• Giulia Borgna

The notion of "force majeure" in EAW (Reference for preliminary ruling)

Updated: Jun 9




Background of the case


The Supreme Court of Finland referred to the CJEU case two questions concerning the scope and effects of the “force majeure” clause contemplated by Article 23 of the EAW FD. The case has been registered under C-804/21 PPU (the summary of the reference is available here).


The case concerns the final phase of a European arrest warrant procedure, in which it has not been possible to execute final decisions on surrender issued for the purpose of execution of a sentence partly for reasons relating to the covid-19 pandemic, but mostly because of legal obstacles relating to actions and applications for asylum lodged by the individuals ordered to be surrendered.


Particularly, the RPs filed applications for asylum. Even though these applications were rejected at the administrative level, the RPs brought appellate proceedings in court. Under Finnish law, asylum seekers are lawfully entitled to stay in the country while the application is under consideration, until a final decision has been made on that application.


In the meantime, the time-limits for the surrender expired and, consequently, the RPs requested their release from detention.


Questions


The Finnish Supreme Court referred two questions pertaining, one, to the scope of the “force majeure” clause and, the other, to the procedural requirements related to the assessment of the existence of “force majeure”.


The first question is whether reasons related to asylum application can be regarded as constituting circumstances preventing surrender which are beyond the control of any of the Member States [“force majeure” in the French version of the FD] within the meaning of Article 23(3) of the FD, so as to enable the time limit for surrender to be extended, which would mean that the individuals ordered to be surrendered were not required to be released pursuant to Article 23(5).


In particular, the Finnish Supreme Court asks the CJEU whether the concept of “force majeure” should be interpreted restrictively only to include situations of repeated physical resistance on the part of the person to be surrendered, as held by the CJEU in Vilkas (judgment of 25 January 2017, C-640/15, para. 58), because if that were the case then legal obstacles relating to actions and applications for asylum and/or arising from a health pandemic would be excluded from the scope of the “force majeure” clause.


The second question arises of the procedure to be followed in the context of an extension of the time limit for surrender of the individual, and of the available remedies.


The CJEU already dealt with the expiry of time-limits for surrender in Vilkas, but it did not address in that judgment the question of which authority is competent to assess whether there is a situation of force majeure or what procedural requirements are imposed as regards the assessment of the grounds for exceeding the time limit and the release of the person ordered to be surrendered.


In Finland, tasks relating to the execution of the surrender are transferred to the keskusrikospoliis (National Bureau of Investigation), which has primary competence to assess whether there are obstacles to the surrender and how surrender would be possible, and to agree a new surrender date. The person to be surrendered has, by way of a remedy, the right to put the case before the court, which can determine whether the delay in execution arises out of a situation of force majeure and, depending on the answer to that question, whether the duration of detention is excessive.


However, considering that the National Bureau of Investigation does not meet the requirements to be regarded as an executing judicial authority within the meaning of Article 6(2) of the FD (cf. CJEU judgment of 24 November 2020, Openbaar Ministerie, C-510/19, paras. 41 and 42), the Finnish Supreme Court wonders whether the judicial remedy described above fully satisfies the requirements inherent in effective judicial protection.