrument at issue retain their effectiveness has to be given preference. (9) An interpretation of Article 23(3) of the Framework Decision, allowing agreement of a new surrender date on more than one occasion, if the conditions of that provision are fulfilled, undoubtedly furthers the objectives of the Framework Decision to facilitate and accelerate judicial cooperation. 
3.      Interim conclusion

34.      For these reasons, it is my opinion that Article 23(3) of the Framework Decision ought to be interpreted as allowing the agreement of a new surrender date on more than one occasion.

35.      It is clear that this interpretation has an impact on the possibility to keep the requested person in custody. The ongoing application of Article 23(3) of the Framework Decision prevents the triggering of Article 23(5), which obliges the release of the requested person, if in custody. Moreover, as rightly submitted by the Commission at the hearing and contrary to what the French and Lithuanian Governments purport, the obligation to release the requested person under Article 23(5) amounts to genuine and unconditional release, as opposed to ‘provisional release’ under Article 12 of the Framework Decision. As a consequence, the obligation arising from Article 12 of the Framework Decision to take necessary measures to prevent the requested person from absconding cannot persist, on the sole basis of the EAW, once Article 23(5) is triggered. 

36.      On a general level, I agree with the respondent that the provisions of the Framework Decision must be construed in respect of the right to liberty contained in Article 6 of the Charter. (10) As provided for in Article 1(3) of the Framework Decision and confirmed by the Court, that instrument cannot have the effect of modifying the obligation to respect the fundamental rights enshrined in the Charter. (11)

37.      However, I concur with the submissions of the Irish and United Kingdom Governments that interpreting Article 23(3) of the Framework Decision as allowing for the agreement for a new surrender date on more than one occasion does not in itself entail a result contrary to Article 6 of the Charter. The reason is simple: Article 23(3) neither mandates nor regulates detention. (12) The Framework Decision has consciously refrained from interfering with the power of the Member States to regulate pre-surrender detention. The surrender is not contingent upon the requested person being held in custody. This is confirmed by Article 12 of the Framework Decision which establishes that when a person is arrested on the basis of an EAW, the executing judicial authority shall take a decision on whether the requested person should remain in custody. Moreover, even if during the surrender procedure, the executing judicial authority has the obligation to take the necessary measures to ensure that the material conditions for effective surrender remain fulfilled, (13) the Framework Decision does not impose custody nor regulate its length or conditions, which remain subject to national law. (14)
4.      The limits 

38.      However, the fact that the Framework Decision itself does not regulate detention does not mean that there are no limits attached to the potential rerun of Article 23(3) of the Framework Decision. Quite the contrary: when applying Article 23(3), Member States have to comply with two types of limits: first, those internal to the Framework Decision; and second, those external to the Framework Decision, flowing from the fundamental right to liberty and security laid down in Article 6 of the Charter. 
a)      Limits established by the Framework Decision

39.      A number of limitations are contained within the Framework Decision itself. 

40.      First, a rerun of Article 23(3) is only permissible under circumstances beyond the control of the Member States, interpreted strictly, as I will put forward in response to the second preliminary question.

41.      Second, Member States remain subject at all times to the obligation of Article 23(1), to surrender the requested person as soon as possible. 

42.      Third, the possibility to rerun Article 23(3) continues to be constrained by strict time limits. The executing judicial authority is under the obligation to contact the issuing judicial authority immediately and agree on a new surrender date, after which the 10-day period applies again. 

43.      Finally, and most importantly, falling short of any of the time limits, whether under Article 23(2), or under Article 23(3), will immediately trigger Article 23(5), which mandates the release of the requested person from custody. 

44.      As a result, Article 23(3), by establishing strict time limits in order to accelerate judicial cooperation, contains an obligation of diligence. This furthers compliance with Article 6 of the Charter interpreted in conjunction with Article 5(1)(f) of the European Convention of Human Rights (ECHR). Time limits, as the Proposal of the Commission already noted, do not only seek the acceleration of procedures for the sake of the effectiveness of judicial cooperation and mutual recognition, but are also connected, with the litigants’ right to have judgment within a reasonable time. (15) As the Polish Government has argued, Article 23 also seeks to protect the requested person from being held in custody for an excessively long period as a result of delay in the surrender procedure.
b)      Limits arising from fundamental rights obligations

45.      When taking a decision on detention in order to comply with the obligations arising from the Framework Decision, Member States are acting within the scope of application of EU law. They are therefore subject to the Charter pursuant to Article 51(1) thereof.

46.      In particular, Member States are bound to respect the right to liberty and security laid down in Article 6 of the Charter. According to Article 52(3) of the Charter, in so far as this instrument contains rights which correspond to the rights guaranteed by the ECHR, their meaning and scope shall be the same as those laid down by the ECHR. (16) The explanations to the Charter state that Article 6 of the Charter corresponds to Article 5 of the ECHR. (17) Under Article 5(1) ECHR, no one shall be deprived of his liberty save in the specific cases enumerated therein, and in accordance with a procedure prescribed by law. 

47.      Despite differences with traditional extradition systems, (18) which the Framework Decision aims at overcoming, (19) it is accepted that the standard of protection applicable to pre-surrender detention under the EAW is that of Article 5(1)(f) of the ECHR. (20) That provision refers to ‘the lawful arrest or detention of … a person against whom action is being taken with a view to … extradition’. 

48.      The case-law of the European Court of Human Rights (ECtHR) on Article 5(1)(f) of the ECHR outlines essential requirements which are relevant for pre-surrender detention under Article 23 of the Framework Decision. First, detention is only justified if the procedure is carried out with ‘due diligence’. Second, detention must be ‘lawful’ including the requirements relating to the ‘quality of the law’. Third, according to Article 52(1) of the Charter, limitations to fundamental rights — such as the deprivation of liberty — shall comply with the principle of proportionality. These three limits will now be examined in turn.

49.      The first limit mostly impacts the overall duration of pre-surrender detention. If the procedure is not carried out with due diligence, the detention ceases to be justified. (21) The executing judicial authority may decide to keep the person concerned in custody only to the extent that the surrender procedure is ‘carried out in a sufficiently diligent manner and in so far as, consequently, the duration of the detention is not excessive’. (22) As stated above in point 44 of this Opinion, the time limits imposed by Article 23 of the Framework Decision buttress the requirement of due diligence. 

50.      Under the second limit, any deprivation of liberty according to Article 5(1)(f) of the ECHR must be ‘lawful’. This entails that detention should be in compliance with ‘a procedure prescribed by law’, as provided for by Article 5(1) of the ECHR. (23) It must comply with the substantive and procedural rules of national law, and should be in keeping with the purpose of protecting the individual from arbitrariness. (24) To assess the ‘lawfulness’ of detention, the general principle of legal certainty plays a paramount role. The requirement of ‘lawfulness’ therefore also relates to the ‘quality of the law’: ‘it is therefore essential that the conditions for deprivation of liberty under domestic law be clearly defined and that the law itself be foreseeable in its application …’. (25)

51.      Considering this, it is noted that Article 23(3) offers a legal framework to justify continued pre-surrender detention. However, that provision does not define the specific conditions for the deprivation of liberty. 

52.      In line with the arguments put forward by Advocate General Sharpston in N., the examination of whether the limitations to the right to liberty comply with the conditions of lawfulness and ‘quality of the law’ must take into account not only the provision of EU law at issue, but also of national law. (26) Indeed, when assessing the requirement of ‘lawfulness’, the ECtHR has accepted that instruments of international cooperation may serve as a legal basis for detention with a view to extradition. However, when addressing the criteria of ‘quality of the law’ (the need for accessibility, precision and foreseeability), the ECtHR has found that the lack of a comprehensive regulation of the procedure to be followed in those instruments made it necessary to examine domestic law. (27)

53.      This has a very concrete consequence for a rerun of Article 23(3) of the Framework Decision. The requirement of the ‘quality of the law’ means that a measure of detention can only be lawfully continued on the basis of repeated ‘circumstances beyond the control of any of the Member States’ if the combination between the provisions of the Framework Decision and the implementing national provisions complies with the requirements of accessibility, precision and foreseeability. 

54.      For the third limit, it must be borne in mind that the executing judicial authority is also bound by the requirement of proportionality. As the Court has stated, Article 52(1) of the Charter prescribes that an EAW cannot justify continued detention of the requested person without any temporal limit. (28) As a result, when adopting the decision to continue detention for the purposes of the application of Article 23(3), similarly to what the Court declared in Lanigan, the executing judicial authority is required to carry out a concrete review of the situation, taking into account all the relevant factors in order to evaluate the justification of the duration of detention, such as the likely or given sentence in relation to the acts on the basis of the EAW, the risk of absconding, the actions of the competent authorities and, eventually, ‘the contribution of the requested person to that duration’. (29)

55.      It is for the referring court to verify whether the national provisions regarding pre-surrender detention, in conjunction with Article 23(3) of the Framework Decision, and their application in the present case, comply with those three requirements.
5.      Response to the first question

56.      In my view, 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. 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 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.

B –    Second question

57.      If the first question is answered positively, the second question of the referring court seeks to establish the circumstances in which a new surrender date under Article 23(3) can be agreed on more than one occasion. The referring court sets out different possibilities: where the ‘circumstances beyond the control …’ are found to be ongoing; or having ceased, are found to be reoccurring; or when different circumstances have arisen which have prevented, or are likely to prevent, surrender of the requested person within the required period.

58.      The common and preliminary point to all of these scenarios is the presence of ‘circumstances beyond the control of any of the Member States’. In this part of the Opinion, I shall therefore, first, analyse that notion. Then, I shall examine whether personal behaviour can be considered a ‘circumstance beyond the control’ of any of the Member States. Third, I shall place that notion in the context of a continuing, reoccurring or new impediment to surrender under Article 23(3). 
1.      ‘Circumstances beyond the control of any of the Member States’ or ‘force majeure’?

59.      The wording of Article 23(3) differs across the various linguistic versions of the Framework Decision. In English and in the majority of linguistic versions, that provision refers to ‘circumstances beyond the control’ of any of the Member States. (30) Other linguistic versions refer to the notion of force majeure. (31)

60.      That divergence is not without consequence. As defined by the settled case-law of the Court in various contexts, force majeure refers to unusual and unforeseeable circumstances that are beyond the control of the party by whom it is pleaded and the consequences of which could not have been avoided even if due care had been exercised. (32) By contrast, ‘circumstances beyond the control’ may be said to refer only to one of the elements of the definition of force majeure. As such, it forms a logical subset of force majeure. It would therefore cover a wider range of situations. (33)

61.      However, the examination of the travaux préparatoires shows that, as the Lithuanian Government has submitted, the notion of ‘circumstances beyond control’ in the sense of Article 23(3) was meant to correspond to the traditional concept of force majeure as interpreted by the Court.

62.      The English version of the draft of Article 23(3) contained in the original Commission’s Proposal referred to ‘circumstances beyond the control’ (however, only of the executing Member State). (34) The explanatory memorandum accompanying the Commission’s Proposal referred, however, to the concept of force majeure. That memorandum further explained that the wording of paragraphs 2 and 3 of Article 23 was inspired by Article 11 of the 1995 Convention. (35) The wording of that provision in the clear majority of authentic languages refers to the notion of force majeure. (36)

63.      The Commission’s Proposal itself referred to the explanatory report of the 1995 Convention, according to which the concept of force majeure should be interpreted strictly. (37) The requirement of strict interpretation also follows from the fact that Article 23(3) is an exception to the normal operation of the surrender procedure (38) and may have an impact on the deprivation of liberty of the requested person. 

64.      In short, in my point of view, the notions of ‘circumstances beyond the control’ and ‘force majeure’ should be considered as equivalent for the purposes of Article 23(3) of the Framework Decision. 
2.      Force majeure and personal behaviour in the context of Article 23(3) of the Framework Decision

65.      In various contexts, the Court has found that force majeure is not limited to absolute impossibility. (39) It has identified two essential elements of force majeure that are relevant for the interpretation of that notion in the context of the Framework Decision. First, there is an objective element which relates to the nature of the circumstances: circumstances should be abnormal, unforeseeable, and extraneous to the person pleading this exception. Second, there is a subjective element: the obligation ‘to guard against the consequences of the abnormal event by taking appropriate steps without making unreasonable sacrifices’. (40)

66.      The assessment of those two elements is, however, context-dependent. It might differ in the various areas of EU law. (41)

67.      Regard must be had therefore to the specific context of the Framework Decision. That instrument operates in the field of judicial cooperation in criminal matters with the aim to accelerate and simplify surrender procedures. For those purposes, the strict time limits have to be observed. Speed and diligence of the authorities are therefore paramount at the stage of surrender. Those reasons, in conjunction with the exceptional nature of Article 23(3) of the Framework Decision and with its impact on personal freedom, have as a consequence a strict and rather narrow assessment of these elements.

68.      Concerning the first element of force majeure, the behaviour of the requested person can be considered as a ‘circumstance beyond the control …’ in the sense of Article 23(3) if it cannot be foreseen and is external to the control of the Member State alleging them. Aggressive behaviour at the time of surrender may therefore be considered as an unforeseen and extraneous event only if the factual elements at the disposal of the authorities in no way hinted at such a scenario occurring. When assessing the likelihood of such a scenario, due consideration must be given by the national authorities to the specific factual background of each individual case, including considerations such as: the crimes for which the person is requested or has been convicted; behaviour during detention; previous records; and any other elements related to his background that may emerge from the national file. 

69.      The Commission has submitted that authorities have to rely in many cases on private companies as intermediaries for transport: the fact that commercial air carriers can refuse to let a violent person on-board should therefore be considered, to a large extent, beyond the control of authorities. 

70.      I agree that such an occurrence may be seen as being beyond the (physical) control of the Member States. However, the reaction of a pilot of a commercial air carrier in the case of agitated and/or aggressive behaviour of a passenger can hardly be seen as an unforeseeable event. On the contrary, as a matter of fact, and given the existence of well-known safety regulations and protocols for such events, such a reaction from a pilot is rather predictable. 

71.      This proposition does not preclude the fact that sudden, unexpected violent behaviour of the requested person may in itself satisfy the first element of the definition of force majeure. It does preclude, however, the claim that the natural and foreseeable reaction of a pilot faced with such an event is in itself force majeure. After all, the choice of the mode of transportation belongs to the Member States. And so does the responsibility for having made such a choice. 

72.      Moving on to the second element, it must be noted that in order to comply with the requirement of having exercised ‘all due care’ to avoid the surrender being impeded, the diligence expected of the authorities of the Member States is particularly heightened when they are operating in the field of judicial cooperation in criminal matters, even more so at the delicate moment of the effective surrender. The authorities in charge of surrender in the Member States should make every reasonable effort to guarantee that the person is effectively surrendered. On consideration of the profile of the requested person, contingency plans may be necessary.

73.       In the enacting of such due care, the efforts to effectively surrender have to be proportionate to the particular situation of the requested person so as not to violate Article 4 of the Charter. As the Irish Government has argued, following the case-law of the ECtHR, in respect of a person deprived of liberty, ‘any recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is, in principle, an infringement of the right set forth in Article 3 of the Convention’. (42)

74.      However, the requirement to respect fundamental rights standards during the surrender procedure, which forms part of the ordinary responsibilities of the authorities, cannot be relied upon in order to over-stretch the notion of force majeure. The requirements of compliance of fundamental rights can only offer a support for the position of the Member State pleading force majeure when, having taken all the measures required by due care, surrender was prevented by the unforeseeable behaviour of the requested person, according to the assessment referred to in point 65 of this Opinion. 
3.      Continuing, reoccurring, or new ‘circumstances beyond the control …’

75.      In the light of the previous analysis, the aggressive behaviour of the requested person could, if the requirements of force majeure are met, justify recourse to Article 23(3) of the Framework Decision. However, the possibility to acknowledge the existence of circumstances ‘beyond the control …’ of the Member States in order to rerun Article 23(3) on the basis of a repeated episode of aggressive behaviour — which is the aim of the second preliminary question posed by the referring court — necessitates further examination. 

76.      The Commission and the Irish and United Kingdom Governments consider that ‘circumstances beyond the control …’ in the sense of Article 23(3) of the Framework Decision exist in all of the three situations enumerated by the referring court in its second question — continuing, reoccurring or new ‘circumstances beyond the control …’. 

77.      In my opinion, however, a more nuanced approach has to be adopted. The three kinds of situations put forward by the referring court in abstract terms may give rise to a new occurrence of ‘circumstances beyond the control …’ only when both elements of force majeure described above, at point 65, are present. Whether that is the case will have to be assessed by national courts in the context of the circumstances of the case. However, some general considerations can be offered in order to assist national jurisdictions in their task.

78.      With regard to the first situation, namely continuing circumstances, I believe that the Lithuanian Government is right when it affirms that circumstances continuing during the newly set period should not, in principle, be treated as force majeure, because such circumstances would actually be foreseeable due to their continuity. If the same type of extraordinary circumstances persists, no diligent national authority exercising due care is likely to schedule another surrender date. 

79.      The second situation — in the case of ‘circumstances beyond control’ having ceased, but then reoccurring — also lacks the element of unforeseeability. This is unless that reoccurrence would be unforeseeable in itself, or because, for example, the situation has reappeared with an intensity or under circumstances which substantively alter the situation with regard to the first event. 

80.      With regard to the subjective element of force majeure, in both cases, where the circumstances are continuing or reoccurring, the fact that a similar situation has already happened naturally raises the threshold of the ‘due diligence’ to be deployed by national authorities. 

81.      In 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.