JUDGMENT OF THE COURT (Fourth Chamber)

10 November 2016 ( *1 )

‛Reference for a preliminary ruling — Urgent preliminary ruling procedure — Police and judicial cooperation in criminal matters — European arrest warrant — Framework Decision 2002/584/JHA — Article 1(1) — Concept of ‘judicial decision’ — Article 6(1) — Concept of ‘issuing judicial authority’ — European arrest warrant issued by the Rikspolisstyrelsen (National Police Board, Sweden) with a view to executing a custodial sentence’

In Case C‑452/16 PPU,

REQUEST for a preliminary ruling under Article 267 TFEU from the rechtbank Amsterdam (District Court, Amsterdam, Netherlands), made by decision of 16 August 2016, received at the Court on the same date, in the proceedings relating to the execution of a European arrest warrant issued against

Krzystof Marek Poltorak,

THE COURT (Fourth Chamber),

composed of T. von Danwitz, President of the Chamber, E. Juhász, C. Vajda, K. Jürimäe (Rapporteur) and C. Lycourgos, Judges,

Advocate General: M. Campos Sánchez-Bordona,

Registrar: M. Ferreira, Principal Administrator,

having regard to the written procedure and further to the hearing on 5 October 2016,

after considering the observations submitted on behalf of:

—

Mr Poltorak, by S. Wester, advocaat,

—

the Netherlands Government, by M. Bulterman, H. Stergiou and B. Koopman, acting as Agents,

—

the German Government, by T. Henze, M. Hellmann, J. Möller and R. Riegel, acting as Agents,

—

the Greek Government, by E. Tsaousi, acting as Agent,

—

the Finnish Government, by S. Hartikainen, acting as Agent,

—

the Swedish Government, A. Falk, C. Meyer-Seitz, U. Persson, N. Otte Widgren, H. Shev and F. Bergius, acting as Agents,

—

the European Commission, by R. Troosters and S. Grünheid, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 19 October 2016,

gives the following

Judgment

1This request for a preliminary ruling concerns the interpretation of Article 1(1) and Article 6(1) of Council Framework Decision 2002/584/JHA 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 ( OJ 2009 L 81, p. 24 ; ‘the Framework Decision’).

2The request has been made in connection with the execution in the Netherlands of a European arrest warrant issued by the Rikspolisstyrelsen (National Police Board, Sweden; ‘the Swedish police board’) against Mr Krzysztof Marek Poltorak with a view to executing a custodial sentence of one year and three months in Sweden.

Legal context

EU law

3Recitals 5 to 9 of the Framework Decision are worded as follows:

‘(5)

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. Further, the introduction of a new simplified system of surrender of sentenced or suspected persons for the purposes of execution or prosecution of criminal sentences makes it possible to remove the complexity and potential for delay inherent in the present extradition procedures. Traditional cooperation relations which have prevailed up till now between Member States should be replaced by a system of free movement of judicial decisions in criminal matters, covering both pre-sentence and final decisions, within an area of freedom, security and justice.

(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.

(7)

Since the aim of replacing the system of multilateral extradition built upon the European Convention on Extradition of 13 December 1957 cannot be sufficiently achieved by the Member States acting unilaterally and can therefore, by reason of its scale and effects, be better achieved at Union level, the Council may adopt measures in accordance with the principle of subsidiarity as referred to in Article 2 [EU] and Article 5 [EC]. In accordance with the principle of proportionality, as set out in the latter Article, this Framework Decision does not go beyond what is necessary in order to achieve that objective.

(8)

Decisions on the execution of the European arrest warrant must be subject to sufficient controls, which means that a judicial authority of the Member State where the requested person has been arrested will have to take the decision on his or her surrender.

(9)

The role of central authorities in the execution of a European arrest warrant must be limited to practical and administrative assistance.’

4Article 1 of the Framework Decision, entitled ‘Definition of the European arrest warrant and obligation to execute it’, provides:

‘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.

…’

5Articles 3, 4 and 4a of the Framework Decision list the grounds for mandatory and optional non-execution of the European arrest warrant. Article 5 of the Framework Decision sets out the guarantees to be given by the issuing Member State in particular cases.

6Article 6 of the Framework Decision, entitled ‘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.’

7Article 7 of the Framework Decision, entitled ‘Recourse to the central authority’, provides:

‘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 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.

Member State[s] wishing to make use of the possibilities referred to in this Article shall communicate to the General Secretariat of the Council information relating to the designated central authority or central authorities. These indications shall be binding upon all the authorities of the issuing Member State.’

Netherlands law

8The Overleveringswet (Law on surrender) transposes the Framework Decision into Netherlands law. Article 1 of that law is worded as follows:

‘For the purposes of the present law:

…

(b)

“European arrest warrant” means the written decision of a judicial authority of a Member State of the European Union with a view to the arrest or surrender of a person by the judicial authority of another Member State;

…

(i)

“issuing judicial authority” means the judicial authority of a Member State of the European Union, competent under domestic law to issue a European arrest warrant;

…’

9Article 5 of the Law on surrender states:

‘Surrender shall be effected exclusively to the issuing judicial authorities of other Member States of the European Union in accordance with the provisions of the present law or those adopted pursuant to it.’

The dispute in the main proceedings and the questions referred for a preliminary ruling

10On 21 December 2012 the Göteborgs Tingsrätt (District Court, Gothenburg, Sweden) imposed on Mr Poltorak, a Polish national, a custodial sentence of one year and three months, for acts involving infliction of grievous bodily injury. On 30 June 2014 the Swedish police board issued a European arrest warrant against Mr Poltorak, with a view to executing that sentence in Sweden.

11The matter came before the rechtbank Amsterdam (District Court, Amsterdam, Netherlands), as the executing judicial authority of that European arrest warrant, with a view to arresting and surrendering Mr Poltorak to the Swedish authorities.

12Following a request for information addressed to the Swedish authorities concerning the issuing authority of the same European arrest warrant, the rechtbank Amsterdam (District Court, Amsterdam) received information, inter alia, on the structure, independence, functioning and powers of that authority, as well as on the procedure and criteria on the basis of which that authority decided to issue European arrest warrants for the execution of a custodial sentence or detention order.

13In the light of that information, as well as the information in the evaluation report of the Council of 21 October 2008 concerning national practices relating to the European arrest warrant [Evaluation report on the fourth round of mutual evaluations — ‘the practical application of the European arrest warrant and corresponding surrender procedures between Member States’: Report on Sweden (9927/1/08 REV 2)], the referring court harbours doubts as to whether the European arrest warrant issued by a police service, such as the Swedish police board, is to be regarded as having been issued by a ‘judicial authority’, within the meaning of Article 6(1) of the Framework Decision, and whether, consequently, that European arrest warrant constitutes a ‘judicial decision’, within the meaning of Article 1(1) of the Framework Decision.

14In that regard, that court questions whether the terms ‘judicial decision’ and ‘judicial authority’, within the meaning of the Framework Decision, are to be interpreted as autonomous concepts of EU law or whether Member States are free to define their meaning and scope.

15If those terms are to be regarded as autonomous concepts of EU law, the referring court considers that they would imply that the European arrest warrant is issued by an authority with a status and powers enabling it to offer sufficient judicial protection at the stage of the issue of the European arrest warrant. In the light of the principle of mutual recognition on which the Framework Decision is based, it takes the view that such an authority must be a judge or prosecutor, thereby ruling out the possibility that the European arrest warrant can be issued by a police service.

16If those terms fall within the scope of the national law of the Member States, the referring court takes the view that they would still be required to observe EU law in exercising their discretion. It thereby refers to the principles set forth by the Court of Justice, regarding the right to an effective remedy in the context of the surrender procedure, in paragraphs 46 and 47 of the judgment of 20 May 2013, F. ( C‑168/13 PPU , EU:C:2013:358 ), and, regarding the judicial protection that must be guaranteed at the stage of the issue of the European arrest warrant, in paragraph 56 of the judgment of 1 June 2016, Bob-Dogi ( C‑241/15 , EU:C:2016:385 ).

17In those circumstances, the rechtbank Amsterdam (District Court, Amsterdam) decided to stay 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 [the] Framework Decision …, and “judicial decision”, within the meaning of Article 1(1) of [the] Framework Decision …, 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 [European arrest warrant] issued by it is consequently such a “judicial decision”?

(3)

If the answer to Question 1 is in the affirmative: is the Swedish [police board] covered by the term “judicial authority”, within the meaning of Article 6(1) of [the] Framework Decision …, and is the European arrest warrant issued by that authority consequently a “judicial decision” within the meaning of Article 1(1) of [the] Framework Decision …?

(4)

If the answer to Question 1 is in the negative: is the designation of a national police authority, such as the Swedish [police board], as the issuing judicial authority in conformity with EU law?’

The urgent procedure

18The referring court has requested that the present reference for a preliminary ruling be dealt with under the urgent preliminary ruling procedure provided for in Article 107 of the Rules of Procedure of the Court of Justice.

19In support of that request, it cites inter alia the fact that Mr Poltorak is currently deprived of his liberty, pending his actual surrender to the Swedish authorities.

20It should be observed, in the first place, that the present reference for a preliminary ruling concerns the interpretation of the Framework Decision, which comes within the sectors covered by Title V of Part Three of the FEU Treaty on the area of freedom, security and justice. It may therefore be dealt with under the urgent preliminary ruling procedure.

22In those circumstances, on 31 August 2016, the Fourth Chamber of the Court of Justice, acting on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decided to accede to the referring court’s request that the present reference for a preliminary ruling be dealt with under the urgent preliminary ruling procedure.

Consideration of the questions referred

Questions 1 to 3

23By its first three questions, which it is appropriate to examine jointly, the referring court asks, in essence, whether the term ‘judicial authority’, referred to in Article 6(1) of the Framework Decision, is an autonomous concept of EU law and whether that provision must be interpreted as meaning that a police service, such as that at issue in the main proceedings, is covered by the term ‘issuing judicial authority’, within the meaning of the same Article 6(1), meaning that the European arrest warrant issued by that police service with a view to executing a judgment imposing a custodial sentence can be regarded as a ‘judicial decision’, within the meaning of Article 1(1) of the Framework Decision.

27The principle of mutual recognition, which is the ‘cornerstone’ of judicial cooperation, means that, pursuant to Article 1(2) of the Framework Decision, Member States are in principle obliged to give effect to a European arrest warrant. The executing judicial authority may refuse to execute such a warrant only in the cases, exhaustively listed, of obligatory non-execution, laid down in Article 3 of the Framework Decision, or of optional non-execution, laid down in Articles 4 and 4a of the Framework Decision. Moreover, the execution of the European arrest warrant may be made subject only to one of the conditions exhaustively laid down in Article 5 of the Framework Decision (judgment of 5 April 2016, Aranyosi and Căldăraru, C‑404/15 and C‑659/15 PPU , EU:C:2016:198 , paragraphs 79 and 80 and the case-law cited).

29According to that provision, the issuing judicial authority is to 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.

36In the second place, that interpretation of the terms of Article 6(1) of the Framework Decision is supported by the background to that provision.

37On the one hand, judicial cooperation in criminal matters, as laid down in Article 31 EU, must be distinguished from police cooperation, as laid down in Article 30 EU.

38On the other hand, it is necessary to interpret the term ‘judicial authority’, in the context of the Framework Decision, as covering the Member State authorities that administer criminal justice, but not police services.

39In that regard, the Court has held that the entire surrender procedure between Member States provided for by the Framework Decision is, in accordance with that decision, carried out under judicial supervision, ensuring that decisions relating to European arrest warrants are attended by all the guarantees appropriate for decisions of such a kind (see, to that effect, judgment of 30 May 2013, F., C‑168/13 PPU , EU:C:2013:358 , paragraphs 39 and 46 ).

40In particular, it is stated in recital 8 of the Framework Decision that decisions on the execution of the European arrest warrant must be subject to sufficient controls, which means that a judicial authority of the Member State where the requested person has been arrested has to take a decision on his surrender. Moreover, Article 6 of the Framework Decision provides that not only that decision but also the decision on issuing the warrant must be taken by a judicial authority. Action by a judicial authority is likewise required at other stages of the surrender procedure, such as hearing the requested person, deciding to keep him in detention, or deciding on his temporary transfer (see, to that effect, judgment of 30 May 2013, F., C‑168/13 PPU , EU:C:2013:358 , paragraph 45 ).

41In that context, Article 7 of the Framework Decision authorises Member States, subject to the conditions set out in that provision and if necessary as a result of the organisation of their internal judicial systems, to have recourse to a non-judicial authority, namely a central authority, as regards the transmission and reception of European arrest warrants.

44Therefore, the principle of mutual recognition, enshrined in Article 1(2) of the Framework Decision, pursuant to which the executing judicial authority is required to execute the arrest warrant issued by the issuing judicial authority, is founded on the premiss that a judicial authority has intervened prior to the execution of the European arrest warrant, for the purposes of exercising its review.

46It follows that the term ‘judicial authority’, within the meaning of Article 6(1) of the Framework Decision, must be interpreted as meaning that police services are not covered by that term, meaning that the European arrest warrant issued by such services cannot be regarded as a ‘judicial decision’, within the meaning of Article 1(1) of the Framework Decision.

47That interpretation is not called into question by the fact that, as the Swedish Government mentioned in its observations submitted to the Court, the police service at issue in the main proceedings is competent only in the strict context of executing a judgment handed down, following court proceedings, by a court and which has become legally binding.

48It is apparent from the material provided to this Court by the Swedish Government that the decision on the issue of a European arrest warrant is ultimately a matter for the police service at issue in the main proceedings and not a judicial authority.

49First, that police service issues the European arrest warrant not at the request of the judge that adopted the judgment imposing the custodial sentence, but at the request of the prison services.

50Second, the police service at issue in the main proceedings has a discretion over the issue of the European arrest warrant, given that it is the only service with the competence to ensure that the conditions of that issue, as set out by the Framework Decision, are fulfilled, and to decide, following an assessment of the various interests at issue, including those of the person concerned, that such issue is proportionate.

51However, in the light of the information provided to the Court by the Swedish Government, that discretion is not subject to judicial approval ex officio .

52In view of all the foregoing considerations, the answer to the first three questions is that the term ‘judicial authority’, referred to in Article 6(1) of the Framework Decision, is an autonomous concept of EU law and that that provision must be interpreted as meaning that a police service, such as the Swedish police board, is not covered by the term ‘issuing judicial authority’, within the meaning of the same Article 6(1), meaning that the European arrest warrant issued by that police service with a view to executing a judgment imposing a custodial sentence cannot be regarded as a ‘judicial decision’, within the meaning of Article 1(1) of the Framework Decision.

Question 4

53In view of the answer given to Questions 1 to 3, there is no need to answer Question 4.

The limitation of the temporal effects of the present judgment

54During the hearing, the Netherlands Government and the European Commission requested the Court to limit the temporal effects of the present judgment, should the Court find that a police service, such as the Swedish police board, is not covered by the term ‘judicial authority’, within the meaning of Article 6(1) of the Framework Decision. They raised, in essence, potential consequences of the present judgment for cases in which a European arrest warrant has been issued by an authority which is not a ‘judicial authority’, within the meaning of that provision.

55It should be recalled in this connection that, according to settled case-law, the interpretation which, in the exercise of the jurisdiction conferred upon it by Article 267 TFEU, the Court 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 coming into force. It follows that the rule as thus interpreted may and must be applied by the courts to legal relationships arising and established before the judgment ruling on the request for interpretation, provided that in other respects the conditions for bringing before the courts having jurisdiction an action relating to the application of that rule are satisfied (judgment of 17 September 2014, Liivimaa Lihaveis, C‑562/12 , EU:C:2014:2229 , paragraph 80 and the case-law cited).

56It is only quite exceptionally that the Court may, in application of the general principle of legal certainty inherent in the EU legal order, be moved to restrict for any person concerned the opportunity of relying on a provision which it has interpreted with a view to calling into question legal relationships established in good faith. Two essential criteria must be fulfilled before such a limitation can be imposed: those concerned must have acted in good faith and there must be a risk of serious difficulties (judgments of 27 February 2014, Transportes Jordi Besora, C‑82/12 , EU:C:2014:108 , paragraph 41 , and of 22 September 2016, Microsoft Mobile Sales International and Others, C‑110/15 , EU:C:2016:717 , paragraph 60 ).

57In the present case, it is apparent inter alia from the evaluation report of the Council of 21 October 2008, mentioned in paragraph 13 of this judgment, that the Council has, in the past, criticised the issue of arrest warrants by the police service at issue in the main proceedings as incompatible with the requirement of designating a ‘judicial authority’. In such circumstances, it cannot be held that the Kingdom of Sweden was prompted to adopt behaviour not in conformity with EU law on account of objective and significant uncertainty as regards the scope of the provisions of EU law.

58Accordingly, there is no need to limit the temporal effects of the present judgment.

Costs

59Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Fourth Chamber) hereby rules:

The term ‘judicial authority’, within the meaning of Article 6(1) 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, is an autonomous concept of EU law and that provision must be interpreted as meaning that a police service, such as the Rikspolisstyrelsen (National Police Board, Sweden), is not covered by the term ‘issuing judicial authority’, within the meaning of the same Article 6(1), meaning that the European arrest warrant issued by that police service with a view to executing a judgment imposing a custodial sentence cannot be regarded as a ‘judicial decision’, within the meaning of Article 1(1) of Framework Decision 2002/584, as amended by Framework Decision 2009/299.

[Signatures]

( *1 ) Language of the case: Dutch.