C and CD (Obstacles juridiques à l’exécution d’une décision de remise)

On 28 April 2022, the Court rendered a decision concerning the interpretation of the conditions set out in Article 23 of the Framework decision 2002/584/JHA on the European Arrest Warrant (EAW). This provision governs the situation in which the surrender of the individual cannot take place within the time limits provided for in the EAW Framework Decision.

In the present case C and CD are both Romanian citizens and are targeted by EAWs issued by Romanian authorities on 19 and 27 May 2015 respectively for the execution of their sentences after being convicted for drug trafficking and participation in a criminal organised group. Swiss national authorities had initiated procedures for the enforcement of the two EAWs, but C and CD left to Finland before the successful execution thereof. The Supreme Court of Finland ordered the surrender of C and CD to the Romanian authorities; however, their air transport could not be made in due time due to the COVID pandemic. A second date was set, but their surrender was postponed again due to lack of flights. National authorities agreed on a third date but it was again impossible to proceed with their surrender due to the lodging of applications for international protection in Finland which were subsequently rejected. As a result, C and CD applied for release on the grounds that the time limit for their surrender had expired in addition to submitting a request for postponement of their surrender pending a decision on the appeal against the refusal to grant them international protection. Against this background, the Supreme Court of Finland referred to the CJEU two questions for preliminary ruling.

Firstly, the referring court asked whether a national legislation that enables a police authority to determine whether a situation of force majeure preventing the surrender of the requested person occurs and if the conditions required for detention are satisfied, as well as to set a new surrender date, is compatible with Article 23 of the EAW Framework Decision. The referring court also asked about the impact of the lack of action on the part of the judicial authority – if considered necessary in order for the time limit of surrender to be extended – on the continuation of detention of the requested person.

Secondly, the referring court asked whether the notion of force majeure referred to in Article 23 of the EAW Framework Decision should be interpreted as including legal obstacles to the surrender of the person, as occurs in the present case.

Answering first the second question, the Court held that the notion of force majeure must not be interpreted as encompassing legal obstacles such those in the case in question. As far as the first question is concerned, the Court ruled that the requirement of ‘action of the judicial authority in the executing Member State’ as provided for in Article 23 of the Framework Decision is not met in a situation as this in the case in question, even if the requested person can appeal anytime to a judicial authority in the executing Member State in order to examine the matters at issue. Furthermore, the Court ruled that Article 23(5) of the Framework decision must be interpreted as meaning that the time limits for surrender have been expired and therefore the requested person should be released in case of a lack of action on the part of the judicial authority in extending the time limit for surrender.