TABLE OF CONTENTS

List of abbreviations

5

PREFACE

8

INTRODUCTION

9

1.

OVERVIEW OF THE EUROPEAN ARREST WARRANT (EAW)

9

1.1.

Background of the EAW

9

1.2.

Definition and main features of the EAW

9

1.3.

The EAW form

11

PART I:

ISSUING AN EAW

11

2.

REQUIREMENTS FOR ISSUING AN EAW

11

2.1.

Scope of the EAW

11

2.1.1.

Criminal prosecution

12

2.1.2.

The concepts of issuing and executing judicial authority

12

2.1.3.

Execution of a sentence or detention order

14

2.1.4.

The requirement for an enforceable judicial decision

14

2.1.5.

The requirement of ensuring an effective judicial protection

16

2.2.

The list of 32 offences which give rise to surrender without verification of double criminality

17

2.3.

Accessory offences

18

2.4.

Proportionality

18

2.5.

Other measures available under Union legal instruments on judicial cooperation in criminal matters

19

2.5.1.

European Investigation Order (EIO)

20

2.5.2.

Transfer of prisoners

21

2.5.3.

European Supervision Order (ESO)

22

2.5.4.

Transfer of probation decisions and alternative sanctions

22

2.5.5.

Financial penalties

23

2.5.6.

Transfer of criminal proceedings

23

2.6.

Rule of speciality – possible prosecution for other offences

23

3.

PROCEDURE FOR ISSUING AN EAW

25

3.1.

Other pending criminal procedures and EAWs concerning the same person

25

3.1.1.

In the issuing Member State

25

3.1.2.

In another Member State

26

3.2.

Filling in the EAW form

27

3.2.1.

Information that is always necessary

27

3.2.2.

Useful additional information from the issuing judicial authority

27

3.3.

Transmitting the EAW

28

3.3.1.

When the location of the requested person is unknown

28

3.3.2.

When the location of the requested person is known

30

3.3.3.

Transmitting the EAW to Member States who do not use the SIS

30

3.4.

Translation of the EAW

30

3.5.

After the requested person is apprehended: cooperation and communication with the competent authorities of the executing Member State

31

PART II:

EXECUTING AN EAW

31

4.

PROCEDURE FOR EXECUTING AN EAW

31

4.1.

Time limits for taking the decision on the execution of the EAW

31

4.2.

Time limits for surrendering the requested person (after the decision on the execution of the EAW)

32

4.3.

Translation of the EAW

33

4.4.

Communication between the competent judicial authorities of Member States prior to the decision on surrender

33

4.4.1.

When to communicate

33

4.4.2.

How to communicate

34

4.5.

Duty of the executing judicial authority to inform the issuing judicial authority after deciding on the surrender

35

4.5.1.

Information on the decision concerning surrender

35

4.5.2.

Information on the time spent in detention

36

4.6.

Keeping the requested person in detention in the executing Member State

37

5.

SURRENDER DECISION

38

5.1.

General duty to execute EAWs

38

5.2.

Provision of information by the issuing judicial authority

38

5.3.

The list of 32 offences which give rise to surrender without verification of double criminality

39

5.4.

Accessory offences

39

5.5.

Grounds for non-execution (refusal)

40

5.5.1.

Mandatory grounds for non-execution

40

5.5.2.

Grounds for optional non-execution

42

5.6.

Trials in absentia

47

5.6.1.

Autonomous concepts of EU law

49

5.7.

Fundamental rights considerations by the executing judicial authority

50

5.7.1.

Considerations relating to detention conditions in the issuing Member State

51

5.7.2.

Considerations relating to the requested person’s right to a fair trial

54

5.8.

Proportionality – the role of the executing Member State

57

5.9.

Guarantees to be given by the issuing Member State

57

5.9.1.

Review of custodial life sentence or lifetime detention order

58

5.9.2.

Returning nationals and residents

58

5.10.

Relationship with Framework Decision 2008/909/JHA on Transfer of Prisoners

59

5.11.

Postponement or temporary surrender

61

5.11.1.

Serious humanitarian reasons

61

5.11.2.

Ongoing criminal procedure or execution of a custodial sentence

61

5.11.3.

Temporary surrender instead of postponement

62

5.11.4.

Postponement of surrender decision due to identification of a real risk of inhuman or degrading treatment for the requested person

62

5.12.

Multiple EAWs concerning the same person

63

5.12.1.

Deciding which EAW to execute

63

5.12.2.

‘Parallel proceedings’

64

6.

DEDUCTION OF THE PERIOD OF DETENTION SERVED IN THE EXECUTING MEMBER STATE

64

7.

RULE OF SPECIALITY – PROCEDURE FOR RENOUNCING THE RULE OF SPECIALITY BY CONSENT OF THE EXECUTING JUDICIAL AUTHORITY

65

8.

SUBSEQUENT SURRENDER

66

8.1.

To the executing Member State on the basis of the Dublin III Regulation

66

8.2.

To another Member State on the basis of an EAW

66

8.3.

To a third State

67

9.

OBLIGATIONS AS REGARDS THIRD COUNTRIES

67

9.1.

Extradition request of a citizen of another Member State

67

9.2.

Concurrent EAWs and extradition requests for the same person

68

9.2.1.

Requests from third States

68

9.2.2.

Requests from the International Criminal Court (ICC)

69

9.3.

Prior extradition from a third State and the rule of speciality

69

10.

TRANSIT

69

10.1.

Transit via another Member State

69

10.2.

Nationals and residents of the Member State of transit

70

10.3.

Extradition from a third State to a Member State

70

11.

NON-EXECUTED EAWS

70

11.1.

Ensuring that the person is not arrested again in the same Member State

70

11.2.

Communication to the issuing Member State

70

11.3.

Consideration by the issuing judicial authorities whether or not to maintain the EAW

71

11.4.

Review of long-standing EAWs in the SIS

71

12.

PROCEDURAL RIGHTS OF THE REQUESTED PERSON

71

12.1.

Right to interpretation and translation

72

12.2.

Right to information

72

12.3.

Right of access to a lawyer

73

12.4.

Right to have a third person informed of the deprivation of liberty

74

12.5.

Right to communicate with third persons

74

12.6.

Right to communicate with consular authorities

74

12.7.

Specific rights for children

74

12.8.

Right to legal aid

74

12.9.

Right to the presumption of innocence and right to be present at trial

75

ANNEX I

76

Framework decision on eaw, unofficial consolidation ()

76

ANNEX II

93

EAW FORM ()

93

ANNEX III

98

Guidelines on how to fill in the eaw form

98

ANNEX IV

107

Languages accepted by the member states when receiving an eaw

107

ANNEX V

109

List of judgments of the court of justice concerning the framework decision on eaw

109

ANNEX VI

112

Judgments of the court of justice concerning the principle of ne bis in idem in criminal matters

112

ANNEX VII

113

Standard Form on EAW Decision

113

ANNEX VIII

115

List of Member States whose legal system may allow for surrender for offences punishable by a lower sanction than the threshold set out in Article 2(1) of the Framework Decision on EAW, when such offences are accessory to the main offence(s) in the EAW ()

115

ANNEX IX

116

INDICATIVE MODEL LETTER OF RIGHTS FOR PERSONS ARRESTED ON THE BASIS OF AN EAW

116

ANNEX X

117

— TEMPLATE FOR INFORMATION REQUESTS ON DETENTION CONDITIONS

117

ANNEX XI

119

Commission recommendation on procedural rights of suspects and accused persons subject to pre-trial detention and on material detention conditions

119

ANNEX XII

133

Commission Notice – Guidelines on Extradition to Third States

133

List of abbreviations

Charter	Charter of Fundamental Rights of the European Union
CISA	Convention Implementing the Schengen Agreement
CoE	Council of Europe
EAW	European Arrest Warrant
ECHR ECtHR EFTA	European Convention on Human Rights European Court of Human Rights European Free Trade Association
EIO	European Investigation Order
EJN	European Judicial Network
ESO	European Supervision Order
FRA	European Union Agency for Fundamental Rights
Framework Decision on EAW	Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States
SIRENE	Supplementary Information Request at the National Entries
SIS	Schengen Information System
TEU	Treaty on European Union
TFEU	Treaty on the Functioning of the European Union

Disclaimer: This handbook is neither legally binding nor exhaustive. It is without prejudice to existing Union law and its future development. It is also without prejudice to the authoritative interpretation of Union law which may be given by the Court of Justice of the European Union.

ISSUING A EUROPEAN ARREST WARRANT

Main steps

(JA = Judicial authority; MS = Member State)

EXECUTING A EUROPEAN ARREST WARRANT

Main steps

(JA = Judicial authority)

PREFACE

The European handbook on how to issue a European arrest warrant (‘EAW’) was first issued by the Council in 2008 (1) and revised in 2010 (2). Following the end of the 5-year transitional period under the Treaty of Lisbon concerning the so-called ex-third pillar legal instruments (3), including Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (4) (‘the Framework Decision on the EAW’), the Commission took over the task of updating and revising the handbook. This handbook is a revised version of the handbook issued by the Commission in 2017 (5).

This handbook takes into account the experience gained over the past 20 years in applying the EAW in the Union. Since the end of the transitional period of the Treaty of Lisbon, the number of EAW judgments by the Court of Justice has substantially increased. The purpose of this revision is to update the handbook by including new judgments issued until 31 July 2023 and addressing certain issues faced by practitioners such as detention conditions. To prepare this latest version of the handbook, the Commission consulted various stakeholders and experts, including Eurojust, the Secretariat of the European Judicial Network, and Member States’ government experts and judicial authorities.

This revision has also taken into account the results of the ninth round of mutual evaluations and the recommendations made in the Council conclusions ‘The European arrest warrant and extradition procedures - current challenges and the way forward’  (6), the report of the European Parliamentary Research Service (7), the European Commission implementation report on the EAW (8) and the European Parliament resolution on the EAW and surrender procedures between Member States (9).

The handbook is available on the internet at: https://e-justice.europa.eu in all official languages of the Union.

INTRODUCTION

1.   OVERVIEW OF THE EUROPEAN ARREST WARRANT (EAW)

1.1.   Background of the EAW

The Framework Decision on EAW was adopted by the Council on 13 June 2002 and Member States were required to take the necessary measures to comply with it by 31 December 2003. From 1 January 2004, the new surrender regime has, with a few exceptions, replaced extradition arrangements. As far as surrender between Member States is concerned, the corresponding provisions of the following conventions have been replaced:

(a)

the European Convention on Extradition of 13 December 1957 (ETS No 024), its Additional Protocol of 15 October 1975 (ETS No 086), its Second Additional Protocol of 17 March 1978 (ETS No 098) and the European Convention on the Suppression of Terrorism of 27 January 1977 (ETS No 090) as far as extradition is concerned;

(b)	the Agreement between the 12 Member States of the European Communities on the simplification and modernisation of methods of transmitting extradition requests of 26 May 1989;

(c)	the Convention of 10 March 1995 on simplified extradition procedure between the Member States of the European Union (10);

(d)	the Convention of 27 September 1996 relating to extradition between the Member States of the European Union (11);

(e)	Title III, Chapter 4 of the Convention of 19 June 1990 implementing the Schengen Agreement of 14 June 1985 on the gradual abolition of checks at common borders (12).

1.2.   Definition and main features of the EAW

The EAW is a judicial decision enforceable in the Union that is issued by a Member State and executed in another Member State on the basis of the principle of mutual recognition.

The EAW replaced the traditional system of extradition with a simpler and quicker mechanism for the surrender of requested persons for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order. An EAW may be issued for the purposes of:

(a)	a criminal prosecution in relation to acts punishable under domestic law by a custodial sentence or detention order for a maximum period of at least 12 months (during the investigation, examining and trial stages, until the conviction is final);

(b)	the execution of a sentence or detention order of at least 4 months.

Points (a) and (b) are not cumulative.

To make requests simpler and easier to comply with, they are issued in a uniform way by filling in an EAW form. It is, however, always necessary that a national enforceable judgment or a national arrest warrant or similar judicial decision has been issued prior to and separately from the EAW (see Section 2.1.4).

Central authorities, which used to play a significant role in the extradition process, are excluded from the decision-making process in EAW procedures. They cannot substitute that central authority for the competent judicial authorities (see Section 2.1.2) in relation to the decision to issue the EAW (13). However, Article 7 of the Framework Decision on EAW provides that Member States may designate central authorities to assist and support the judicial authorities, especially for receiving and transmitting EAWs.

In the Member States where the Schengen Information System (SIS) is in operation (i.e. all Member States (14)) the national SIRENE Bureaux play an important role in the EAW process when a corresponding alert has been created in the SIS. The rules and procedures for Member States’ cooperation concerning alerts for arrest based on EAWs are set out in Articles 24 to 31 of Regulation (EU) 2018/1862 (15) (the ‘SIS Police Regulation’), Chapters 6 and 7 of the Commission Implementing Decision laying down detailed rules for the tasks of the SIRENE Bureaux (16) (the ‘SIRENE Manual – Police’) and the Commission Implementing Decision on laying down the technical rules necessary for entering, updating, deleting and searching data in the SIS (‘the Commission Implementing Decision on SIS data entry’) (17). In addition, further explanations on SIS alert management can be found in the ‘SIS Handbook’  (18).

The Framework Decision on EAW reflects a philosophy of integration in a common judicial area. It is the first legal instrument involving cooperation between the Member States on criminal matters based on the principle of mutual recognition. The issuing Member State’s decision must be recognised without further formalities and solely on the basis of judicial criteria.

The surrender of nationals is a principle and a general rule, with few exceptions. These exceptions concern the enforcement of custodial sentences in one’s home country and apply equally to residents. In practice, about one fifth of all surrenders in the Union concern a country’s own nationals.

The grounds for refusal of execution are, in principle, limited and listed in Articles 3, 4 and 4a of the Framework Decision on EAW. There is no verification of double criminality as a ground for non-execution and non-surrender with regard to 32 categories of offences listed in Article 2(2) of the Framework Decision on EAW, as defined by the issuing Member State, where those offences are punishable in the issuing Member State by a custodial sentence or a detention order for a maximum period of at least 3 years.

If the offences in question are not regarded by the competent authority of the issuing Member State as offences falling within Article 2(2) of the Framework Decision on EAW, double criminality may still apply. It was held by the Court of Justice in its judgment in Case C-289/15 Grundza  (19) that, when assessing double criminality, the competent authority of the executing Member State is required to verify whether the factual elements underlying the offence would also, per se, be subject to a criminal penalty in the executing Member State if they were present in that State. In its judgment in Case C-168/21 Procureur général près la cour d'appel d'Angers  (20), the Court of Justice confirmed that the condition of double criminality under Articles 2(4) and 4(1) of the Framework Decision on EAW will be met where the EAW is issued for the purpose of enforcing a custodial sentence for acts which relate, in the issuing Member State, to an offence requiring that those acts impair a legal interest protected in that Member State, even when the impairment of a corresponding legal interest is not a constituent element of the criminal offence under the law of the executing Member State. (see Section 5.3).

Since 28 March 2011, the Framework Decision on EAW has been amended by Council Framework Decision 2009/299/JHA (21), which deleted Article 5(1) and inserted a new Article 4a on decisions rendered in the absence of the person concerned at the trial (trial in absentia).

1.3.   The EAW form

The EAW is a judicial decision issued in the form laid down in an annex to the Framework Decision on EAW. The form is available in all the official languages of the Union. Only this form may be used and it must not be altered. The intention of the Council was to create a working tool that can be easily filled in by the issuing judicial authorities and recognised by the executing judicial authorities.

Use of the form avoids lengthy and expensive translations and makes the information more accessible. Since the form in principle constitutes the sole basis for the arrest and subsequent surrender of the requested person, it should be filled in with particular care in order to avoid unnecessary requests for supplementary information.

The form can be filled in either directly online by using the European Judicial Network (EJN) Compendium e-tool available on the EJN website (https://www.ejn-crimjust.europa.eu/ejn/EJN_Compendium/EN/ff/EAW), or in a Word format which can be downloaded from the EAW section of the Judicial Library on the EJN website (https://www.ejn-crimjust.europa.eu; please visit Judicial Library ☐ Legal Framework ☐ EU Judicial Cooperation ☐ European arrest warrant ☐ EAW Forms). The forms are available in all EU languages.

Using the Compendium is as easy as filling in a Word form but has several modern, useful and user-friendly features, such as:

(a)	the possibility of directly importing the competent executing judicial authority from the EJN Judicial Atlas tool;

(b)	obtaining the form in the language(s) accepted by the executing Member State;

(c)	saving and sending it by email.

PART I:   ISSUING AN EAW

2.   REQUIREMENTS FOR ISSUING AN EAW

2.1.   Scope of the EAW

A judicial authority may issue an EAW for two purposes (Article 1(1) of the Framework Decision on EAW):

(a)	criminal prosecution; or

(b)	execution of a custodial sentence or detention order.

Point (a) concerns criminal procedures where the requested person can be prosecuted (see Section 2.1.1).

Point (b) concerns enforceable custodial sentences or detention orders for criminal offences issued by a court (see Section 2.1.3). Issuing an EAW is not possible for all crimes but is limited to those of sufficient severity, as explained in more detail below.

An EAW can only be issued by a judicial authority which satisfies the concept of judicial authority within the meaning of the Framework Decision (see Section 2.1.2) and only once an enforceable domestic judicial decision has been taken (see Section 2.1.4). Either this national decision or the decision to issue the EAW must meet the requirements of effective judicial protection prior to the surrender of the requested person by the executing Member State (see Section 2.1.5).Issuing judicial authorities must consider whether, in the particular case, issuing an EAW would be proportionate (see Section 2.4). Moreover, they are advised to consider whether any less coercive Union measure could be used to achieve an adequate result (see Section 2.5).

2.1.1.   Criminal prosecution

An EAW may be issued for the purposes of conducting a criminal prosecution in relation to acts punishable under domestic law by a custodial sentence or a detention order for a maximum period of at least 12 months (Article 2(1) of the Framework Decision on EAW).

This refers to the maximum possible punishment for the offence laid down in the national law of the issuing Member State. The maximum punishment in the law of the executing Member State is not relevant in this regard.

Order of the Court of Justice in Case C-463/15 PPU, Openbaar Ministerie v A  (22)

‘Conducting a criminal prosecution’ includes the pre-trial stage of criminal proceedings. However, the purpose of the EAW is not to transfer persons merely for questioning them as suspects. For that purpose, other measures, such as a European Investigation Order (EIO), could be considered instead. In Section 2.5 other measures of judicial cooperation are briefly presented.

2.1.2.   The concepts of issuing and executing judicial authority

Article 6(1) of the Framework Decision on EAW provides that the issuing judicial authority shall be the judicial authority of the issuing Member State which is competent to issue an EAW by virtue of the law of that Member State. It should also be noted that, in accordance with Article 33 of Regulation (EU) 2017/1939, the handling European Delegated Prosecutor may issue or request the competent authority of that Member State to issue a European Arrest Warrant in accordance with Council Framework Decision 2002/584/JHA, where it is necessary to arrest and surrender a person who is not present in the Member State (23).

As noted by the Court of Justice in its judgments in Case C-452/16 PPU Poltorak  (24) and Case C-477/16 PPU Kovalkovas  (25), it follows from Article 1(1) of the Framework Decision on EAW that the EAW constitutes a ‘judicial decision’, which must be issued by a ‘judicial authority’ within the meaning of Article 6(1) of the Framework Decision on EAW (26).

The Court of Justice ruled that the term ‘judicial authority’, contained in Article 6(1) of the Framework Decision on EAW, is not limited to designating only the judges or courts of a Member State. It may also extend, more broadly, to the authorities participating in the administration of criminal justice in the legal system concerned, as distinct from ministries or police services that are part of the executive.

In its judgment in Case C-509/18 PF  (27), the Court of Justice thus ruled that the Prosecutor General of a Member State who, while institutionally independent from the judiciary, is responsible for the conduct of criminal prosecutions and whose legal position, in that Member State, affords him a guarantee of independence from the executive in connection with the issuing of EAW, can be regarded as an ‘issuing judicial authority’ within the meaning of Article 6(1) of the Framework Directive on EAW.

The Court of Justice also ruled in its judgment in Joined Cases C-508/18 and C-82/19 PPU OG and PI  (28) that public prosecutors’ offices, which are competent in criminal proceedings to prosecute a person suspected of having committed a criminal offence, must be regarded as participating in the administration of justice of the relevant Member State but can only be regarded as an ‘issuing judicial authority’ within the meaning of Article 6(1) of the Framework Decision on EAW if they are not exposed to the risk of being subject, directly or indirectly, to directions or instructions in a specific case from the executive, such as a Minister for Justice, in connection with the adoption of a decision to issue an EAW.

According to the Court of Justice’s judgment in C-489/19 NJ  (29), the concept of an EAW referred to in Article 1(1) must be interpreted as meaning that EAWs issued by the public prosecutor’s offices of a Member State fall within that concept, despite the fact that those public prosecutor’s offices are exposed to the risk of being subject, directly or indirectly, to directions or instructions in a specific case from the executive, such as a Minister for Justice, in the context of the issue of those EAWs, provided that those arrest warrants are subject, in order to be transmitted by those public prosecutor’s offices, to endorsement by a court which reviews independently and objectively, having access to the entire criminal file to which any specific directions or instructions from the executive are added, the conditions of issue and the proportionality of those arrest warrants, thus adopting an autonomous decision which gives them their final form.

In Joined Cases C-566/19 PPU and C-626/19 PPU JR and YC  (30), the Court of Justice confirmed that the public prosecutors of a Member State, who are responsible for conducting prosecutions acting under the direction and supervision of their hierarchical superiors are covered by the term ‘issuing judicial authority’ provided that their status affords them a guarantee of independence, in particular in relation to the executive in connection with the issuing of an EAW. This was reiterated by the Court of Justice in Case C-813/19 PPU MN  (31).

As highlighted by the Court of Justice in Case C-414/20 PPU MM  (32), Article 6(1) of the Framework Decision on EAW must be interpreted as meaning that the status of ‘issuing judicial authority’, within the meaning of that provision, is not conditional on there being a review by a court of the decision to issue the EAW and of the national decision upon which that warrant is based. Indeed, it follows from the Court of Justice’s settled case-law that if an EAW is issued by an authority other than a court, judicial review is not a condition for classifying that authority as an issuing judicial authority since judicial review does not fall within the scope of the statutory rules and institutional framework of that authority, but concerns the procedure for issuing the EAW (33).

In Joined Cases C-354/20 PPU and C-412/20 PPU L and P  (34), the Court furthermore ruled that systemic or generalised deficiencies concerning the independence of the issuing Member State’s judiciary do not, however serious, enable an executing judicial authority to consider that all the courts of that Member State fail to fall within the concept of an ‘issuing judicial authority’ within the meaning of Article 6(1) of the Framework Decision on EAW.

Moreover, the Court of Justice held in Case C-158/21 Puig Gordi and Others  (35) that the executing judicial authority may not verify whether an EAW has been issued by a judicial authority, which had jurisdiction for that purpose, and refuse to execute that EAW where it considers that that is not the case.

Article 6(2) of the Framework Decision on EAW provides that the executing judicial authority shall be the judicial authority of the executing Member State which is competent to execute an EAW by virtue of the law of that State.

The Court of Justice confirmed in Case C-510/19 AZ  (36) that the concept of ‘executing judicial authority’ within the meaning of Article 6(2) of Framework Decision on EAW must be interpreted in the same manner as the concept of ‘issuing judicial authority’ within the meaning of Article 6(1) of that Framework Decision.

In Case C-492/22 PPU CJ  (37), the Court of Justice clarified that Article 24(1) of the Framework Decision on EAW must be interpreted as meaning that the decision to postpone surrender constitutes a decision on the execution of an EAW which, under Article 6(2) of that framework decision, must be taken by the executing judicial authority.

In Case C-804/21 PPU C and CD  (38), the Court of Justice further clarified that the intervention on the part of the executing judicial authority for the purpose of assessing whether there is a situation of force majeure and, as the case may be, setting a new surrender date, cannot be made the responsibility of a police service of the executing Member State. The finding of a situation of force majeure by the police services of the executing Member State, followed by the setting of a new surrender date, without intervention on the part of the executing judicial authority does not in fact meet the formal requirements laid down in Article 23(3) of Framework Decision 2002/584, irrespective of whether that situation actually exists. It follows that, in such circumstances, the time limits laid down in Article 23(2) to (4) of the Framework Decision cannot be validly extended pursuant to paragraph 3 of that article.

2.1.3.   Execution of a sentence or detention order

An EAW may be issued for the purposes of execution of a sentence or detention order of at least 4 months (Article 2(1) of the Framework Decision on EAW). However, in situations where only a short period of the sentence remains to be served, competent judicial authorities are required to consider whether issuing an EAW would be a proportionate measure (see Section 2.4).

Domestic rules on early or conditional release, probation or other similar rules resulting in shorter effective imprisonment which may apply following the surrender to the issuing Member State are not relevant when determining the minimum period of 4 months.

There is no link between the length of the actual and potential punishment. This means that where a person has already been sentenced to a combined custodial sentence for multiple offences and that sentence is 4 months or more, the EAW may be issued regardless of the maximum possible sentence for each of the individual offences.

Where the person is known to reside in another Member State, the competent authorities of the issuing Member State are advised to consider the possibility of transferring the enforceable sentence to the Member State of residence, instead of issuing an EAW, taking into account the person’s social ties and chances for better rehabilitation in that Member State and other requirements in accordance with Council Framework Decision 2008/909/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union (39) (see Section 2.5.2).

2.1.4.   The requirement for an enforceable judicial decision

The issuing judicial authorities must always ensure that there is an enforceable domestic judicial decision before issuing the EAW. The nature of this decision depends on the purpose of the EAW.

When the EAW is issued for the purposes of prosecution, a national arrest warrant or any other enforceable judicial decision having the same effect must have been issued by the competent judicial authorities of the issuing Member State (Article 8(l)(c) of the Framework Decision on EAW) prior to issuing an EAW. It was confirmed by the Court of Justice in its judgment in Case C-241/15 Bob-Dogi  (40) that the national arrest warrant or other judicial decision is distinct from the EAW itself.

As the Court of Justice noted in Case C-241/15 Bob-Dogi, the EAW system entails a dual level of protection for procedural rights and fundamental rights which must be enjoyed by the requested person – judicial protection provided at the first level, at which a national judicial decision, such as a national arrest warrant, is adopted, and the protection that is afforded at the second level, at which an EAW is issued. That dual level of judicial protection is, in principle, lacking in a situation where no domestic judicial decision, on which the EAW will be based, has been taken by a national judicial authority before the EAW is issued.

The term ‘judicial decision’ (that is distinct from the EAW itself) within the meaning of Article 8(1)(c) of the Framework Decision on EAW was further clarified by the Court of Justice in its judgment in Case C-453/16 PPU Özçelik  (41), where it was concluded that a confirmation by the public prosecutor’s office of a national arrest warrant that was issued by the police, and on which the EAW is based, is covered by the term ‘judicial decision’.

Judgment of the Court of Justice in Case C-453/16 PPU, Özçelik

In its judgment in Case C-414/20 MM  (42), the Court of Justice further specified the meaning that must be given to the concept ‘[national] arrest warrant or any other enforceable judicial decision having the same effect’:

In this case, the Court of Justice ruled that it is for the national court in the issuing Member State to determine, in the light of national law, what consequences the absence of a valid national arrest warrant as a legal basis for the EAW may have on the decision whether or not to keep the person already surrendered in pre-trial detention.

When the EAW is issued for the purposes of execution of a custodial sentence or a detention order, there must be an enforceable domestic judgment to that effect. In some Member States’ legal systems, an EAW for the execution of a custodial sentence or a detention order can be issued even if the sentence is not final and still subject to judicial review. In other Member States’ legal systems, this type of EAW can be issued only when the custodial sentence or detention order is final. It is recommended that the executing judicial authority recognises the issuing judicial authority’s classification for the purpose of execution of the EAW, even if it does not correspond to its own legal system in this regard.

The existence of the domestic judicial decision or arrest warrant must be indicated on the EAW form when the EAW is issued (Article 8(l)(c) of the Framework Decision on EAW and see Section 3.2). The decision or warrant does not need to be attached to the EAW.

In Case C-488/19 JR  (43), the Court of Justice specified that an EAW may be issued on the basis of a judicial decision of the issuing Member State ordering the execution, in that Member State, of a sentence imposed by a court of a third State where, pursuant to a bilateral agreement between those States, the judgment in question has been recognised by a decision of a court of the issuing Member State. However, the issuing of the EAW is subject to two conditions: (i) a custodial sentence of at least 4 months has been imposed on the requested person; and (ii) the procedure leading to the adoption in the third State of the judgment recognised subsequently in the issuing Member State has complied with fundamental rights and, in particular, with the obligations arising under Articles 47 and 48 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

2.1.5.   The requirement of ensuring an effective judicial protection

In its judgment in Case C-241/15 Bob-Dogi  (44), the Court of Justice confirmed that the EAW system entails a dual level of protection for procedural and fundamental rights, in particular in light of Article 47 of the Charter, which must be enjoyed by the requested person (see Section 2.1.4). In addition to the judicial protection provided at the first level, at which a national judicial decision, such as a national arrest warrant, is adopted, this includes the protection that must be afforded at the second level, at which an EAW is issued.

In its judgments in Joined Cases C-508/18 and C-82/19 PPU OG and PI  (45) and in Case C-509/18 PF  (46) the Court of Justice held that a decision meeting the requirements inherent in effective judicial protection should be adopted, at least at one of the two levels of that protection. The Court of Justice ruled that where the law of the issuing Member State confers the competence to issue an EAW on an authority that, although participating in the administration of justice in that Member State, is not itself a court, the decision to issue such an arrest warrant and, inter alia, the proportionality of such a decision must be capable of being the subject, in the Member State, of court proceedings that meet in full the requirements inherent in effective judicial protection.

It follows from the Court of Justice’s case-law that a person who is the subject of an EAW for the purpose of criminal prosecution must be afforded effective judicial protection before being surrendered to the issuing Member State, at leastat one of the two levels of protection required by that case-law.

In its judgments in Joined Cases C-566/19 PPU and C-626/19 PPU JR and YC  (47) and in Case C-625/19 PPU XD  (48), the Court of Justice held that the inclusion, within the legal system of the issuing Member State, of procedural rules according to which the proportionality of the decision of the public prosecutor’s office to issue an EAW may be subject to judicial review before or almost at the same time as the EAW is issued and, in any event, after it has been issued meets the requirement of effective judicial protection. In the cases that gave rise to those judgments, that finding was based on the existence of a set of procedural provisions guaranteeing the involvement of a court as soon as the national arrest warrant was issued against the requested person and, therefore, before the requested person was surrendered.

In Case C-625/19 PPU XD  (49), the Court of Justice ruled that it is for the Member States to ensure that their legal orders effectively safeguard the level of judicial protection required by the Framework Decision on EAW, as interpreted by the Court’s case-law, by means of the remedies which they provide and which may vary from one system to another. In particular, introducing a separate right of appeal against the decision to issue an EAW taken by a judicial authority other than a court is just one possibility in that regard.

However, in Case C-414/20 MM  (50) the Court of Justice clarified that, while the Framework Decision on EAW leaves the national authorities some discretion, in accordance with the procedural autonomy which they enjoy, as to the specific manner of implementation of the objectives it pursues, with respect inter alia to the possibility of providing for a certain type of appeal against decisions relating to an EAW, the Member States must nevertheless ensure that they do not frustrate the requirements flowing from that framework decision, in particular regarding the judicial protection which underlies it. Accordingly, where the procedural law of the issuing Member State does not provide for a separate legal remedy allowing a court to review the conditions under which the EAW was issued and its proportionality, whether before, after, or at the same time as its adoption, the Framework Decision on EAW, read in the light of the right to effective judicial protection enshrined in Article 47 of the Charter, must be interpreted as meaning that a court which is called upon to give a ruling at a stage in the criminal proceedings which follows the surrender of the requested person must be able to carry out an indirect review of the conditions under which that warrant was issued if the validity of that warrant has been challenged before it.

In Case C-648/20 PI  (51), the Court of Justice ruled that Article 8(1)(c) of the Framework Decision on EAW, read in the light of Article 47 of the Charter, must be interpreted as meaning that the requirements inherent in the effective judicial protection that must be afforded to a person who is the subject of an EAW for the purpose of criminal prosecution are not satisfied where both the EAW and the judicial decision on which that warrant is based are issued by a public prosecutor – who may be classified as an ‘issuing judicial authority’ within the meaning of Article 6(1) of the Framework Decision on EAW – but cannot be reviewed by a court in the issuing Member State prior to the surrender of the requested person by the executing Member State.

A judicial review of a prosecutor’s decision to issue an EAW which takes place only after the requested person has been surrendered does not satisfy the obligation of the issuing Member State to implement procedural rules allowing a court to review, prior to that surrender, the lawfulness of the national arrest warrant, where adopted by a prosecutor, or of the EAW.

Where an EAW is issued for the purposes of executing a custodial sentence, the Court of Justice ruled in Case C-627/19 PPU ZB  (52) that such a warrant is, as is apparent from Article 8(1)(c) and (f) of Framework Decision on EAW, based on an enforceable judgment imposing a custodial sentence on the person concerned, by which the presumption of innocence enjoyed by that person is rebutted in judicial proceedings that must meet the requirements laid down in Article 47 of the Charter. In such a situation, the judicial review referred in judgments OG and PI  (53), which meets the need to ensure effective judicial protection for the person requested on the basis of an EAW issued for the purposes of executing a sentence, is carried out by the enforceable judgment. Furthermore, where an EAW is issued for the purposes of executing a sentence, it follows that it is proportional from the sentence imposed, which, as is clear from Article 2(1) of Framework Decision on EAW, must consist of a custodial sentence or a detention order of at least 4 months.

2.2.   The list of 32 offences which give rise to surrender without verification of double criminality

Before issuing the EAW, the competent judicial authority should determine whether one or more of the offences belong to one of the 32 categories in respect of which the verification of double criminality does not apply. The list of offences is in Article 2(2) of the Framework Decision on EAW and also on the EAW form, where offences belonging to the list should be ‘ticked’.

It is the issuing Member State’s law which is decisive. This was confirmed in the judgment in Case C-303/05 Advocaten voor de Wereld  (54) where the Court of Justice held that Article 2(2) of the Framework Decision on EAW is not incompatible with the principle of the legality of criminal offences and penalties and does not breach the principle of equality and non-discrimination.

The executing judicial authority can only verify double criminality in respect of offences that are not in the list of 32 offences (see also Section 5.3).

2.3.   Accessory offences

The 1957 European Convention on Extradition contains a provision on accessory offences:

In the Framework Decision on EAW, there is no similar provision. It does not regulate surrender for offences punishable by a lower sanction than the threshold set out in Article 2(1) when they are accessory to the main offences that meet that threshold. In practice, some Member States have decided to allow such surrender but others do not.

Annex VIII contains a list of Member States whose legal system provides for the possibility to surrender for accessory offences.

The issuing judicial authority may include such accessory offences on the EAW form with the aim of obtaining the executing Member State’s consent for prosecuting those offences. However, the EAW must always be issued for at least one offence that meets the threshold set out in Article 2(1) of the Framework Decision on EAW.

If the executing Member State does not surrender for accessory offences, the rule of speciality (Article 27 of the Framework Decision on EAW) might preclude the issuing Member State from prosecuting those offences (see Section 2.6).

2.4.   Proportionality

An EAW should always be proportional to its aim. Even where the circumstances of the case fall within the scope of Article 2(1) of the Framework Decision on EAW, the Court of Justice ruled in Joined Cases C-508/18 and C-82/19 PPU OG and PI  (55) as well as in Case C-414/20 MM  (56) that the issuing judicial authorities must review whether, in the light of the particular circumstances of each case – taking into account all incriminatory and exculpatory evidence,– it is proportionate to issue the EAW (see also Section 2.1.5).

The Court of Justice ruled in Case C-627/19 PPU ZB  (57) that, where an EAW is issued for the purposes of executing a sentence, it follows that it is proportional from the sentence imposed, which (as is clear from Article 2(1) of Framework Decision on EAW) must consist of a custodial sentence or a detention order of at least 4 months.

Considering the severe consequences that the execution of an EAW has for the requested person’s liberty and the restrictions on free movement, the issuing judicial authorities should consider assessing a number of factors in order to determine whether issuing an EAW is justified.

In particular the following factors could be taken into account:

(a)	the seriousness of the offence (for example, the harm or danger it has caused);

(b)	the likely penalty imposed if the person is found guilty of the alleged offence (for example, whether it would be a custodial sentence);

(c)	the likelihood of detention of the person in the issuing Member State after surrender;

(d)	the interests of the victims of the offence.

Furthermore, issuing judicial authorities should consider whether other judicial cooperation measures could be used instead of issuing an EAW. Other Union legal instruments on judicial cooperation in criminal matters provide for other measures that in many situations, are effective but less coercive (see Section 2.5).

On a more general note, applying the proportionality check before issuing an EAW can reinforce mutual trust among Member State’s competent authorities. Therefore, it significantly contributes to the effective operation of the EAW throughout the Union.

2.5.   Other measures available under Union legal instruments on judicial cooperation in criminal matters

Before deciding to issue an EAW, the issuing judicial authorities are advised to give due consideration to other possible measures.

There are several measures available under Union legal instruments on judicial cooperation in criminal matters, based on the principle of mutual recognition, that complement the EAW. In some situations, these measures might be more appropriate than the EAW. Such measures include, in particular:

(a)	the European Investigation Order;

(b)	the transfer of prisoners;

(c)	the transfer of probation decisions and alternative sanctions;

(d)	the European Supervision Order;

(e)	the enforcement of financial penalties.

The scope of these measures is explained briefly in Sections 2.5.1 to 2.5.5. In addition, competent authorities may take into account the possibilities offered by other international measures, such as the Council of Europe Convention on the Transfer of Proceedings in Criminal Matters of 15 of May 1972 (ETS No 073) as explained briefly in Section 2.5.6.

More information on the practical application of Union legal instruments on judicial cooperation in criminal matters can be found on the EJN website: www.ejn-crimjust.europa.eu.

The Judicial Library section of the EJN website contains comprehensive and practical information about each legal instrument, including texts published in the Official Journal of the European Union, amending acts, status of implementation, forms in Word format, notifications, statements, reports, handbooks and other practical information. For easy access to the Union legal instruments on judicial cooperation and to the status of their implementation in the Member States, there are separate entry points (shortcuts) on the homepage of the EJN website.

The following measures in particular might be considered at the pre-trial stage of criminal proceedings:

(a)

issuing an alert in the SIS for the purpose of discreet checking - discreetly collecting as much information concerning the suspect’s location, place, time and reason for the check, travel, destination, any associates and possessions as possible (discreet check alerts can be issued following the provisions in Article 36 of the SIS Police Regulation and are executed in line with Article 37 of the SIS Police Regulation (58));

(b)	issuing a European Investigation Order (EIO) for a suspect to be heard via a video link in another Member State;

(c)	issuing a European Investigation Order (EIO) for a suspect to be heard in another Member State by the competent authorities of that Member State;

(d)	issuing a European Supervision Order (ESO) for a non-custodial supervision measure concerning the suspect, which is to be executed by the Member State of residence of the suspect in the pre-trial stage;

(e)

issuing an alert in the SIS for the purpose of communicating the place of residence or domicile of a person (see Article 34 of the SIS Police Regulation (59)). Such alerts differ from the alerts for arrest that are described under Section 3.3.1 and should be issued only in situations where issuing an EAW and alert for arrest in the SIS is disproportionate or impossible. As soon as the place of residence or domicile has been provided to the issuing judicial authority, that authority needs to delete the alert from the SIS (see Article 55(3) of the SIS Police Regulation) and take the necessary follow-up measures (such as requiring the suspect to appear before a relevant authority responsible for criminal proceedings). The taking of these follow-up measures is, however, not the objective of this type of SIS alert.

(f)	requiring a suspect located in the executing Member State to appear before a relevant authority responsible for criminal proceedings in the issuing Member State;

(g)	inviting a person to attend the criminal procedure voluntarily.

The following measures, in particular, might be considered at the post-trial stage, once the sentence has been passed:

(a)	transferring a custodial sentence to the Member State of residence of the convicted person to be executed by that Member State;

(b)	transferring an alternative sentence (for example, community service) or a probation order to the Member State of residence of the convicted person to be executed by that Member State.

2.5.1.   European Investigation Order (EIO)

Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the European Investigation Order in criminal matters  (60)

The EIO can be used for obtaining evidence from another Member State. The EIO covers any investigative measure, with the exception of setting up joint investigation teams. The goal is to allow one Member State to request another Member State to carry out investigative measures or to obtain evidence that is already in the possession of the executing authority on the basis of mutual recognition. EIOs concerning investigative measures that do not exist or are not available in the executing Member State can nonetheless be executed by way of recourse to an alternative investigative measure.

The EIO replaces the corresponding provisions of the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union (61) and the previous patchwork of legal provisions in this area. Incorporating the existing measures into a single new instrument aims to make judicial cooperation faster and more efficient. The EIO can be used in criminal proceedings including those brought by administrative authorities with judicial validation when there is a criminal dimension. In this context, it should be noted that in Case C-584/19 A and Others  (62) the Court clarified that Article 1(1) and Article 2(c) of Directive 2014/41/EU must be interpreted as meaning that the concepts of ‘judicial authority’ and ‘issuing authority’, within the meaning of those provisions, include the public prosecutor of a Member State or, more generally, the public prosecutor’s office of a Member State, regardless of any relationship of legal subordination that might exist between that public prosecutor or public prosecutor’s office and the executive of that Member State and regardless of the exposure of that public prosecutor or public prosecutor’s office to the risk of being directly or indirectly subject to orders or individual instructions from the executive when adopting an EIO.

Member States must decide on the recognition or execution of an EIO within 30 days of receipt of the EIO by the competent executing authority and carry out the investigation measure within 90 days following the taking of that decision.

In some situations, an EIO might be issued for questioning the suspect via video link in order to determine whether or not to issue an EAW for the purposes of prosecuting him.

Example 1: Pierre has recently moved from Member State A to Member State B. There is evidence to suggest that he was an accomplice in a serious offence in A. However, the authorities of A need to question him before being able to decide whether to prosecute him. The judicial authority of A can issue an EIO for questioning Pierre via a video link in B.

Example 2: Alternatively, given the facts of Example 1, the judicial authority of A could issue an EIO requesting the competent authorities in B to question Pierre and produce a written transcript of the hearing.

2.5.2.   Transfer of prisoners

Council Framework Decision 2008/909/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union  (63)

Framework Decision 2008/909/JHA provides a system for transferring convicted prisoners back to the Member State of their nationality or habitual residence or to another Member State with which they have close ties. Framework Decision 2008/909/JHA also applies where the sentenced person is already in that Member State. The consent of the sentenced person to such a transfer is no longer a prerequisite in all cases. This Framework Decision has, for Member States, replaced the Council of Europe Convention on the Transfer of Sentenced Persons of 21 March 1983 (ETS No 112) and its additional Protocol of 18 December 1997 (ETS No 167).

In certain situations, instead of issuing an EAW for the surrender of the person to serve the sentence in the Member State where the sentence was handed down, Framework Decision 2008/909/JHA could be used to execute the sentence in the place where the convicted person resides and might have better chances of rehabilitation.

Article 25 of Framework Decision 2008/909/JHA also contains a specific provision concerning the enforcement of custodial sentences in the executing Member State in cases falling under Articles 4(6) and 5(3) of the Framework Decision on EAW (see Sections 5.5.2 and 5.9.2 on the link between the two Framework Decisions). In cases where Article 4(6) or 5(3) of the Framework Decision on EAW is applied, Framework Decision 2008/909/JHA must also be applied for transferring the sentence to the Member State where it is executed.

Example 1

Jerzy is a national of, and habitually lives in, Member State B. During his visit to Member State A, he commits an offence. He is sentenced in A to two years in prison.

The authorities in A may transfer the sentence for execution in B without Jerzy’s consent, if this improves the chances of his rehabilitation and other conditions of Framework Decision 2008/909/JHA are met.

Example 2

Gustav is a national of Member State B but lives in Member State A where he has a permanent job and where his family also lives. In Member State В he is convicted for a tax offence and receives a custodial sentence. Instead of issuing an EAW for the execution of the sentence, the authorities in Member State В may transfer the custodial sentence to be served in Member State A if Member State A consents to the forwarding of the judgment.

2.5.3.   European Supervision Order (ESO)

Council Framework Decision 2009/829/JHA of 23 October 2009 on the application, between Member States of the European Union, of the principle of mutual recognition to decisions on supervision measures as an alternative to provisional detention  (64)

Framework Decision 2009/829/JHA introduced the possibility of transferring a non-custodial supervision measure from the Member State where a non-resident is suspected of having committed an offence to the Member State where the person is resident. This allows a suspect to be subject to a supervision measure in his or her normal environment until the trial takes place in the other Member State. The European Supervision Order (‘ESO’) may be used for all non-custodial pre-trial supervision measures (for example, travel restrictions and the duty to report regularly).

The prosecuting Member State will determine whether or not an order to transfer a decision on supervision measures is made. The types of supervision measures covered are set out in Framework Decision 2009/829/JHA and the subsequent declarations by each Member State (65)). The transfer of a supervision measure requires the consent of the person subject to the measure.

Example: Sonia lives and works in Member State B. She is temporarily staying in Member State A where she is being investigated for fraud. The judicial authority in A knows where Sonia resides in B and considers that the risk of her absconding before trial is low. Instead of holding her in pre-trial detention in A, the judicial authority in A can issue an order obliging her to report regularly to the police authority in B. In order to allow Sonia to return and stay in B until the trial takes place in A, the competent authority in A can, with Sonia’s consent, issue an ESO to have the obligation to report recognised and enforced in B.

2.5.4.   Transfer of probation decisions and alternative sanctions

Council Framework Decision 2008/947/JHA of 27 November 2008 on the application of the principle of mutual recognition of judgments and probation decisions with a view to the supervision of probation measures and alternative sanctions  (66)

Framework Decision 2008/947/JHA introduces the application of the principle of mutual recognition to alternatives to custody and measures facilitating early release (67). It relates to the post-trial stage.

It provides that a probation decision or other alternative sanction may be executed in a Member State other than the one in which the person was sentenced as long as the person has consented.

Example: Anna is a national of Member State A but is on holiday in Member State B. She is convicted of an offence in В and sentenced to carry out community service instead of a custodial sentence. She can return to A, whereupon the authorities in A are obliged to recognise the community service order and supervise Anna’s completion of it in Member State A.

2.5.5.   Financial penalties

Council Framework Decision 2005/214/JHA of 24 February 2005 on the application of the principle of mutual recognition to financial penalties  (68)

Framework Decision 2005/214/JHA applies the principle of mutual recognition to financial penalties imposed by judicial or administrative authorities. The purpose is to facilitate the enforcement of such penalties in a Member State other than the one in which the penalties were imposed. It enables a judicial or administrative authority to transmit a financial penalty directly to an authority in another Member State and to have that penalty recognised and executed without any further formality.

The scope of Framework Decision 2005/214/JHA covers all criminal offences (Article 1(a)(i) and (ii)) and also ‘infringements of rules of law’, on the condition that an appeal is possible before ‘a court having jurisdiction in criminal matters’  (69).

The procedure applies in cross-border situations where a financial penalty is imposed in one Member State and is expected to be executed in the Member State where the perpetrator resides or has property or income.

In some Member States’ systems, an unpaid financial penalty might be converted into a custodial sentence. In these situations, an EAW might be issued for the execution of the custodial sentence. It is advised that, where possible, Framework Decision 2005/214/JHA is considered as one of the methods for enforcing payment before converting the financial penalty into a custodial sentence, thus avoiding the need to issue an EAW.

2.5.6.   Transfer of criminal proceedings

The transfer of criminal proceedings to the Member State where the suspect is residing should be considered in relevant cases. The legal basis for the transfer is the 1972 Convention on the Transfer of Proceedings in Criminal Matters. For those Member States that have not ratify this Convention, the transfer can be based on ordinary jurisdiction in the receiving Member State to initiate a criminal investigation. In that case, a request is normally based on Article 21 of the Council of Europe Convention on Mutual Assistance in Criminal Matters of 20 April 1959 (ETS No 030).

In 2003, Eurojust issued non-binding guidelines for deciding ‘which jurisdiction should prosecute’, which were revised in 2016 (70). These guidelines suggest factors to be taken into consideration in cases where more than one Member State would have jurisdiction to prosecute. Since their adoption, they have helped the competent national authorities and Eurojust determine which jurisdiction is best placed to prosecute in cross-border cases.

On 5 April 2023, the Commission adopted a proposal for a regulation on transfer of proceedings in criminal matters (71). The proposal sets out the procedure for the transfer of criminal proceedings from one Member State to another, where the objective of an efficient and proper administration of justice would be better served by conducting criminal proceedings in the other Member State.

2.6.   Rule of speciality – possible prosecution for other offences

In general, a person surrendered may not be prosecuted, sentenced, or otherwise deprived of his or her liberty for an offence committed prior to the surrender other than that for which the person was surrendered. This is the rule of speciality, set out in Article 27 of the Framework Decision on EAW.

The rule of speciality is subject to a number of exceptions. The Framework Decision on EAW gives a possibility to Member States to notify that, in their relations with other Member States that have given the same notification, they renounce the rule of speciality, unless in a particular case the executing judicial authority states otherwise in its decision on surrender (see Article 27(1) of the Framework Decision on EAW). According to the information available to the Commission, only Estonia, Austria and Romania have sent such notifications.

In addition, Article 27(3) of the Framework Decision on EAW lists other situations where the rule of speciality does not apply:

(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.

In other cases, it is necessary to request the original executing Member State’s consent for prosecution or enforcement of the other offences (Article 27(3)(g) of the Framework Decision on EAW).

In its judgment in Case C-388/08 PPU Leymann and Pustovarov  (72), the Court of Justice examined how to establish whether the offence under consideration is an ‘offence other than’ that for which the person was surrendered within the meaning of Article 27(2) of the Framework Decision on EAW. The Court held:

In the same judgment, the Court of Justice also clarified that:

Procedure for renouncing the rule of speciality by consent of the executing judicial authority

The request for consent must be submitted by the same procedure and must contain the same information as a normal EAW. Thus, the competent judicial authority transmits the request for consent directly to the executing judicial authority, which surrendered the person.

The information contained in the request must, as provided in Article 8(1) of the Framework Decision on EAW, be translated under the same rules as an EAW. The executing judicial authority must take the decision no later than 30 days after receipt of the request (Article 27(4) of the Framework Decision on EAW).

The executing authority must give its consent when the offence for which the consent is requested is itself subject to surrender in accordance with the Framework Decision on EAW unless a mandatory or optional ground for non-execution applies.

Where applicable, the executing judicial authority may subject its consent to one of the conditions concerning custodial life sentences and the return of nationals and residents laid down in Article 5 of the Framework Decision on EAW (see Section 5.9). In such cases, the issuing Member State must give the appropriate guarantees (Article 27(4) of the Framework Decision on EAW).

The Court held in its judgment in Case C-168/13 PPU Jeremy F  (73). that a Member State could provide, in its national law, an appeal with suspensive effect against the decision referred to in Article 27(4) of the Framework Decision on EAW, if the final decision is taken within the time limits laid down in Article 17 of the Framework Decision on EAW (see Section 4.1).

In its judgment in Case C-195/20 PPU XC  (74), the Court of Justice clarified that in a situation where the person was surrendered by a first Member State on the basis of an EAW, then left the territory of the issuing Member State of the first warrant voluntarily and has been surrendered back there by a second Member State in execution of another EAW issued after that departure, the only surrender that is relevant for assessing compliance with the rule of speciality is that of the executing judicial authority of that second EAW and the consent required in Article 27(3)(g) must therefore be given only by the executing judicial authority of the Member State that surrendered the prosecuted person on the basis of that EAW.

In Case C-510/19 AZ  (75), the Court of Justice clarified that the consent to renounce the application of the rule of speciality under Article 27(3)(g) and Article 27(4) of the Framework Decision on EAW must be given by a judicial authority that fulfils the requirements set out in Article 6(2) thereof (see Section 2.1.2).

In its judgment in Joined Cases C-428/21 and C-429/21 PPU (76), HM and TZ, the Court of Justice interpreted Article 27(3)(g) and (4) and Article 28(3) of the Framework Decision on EAW in light of the right to effective judicial protection guaranteed by Article 47 of the Charter. Consequently, a person who has been surrendered to the issuing judicial authority in execution of an EAW has the right to be heard by the executing judicial authority when a request for consent to renounce the rule of speciality is made. The Court clarified that the effective exercise of this right does not require the direct involvement of the executing judicial authority, provided that it ensures that it has sufficient information, in particular on the position of the person affected, to take a decision. It may thus suffice if the person affected can make their views known to the issuing judicial authority and this information is recorded in writing and passed on to the executing judicial authority. In principle, such information must be considered by the executing judicial authority as having been collected in compliance with the requirements of Article 47 of the Charter. If necessary, the executing judicial authority must ask for the provision of additional information without delay.

3.   PROCEDURE FOR ISSUING AN EAW

3.1.   Other pending criminal procedures and EAWs concerning the same person

3.1.1.   In the issuing Member State

Before issuing an EAW, the competent judicial authority is advised to check whether other criminal procedures have been initiated or other EAWs issued concerning the requested person in the issuing Member State.

If there are other criminal proceedings pending or enforceable custodial sentences against the requested person in the issuing Member State, it is advisable to communicate and, where possible, coordinate with other national authorities before issuing an EAW. It is important to ensure that the EAW covers all offences for which the requested person will be prosecuted or has been sentenced in the issuing Member State. This is advisable in particular because the rule of speciality may prevent prosecution or sentencing for offences other than those for which the person was surrendered by the executing Member State (see Section 2.6). Although consent by the requested person or the executing Member State to prosecution or execution of the sentence for these offences may be requested after the surrender (see Article 27(3)(f) and (g) of the Framework Decision on EAW), practice has shown that obtaining such consent can be slow or cumbersome.

If possible, all offences should be included in one EAW, as this makes the procedure in the executing Member State quicker and more efficient. If there is a prior EAW issued in respect of the same person, that EAW could , whenever possible, be replaced by a new EAW which covers both the offences from the previous EAW and the new offences. If there is a prior alert for arrest issued in respect of the person, it should be updated to include the new EAW. It is possible to enter more than one EAW per alert for arrest (see Article 27(1) of the SIS Police Regulation (77)).

Additionally, in Case C-203/20 AB and Others  (78), the Court of Justice held that Article 50 of the Charter must be interpreted as not precluding the issue of an EAW against a person who was subject to a criminal prosecution that was initially discontinued by a final judicial decision adopted on the basis of an amnesty but resumed following the adoption of a law revoking that amnesty, in the case where that judicial decision was adopted before any determination as to the criminal liability of the person concerned.

3.1.2.   In another Member State

If there are indications of other pending criminal proceedings or enforceable custodial sentences against the requested person in another Member State or other Member States, it might be advisable to contact the authorities of the other Member State(s) before issuing the EAW (79). In these cases, the authorities of the different Member States could explore the possibility of coordinating which Member State should issue the (first) EAW and the possibility of transferring criminal proceedings to one, or at least fewer, Member States.

The competent authorities should verify in the SIS whether an alert for arrest has been issued in respect of the same person by another Member State. Several Member States may enter an alert for arrest in respect of the same person. In the event of an arrest, the SIRENE Bureau of the executing Member State will simultaneously inform each Member State concerned (see Article 32(3) of the SIRENE Manual – Police) (80).

The competent authorities can also contact Eurojust or the EJN contact points (or both) or directly contact the competent authority of another Member State (81).

It should be noted that, if the executing Member State has received multiple EAWs in respect of the requested person, it must in any event decide where the requested person is to be surrendered first (see Section 5.12). Therefore, it might be more efficient to seek agreement among the issuing judicial authorities on which of the Member States the requested person should be surrendered to first before issuing multiple EAWs. Although the executing judicial authority is not bound by agreements relating to concurrent EAWs reached between issuing judicial authorities, the executing judicial authority should take them into consideration.

It is therefore also advisable to complete section ‘f’ (other circumstances relevant to the case) of the EAW form regarding these agreements, so that executing judicial authorities are immediately aware of them.

3.2.   Filling in the EAW form

Detailed guidelines on filling in the EAW form are set out in Annex III.

3.2.1.   Information that is always necessary

The executing judicial authority should always have the minimum necessary information to allow it to decide on surrender (see Article 8(1) of the Framework Decision on EAW). In particular, the executing judicial authority needs to be able to confirm the identity of the person and evaluate whether any of the grounds for non-execution apply. The issuing judicial authority should therefore pay particular attention to the description of the offence(s) on the EAW form.

The exact information to be provided depends on the circumstances in each case. However, it is good to bear in mind that the executing judicial authority might know little or nothing about the case underlying the EAW or the issuing Member State’s legal system. Experience has shown that requests for further information between the issuing and executing judicial authorities are one of the primary causes of delays in the execution of EAWs. This often results in the time limits set out in the Framework Decision on EAW being exceeded (see Section 4.1).

It is therefore vital that issuing judicial authorities ensure that the information in the EAW is clear, correct and comprehensive.

In Case C-367/16, Piotrowski  (82), the Court held that:

If the EAW form is properly filled in, no additional documents are required.

3.2.2.   Useful additional information from the issuing judicial authority

In addition to the minimum set of data that must be entered to create the alert for arrest in the SIS (see Annex II, Section 1(a) of Commission Implementing Decision on SIS data entry) (83), all other data related to the person in particular photographs, fingerprints, identification documents must also be entered if available (see Articles 20 and 22 of the SIS Police Regulation) (84).

Particular attention should be paid to adding the following information:

—	all available personal identifiers (in particular, fingerprints, palm prints and recent photographs);

—	warning markers if the wanted person poses a specific risk;

—	a copy of the EAW (this must be attached to the alert for it to have the same value as an original EAW or arrest warrant directly transmitted between competent authorities; several arrest warrants can be attached to a single alert);

—	data on objects used by the person sought (‘object extensions’ - for example, the vehicle used by the wanted person) or identification documents used;

—	links to other alerts on persons or objects.

The contact details and the mobile phone number of the duty office and person responsible should always be given to the SIRENE Bureau, so that they can be notified immediately and at any time of day that the requested person has been found.

Whenever it is likely that the executing Member State will require guarantees by the issuing Member State on the basis of Article 5 of the Framework Decision on EAW, it is advisable to add the relevant information to the EAW. For example, the issuing judicial authority might already indicate its consent to returning the requested person to the executing Member State under specified conditions (see Section 5.9).

3.3.   Transmitting the EAW

The procedure for transmitting the EAW depends on whether the issuing judicial authority knows the whereabouts of the requested person (Article 9 of the Framework Decision on EAW). In most cases, the person’s location is unknown or uncertain and the EAW should be transmitted to all Member States via the SIS. Even when the person’s location is known, the issuing judicial authority may decide to issue an alert in the SIS (Article 9(2) of the Framework Decision on EAW).

3.3.1.   When the location of the requested person is unknown

When the location of the requested person is unknown, the EAW should be transmitted to all Member States. To that end, an alert for arrest or surrender should be created in the SIS in accordance with Article 26 of the SIS Police Regulation (85). It is important to emphasise that the issuing judicial authority must issue the EAW before the alert can be entered into the SIS.

The issuing judicial authority should, where appropriate, send a copy of the original EAW and all relevant information concerning the person to the national SIRENE Bureau (via the competent police authority) or make a copy of the original EAW available to the SIRENE Bureau by other means.

The SIRENE Bureau of the issuing Member State checks whether the information is complete (for instance, whether photographs and fingerprints are available and can be attached), attaches the copy of the original EAW to the alert together with a translation (if available) and validates the entry of the alert into the SIS. In addition, the SIRENE Bureau communicates the contents of the EAW to all the other SIRENE Bureaux through the exchange of supplementary information (the SIRENE ‘A form’). When several arrest warrants exist for the same person, separate A forms are to be sent for each arrest warrant. The A form is issued in English. It is important to indicate in the A form (field 311) if the search for the person is limited to the territories of certain Member States (geographical search) and to include any further information about the possible whereabouts of the person (field 061 of the A form).

Upon receipt of the A form, all the other SIRENE Bureaux verify whether the information provided in the A form and whether the EAW is complete.

In accordance with Article 25 of the SIS Police Regulation (86), at the behest of a competent national authority, a Member State may also require the issuing Member State to add a flag to an alert for arrest for surrender purposes if it obvious that the execution of an EAW will have to be refused. During this verification process, the alert should continue to be available to users. A Member State may also require that a flag be added to the alert if its competent judicial authority releases the subject of the alert during the surrender process. An alert for arrest for surrender purposes shall not be flagged if at least one of the arrest warrants, attached to the alert, can be executed.

If a Member State does not execute the EAW and therefore decides to ask to flag the alert, the alert will remain visible for users. The reason for the alert will in this case remain as ‘person for arrest and surrender or extradition’. However, the action to be taken will not be to ask for the arrest of the requested person but rather to take details of the whereabouts of the person (see Article 12(2) and Annex I of Commission Implementing Decision on SIS data entry) (87).

The SIRENE Bureaux receiving the A form are also to search, in accordance with national law, all available national information to try to locate the person who is the subject of the alert. They will check national databases (e.g. police and prison systems) to see if the requested person is already known to them or even already in custody for another offence. If the person is located on the basis of such verification, the SIRENE Bureau forwards the information contained in the A form to the competent authority that will execute the EAW.

The competent authorities of all Member States (including law enforcement, border guard and judicial authorities) have access to alerts for arrest in the SIS. If the person is detected and arrested on the basis of the SIS alert in another Member State, the issuing judicial authority will be informed via the national SIRENE Bureau.

An alert for arrest in the SIS containing a copy of the original EAW constitutes and has the same effect as an EAW (see Article 31(1) of the SIS Police Regulation (88)). The transmission of the original EAW paper copy in addition to the SIS alert is no longer required because the copy of the original EAW is directly attached to the alert. However, since the original EAW is issued in the language of the issuing State and the A form is issued in English, it may still be necessary for the issuing judicial authority to send a translated EAW to the executing Member State after the requested person has been arrested. It is also possible (but not mandatory) to immediately attach a copy of an EAW translation to the alert in one or more official languages of the Union. The Fiches Belges section on the EJN website (89) contains a list of the languages accepted by Member States and a list is also provided in Annex IV (see Section 3.4). The issuing judicial authority should ensure that the alert entered in the SIS is stored only for the time required to achieve the purposes for which it was entered (see Articles 53 and 55 of the SIS Police Regulation (90)). This means that the alert needs to be deleted if the EAW is withdrawn (see Section 11.4 of this Handbook) or surrender has taken place (see Article 55(1) of the SIS Police Regulation).

It is furthermore possible to render alerts for arrest invisible (unavailable) (see Article 26 of the SIS Police Regulation (91)). In the case of an ongoing operation, the issuing Member State may temporarily make an existing alert for arrest unavailable for searching by the end-users in the Member States involved in the operation. In such cases the alert shall only be accessible to the SIRENE Bureaux. This means that, when operationally necessary, instead of deleting the alert for arrest and inserting a new alert for arrest, one can make the alert ‘invisible’ to the end-users for a specific period of time.

Certain conditions apply to this functionality. Member States are only to make an alert unavailable if:

(a)	the purpose of the operation cannot be achieved by other measures;

(b)	a prior authorisation has been granted by the competent judicial authority of the issuing Member State; and

(c)	all Member States involved in the operation have been informed through the exchange of supplementary information.

The functionality is only to be used for a period not exceeding 48 hours. However, if operationally necessary, it may be extended by further periods of 48 hours. Member States shall keep statistics on the number of alerts in relation to which this functionality has been used.

3.3.2.   When the location of the requested person is known

When the requested person’s location is known, the issuing judicial authority can send the EAW directly to the competent authority of the executing Member State for execution (Article 9(1) of the Framework Decision on EAW).

If the issuing judicial authority does not know the competent executing judicial authority, it must make enquiries, including through the contact points of the European Judicial Network, in order to obtain that information from the executing Member State (Article 10(1) of the Framework Decision on EAW). The Atlas tool on the EJN website also contains information and contact details of each Member State’s competent authorities (92).

In order to reduce any risk of the requested person absconding, the issuing judicial authority can also send the EAW to its national SIRENE Bureau for transmission to the other Member States via the SIS (see Section 3.3.1). The SIS alert enables the police authorities in the Member States to be aware that the person is wanted for arrest. However, it should be clearly indicated to all SIRENE Bureaux that the person’s location is known – in order to avoid unnecessary in checking whether the person is known or present on their territory.

3.3.3.   Transmitting the EAW to Member States who do not use the SIS

Currently all EU Member States use the SIS. Cyprus was the last country to join the SIS in July 2023. In the future, if there is any Member State that do not use the SIS and a transmission of an EAW to that Member State is required, the EAW can be sent either directly or by the relevant INTERPOL National Office. Transmitting via INTERPOL is provided for in Article 10(3) of the Framework Decision on EAW.

However, it should be noted that an INTERPOL alert does not constitute grounds for arrest in some Member States. It is therefore important to clearly indicate the existence of the EAW in the alert because an EAW always entails an obligation to apprehend the requested person.

3.4.   Translation of the EAW

The EAW form must be completed or translated into the official language or one of the official languages of the executing Member State. However, where the executing Member State has stated in a declaration that it will also accept a translation in one or more official languages of the institutions of the Union, the EAW may, alternatively, be translated into one of those languages (Article 8(2) of the Framework Decision on EAW).

The EJN website (http://www.ejn-crimjust.europa.eu – Fiches Belges tool) contains a list of the languages accepted by the Member States. A list is also provided in Annex IV.

Where the EAW is transmitted via the SIS, the issuing Member State may also attach to the alert a copy of a translation of the EAW in one or more other official languages of the institutions of the Union as provided for in Article 27(2) of the SIS Police Regulation (93). These translations as well as the SIRENE A forms should serve as a sufficient basis to carry out the verifications indicated in Section 3.3.1 of this Handbook. It should be noted that this does not affect the obligation to translate the EAW into a language accepted by the executing Member State after the person has been arrested.

When the location of the arrest of the requested person can be anticipated, it may be better to translate the EAW in advance into the language of that Member State. This makes it easier to respect the short deadlines for execution of an EAW.

In cases where an EAW is transmitted directly to an executing judicial authority, it must be accompanied by a translation. As EAWs must be dealt with and executed as a matter of urgency (Article 17(1) of the Framework Decision on EAW), the issuing Member State should send the translation as soon as possible and, in any case, before the deadline set by the Member State for receiving a translated EAW (see Section 4.3 of this Handbook).

The translations must be done using the standard EAW form, which is available in all 24 official languages of the Union. All language versions of the form are available on the EJN website (Judicial Library and Compendium, in both pdf and Word formats).

3.5.   After the requested person is apprehended: cooperation and communication with the competent authorities of the executing Member State

After the requested person is apprehended in another Member State, the competent authorities of the issuing Member State should swiftly respond to requests for information and other requests from the authorities of the executing Member State. The competent authorities of the issuing Member State are advised to refer to Part II, Section 4.4. of this Handbook for guidelines on good cooperation and communication with the competent authorities of the executing Member State. EJN or Eurojust can assist if problems in communication arise. The SIRENE Bureaux also regularly facilitate communications when the person has been apprehended following an alert for arrest issued in the SIS.

If the issuing judicial authority decides to withdraw its EAW, it should notify this without delay to the executing judicial authority, in particular where the requested person has been deprived of liberty. It must also ensure that the alert in the SIS is deleted.

The issuing judicial authority may at any time forward any additional useful information to the executing judicial authority (Article 15(3) of the Framework Decision on EAW).

PART II:   EXECUTING AN EAW

4.   PROCEDURE FOR EXECUTING AN EAW

4.1.   Time limits for taking the decision on the execution of the EAW

Strict time limits are set out for the execution of an EAW. The time limits depend on whether the requested person consents to his or her surrender. It is emphasised that, notwithstanding the time limits, all EAWs must be dealt with and executed as a matter of urgency (Article 17(1) of the Framework Decision on EAW).

If the requested person consents to his or her surrender, the final decision on the execution of the EAW should be taken within a period of 10 days after consent has been given (Article 17(2) of the Framework Decision on EAW).

If the requested person does not consent to his or her surrender, the final decision on the execution of the EAW should be taken within a period of 60 days after the arrest of the requested person (Article 17(3) of the Framework Decision on EAW).

According to the Framework Decision on EAW, in principle, consent may not, , be revoked. Each Member State may, however, provide that consent and, if appropriate, renunciation of entitlement to the rule of speciality (see Section 2.6) may be revoked, in accordance with the rules applicable under its domestic law (94). If the requested person revokes his or her consent, the initial 10-day time limit ceases to apply and becomes 60 days, starting from the day of arrest (Article 13(4) of the Framework Decision on EAW). When establishing that time limit, the period between the date of consent and that of its revocation is not taken into consideration.

Exceptionally, where in a specific case the EAW cannot be executed within the applicable time limits, those time limits may be extended by a further 30 days. In that case, the executing judicial authority must immediately inform the issuing judicial authority and give the reasons for the delay (Article 17(4) of the Framework Decision on EAW).

As held by the Court of Justice in its judgment in Case C-168/13 PPU Jeremy F.  (95), any appeal with suspensive effect provided for by national legislation against a surrender decision must in any event comply with the time limits laid down in the Framework Decision on EAW for making a final decision.

In its judgment in Case C-237/15 PPU Lanigan  (96), the Court of Justice held that the expiry of the time limits for taking a decision on the execution of an EAW does not free the competent authority from its obligation to adopt a decision in that regard and does not preclude, in itself, the continued detention of the requested person. However, the release of the requested person, together with the measures necessary to prevent him or her from absconding, must be ordered if the duration of the custody is excessive (see Section 4.6).

Duty to inform Eurojust of delays

Where a Member State cannot observe a time limit, the competent authorities must inform Eurojust, giving the reasons for the delay (Article 17(7) of the Framework Decision on EAW). Given the fundamental importance of respecting the time limits in the operation of the EAW, Eurojust monitors cases where the time limits could not be observed and of which it has been informed. Eurojust can thus help identify any systematic problems causing delays. In many situations, Eurojust can help competent authorities to respect the time limits, for example by facilitating information exchange between competent authorities (97).

4.2.   Time limits for surrendering the requested person (after the decision on the execution of the EAW)

The time limit for surrendering the requested person starts to run immediately after the final decision on the execution of the EAW is taken. The authorities concerned should arrange and agree on the person’s surrender as soon as possible (Article 23(1) of the Framework Decision on EAW). In any event, the surrender must take place no later than 10 days after the final decision on the execution of the EAW (Article 23(2) of the Framework Decision on EAW). It is therefore necessary to agree on the practical arrangements of the surrender without delay.

If the surrender of the requested person within the 10-day period is prevented by circumstances beyond the control of any of the Member States (concept of force majeure) the executing and issuing judicial authorities must immediately contact each other and agree on a new surrender date. In that event, the surrender must take place within 10 days of the new date thus agreed (Article 23(3) of the Framework Decision on EAW).

In its judgment in Case C-640/15 Vilkas  (98), the Court of Justice concluded that the executing judicial authority may agree on a new surrender date with the issuing judicial authority, even if the previous two surrender attempts failed due to resistance put up by the requested person – in so far as that resistance could not have been foreseen by the 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 (a matter for the referring court to ascertain). Those authorities remain obliged to agree on a new surrender date even if the time limits prescribed in Article 23 have expired.

In Case C-804/21 PPU C and CD  (99), the Court of Justice held that the concept of force majeure, referred to in Article 23(3) of the Framework Decision on EAW, does not extend to legal obstacles to surrender which arise from legal actions brought by the person who is the subject of the EAW and are based on the law of the executing Member State. Additionally, the finding of a situation of force majeure by the police services of the executing Member State, followed by the setting of a new surrender date, without intervention on the part of the executing judicial authority, does not meet the formal requirements laid down in Article 23(3), irrespective of whether that situation of force majeure actually exists. With respect to Article 23(5) of Framework Decision, the Court held that the time limits referred to in Article 23(2) to (4) must be regarded as having expired, with the result that the person must be released if the requirement of intervention on the part of the executing judicial authority, referred to in Article 23(3), has not been met. However, having regard to the obligation on the part of the executing Member State to carry on with the procedure for executing the EAW, the competent authority of the executing Member State is required, if the person who is the subject of the EAW is released, to take any measures it thinks necessary to prevent that person from absconding, with the exception of measures involving deprivation of liberty.

As regards postponement of surrender for serious humanitarian reasons (for example, serious illness of the requested person), see Section 5.11.1.

4.3.   Translation of the EAW

The executing judicial authority may set a deadline for receiving a translation of the EAW. The EAW is to be translated into one of the official languages of the executing Member State or another language which that Member State has stated that it would accept. The executing judicial authorities are strongly encouraged to set this deadline between 6 and 10 calendar days.

Experience has shown that a deadline shorter than 6 days is often too short for providing a translation of adequate quality. Allowing over 10 days could be regarded as leading to an excessive prolongation of the procedure, in particular when the requested person is held in custody.

4.4.   Communication between the competent judicial authorities of Member States prior to the decision on surrender

4.4.1.   When to communicate

Supplementary information necessary to allow a decision on surrender

Requests for supplementary information should be exceptional. In cases where a SIS alert was issued, this request communication should be made via the SIRENE Bureaux through the SIRENE channel by using the dedicated form (the M form). The EAW operates on the general presumption that the executing judicial authority can decide on the surrender on the basis of the information contained in the EAW. This presumption rests on the principle of mutual recognition and on the need to decide on the surrender swiftly. Requests for supplementary information are nonetheless necessary in some situations in order to comply with the duty to execute an EAW.

If the information communicated by the issuing Member State is insufficient to allow the executing judicial authority to decide on surrender, the executing judicial authority must communicate with the issuing judicial authority in order to obtain the necessary supplementary information. It is important to note that the Framework Decision on EAW presents this as the executing judicial authority’s duty (Article 15(2)).

Communication between the issuing and executing judicial authorities prior to the surrender decision should primarily concern supplementary information that is relevant for deciding on surrender (see Section 5.2). Thus, requests for supplementary information should concern, in particular, the content required in the EAW form which is needed to assess the applicability of any ground for refusal.

These requests must also respect the duty of sincere cooperation laid down in the first subparagraph of Article 4(3) TEU (100). This is not the case when an executing judicial authority asks multiple and/or unnecessary questions that (because of their number, scope and content) make it in practice impossible for the authorities of the issuing Member State to provide a useful answer given the short time limits laid down in Article 17 of the Framework Decision on EAW (see judgment of the Court of Justice in Case C-220/18 PPU ML  (101)).

In line with the principle of mutual recognition, the executing judicial authority may not question the merits of decisions by the issuing Member State’s judicial authorities.

Communication should always be done as swiftly as possible and, in any event, within the time limits set out in Article 17 of the Framework Decision on EAW.

Typical situations in which supplementary information may be necessary are when:

(a)	a relevant part of the EAW form is not filled in;

(b)	the content of the EAW is unclear;

(c)	there is an obvious error in the EAW;

(d)	it is uncertain whether the correct person was arrested pursuant to the EAW.

Before invoking a ground for refusal

In many situations, the executing judicial authority should contact the issuing judicial authority before deciding to apply a ground for non-execution. For example, this can help establish whether there are other measures of judicial cooperation that could be used where the EAW cannot be executed.

Other reasons to communicate

Additional communication may also be required, for example:

(a)	for obtaining guarantees from the issuing Member State concerning life-term custodial sentences or for returning nationals or residents for serving custodial sentences in the executing Member State (see Section 5.9);

(b)	in the case of multiple EAWs concerning the same person (see Section 5.12);

(c)	where the defendant has raised legitimate concerns regarding an alleged breach of fundamental rights that requires input from the issuing judicial authority.

4.4.2.   How to communicate

The EAW builds on the principle of direct contact between competent authorities. Direct communication between the issuing and executing judicial authorities has the benefit of being swift and reliable.

However, where the Member State designated a central authority for official correspondence (pursuant to Article 7 of the Framework Decision on EAW), communication must take place through the central authority. Information on Member States that have appointed a central authority can be found in the EAW section of the Judicial Library on the EJN website (102).

Judicial Atlas (contact details)

The contact details of the Member States' competent authorities can be found in the Atlas tool on the EJN website (https://www.ejn-crimjust.europa.eu). The Atlas was developed for the purpose of identifying the authority locally competent for receiving a decision to be executed and contacting the relevant person to discuss practical issues regarding the EAW and other mutual recognition instruments.

Methods of communication

There are no specific rules in the Framework Decision on EAW on the forms of, or procedures for, communication following reception of an EAW. Communication may be carried out by any available, sufficiently secure means (for example, telephone or e-mail). The most efficient way is to communicate directly with minimum formalities and, whenever possible, by agreeing to use a common language.

New rules on means of communication are expected to be adopted on the basis of two Commission proposals from 1 December 2021 – a proposal for a regulation laying down rules on digital communication in judicial cooperation procedures in civil, commercial and criminal matters (103) and a proposal for a directive aligning the existing rules on communication with the rules of the proposed regulation (104).

It is advisable to keep the language in written communication as simple as possible. Terms and concepts that might have different connotations in different legal systems should be avoided or, explained. This will help to avoid misunderstandings and problems with translations.

Good communication helps to keep the procedure swift, to avoid misunderstandings and to respect the short time limits set in Article 17 of the Framework Decision on EAW (see Sections 4.1 and 4.2 on time limits).

Always urgent

The issuing judicial authority must deal with requests for further information as a matter of urgency. The executing judicial authority may set a (reasonable) time limit for the receipt of this information, taking into account the need to observe the time limits set in Article 17 of the Framework Decision on EAW (Article 15(2) of the Framework Decision on EAW).

Competent authorities should also take into account the delays that may be caused by requests for further information and attempts to minimise such delays.

European Judicial Network (EJN) or Eurojust contact points can facilitate communication

The contact points of the EJN or national members of Eurojust can facilitate communication between the Member States’ authorities. Both the EJN and Eurojust can provide swift and informal communication between representatives of all Member States’ legal systems.

Using the EJN or Eurojust in accordance with their specific roles is particularly advisable in urgent situations or when reaching the right authority is difficult.

As examples, tools on the EJN website (the Judicial Atlas, Fiches Belges) and the EJN contact points can assist in identifying the competent executing judicial authorities and provide information on the specific requirements in the executing Member State. The Eurojust national member of the executing Member State should be involved in cases of repeated delays or refusals of execution. The executing judicial authority may also seek the advice of Eurojust in the case of multiple EAWs within the meaning of Article 16(2) of the Framework Decision on EAW. In addition, the EJN’s secure telecommunications connection may be used as a channel to transmit EAWs, as provided for in Article 10(2) of the Framework Decision on EAW. It is good practice to mention on the EAW form if EJN contact points or Eurojust national members or other persons in charge of a case have been involved in the preparation of the EAW (105).

Role of the SIRENE Bureaux

For arrest alerts issued in the SIS, the SIRENE Bureaux are responsible for the exchange of information from the moment the alert is issued and the person is found (‘the hit’) until at least the start of the formal surrender procedure. Judicial authorities should keep the SIRENE Bureau informed about any developments that occur between the hit and the final decision on the execution of the EAW (106).

4.5.   Duty of the executing judicial authority to inform the issuing judicial authority after deciding on the surrender

After taking a decision on whether or not to surrender the requested person, the executing judicial authority has a duty to inform the issuing Member State about the decision as well as about the time the requested person has spent in detention.

4.5.1.   Information on the decision concerning surrender

The executing judicial authority must notify the issuing judicial authority of the decision concerning surrender. Regardless of whether or not the requested person will be surrendered, this notification must be done immediately after the decision is taken in order to allow the issuing Member State’s authorities to take appropriate action. This duty to immediately notify the issuing Member State stems from Article 22 of the Framework Decision on EAW.

For this purpose, it is advisable to use the standard form presented in Annex VII to this Handbook. It is also recommended that the executing judicial authority communicates the decision directly to the issuing judicial authority, as this facilitates fast and clear communication (see Section 4.4.2).

Reasons must be given for any refusal to execute an EAW (Article 17(6) of the Framework Decision on EAW).

It is important that the executing judicial authorities clearly indicate the offence(s) to which the decision concerning surrender relates. This is relevant because of the rule of speciality, enshrined in Article 27 of the Framework Decision on EAW (see Section 2.6). The rule of speciality might preclude the issuing Member State from prosecuting offences committed prior to the surrender, other than the one or those for which the requested person was surrendered.

In cases where the EAW was entered in the SIS, the executing judicial authority should notify its decision to its Member State’s SIRENE Bureau.

Judicial authorities should keep the SIRENE Bureau informed about any developments that occur between the hit and the final decision on the execution of the EAW.

As soon as the person is found, the issuing judicial authority will be informed via the SIRENE Bureau, which, in most cases, will organise the practical modalities for the surrender of the person and will fully support the issuing judicial authority requesting the arrest (in some countries SIRENE Bureaux directly execute handovers in others SIRENE Bureaux organises units to execute it). A specific SIRENE form (‘T form’) has been drawn up to facilitate the exchange of information between SIRENE Bureaux for the surrender, extradition, and transit of arrested persons (see Article 38 to 40 of SIRENE Manual – Police) (107).

4.5.2.   Information on the time spent in detention

All information concerning the duration of the detention of the requested person on the basis of the EAW must be transmitted to the issuing judicial authority. The Framework Decision on EAW requires this information to be transmitted at the time of the surrender (Article 26(2) of the Framework Decision on EAW). This information may be transmitted by the executing judicial authority or the designated central authority.

It is important that the issuing Member State’s authorities are aware of the exact time spent in detention. This period must be deducted from the final custodial sentence or detention order (Article 26(1) of the Framework Decision on EAW).

The standard form in Annex VII contains space for providing information on time spent in detention.

In its judgment in Case C-294/16 PPU JZ  (108), the Court of Justice ruled as follows:

4.6.   Keeping the requested person in detention in the executing Member State

Following the arrest of the requested person on the basis of the EAW, the executing judicial authority must decide whether the person needs to be kept in detention or set free until the decision on the execution of the EAW. Detention is not necessarily required, therefore, and the person may be provisionally released at any time in conformity with the domestic law of the executing Member State (Article 12 of the Framework Decision on EAW).

When the person is not kept in detention, the competent authority of the executing Member State has a duty to take all measures it deems necessary to prevent the person absconding (Article 12 of the Framework Decision on EAW). These measures could include travel-bans or a duty to regularly register and electronic surveillance.

In its judgment in Case C-492/18 TC  (109), the Court of Justice ruled that the Framework Decision on EAW precludes a national provision that lays down a general and unconditional obligation to release a requested person arrested pursuant to an EAW as soon as the period of 90 days from that person’s arrest has elapsed, where there is a very serious risk of that person absconding and where the risk cannot be reduced to an acceptable level by the imposition of appropriate measures.

In its judgment in Case C-237/15 PPU Lanigan  (110), the Court of Justice held that:

The decision on detention must, however, be taken in accordance with national law and in conformity with Article 6 of the Charter, which provides that everyone has the right to liberty and security of person. This article requires the existence of a legal basis, which justifies that continued detention and which must meet the requirements of clarity, predictability and accessibility in order to avoid any risk of arbitrariness. The Court of Justice ruled in Case C-492/18 TC  (111) that:

5.   SURRENDER DECISION

5.1.   General duty to execute EAWs

The executing judicial authority has a general duty to execute any EAW on the basis of the principle of mutual recognition and in accordance with the provisions of the Framework Decision on EAW (Article 1).

In its judgment in Case C-268/17 AY  (112), the Court of Justice held that Article 1(2) of the Framework Decision must be interpreted as requiring the judicial authority of the executing Member State to adopt a decision on any EAW forwarded to it – even when a ruling has already been made in that Member State on a previous EAW concerning the same person and the same acts, but the second EAW has been issued only on account of the indictment, in the issuing Member State, of the requested person. On a similar note, in Case C-158/21 Puig Gordi and Others (113), the Court of Justice held that Framework Decision 2002/584 does not preclude the issuing of several successive EAW against a requested person, where the execution of a first EAW has been refused, provided that the execution of a new EAW does not result in an infringement of Article 1(3) of that framework decision and provided that the issuing of the latter EAW is proportionate.

As the Court of Justice ruled in its judgment in Case C-510/19 AZ  (114), the decision to execute an EAW must be taken by a ‘judicial authority’ that meets the requirements inherent in effective judicial protection (see Section 2.1.5).

The provisions of the Framework Decision on EAW relating to the decision to execute an EAW are addressed in Sections 5 to 9 of this Handbook. The decision on surrender must be carried out within the time limits mentioned in Section 4.

In addition, the competent authorities must ensure that the minimum procedural rights of the requested person are respected, as mentioned in Section 12.

5.2.   Provision of information by the issuing judicial authority

The information provided by the issuing judicial authority under Article 8 of the Framework Decision on EAW serves to provide the executing judicial authority with the minimum official information required to enable it to take swiftly a decision on the execution of the EAW.

In Case C-551/18 PPU IK  (115), the issuing judicial authority failed to indicate an additional sentence of conditional release that was imposed on the requested person for the same offence in the same judicial decision as that relating to the main offence. The Court of Justice considered that, as the main sentence of 3 years of imprisonment exceeded the threshold of 4 months set out in Article 2(1) of the Framework Decision on EAW, the indication provided by the issuing authority was sufficient for the purpose of ensuring that the EAW satisfied the requirement of validity referred to in Article 8(1)(f) of the Framework Decision on EAW.

The Court of Justice further ruled:

In Case C-241/15 Bob-Dogi  (116), the Court of Justice ruled that, before refusing to give effect to an EAW on the ground that it is invalid, the executing judicial authority must, in accordance with Article 15(2) of the Framework Decision on EAW, request the issuing judicial authority to furnish all necessary supplementary information as a matter of urgency.

5.3.   The list of 32 offences which give rise to surrender without verification of double criminality

The executing judicial authority should check whether any of the offences have been determined by the issuing judicial authority as belonging to one of the 32 categories of offences listed in Article 2(2) of the Framework Decision on EAW. The executing judicial authority can only verify double criminality for offences that are not in that list.

It should be emphasised that it is only the definition of the offence and maximum punishment in the issuing Member State’s law that is relevant. The executing judicial authority may ascertain what the issuing judicial authority has indicated in the EAW. If the executing judicial authority considers that there is an obvious error in this regard, it should contact the issuing judicial authority for clarification (see Section 4.4 on communication).

As regards the relevant version of the law of the issuing Member State, the Court of Justice interpreted Article 2(2) of the Framework Decision on EAW in its judgment in Case C-717/18 X  (117). It ruled:

5.4.   Accessory offences

‘Accessory offences’ refers to one or more offences punishable by a lower sanction than the threshold set out in Article 2(1) of the Framework Decision on EAW. Such offences may be included in an EAW as accessory offences. The issuing judicial authority might include such offences on the EAW form even though they do not fall within the scope of the EAW (see Section 2.3).

However, the EAW must be issued for at least one offence that meets the threshold set in Article 2(1) of the Framework Decision on EAW.

The Framework Decision on EAW does not explicitly provide for a way to deal with the issue of accessory surrender. Some Member States have decided to allow it but others do not. If the executing Member State does not surrender a requested person for accessory offences, the rule of speciality may preclude the issuing Member State from prosecuting those offences (see Section 2.6 on the rule of speciality).

If the EAW includes accessory offences, it is advisable for the executing judicial authority to clearly indicate in the surrender decision whether the surrender also concerns the accessory offences. Surrender for the accessory offences grants the issuing Member State the competence to prosecute or execute a custodial sentence for those offences.

Annex VIII contains a list of Member States whose legal system provides for the possibility to surrender for accessory offences.

5.5.   Grounds for non-execution (refusal)

The general duty to execute EAWs (enshrined in Article 1(2) of the Framework Decision on EAW) is limited by the grounds for mandatory and optional non-execution of the EAW, i.e. the grounds for refusal (Articles 3, 4 and 4a of the Framework Decision on EAW). It is important to note that in accordance with the Framework Decision on EAW, these grounds are, in principle, the only ones that the executing judicial authority may invoke as the basis for non-execution of a validly issued EAW. The Court of Justice has clarified that the list of grounds is exhaustive (notably in its judgments in Case C-123/08 Wolzenburg and Joined Cases C-404/15 and C-659/15 PPU Aranyosi and Căldăraru  (118)).

The executing judicial authority must, in some situations, contact the issuing judicial authority before deciding to refuse the surrender. This might be advisable where there are uncertainties regarding the application of any of the grounds for non-execution. The executing judicial authority can also communicate on the possibilities for other measures (such as the transfer of prisoners) before taking the refusal decision (see Section 4.4 on communication and Section 2.5 on the other Union measures on judicial cooperation).

After the decision to refuse the surrender has been taken, the requested person can no longer be kept in detention on the basis of the EAW.

5.5.1.   Mandatory grounds for non-execution

Where one or more of the mandatory grounds for non-execution apply, the executing judicial authority must refuse to execute the EAW (Article 3 of the Framework Decision on EAW). These grounds are provided in Article 3 of the Framework Decision on EAW.

Amnesty (Article 3(1))

The offence to which the arrest warrant is based is covered by amnesty in the executing Member State. It is also required that the executing Member State has jurisdiction to prosecute the offence under its own criminal law.

Ne bis in idem (Article 3(2))

The executing judicial authority is informed that the requested person has been finally judged by a Member State in respect of the same acts. It is also required that, where a sentence has been passed, that sentence has been served or is currently being served or may no longer be executed under the law of the sentencing Member State.

The Court of Justice has handed down several judgments in cases on the interpretation of the ne bis in idem principle in relation to Article 54 of the Convention Implementing the Schengen Agreement (CISA). These judgments are applicable to the Framework Decision on EAW by virtue of the judgment in Case C-261/09 Mantello  (119) . In its judgment in Case C-129/14 PPU Spasic  (120), the Court of Justice ruled that Article 54 CISA is compatible with Article 50 of the Charter, where the principle is enshrined.

Article 54 CISA

Article 50 of the Charter

In its judgments in Case C-261/09 Mantello  (121) and Case C-268/17 AY  (122), the Court of Justice confirmed the interpretation of concepts such as ‘final decision’, ‘same act’ and ‘sentence has been served’ set out in its earlier case-law. In Case C-268/17 AY, the Court of Justice ruled that a decision by a public prosecutor’s office to terminate an investigation during which the person who is subject to an EAW was interviewed only as a witness may not be relied on for the purpose of refusing to execute that EAW under Article 3(2) of the Framework Decision on the EAW.

In its judgment in Case C-505/19, WS (INTERPOL red notice)  (123) the Court of Justice specified with regard to the lawfulness of the arrest and detention of a requested person that:

Additionally, in Case C-203/20 AB and Others  (124) , the Court of Justice held that Article 50 of the Charter must be interpreted as not precluding the issue of an EAW against a person who was subject to a criminal prosecution that was initially discontinued by a final judicial decision adopted on the basis of an amnesty, and resumed following the adoption of a law revoking that amnesty, if that judicial decision was adopted before any determination as to the criminal liability of the person concerned.

Annex VI contains a list of the judgments of the Court of Justice concerning the principle of ne bis in idem in criminal matters. Summaries of these cases can be found in Eurojust’s compilation entitled Case-law by the Court of Justice of the European Union on the principle of ne bis in idem in criminal matters (available at www.eurojust.europa.eu).

Under the age of criminal responsibility (Article 3(3))

Due to his or her age, the requested person cannot be held criminally responsible for the acts on which the arrest warrant is based under the law of the executing Member State.

Member States’ laws define the minimum age for criminal responsibility differently. Furthermore, the moment when this age applies in a particular case varies, meaning that the relevant moment might be, for example, when the suspected offence takes place or when the person is charged.

This ground for non-execution applies if, in the executing Member State, the requested person might only face civil or administrative proceedings but not criminal proceedings, due to his or her age.

In its judgment in Case C-367/16 Piotrowski  (125), the Court of Justice ruled that the executing judicial authority must refuse to surrender only those minors who are the subject of an EAW and who, under the law of the executing Member State, have not yet reached the age at which they are regarded as criminally responsible for the acts on which the warrant issued against them is based. It is not possible for the executing judicial authority to consider additional conditions, relating to an assessment based on the circumstances of the individual, to which the law of its Member State specifically makes subject the prosecution and conviction of a minor. It is for the issuing judicial authority to apply the specific rules governing criminal law penalties for offences committed by minors in its Member State.

5.5.2.   Grounds for optional non-execution

When any of the grounds for optional non-execution apply and have been transposed into national law, the executing judicial authority may refuse to execute the EAW depending on the circumstances of the case. Those grounds are set out in Article 4 of the Framework Decision on EAW.

The Court of Justice held in Case C-665/20 PPU, Openbaar Ministerie v X  (126), that Member States, when opting for the transposition of an optional ground for non-execution under the Framework Decision, cannot provide for an obligation to refuse the execution of an EAW if the issued warrant falls within the scope of thosegrounds. Rather, the judicial authority of the executing Member State must have a margin of discretion and needs to be able to take into account the specific circumstances of each case and to assess the optional ground of refusal in the case at hand.

In particular, the specific circumstances of each case should be carefully assessed in cases of an EAW issued by, a European Delegated Prosecutor of the European Public Prosecutor’s Office (the EPPO) (127) or issued following his/her request, when investigating/prosecuting criminal offences affecting the financial interests of the Union (128) , e.g. complex VAT fraud with a cross- border element, since the EPPO acts as a supranational single office.

Lack of double criminality (Article 4(1))

The act on which the EAW is based does not constitute an offence under the law of the executing Member State.

This ground concerns offences which are not mentioned in the list of offences in Article 2(2) of the Framework Decision on EAW, for which the verification of double criminality is abolished. Moreover, this ground for optional non-execution may apply even if the act corresponds to one of the offences listed in Article 2(2) of the Framework Decision on EAW, but (i) it is punishable by a custodial sentence or a detention order for a maximum period of less than 3 years under the law of the issuing Member State; and (ii) it does not constitute an offence under the law of the executing Member State.

In its judgments in Case C-289/15 Grundza  (129) and in Case C-168/21 Procureur général près la cour d'appel d'Angers  (130), the Court of Justice clarified how the double criminality condition needs to be assessed

In its judgment in Case C-289/15 Grundza  (131), the Court of Justice interpreted Articles 7(3) and 9(1)(d) of Framework Decision 2008/909/JHA (namely how the double criminality condition needs to be assessed). The Court of Justice ruled as follows:

In Case C-168/21 Procureur général près la cour d'appel d'Angers  (132), the Court of Justice further explained that, in order to determine whether the condition of double criminality of the act is met, it is necessary and sufficient that the acts giving rise to the issuing of the EAW also constitute an offence under the law of the executing Member State. Therefore, the EU legislature does not require there to be an exact match between the constituent elements of the offence, as defined in the law of the issuing Member State and the executing Member State, respectively, or between the name given to or the classification of the offence under the national law of the respective States.

Moreover, the Court of Justice held that the condition of double criminality under Articles 2(4) and 4(1) of Framework Decision on EAW will be met where the EAW is issued for the purpose of enforcing a custodial sentence for acts which relate, in the issuing Member State, to an offence requiring that those acts impair a legal interest protected in that Member State, even when the impairment of the legal interest protected by the law of the issuing Member State is not a constituent element of the offence under the law of the executing Member State. If the condition of double criminality were to be interpreted as requiring an exact match between the constituent elements of the offence, as well as between the legal interests protected under the laws of the issuing and executing Member State, then the effectiveness of the surrender procedure would be undermined. Moreover, the condition of double criminality of the act must therefore be considered to be met where the EAW is issued for the purpose of enforcing a custodial sentence – even if that sentence was imposed in the issuing Member State for the commission of a single offence consisting of multiple acts, only some of which constitute a criminal offence in the executing Member State. Such an interpretation is also consistent with the principle of proportionality of criminal offences and penalties that is provided for in Article 49(3) of the Charter. In that regard, the Court clarified that it is not for the executing judicial authority, when assessing the condition of double criminality, to assess the sentence handed down in the issuing Member State in light of Article 49(3) of the Charter.

In relation to taxes or duties, customs and exchange, the execution of an EAW may not be refused on the ground that the law of the executing Member State does not impose the same kind of tax or duty or does not contain the same type of rules as regards taxes, duties, customs and exchange regulations as the law of the issuing Member State.

Prosecution pending in the executing Member State (Article 4(2))

The person who is the subject of the EAW is being prosecuted in the executing Member State for the same act as that on which the EAW is based.

Prosecution for the same offence precluded in the executing Member State (Article 4(3))

The judicial authorities of the executing Member State have decided either not to prosecute for the offence on which the EAW is based or to halt proceedings; or a final judgment has been passed upon the requested person in a Member State in respect of the same acts which prevents further proceedings.

In Case C-268/17 AY  (133), the Court of Justice ruled that a decision by a pPublic Pprosecutor’s Ooffice to terminate an investigation opened against an unknown person, and during which the person who is subject to an EAW was interviewed as a witness only, without criminal proceedings having been brought against that person and where the decision was not taken in respect of that person, cannot be relied on for the purpose of refusing to execute that EAW under Article 4(3) of the Framework Decision on the EAW.

See also Section 5.5.1 on the ne bis in idem principle.

Prosecution or punishment statute-barred (Article 4(4))

The criminal prosecution or punishment of the requested person is statute-barred according to the law of the executing Member State and the acts fall within the jurisdiction of that Member State under its own criminal law.

Final judgment in a third State (Article 4(5))

The executing judicial authority is informed that the requested person has been finally judged by a third State in respect of the same acts provided that, where there has been a sentence, the sentence has been served or is currently being served or may no longer be executed under the law of the sentencing country.

In its judgment in case C-665/20 PPU X  (134), the Court of Justice specified that the concept of ‘same acts’ under Articles 3(2) and 4(5) of the Framework Decision on EAW must be interpreted uniformly in the two provisions. Moreover, the Court of Justice clarified that the condition regarding execution provided for in Article 4(5) is also satisfied in cases where the requested person has been finally sentenced, for the same acts, to a term of imprisonment, of which part has been served in the third State, while the remainder of that sentence has been remitted by a non-judicial authority of that State. The Court of Justice underlined that it is for the executing judicial authority, when exercising its discretion, to find a balance between prevention of impunity and ensuring legal certainty for the person concerned.

See also Section 5.5.1 on the ne bis in idem principle.

The executing Member State undertakes the execution of the sentence (Article 4(6))

Where the EAW has been issued for the purposes of execution of a custodial sentence or detention order, and the requested person is staying in, or is a national or a resident of the executing Member State, the executing judicial authority might consider whether the sentence could be executed in its Member State instead of surrendering the person to the issuing Member State.

Article 25 of Framework Decision 2008/909/JHA also contains a specific provision concerning the enforcement of custodial sentences in the executing Member State in cases falling under Article 4(6) of the Framework Decision on EAW (see Section 2.5.2). Framework Decision 2008/909/JHA has replaced the 1983 Convention on the Transfer of Sentenced Persons and its Additional Protocol (135). Framework Decision 2008/909/JHA must therefore be applied when transferring the sentence to the Member State where it is executed.

In accordance with Framework Decision 2008/909/JHA, consent by the sentenced person to the transfer is no longer a prerequisite in all cases.

In its judgment in Case C-514/17 Sut  (136), the Court of Justice highlighted the procedure and the conditions needed to apply Article 4(6) of the Framework Decision on EAW.

It ruled as follows:

With regard to the first condition, the Court of Justice specified, in its judgment in Case C-66/08 Kozłowski  (137), that the terms ‘resident’ and ‘staying’ in Article 4(6) of the Framework Decision on EAW must be defined uniformly, since they concern autonomous concepts of Union law. They respectively cover the situations in which the requested person has either established his actual place of residence in the executing Member State or has acquired, following a stable period of presence in that State, certain connections with that State, which are of a similar degree to those resulting from residence. A determination of ‘staying’ requires an overall assessment of various objective factors, including the length, nature and conditions of the person’s presence and the family and economic connections with the executing Member State. The Court of Justice further clarified that the fact that the requested person systematically commits crimes in the executing Member State and the fact that he or she is in detention serving a custodial sentence there are not relevant factors for the executing judicial authority to take into account when it has to ascertain whether the person concerned is ‘staying’ in the executing Member State. If the person concerned is ‘staying’ in the executing Member State, however, these factors may be of some relevance for the assessment which the executing judicial authority is then called upon to carry out in order to decide whether there are grounds for not implementing an EAW.

The Court of Justice held, in its judgment in Case C-123/08 Wolzenburg  (138), that Member States may limit the situations in which it is possible, as an executing Member State, to refuse to surrender a person who falls within the scope of Article 4(6), by making the application of that provision, when the person requested is a national of another Member State, subject to the condition that the person has lawfully resided for a continuous period of 5 years in that Member State of execution. However, a Member State cannot make application of the ground for optional non-execution of an EAW in Article 4(6) of the Framework Decision on EAW subject to supplementary administrative requirements, such as possession of a residence permit of indefinite duration.

In its judgment in Case C-42/11 Lopes da Silva Jorge  (139), the Court of Justice clarified that Article 4(6) of the Framework Decision on EAW and Article 18 TFEU must be interpreted as meaning that a Member State may, in transposing Article 4(6) of the Framework Decision on EAW, decide to limit the situations in which an executing judicial authority may refuse to surrender a person falling within the scope of that provision., However, it cannot automatically and absolutely exclude from its scope the nationals of other Member States who are staying or resident in its territory, irrespective of their connections with that Member State. National courts are required to interpret the law in the light of the wording and purpose of the Framework Decision on EAW to ensure its full effectiveness.

In its judgment in Case C-700/21 O. G.  (140), the Court of Justice held that Article 4(6) of Framework Decision on EAW, read in conjunction with Article 20 of the Charter, precludes a national law which excludes, absolutely and automatically, third-country nationals staying or resident in the territory of that Member State from benefiting from the ground for optional non-execution of an EAW, without the executing judicial authority being able to assess the connections that that national has with that Member State. In order to assess whether it is appropriate to refuse to execute such an EAW, the executing judicial authority must carry out an overall assessment to establish whether the requested person has sufficient links with the executing Member State to support the presumption that, if the sentence is enforced in that State, the person concerned will have a greater chance of reintegration there than in the issuing Member State. Those elements include family, linguistic, cultural, social or economic links which the third-country national has with the executing Member State, and the nature, duration and conditions of his or her stay in that Member State.

Regarding the second condition, the Court of Justice underlined, in Case C-579/15 Popławski (Popławski I)  (141), that the requirement to take over the execution of the sentence presupposes an actual undertaking on the part of the executing Member State to execute the custodial sentence imposed on the requested person by the issuing Member State. In order to avoid impunity, the executing judicial authority must first examine whether it is actually possible to execute the sentence in accordance with its domestic law. If that is not the case, the executing judicial authority must order the execution of the EAW and surrender the requested person.

The Court of Justice further considered that the execution of an EAW cannot be refused on the ground of Article 4(6) of the Framework Decision on EAW merely because the judicial authority of the executing Member State informs the judicial authority of the issuing Member State that it is ‘willing’ to take over the enforcement of the judgment, or because it intends to prosecute that person in relation to the same acts as those for which that judgment was pronounced.

In Case C-514/17 Sut  (142), the Court of Justice considered that a Member State may, for reasons related to the social rehabilitation of a requested person, refuse to execute an EAW despite the fact that the offence which provides the basis for that warrant is, under that national law of the executing Member State, punishable by fine only. However, this is only possible provided that, in accordance with its national law, that fact does not prevent the custodial sentence imposed on the person requested from actually being enforced in that Member State.

Regarding the legitimate interest justifying the application of Article 4(6), the Court of Justice stressed, in Case C-579/15 Popławski I  (143), that Article 4(6) is an optional ground of refusal – meaning that, when the two above conditions are fulfilled, the executing judicial authorities cannot be obliged to refuse to execute an EAW. Hence as highlighted by the Court of Justice in Case C-66/08 Kozłowski  (144), when using its margin of discretion, the executing judicial authority must assess whether there is a legitimate interest that would justify the sentence imposed in the issuing Member State being executed on the territory of the executing Member State. The executing judicial authority must notably give particular weight to the possibility of increasing the requested person’s chances of reintegrating into society when the sentence imposed on him or her expires.

Finally, in Cases C-42/11 Lopes da Silva Jorge  (145), C-579/15 Popławski I  (146) and C-573/17 Popławski (Popławski II)  (147) , the Court of Justice held that national courts are required to interpret their national law in the light of the wording and purpose of the Framework Decision on EAW to ensure its full effectiveness and to ensure an outcome that is compatible with the objective pursued by the Framework Decision. In Case C-573/17 Popławski (Popławski II)  (148) the Court of Justice also specified that the principle of the primacy of EU law must be interpreted as meaning that it does not require a national court to disapply a provision of national law which is incompatible with the provisions of a framework decision (such as the Framework Decision on EAW) because those provisions do not have direct effect.

Extraterritoriality (offences committed outside the territory of the issuing Member State) (Article 4(7))

The EAW relates to offences which:

(a)	are regarded by the law of the executing Member State as having been committed in whole or in part in the territory of the executing Member State or in a place treated as such; or

(b)	have been committed outside the territory of the issuing Member State and the law of the executing Member State does not allow prosecution for the same offences when committed outside its territory.

The Court of Justice specified in its judgment in Case C-488/19 JR  (149) that Article 4(7)(b) does not include situations where an EAW is issued on the basis of a judicial decision of the issuing Member State allowing execution in that Member State of a sentence imposed by a court of a third State in which the offence was committed. In these cases, the question whether that offence was committed ‘outside the territory of the issuing Member State’ must be resolved by taking into consideration the criminal jurisdiction of that third State which allowed prosecution of that offence, and not that of the issuing Member State.

5.6.   Trials in absentia

Framework Decision 2009/299/JHA amended the Framework Decision on EAW by deleting Article 5(1) and inserting a new Article 4a on decisions rendered in absentia. These provisions concern situations where an executing judicial authority has received an EAW concerning execution of a custodial sentence arising from proceedings in the issuing Member State where the person was not present.

Article 4a(1) of the Framework Decision on EAW contains a ground for optional non-execution whereby an EAW that was issued for the purpose of executing a custodial sentence or a detention order may be refused if the person did not appear at the trial resulting in the decision (a decision rendered in absentia). That option is nevertheless accompanied by four exceptions set out in points (a) to (d) of Article 4a(1) of the Framework Decision on EAW.

Pursuant to Article 4a(1) of the Framework Decision on EAW, an executing judicial authority cannot refuse to execute an EAW based on a decision rendered in absentia where the EAW states that the person, in accordance with further procedural requirements defined in the national law of the issuing Member State:

(a)

in due time: (i) either was summoned in person and thereby informed of the scheduled date and place of the trial which resulted in the decision, or by other means actually received official information of the scheduled date and place of that trial in such a manner that it was unequivocally established that he or she was aware of the scheduled trial; and (ii) was informed that a decision may be handed down if he or she does not appear for the trial; or

(b)	being aware of the scheduled trial, had given a mandate to a legal counsellor, who was either appointed by the person concerned or by the State, to defend him or her at the trial, and was indeed defended by that counsellor at the trial; or

(c)

after being served with the decision and being expressly informed about the right to a retrial, or an appeal, in which the person has the right to participate and which allows the merits of the case, including fresh evidence, to be re-examined, and which may lead to the original decision being reversed: (i) expressly stated that he or she does not contest the decision; or (ii) did not request a retrial or appeal within the applicable time frame; or

(d)

was not personally served with the decision but: (i) will be personally served with it without delay after the surrender and will be expressly informed of his or her right to a retrial, or an appeal, in which the person has the right to participate and which allows the merits of the case, including fresh evidence, to be re-examined, and which may lead to the original decision being reversed; and (ii) will be informed of the time frame within which he or she has to request such a retrial or appeal, as mentioned in the relevant EAW.

In this context, the Court of Justice has clarified that, where at least one of the conditions under Article 4(a)(1)(a) to (d) of the Framework Decision on EAW is met, the executing authority cannot refuse the execution of the EAW (150).

In its judgment in Case C-271/17 PPU Zdziaszek  (151), the Court of Justice however highlighted that, where neither the information contained in the EAW form nor the information obtained pursuant to Article 15(2) of the Framework Decision on EAW provide sufficient evidence to establish the existence of one of the situations referred to in Article 4a(1)(a) to (d), the executing judicial authority may refuse to execute the EAW.

Moreover, the Court of Justice underlined in its case-law the optional nature of the ground for refusal by stating that the executing judicial authority may, after it has found that the situations referred to in Article 4a(1)(a) to (d) are not applicable, take account of other circumstances that enable it to ensure that the surrender of the person concerned does not entail a breach of their rights of defence and order the surrender. Indeed, the Framework Decision on EAW does not prevent the executing judicial authority from ensuring that the rights of defence of the person concerned are respected by taking into due consideration all the circumstances of the case before it, including any information which it may itself obtain. In that context, the executing authority may take into account the behaviour of the requested person and the fact that he prevented his summons in person or any contact from the court-appointed lawyers, or the fact that he appealed against the first instance decisions (152). This implies that the executing judicial authority may decide to surrender the requested person even where the four situations as mentioned under Article 4a(1)(a) to (d) are not fulfilled.

The exhaustive nature of the four situations mentioned under Article 4(a)(1)(a) to (d) of the Framework Decision on EAW was confirmed by the Court of Justice in Case C-399/11 Melloni and in Case C-416/20 PPU TR.

In Case C-399/11 Melloni  (153) the Court of Justice was asked whether Article 4a(1) of the Framework Decision on EAW must be interpreted as precluding the executing judicial authorities from making the execution of an EAW conditional upon the conviction rendered in absentia being open to review in the issuing Member State in accordance with a national constitutional rule of the executing State.

The Court of Justice considered that Article 4a(1) of the Framework Decision on EAW provides for an optional ground for non-execution of an EAW issued for the purpose of executing a sentence, where the person concerned has been sentenced in absentia. That option is nevertheless accompanied by four exceptions set out in points (a) to (d) of Article 4a(1). The Court of Justice held that in these four situations, the executing judicial authority may not make the surrender of a person convicted in absentia conditional upon the conviction being open to review in his presence. This means that executing judicial authorities cannot impose any additional requirements based on national constitutional requirements.

In Case C-416/20 PPU TR  (154), the Court of Justice held that Article 4a of the Framework Decision on EAW must be interpreted as meaning that the executing judicial authority may not refuse to execute an EAW where the requested person has obstructed his or her summons in person and did not appear in person at the trial because he or she absconded to the executing Member State, solely because the executing judicial authority does not have the assurance that, in the event of surrender to the issuing Member State, the right to a retrial (as defined in Articles 8 and 9 of Directive (EU) 2016/343 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings (155)) will be respected.

As regards the relation of Article 4a of the Framework Decision on EAW to Directive 2016/343/EU, the Court of Justice considered in Case C-416/20 PPU TR that Article 4a already specifically covers the situation where an EAW that has been issued for the purpose of executing a custodial sentence or a detention order concerning a person who did not appear in person at the trial results in the decision imposing that sentence or order. For this reason, ‘any possible non-conformity of the national law of the issuing Member State with the provisions of Directive 2016/343 cannot constitute a ground which may lead to a refusal to execute the EAW’ as the EU legislature adopted the approach of providing an exhaustive list of the circumstances in which the execution of an EAW issued in order to enforce a decision rendered in absentia must be regarded as not infringing the rights of the defence (156).

Nonetheless, the Court of Justice emphasised that the fact that Directive 2016/343/EU cannot be relied on in order to prevent the execution of an EAW does not in any way affect the absolute obligation of the issuing Member State to comply, within its legal system, with all provisions of EU law, including Directive 2016/343. The person concerned may, where appropriate, after being surrendered to the issuing Member State, rely before the courts of that Member State on the relevant provisions of Directive 2016/343/EU.

5.6.1.   Autonomous concepts of EU law

The Court of Justice has ruled that the terms in Article 4a(1)(a)(i) of the Framework Decision on EAW ‘summoned in person’, ‘trial which resulted in the decision’ and ‘by other means actually received’ constitute autonomous concepts of EU law that need to be interpreted uniformly throughout the EU irrespective of classifications in the Member States (157). The meaning of such concepts cannot therefore be determined by national law.

Member States’ authorities are therefore obliged to always complete Box (d) section (d) of the EAW form concerning cases when decisions are rendered in absentia. It is important that the authorities not only tick the boxes provided in that section, but also fill in point 4 of that section and provide information about how the relevant conditions have been met. In that respect, it is important that the information is provided in a clear, comprehensive and factual manner, and that legal qualifications that derive from national law concepts are avoided. The non-appearance of the person, how the summons and the judgment were served and whether legal counsel appointed by the person (not court-appointed) represented the accused, should therefore be described in a factual manner without resorting to national legal terminology.

Providing complete information in a factual manner avoids requests for supplementary information under Article 15(2) of the Framework Decision on EAW, which can cause unnecessary delays.

The autonomous concept of ‘trial resulting in the decision’ within the meaning of Article 4a

Where the proceedings have taken place over several instances which have given rise to successive decisions, the Court of Justice clarified, in its judgment in Case C-270/17 PPU Tupikas  (158) , that the concept of ‘trial resulting in the decision’ relates only to the instance at the end of which the decision handed down finally rules on the guilt of the person concerned and imposes a penalty on him or her, such as a custodial sentence, following an assessment in fact and in law of the merits of the case.

In its judgment in Case C-271/17 PPU Zdziaszek  (159), the Court of Justice specified that the concept of a ‘trial resulting in the decision’ not only covers the appeal proceedings that led to a decision which finally determined the guilt of the person concerned and the sentence imposed, but also refers to subsequent proceedings, such as those that led to the judgment handing down a cumulative sentence, at the end of which the decision that finally amended the level of the initial sentence was handed down, inasmuch as the authority which adopted the latter decision enjoyed a certain discretion in that regard.

However, where a party appears in person in criminal proceedings that result in a judicial decision which definitively finds him guilty of an offence and, as a consequence, imposes a custodial sentence the execution of which is subsequently suspended subject to certain conditions (such as probation measures related to conduct), the Court of Justice considered in Case C-571/17 PPU Ardic  (160), that the concept of ‘trial resulting in the decision’ does not include subsequent proceedings in which that suspension is revoked on grounds of infringement of those conditions during the probationary period – provided that the revocation decision adopted at the end of those proceedings does not change the nature or the level of the sentence initially imposed.

In Joined Cases C-514/21 and C-515/21 Minister for Justice and Equality  (161), the Court of Justice held that Article 4a(1) of the Framework Decision on EAW, read in the light of Articles 47 and 48 of the Charter, must be interpreted as meaning that where the suspension of a custodial sentence is revoked, on account of a new criminal conviction, and an EAW is issued for the purpose of serving that sentence, that criminal conviction, handed down in absentia, constitutes a ‘decision’ within the meaning of that provision. That is not the case for the decision revoking the suspension of that sentence.

Article 4a(1) must therefore be interpreted as authorising the executing judicial authority to refuse to surrender the requested person to the issuing Member State where it is apparent that the proceedings resulting in a second criminal conviction of that person, which was decisive for the issue of the EAW, took place in absentia – unless the EAW contains, in respect of those proceedings, one of the statements referred to in subparagraphs (a) to (d) of that provision.

The executing judicial authority will, however, be precluded from refusing to surrender the requested person to the issuing Member State on the ground that the proceedings resulting in the revocation of the suspension of the custodial sentence for the execution of which the EAW was issued took place in absentia, or from making the surrender of that person subject to a guarantee that he or she will be entitled, in that Member State, to a retrial or to an appeal allowing for the re-examination of such a revocation decision or of the second criminal conviction which was handed down against that person in absentia and which proves decisive for the issue of that warrant.

The autonomous concept of ‘summoned in person’ and ‘actually received by other means’ within the meaning of Article 4a

In its judgment in Case C-108/16 PPU Dworzecki  (162) the Court of Justice held as follows:

5.7.   Fundamental rights considerations by the executing judicial authority

The Framework Decision on EAW does not contain any provision for non-execution on the basis of a breach of the requested person’s fundamental rights in the issuing Member State. However, Article 1(3), read together with recitals 12 and 13 of the Framework Decision on EAW, clarifies that the Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles, as enshrined in Article 6 TEU and reflected in the Charter an obligation which concerns all Member States and in particular both the issuing and the executing Member State

As reaffirmed by the Court of Justice in its judgments in Joined Cases C-404/15 and C-659/15 PPU Aranyosi and Căldăraru  (163) and in Case C-216/18 PPU LM  (164), the principle of mutual trust requires that, save in exceptional circumstances, each Member State considers all the other Member States to be complying with EU law and particularly with the fundamental rights recognised by EU law.

Moreover, the Court of Justice held in Case C-158/21 Puig Gordi and Others  (165) that an executing judicial authority may not in principle refuse to execute an EAW on the basis that the court called upon to try the requested person in the issuing Member State does not have jurisdiction for that purpose under the national law of the issuing Member State. That authority must nevertheless refuse to execute that EAW if it finds that there are systemic or generalised deficiencies affecting the judicial system of that Member State and that the court called upon to try the requested person in that Member State clearly lacks jurisdiction, thus following the two-step examination established by the Court of Justice’s case-law, as set out below in Section 5.7.2.

In the same judgment, the Court of Justice also ruled that the executing judicial authority does not have the power to refuse to execute an EAW on the basis of a ground for non-execution which arises not from Framework Decision on EAW but solely from the law of the executing Member State.

The Court of Justice ruled in Case C-327/18 PPU RO  (166) that the notification by a Member State of its intention to withdraw from the European Union pursuant to Article 50 TEU cannot be regarded as constituting an exceptional circumstance capable of justifying a postponement or a refusal to execute an EAW issued by that Member State.

However, it remains the task of the executing judicial authority to examine, after carrying out a specific and precise assessment of the particular case, whether there are substantial grounds for believing that, after the withdrawal from the European Union of the issuing Member State, the person who is the subject of that arrest warrant is at risk of being deprived of his fundamental rights. Circumstances such as continued participation in the ECHR and the European Convention on Extradition of 13 December 1957 can be taken into account in the context of that assessment.

5.7.1.   Considerations relating to detention conditions in the issuing Member State

With regard to detention conditions in the issuing Member State, in its judgments in Joined Cases C-404/15 and C-659/15 PPU Aranyosi and Căldăraru  (167), Case C-220/18 PPU ML  (168) and Case C-128/18 Dumitru-Tudor Dorobantu  (169), the Court of Justice considered that the need to guarantee that the person concerned will not be subjected to inhuman or degrading treatment within the meaning of Article 4 of the Charter justifies, exceptionally, a limitation of the principles of mutual trust and recognition. In that context the Court of Justice recalled that the prohibition of inhuman or degrading treatment or punishment, laid down in Article 4 of the Charter, is absolute in that it is closely linked to respect for human dignity, the subject of Article 1 of the Charter.

In its judgment in Joined Cases C-404/15 and C-659/15 PPU Aranyosi and Căldăraru, the Court of Justice ruled as follows:

If the judicial authority of the executing Member State is in possession of evidence of a real risk of inhuman or degrading treatment of individuals detained in the issuing Member State because of general detention conditions, it must follow the procedure set out in the judgment of the Court of Justice in Joined Cases C-404/15 and C-659/15 PPU Aranyosi and Căldăraru (paragraphs 89 to 104) and complemented by the Court in Case C-220/18 PPU ML and Case C-128/18 Dumitru-Tudor Dorobantu.

Procedural steps to be followed by the national executing judicial authorities if they are in possession of evidence of a real risk of inhuman or degrading treatment of individuals detained in the issuing Member State.

The steps below should be followed in the following order:

1.

Verification whether there is a real risk of inhuman and degrading treatment of the requested person because of general detention conditions: — based on objective reliable, specific and properly updated information that may be obtained from, inter alia, judgments of international courts, such as judgments of the European Court of Human Rights, judgments of courts of the issuing Member State, and also decisions, reports and other documents produced by bodies of the Council of Europe or under the aegis of the UN  (170) .

2.

If the existence of such a risk is identified based on the general detention conditions, verification whether there are substantial grounds to believe that such a real risk of inhuman and degrading treatment exists in the particular circumstances of the case for the requested person by requesting supplementary information: — obligation to request — on the basis of Article 15(2) of the Framework Decision on EAW — of the issuing judicial authority that there be provided, as a matter of urgency, all necessary supplementary information on the conditions in which it is envisaged that the requested person will be detained; — possibility to fix a time limit for the reply , taking into account the time required to collect the information as well as the time limits set in Article 17 of the Framework Decision on EAW; — possibility to take into account information provided by authorities of the issuing Member State other than the issuing judicial authority  (171); — obligation to rely on the assurance given or endorsed by the issuing judicial authority that the person concerned will not suffer inhuman or degrading treatment on account of the actual and precise conditions of detention, at least in the absence of any precise and specific indication that the detention conditions in a particular detention centre are in breach of Article 4 of the Charter.

3.

If the issuing judicial authority does not give an assurance that the person requested would not suffer inhuman and degrading treatment or if the executing judicial authority, based on the information received from the issuing judicial authority and any other information that may be available to the executing judicial authority, has precise and specific indications that the detention conditions in a particular detention centre are in breach of Article 4 of the Charter, assessment whether there are substantial grounds to believe that such a real risk of inhuman and degrading treatment exists in the particular circumstances of the case for the requested person: — obligation to only assess the conditions of detention in certain prisons – the prisons in which, according to the information available to it, it is likely that the requested person will be detained, including on a temporary or transitional basis  (172); — obligation to take into account all the relevant physical aspects of the conditions of detention where the requested person will be detained, such as the personal space available to each detainee in a cell in that prison, sanitary conditions and the extent of the detainee’s freedom of movement within the prison. That assessment is not limited to the review of obvious inadequacies  (173) ; — obligation to take into account – as regards the personal space available to each detainee – the minimum requirements under Article 3 of the ECHR and not the requirements resulting from the executing Member State’s national law. According to the case-law of the ECtHR, a strong presumption of a violation of Article 3 of the ECHR arises when the personal space available to a detainee in any type of cell is below 3 m2. This presumption can only be rebutted if (i) the reductions in the required minimum personal space of 3 m2 are short, occasional and minor, (ii) such reductions are accompanied by sufficient freedom of movement outside the cell and adequate out-of-cell activities, and (iii) the general conditions of detention at the facility are appropriate and there are no other aggravating aspects of the conditions of the concerned individual’s detention. The calculation of the available space should include the area occupied by furniture but not that occupied by sanitary facilities and detainees should be able to move around normally within the cell. For a range of 3 to 4 m2 in multi-occupancy accommodation it may be concluded that there is a violation of Article 3 of the ECHR if the space factor is coupled with other aspects of inappropriate physical conditions of detention, including, inter alia, lack of access to outdoor exercise natural light or air, poor ventilation, inadequacy of room temperature, the impossibility of using the toilet in private, and non-compliance with basic sanitary and hygienic requirements. In cases where a detainee disposes of more than 4 m2 of personal space in multi-occupancy prison accommodation and where therefore no issue with regard to the question of personal space arises, other aspects of physical conditions of detention, as referred to in the preceding paragraph, remain relevant for the assessment of adequacy of an individual’s conditions of detention under Article 3 of the ECHR  (174). — prohibition to rule out the risk merely because the requested person has, in the issuing Member State , a legal remedy permitting the individual to challenge the conditions of his detention or because there are legislative or structural measures that are intended to reinforce the monitoring of detention conditions. Such remedies and measures may, however, be taken into account when making the overall assessment of the detention conditions for the purpose of deciding on the surrender of the person  (175); — prohibition to weigh a finding that there are substantial grounds for believing that that requested person runs a risk of being subject to inhuman or degrading treatments against considerations relating to the efficacy of judicial cooperation in criminal matters and to the principles of mutual trust and recognition  (176).

4.

If the existence of a real risk of inhuman or degrading treatment for the requested person is identified (and pending a final decision on the EAW): — obligation to postpone the execution of the EAW in question . Eurojust must be informed (in accordance with Article 17(7) of the Framework Decision on EAW); — possibility to hold the person concerned in custody , but only if the procedure for execution of the EAW has been carried out in a sufficiently diligent manner and the duration of the detention is not excessive (in accordance with the judgment in Case C-237/15 Lanigan, paragraphs 58, 59 and 60), giving due regard to the principle of the presumption of innocence guaranteed by Article 48 of the Charter and respecting the principle of proportionality laid down in Article 52(1) of the Charter; — possibility or even obligation to provisionally release the person concerned accompanied by measures to prevent the person absconding.

5.

Final decision: — if the executing judicial authority, on the basis of the information received from the issuing judicial authority, and any other information that may be available to the executing judicial authority, can discount the existence of a real risk that the requested person will be subject to inhuman and degrading treatment, it must decide on the execution of the EAW; — if the executing judicial authority finds out that the risk of inhuman and degrading treatment cannot be discounted within a reasonable time, it must decide whether the surrender procedure should be brought to an end.

In situations where the risk of inhuman and degrading treatment cannot be discounted within a reasonable time, the issuing and executing judicial authorities might consult and consider whether there are alternatives to the EAW, such as a transfer of proceedings or of the custodial sentence to the executing Member State (see Section 5.11.4).

A template for requesting supplementary information on detention conditions pursuant to Article 15(2) of the Framework Decision on EAW is provided in Annex X to this Handbook. The executing judicial authority should only tick boxes it considers relevant in a specific case. In that context, the Court of Justice has held in the ML case that requests for supplementary information including aspects of detention that are of no obvious relevance for the purposes of the assessment to be carried out in a specific case may be incompatible with the duty of sincere cooperation laid down in the first subparagraph of Article 4(3) TEU because such requests make it impossible in practice Rfor the authorities of the issuing Member State to provide a useful answer, given the short time limits laid down in Article 17 of the Framework Decision on EAW (177).

Moreover, for the assessment of detention conditions in the issuing Member State, reference is made to the Commission Recommendation on the procedural rights of suspects and accused in pre-trial detention and on material detention conditions of 8 December 2022 (see Annex XI).

5.7.2.   Considerations relating to the requested person’s right to a fair trial

In its judgment in Case C-216/18 PPU LM  (178), the Court of Justice ruled that the existence of a real risk that the person requested will, if surrendered, suffer a breach of his fundamental right to an independent tribunal (and therefore of the essence of his fundamental right to a fair trial guaranteed by the second paragraph of Article 47 of the Charter) is capable of permitting the executing judicial authority to refrain, by way of exception, from giving effect to the EAW. The Court of Justice ruled as follows:

In order to assess whether there is a real risk that the individual concerned will suffer a breach of his fundamental right to a fair trial, the executing judicial authority is required to follow the procedure set out in the judgment of the Court of Justice in Case C-216/18 PPU LM (paragraphs 30 to 79) and complemented by the Court in Joined Cases C-354/20 PPU and C-412/20 PPU L and P  (179) and Joined Cases C-562/21 PPU and C-563/21 PPU Openbaar Ministerie  (180) and Case C-480/21, W O and J L v Minister for Justice and Equality  (181) and Case C-158/21 Puig Gordi and Others  (182).

Procedural steps to be followed by the national executing judicial authorities.

The steps below should be followed in the following order:

1.

Verification whether there is a real risk of the right to a fair trial being breached on account of systemic or generalised deficiencies concerning the judiciary, such as to compromise the independence of the courts of the issuing Member State: — on the basis of objective, reliable, specific and properly updated information showing that there are systemic or generalised deficiencies in the operation of the judicial system of the issuing Member State or deficiencies affecting the judicial protection of an objectively identifiable group of persons to which the person concerned belongs, in the light of the requirement for a tribunal established by law, which mean that the individuals concerned are generally deprived, in that Member State, of an effective legal remedy enabling a review of the jurisdiction of the criminal court called upon to try them. — Information in a reasoned proposal recently addressed by the Commission to the Council on the basis of Article 7(1) TEU is particularly relevant for the purposes of that assessment. — The existence of a report which does not directly relate to that person’s situation may not, in itself, justify a refusal to execute that EAW. However, such a report may be taken into account by that judicial authority, among other elements, in order to assess whether there are systemic or generalised deficiencies in the operation of the judicial system of the issuing Member State  (183). — Other factors that are particularly relevant for the purpose of assessing whether there is a real risk of breach of the fundamental right to a fair trial include constitutional case-law of the issuing Member State, which challenges the primacy of EU law and the binding nature of the ECHR as well as the binding force of judgments of the Court of Justice and of the ECtHR relating to the organisation of the judicial system, and in particular the appointment of judges (184).

2.

If the existence of such a risk is identified based on systemic or generalised deficiencies concerning the judiciary, verification that there are substantial grounds to believe that such a risk of the right to a fair trial being breached exists in the particular circumstances of the case for the requested person: — This analysis cannot overlap with the preceding step. The existence or an increase in systemic or generalised deficiencies concerning the independence of the judiciary in the issuing Member State is not sufficient to presume that there are substantial grounds for believing that the person will, if he or she is surrendered to that Member State, run a real risk of a breach of his or her fundamental right to a fair trial  (185) . Nor can the analysis focus directly on the risk of a possible individual breach in the concrete case before having verified firstly and separately the existence of systemic or generalised deficiencies concerning the judiciary. — obligation to request — on the basis of Article 15(2) of the Framework Decision on EAW — of the issuing judicial authority that there be provided any supplementary information that the executing judicial authority considers necessary for assessing whether there is such a risk. The executing judicial authority cannot refuse to execute an EAW, on the ground that the person for whom that warrant has been issued is at risk, following his or her surrender to the issuing Member State, of being tried by a court lacking jurisdiction, without having first requested that the issuing judicial authority provide supplementary information on the basis of Article 15(2)  (186) — obligation to assess the reality of the risk, having regard to inter alia, the information that is provided by the person for whom that EAW has been issued and that relates to his/her personal situation, the nature of the offence for which he/ or she is being prosecuted and the factual context that forms the basis of the EAW as well as the factual context in which the EAW was issued, or any other relevant circumstance, such as statements by public authorities that are liable to interfere with the way in which an individual case is handled; — where the EAW is issued for the purpose of conducting a criminal prosecution , the executing judicial authority must examine in particular to what extent the systemic or generalised deficiencies, in so far as they concern the independence of the issuing Member State’s judiciary, are liable to have an impact at the level of the Member State’s courts with jurisdiction over the proceedings to which the requested person will be subject. That examination involves taking into consideration the impact of such deficiencies which may have arisen after the issue of the EAW  (187) . The executing judicial authority may refuse to surrender the requested person if that authority finds that there are substantial grounds for believing that, having regard to the information provided by the person concerned relating to his or her personal situation, the nature of the offence for which that person is prosecuted, the factual context surrounding that EAW or any other circumstance relevant to the assessment of the independence and impartiality of the panel of judges likely to be called upon to hear the proceedings in respect of that person, the latter, if surrendered, runs a real risk of breach of the fundamental right to a fair trial before an independent and impartial tribunal previously established by law. Such information may also relate to statements made by public authorities which could have an influence on the specific case. By contrast, the fact that the identity of the judges who will be called upon eventually to hear the case of the person concerned is not known at the time of the decision on surrender or, when their identity is known, that those judges were appointed on application of a body such as a National Council of the Judiciary is not sufficient to refuse that surrender  (188). — where the EAW is issued for the purpose of executing a custodial sentence , and when following his or her possible surrender, the requested person will be subject to new court proceedings relating to the execution of that custodial sentence or to an appeal against the judicial decision which is the subject of the EAW, the executing judicial authority must also examine the impact that the systemic or generalised deficiencies are liable to have on the court having jurisdiction over those proceedings. The executing judicial authority must also examine to what extent the systemic or generalised deficiencies that existed in the issuing Member State at the time of issue of the EAW have, in the particular circumstances of the case, affected the independence of the court that imposed the custodial sentence or detention order  (189) . The executing judicial authority may refuse to surrender the requested person if that authority finds that there are substantial grounds for believing that, having regard to the information provided by that person relating to the composition of the panel of judges who heard his or her criminal case or to any other circumstance relevant to the assessment of the independence and impartiality of that panel, there has been a breach of that person’s fundamental right to a fair trial before an independent and impartial tribunal, enshrined in the second paragraph of Article 47 of the Charter It is not sufficient, in order to refuse surrender, that one or more judges who participated in those proceedings were appointed on application of a body such as a National Council of the Judiciary. The person concerned must, in addition, provide information relating to, inter alia, the procedure for the appointment of the judges concerned and their possible secondment, which would lead to a finding that the composition of that panel of judges was such as to affect that person’s fundamental right to a fair trial. Furthermore, account must be taken of the fact that it may be possible, for the person concerned, to request the recusal of the members of the panel of judges for breach of his or her fundamental right to a fair trial, the fact that that person may exercise that option as well as the outcome of the request for recusal  (190).

3.	If the information provided by the issuing judicial authority does not lead to discounting of discount the existence of a real risk that the requested person will suffer, in the issuing Member State, a breach of his right to a fair trial: — obligation to refrain from giving effect to the EAW .

In situations where there is a real risk that the requested person will suffer, in the issuing Member State, a breach of his right to a fair trial, the issuing and executing judicial authorities might consult and consider whether there are alternatives to the EAW, such as a transfer of proceedings or of the custodial sentence to the executing Member State.

5.8.   Proportionality – the role of the executing Member State

The Framework Decision on EAW does not provide for the possibility of evaluation of the proportionality of an EAW by the executing Member State. This is in line with the principle of mutual recognition. Should serious concerns on the proportionality of the received EAW arise in the executing Member State, the issuing and executing judicial authorities are encouraged to enter into direct communication. It is anticipated that such cases would arise only in exceptional circumstances. With consultation, the competent judicial authorities may be able to find a more suitable solution (see Section 4.4). For example, depending on the circumstances of the case, it might be possible to withdraw the EAW and use other measures provided under national law or Union law.

In such situations, judicial authorities may also consult Eurojust or the EJN contact points. These bodies can facilitate communication and help find solutions.

5.9.   Guarantees to be given by the issuing Member State

Article 5 of the Framework Decision on EAW states that the execution of the EAW by the executing judicial authority may, by its national law, be subject to certain conditions. Those conditions may relate to the review of life-term imprisonment and the return of nationals to the executing Member State to serve their custodial sentences.

These guarantees may be provided directly in the national law of the issuing Member State or by way of an agreement between the competent authorities of the issuing and executing Member States. Nonetheless, they may concern only the subjects specified in Article 5 of the Framework Decision on EAW, as confirmed by the Court of Justice (notably in its judgments in Joined Cases C-404/15 and C-659/15 PPU Aranyosi and Căldăraru, paragraph 80, and in Case C-237/15 PPU Lanigan, paragraph 36).

NB: The guarantee concerning retrial for decisions rendered in absentia in Article 5(1) was deleted by Framework Decision 2009/299/JHA and replaced by the new Article 4a, which contains more comprehensive provisions on decisions in absentia (see Section 5.6).

In its judgment in Case C-306/09 I.B.  (191), the Court of Justice concluded:

5.9.1.   Review of custodial life sentence or lifetime detention order

In cases where the EAW has been issued for an offence that is punishable by a custodial life sentence or a lifetime detention order, the executing Member State can require a guarantee of review from the issuing Member State (Article 5(2) of the Framework Decision on EAW).

Custodial life sentence refers to sentences served in prison. Lifetime detention order refers to other types of detention, for example, in psychiatric treatment facilities.

The guarantee can be provided by the issuing Member State by demonstrating that, according to its legal system, the penalty or measure imposed can be reviewed either on request or at the latest after 20 years. Alternatively, a sufficient guarantee would be that the person is entitled to apply for measures of clemency under the law or practice of the issuing Member State, aiming a non-execution of such penalty or measure.

5.9.2.   Returning nationals and residents

The EAW allows for the possibility of returning the requested person to serve the custodial sentence in his or her home country. According to Article 5(3) of the Framework Decision on EAW, where a person who is the subject of an EAW for the purposes of prosecution is a national or resident of the executing Member State, the executing Member State can impose the condition that this person is returned to its territory by the issuing Member State to serve the custodial sentence or detention order passed in the issuing Member State.

This condition should be clearly stated by the executing Member State. Where possible, the issuing and executing Member State should agree on the details of this condition before the executing Member State decides on the surrender.

Where it is already known, prior to the EAW being issued, that the requested person is a national or resident of the executing Member State, the issuing judicial authority could already indicate on the EAW form its consent to a potential return condition.

The issuing Member State is responsible for ensuring that the condition is fulfilled. When a custodial sentence or detention order passed against the surrendered person becomes final, the issuing Member State must contact the executing Member State to arrange the return. The issuing Member State should ensure that the sentence is translated into the language of the executing Member State.

In Case C-314/18 SF  (192), the Court of Justice was asked whether the issuing Member State may postpone the return of the person concerned to the executing Member State until after the completion of other procedural steps within the scope of criminal proceedings (e.g. confiscation proceedings) relating to the offence underlying the EAW. The Court of Justice considered that such postponement should not be systematic. It ruled:

Article 25 of Framework Decision 2008/909/JHA also contains a specific provision concerning the enforcement of custodial sentences in the executing Member State in cases falling under Article 5(3) of the Framework Decision on EAW. For transferring the sentence to the executing Member State where it is executed, the procedure and conditions required by Framework Decision 2008/909/JHA are to be applied (see Section 2.5.2).

In its judgment in Case C-314/18 SF  (193), the Court of Justice ruled that Article 25 of Framework Decision 2008/909/JHA must be interpreted as meaning that, when the execution of an EAW issued for the purposes of criminal proceedings is subject to the condition set out in Article 5(3) of Framework Decision on EAW, the executing Member State can, in order to enforce the execution of a custodial sentence or a detention order imposed in the issuing Member State on the person concerned, adapt the duration of that sentence or detention only within the strict conditions set out in Article 8(2) of Framework Decision 2008/909/JHA.

5.10.   Relationship with Framework Decision 2008/909/JHA on Transfer of Prisoners

The connection between the Framework Decision on EAW and the Framework Decision 2008/909/JHA is laid down in Article 25 and recital 12 of the latter.

Article 4(6) of the Framework Decision on EAW provides that if an EAW has been issued for the purpose of execution of a custodial sentence or a detention order, where the requested person is staying in, is a national or a resident of the executing State, that State may execute the sentence or detention order in accordance with its domestic law.

Article 5(3) of the Framework Decision on EAW provides that where a person who is the subject of an EAW for the purposes of prosecution is a national or resident of the executing Member State, surrender may be 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 passed against him or her in the issuing Member State.

Under Article 25 and recital 12 of Framework Decision 2008/909/JHA, in cases where Articles 4(6) and 5(3) of the Framework Decision on EAW are applied, the domestic law implementing the Framework Decision 2008/909/JHA shall apply, mutatis mutandis and to the extent compatible with the Framework Decision on EAW, to the enforcement of the sentence. This also implies that the limitations contained in the rules on adaptation of the sentence (i.e. the principle of continued enforcement laid down in Article 8 of Framework Decision 2008/909/JHA) will need to be respected (194).

The Court of Justice has also clarified that any refusal to execute an EAW under Article 4(6) of the Framework Decision on EAW presupposes an actual undertaking on the part of the executing Member State to execute the custodial sentence imposed on the requested person and that, in any event, the mere fact that that Member State declares itself ‘willing’ to execute the sentence cannot be regarded as justifying such a refusal (195).

This implies that any refusal to execute an EAW under Article 4(6) of the Framework Decision on EAW must be preceded by the executing judicial authority’s examination of whether it is actually possible to enforce the sentence in accordance with its domestic law implementing the Framework Decision 2008/909/JHA. In the event that the executing Member State finds that it cannot ensure the enforcement of the sentence under Framework Decision 2008/909/JHA, it is under an obligation, in order to avoid impunity, to execute the EAW and therefore to surrender the requested person to the issuing Member State (196).

The Court of Justice has further clarified that Article 4(6) of the Framework Decision on EAW must be interpreted as meaning that, where a person who is the subject of an EAW issued for the purposes of enforcing a custodial sentence resides in the executing Member State, the executing judicial authority may, for reasons related to the social rehabilitation of that person, refuse to execute that warrant, despite the fact that the offence which provides the basis for that warrant is, under that national law of the executing Member State, punishable by fine only – provided that, in accordance with its national law, that fact does not prevent the custodial sentence imposed on the requested person from actually being enforced in that Member State (a matter for the referring court to ascertain) (197).

It should be underlined that, as follows from the above-mentioned case-law of the Court of Justice, the decision of the executing Member State to execute the sentence in accordance with the domestic law implementing the Framework Decision 2008/909/JHA should have become final before the decision to refuse the EAW under Article 4(6) of the Framework Decision on EAW can be made.

In the event that the executing Member State undertakes to execute the sentence or detention order and will on that basis refuse the execution of the EAW under Article 4(6) of the Framework Decision on EAW, the execution of that sentence cannot rely solely on the EAW. For such execution, a separate certificate under Framework Decision 2008/909/JHA will always be needed.

Choice of legal instrument by the issuing State in case of an arrest warrant issued for the purposes of executing a custodial sentence or a detention order

In the event that the Member State that considers issuing an EAW for the purposes of executing a custodial sentence or a detention order knows that the requested person can be located in his/her Member State of nationality or residence, it may be advisable to forward the judgment and the certificate under Framework Decision 2008/909/JHA to that Member State before issuing an EAW.

Indeed, under Article 14 of Framework Decision 2008/909/JHA, the issuing Member State may request the Member State of nationality or residence, before the arrival of the judgment and the certificate under Framework Decision 2008/909/JHA, to arrest the sentenced person provisionally or take any other measure to ensure that the sentenced person remains in its territory. Such an arrest will therefore avoid that the requested person will abscond, pending a decision to recognise the judgment and enforce the sentence under Framework Decision 2008/909/JHA. Issuing an EAW solely for the purpose of arresting the person is therefore not required in such situations.

However, neither of the Framework Decisions prevents the issuing of an EAW and a certificate under Framework Decision 2008/909/JHA in parallel, if the Member State issuing the EAW knows that the requested person is a national of another Member State.

If the two are issued at the same time, consultation between the issuing and the executing Member States is, however, of major importance (see Article 21 of Framework Decision 2008/909/JHA).

This consultation is important to clarify, in particular, why both requests were issued and to find practical solutions. For example, after the consultations, the issuing authority may decide to withdraw either the EAW or the Framework Decision 2008/909/JHA certificate.

5.11.   Postponement or temporary surrender

5.11.1.   Serious humanitarian reasons

After the executing judicial authority has decided to execute the EAW, the 10-day time limit for surrendering the person starts to run (as explained in Section 4.2). However, the executing judicial authority may exceptionally decide to postpone the surrender temporarily for serious humanitarian reasons – for example, where there are substantial grounds for believing that the surrender would manifestly endanger the requested person’s life or health (Article 23(4) of the Framework Decision on EAW).

The execution of the EAW must take place as soon as these grounds have ceased to exist. The executing judicial authority must immediately inform the issuing judicial authority and agree on a new surrender date. In that event, the surrender must take place within 10 days of the new date thus agreed. After the expiry of that deadline, the person can no longer be held in custody by the executing Member State on the basis of the EAW and the person must be released (Article 23(5) of the Framework Decision on EAW).

In situations where such humanitarian reasons are indefinite or permanent, the issuing and executing judicial authorities might consult each other and consider whether there are alternatives to the EAW. For example, possibilities to transfer proceedings or the custodial sentence to the executing Member State or to withdraw the EAW (for instance, in the case of serious permanent illness) might be examined.

In Case C-699/21, E. D. L  (198)., the Court of Justice ruled that Articles 1(3) and 23(4) of the Framework Decision on EAW, read in the light of Article 4 of the Charter, must be interpreted as meaning that, where there are substantial grounds to believe that the surrender of a requested person in the execution of an EAW manifestly risks endangering his or her health, the executing judicial authority may exceptionally postpone that surrender temporarily.

Where the executing judicial authority concludes that there are substantial grounds for believing that that surrender would expose that person to a real risk of a significant reduction in his or her life expectancy or of a rapid, significant and irreversible deterioration in his or her state of health, it must postpone that surrender and ask the issuing judicial authority to provide all information relating to (i) the conditions under which it intends to prosecute or detain that person and (ii) the possibility of adapting those conditions to his or her state of health in order to prevent such a risk from materialising. If the risk referred to above can be ruled out by guarantees provided by the issuing judicial authority, the EAW must then be executed.

Nevertheless if, in exceptional circumstances in the light of the information provided by the issuing judicial authority, it appears that that risk cannot be ruled out within a reasonable period of time, the executing judicial authority must refuse to execute the EAW. On the other hand, if that risk can be ruled out within a reasonable period of time, a new date of surrender must be arranged with the issuing judicial authority.

5.11.2.   Ongoing criminal procedure or execution of a custodial sentence

The executing judicial authority may, after deciding to execute the EAW, postpone the surrender of the requested person so that the person may be prosecuted in the executing Member State for another offence (Article 24(1) of the Framework Decision on EAW).

In such situations, the surrender should take place immediately after the prosecution has been carried out, on a date agreed by the issuing and executing judicial authorities.

When the requested person has already been sentenced for another offence, the surrender may be postponed so that the person may serve the sentence for that offence in the executing Member State (Article 24(1) of the Framework Decision on EAW).

In such cases, the surrender should take place after the person has served the sentence, on a date agreed by the issuing and executing judicial authorities.

NB: If the criminal procedure in the executing Member State concerns the same offence as the one that is the basis of the EAW, the executing Member State may refuse the execution of the EAW for that offence (see Article 4(2) of the Framework Decision on EAW and Section 5.5.2). Where the conditions of Article 3(2) of the Framework Decision on EAW are fulfilled, the execution of the EAW must be refused (see Section 5.5.1).

In Case C-492/22 PPU CJ  (199), the Court of Justice clarified that Article 24(1) of the Framework Decision on EAW must be interpreted as meaning that the decision to postpone surrender constitutes a decision on the execution of an EAW which, under Article 6(2) of that framework decision, must be taken by the executing judicial authority. Where such a decision has not been taken by that authority and the time limits referred to in Article 23(2) to (4) have expired, the person who is the subject of the EAW must be released in accordance with Article 23(5). Additionally, where the executing judicial authority decides to postpone the surrender pursuant to Article 24(1), Article 6 of the Charter allows that authority to decide to keep the requested person in detention while the criminal prosecution is being conducted in the executing Member State. However, this will be the case only in so far as the surrender procedure has been conducted in a sufficiently diligent manner and the duration of detention is not excessive. Lastly, the Court of Justice held that Article 24(1) of the Framework Decision on EAW, read in conjunction with Article 47(2) and (3) and Article 48(2) of the Charter, must be interpreted as not precluding the postponement of the surrender of the requested person solely on the ground that that person has not waived their right to appear in person before the courts seized in the executing Member State.

5.11.3.   Temporary surrender instead of postponement

In the situations described in Section 5.10, the executing judicial authority may, instead of postponing the surrender temporarily, surrender the requested person to the issuing Member State (Article 24(2) of the Framework Decision on EAW). This can be done for the purposes of prosecuting the person or executing a sentence already passed.

The executing and the issuing judicial authorities need to agree on the conditions of the temporary surrender in writing and in clear terms. The agreement is binding on all the authorities in the issuing Member State (Article 24(2) of the Framework Decision on EAW). The temporary surrender makes it possible to avoid lengthy delays in proceedings in the issuing Member State resulting from the fact that the person is being prosecuted or has already been sentenced in the executing Member State.

5.11.4.   Postponement of surrender decision due to identification of a real risk of inhuman or degrading treatment for the requested person

In accordance with the judgment of the Court of Justice in Joined Cases C-404/15 and C-659/15 PPU Aranyosi and Căldăraru, if the existence of a real risk of inhuman or degrading treatment for the requested person is identified, based on information received from the issuing judicial authority and any other information that may be available to the executing judicial authority (and pending a final decision on the EAW), the execution of the EAW must be postponed but not abandoned. Where the executing judicial authority decides on such a postponement, the executing Member State is to inform Eurojust, in accordance with Article 17(7) of the Framework Decision on EAW, giving the reasons for the delay (see Sections 5.7 and 4.1).

In a similar vein, the Court of Justice ruled in Case C-699/21 (200), E. D. L. that where the executing judicial authority concludes that there are substantial grounds for believing that that surrender would expose that person to a real risk of a significant reduction in his or her life expectancy or of a rapid, significant and irreversible deterioration in his or her state of health, it must postpone that surrender and ask the issuing judicial authority to provide all information relating to the conditions under which it intends to prosecute or detain that person and to the possibility of adapting those conditions to his or her state of health in order to prevent such a risk from materialising. If the risk referred to above can be ruled out by guarantees provided by the issuing judicial authority, the EAW must then be executed. It is nevertheless possible that, in exceptional circumstances and in the light of the information provided by the issuing judicial authority, the executing judicial authority arrives at the conclusion that (i) in the event that the person concerned is surrendered to the issuing Member State, that person will genuinely be at risk of inhuman and degrading treatment; and (ii) that risk cannot be ruled out within a reasonable period of time. In those circumstances, the executing judicial authority must refuse to execute the EAW. However, if that risk can be ruled out within a reasonable period of time, a new date of surrender must be arranged with the issuing judicial authority.

5.12.   Multiple EAWs concerning the same person

5.12.1.   Deciding which EAW to execute

Multiple EAWs concerning the same person may exist at the same time, either for the same acts or for different acts, and may be issued by the authorities of one or more Member States. The following guidelines apply regardless of whether the EAWs were issued for same acts or for different acts.

Where there are multiple EAWs for the same person, the executing judicial authority decides which one to execute, taking due consideration of all the circumstances (Article 16 of the Framework Decision on EAW).

It is advised that, before deciding the executing judicial authority tries to coordinate among the issuing judicial authorities who have issued the EAWs. If the issuing judicial authorities have already coordinated beforehand, this should be taken into account by the executing judicial authority, although the executing judicial authority is not bound by any agreements they may have reached under the Framework Decision on EAW.

The executing judicial authority may also seek advice from Eurojust (Article 16(2) of the Framework Decision on EAW). It can facilitate and speed up the coordination and can be requested to give an opinion on the competing EAWs. The decision on which EAW to execute should ideally be based on the consent of all of the issuing judicial authorities.

In considering which of the EAWs to execute, and whether or not the issuing judicial authorities have reached consensus, the following factors in particular should be taken into account by the executing judicial authority (Article 16(1) of the Framework Decision on EAW):

(a)	the relative seriousness of the offences;

(b)	the place where the offences were committed;

(c)	the respective dates of the EAWs;

(d)	whether the warrant has been issued for the purposes of prosecution, or for execution of a custodial sentence or detention order.

This list is non-exhaustive. Furthermore, there are no strict rules as to which of these factors should be prioritised – this is to be considered on a case-by-case basis. In any case, Article 16 of the Framework Decision on EAW requires the executing judicial authority to take the situation into due consideration. A simple ‘first come, first served’ decision should therefore be avoided.

The executing judicial authorities may also refer to the Eurojust Guidelines for deciding on competing requests for surrender and extradition (revised, 2019), which are available at: https://www.eurojust.europa.eu/nl/guidelines-deciding-competing-requests-surrender-and-extradition.

When taking the surrender decision, it is important that the executing judicial authority clearly indicates which EAW is the basis for the surrender. Furthermore, the SIRENE Bureau of the executing Member State then needs to send SIRENE G form to each Member State concerned (see Article 32(3) of the SIRENE Manual – Police) (201).

The assessment of which of the EAWs to execute should only concern those EAWs that are enforceable. Therefore, the executing judicial authority could initially assess each of the EAWs to determine whether it would be possible to execute them on their own. If a ground of non-execution applies to any of the EAWs, the executing judicial authority could, for the sake of clarity, take a separate decision not to execute that EAW.

In Case C-158/21 Puig Gordi and Others  (202), the Court of Justice clarified that the Framework Decision on EAW does not preclude the issuing of several successive EAW against a requested person even after the execution of a first EAW concerning that person has been refused by the executing Member State – provided that the execution of a new EAW does not result in an infringement of Article 1(3) of that framework decision and that the issuing of the successive EAW is proportionate.

5.12.2.    ‘Parallel proceedings’

When EAWs for offences concerning the same facts and the same person are issued by two or more Member States, the competent authorities have a duty to communicate and cooperate. This duty follows from Council Framework Decision 2009/948/JHА of 30 November 2009 on prevention and settlement of conflicts of exercise of jurisdiction in criminal proceedings (203). In these situations, the competent authorities are advised to refer to their national legislation implementing that Framework Decision.

When consensus cannot be reached, the competent authorities involved must refer the matter to Eurojust in cases where Eurojust is competent to act (204). Eurojust can also be consulted in other situations (205). On 13 December 2016, Eurojust issued Guidelines for deciding ‘Which jurisdiction should prosecute?’ to prevent and support the settling of conflicts of jurisdiction that could result in an infringement of the principle of ne bis in idem  (206).

Member States which receive such parallel EAWs should inform the issuing Member States’ competent authorities of the parallel proceedings.

The competent authorities of the Member States which issued the EAWs should inform the executing judicial authority of their cooperation to resolve the conflict of jurisdiction and of any consent achieved in this procedure.

6.   DEDUCTION OF THE PERIOD OF DETENTION SERVED IN THE EXECUTING MEMBER STATE

Following the surrender of the requested person, the issuing Member State must take into account the periods of detention that have resulted from the execution of the EAW. All of these periods must be deduced from the total period of the custodial sentence or detention to be served in the issuing Member State (Article 26 of the Framework Decision on EAW). If the person is acquitted, provisions of the issuing Member State on compensation for damages may apply.

For this reason and as described in Section 4.5.2, the executing judicial authority or the central authority of the executing Member State must provide all information concerning the duration of the detention of the requested person on the basis of the EAW. This information should be provided on the form included in Annex VII (Standard form on EAW decision) at the time of the surrender (see also the judgment of the Court of Justice in Case C-294/16 PPU JZ  (207)).

7.   RULE OF SPECIALITY – PROCEDURE FOR RENOUNCING THE RULE OF SPECIALITY BY CONSENT OF THE EXECUTING JUDICIAL AUTHORITY

As discussed in Section 2.6, a person who has been surrendered may not in general be prosecuted, sentenced or otherwise deprived of his or her liberty for an offence committed prior to the surrender other than the offence for which the person was surrendered. This is the rule of speciality, as set out in Article 27 of the Framework Decision on EAW.

The rule of speciality is subject to a number of exceptions discussed in Section 2.6. In addition, Article 27(3) of the Framework Decision on EAW lists other situations where the rule of speciality does not apply (see Section 2.6 for further details and for the definition of an ‘offence other than’ that for which the person was surrendered within the meaning of Article 27(2) of the Framework Decision on EAW).

In other cases, it is necessary to request the original executing Member State’s consent (Article 27(3)(g) of the Framework Decision on EAW).

The procedure for renouncing the rule of speciality by consent of the executing judicial authority requires that the request for consent must be submitted by the same procedure and must contain the same information as a normal EAW. Thus, the competent judicial authority transmits the request for consent directly to the executing judicial authority, which surrendered the person.

The information contained in the request, as provided for in Article 8(1) of the Framework Decision on EAW, must be translated under the same rules as an EAW. The executing judicial authority must take the decision no later than 30 days after receipt of the request (Article 27(4) of the Framework Decision on EAW).

The executing authority must give its consent when the offence for which the consent is requested is itself subject to surrender in accordance with the Framework Decision on EAW – unless a mandatory or optional ground for non-execution applies.

Where applicable, the executing judicial authority may subject its consent to one of the conditions concerning custodial life sentences and the return of nationals and residents laid down in Article 5 of the Framework Decision on EAW (see Section 5.9). In such cases, the issuing Member State must give the appropriate guarantees (Article 27(4) of the Framework Decision on EAW).

The Court held in its judgment in Case C-168/13 PPU Jeremy F  (208). that a Member State could provide in its national law for an appeal with suspensive effect against the decision referred to in Article 27(4) of the Framework Decision on EAW – provided that the final decision is taken within the time limits laid down in Article 17 of the Framework Decision on EAW (see Section 4.1).

In its judgment in Case C-195/20 PPU XC  (209), the Court of Justice clarified that in a situation where the person was surrendered by a first Member State on the basis of an EAW, and that person then left the territory of the issuing Member State of the first warrant voluntarily and has been surrendered back there by a second Member State in execution of another EAW issued after that departure, then (i) the only surrender that is relevant for assessing compliance with the rule of speciality is that of the executing judicial authority of that second EAW; and (ii) the consent required in Article 27(3)(g) must therefore be given only by the executing judicial authority of the Member State that surrendered the prosecuted person on the basis of that EAW.

In Case C-510/19 AZ  (210), the Court of Justice clarified that the consent to renounce to the application of the rule of speciality under Articles 27(3)(g) and 27(4) of the Framework Decision on EAW must be given by a judicial authority that fulfils the requirements set out in Article 6(2) thereof (see Section 2.1.2).

In its judgment in Joined Cases C-428/21 and C-429/21 PPU (211), HM and TZ, the Court of Justice furthermore interpreted Article 27(3)(g) and (4) as well as Article 28(3) of the Framework Decision on EAW in light of the right to effective judicial protection guaranteed by Article 47 of the Charter. Consequently, a person who has been surrendered to the issuing judicial authority in execution of an EAW has the right to be heard by the executing judicial authority when a request for consent to renounce the rule of speciality is made. The Court clarified that the effective exercise of this right does not require the direct involvement of the executing judicial authority, provided that it ensures that it has sufficient information (particularly on the position of the person affected) to take a decision. It may thus suffice if the person affected can make their views known to the issuing judicial authority and this information is recorded in writing and passed on to the executing judicial authority. In principle, such information must be considered by the executing judicial authority as having been collected in compliance with the requirements of Article 47 of the Charter. If necessary, the executing judicial authority must ask for the provision of additional information without delay.

8.   SUBSEQUENT SURRENDER

8.1.   To the executing Member State on the basis of the Dublin III Regulation

At the time of his or her surrender, the requested person may have lodged an application for international protection in the executing Member State on the basis of Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (212).

In such situation and where the person has not lodged a new application for international protection in the issuing Member State following his or her surrender, the issuing Member State may request that the executing Member State takes back the surrendered person (see judgment of the Court of Justice in Case C-213/17 X  (213)).

8.2.   To another Member State on the basis of an EAW

Following the surrender of the requested person to the issuing Member State on the basis of an EAW, that Member State might need to decide on the execution of another EAW issued by another Member State regarding the same person. In accordance with Article 28(2) of the Framework Decision on EAW, the issuing Member State may subsequently surrender the person to another Member State without the consent of the original executing Member State 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 an EAW. Consent by the requested person must be given before the competent judicial authorities of the issuing Member State. It must be recorded in accordance with that Member State’s national law. It must 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;

(c)

where the requested person is not subject to the speciality rule in the issuing Member State according to Article 27(3)(a), (e), (f) and (g). The speciality rule, when applicable, prevents the deprivation of liberty of the requested person for any offence committed prior to his or her surrender for which the person was not surrendered, thus also preventing subsequent surrender to a Member State other than the executing Member State (see Section 2.6). Vice-versa, if the speciality rule is not applicable in the context of the first surrender pursuant to Article 27(3)(a), (e), (f) and (g) it also does not prevent subsequent surrender to another Member State.

In other cases, it is necessary to request the original executing Member State’s consent for any subsequent surrender (214).

Procedure to obtain the consent of the executing judicial authority

The request for consent must be submitted by the same procedure and must contain the same information as a normal EAW. The competent judicial authority transmits the request for consent directly to the executing judicial authority which surrendered the person.

Where a person has been subject to more than one surrender between Member States pursuant to successive EAWs, the subsequent surrender of that person to a Member State other than the Member State that last surrendered him or her is subject to the consent only of the Member State which carried out that last surrender (see judgment of the Court of Justice in Case C-192/12 PPU West (215)).

The information that must be contained in the request, as set out in Article 8(1) of the Framework Decision on EAW, must be translated under the same rules as an EAW. The executing judicial authority must take the decision on the consent no later than 30 days after receipt of the request (Article 28(3) of the Framework Decision on EAW).

Consent must be given when the offence for which the consent is requested is itself subject to surrender, in accordance with the provisions of the Framework Decision on EAW, unless a mandatory or optional ground for non-execution applies.

Where applicable, the executing judicial authority may subject its consent to one of the conditions concerning custodial life sentences and the return of nationals and residents laid down in Article 5 of the Framework Decision on EAW (see Section 5.9). In such cases, the issuing Member State must give the appropriate guarantees (Article 28(3) of the Framework Decision on EAW).

8.3.   To a third State

A person who has been surrendered pursuant to an EAW shall not be extradited to a State which is not a Member State (third State) without the consent of the competent authority of the Member State which surrendered the person. Such consent is given in accordance with the extradition agreements by which that Member State is bound, as well as with its domestic law (Article 28(4) of the Framework Decision on EAW).

9.   OBLIGATIONS AS REGARDS THIRD COUNTRIES

9.1.   Extradition request of a citizen of another Member State

In 2016, the Court of Justice introduced in Case C-182/15 Petruhhin  (216) specific obligations for Member States that do not extradite their own nationals when they receive an extradition request from a third State for the prosecution of an EU citizen who is a national of another Member State and who has exercised his/her right to free movement under Article 21(1) TFEU.

The Petruhhin judgment was the first case where the Court of Justice held that an EU Member State faced with an extradition request from a third State concerning a national of another EU Member State is obliged to initiate a consultation procedure with the Member State of nationality of the EU citizen (the Petruhhin mechanism), thus giving the latter the opportunity to prosecute its citizens by means of an EAW relating, at least, to the same offences as those of which that person is accused in the extradition request.

The specific obligations imposed on Member States that do not extradite their own nationals find their rationale derive from in Article 18 TFEU (non-discrimination) and Article 21 TFEU (right to free movement). A difference in treatment between own nationals and other EU citizens constitutes a restriction of the right to free movement which can only be justified if it is based on objective considerations and it is proportionate to the legitimate objective of preventing the risk of impunity. The Court held that in cooperating with the Member State of which the person concerned is a national and giving priority to a potential EAW over the extradition request, the host Member State acts in a manner which is less prejudicial to the exercise of freedom of movement while avoiding, as far as possible, the risk of impunity.

Member States’ obligations were further specified in subsequent case-law. Moreover, the Court of Justice extended the Petruhhin mechanism to Iceland and Norway.

Detailed guidance on extradition to third states and a summary of the relevant case-law of the Court of Justice in this respect is provided in the Commission Notice containing Guidelines on Extradition to Third States of 8 June 2022, attached to this Handbook as Annex X (217).

The Guidelines take into account experience that has been gained in recent years in applying the Petruhhin mechanism across the EU, Iceland and Norway. The guidelines also establish a network of contact points to swiftly exchange information on any unlawful extradition request, in particular politically motivated extradition requests concerning EU citizens, third States’ nationals and stateless persons. In addition, a table of all extradition agreements and mutual legal assistance agreements that Member States have concluded with third countries can be consulted on the EJN website.

9.2.   Concurrent EAWs and extradition requests for the same person

9.2.1.   Requests from third States

A Member State might receive an EAW and a concurrent extradition request from a third State for the same person who is in its territory. They might concern the same acts or different acts. The Member State might have different authorities responsible for deciding on the execution of the EAW and of the extradition request. In such cases, these authorities should cooperate when deciding how to proceed on the basis of the criteria mentioned below. Advice and help in coordination among the States involved might also be sought from Eurojust or the EJN.

There are no rules in the Framework Decision on EAW on which request should take precedence. However, as explained above, following the judgment in Case C-182/15, Petruhhin, in some situations priority should be given to an EAW over an extradition request.

In all other cases, according to Article 16(3) of the Framework Decision on EAW, the Member State must give due consideration to all the circumstances and in particular the criteria mentioned in Article 16(1) of the Framework Decision on EAW for deciding which request to execute when more than one of them relate to the same person.

Therefore, the following factors should be taken into account by the competent authorities:

(a)	the relative seriousness of the offences;

(b)	the place where the offences were committed;

(c)	the respective dates of the EAW and the extradition request;

(d)	whether the warrant has been issued for the purposes of prosecution or for execution of a custodial sentence or detention order.

The executing judicial authorities may also refer to Eurojust’s Guidelines for deciding on competing requests for surrender and extradition (2019 edition), which are available at: https://www.eurojust.europa.eu/nl/guidelines-deciding-competing-requests-surrender-and-extradition.

In addition, any criteria mentioned in the relevant extradition agreement will need to be taken into account. These could concern, in particular, the rules on multiple extradition requests.

9.2.2.   Requests from the International Criminal Court (ICC)

If a Member State receives an EAW and a simultaneous extradition request from the ICC for the same person, the competent authority or authorities should consider all circumstances referred to in Section 9.2.1. However, Member States’ obligations under the Statute of the International Criminal Court take precedence over the execution of the EAW (Article 16(4) of the Framework Decision on EAW).

9.3.   Prior extradition from a third State and the rule of speciality

If the requested person had been extradited to the executing Member State by a third State, the extradition might involve the speciality rule, depending on the rules of the applicable extradition agreement. According to the speciality rule, the extradited person can only be prosecuted or deprived of liberty for the offence or offences for which he or she was extradited. The Framework Decision on EAW does not prejudice the obligation to respect the speciality rule in such situations (Article 21 of the Framework Decision on EAW). This means that the executing Member State might be prevented from further surrender of the person without the consent of the State from which the requested person was extradited.

To resolve such situations, the Framework Decision on EAW requires the executing Member State to immediately take all necessary measures for requesting the consent of the third State (from which the requested person was extradited) so that the person can be surrendered to the Member State which issued the EAW (Article 21 of the Framework Decision on EAW).

The time limits referred to in Article 17 of the Framework Decision on EAW (see Section 4.1) will not start running until the day on which these speciality rules cease to apply. Pending the decision of the third State from which the requested person was extradited, the executing Member State must ensure that the material conditions necessary for effective surrender remain fulfilled (Article 21 of the Framework Decision on EAW). In particular, it may need to take the measures necessary to prevent the person from absconding.

10.   TRANSIT

10.1.   Transit via another Member State

Transit (Article 25 of the Framework Decision on EAW) concerns the situation where the requested person is transferred to the issuing Member State from the executing Member State via the territory, land or water of a third Member State. In these cases, the third Member State has to permit the transit. The issuing Member State’s competent authority must, however, provide the following information to the third Member State:

(a)	the identity and nationality of the person subject to the EAW;

(b)	the existence of an EAW;

(c)	the nature and legal classification of the offence;

(d)	the description of the circumstances of the offence, including the date and place.

To facilitate the transit, this information should be provided as soon as possible prior to the organisation of the transit. The issuing judicial authority is therefore advised to consider the possible need for transit even before it has agreed on the date of surrender with the executing judicial authority. This is also important in order to respect the strict time limits for surrender of the person set out in Article 23 of the Framework Decision on EAW (usually 10 days).

The information should be provided to the authority responsible for receiving transit requests in the Member State in question. Information on these authorities in each Member State can be found on the EJN website (the Judicial Atlas, Fiches Belges). The information can be provided to the relevant authority by any means capable of producing a written record, including email. The Member State of transit must notify its decision by the same procedure (Article 25(3) of the Framework Decision on EAW). In cases where the SIRENE Bureau is responsible for executing the handover, a specific SIRENE form (the ‘T form’) has been drawn up to facilitate the exchange of information between SIRENE Bureaux when transit is required (see Article 39 of SIRENE Manual – Police) (218).

The Framework Decision on EAW does not set a time limit for transit requests, but the State of transit should handle them without delay.

When the transport is carried out by air and without a scheduled stopover, the rules above do not apply. However, if an unscheduled landing occurs, the issuing Member State must provide the designated authority in the transit State with the information mentioned above, as in the case of transit via land or water (Article 25(4) of the Framework Decision on EAW).

10.2.   Nationals and residents of the Member State of transit

The exceptions to the duty to permit transit concern situations where a person who is the subject of an EAW is a national or resident of the Member State of transit. If the EAW is issued for the purpose of prosecution, the Member State of transit may impose the condition that the person, after being heard, will be returned to the transit State to serve the custodial sentence or detention order passed against that person in the issuing Member State (Article 25(1) of the Framework Decision on EAW). In this regard, Article 5(3) of the Framework Decision on EAW should be observed mutatis mutandis (see Section 5.9.2). If the EAW is issued for the purpose of the execution of a custodial sentence or detention order, the Member State of transit may refuse the transit.

10.3.   Extradition from a third State to a Member State

Although the Framework Decision on EAW does not directly concern extradition from third States, the rules on transit in Article 25 of the Framework Decision on EAW apply mutatis mutandis to extradition from a third State to a Member State (Sections 9.1 and 9.2). In this context, the expression ‘European arrest warrant’ in Article 25 of the Framework Decision on EAW must be read as ‘extradition request’ (Article 25(5)).

11.   NON-EXECUTED EAWS

11.1.   Ensuring that the person is not arrested again in the same Member State

If the executing judicial authority decides to refuse the execution of the EAW, the competent authority of that Member State needs to ensure that the refused EAW can no longer result in the arrest of the requested person within its territory. To ensure this, it must take the following steps so that:

(a)	the corresponding SIS alert is ‘flagged’; and

(b)

the corresponding alerts in domestic systems of the executing Member State will still be visible and will appear as ‘Person for arrest and surrender or extradition’ . However, the action to be taken will not require the person to be arrested but will instead be to ‘determine the place of residence or domicile of the person’  (219).

The reason for the alert refers to the background of the case but the action to be taken must be read before acting because the wrong action might otherwise be executed in these important cases,.

For more information on the procedure for flagging, see Article 24 of the SIS Police Regulation (220), Article 31 of the SIRENE Manual – Police (221) and Article 12 of the Commission Implementing Decision on SIS data entry (222).

11.2.   Communication to the issuing Member State

The executing judicial authority must communicate its decision on the action to be taken on the EAW to the issuing judicial authority (Article 22 of the Framework Decision on EAW). For this purpose, it is advisable to use the standard form in Annex VII to this Handbook. If the executing judicial authority decides to refuse the execution of the EAW, this communication gives the issuing judicial authority the possibility to consider whether it should maintain or withdraw the EAW.

11.3.   Consideration by the issuing judicial authorities whether or not to maintain the EAW

The Framework Decision on EAW does not require an EAW to be withdrawn if one Member State refuses to execute it. This is because other Member States may still be able to execute the EAW. The EAW and corresponding SIS alert therefore remain valid unless the issuing judicial authority decides to withdraw it.

However, there should always be legitimate grounds for any existing EAW. When considering whether or not to maintain an EAW after a Member State has refused to execute it, the issuing judicial authority should consider the circumstances of the case and the applicable national and Union law, including fundamental rights. In particular, the following questions could be considered:

(a)	is it likely that the ground for mandatory non-execution which the executing judicial authority applied would be applied by the other Member States? This is particularly relevant concerning the ne bis in idem principle (Article 3(2) of the Framework Decision on EAW);

(b)	is it still proportionate to maintain the EAW (see Section 2.4):;

(c)	is the EAW the only measure likely to be effective (see Section 2.5):.

11.4.   Review of long-standing EAWs in the SIS

Each issuing judicial authority should remain attentive to its alerts in the SIS. It may need to observe the statute of limitations in respect of the offences concerned and any relevant changes in the criminal process and domestic legislation affecting the position of the requested person.

According to the SIS Police Regulation (223), alerts on persons entered in the SIS may be kept only for the time required to achieve the purposes for which they were entered (see Article 53(1) of the SIS Police Regulation). As soon as there are no longer grounds for an EAW, the competent authority of the issuing Member State must delete it from the SIS (see Article 55(1) of the SIS Police Regulation).

EAWs which are entered in the SIS remain there for up to 5 years (unless they were issued for a shorter time period) and the issuing Member State must review the need to retain the SIS alert within that 5-year period. The issuing Member State receives a notification that the alert will expire shortly. If the issuing authority does not review the alert and extend its validity, the alerts are automatically deleted (Article 53(7) of the SIS Police Regulation). Therefore, in any case within 5 years of entering the EAW in the SIS, the issuing judicial authority should decide whether to extend its duration where this is necessary and proportionate. Member States may determine a shorter review period (Article 53 (3) of the SIS Police Regulation).

Alerts for EAWs should be deleted from the SIS once the person has been surrendered.

12.   PROCEDURAL RIGHTS OF THE REQUESTED PERSON

The Framework Decision on EAW grants the requested person several procedural rights. In accordance with Article 11 of the Framework Decision on EAW, the requested person has the right to be informed of the EAW and of its contents, and of the possibility of consenting to surrender; as well as the right to a legal counsel and an interpreter. These rights must be provided in accordance with the national law of the executing Member State. In addition, various provisions of the Framework Decision on EAW grant the requested person rights, in particular Article 4a(2) (right to information on judgments rendered in absentia), Article 13(2) (legal counsel when taking the decision to consent), Articles 14 and 19 (right to be heard) and Article 23(5) (release upon expiry of the time limits for surrender of the person).

These rights are strengthened by the specific instruments on procedural guarantees, as explained in Sections 12.1 to 12.9.

12.1.   Right to interpretation and translation

The right to interpretation and translation applies to the execution of an EAW, as provided by Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings (224).

Article 2(7) of Directive 2010/64/EU requires the executing Member State’s competent authorities to provide the following rights to any person subject to EAW proceedings who does not speak or understand the language of the proceedings:

(a)	the right to interpretation, without delay, during criminal proceedings before investigative and judicial authorities (including during police questioning, all court hearings and any necessary interim hearings);

(b)	the right to interpretation for communication between suspected or accused persons and their legal counsel in direct connection with any questioning or hearing during the proceedings or with the lodging of an appeal or other procedural applications;

(c)	the right to challenge a decision finding that there is no need for interpretation and the possibility to complain that the quality of the interpretation provided is not sufficient to safeguard the fairness of the proceedings.

Article 3(6) of Directive 2010/64/EU requires the executing Member State’s competent authorities to provide a written translation of the EAW to any person subject to proceedings for the execution of an EAW who does not understand the language of the EAW. As an exception, an oral translation or oral summary may be provided on condition that such oral translation or oral summary does not prejudice the fairness of the proceedings.

Interpretation and translation must be of a quality sufficient to safeguard the fairness of the proceedings, in particular by ensuring that suspected or accused persons have knowledge of the case against them and are able to exercise their right of defence. It is also important to note that Member States must meet the costs of interpretation and translation, irrespective of the outcome of the proceedings.

12.2.   Right to information

Article 5 of Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings (225) requires that persons who are arrested for the purpose of the execution of an EAW are provided promptly with an appropriate Letter of Rights containing information on their rights according to the law implementing the Framework Decision on EAW in the executing Member State. An indicative model Letter of Rights, drafted in simple and accessible language, is set out in Annex II to Directive 2012/13/EU (and reproduced in Annex IX to this Handbook).

When information is provided, this is noted using the recording procedure of the Member State concerned. Suspects or accused persons have the right to challenge any failure or refusal to provide information in accordance with procedures under national law.

In Case C-649/19 IR ( (226), the Court of Justice found that other rights under Directive 2012/13/EU that pertain to information on arrest (particularly Articles 4, 6 and 7) do not apply to a person arrested for the purpose of the execution of an EAW for criminal prosecution prior to their surrender.

The Court argued that where the person is surrendered to the authorities of the Member State that issued the EAW, he or she acquires the status of ‘accused person’ within the meaning of Directive 2012/13 and enjoys all the rights associated with that status. That person can thus prepare his or her defence in line with the aims of Directive 2012/13/EU.

Concerning the period prior to surrender, the Court found that, according to Article 8(1)(d) and (e) of the Framework Decision on EAW, the EAW must already contain information which essentially corresponds to that referred to in Article 6 of Directive 2012/13. Furthermore, the right to effective judicial protection does not require the person, against whom an EAW for the purposes of criminal prosecution has been issued, to be informed about the remedies against this decision available in the issuing Member State prior to his or her surrender.

Indeed, in Case C-105/21 Criminal proceedings against IR  (227), the Court of Justice clarified that – in light of Articles 6 and 47 of the Charter, the right to freedom of movement and residence, and the principles of equality and mutual trust – the issuing judicial authority is under no obligation to forward to the requested person the national decision on the arrest of that person and information on the possibilities of challenging that decision, while that person is still in the executing Member State. The objective of speeding up and simplifying the surrender procedure would in fact be compromised if the issuing judicial authority were required to forward to the person concerned, before his or her surrender, the national decision on his or her arrest and information on the possibilities of challenging that decision.

12.3.   Right of access to a lawyer

The right of access to a lawyer applies to persons subject to an EAW, pursuant to Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty (228).

Persons subject to an EAW have the right of access to a lawyer in the executing Member State upon arrest pursuant to the EAW (Article 10(1), (2) and (3) of Directive 2013/48/EU). Suspects or accused persons shall have access to a lawyer from whichever of the following points in time is the earliest (229):

(a)	before they are questioned by the police or by another law enforcement or judicial authority;

(b)	upon the carrying out by investigating or other competent authorities of an investigative or other evidence-gathering act in accordance with point (c) of paragraph 3;

(c)	without undue delay after deprivation of liberty;

(d)	where they have been summoned to appear before a court having jurisdiction in criminal matters, in due time before they appear before that court.

In Case C-659/18 VW  (230), the Court of Justice ruled that the exercise of the right of access to a lawyer at the pre-trial stage may not be delayed until the national arrest warrant issued against the person concerned has been executed, based only on the fact that the suspect or accused person has failed to follow a summons to appear before an investigating judge.

With regard to the content of the right of access to a lawyer in the executing Member State, requested persons have the following rights:

(a)	the right of access to a lawyer in such time and in such a manner as to allow the requested persons to exercise their rights effectively and in any event without undue delay from deprivation of liberty;

(b)	the right to meet and communicate with the lawyer representing them;

(c)	the right for their lawyer to be present and, in accordance with procedures in national law, participate during a hearing by the executing judicial authority.

In addition, requested persons have the right to appoint a lawyer in the issuing Member State (Article 10(4), (5) and (6) of Directive 2013/48/EU). The role of that lawyer is to assist the lawyer in the executing Member State by providing that lawyer with information and advice with a view to the effective exercise of the rights of requested persons under the Framework Decision on EAW.

12.4.   Right to have a third person informed of the deprivation of liberty

From the time of their arrest in the executing Member State, persons subject to an EAW have the right to have at least one person, such as a relative or an employer, nominated by them, informed of their deprivation of liberty without undue delay (231).

12.5.   Right to communicate with third persons

From the time of their arrest in the executing Member State, persons subject to an EAW have the right to communicate without undue delay with at least one third person, such as a relative, nominated by them (232).

12.6.   Right to communicate with consular authorities

From the time of their arrest in the executing Member State, persons subject to an EAW who are non-nationals of the executing Member State have the right to have the consular authorities of their State of nationality informed of the deprivation of liberty without undue delay and to communicate with those consular authorities (233).

They also have the right to be visited by their consular authorities, the right to converse and correspond with them and the right to have legal representation arranged for by their consular authorities.

12.7.   Specific rights for children

Specific safeguards for children subject to an EAW apply from the time of their arrest under an EAW in the executing Member State (234). They are related in particular to:

(a)	the right to information;

(b)	the right to have the holder of parental responsibility informed;

(c)	the right to be assisted by a lawyer;

(d)	the right to a medical examination;

(e)	the right to specific treatment in case of deprivation of liberty;

(f)	the right to protection of privacy;

(g)	the right to be accompanied by the holder of parental responsibility during the proceedings.

12.8.   Right to legal aid

The right to legal aid applies to persons subject to an EAW, as provided for by Directive 2016/1919/EU of the European Parliament and of the Council of 26 October 2016 on legal aid for suspects and accused persons in criminal proceedings and for requested persons in EAW proceedings (235).

Persons subject to an EAW have a right to legal aid in the executing Member State upon an arrest that is pursuant to an EAW until they are surrendered or until the decision not to surrender them becomes final (Article 5(1) of Directive 2016/1919/EU).

In addition, requested persons who exercise their right to appoint a lawyer in the issuing Member State to assist the lawyer in the executing Member State in accordance with Article 10(4) and (5) of Directive 2013/48/EU have the right to legal aid also in the issuing Member State, in so far as legal aid is necessary to ensure effective access to justice (Article 5(2) of Directive 2016/1919/EU).

Member States may in both cases apply criteria for means testing provided for in Article 4(3) of Directive 2016/1919/EU, which apply mutatis mutandis to legal aid in EAW proceedings (Article 5(3) of that Directive). Such means testing should therefore take into account all relevant and objective factors (such as the income, capital and family situation of the person concerned) as well as the costs of the assistance of a lawyer and the standard of living in that Member State, in order to determine whether, in accordance with the criteria applicable in that Member State, a requested person lacks sufficient resources to pay for the assistance of a lawyer.

12.9.   Right to the presumption of innocence and right to be present at trial

Directive 2016/343/EU on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings (236) notes the rights laid down in Articles 47 and 48 of the Charter, and provides that those rights are engaged at all stages of criminal proceedings, from the moment of becoming a suspect until the final determination. Article 4 prohibits public references to guilt of suspects or accused persons. Article 6 ensures that the burden of proof lies with the prosecution. Defence rights include the right to remain silent and not to self-incriminate (Article 7).

The right to be present at trial is not an absolute right. Subject to certain conditions such as being informed in due time, legal representation by a mandated lawyer and the possibility to challenge a decision), prosecution can proceed without the suspect’s attendance (Article 8). However, the right to a new trial or alternative remedy must be available in the case of a breach of the rights contained in the Directive (Articles 9 and 10).

In C-416/20 PPU TR  (237), the Court further clarified the relationship of Directive 2016/343/EU with the Framework Directive on EAW in the context of in absentia proceedings (see Section 5.6).

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(1)  Council document 8216/2/08 REV 2 COPEN 70 EJN 26 EUROJUST 31.

(2)  Council document 17195/1/10 REV 1 COPEN 275 EJN 72 EUROJUST 139.

(3)  Protocol (No 36) on transitional provisions.

(4)   OJ L 190, 18.7.2002, p. 1.

(5)  Commission Notice of 28 September 2017, Handbook on how to issue and execute a European Arrest Warrant, C(2017)6389 final, OJ C 335, 6.10.2017, p. 1.

(6)  https://data.consilium.europa.eu/doc/document/ST-13684-2020-INIT/en/pdf

(7)  https://www.europarl.europa.eu/RegData/etudes/STUD/2020/642839/EPRS_STU(2020)642839_EN.pdf

(8)  https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=COM:2020:270:FIN

(9)  European Parliament resolution of 20 January 2021 on the implementation of the European Arrest Warrant and the surrender procedures between Member States https://www.europarl.europa.eu/doceo/document/TA-9-2021-0006_EN.pdf.

(10)   OJ C 78, 30.3.1995, p. 2.

(11)   OJ C 313, 23.10.1996, p. 12.

(12)   OJ L 239, 22.9.2000, p. 19.

(13)  Judgment of the Court of Justice of 10 November 2016 Poltorak, C-452/16 PPU, ECLI:EU:C:2016:858; Judgment of the Court of Justice of 10 November 2016 Kovalkovas, C-477/16 PPU, ECLI:EU:C:2016:861.

(14)  The last Member State to be connected was Cyprus, which was connected in July 2023.

(15)  Regulation (EU) 2018/1862 of the European Parliament and of the Council of 28 November 2018 on the establishment, operation and use of the Schengen Information System (SIS) in the field of police cooperation and judicial cooperation in criminal matters, amending and repealing Council Decision 2007/533/JHA, and repealing Regulation (EC) No 1986/2006 of the European Parliament and of the Council and Commission Decision 2010/261/EU OJ L 312, 7.12.2018, p. 56.

(16)  Commission Implementing Decision of 18 November 2021 laying down detailed rules for the tasks of the SIRENE Bureaux and the exchange of supplementary information regarding alerts in the Schengen Information System in the field of police cooperation and judicial cooperation in criminal matters (‘SIRENE Manual – Police’) (notified under document C(2021) 7901).

(17)  Commission Implementing Decision of 15 January 2021 laying down the technical rules necessary for entering, updating, deleting and searching data in the Schengen Information System (SIS) and other implementing measures in the field of police cooperation and judicial cooperation in criminal matters (notified under document C(2021) 92).

(18)  Commission Recommendation of 31 March 2023 establishing a Practical Handbook to be used by Member States’ competent authorities and SIRENE Bureaux when carrying out tasks related to the Schengen Information System (‘SIS Handbook’) (C(2023) 2152).

(19)  Judgment of the Court of Justice of 11 January 2017, Grundza, C-289/15, ECLI:EU:C:2017:4, paragraph 38.

(20)  Judgment of the Court of Justice of 14 July 2022, Procureur général près la cour d'appel d'Angers, C-168/21, ECLI:EU:C:2022:558.

(21)  Council Framework Decision 2009/299/JHA of 26 February 2009 amending Framework Decisions 2002/584/JHA, 2005/214/JHA, 2006/783/JHA, 2008/909/JHA and 2008/947/JHA, thereby enhancing the procedural rights of persons and fostering the application of the principle of mutual recognition to decisions rendered in the absence of the person concerned at the trial (OJ L 81, 27.3.2009, p. 24).

(22)  Order of the Court of Justice of 25 September 2015, A., C-463/15 PPU, ECLI:EU:C:2015:634.

(23)   OJ L 283, 31.10.2017, p. 1..

(24)  Judgment of the Court of Justice of 10 November 2016, Poltorak, C-452/16 PPU, ECLI:EU:C:2016:858.

(25)  Judgment of the Court of Justice of 10 November 2016, Kovalkovas, C-477/16 PPU, ECLI:EU:C:2016:861.

(26)  For a compilation of competent issuing judicial authorities in the Member States, see Eurojust’s and EJN’s Updated Questionnaire and Compilation on the Requirements for Issuing and Executing Judicial Authorities in EAW Proceedings pursuant to the CJEU’s Case-Law, 24 November 2021, 5607/3/21 REV 3, https://data.consilium.europa.eu/doc/document/ST-5607-2021-REV-3/en/pdf.

(27)  Judgment of the Court of Justice of 27 May 2019, PF, C-509/18, ECLI:EU:C:2019:457.

(28)  Judgment of the Court of Justice of 27 May 2019, OG and PI, C-508/18 and C-82/19 PPU, ECLI:EU:C:2019:456.

(29)  Judgment of the Court of Justice of 9 October 2019, NJ, C-489/19 PPU, ECLI:EU:C:2019:849.

(30)  Judgment of the Court of Justice of 12 December 2019, JR and YC, C-556/198 PPU and C-626/19 PPU, ECLI:EU:C:2019:1077.

(31)  Order of the Court of Justice of 21 January 2020, MN, C-813/19 PPU, ECLI:EU:C:2020:31.

(32)  Judgment of the Court of Justice of 13 January 2021, MM, C-414/20 PPU, ECLI:EU:C:2021:4.

(33)  Judgment of the Court of Justice of 10 March 2021, PI, C-648/20 PPU, ECLI:EU:C:2021:187.

(34)  Judgment of the Court of Justice of 17 December 2020, L and P, C-354/20 PPU and C-412/20 PPU, ECLI:EU:C:2020:1033.

(35)  Judgment of the Court of Justice of 31 January 2023, Puig Gordi and Others, C-158/21, ECLI:EU:C:2023:57.

(36)  Judgment of the Court of Justice of 24 November 2020, AZ, C-510/19, ECLI:EU:C:2020:953.

(37)  Judgment of the Court of Justice of 8 December 2022, CJ, C-492/22 PPU, ECLI:EU:C:2022:964.

(38)  Judgment of the Court of Justice of 28 April 2022, C and CD, C-804/21 PPU, ECLI:EU:C:2022:307.

(39)   OJ L 327, 5.12.2008, p. 27.

(40)  Judgment of the Court of Justice of 1 June 2016, Bob-Dogi, C-241/15, ECLI:EU:C:2016:385.

(41)  Judgment of the Court of Justice of 10 November 2016, Özçelik, C-453/16 PPU, ECLI:EU:C:2016:860.

(42)  Judgment of the Court of Justice of 13 January 2021, MM, C-414/20 PPU, ECLI:EU:C:2021:4.

(43)  Judgment of the Court of Justice of 17 March 2021, JR, C-488/19, ECLI:EU:C:2021:206.

(44)  Judgment of the Court of Justice of 1 June 2016, Bob-Dogi, C-241/15, ECLI:EU:C:2016:385.

(45)  Judgment of the Court of Justice of 27 May 2019, OG and PI, C-508/18 and C-82/19 PPU, ECLI:EU:C:2019:456.

(46)  Judgment of the Court of Justice of 27 May 2019 PF, C-509/18, ECLI:EU:C:2019:457.

(47)  Judgment of the Court of Justice of 12 December 2019, JR and YC, C-556/198 PPU and C-626/19 PPU, ECLI:EU:C:2019:1077.

(48)  Judgment of the Court of Justice of 12 December 2019, XD, C-625/19 PPU, ECLI:EU:C:2019:1078.

(49)  Judgment of the Court of Justice of 12 December 2019, XD, C-625/19 PPU, ECLI:EU:C:2019:1078.

(50)  Judgment of the Court of Justice of 13 January 2021, MM, C-414/20 PPU, ECLI:EU:C:2021:4.

(51)  Judgment of the Court of Justice of 10 March 2021, PI, C-648/20 PPU, ECLI:EU:C:2021:187. This was reconfirmed by the Court of Justice in its Order of the Court of Justice of 22 June 2021, VA, C-206/20, ECLI:EU:C:2021:509.

(52)  Judgment of the Court of Justice of 12 December 2019, ZB, C-627/19 PPU, ECLI:EU:C:2019:1079.

(53)  Judgment of the Court of Justice of 27 May 2019, OG and PI, C-508/18 and C-82/19 PPU, ECLI:EU:C:2019:456.

(54)  Judgment of the Court of Justice of 3 May 2007, Advocaten voor de Wereld, C-303/05, ECLI:EU:C:2007:261.

(55)  Judgment of the Court of Justice of 27 May 2019, OG and PI, C-508/18 and C-82/19 PPU, ECLI:EU:C:2019:456.

(56)  Judgment of the Court of Justice of 13 January 2021, MM, C-414/20 PPU, ECLI:EU:C:2021:4

(57)  Judgment of the Court of Justice of 12 December 2019, ZB, C-627/19 PPU, ECLI:EU:C:2019:1079.

(58)   OJ L 312, 7.12.2018, p. 56.

(59)   OJ L 312, 7.12.2018, p. 56.

(60)   OJ L 130, 1.5.2014, p. 1. See also Report on Eurojust’s casework in the field of the European Investigation Order, 10 November 2020, 2020/00282, https://www.eurojust.europa.eu/report-eurojusts-casework-field-european-investigation-order-0.

(61)  Convention established by the Council in accordance with Article 34 of the TEU, on Mutual Assistance in Criminal Matters between the Member States of the European Union (OJ C 197, 12.7.2000, p. 3).

(62)  Judgment of the Court of Justice of 8 December 2020, A and Others, Case C-584/19, ECLI:EU:C:2020:1002.

(63)   OJ L 327, 5.12.2008, p. 27.

(64)   OJ L 294, 11.11.2009, p. 20.

(65)  Listed on the EJN website https://www.ejn-crimjust.europa.eu; please visit Judicial Library → Legal Framework → EU Judicial Cooperation → Supervision Measures → 2009/829/JHA: Council Framework Decision 2009/829/JHA of 23 October 2009 for supervision measures → Supervision Measures-Notifications

(66)   OJ L 337, 16.12.2008, p. 102.

(67)  This Framework Decision has been interpreted in the Judgment of the Court of Justice of 26 March 2020, A.P., C-2/19, ECLI:EU:C:2020:237.

(68)   OJ L 76, 22.3.2005, p. 16.

(69)  Judgment of the Court of Justice of 14 November 2013, Balaz, C 60/12, ECLI:EU:2013:733.

(70)  2016_Jurisdiction-Guidelines_EN.pdf (europa.eu).

(71)  COM/2020/712 final.

(72)  Judgment of the Court of Justice of 1 December 2008, Leymann and Pustovarov, C-388/08 PPU, ECLI:EU:C:2008:669.

(73)  Judgment of the Court of Justice of 30 May 2013, Jeremy F., C-168/13 PPU, ECLI:EU:C:2013:358.

(74)  Judgment of the Court of Justice of 24 September 2020, XC, C-195/20 PPU, ECLI:EU:C:2020:749.

(75)  Judgment of the Court of Justice of 24 November 2020, AZ, C-510/19, ECLI:EU:C:2020:953.

(76)  Judgment of the Court of Justice of 26 October 2021, HM and TZ, Joined Cases C-428/21 PPU and C-429/21 PPU, ECLI:EU:C:2021:876.

(77)   OJ L 312, 7.12.2018, p. 56.

(78)  Judgment of the Court of Justice of 16 December 2021, AB and Others, C-203/20, ECLI:EU:C:2021:1016.

(79)  This is in accordance with Council Framework Decision 2009/948/JHA of 30 November 2009 on prevention and settlement of conflicts of exercise of jurisdiction in criminal proceedings, which lays out the procedure whereby competent national authorities should contact each other when they have reasonable grounds to believe that parallel proceedings are being conducted in another Member State.

(80)  Commission Implementing Decision C(2021) 7901.

(81)  For a general introduction on the tasks of Eurojust and the EJN, see document ‘Assistance in International Cooperation in Criminal Matters for Practitioners – European Judicial Network and Eurojust – What can we do for you?’. This is available on both the EJN website (https://www.ejn-crimjust.europa.eu) and the Eurojust website (http://www.eurojust.europa.eu).

(82)  Judgment of the Court of Justice of 23 January 2018, Dawid Piotrowski, C-367/16, ECLI:EU:C:2018:27.

(83)  Commission Implementing Decision of 15 January 2021 laying down the technical rules necessary for entering, updating, deleting and searching data in the Schengen Information System (SIS) and other implementing measures in the field of police cooperation and judicial cooperation in criminal matters, C(2021) 92.

(84)   OJ L 312, 7.12.2018, p. 56.

(85)   OJ L 312, 7.12.2018, p. 56.

(86)   OJ L 312, 7.12.2018, p. 56. See also Article 31 of Commission Implementing Decision C(2021) 7901 (SIRENE Manual – Police).

(87)  Commission Implementing Decision C(2021) 92

(88)   OJ L 312, 7.12.2018, p. 56.

(89)  http://www.ejn-crimjust.europa.eu. Please select there the European Arrest Warrant and the Member State in question for further information.

(90)   OJ L 312, 7.12.2018, p. 56.

(91)   OJ L 312, 7.12.2018, p. 56.

(92)  http://www.ejn-crimjust.europa.eu. Please, select the European Arrest Warrant and the Member State in question.

(93)   OJ L 312, 7.12.2018, p. 56.

(94)  To date, Estonia, Austria and Romania have introduced a notification to this effect under Article 27(1) of the Framework Decision on EAW.

(95)  Judgment of the Court of Justice of 30 May 2013, Jeremy F., C-168/13 PPU, ECLI:EU:C:2013:358.

(96)  Judgment of the Court of Justice of 16 July 2015, Lanigan C-237/15 PPU, ECLI:EU:C:2015:474.

(97)  See also the template developed by Eurojust for national authorities in relation to this notification obligation. The template is available in 22 languages at https://www.eurojust.europa.eu/electronic-forms-article-177-eaw-framework-decision.

(98)  Judgment of the Court of Justice of 25 January 2017, Vilkas, C-640/15, ECLI:EU:C:2017:39.

(99)  Judgment of the Court of Justice of 28 April 2022, C and CD, C-804/21 PPU, ECLI:EU:C:2022:307.

(100)  Judgment of the Court of Justice of 31 January 2023, Puig Gordi and Others, C-158/21, ECLI:EU:C:2023:57.

(101)  Judgment of the Court of Justice of 25 July 2018, ML, C-220/18 PPU, ECLI:EU:C:2018:589.

(102)  https://www.ejn-crimjust.europa.eu; please visit Judicial Library → Legal Framework → EU Judicial Cooperation → European arrest warrant → 2002/584/JHA: Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States → EAW-Notifications. The Member States which have made a notification under Article 7 include: BE, BG, CZ, EE, IE, GR, ES, FR, IT, CY, LV, HU, MT, AT, PL, PT, RO, SI, SK, SE and FI.

(103)  COM(2021) 759 final.

(104)  COM(2021) 760 final.

(105)  For a general introduction on the tasks of Eurojust and the EJN see document ‘Assistance in International Cooperation in Criminal Matters for Practitioners – European Judicial Network and Eurojust – What can we do for you?’. On the assessment of the allocation of cases to the EJN and Eurojust and the EJN, see document ‘Joint Eurojust/EJN Report on the Assessment of the Allocation of Cases to Eurojust and to the EJN’. Both are available on both the EJN website (https://www.ejn-crimjust.europa.eu) and the Eurojust website (http://www.eurojust.europa.eu).

(106)  See Articles 27, 28 and 55 of Regulation (EU) 2018/1862 as well as Chapter 7 of Commission Implementing Decision C(2021)7901 (‘SIRENE Manual - Police’).

(107)  Commission Implementing Decision C(2021) 7901.

(108)  Judgment of the Court of Justice of 28 July 2016, JZ, C-294/16 PPU, ECLI:EU:C:2016:610.

(109)  Judgment of the Court of Justice of 12 February 2019, TC, C-492/18 PPU, ECLI:EU:C:2019:108.

(110)  Judgment of the Court of Justice of 16 July 2015, Lanigan, C-237/15 PPU, ECLI:EU:C:2015:474.

(111)  Judgment of the Court of Justice of 12 February 2019, TC, C-492/18 PPU, ECLI:EU:C:2019:108.

(112)  Judgment of the Court of Justice of 25 July 2018, AY, C-268/17, ECLI:EU:C:2018:602.

(113)  Judgment of the Court of Justice of 31 January 2023, Puig Gordi and Others, C-158/21, ECLI:EU:C:2023:57.

(114)  Judgment of the Court of Justice of 24 November 2020, AZ, C-510/19, ECLI:EU:C:2020:953.

(115)  Judgment of the Court of Justice of 6 December 2018, IK, C-551/18 PPU, ECLI:EU:C:2018:991.

(116)  Judgment of the Court of Justice of 1 June 2016, Bob-Dogi, C-241/15, ECLI:EU:C:2016:385.

(117)  Judgment of the Court of Justice of 3 March 2020, X, C-717/18, ECLI:EU:C:2020:142.

(118)  Judgment of the Court of Justice of 6 October 2009, Wolzenburg, C-123/08, ECLI:EU:C:2009:616, Judgment of the Court of Justice of 5 April 2016, Aranyosi and Căldăraru, C-404/15 and C-659/15 PPU, ECLI:EU:C:2016:198.

(119)  Judgment of the Court of Justice of 16 November 2010, Mantello, C-261/09, ECLI:EU:C:2010:683.

(120)  Judgment of the Court of Justice of 27 May 2014, Spasic, C-129/14 PPU, ECLI:EU:C:2014:586.

(121)  Judgment of the Court of Justice of 16 November 2010, Mantello, C-261/09, ECLI:EU:C:2010:683.

(122)  Judgment of the Court of Justice of 25 July 2018, AY, C-268/17, ECLI:EU:C:2018:602.

(123)  Judgment of the Court of Justice of 12 May 2021, WS, C-505/19, ECLI:EU:C:2021:376.

(124)  Judgment of the Court of Justice of 16 December 2021, AB and Others, C-203/20, ECLI:EU:C:2021:1016.

(125)  Judgment of the Court of Justice of 23 January 2018, Piotrowski, C-367/16, ECLI:EU:C:2018:27.

(126)  Judgment of the Court of Justice of 29 April 2021, X, C-665/20 PPU, ECLI:EU:C:2021:339.

(127)   OJ L 283, 31.10.2017, p. 1–71.

(128)  See Article 22 of the EPPO Regulation.

(129)  Judgment of the Court of Justice of 11 January 2017, Grundza, C-289/15, ECLI:EU:C:2017:4.

(130)  Judgment of the Court of Justice of 14 July 2022, Procureur général près la cour d’appel d’Angers, C-168/21, ECLI:EU:C:2022:558.

(131)  Judgment of the Court of Justice of 11 January 2017, Grundza, C-289/15, ECLI:EU:C:2017:4.

(132)  Judgment of the Court of Justice of 14 July 2022, Procureur général près la cour d’appel d’Angers, C-168/21, ECLI:EU:C:2022:558.

(133)  Judgment of the Court of Justice of 25 July 2018, AY, C-268/17, ECLI:EU:C:2018:602.

(134)  Judgment of the Court of Justice of 29 April 2021, X, C-665/20 PPU, ECLI:EU:C:2021:339.

(135)  Convention on the Transfer of Sentenced Persons of 21 March 1983 (ETS No. 112) and its Additional Protocol to the Convention on the Transfer of Sentenced Persons of 18 December 1997 (ETS No. 167), as well as the protocol amending the Additional Protocol to the Convention on the Transfer of Sentenced Persons of 22 November 2017 (CETS No. 222).

(136)  Judgment of the Court of Justice of 13 December 2018, Sut, C-514/17, ECLI:EU:C:2018:1016.

(137)  Judgment of the Court of Justice of 17 July 2008, Kozłowski, C-66/08, ECLI:EU:C:2008:437.

(138)  Judgment of the Court of Justice of 6 October 2009, Wolzenburg, C-123/08, ECLI:EU:C:2009:616.

(139)  Judgment of the Court of Justice of 5 September 2012, Lopes da Silva Jorge, C-42/11, ECLI:EU:C:2012:517.

(140)  Judgment of the Court of Justice of 6 June 2023, O.G., C-700/21, ECLI:EU:C:2023:444, paragraphs 58 and 68.

(141)  Judgment of the Court of Justice of 29 June 2017, Popławski I, C-579/15, ECLI:EU:C:2017:503.

(142)  Judgment of the Court of Justice of 13 December 2018, Sut, C-514/17, ECLI:EU:C:2018:1016.

(143)  Judgment of the Court of Justice of 29 June 2017, Popławski I, C-579/15, ECLI:EU:C:2017:503.

(144)  Judgment of the Court of Justice of 17 July 2008, Kozłowski, C-66/08, ECLI:EU:C:2008:437; Judgment of the Court of Justice of 13 December 2018, Sut, C-514/17, ECLI:EU:C:2018:1016.

(145)  Judgment of the Court of Justice of 5 September 2012, Lopes da Silva Jorge, C-42/11, ECLI:EU:C:2012:517.

(146)  Judgment of the Court of Justice of 29 June 2017, Popławski I, C-579/15, ECLI:EU:C:2017:503.

(147)  Judgment of the Court of Justice of 24 June 2019, Popławski II, C-573/17, ECLI:EU:C:2019:530.

(148)  Judgment of the Court of Justice of 24 June 2019, Popławski II, C-573/17, ECLI:EU:C:2019:530.

(149)  Judgment of the Court of Justice of 17 March 2021, JR, C-488/19, ECLI:EU:C:2021:206.

(150)  Judgment of the Court of Justice of 17 December 2020, TR, C-416/20 PPU, ECLI:EU:C:2020:1042.

(151)  Judgment of the Court of Justice of 10 August 2017, Zdziaszek, C-271/17 PPU, ECLI:EU:C:2017:629.

(152)  Judgment of the Court of Justice of 17 December 2020, TR, C-416/20 PPU, ECLI:EU:C:2020:1042. See also Judgment of the Court of Justice of 24 May 2016 Dworzecki, C-108/16 PPU, ECLI:EU:C:2016:346.

(153)  Judgment of the Court of Justice of 26 February 2013, Melloni, C-399/11, ECLI:EU:C:2013:107.

(154)  Judgment of the Court of Justice of 17 December 2020, TR, C-416/20 PPU, ECLI:EU:C:2020:1042.

(155)  Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings (OJ L 65, 11.3.2016, p. 1).

(156)  Judgment of the Court of Justice of 17 December 2020, TR, C-416/20 PPU, ECLI:EU:C:2020:1042.

(157)  Judgment of the Court of Justice of 10 August 2017, Tupikas, C-270/17 PPU, ECLI:EU:C:2017:628, Judgment of the Court of Justice of 10 August 2017, Zdziaszek, C-271/17 PPU, ECLI:EU:C:2017:629 and Judgment of the Court of Justice of 24 May 2016, Dworzecki, C-108/16 PPU, ECLI:EU:C:2016:346 and Judgment of the Court of Justice of 22 December 2017, Ardic, C-571/17 PPU, ECLI:EU:C:2017:1026.

(158)  Judgment of the Court of Justice of 10 August 2017, Tupikas, C-270/17 PPU, ECLI:EU:C:2017:628.

(159)  Judgment of the Court of Justice of 10 August 2017, Zdziaszek, C-271/17 PPU, ECLI:EU:C:2017:629.

(160)  Judgment of the Court of Justice of 22 December 2017, Ardic, C-571/17 PPU, ECLI:EU:C:2017:1026.

(161)  Judgment of the Court of Justice of 23 March 2023, Minister for Justice and Equality, Joined Cases C-514/21 and C-515/21, ECLI:EU:C:2023:235.

(162)  Judgment of the Court of Justice of 24 May 2016, Dworzecki, C-108/16 PPU, ECLI:EU:C:2016:346.

(163)  Judgment of the Court of Justice of 5 April 2016, Aranyosi and Căldăraru, C-404/15 and C-659/15 PPU, ECLI:EU:C:2016:198.

(164)  Judgment of the Court of Justice of 25 July 2018, LM, C-216/18 PPU, ECLI:EU:C:2018:586.

(165)  Judgment of the Court of Justice of 31 January 2023, Puig Gordi and Others, C-158/21, ECLI:EU:C:2023:57.

(166)  Judgment of the Court of Justice of 19 September 2018, RO, C-327/18 PPU, ECLI:EU:C:2018:733.

(167)  Judgment of the Court of Justice of 5 April 2016, Aranyosi and Căldăraru, C-404/15 and C-659/15 PPU, ECLI:EU:C:2016:198.

(168)  Judgment of the Court of Justice of 25 July 2018, ML, C-220/18 PPU, ECLI:EU:C:2018:589.

(169)  Judgment of the Court of Justice of 15 October 2019, Dumitru-Tudor Dorobantu, C-128/18, ECLI:EU:C:2018:589.

(170)  Judgment of the Court of Justice 5 April 2016, Aranyosi and Căldăraru, C-404/15 and C-659/15 PPU, ECLI:EU:C:2016:198.

(171)  Judgment of the Court of Justice of 25 July 2018, ML, C-220/18 PPU, ECLI:EU:C:2018:589.

(172)  Judgment of the Court of Justice of 25 July 2018, ML, C-220/18 PPU, ECLI:EU:C:2018:589.

(173)  Judgment of the Court of Justice of 15 October 2019, Dumitru-Tudor Dorobantu, C-128/18, ECLI:EU:C:2018:589.

(174)  Judgment of the Court of Justice of 15 October 2019, Dumitru-Tudor Dorobantu, C-128/18, ECLI:EU:C:2018:589.

(175)  Judgment of the Court of Justice of 25 July 2018, ML, C-220/18 PPU, ECLI:EU:C:2018:589.

(176)  Judgment of the Court of Justice of 15 October 2019, Dumitru-Tudor Dorobantu, C-128/18, ECLI:EU:C:2018:589.

(177)  Judgment of the Court of Justice of 25 July 2018, ML, C-220/18 PPU, ECLI:EU:C:2018:589.

(178)  Judgment of the Court of Justice of 25 July 2018, LM, C-216/18 PPU, ECLI:EU:C:2018:586.

(179)  Judgment of the Court of Justice of 17 December 2020, L and P, C-354/20 PPU and C-412/20 PPU, ECLI:EU:C:2020:1033.

(180)  Judgment of the Court of Justice of 22 February 2022, Openbaar Ministerie, Joined Cases C-562/21 PPU and C-563/21 PPU, ECLI:EU:C:2022:100.

(181)  Order of the Court of Justice of 12 July 2022, W O and J L v Minister for Justice and Equality, C-480/21, ECLI:EU:C:2022:592.

(182)  Judgment of the Court of Justice of 31 January 2023, Puig Gordi and Others, C-158/21, ECLI:EU:C:2023:57.

(183)  Judgment of the Court of Justice of 31 January 2023, Puig Gordi and Others, C-158/21, ECLI:EU:C:2023:57.

(184)  Judgment of the Court of Justice of 22 February 2022, X and Y v Openbaar Ministerie, C-562/21 PPU and C-563/21 PPU ECLI:EU:C:2022:100.

(185)  Judgment of the Court of Justice of 17 December 2020, L and P, C-354/20 PPU and C-412/20 PPU, ECLI:EU:C:2020:1033.

(186)  Judgment of the Court of Justice of 31 January 2023, Puig Gordi and Others, C-158/21, ECLI:EU:C:2023:57.

(187)  Judgment of the Court of Justice of 17 December 2020, L and P, C-354/20 PPU and C-412/20 PPU, ECLI:EU:C:2020:1033.

(188)  Judgment of the Court of Justice of 22 February 2022, Openbaar Ministerie, Joined Cases C-562/21 PPU and C-563/21 PPU, ECLI:EU:C:2022:100 and Order of the Court of Justice of 12 July 2022, W O and J L v Minister for Justice and Equality, C-480/21, ECLI:EU:C:2022:592.

(189)  Judgment of the Court of Justice of 17 December 2020, L and P, C-354/20 PPU and C-412/20 PPU, ECLI:EU:C:2020:1033.

(190)  Judgment of the Court of Justice of 22 February 2022, Openbaar Ministerie, Joined Cases C-562/21 PPU and C-563/21 PPU, ECLI:EU:C:2022:100 and Order of the Court of Justice of 12 July 2022, W O and J L v Minister for Justice and Equality, C-480/21, ECLI:EU:C:2022:592.

(191)  Judgment of the Court of Justice of 21 October 2010, I.B., C-306/09, ECLI:EU:C:2010:626.

(192)  Judgment of the Court of Justice of 11 March 2020, SF, C-314/18, ECLI:EU:C:2020:191.

(193)  Judgment of the Court of Justice of 11 March 2020, SF, C-314/18, ECLI:EU:C:2020:191.

(194)  Judgment of the Court of Justice of 11 March 2020, Openbaar Ministerie v SF, C-314/18, ECLI:EU:C:2020: 191.

(195)  Judgment of the Court of Justice of 29 June 2017, Popławski, C 579/15, ECLI:EU:C:2017:503.

(196)  Judgment of the Court of Justice of 29 June 2017, Popławski, C-579/15, ECLI:EU:C:2017:503.

(197)  Judgment of the Court of Justice of 13 December 2018, Sut, C-514/17, ECLI:EU:C:2018:1016

(198)  Judgment of the Court of Justice of 18 April 2023, E.D.L., C-699/21, ECLI:EU:C:2023:295.

(199)  Judgment of the Court of Justice of 8 December 2022, CJ, C-492/22 PPU, ECLI:EU:C:2022:964.

(200)  Judgment of the Court of Justice of 18 April 2023, E.D.L., C-699/21, ECLI:EU:C:2023:295.

(201)  Commission Implementing Decision C(2021) 7901.

(202)  Judgment of the Court of Justice of 31 January 2023, Puig Gordi and Others, C-158/21, ECLI:EU:C:2023:57.

(203)   OJ L 328, 15.12.2009, p. 42.

(204)  See Regulation 2018/1727 of the European Parliament and of the Council of 14 November 2018 on the European Union Agency for Criminal Justice Cooperation (Eurojust), OJ L 295, 21.11.2018, p. 138.

(205)  See Articles 4(4) and (6) of Regulation 2018/1727 of the European Parliament and of the Council of 14 November 2018 on the European Union Agency for Criminal Justice Cooperation (Eurojust), OJ L 295, 21.11.2018, p. 138.

(206)  Guidelines for deciding ‘Which jurisdiction should prosecute?’, European Union Agency for Criminal Justice Cooperation (Eurojust), https://www.eurojust.europa.eu/sites/default/files/assets/eurojust_jurisdiction_guidelines_2016_en.pdf.

(207)  Judgment of the Court of Justice of 28 July 2016, JZ, C-294/16 PPU, ECLI:EU:C:2016:610.

(208)  Judgment of the Court of Justice of 30 May 2013, Jeremy F, C-168/13 PPU, ECLI:EU:C:2013:358.

(209)  Judgment of the Court of Justice of 24 September 2020, XC, C-195/20 PPU, ECLI:EU:C:2020:749.

(210)  Judgment of the Court of Justice of 24 November 2020, AZ, C-510/19, ECLI:EU:C:2020:953.

(211)  Judgment of the Court of Justice of 26 October 2021, HM and TZ, Joined Cases C-428/21 PPU and C-429/21 PPU, ECLI:EU:C:2021:876.

(212)   OJ L 180, 29.6.2013, p. 31.

(213)  Judgment of the Court of Justice of 5 July 2018, X, C-213/17, ECLI:EU:C:2018:538.

(214)  Article 28(1) of the Framework Decision on EAW allows Member States to submit a notification that their consent is presumed for such a surrender on subsequent extradition in their relations with other Member States that have made the same notification. According to the information available to the Commission, only Romania has made such a notification.

(215)  Judgment of the Court of Justice of 28 June 2012, West, C-192/12, ECLI:EU:C:2012:404.

(216)  Judgment of the Court of Justice of 6 September 2016, Petruhhin, C-182/15, ECLI:EU:C:2016:630.

(217)   OJ C 223, 8.6.2022, p. 1–35.

(218)  Commission Implementing Decision C(2021) 7901.

(219)  See Article 12(2) of, and Annex I to, Commission Implementing Decision C (2021) 92 final.

(220)   OJ L 312, 7.12.2018, p. 56.

(221)  Commission Implementing Decision C(2021) 7901.

(222)  Commission Implementing Decision C(2021) 92.

(223)   OJ L 312, 7.12.2018, p. 56.

(224)   OJ L 280, 26.10.2010, p. 1. Denmark is not bound by this Directive.

(225)    

(226)  Judgment of the Court of Justice 28 January 2021, IR, C-649/19, ECLI:EU:C:2021:75.

(227)  Judgment of the Court of Justice 30 June 2022, Criminal proceedings against IR, C-105/21, ECLI:EU:C:2022:511.

(228)   OJ L 294, 6.11.2013, p. 1. Denmark and Ireland are not bound by this Directive.

(229)  Directive 2013/48/EU, Article 3(2).

(230)  Judgment of the Court of Justice of 12 March 2020, VW, C-659/18, ECLI:EU:C:2020:201.

(231)  Directive 2013/48/EU, Article 5.

(232)  Directive 2013/48/EU, Article 6.

(233)  Directive 2013/48/EU, Article 7.

(234)  Directive 2016/800/EU of the European Parliament and of the Council of 11 May 2016 on procedural safeguards for children who are suspects or accused persons in criminal proceedings (OJ L 132, 21.5.2016, p. 1). Denmark and Ireland are not bound by this Directive.

(235)   OJ L 297, 4.11.2016, p. 1. Denmark and Ireland are not bound by this Directive.

(236)   OJ L 65, 11.3.2016, p. 1.

(237)  Judgment of the Court of Justice of 17 December 2020, TR, C-416/20 PPU, ECLI:EU:C:2020:1042.