VIEW OF ADVOCATE GENERAL
CRUZ VILLALÓN
delivered on 6 June 2012 1(1)
Case C‑192/12 PPU
Melvin West
v
Virallinen syyttäjä
(Judicial cooperation in criminal matters — European arrest warrant — Framework Decision 2002/584/JHA — Surrender procedures between Member States — Article 28(2) — Onward surrender — Consent of the executing Member State — Chain of European arrest warrants)
1. While real-life events frequently provide the backdrop for works of fiction, it is less common for a work of fiction itself to be overtaken by real-life events. This, however, is what appears to have happened in the present case, which concerns a person prosecuted in several Member States and convicted of similar offences, in this instance, thefts of rare antique maps from various public libraries. (2)
2. The case gives the Court the opportunity to interpret for the first time the provisions of Article 28 of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and surrender procedures between Member States, (3) which defines the circumstances in which and the conditions under which a Member State which has issued a European arrest warrant may in turn surrender the person who is the subject of that warrant to a Member State other than the Member State which executed that warrant (onward surrender).
3. More precisely, the onward surrender, by the Member State issuing a European arrest warrant, of the person named in the warrant to a Member State other than the executing Member State may not, subject to certain exceptions, take place until after the ‘consent’ of the executing Member State has been obtained.
4. However, the provision at issue, which refers to ‘the executing Member State’ in the singular, leaves open the question as to how the ‘consent’ arrangement is to operate in a situation such as that in the main proceedings, which concern a second request for onward surrender, and, more generally, in cases involving a chain of European arrest warrants and numerous successive requests for onward surrender. In those cases, must consent be obtained from every Member State executing a warrant? Or is consent to be obtained, rather, from only one executing Member State? In the latter event, which executing Member State would that be?
5. Presented in this way, the question referred for a preliminary ruling in this case asks the Court to fill what appears to be a lacuna in the legislative provisions, which, in my view, it can do only after a teleological and schematic interpretation of Framework Decision 2002/584.
I – Legal context
A – European Union law
6. Recitals 5, 6, 8, 9 and 12 in the preamble to Framework Decision 2002/584 provide:
‘(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.
…
(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.
…
(12) This Framework Decision respects fundamental rights and observes the principles recognised by Article 6 of the Treaty on European Union and reflected in the Charter of Fundamental Rights of the European Union …, in particular Chapter VI thereof. Nothing in this Framework Decision may be interpreted as prohibiting refusal to surrender a person for whom a European arrest warrant has been issued when there are reasons to believe, on the basis of objective elements, that the said arrest warrant has been issued for the purpose of prosecuting or punishing a person on the grounds of his or her sex, race, religion, ethnic origin, nationality, language, political opinions or sexual orientation, or that that person’s position may be prejudiced for any of these reasons.
This Framework Decision does not prevent a Member State from applying its constitutional rules relating to due process, freedom of association, freedom of the press and freedom of expression in other media’.
7. Article 27 of Framework Decision 2002/584 provides:
‘1. Each Member State may notify the General Secretariat of the Council that, in its relations with other Member States that have given the same notification, consent is presumed to have been given for the prosecution, sentencing or detention with a view to the carrying out of a custodial sentence or detention order for an offence committed prior to his or her surrender, other than that for which he or she was surrendered, unless in a particular case the executing judicial authority states otherwise in its decision on surrender.
2. Except in the cases referred to in paragraphs 1 and 3, a person surrendered may not be prosecuted, sentenced or otherwise deprived of his or her liberty for an offence committed prior to his or her surrender other than that for which he or she was surrendered.
3. Paragraph 2 does not apply to the following cases:
(a) when the person having had an opportunity to leave the territory of the Member State to which he or she has been surrendered has not done so within 45 days of his or her final discharge, or has returned to that territory after leaving it;
(b) the offence is not punishable by a custodial sentence or detention order;
(c) the criminal proceedings do not give rise to the application of a measure restricting personal liberty;
(d) when the person could be liable to a penalty or a measure not involving the deprivation of liberty, in particular a financial penalty or a measure in lieu thereof, even if the penalty or measure may give rise to a restriction of his or her personal liberty;
(e) when the person consented to be surrendered, where appropriate at the same time as he or she renounced the speciality rule, in accordance with Article 13;
(f) when the person, after his/her surrender, has expressly renounced entitlement to the speciality rule with regard to specific offences preceding his/her surrender. Renunciation shall be given before the competent judicial authorities of the issuing Member State and shall be recorded in accordance with that State’s domestic law. The renunciation shall be drawn up in such a way as to make clear that the person has given it voluntarily and in full awareness of the consequences. To that end, the person shall have the right to legal counsel;
(g) where the executing judicial authority which surrendered the person gives its consent in accordance with paragraph 4.
4. A request for consent shall be submitted to the executing judicial authority, accompanied by the information mentioned in Article 8(1) and a translation as referred to in Article 8(2). Consent shall be given when the offence for which it is requested is itself subject to surrender in accordance with the provisions of this Framework Decision. Consent shall be refused on the grounds referred to in Article 3 and otherwise may be refused only on the grounds referred to in Article 4. The decision shall be taken no later than 30 days after receipt of the request.
…’
8. Article 28 of Framework Decision 2002/584 provides:
‘1. Each Member State may notify the General Secretariat of the Council that, in its relations with other Member States which have given the same notification, the consent for the surrender of a person to a Member State other than the executing Member State pursuant to a European arrest warrant issued for an offence committed prior to his or her surrender is presumed to have been given, unless in a particular case the executing judicial authority states otherwise in its decision on surrender.
2. In any case, a person who has been surrendered to the issuing Member State pursuant to a European arrest warrant may, without the consent of the executing Member State, be surrendered to a Member State other than the executing Member State pursuant to a European arrest warrant issued for any offence committed prior to his or her surrender in the following cases:
(a) where the requested person, having had an opportunity to leave the territory of the Member State to which he or she has been surrendered, has not done so within 45 days of his final discharge, or has returned to that territory after leaving it;
(b) where the requested person consents to be surrendered to a Member State other than the executing Member State pursuant to a European arrest warrant. Consent shall be given before the competent judicial authorities of the issuing Member State and shall be recorded in accordance with that State’s national law. It shall be drawn up in such a way as to make clear that the person concerned has given it voluntarily and in full awareness of the consequences. To that end, the requested person shall have the right to legal counsel;
(c) where the requested person is not subject to the speciality rule, in accordance with Article 27(3)(a), (e), (f) and (g).
3. The executing judicial authority consents to the surrender to another Member State according to the following rules:
(a) the request for consent shall be submitted in accordance with Article 9, accompanied by the information mentioned in Article 8(1) and a translation as stated in Article 8(2);
(b) consent shall be given when the offence for which it is requested is itself subject to surrender in accordance with the provisions of this Framework Decision;
(c) the decision shall be taken no later than 30 days after receipt of the request;
(d) consent shall be refused on the grounds referred to in Article 3 and otherwise may be refused only on the grounds referred to in Article 4.
For the situations mentioned in Article 5 the issuing Member State must give the guarantees provided for therein.
4. Notwithstanding paragraph 1, a person who has been surrendered pursuant to a European arrest warrant shall not be extradited to a third State without the consent of the competent authority of the Member State which surrendered the person. Such consent shall be given in accordance with the Conventions by which that Member State is bound, as well as with its domestic law’.
9. It is apparent from the information concerning the date of entry into force of the Treaty of Amsterdam, published in the Official Journal of the European Communities of 1 May 1999, (4) that the Republic of Finland made a declaration under Article 35(2) EU accepting the jurisdiction of the Court of Justice to give preliminary rulings in accordance with the arrangements laid down in Article 35(3)(b) EU.
B – Finnish law
10. Framework Decision 2002/584 was transposed into Finnish law by Law 1286/2003 of 30 December 2003 on surrender between the Republic of Finland and the other Member States of the European Union [rikoksen johdosta tapahtuvasta luovuttamisesta Suomen ja muiden Euroopan unionin jäsenvaltioiden välillä annettu laki (1286/2003)]. (5)
11. Under Article 61(1) of the Finnish Law on Surrender, a person surrendered by a Member State to the Republic of Finland may not be surrendered to another Member State or to a State not belonging to the European Union. However, Article 61(2) provides that the prohibition in paragraph 1 does not apply where, in particular, the surrendering Member State consents to a derogation from that prohibition.
12. Article 62 of the Finnish Law on Surrender provides that, if a Member State asks the Republic of Finland to surrender to it a person who has been surrendered to it by another Member State and such onward surrender is not possible under points (1) to (3) or (5) of Article 61(2) of that Law, the consent of the latter Member State is to be sought by the competent public prosecutor’s office.
II – Facts and main proceedings
13. It appears from the order for reference, the written observations and oral argument presented by the interveners and the answers to the questions put by the Court that the claimant in the main proceedings, Mr West, a British national, has been convicted of criminal offences in several Member States and, as a result, has been the subject of several European arrest warrants resulting in successive surrenders between the Member States concerned in accordance with Framework Decision 2002/584. Since the dispute in the main proceedings arises from those convictions and successive surrender procedures, the latter will be used below as the points of reference for setting out the principal facts of the main proceedings.
A – Background to the dispute
14. In view of its complexity, the background to the dispute will be set out Member State by Member State.
1. France
15. On 15 March 2001 the Bibliothèque nationale de France (French national library) lodged a complaint alleging thefts by Mr West of rare and antique maps said to have been committed on 26 October 1999 and 5 September 2000.
16. Consequently, on 14 March 2005 the French judicial authorities issued an initial European arrest warrant for Mr West’s arrest, circulated via the Schengen Information System, while he was in custody in the United Kingdom. That warrant was sent to the United Kingdom authorities on 1 April 2005.
17. On 28 April 2005 the United Kingdom authorities informed the French authorities that Mr West would be eligible for release on licence on 27 July 2005 and sought additional information and clarification.
18. On 23 June 2005 the French authorities sent a reply to the United Kingdom authorities’ request which the latter considered to be incomplete.
19. On 27 July 2005 the British liaison magistrate in France requested the urgent transmission of a new European arrest warrant containing the requested information. Since no new warrant was issued, the request for surrender was deemed not to have been granted.
20. On 15 February 2007 Mr West was sentenced in absentia to three years’ imprisonment by a judgment delivered by the criminal bench of the Tribunal de grande instance de Paris (Regional Court, Paris) for the theft of maps from the Bibliothèque nationale de France.
21. On 31 August 2007 the French judicial authorities issued a second European arrest warrant for Mr West’s arrest (No 0233123012), circulated via the Schengen Information System on 21 September 2007, with a view to his surrender for the purposes of execution of the sentence passed on 15 February 2007.
22. On 9 February 2012 Mr West’s lawyer, having been granted special power of attorney, applied for the judgment of 15 February 2007 of the criminal bench of the Tribunal de grande instance de Paris to be set aside. Consequently, that court ordered that a hearing should take place on 7 June 2012.
2. Finland
23. In April 2001 Mr West was arrested in the United Kingdom in possession of 400 antique maps, then extradited to Finland, where, on 4 September 2001, he was sentenced to 18 months’ imprisonment for the theft of maps from Helsinki University in February 2001.
24. On 31 May 2002 the Helsingin hovioikeus (Court of Appeal, Helsinki) (Finland) confirmed Mr West’s sentence of 18 months’ imprisonment for theft.
25. On 9 December 2009 the Finnish judicial authorities issued European arrest warrant No R01/3078 for Mr West’s arrest with a view to his surrender for the purposes of execution of the sentence passed on 31 May 2002.
3. Hungary
26. On 16, 17 and 18 August 2000, Mr West damaged several valuable seventeenth century atlases held in the Széchenyi national library in the course of stealing eight map plates.
27. On 1 April 2010 the Budai Központi kerületi bíróság (Central District Court, Buda) (Hungary) issued a European arrest warrant for Mr West’s arrest with a view to his surrender.
28. On 5 July 2011 the Budai Központi kerületi bíróság imposed on Mr West a sentence of 16 months’ imprisonment for the offences committed on 16, 17 and 18 August 2000.
B – Surrender procedures
29. For ease of comprehension of, the main events, the surrender procedures will also be set out Member State by Member State.
1. The procedure for surrender by the United Kingdom of Great Britain and Northern Ireland to Hungary
30. Pursuant to the arrest warrant issued by the Hungarian judicial authorities on 1 April 2010, the United Kingdom judicial authorities surrendered Mr West to Hungary on a date which is not specified in the documents before the Court. No conditions were attached to the execution of that arrest warrant.
2. The procedure for onward surrender by Hungary to the Republic of Finland
31. On 27 January 2011 the competent Hungarian judicial authority, the Fővárosi Bíróság (Budapest Court) (Hungary), adopted a decision ordering that Mr West be surrendered to the Republic of Finland within 10 days of his discharge, due to take place on 29 August 2011. (6)
32. The referring court, the Korkein oikeus (Supreme Court) (Finland), states that, although that decision indicated that the conditions governing Mr West’s surrender had been fulfilled in respect of both the arrest warrant produced by the Republic of Finland and that produced by the French Republic, the Fővárosi Bíróság did not specify whether Mr West was thereafter to be surrendered by the Republic of Finland to the French Republic.
33. On 5 September 2011 the Fővárosi Bíróság adopted a further decision in which it stated that, in its decision of 27 January 2011, it had not taken account of the fact that the surrender of Mr West to the Republic of Finland was conditional on the consent of the United Kingdom.
34. On 9 September 2011 the competent United Kingdom judicial authority gave its ex post consent to the surrender of Mr West by Hungary to the Republic of Finland. That consent was not subject to any conditions.
35. On 15 September 2011 Hungary surrendered Mr West to the Republic of Finland.
36. On 24 January 2012 the Finnish public prosecutor’s office received a letter from the Hungarian Ministry of Public Administration and Justice informing it of the decision of 27 January 2011. That letter stated that the Fővárosi Bíróság had decided that ‘once the Finnish procedure [was] closed, the person concerned [would] have to be surrendered to the French authorities’.
3. The procedures for onward surrender to the French Republic
37. On 28 December 2010 the Hungarian authorities sent the French authorities a message informing them that an order had been made for the provisional arrest of Mr West with a view to his surrender and asking them to forward the European arrest warrant.
38. On 30 December 2010 the French judicial authorities sent the Hungarian judicial authorities a certified true copy of the arrest warrant in French and then a Hungarian version on 7 January 2011.
39. On 4 March 2011 the Hungarian authorities informed the French judicial authorities of the decision of 27 January 2011. The message stated that an order had been made for Mr West to be surrendered to the French Republic and to the Republic of Finland, that Mr West would have to be surrendered to the French Republic at the end of the proceedings in Finland and that the surrender was deferred on account of ongoing proceedings in Hungary.
40. On 28 June 2011 the Hungarian authorities sent the United Kingdom authorities a request for consent for Mr West to be surrendered to the French Republic, to which there was no reply.
41. On 7 November 2011 the French authorities were informed by the Republic of Finland that Mr West was in prison in Finland and was due to be released on 29 April 2012.
42. On 9 February 2012 the Finnish public prosecutor’s officer made an application to the Helsingin käräjäoikeus (Helsinki Court of First Instance) (Finland) to have Mr West surrendered to the French Republic, in which it stated that Hungary had consented to the surrender.
43. On 17 February 2012 the Helsingin käräjäoikeus adopted a decision granting the request for surrender, despite Mr West’s opposition. Mr West then appealed against that decision before the Korkein oikeus.
III – The question referred and the request for an urgent preliminary ruling
44. It was in those circumstances that the Korkein oikeus decided, by order of 24 April 2012, received at the Court on the same date, to stay the proceedings and refer the following question to the Court for a preliminary ruling:
‘In applying Article 28(2) of the Framework Decision [2002/584], does “executing Member State” mean the Member State from which a person was originally surrendered to another Member State on the basis of a European arrest warrant, or that second Member State from which the person was surrendered to a third Member State which is now requested to surrender the person onward to a fourth Member State? Or is consent perhaps required from both Member States?’
45. By a separate decision, adopted and received at the Court once again on 24 April 2012, the Korkein oikeus also requested that this case be dealt with under the urgent preliminary ruling procedure provided for in Article 23a of the Statute of the Court of Justice of the European Union and governed by Article 104b of the Rules of Procedure of the Court.
46. The Korkein oikeus stated in this regard that Mr West had served the 18‑month prison term to which he had been sentenced by the Helsingin hovioikeus on 31 May 2002 and was due to be released on 29 April 2012. It pointed out, however, that, by decision of the same date, it had ordered that Mr West continue to be detained in custody. Since Mr West was thus being held in custody, it was absolutely imperative, in the interests of legal certainty, that the reference for a preliminary ruling be dealt with under the urgent procedure.
47. By decision of 3 May 2012 the Court (Second Chamber) decided to grant the request for an urgent preliminary ruling. In accordance with Article 24 of the Statute of the Court of Justice and Article 54a of its Rules of Procedure, it also asked the French Republic, Hungary and the United Kingdom to provide certain information and produce certain documents.
48. Written observations have been submitted by the defendant in the main proceedings, the Republic of Finland and the European Commission. The French Republic, Hungary and the United Kingdom replied to the questions put to them by the Court within the prescribed time-limit.
49. The claimant and the defendant in the main proceedings, the Republic of Finland, the French Republic and the Commission also presented oral argument at the hearing on 4 June 2012.
IV – Summary of the observations
50. The views adopted by the various parties in their written and/or oral observations provide a fairly comprehensive picture of the possible answers to the question raised in the main proceedings. I shall summarise them briefly below, it being understood that the solutions advocated seek to identify the executing Member State or the executing Member States (the nub of the issue) whose consent is required for the purposes of onward surrender under Article 28(2) of Framework Decision 2002/584 in a situation such as that at issue in the main proceedings, which have to do with a chain of European arrest warrants involving more than three Member States, an issuing Member State becoming in its turn an executing Member State.
51. The claimant in the main proceedings considers that each successive executing Member State must be asked to give its consent to onward surrender to another Member State, and, therefore, that the consent of both Hungary and the United Kingdom is required.
52. That view is largely shared by the Republic of Finland.
53. The defendant in the main proceedings states that it has always interpreted Framework Decision 2002/584 and the Finnish legislation adopted to transpose it into national law as meaning that the consent of the executing Member State which last surrendered the person in question is sufficient, since any solution requiring the consent of all the executing Member States will inevitably involve additional verification and undermine the efficiency and speed of the European arrest warrant mechanism.
54. The French Republic also submitted at the hearing that each executing Member State must be able to give its consent to onward surrender, on the understanding, however, that each issuing Member State must make such a request for consent only to the executing Member State with which it has direct relations via the European arrest warrant. Consequently, in the circumstances of the main case, it falls to the Republic of Finland to seek consent from Hungary, which must itself seek the consent of the United Kingdom.
55. Finally, the Commission considers that the executing Member State must be understood as referring to the last executing Member State, in so far as that interpretation serves to reinforce the principle of mutual recognition and reciprocal trust between Member States, while at the same time facilitating and expediting judicial cooperation between them without adversely affecting the rights of the person concerned.
V – Analysis
A – Preliminary observations
56. At the risk of having to repeat myself, I must first of all give a very brief — and this time integrated — account of the chronology of events in order to identify the main facts that are relevant to the answer to the question referred for a preliminary ruling.
57. The first European arrest warrant for Mr West’s arrest was issued in France on 14 March 2005 with a view to his surrender for trial for offences committed on 26 October 1999 and 5 September 2000. The United Kingdom having refused to execute that European arrest warrant, for reasons which the documents before the Court do not make clear, Mr West was convicted in absentia in France on 15 February 2007. Consequently, a second European arrest warrant was issued for his arrest on 31 August 2007 with a view to his surrender for the purposes of the execution of sentence. That warrant was sent to Hungary on 30 December 2010.
58. Mr West was arrested in the United Kingdom on 14 April 2001 and extradited to Finland, where he was sentenced to 18 months’ imprisonment on 4 September 2001. That sentence was confirmed on appeal on 31 May 2002 but was not executed because Mr West had left Finland in the interim, according to the information supplied by his counsel at the hearing. It was not until 9 December 2009, that is to say seven years later, that the Republic of Finland issued a European arrest warrant for Mr West’s arrest with a view to his surrender for the purposes of the execution of that sentence.
59. Subsequently, on 1 April 2010 Hungary issued its own European arrest warrant with a view to Mr West’s surrender for trial for thefts committed on 16, 17 and 18 August 2000. The United Kingdom surrendered Mr West unconditionally to Hungary, where he was convicted and sentenced to 16 months’ imprisonment on 5 July 2011. Surrendered by Hungary to the Republic of Finland on 15 September 2011, Mr West should have been released on 29 April 2012 but has been detained in custody by the referring court pending the preliminary ruling by the Court of Justice.
60. Particular attention should be paid to a number of points that emerge from the facts as summarised above.
61. First of all, it is common ground that the conditions governing the application of Article 28(2) of Framework Decision 2002/584 are fulfilled in the situation at issue in the main proceedings, since the European arrest warrant on the basis of which Mr West’s surrender to the French Republic by the Republic of Finland is sought was issued for an offence committed before Hungary surrendered him to the Republic of Finland and even before he was surrendered to Hungary by the United Kingdom. On the other hand, only Member States of the European Union are involved in the chain of European arrest warrants at issue.
62. It is also common ground, that the United Kingdom surrendered Mr West to Hungary unconditionally; that, on 9 September 2011, it consented to his onward surrender to the Republic of Finland; but that it did not give its consent to his onward surrender to the French Republic. The United Kingdom has stated in this regard that, although the Republic of Finland had sought its consent for onward surrender to the French Republic, Hungary had not. The documents before the Court do not show that, pursuant to Article 27(3)(g) of Framework Decision 2002/584 and in accordance with the procedure laid down in Article 27(4) of the Framework Decision, the executing judicial authority in the United Kingdom consented to renunciation of the specialty rule at Mr West’s expense, either when he was surrendered to Hungary or at the time of his onward surrender to the Republic of Finland. Hungary, on the other hand, did give its consent for the Republic of Finland to surrender Mr West to the French Republic. However, Mr West opposed that surrender and specifically argued before the referring court that that surrender required the consent of the United Kingdom.
63. It is common ground, finally, that on two occasions a Member State has been faced with ‘multiple’ [competing] European arrest warrants within the meaning of Article 16 of Framework Decision 2002/584. The United Kingdom had to decide whether to surrender Mr West to the French Republic (European arrest warrant of 31 August 2007), the Republic of Finland (European arrest warrant of 9 December 2009) or Hungary (European arrest warrant of 1 April 2010). Following his surrender by the United Kingdom to Hungary in April 2010, Hungary itself had to decide whether to surrender Mr West on to the French Republic or to the Republic of Finland, on the basis of the same European arrest warrants issued by those two Member States. The fact remains, however, that the Court has very little information as to what reasons the two Member States may have had for the choices they made, and that, in any event, the present case does not raise any questions relating to Article 16 of Framework Decision 2002/584.
B – Simple scenario: a schematic and teleological interpretation of Article 28 of Framework Decision 2002/584
64. In order to be able to deal adequately with the complex scenario of successive surrenders which has been presented to the Court of Justice by the referring court and to answer the question raised by that court, it is necessary to undertake an essentially schematic and teleological analysis of Article 28 of Framework Decision 2002/584 in the context of the simple scenario explicitly covered by that provision. With this in mind, the schematic analysis will need to look at the specialty rule (Article 27 of the Framework Decision) and the rule requiring the consent of the Member State executing a European arrest warrant for any onward surrender (Article 28 of the Framework Decision). The teleological interpretation must at all times take into account the essential objective pursued by Framework Decision 2002/584, namely the efficient and expeditious operation of the first ‘concrete measure’ in the area of justice of a European Union acting as guarantor of fundamental rights and freedoms.
65. Although Articles 27 and 28 of Framework Decision 2002/584 are the reflection in the European arrest warrant system of two traditional elements of extradition law, that is to say the specialty rule and its corollary, the rule prohibiting any onward surrender, (7) the rules they lay down have been ‘acclimatised’ to the rationale underpinning the European arrest warrant, an instrument of judicial cooperation based on the principle of mutual recognition (8) and reciprocal confidence (9) between Member States which is intended to replace the traditional cooperation relations under international law (10) and is itself tailored to the specific objective of establishing an area of freedom, security and justice that is pursued by the European Union (11) as guarantor of the fundamental freedoms of the persons concerned. (12)
66. This underlines the fact that, in accordance with the case‑law of the Court of Justice, the guiding principles for interpreting Framework Decision 2002/584 must be the mutual recognition established by the European arrest warrant, as a ‘cornerstone’ of judicial cooperation between Member States, (13) and the promotion of the efficient and expeditious operation of the surrender mechanism for which it provides, on the one hand, as well as the guarantee of strict respect for the fundamental rights and interests of the persons concerned, provided in particular by the judicial authorities of the Member States responsible for monitoring the execution of European arrest warrants, (14) on the other hand.
67. Article 28 of Framework Decision 2002/584 lays down the rule requiring the consent of the Member State executing a European arrest warrant for any onward surrender by the issuing Member State of the person who is the subject of that warrant to a Member State other than the executing Member State, but qualifies that principle with a number of exceptions, set out in Article 28(2)(a), (b) and (c) respectively, subparagraph (c) referring to the provisions of Article 27(3)(a) and (e) to (g) of the Framework Decision. It is in those various provisions, through the prism of the combined effect of the principle and the exceptions to it, on the one hand, and the reference made by one provision to another, on the other hand, that the rationale behind the consent required must first be sought.
68. Articles 27 and 28 of Framework Decision 2002/584, which did not appear in the Commission’s original proposal, (15) are contained in one and the same chapter relating to the effects of surrender (of a person under a European arrest warrant) and exhibit a structural connection (16) and a conceptual proximity. (17) It is striking that the specialty rule, which is meant to govern all the provisions of Article 27, appears only in Article 27(2), while Article 27(1) provides for a possible exception to the rule. The structure of Article 28 of Framework Decision 2002/584 is even more surprising, inasmuch as the rule which it lays down ‘disappeared’ in the course of the legislative process and is now only implied, by a contrario interpretation of the provisions as a whole. (18)
69. It is important to draw attention first of all to the fact that, by virtue of their position and content, Articles 27(1) and 28(1) of Framework Decision 2002/584 are highly significant and will inevitably have a bearing on the meaning of the specialty rule and its corollary in the scheme of the Framework Decision.
70. Those two paragraphs provide that Member States may notify the Council in advance of their consent either to renunciation of the specialty rule (Article 27(1) of Framework Decision 2002/584) or to onward surrender to a Member State other than the executing Member State (Article 28(1) of the Framework Decision), it being understood, on the one hand, that such consent is presumed to be effective only in relations with Member States which have given the same notification and, on the other hand, that the executing judicial authority may always decide otherwise in a particular case.
71. It is reasonable to suppose that, in thus establishing the aforementioned notification mechanism at the beginning of Articles 27 and 28 of Framework Decision 2002/584, the European Union legislature intended to extend to the Member States a particularly compelling invitation to indicate their reciprocal consent to the renunciation of the specialty rule and of the rule prohibiting any onward surrender, in a manner fully consistent with the principle of mutual trust, subject to the safeguard clause enabling the executing judicial authority to make decisions on a case-by-case basis with a view to ensuring full respect for the rights of the persons concerned.
72. Those paragraphs might in some way be said to have been intended to become the rule, in full accord with the two guiding principles referred to above. That is not the case, however, since, as the Commission pointed out in its written observations, only one Member State has exercised the right provided by them. Since those paragraphs may apply only between Member States which have made the same notification of consent, the provisions they contain, notwithstanding their significance, have no bearing on the matter at issue, at least for the time being.
73. Aside from their international roots, about which there is no need to go into detail here, (19) the specialty rule explicitly laid down in Article 27(2) of Framework Decision 2002/584 and its corollary, the rule requiring the consent of the executing Member State for any onward surrender, implicit in Article 28(2) of the Framework Decision, are the expression, within the European arrest warrant system and in the light of the guiding principles of interpretation mentioned above, of a particular responsibility on the part of the Member State executing a European arrest warrant to protect the rights and interests of the person surrendered (20) and placed under its jurisdiction at the time of his or her surrender and a degree of control over the fate of the person surrendered which also serves an objective of social reintegration. (21)
74. In this connection, we must not lose sight of the fact that the Member State issuing a European arrest warrant is asking the executing Member State to take drastic action in the context of the freedom of the person concerned. At the very least, the exercise of that person’s right to freedom of residence in the executing Member States is suspended. (22) That said, other than in the circumstances referred to in Article 28(2)(a) of Framework Decision 2002/584, the person named in a European arrest warrant and surrendered to a Member State would normally (23) recover his ‘right to return’ to the Member State which surrendered him at the end of the proceedings against him, whether he is acquitted or has served his sentence.
75. It is therefore the law of the executing Member State which, in accordance with Framework Decision 2002/584, governs the conditions for surrender and its consequences in the issuing Member State, including, when the time comes, onward surrender. The specialty rule restricts the powers of the issuing Member State solely to the offences for which the European arrest warrant was issued and, in a sense, the rule requiring the consent of the executing Member State for any onward surrender confirms that restriction in a particular case, inasmuch as it attaches conditions to the surrender of the person concerned by the issuing Member State to a third Member State.
76. The importance of that control is emphasised by the provisions of Article 28(3)(b) and (c) of Framework Decision 2002/584, inasmuch as the executing Member State may refuse surrender for the reasons indicated in Article 3 or Article 4 of the Framework Decision, on the one hand, or must give that consent where the offence for which surrender is requested carries with it the obligation to surrender in accordance with the self-same Framework Decision, on the other.
77. In this regard, particular attention must be paid to Article 4(6) and Article 5(3) of Framework Decision 2002/584, which grant certain powers to the executing Member State in relation not only to its own nationals but also to its residents. (24)
78. First of all, the competent judicial authority of the executing Member State may, under national law and in accordance with Article 4(6) of Framework Decision 2002/584, refuse to execute a European arrest warrant issued for the purposes of execution of a custodial sentence or detention order if the Member State in question undertakes to execute it. The competent judicial authority of the executing Member State may also, under national law and in accordance with Article 5(3) of the Framework Decision, make the surrender of a person under a European arrest warrant for the purposes of prosecution subject to the condition that the person, after being heard, is returned to the executing Member State in order to serve there the custodial sentence or detention order imposed on him in the issuing Member State.
79. It is true that neither the specialty rule nor the rule requiring the executing Member State’s consent to any onward surrender is dependent on the nationality, the residence or even the domicile of the person surrendered under a European arrest warrant.
80. The fact remains, however, that those two rules are elements of the aforementioned control over the conditions and consequences of the surrender, which control must be interpreted more generally as forming part of the role which the executing Member State may be called upon to play in the social reintegration of the person surrendered under a European arrest warrant at the end of the process. (25) However, as we shall see in more detail below, it will have to perform that role only in so far as the person who is the subject of a European arrest warrant is able to demonstrate a certain degree of integration into the society of that Member State. (26)
81. It is, however, from the exceptions to the implicit rule requiring the executing Member State’s consent to any onward surrender that the meaning and scope of the provisions of Article 28(2) of Framework Decision 2002/584 can be clearly discerned.
82. Those exceptions, provided for in Article 28(2)(a) to (c) of Framework Decision 2002/584 and, by way of reference, in Article 27(3)(a) and (e) to (g) of the Framework Decision, are all based on the existence of direct or indirect consent (27) given, by virtue of explicit or implicit exceptions to the specialty rule, (28) either by the person who is the subject of the European arrest warrant or by the executing Member State.
83. On the one hand, the person who is the subject of a European arrest warrant may himself explicitly consent to his onward surrender, either directly, (29) before the competent judicial authorities and in accordance with the law of the issuing Member State, or indirectly, (30) where he has waived the specialty rule, the waiver being made either at the time of his surrender to the issuing Member State, expressly before the judicial authority of the executing Member State pursuant to Article 13 of Framework Decision 2002/584, or subsequent to his surrender, also expressly but before the judicial authority of the issuing Member State and in accordance with the law of that Member State, pursuant to Article 27(3)(f) of the Framework Decision.
84. In those circumstances, the person who is the subject of the European arrest warrant consents to being surrendered to the Member State issuing the warrant, the conditions of his onward surrender then being governed by the law of that Member State. The executing Member State’s initial responsibility for that person is, of his own volition, transferred to the issuing Member State, which ‘may’ therefore decide, pursuant to Article 28(2) of Framework Decision 2002/584, to surrender that person on to a third Member State, or may equally, if appropriate, oppose such surrender in accordance with the provisions of the Framework Decision.
85. On the other hand, the judicial authority of the Member State executing a European arrest warrant is also, quite logically, deemed to have indirectly consented to the onward surrender of the person concerned to a Member State other than the executing State (31) where that authority has consented to the non‑application of the specialty rule. (32) In those circumstances, after all, the executing Member State has transferred its particular responsibility for the person concerned to the issuing Member State. The latter is no longer bound by the specialty rule and may therefore, under its own law and in accordance with Framework Decision 2002/584, surrender or refuse to surrender the person concerned to a third Member State.
86. Lastly, the voluntary presence of the person concerned in the territory of the issuing Member State (33) is the final exception to the rule requiring the executing Member State’s consent to any onward surrender. Under that exception, the Member State issuing a European arrest warrant is not bound by the specialty rule or obliged to seek the executing Member State’s consent to onward surrender where the person concerned stayed in its territory for 45 days (34) while he was at liberty and entitled to leave or return to that territory. In those circumstances, it is accepted that, in so doing, that person has implicitly agreed to submit himself unreservedly to the jurisdiction of that Member State. (35)
87. In conclusion, the essential purpose of the requirement for the executing Member State to consent to any onward surrender, in the simple scenario as explicitly set out in Article 28(2) of Framework Decision 2002/584, is to allow that Member State to retain control over the meaning and purpose of the surrender of a person to another Member State, particularly in its capacity as the initial guarantor of respect for the rights and freedoms of the person being surrendered and the restrictions which that surrender inevitably entails.
88. It is for that reason that, leaving to one side cases of conditional surrenders, the person who is surrendered may at any time eliminate the need for the consent of the executing Member State, either by directly or indirectly expressing his wishes or through his own conduct (voluntary residence, for however short a time, or voluntary return to the issuing Member State). In so doing, the person not only ‘excludes’ the executing Member State from any involvement in the onward surrender process but above all, and primarily, places himself under the protection of the issuing Member State, to which the responsibility for safeguarding the rights and freedoms of that person falls as soon as he has indicated that this is his wish.
89. If that interpretation of the meaning of Article 28 of Framework Decision 2002/584 as thus applied to a simple situation were to be accepted, it should be possible to discern with relative ease the meaning of that provision when applied to a more complex scenario not explicitly provided for by that article.
C – Consent of the executing Member State in complex situations
1. Rejection of the view that the consent of all the executing Member States in a chain of European arrest warrants is required.
90. An interpretation of Article 28(2) of Framework Decision 2002/584 requiring the consent of all the executing Member States in a chain of European arrest warrants for the onward surrender of the person concerned to the last issuing Member State in the chain would not be readily compatible with the requirement that the European arrest warrant scheme should function efficiently and expeditiously.
91. That view holds good irrespective of the arrangements that may be in place for sending requests for consent, whether they are sent simultaneously by the issuing Member State concerned to all the successive executing Member States concerned, or are cascaded, first by the issuing Member State required to decide on onward surrender to the Member State which has surrendered the person concerned to it, then by the latter Member State to the State which had previously surrendered that person to it, and so on to the initial executing Member State, as the French Government suggested in its oral observations.
92. In both cases, the surrender mechanism would not only be slowed down, notwithstanding the 30-day time-limit referred to in Article 28(3)(c) of Framework Decision 2002/584, but, most importantly, would be seriously jeopardised, since each executing Member State could oppose onward surrender on the basis of Article 28(3)(d) of Framework Decision 2002/584, even where this is not justified on legal or social grounds.
93. After all, the various executing Member States are normally, by definition, bound by the specialty rule; otherwise the exception in Article 28(2)(c) of Framework Decision 2002/584 would apply. Outside the scope of the exceptions provided for, the need for the executing Member State’s consent is justified only in the case of the State that must exercise control over the surrender of the person concerned, in the manner indicated above. Furthermore, giving each executing Member State in a chain of European arrest warrants the power to consent to any onward surrender would entail the simultaneous application of as many systems of national law, albeit in accordance with Framework Decision 2002/584, as there are Member States in the chain, and would create just as many possibilities of opposing such surrender, thus radically compromising the effectiveness of the mechanism.
94. Furthermore, other than in very specific circumstances, the various executing Member States cannot simultaneously assume a particular responsibility for the social reintegration of the same person which would justify the need for their consent to onward surrender.
95. In conclusion, it is my view that Article 28 of Framework Decision 2002/584 cannot be interpreted as authorising a requirement for multiple or even dual consent for the onward surrender of a person who is the subject of a European arrest warrant.
2. Identification of the executing Member State required to give its consent to any onward surrender in a complex situation
96. Once the previous conclusion has been drawn, it follows that the executing Member State which must give its consent to any onward surrender within the meaning of Article 28(2) of Framework Decision 2002/584 must inevitably be the State which satisfies the logic underlying that consent as I have just outlined it.
97. That State is in principle the first executing Member State in the chain of European arrest warrants, the original or initial executing Member State, in so far as it is the only State that is not also an issuing Member State in that chain and therefore, by definition, bound by the specialty rule. It might be described as the executing Member State stricto sensu, inasmuch as it is capable of exercising full jurisdiction over the person named in a warrant, whereas the power of disposal of the subsequent executing Member States in the chain is confined to the exercise of their ius puniendi.
98. From that point of view, it is in principle the United Kingdom alone which, in the circumstances of the main proceedings, must be called upon to give its consent to Mr West’s onward surrender to the French Republic by the Republic of Finland. That outcome is borne out by the fact that it is with the first Member State that the person concerned appears to have the closest links. Furthermore, since the United Kingdom consented, albeit ex post, to Hungary’s onward surrender of Mr West to the Republic of Finland, it is difficult to see any justification for the need to seek Hungary’s consent for his onward surrender to the French Republic by the Republic of Finland.
99. It must also be added that the circumstances of the main proceedings tend to demonstrate the inappropriateness of transferring the ‘right to consent’ from the United Kingdom to Hungary. It is a feature of those circumstances that the steps taken by the French Republic to have Mr West surrendered by the United Kingdom were consistently unsuccessful.
100. The effects of that logic would obviously be the same if more than four Member States were involved, inasmuch as the executing Member State stricto sensu would in principle have to give its consent and the intermediate Member States would have to be excluded. Conversely, in a situation, again involving more than four Member States, in which the person who is the subject of the European arrest warrants had, either by declaration or conduct, waived the consent of the executing Member State stricto sensu, it would then logically have to be the first issuing Member State in that situation which would have to give its consent, unless one of the exceptions in Article 28 of Framework Decision 2002/584 applied.
101. Such a consequence might give rise to a rule, drafted in general terms, that might be worded as follows:
‘In the event of a chain of European arrest warrants issued for the arrest of the same person and involving more than three Member States, and of a series of requests for a series of surrenders, the consent for onward surrender required, by a contrario interpretation, by Article 28 of Framework Decision 2002/584 must be sought only from the first Member State, in reverse chronological order, which surrendered the person concerned without itself having to seek such prior consent pursuant to those provisions.’
102. However, in so far as, in the circumstances of the main proceedings, only four Member States are involved, I suggest a simpler ruling to the effect that Article 28(2) of Framework Decision 2002/584 must be interpreted as meaning that, in a situation such as that at issue in the main proceedings, it is only the first executing Member State in the chain of arrest warrants, to the exclusion, therefore, of the subsequent executing Member States, which must be called upon, if necessary, that is to say in the event that the circumstances do not fall within the scope of one of the exceptions specifically established by that provision, to give its consent to any onward surrender of the person concerned to any other issuing Member State.
103. More specifically, it is my view that, in the circumstances of the main proceedings, in so far as none of the exceptions provided for in Article 28(2) of Framework Decision 2002/584 is applicable, which it falls to the referring court to determine, only the consent of the United Kingdom must be regarded as being necessary for Mr West’s surrender to the French Republic by the Republic of Finland, Hungary’s consent being neither required nor even desirable in that situation, it being understood that it is for the Republic of Finland to take the necessary steps to obtain such consent.
VI – Conclusions
104. In conclusion, I propose that the Court of Justice should reply to the question referred for a preliminary ruling by the Korkein oikeus as follows:
Article 28(2) 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, must be interpreted as meaning that, in a situation such as that at issue in the main proceedings, it is only the first executing Member State in the chain of arrest warrants, to the exclusion, therefore, of the subsequent executing Member States, which must be called upon, if necessary, that is to say in the event that the circumstances do not fall within the scope of one of the exceptions specifically established by that provision, to give its consent to any onward surrender of the person concerned to any other issuing Member State.