However the CJEU, underlined that it is for the national court to make the final assessment as to whether the circumstances in the case at hand constitute “force majeure” or not. The CJEU has also concluded that the issuing and executing authorities remain obliged to agree on a new surrender date if the time limits mentioned in Article 23 of the EAW FD have expired. In the mentioned case, the Court of Appeal of Ireland asked the CJEU whether Article 23 EAW FD allows the authorities to agree on a new surrender date on more than one occasion in the event of circumstances beyond one of the Member States’ control and, if so, in what situations.
The CJEU ruled as follows:
Article 23(3) 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, the executing and issuing judicial authorities agree on a new surrender date under that provision where the surrender of the requested person within 10 days of a first new surrender date agreed on pursuant to that provision proves impossible on account of the repeated resistance of that person, in so far as, on account of exceptional circumstances, that resistance could not have been foreseen by
those authorities and the consequences of the resistance for the surrender could not have been avoided in spite of the exercise of all due care by those authorities, which is for the referring court to ascertain.
Articles 15(1) and 23 of Framework Decision 2002/584, as amended by Framework Decision 2009/299, must be interpreted as meaning that those authorities remain obliged to agree on a new surrender date if the time limits prescribed in Article 23 have expired.
Below you may find the main conclusions of the CJEU's judgment on this matter:
EU law does not expressly limit the number of new surrender dates and allows a new surrender date to be set where surrender has failed more than 10 days after the final decision on the execution of the European arrest warrant.
The EU legislature had the intention of referring to the concept of force majeure in the sense of abnormal and unforeseeable circumstances which were outside the control of the party by whom it is pleaded and the consequences of which could not have been avoided in spite of the exercise of all due care. In this context, the resistance put up by a requested person to his surrender may properly be regarded as an abnormal circumstance outside the control of the authorities concerned. On the other hand, that situation cannot, in principle, be classified as an unforeseeable. In a situation where the requested person has already resisted a first surrender attempt, the fact that he also resists a second attempt cannot normally be regarded as unforeseeable.
It cannot be entirely ruled out that, on account of exceptional circumstances, the resistance put up by the requested person to his surrender cannot objectively be foreseen by the authorities concerned and that the consequences of the resistance for the surrender cannot be avoided in spite of the exercise of all due care by those authorities. It is for the referring court to ascertain whether the existence of such circumstances has been established in the present case.
EU law cannot be interpreted as meaning that, once the prescribed time limits have expired, the executing judicial authority is no longer able to agree on a new surrender date with the issuing judicial authority or that the executing Member State is no longer required to carry on with the execution procedure.