Provisional text

OPINION OF ADVOCATE GENERAL

EMILIOU

delivered on 5 September 2024 (1)

Case C‑763/22

Procureur de la République

v

OP

(Request for a preliminary ruling from the Tribunal judiciaire de Marseille (Court of Marseilles, France))

( Reference for a preliminary ruling – Judicial cooperation in criminal matters – Framework Decision 2002/584/JHA – European arrest warrant and an extradition request concerning the same person – Authority competent to decide on priority between the two – Judicial review of that decision )

I.      Introduction

1.        OP – a French national – is facing criminal prosecution before the Tribunal judiciaire de Marseille (Court of Marseilles, France; ‘Court of Marseilles’ or ‘the referring court’). He was expected to stand trial for several crimes before that court. However, he was imprisoned in Spain after a request for his extradition was issued by the Swiss authorities. (2)

2.        In order to ensure his presence in the French proceedings, the Procureur de la République (French Public Prosecutor) issued a European arrest warrant (‘EAW’), addressed to the Spanish authorities. Faced with those two competing requests, the Consejo de Ministros (Council of Ministers, Spain) decided to give priority to the Swiss extradition request (while OP remained in prison in Spain).

3.        In that context, the Court of Marseilles seeks clarification as to the conditions under which the authority of the executing Member State (in the present case, Spain) may decide whether to grant precedence to an EAW or an extradition request, and specifically, as to whether such a decision may be taken by a governmental body when, according to the referring court, the decision of that body is not open to judicial review.

II.    Legal framework

A.      European Union law

4.        Article 16 of Framework Decision 2002/584/JHA (3) headed ‘Decision in the event of multiple requests’ provides:

‘1. If two or more Member States have issued European arrest warrants for the same person, the decision on which of the European arrest warrants shall be executed shall be taken by the executing judicial authority with due consideration of all the circumstances and especially the relative seriousness and place of the offences, the respective dates of the European arrest warrants and whether the warrant has been issued for the purposes of prosecution or for execution of a custodial sentence or detention order.

…

3. In the event of a conflict between a European arrest warrant and a request for extradition presented by a third country, the decision on whether the European arrest warrant or the extradition request takes precedence shall be taken by the competent authority of the executing Member State with due consideration of all the circumstances, in particular those referred to in paragraph 1 and those mentioned in the applicable convention.

…’

B.      Spanish law

5.        It follows, in essence, from Article 57(2) of Ley 23/2014 de reconocimiento mutuo de resoluciones penales en la Unión Europea (Law 23/2014 on the mutual recognition of judicial decisions in the European Union; ‘Law 23/2014’), as described in the order for reference and as further substantiated by the Spanish Government, that where a conflict arises between an EAW and an extradition request made by a third country, the Spanish judicial authority must suspend the procedure and forward all the documents concerned to the Ministry of Justice. The proposal, by the Minister for Justice, for a decision on whether precedence should be given to the EAW or the extradition request, with due consideration of all the circumstances, in particular those referred to in paragraph 1 (4) and those mentioned in the applicable convention, is to be submitted to the Council of Ministers.

III. Facts, national proceedings and the question referred

6.        The charges brought in France against OP concern multiple crimes (such as the possession of equipment for counterfeiting payment cards and the involvement in a criminal association in connection with the counterfeiting of payment cards) committed in several countries (France, Romania and Thailand).

7.        In September 2021, OP was expected to stand trial before the Court of Marseilles for those crimes. However, his counsel notified that court that OP had been apprehended and imprisoned in Spain following a warrant for his arrest and a request for his extradition, both of which had been issued by the Swiss authorities.

8.        In June 2022, OP’s counsel informed that same court that OP remained imprisoned in Spain and did not wish to be extradited to Switzerland. Instead, he sought repatriation to France in order to appear in person and defend himself against the charges brought against him.

9.        In those circumstances, the referring court issued a warrant for his arrest to compel him to stand trial in France. On that basis, the French Public Prosecutor issued an EAW with a view to his surrender from Spain.

10.      However, the referring court subsequently took cognisance of the fact that the Council of Ministers had decided to give precedence to the Swiss extradition request, while OP remained incarcerated in Spain.

11.      In December 2022, OP’s counsel requested that the Court of Marseilles refer a question to the Court of Justice for a preliminary ruling on the compatibility with Framework Decision 2002/584 of national legislation conferring on a governmental body the power to decide which of the competing requests for surrender/extradition should be given priority.

12.      In that respect, the referring court notes that the national rules at issue permit a governmental body – the Council of Ministers – as opposed to a judicial authority, to decide on the priority between an EAW and an extradition request from a third country. Moreover, as far as it can discern, there appears to be no legal remedy available to challenge the decision of the Council of Ministers. The referring court doubts the compatibility of such national rules with Framework Decision 2002/584.

13.      However, the French Public Prosecutor’s Office took the view that the Court of Marseilles did not have a legitimate interest, for the purposes of the case pending before it, in referring a question to the Court of Justice concerning the conformity of Spanish law with that framework decision.

14.      The referring court does not share this view. It asserts, in essence, that it has a genuine interest in seeking clarification from this Court on the compatibility of the national legislation at issue with Framework Decision 2002/584 because, in essence, it will determine the conditions under which it will be able to proceed with the judicial proceedings concerning OP.

15.      In those circumstances, the referring court decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Does [Framework Decision 2002/584] preclude the legislation of a Member State from granting a governmental authority the power to decide, between [an EAW] and a concurrent extradition request issued by a third country, which of the two is to be executed, without any possibility of legal remedy?’

16.      Written observations have been submitted by the French, Spanish and Polish Governments, as well as the European Commission. OP, the French, Spanish, Netherlands and Polish Governments, as well as the Commission, presented oral argument at the hearing, which took place on 28 November 2023.

IV.    Analysis

17.      Before examining the substance of the referring court’s question (B), I will address the issue of whether the present request is admissible (and whether there is still a need to adjudicate) (A).

A.      The admissibility of the question referred (and whether there is still a need to adjudicate)

18.      The Spanish Government considers that the present request for a preliminary ruling is inadmissible. For its part, the Commission argues to the contrary. However, at the hearing, it expressed the view that there is no longer any need for the Court to reply to the question referred.

19.      Turning, first, to the admissibility of the present request, it should be recalled that it is solely for the national court before which a dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of EU law, the Court is, in principle, required to give a ruling. (5)

20.      It follows that questions relating to EU law enjoy a presumption of relevance and the Court may refuse to rule on a question referred only where it is quite obvious that the interpretation of a rule of EU law sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it. (6)

21.      In the light of those case-law elements, the Spanish Government argues, on the one hand, that the present request is inadmissible because the referring court identifies neither a Spanish judicial or governmental decision nor a provision of Framework Decision 2002/584 that would be relevant to the question referred.

22.      Contrary to that position, I am of the view that it is quite clear that the referring court takes issue, first, with Article 57(2) of Law 23/2014, which stipulates that, in the event of competing requests for extradition and for execution of an EAW – such as those at issue in the main proceedings – a decision as to which one is to be given priority must be taken by the Council of Ministers. Second, it refers to a decision by which the Council of Ministers decided to give priority to the Swiss request for extradition rather than to the EAW, both of which were issued in respect of OP. While no details have been provided about that decision (such as the date or grounds for that decision, as the Commission observed at the hearing), it follows from the order for reference that information about its existence was provided to the referring court by a letter from the Juzgado Central n  5 de Madrid (Central Court No 5, Madrid, Spain) of 2 September 2022. (7)Third, it is rather clear that the referring court seeks an interpretation of, in particular, Article 16(3) of Framework Decision 2002/584, which concerns the issue of conflicts between an EAW and a request for extradition.

23.      I consider therefore that the referring court has identified, to the requisite standard, the relevant elements of national and EU law so as to allow to the Court to understand the issue of EU law to be clarified.

24.      On the other hand, the Spanish Government argues that the question referred is hypothetical because, in essence, it relates to the legislation of another Member State, and the reply to be provided by the Court will be of no relevance to the main proceedings.

25.      I do not agree. In that regard, I note, first, that the specific system of judicial cooperation in criminal matters between the Member States may quite naturally lead to situations in which the national court of the issuing State (France, in casu) needs clarification as to the compatibility of the conditions for the execution of an EAW in the executing State (Spain, in casu) with EU law. As the Spanish Government acknowledges, the Court has previously considered such requests for preliminary rulings to be admissible when the requested interpretation of Framework Decision 2002/584 would allow the referring court in question to determine the proper course of action when issuing or withdrawing a given EAW, or issuing a new EAW, where the execution of a previous EAW was refused. (8)

26.      Second, and as the Commission has observed, in essence, I understand that, should the Court conclude that the procedural features provided for by the Spanish legislation at issue are incompatible with Framework Decision 2002/584, that would, in principle, leave open the possibility that the EAW concerning OP might still be executed, so long as OP remains on Spanish territory. On the other hand, should the Court find, that the national rules at issue are compatible with the framework decision, that finding will be relevant to the proceedings pending before the referring court, as it will allow it to take steps with a view to ensuring OP’s onward extradition from Switzerland, if and when he is extradited there, in compliance with the applicable rules of international law.

27.      In such circumstances, it seems to me that the question raised by the referring court is not hypothetical.

28.      Turning now to whether there is still a need to adjudicate, I note that OP’s counsel observed during the hearing that OP had been extradited to Switzerland after the present request for a preliminary ruling was made. Consequently, the Commission submitted that the present request for a preliminary ruling has become devoid of purpose. In its view, a response from this Court on whether Framework Decision 2002/584 precludes the respective rules of Spanish national law is no longer necessary in order to determine the course of action in the main proceedings.

29.      The Commission relied, in that respect, on the Court’s order in Ministerio Fiscal, (9) where the Court concluded that there was no longer any need to adjudicate on the request submitted by the Audiencia Nacional (National High Court, Spain) as to the compatibility of the pending extradition of a United Kingdom national from Spain to the United States of America, after it was informed by the requested person’s counsel, as confirmed by the referring court in that case, that the extradition had in fact taken place.

30.      I agree with the Commission that should it be confirmed that OP has in fact been extradited to Switzerland, the present request for preliminary ruling would have to be regarded as having lost its purpose. Indeed, it is not clear from the order for reference why, in such (new) circumstances, the Court’s reply would be necessary for the proceedings pending before the referring court. (10)

31.      That said, the information concerning the OP’s extradition could not be confirmed by the Spanish Government at the hearing (due, as that government explained, to the anonymisation of the present request for preliminary ruling). In those circumstances, I will proceed to the examination of the merits of the question referred.

B.      Merits of the question referred

32.      To recall, it follows from the order for reference that, by its question, the referring court seeks to ascertain, in essence, whether Framework Decision 2002/584, and in particular Article 16(3) thereof, is incompatible with a rule of national law under which a governmental body (rather than a judicial authority), has the power to decide whether to grant precedence to an EAW or to an extradition request from a third country concerning the same individual, when such a decision on precedence is not, according to the referring court, open to judicial review.

33.      I will start my analysis by explaining why the situation in the present case does not appear to be inconsistent with the Petruhhin mechanism, from which follows a rule of precedence that applies, under certain conditions, where the extradition request and EAW are issued in respect of the same person and the same offences (1).

34.      I will then turn to the crux of the question referred, which, as it follows from the order for reference, actually has two aspects. The first concerns the possibility for a Member State of conferring the task of deciding on precedence between extradition requests and EAWs on a governmental body (a solution which the referring court considers to be precluded by Framework Decision 2002/584). The second aspect concerns the necessity of providing for the possibility of judicial review against a decision taken by such a body.

35.      I will address both aspects in turn to explain that Framework Decision 2002/584 does not preclude a national rule conferring the power to decide on the precedence between an EAW and an extradition request to a governmental body (2), but requires that such a decision be open to judicial review (3).

1.      The Petruhhin mechanism

36.      I wish to observe at the outset that when a Member State receives an EAW (from another Member State) and an extradition request (from a third country) in respect of the same person, there is no general obligation to resolve such a situation in favour of the EAW. Although the initial proposal leading to the adoption of Framework Decision 2002/584 contained a rule to this effect in the event that an EAW were to be ‘challenged’ by an extradition request from a third country that is not a signatory to the European Convention on Extradition of 1957, no automatic rule of precedence favouring the EAW was finally adopted in Framework Decision 2002/584. (11) Accordingly, each situation in which an EAW and an extradition request ‘compete’ is, as a rule, to be resolved on an ad hoc basis, following general criteria that I will set out later in this Opinion.

37.      As an exception to that rule, the only situation in which an EAW must be given precedence is that which may result from the application of the Petruhhin mechanism.

38.      In that regard, in the judgment in Petruhhin, the Court clarified that, when a Member State receives an extradition request from a third country concerning a national of another Member State, where that national has exercised his or her right to free movement and where the requested Member State does not extradite its own nationals, those circumstances trigger an obligation on the part of that State to provide the Member State of the requested person’s nationality with an opportunity to prosecute the requested person by issuing an EAW (where the national law of the Member State of the requested person’s nationality makes it possible to prosecute offences committed outside the national territory). That obligation stems from Articles 18 and 21 TFEU prohibiting discrimination on grounds of nationality, on the one hand, and establishing the freedom to move and reside within the territory of the Member States, on the other. (12)

39.      Consequently, had the facts covered by the extradition request and the EAW at issue in the present case been identical, the decision on precedence taken by the Council of Ministers would appear to be incompatible with the logic of the Petruhhin mechanism, (13) which would make the enquiry about the aspects of the process which led to that decision, as raised by the present request for a preliminary ruling, somewhat ancillary.

40.      Nevertheless, there is no information in the order for reference as to the scope of the Swiss extradition request. Accordingly, it is merely the absence of any discussion of the possible overlap between both requests (and of the implications of the Petruhhin mechanism) that indicates that both requests seem to concern different facts. That assumption has been explicitly embraced by some of the intervening parties and it is corroborated by the observation made by the Spanish Government in its written submissions stating that, after receiving the Swiss extradition request, the Spanish authorities consulted the French authorities, in compliance with the Petruhhin mechanism, and that the French authorities waived the opportunity to issue an EAW with a view to prosecuting OP for the facts that led to the Swiss extradition request. However, the French Government was unable to confirm that fact at the hearing. (14)

41.      Accordingly, I will proceed on the premiss that the only legal issues to be addressed in the present case relate indeed to the aspects identified by the referring court, given that there is nothing in the file to indicate that the Petruhhin mechanism, and the consequences to be drawn therefrom, have been disregarded.

2.      The body competent to take the decision on precedence between an EAW and an extradition request

42.      Turning to the first aspect of the question referred, namely whether Framework Decision 2002/584 precludes a national rule from conferring the task of taking the decision on precedence between an EAW and an extradition request on a governmental rather than on a judicial body, I am of the view that that question should be answered in the negative. I agree in that respect with all the intervening governments which have taken a position on that matter and with the Commission.

43.      That conclusion follows, first and foremost, from the text of Article 16(3) of Framework Decision 2002/584.

44.      I would recall that, pursuant to that provision, ‘the decision on whether the European arrest warrant or the extradition request takes precedence shall be taken by the competent authority of the executing Member State …’. (15)

45.      The open-ended nature of that phrase means that it is not possible to consider that it refers only to a judicial authority.

46.      Rather, its open-ended nature, combined with the absence of any definition or clarification provided in respect of that concept in Framework Decision 2002/584, indicates that the EU legislature chose to leave it to the Member States to determine which body is to be competent to take the decision on precedence between an EAW and an extradition request.

47.      The conclusion that the term ‘competent authority’ does not necessarily refer only to a judicial authority is confirmed, second, by a comparative reading of different provisions of Framework Decision 2002/584.

48.      In that respect, I would note that the choice of the term ‘competent authority’ in Article 16(3) of Framework Decision 2002/584 contrasts with the use of the term ‘executing judicial authority’ (16) used in Article 16(1) of that framework decision to identify the national body authorised to take a decision where there are two or more concurrent EAWs issued by different Member States in respect of the same person.

49.      In other words, it follows from a combined reading of Article 16(1) and (3) of Framework Decision 2002/584 that, while the EU legislature clearly requires the Member States to confer the task of deciding on precedence in the context of multiple EAWs on a judicial body (‘executing judicial authority’), it leaves the Member States with a broader choice (‘competent authority’) when an EAW is concurrent with an extradition request. 

50.      The position set out above is not affected by Article 28(4) of Framework Decision 2002/584, which was discussed at the hearing quite extensively.

51.      In particular, Article 28 of that framework decision concerns a ‘[subsequent] surrender or subsequent extradition’. Article 28(1) and (3) thereof sets out in detail the conditions under which the person who has already been surrendered to the issuing Member State may be surrendered to another Member State (different from the executing Member State) on the basis of an EAW issued in respect of an offence committed prior to the initial surrender. In that context, Article 28(3) of that framework decision refers to the conditions under which the consent of the executing judicial authority to the subsequent surrender (to another Member State) is to be required.

52.      In contrast to this, the first sentence of Article 28(4) of Framework Decision 2002/584 states that ‘… a person who has been surrendered pursuant to [an EAW] shall not be extradited to a third State without the consent of the competent authority of the Member State which surrendered the person’.

53.       In view of that language, the discussion during the hearing focused on whether the use of the term ‘competent authority’ in Article 28(4) of Framework Decision 2002/584 may, in fact, refer (exclusively) to an executing judicial authority given that the subsequent extradition concerns, under that provision, a person who has, in the first place, been surrendered pursuant to an EAW; and given that such a surrender must have necessarily have been made on the basis of a decision taken by a judicial (executing) authority. If so, this raises the question, as I have understood the discussion, of whether that conclusion is to be extended to the term ‘competent authority’ appearing in Article 16(3) of Framework Decision 2002/584, which would mean that that term refers, in fact and despite the broader language used, to a judicial authority (only).

54.      In my view, that discussion is based on a misunderstanding due to an ambiguity in the French-language version of Article 28(4) of Framework Decision 2002/584, which also exists in the English-language version, as well as in some other versions. (17)

55.      Indeed, some language versions seem to leave it open as to whether the phrase ‘competent authority of the Member State which surrendered the person’, used in Article 28(4) of Framework Decision 2002/584, refers in fact to the competent authority which surrendered that person or, rather, to the Member State which surrendered the person in question. Under those linguistic versions, it could be either or both.

56.      That uncertainty, however, does not arise, in other language versions, such as the German-, Spanish-, Italian- or Polish-language version, (18) which make it clear that that phrase refers to the Member States which surrendered the requested person and the ‘competent authority’ of which gave consent to the subsequent extradition.

57.      I consider that it is the second reading that should be adopted.

58.      To start with, the first reading does not enable a conclusion on the matter considered in the present case to be reached. The second reading is, on the other hand, very clear and leaves no doubt as to the precise meaning of that phrase. Lastly, the second reading is entirely consistent with the overall logic of Framework Decision 2002/584 which, again, attributes the responsibility for executing an EAW specifically to judicial authorities, while employing the broader concept of ‘competent authority’ in the context where the issue of extradition to a third country comes into play (in Article 16(3) of Framework Decision 2002/584).

59.      On that basis, the distinction between the ‘executing judicial authority’ and the ‘competent authority’ made respectively in Article 16(1) and (3) of that framework decision, on the one hand, and Article 28(3) and (4) thereof, on the other, appears to be governed by the same rationale.

60.      Indeed, while it is clear from Article 28(3) of Framework Decision 2002/584 that consent to a subsequent surrender (to another Member State) is to be given by the executing judicial authority which surrendered the requested person, and that consent to a subsequent extradition is to be given by the competent authority (possibly different from the executing judicial authority), the same logic is embraced in Article 16(1) and (3) of that framework decision as regards the decision on precedence in the case of multiple requests depending on whether the multiple requests relate to two or more EAWs (executing judicial authority) or to an EAW and an extradition request (competent authority). (19)

61.      Moreover, the decision to provide the Member States with a broader choice as regards the body authorised to take a decision on precedence between an EAW and an extradition request also appears to be confirmed by the legislative process, as the Spanish Government noted in essence.

62.      As has already been observed, the initial proposal which led to Framework Decision 2002/584 provided that the decision on precedence would be necessary only when the competing extradition request was to be presented by a signatory to the European Convention on Extradition of 1957. (20) In such a situation, it was suggested that the decision on precedence be taken by the ‘executing judicial authority’. However, in the text of Article 16(3) of Framework Decision 2002/584 (as finally adopted), that term was replaced by that of ‘competent authority’,(21) indicating the intention of the EU legislature to use a term broader than that of ‘judicial authority’.

63.      The conclusion above is, moreover, confirmed when the broader context in which Article 16(3) of Framework Decision 2002/584 appears is considered.

64.      First, the term ‘judicial authority’ – be it in the form of ‘issuing judicial authority’ or ‘executing judicial authority’ – is used consistently throughout Framework Decision 2002/584 to refer to the bodies responsible for issuing and executing EAWs. (22)

65.      The insistence on the involvement of judicial (or equivalent) authorities reflects, second, the fact that the whole specific system of surrender under Framework Decision 2002/584 is conceived as judicial cooperation with judicial bodies operating on both (issuing and executing) ends of that specific scheme. (23)

66.      That reflects, third, the objective of Framework Decision 2002/584 which is ‘to introduce a simplified system of surrender directly between judicial authorities designed to replace a traditional system of cooperation between sovereign States – which involves the intervention and assessment of the executive – in order to ensure the free circulation of court decisions in criminal matters, within an area of freedom, security and justice’, (24) which has, as its basis, the high level of mutual trust which should exist between the Member States. (25) The Court conveyed the same idea of Framework Decision 2002/584 relying on cooperation between judicial authorities when it held that that framework decision is aimed at ensuring that the executive is not granted a decision-making power in the procedure for surrendering wanted persons. (26)

67.      Against that background, it seems clear to me that when the EU legislature decided to refer, in Article 16(3) of Framework Decision 2002/584, to ‘competent authority’ (rather than to a judicial one) it consciously decided to depart from the overall logic of the framework decision, as described above (and as OP observed, in essence, during the hearing).

68.      Indeed, the rationale of the use of the term ‘competent authority’ in that provision relies on the fact that while the decision on competing EAWs comes entirely and exclusively within the sphere covered by the simplified and judicially governed system of surrender of Framework Decision 2002/584, the need to consider the execution of an EAW against an extradition request from a third country connects the situation to the extradition regime agreed upon with the respective third country. Such a regime is likely to rely on the traditional involvement of the executive (and include political considerations), as the Polish Government and the Commission observe in essence and as that follows also from the findings in the Court’s case-law as quoted above and referred to in point 66, and as may also be expressly confirmed by the respective extradition agreement.

69.      Such an agreement may, moreover, provide for a specific institutional solution as to the body authorised to take a decision where there are two or more concurrent requests, as is the case, for instance, in the EU-US Extradition Agreement. According to the latter, a conflict between an EAW and an extradition request from the United States is to be decided by the requested Member State’s ‘executive authority’ (‘pouvoir executif’ in the French version of that agreement) ‘if, under the bilateral extradition treaty in force between the United States and the Member State, decisions on competing requests are made by that authority’. (27)

70.       Accordingly, where the EU legislature has not required that a decision on precedence between an EAW and an extradition request necessarily be taken by a judicial authority of a Member State, but has chosen to leave those States with more latitude in that respect, its aim was, in my view, to acknowledge the traditional involvement of the executive in matters of extradition and not to hinder the operation of the bilateral extradition regimes agreed with third countries.

71.      Those considerations, thus, confirm the previous assessment and lead me to conclude that Framework Decision 2002/584 does not preclude a rule of national law that empowers a governmental body to decide on the precedence between an EAW and an extradition request.

72.      That said, it follows from the above that Article 16(3) of Framework Decision 2002/584 is at the crossroads between extradition regimes agreed with third countries and the simplified surrender regime applicable to relations between Member States. While I have explained why the considerations specific to the extradition regimes have led to the choice of providing the Member States with sufficient leeway in determining the authorities to decide on precedence between an EAW and an extradition request, there is no doubt that, when the decision on precedence is taken by a government authority as opposed to a judicial one, such a solution introduces a certain tension into the intra-EU system of surrender.

73.      Indeed, while that system relies on cooperation between judicial authorities, a situation such as that in the present case results in the requested person’s situation being in fine decided upon (as a consequence of the decision on precedence) by a body that is not a court. Accordingly, I am of the view that such a decision must be open to judicial review, for the reasons that I will explain in the next section.

3.      Judicial review

74.      In addressing the issue of judicial review, I will first make preliminary comments on the precise scope of the enquiry to be conducted in that respect (a) before examining Framework Decision 2002/584 from that perspective (b).

(a)    Preliminary comments

75.      First, as the Netherlands Government observed at the hearing, the decision on precedence between the EAW and an extradition request within the meaning of Article 16(3) of Framework Decision 2002/584 must be distinguished from the decision on whether the respective conditions for those acts to be executed are met. As the Commission noted in the same vein, for precedence to be given to one or the other (and for the issue of precedence to become relevant in the first place), the given request must be ‘executable’ in the light of the applicable rules. For instance, where the applicable conditions for the execution of an EAW are not met, but the applicable conditions are met for the extradition request, the latter will logically be given precedence. (28)

76.      In that respect, I stress that the issue of whether each of the ‘competing’ requests is executable is not directly relevant to the present case which relates to the question of whether (a different) decision on the precedence criteria, set out in Article 16(3) of Framework Decision 2002/584, must be open to judicial review when it has been made by a governmental body.

77.      Second, the French Government states that that provision does not require judicial review to be available against a decision on precedence because there is no obligation for a separate decision on precedence to be adopted in the first place. The decision on precedence may, in its view, constitute an inherent part of the decision-making procedure by which either the EAW is executed or the extradition granted. Accordingly, compliance with the requirement of judicial review (provided such a requirement exists) is to be examined against the national procedures considered as a whole.

78.      I certainly acknowledge the diversity of solutions that the Member States may adopt in designing the mechanism in which a decision on precedence (in the formal or substantive sense) is taken. That said, the enquiry to be addressed in the present case is circumscribed by the features of the domestic mechanism as they have been presented in these proceedings. Thus, the following analysis must be understood as being construed primarily against that specific context of domestic law which seems to provide for a separate decision on precedence, without such a decision being broken down into different procedural stages.

79.      Third, while the referring court embraces the premiss that the decision on precedence taken by the Council of Ministers is not open to judicial review, the Spanish Government has explained that the opposite is true.

80.      On the one hand, it explained that the general legislative rules do not preclude the possibility of judicial review against a decision of the Council of Ministers (contrary to what is provided for some categories of acts). On the other hand, it referred in particular to a judgment of the Tribunal Supremo (Supreme Court) (29) in which the latter reviewed the decision of the Council of Ministers giving precedence to an extradition request from the Russian Federation over an EAW issued by the Lithuanian judicial authority.

81.      In that respect, I wish to recall that, pursuant to the settled case-law of the Court, ‘it is for the referring court alone to determine the subject matter of the questions’ (30) and to define the factual and legislative context of the case. (31) In that regard, I consider that the Court should proceed on the premiss set out by the referring court, while it would be for the latter to confirm the state of Spanish law.

82.      Lastly, taking note of the above explanation provided by the Spanish Government, OP observed at the hearing that the decision on precedence adopted by the Council of Ministers has never been served on him and that the resulting situation constitutes a breach of Article 5 of Directive 2012/13/EU (32) and of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’). 

83.      I would note that, the issue, in essence, of the conditions under which OP could have challenged the decision on precedence is neither covered by the question referred nor discussed in the order for reference (which relies on the premiss that no judicial review against the decision at issue exists in the first place).

84.      I have already pointed out that it is solely for the referring court to define the subject matter of the question to be examined by the Court within preliminary ruling proceedings. Accordingly, it is not for the Court to change that subject matter. (33) The referring court confined itself to seeking the Court’s interpretation of Framework Decision 2002/584 and did so in respect of the two aspects described in point 34 of this Opinion. Accordingly, I am of the view that the Court cannot take a position on the above issue, which was raised by OP during the hearing and which is different from that raised by the referring court.

85.      With those clarifications having been made, I will explain below the reasons which lead me to conclude that Framework Decision 2002/584 requires that judicial review be possible against a decision on precedence between an EAW and an extradition request, when such a decision is adopted by a governmental body, as was argued, in essence, in particular, by the Commission and the Spanish Government. 

(b)    Analysis in the light of Framework Decision 2002/584

86.      It is true that, on this issue, the framework decision is silent, as the French Government observes.

87.      More specifically, Article 16(3) of Framework Decision 2002/584, read in conjunction with Article 16(1) thereof, makes it clear that the decision on precedence is to be taken ‘with due consideration of all the circumstances’, ‘in particular’ seriousness and place of the relevant offences, the respective dates of the requests and whether the requests concern prosecution or execution of a custodial sentence, as well as those specified in the applicable convention. (34) In the light of the non-exhaustive nature of those criteria, the competent authority may also take into account criteria other than those referred to above, such as those mentioned in the Guidelines issued by Eurojust, as the French Government and the Commission observed during the hearing (35) (subject to the applicable extradition convention).

88.      That being said, on the one hand, the Court has always insisted that decisions relating to EAWs must be taken under judicial supervision. Indeed, as the Court has held, Framework Decision 2002/584 ‘is founded on the principle that decisions relating to [EAWs] are attended by all the guarantees appropriate for judicial decisions, inter alia those resulting from the fundamental rights and fundamental legal principles referred to in Article 1(3) of the Framework Decision’. (36)

89.      In that regard, and as has already been noted, the entire system of surrender under Framework Decision 2002/584 requires the involvement of judicial (or equivalent) authorities when an EAW is issued and when it is executed, which requirement reflects also the fact that the issuance and the subsequent execution of an EAW has a major impact on the requested person’s situation.

90.      On the other hand, although the EU legislature made an exception to the above principle of judicial involvement in connection with taking a decision on precedence, which may be conferred on a body of the Member State’s executive, for the reasons that I have discussed earlier, that does not mean that the need for judicial review in such circumstances disappears.

91.      Indeed, and first, decisions on precedence between an EAW and an extradition request are liable to have a significant impact on the legal situation of the person concerned.

92.      In particular, where the decision on precedence results in the EAW being left unexecuted, this means that the requested person, instead of being surrendered to one of the Member States, or possibly even to the Member State of his or her nationality whose language and environment that person understands, may be extradited to a third country whose standards of criminal justice may differ and so may the fundamental rights protection that, as regards fundamental rights recognised by the EU legal order, is presumed to exist in all EU Member States (but not in third countries). (37)

93.      In the same vein, where the precedence is given to the extradition request, the requested person may find himself or herself extradited, depending on the circumstances, to a third country that is far away from the territory of the Member State where the requested person’s family ties may exist, which may accordingly affect the exercise of his or her fundamental right to family life.

94.      While those consequences do not constitute, in general, a reason precluding precedence being granted to a given extradition request, the significance of the decision granting such precedence, in my view, mandates the possibility of judicial review so as to provide for the necessary guarantees, otherwise required under Framework Decision 2002/584, that the requested person’s situation has been examined to the applicable standards.

95.      In that respect, it should be borne in mind that a decision on precedence between an EAW and an extradition request forms part of the specific scheme of surrender established by Framework Decision 2002/584 which provides, in its Article 1(3), already referred to above in point 88 of this Opinion, that that framework decision ‘shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on European Union’. In that regard and by way of an example, the French Government and the Commission referred respectively, at the hearing, to the obligation to respect the prohibition of discrimination or to the necessity of taking into account the fundamental rights of third persons, such as those of small children who may possibly be involved.

96.      In that context, the obligation to ensure judicial review of the question whether the respective fundamental rights guaranteed by the legal order of the Union (as they may become relevant depending on the circumstances and as they are enshrined in the Charter) have been duly considered follows from Article 47(1) of the latter, guaranteeing, in the legal order of the Union, the general principle of effective judicial protection.

97.      Second, and the (primary-law) consideration of fundamental rights protection aside, it is true that a decision on precedence is likely to take into consideration the various interests at stake including those of third countries. In that regard, the EU legislature left the Member States a significant margin of discretion, as the wording of Article 16(3) of Framework Decision 2002/584 attests, and as all the intervening governments and the Commission observed at the hearing.

98.      However, it also follows from the wording of the above provision that the Member States’ discretion is not absolute. Indeed, it follows from Article 16(3) of Framework Decision 2002/584 that the EU legislature decided to frame the consideration of the interests at stake with the requirement that a decision on precedence be adopted ‘with due consideration of all the circumstances’, and in particular those given in Article 16(1) of Framework Decision 2002/584.

99.      In that light, I consider that Article 16(3) of Framework Decision 2002/584 would be deprived of its effectiveness if no judicial review were available to ensure compliance with the above requirement, when the decision on precedence between an EAW and an extradition request is taken by a governmental body.

100. That said, I agree with all the intervening governments which have taken a position on that matter and with the Commission that the scope of judicial review required, specifically, in respect of the assessment of precedence criteria set out in Article 16(3) of Framework Decision 2002/584, is circumscribed. Indeed, considering the wide discretion granted by that provision to the competent authority, it is, in my view, limited to whether all the relevant circumstances were duly taken into account. That, to my mind, means that it is necessary to verify whether the competent authority examined carefully and objectively all the relevant elements of the situation in question and whether it gave a sufficient statement of the reasons for its decision, in compliance with the requirement of effective judicial review enshrined in Article 47 of the Charter, (38) so as to enable the person concerned to contest the result before the national court and to enable the respective court to discharge its duty.

101. Lastly, the question as to the specific conditions under which that judicial review is to be provided and the procedural stage at which it is to be provided, is of course, as the French Government noted in essence at the hearing, for the Member States to determine, in accordance with their procedural autonomy.

102. In the light of the above considerations, I am of the view that where the national legislation of a Member State confers the task of taking a decision, within the meaning of Article 16(3) of Framework Decision 2002/584, on a governmental body, that provision, read in conjunction with Article 1(3) thereof, and with Article 47(1) of the Charter, must be interpreted as requiring judicial review against such decision to be available, under procedural conditions which are for the Member States to determine.

V.      Conclusion

103. In the light of the above considerations, I suggest that the Court reply to Tribunal judiciaire de Marseille (Court of Marseilles, France) as follows:

Article 16(3) of Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States

must be interpreted as:

not precluding national legislation conferring the task of taking a decision on precedence between an European arrest warrant and an extradition request issued in respect of the same person on a governmental body. That provision, read in conjunction with Article 1(3) of that framework decision and Article 47(1) of the Charter of Fundamental Rights of the European Union, requires that such a decision be open to judicial review, under procedural conditions that are to be determined by the Member States.

1      Original language: English.

2      It is not entirely clear whether the Swiss extradition request concerns offences that are different from those at issue in the criminal proceedings pending before the referring court. However, that would seem to be the case based on the information provided in the case file, as I will explain later in this Opinion.

3      Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (OJ 2002 L 190, p. 1).

4      It follows from the information submitted by the Spanish Government that Article 57(1) of Law 23/2014 corresponds, in essence, to Article 16(1) of Framework Decision 2002/584, referred to in the preceding point.

5      See, for instance, judgment of 24 November 2020, Openbaar Ministerie (Forgery of documents) (C‑510/19, EU:C:2020:953, paragraph 25 and the case-law cited).

6      Ibidem, paragraph 26 and the case-law cited.

7      In its written observations, the Spanish Government refers to a letter from the Juzgado Central n  3 (and not n    5) de Madrid (Central Court No 3, Madrid) of 22 September 2022.

8      See, for instance, judgments of 25 July 2018, AY (Arrest Warrant – Witness) (C‑268/17, EU:C:2018:602, paragraphs 28 and 29; of 28 January 2021, Spetsializirana prokuratura (Letter of rights) (C‑649/19, EU:C:2021:75, paragraphs 38 and 39); and of 31 January 2023, Puig Gordi and Others (C‑158/21, EU:C:2022:57, paragraphs 52 to 54). See also judgment of 24 November 2020, Openbaar Ministerie (Forgery of documents) (C‑510/19, EU:C:2020:953, in particular paragraphs 30 to 37).

9      Order of 3 October 2023, Ministerio Fiscal (Extradition of a UK national to the United States) (C‑235/22, EU:C:2023:730).

10      For the sake of completeness, I would note that in the judgment of 6 September 2016, Petruhhin (C‑182/15, EU:C:2016:630, ‘the judgment in Petruhhin’), the Court decided to reply to the questions referred (by a Latvian court) despite the fact that the person whose extradition was requested had left the territory of the requested State (Latvia). Although that case would bear some similarity to the present case, if the extradition of OP were confirmed, the main issue therein concerned the compatibility of the Latvian decision authorising the extradition with EU law, which remained relevant for determining whether that decision could be maintained (should the requested person return later to Latvia). By contrast, no such underlying issue of compatibility of the EAW at issue arises in the present case, which would differentiate the situation from that at issue in the case which gave rise to the judgment in Petruhhin.

11      That specific rule was explained by the fact that giving automatic precedence to an EAW would infringe the above convention of which the Member States are signatories. This is why it was suggested that the automatic precedence rule in favour of the EAW should apply only in respect of extradition requests presented by third countries that are not signatories to that convention. See draft Article 40(3) and the related explanatory memorandum in Proposal for a Council framework Decision on the European arrest warrant and the surrender procedures between the Member States (COM(2001) 522 final).

12      See also judgments of 10 April 2018, Pisciotti (C‑191/16, EU:C:2018:222, paragraphs 41 to 44); of 17 December 2020, Generalstaatsanwaltschaft Berlin (Extradition to Ukraine) (C‑398/19, EU:C:2020:1032, paragraphs 33 to 34); and of 2 April 2020, Ruska Federacija (C‑897/19 PPU, EU:C:2020:262, paragraphs 75 and 76). See further Commission Notice – Handbook on how to issue and execute a European Arrest Warrant (C/2023/1270), point 9.1., and Commission Notice – Guidelines on Extradition to Third States of 8 June 2022 (OJ 2022 C 223, p. 1).

13      Given that OP seems to be a French national, who has exercised his right to free movement, and given also that, in principle, Spain does not seem to extradite its own nationals unless that is specifically provided for in the applicable extradition treaty (see information in Annex 2 to the Commission Notice on how to issue and execute an EAW referred to in footnote 12 above), which elements, however, are for the referring court to verify.

14      Due, as it explained, to the anonymisation of the present reference for a preliminary ruling.

15      Emphasis added.

16      Emphasis added.

17      See also the Czech-, Danish-, Estonian-, Greek-, Dutch-, Portuguese-, or Slovak -language versions.

18      See also the Bulgarian-, Croatian-, Latvian-, Hungarian-, Maltese-, Slovenian-, Finnish-, and Swedish-language versions.

19      I note that the same wording, equivalent to that of Article 16(1) and (3) of Framework Decision 2002/584, is used in Article 19(1) and (3) of the Agreement between the European Union and the Republic of Iceland and the Kingdom of Norway on the surrender procedure between the Member States of the European Union and Iceland and Norway (OJ 2006 L 292, p. 2).

20      Because in other cases, it was suggested that the precedence be automatically given to the EAW, as already noted.

21      See draft Article 40 in the Proposal for a Council framework Decision on the European arrest warrant and the surrender procedures between the Member States (COM(2001) 522 final), cited in footnote 11.

22      See, in particular, Article 6 of Framework Decision 2002/584, which defines those concepts.

23      In its well established case-law, the Court has explained that the concepts of issuing and executing judicial authorities may encompass other bodies that are not courts, by reference to the traditional involvement, in certain legal orders of, in particular, public prosecutors at specific stages of criminal proceedings (provided that such bodies act independently from the executive when carrying out tasks specific to the issuing or executing of EAWs). That aspect of Framework Decision 2002/584 is, however, not at issue in the present case. For the issuing authority see, for instance, judgment of 12 December 2019, Parquet général du Grand-Duché de Luxembourg and Openbaar Ministerie (Public Prosecutors of Lyons and Tours) (C‑566/19 PPU and C‑626/19 PPU, EU:C:2019:1077, paragraph 52 and the case-law cited, as well as paragraph 74). For the executing authority, see judgment of 24 November 2020, Openbaar Ministerie (Forgery of documents) (C‑510/19, EU:C:2020:953, paragraphs 54 and 55).

24      See, for instance, judgment of 27 May 2019, PF (Prosecutor General of Lithuania) (C‑509/18, EU:C:2019:457, paragraph 43 and the case-law cited), or of 24 November 2020, Openbaar Ministerie (Forgery of documents) (C‑510/19, EU:C:2020:953, paragraph 48 and the case-law cited). Emphasis added.

25      See, for instance, judgment of 29 July 2024, MA (C‑202/24, EU:C:2024:649, paragraph 56 and the case-law cited).

26      Judgment of 10 November 2016, Kovalkovas (C‑477/16 PPU, EU:C:2016:861, paragraph 42).

27      The same provision adds that ‘if not so provided in the bilateral extradition treaty, the competent authority shall be designated by the Member State concerned pursuant to Article 19’. See Article 10(2) of the Agreement on extradition between the European Union and the United States of America (OJ 2003 L 181, p. 27).

28      See also Guidelines for deciding on competing requests for surrender and extradition, Eurojust, Revised, 2019, p. 7.

29      I understand that that reference concerns the judgment of the Tribunal Supremo (Supreme Court, Administrative Appeals Chamber, Section 6) of 23 February 2010, ECLI:ECLI:ES:TS:2010:716.

30      See, for instance, judgment of 27 October 2022, Instituto do Cinema e do Audiovisual (C‑411/21, EU:C:2022:836, paragraph 20 and the case-law cited).

31      Judgment of 28 November 2023, Commune d’Ans (C‑148/22, EU:C:2023:924, paragraph 45 and the case-law cited).

32      Directive of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings (OJ 2012 L 142, p. 1).

33      See, to that effect, judgment of 27 October 2022, Instituto do Cinema e do Audiovisual (C‑411/21, EU:C:2022:836, paragraph 21). I would further recall that ‘the information provided in orders for reference serves not only to enable the Court to give useful answers but also to ensure that it is possible for the governments of the Member States and other interested parties to submit observations in accordance with Article 23 of the Statute of the Court of Justice of the European Union’. See, for instance, judgment of 28 November 2023, Commune d’Ans (C‑148/22, EU:C:2023:924, paragraph 47 and the case-law cited).

34      Spain and Switzerland being both contracting parties to the European Convention on Extradition of 1957, I would note that Article 17 of the latter states that ‘if extradition is requested concurrently by more than one State, either for the same offence or for different offences, the requested Party shall make its decision having regard to all the circumstances and especially the relative seriousness and place of commission of the offences, the respective dates of the requests, the nationality of the person claimed and the possibility of subsequent extradition to another State’.

35      Guidelines for deciding on competing requests for surrender and extradition, Eurojust, Revised, 2019, pp. 10-11. Those further factors include dates when the offences were committed and the national rules on prescription, stage of the proceedings and impact of the decision on the various proceedings, prosecution of co-accused and/or prosecution of different members of a criminal organisation; number of offences, interests of victims, the number of victims and their condition (such as vulnerability), any strong personal connections of the requested person with a country, possibility of any subsequent surrender or extradition between the requesting states, or possibility of confiscation. The guidelines stress also the consideration of the nationality of the requested person (in the light of the obligation that may follow from the Petruhhin mechanism). Ibidem, p. 14.

36      See, judgments of 10 November 2016, Kovalkovas (C‑477/16 PPU, EU:C:2016:861, paragraph 37 and the case-law cited) and of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice) (C‑216/18 PPU, EU:C:2018:586, paragraph 56).

37      See, for instance, judgment of 29 July 2024, MA (C‑202/24, EU:C:2024:649, paragraphs 57 and 58 and the case-law cited).

38      See, judgment of 25 April 2024, NW and PQ (Classified information) (C‑420/22 and C‑528/22, EU:C:2024:344, paragraph 81 and the case-law cited).