Ignacio Pedro Santesteban Goicoechea.
Date: 2008-08-12
36. It should be noted, however, that, in accordance with Article 46(b) EU, the provisions of the EC and EAEC Treaties concerning the powers of the Court of Justice and the exercise of those powers, including the provisions of Article 234 EC, apply to the provisions of Title VI of the EU Treaty under the conditions laid down by Article 35 EU. It follows that the system under Article 234 EC applies to the Court’s jurisdiction to give preliminary rulings under Article 35 EU, subject to the conditions laid down by that provision (see, to that effect, Case C‑105/03 Pupino  [2005] ECR I‑5285, paragraphs 19 and 28, and Case C‑467/05 Dell’Orto  [2007] ECR I‑5557, paragraph 34).
38. In those circumstances, the fact that the order for reference does not mention Article 35 EU but refers to Article 234 EC cannot of itself make the reference for a preliminary ruling inadmissible. This conclusion is reinforced by the fact that the EU Treaty neither expressly nor by implication lays down the form in which the national court must present its reference for a preliminary ruling (see Dell’Orto , paragraph 36).
40. According to settled case-law, in order to determine whether a body making a reference is such a court or tribunal, which is a question governed by Community law alone, the Court takes account of a number of factors, such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent (see inter alia Case C‑53/03 Syfait and Others  [2005] ECR I‑4609, paragraph 29 and the case-law cited). Moreover, a national court may refer a question to the Court only if there is a case pending before it and if it is called on to give judgment in proceedings intended to lead to a decision of a judicial nature (see inter alia Syfait and Others , paragraph 29, and Case C‑96/04 Standesamt Stadt Niebüll  [2006] ECR I‑3561, paragraph 13).
46. It must be recalled that, under Article 35 EU, it is for the national court or tribunal, not the parties to the main proceedings, to bring a matter before the Court of Justice. The right to determine the questions to be put to the Court thus devolves on the national court alone and the parties may not change their tenor (see inter alia, with reference to Article 234 EC, Case 44/65 Singer  [1965] ECR 965, at p. 970, and Case C‑412/96 Kainuun Liikenne and Pohjolan Liikenne  [1998] ECR I‑5141, paragraph 23).
47. Moreover, to answer the question formulated by the defendant in the main proceedings referred to in paragraph 43 above would be incompatible with the function given to the Court by Article 35 EU and with its duty to ensure that the governments of the Member States and the parties concerned are given the opportunity to submit observations in accordance with Article 23 of the Statute of the Court of Justice, bearing in mind that under that provision only the order of the referring court is notified to the interested parties (see inter alia, with reference to Article 234 EC, Case C-352/95 Phytheron International  [1997] ECR I‑1729, paragraph 14, and Kainuun Liikenne and Pohjolan Liikenne , paragraph 24).
The first question
51. On this point, it is apparent from recitals 5, 7 and 11 in the preamble to the Framework Decision that, in order to eliminate the complexity and potential for delay inherent in the extradition procedures then applicable, it aims to replace the system of multilateral extradition between Member States based on the European Convention on Extradition of 13 December 1957 by a system of surrender between judicial authorities. Recital 11 thus states that ‘[i]n relations between Member States, the European arrest warrant should replace all the previous instruments concerning extradition’.
55. However, that provision cannot refer to the conventions mentioned in Article 31(1) of the Framework Decision, since the objective of the decision is precisely to replace them by a simpler and more effective system. As the Commission noted in its observations and the Spanish Government pointed out at the hearing, Article 31(2) of the Framework Decision refers to other conventions by which the Member States go beyond the Framework Decision in the direction of facilitating and simplifying procedures for surrender, while remaining within the framework of the European arrest warrant.
76. Such a purpose is certainly not contrary to the objectives of the Framework Decision, since, as is apparent from recital 5 in the preamble, it aims by the introduction of a new simplified system of surrender of sentenced or suspected persons to remove the complexity and potential for delay inherent in the extradition procedures existing at the time of adoption of the Framework Decision.
80. According to settled case-law, procedural rules are generally held to apply to all proceedings pending at the time when they enter into force, whereas substantive rules are usually interpreted as not applying to situations existing before their entry into force ( Dell’Orto , paragraph 48). Article 18(5) of the 1996 Convention provides that that convention is to apply to requests submitted after the date on which it is applied as between the requested Member State and the requesting Member State. Article 32 of the Framework Decision for its part provides that requests received after 1 January 2004 will be governed by the European arrest warrant rules. While in both cases the new rules apply not to pending requests but to those made after a specified date, they have in common that they apply to requests relating to acts prior to the date of application of the new rules.