EN Official Journal of the European Union C 335/1

Commission Notice — Handbook on how to issue and execute a European arrest warrant

(2017/C 335/01)

TABLE OF CONTENTS

List of abbreviations 5

PREFACE 9

INTRODUCTION 10

1. Overview of the European arrest warrant (EAW) 10

1.1. Background of the EAW 10

1.2. Definition and main features of the EAW 10

1.3. The EAW form 11

PART I: ISSUING AN EAW 12

2. Requirements for issuing an EAW 12

2.1. Scope of the EAW 12

2.1.1. Criminal prosecution 12

2.1.2. Execution of a sentence or detention order 12

2.1.3. The requirement for an enforceable judicial decision 13

2.2. The list of 32 offences which give rise to surrender without verification of double criminality 13

2.3. Accessory offences 14

2.4. Proportionality 14

2.5. Other measures available under Union legal instruments on judicial cooperation in criminal matters 15

2.5.1. European Investigation Order (EIO) 16

2.5.2. Transfer of prisoners 16

2.5.3. European Supervision Order (ESO) 17

2.5.4. Transfer of probation decisions and alternative sanctions 17

2.5.5. Financial penalties 18

2.5.6. Transfer of criminal proceedings 18

2.6. Rule of speciality — possible prosecution for other offences 18

3. Procedure for issuing an EAW 19

3.1. Other pending criminal procedures and EAWs concerning the same person 19

3.1.1. In the issuing Member State 19

3.1.2. In another Member State 20

3.2. Filling in the EAW form 20

3.2.1. Information that is always necessary 20

3.2.2. Useful supplementary information from the issuing judicial authority 20

3.3. Transmitting the EAW 21

3.3.1. When the location of the requested person is unknown 21

3.3.2. When the location of the requested person is known 22

3.3.3. Transmitting the EAW to Member States who do not use the SIS 22

3.4. Translation of the EAW 22

3.5. After the requested person is apprehended: cooperation and communication with the competent authorities of the executing Member State 22

PART II: EXECUTING AN EAW 23

4. Procedure for executing an EAW 23

4.1. Time limits for taking the decision on the execution of the EAW 23

4.2. Time limits for surrendering the requested person (after the decision on the execution of the EAW) 23

4.3. Translation of the EAW 24

4.4. Communication between competent judicial authorities of Member States prior to the decision on surrender 24

4.4.1. When to communicate 24

4.4.2. How to communicate 25

4.5. Duty of the executing judicial authority to inform the issuing judicial authority after deciding on the surrender 26

4.5.1. Information on the decision concerning surrender 26

4.5.2. Information on the time spent in detention 26

4.6. Keeping the requested person in detention in the executing Member State 27

5. Surrender decision 28

5.1. General duty to execute EAWs 28

5.2. The list of 32 offences which give rise to surrender without verification of double criminality 28

5.3. Accessory offences 28

5.4. Grounds for non-execution (refusal) 29

5.4.1. Mandatory grounds for non-execution 29

5.4.2. Grounds for optional non-execution 30

5.5. Trials in absentia 31

5.6. Fundamental rights considerations by the executing judicial authority 33

5.7. Proportionality — the role of the executing Member State 34

5.8. Guarantees to be given by the issuing Member State 34

5.8.1. Review of custodial life sentence or lifetime detention order 35

5.8.2. Returning nationals and residents 35

5.9. Postponement or temporary surrender 35

5.9.1. Serious humanitarian reasons 35

5.9.2. Ongoing criminal procedure or execution of a custodial sentence 36

5.9.3. Temporary surrender instead of postponement 36

5.9.4. Postponement of EAW due to identification of a real risk of inhuman or degrading treatment for the requested person 36

5.10. Multiple EAWs concerning the same person 36

5.10.1. Deciding which EAW to execute 36

5.10.2. ‘Parallel proceedings’ 37

6. Deduction of the period of detention served in the executing Member State 37

7. Subsequent surrender 38

7.1. To another Member State 38

7.2. To a third State 39

8. Obligations as regards third countries 39

8.1. Simultaneous EAWs and extradition requests for the same person 39

8.1.1. Requests from third States 39

8.1.2. Requests from the International Criminal Court (ICC) 40

8.2. Prior extradition from a third State and the rule of speciality 40

9. Transit 40

9.1. Transit via another Member State 40

9.2. Nationals and residents of the Member State of transit 41

9.3. Extradition from a third State to a Member State 41

10. Non-executed EAWs 41

10.1. Ensuring that the person is not arrested again in the same Member State 41

10.2. Communication to the issuing Member State 41

10.3. Consideration by the issuing judicial authorities whether to maintain the EAW 41

10.4. Review of long-standing EAWs in the SIS 41

11. Procedural rights of the requested person 42

11.1. Right to interpretation and translation 42

11.2. Right to information 42

11.3. Right of access to a lawyer 43

11.4. Right to have a third person informed of the deprivation of liberty 43

11.5. Right to communicate with third persons 43

11.6. Right to communicate with consular authorities 43

11.7. Specific rights for children 44

11.8. Right to legal aid 44

ANNEX I — Framework Decision on EAW, unofficial consolidation 45

ANNEX II — EAW FORM, contained in the Annex to the Framework Decision on EAW 60

ANNEX III — GUIDELINES ON HOW TO FILL IN THE EAW FORM 65

ANNEX IV — LANGUAGES ACCEPTED BY THE MEMBER STATES WHEN RECEIVING AN EAW 74

ANNEX V — LIST OF JUDGMENTS OF THE COURT OF JUSTICE CONCERNING THE FRAMEWORK DECISION ON EAW 76

ANNEX VI — JUDGMENTS OF THE COURT OF JUSTICE CONCERNING THE NE BIS IN IDEM PRINCIPLE 77

ANNEX VII — STANDARD FORM ON EAW DECISION 80

ANNEX VIII — 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 82

ANNEX IX — INDICATIVE MODEL LETTER OF RIGHTS FOR PERSONS ARRESTED ON THE BASIS OF AN EAW 83

List of abbreviations

CISA Convention Implementing the Schengen Agreement CoE Council of Europe EAW European arrest warrant EIO European Investigation Order EJN European Judicial Network ESO European Supervision Order 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 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)

EXECUTING A EUROPEAN ARREST WARRANT

Main steps

(JA = Judicial authority)

PREFACE

This handbook is a revised version of the European handbook on how to issue a European arrest warrant issued by the Council in 2008 (1) and revised in 2010. (2) Following the end of the five-year transitional period under the Lisbon Treaty 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 EAW’), the Commission took over the task of updating and revising the handbook.

This handbook takes into account the experience gained over the past 13 years of application of the European arrest warrant in the Union. The purpose of this revision is to update the handbook and make it more comprehensive and more user-friendly. 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.

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 (5);

(d) the Convention of 27 September 1996 relating to extradition between the Member States of the European Union (6);

(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 (7).

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.

As noted by the Court of Justice in its judgments in Case C-452/16 PPU Poltorak (8) and Case C-477/16 PPU Kovalkovas (9), 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) thereof. The Court of Justice ruled that the words ‘judicial authority’, contained in Article 6(1) of the Framework Decision on EAW, are not limited to designating only the judges or courts of a Member State, but may extend, more broadly, to the authorities required to participate in administering justice in the legal system concerned. However, the Court of Justice found that the term ‘judicial authority’, referred to in that provision, cannot be interpreted as also covering the police service or an organ of the executive of a Member State, such as a ministry, and that acts issued by such authorities cannot be regarded as ‘judicial decisions’.

The EAW replaced the traditional system of extradition with a simpler and quicker mechanism of surrender of requested persons for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order. A warrant 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 four months.

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

To make requests simpler and easier to comply with, they are now 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 2.1.3).

Central authorities, which used to play a significant role in the extradition process, are excluded from the decision making process in EAW procedures. 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 (at the time that this Handbook was issued — all Member States except Ireland and Cyprus) 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 Council Decision 2007/533/JHA of 12 June 2007 on the establishment, operation and use of the second generation Schengen Information System (SIS II) (10) (‘SIS II Decision’) and Point 3 of the SIRENE Manual (11).

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. Practice has shown that about one fifth of all surrenders in the Union concern a country's own nationals.

The grounds for refusal of execution are limited and exhaustively 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 three 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 (12), 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 (see Section 5.2).

From 28 March 2011, the Framework Decision on EAW has been amended by Council Framework Decision 2009/299/JHA (13), deleting Article 5(1) and inserting a new Article 4a on decisions rendered in 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 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 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 facilitates the accessibility of the information. 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, or in a Word format form which can be downloaded from the Judicial Library section on the EJN website (https://www.ejn-crimjust.europa.eu).

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

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.

In this context, it should be noted that issuing judicial authorities are advised to consider whether in the particular case issuing an EAW would be proportionate (see Section 2.4) and 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. (14)

‘Article 2(4) and Article 4.1 of Council Framework Decision 2002/584/EC (…) must be interpreted as precluding a situation in which surrender pursuant to a European arrest warrant is subject, in the executing Member State, not only to the condition that the act for which the arrest warrant was issued constitutes an offence under the law of that Member State, but also to the condition that it is, under that same law, punishable by a custodial sentence of a maximum of at least 12 months.’

‘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. 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 four 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 advised to consider whether issuing an EAW would be a proportionate measure (see Sections 2.4 and 2.5).

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 four 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 four 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 (15) (see Section 2.5.2).

2.1.3. 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 (16) that the national arrest warrant or other judicial decision is distinct from the EAW itself. 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.

As the Court of Justice noted in that case, 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.

Judgment of the Court of Justice in Case C-241/15, Bob-Dogi

‘Article 8(1)(c) of Framework Decision 2002/584/EC (…) is to be interpreted as meaning that, where a European arrest warrant based on the existence of an “arrest warrant” within the meaning of that provision does not contain any reference to the existence of a national arrest warrant, the executing judicial authority must refuse to give effect to it if, in the light of the information provided pursuant to Article 15(2) of Framework Decision 2002/584/EC, as amended, and any other information available to it, that authority concludes that the European arrest warrant is not valid because it was in fact issued in the absence of any national warrant separate from the European arrest warrant.’

The term ‘judicial decision’ (that is distinct from the EAW itself) was further clarified by the Court of Justice in its judgment in Case C-453/16 PPU Özçelik (17), 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

‘Article 8(1)(c) of the Council Framework Decision 2002/584/JHA (…) must be interpreted as meaning that a confirmation, such as that at issue in the main proceedings, by the public prosecutor's office, of a national arrest warrant issued previously by a police service in connection with criminal proceedings constitutes a “judicial decision”, within the meaning of that provision.’

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 of this Handbook). The decision or warrant does not need to be attached to the EAW.

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 (18) where the Court 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 Section 5.2).

2.3. Accessory offences

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

‘Article 2 — Extraditable offences 1. Extradition shall be granted in respect of offences punishable under the laws of the requesting Party and of the requested Party by deprivation of liberty or under a detention order for a maximum period of at least one year or by a more severe penalty. Where a conviction and prison sentence have occurred or a detention order has been made in the territory of the requesting Party, the punishment awarded must have been for a period of at least four months. 2. If the request for extradition includes several separate offences each of which is punishable under the laws of the requesting Party and the requested Party by deprivation of liberty or under a detention order, but of which some do not fulfil the condition with regard to the amount of punishment which may be awarded, the requested Party shall also have the right to grant extradition for the latter 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, whereas 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 to obtain 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 of this Handbook).

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, issuing judicial authorities are advised to consider whether issuing an EAW is justified in a particular case.

Considering the severe consequences that the execution of an EAW has on the requested person's liberty and the restrictions of 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 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 as 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 implementation of them 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 a European Investigation Order (EIO) for a suspect to be heard via a video link in another Member State;

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

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

(d) issuing an alert in SIS for the purpose of establishing the place of residence or domicile of a suspect (Article 34 of the SIS II Decision). Such alerts differ from the alerts for arrest that are described under Section 3.3.1 of this Handbook. As soon as the place of residence or domicile has been provided to the issuing judicial authority, that authority needs to take the necessary follow-up measures (such as requiring the suspect to appear before a relevant authority responsible for criminal proceedings) and delete the alert from SIS in accordance with point 6.5 of the SIRENE Manual;

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

(f) 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 (19)

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 Member States to request another Member State to carry out investigative measures 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 Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union (20) and the previous patchwork of legal provisions in this area. Incorporating the existing measures into a single new instrument aims to make judicial cooperation on investigations faster and more efficient. The EIO can be used in criminal proceedings, but also in those brought by administrative authorities, with judicial validation, when there is a criminal dimension. Member States must decide on the recognition or execution of an EIO within 30 days and carry out the investigation measure within 90 days following the taking of that decision.

In some situations a 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 a 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 a 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

Framework Decision 2008/909/JHA provides a system for transferring convicted prisoners back to their Member State of nationality or habitual residence or 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 transfer is no longer a pre-requisite 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 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 5.4.2 and 5.8.2 of this Handbook). In cases where Article 4(6) or 5(3) of the Framework Decision on EAW are 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 В may transfer the custodial sentence to be served in A.

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 (21)

Framework Decision 2009/829/JHA introduces 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 duty to report regularly.

Whether an order to transfer a decision on supervision measures is made will be determined by the prosecuting Member State. The types of supervision measures covered are set out in Framework Decision 2009/829/JHA and the subsequent declarations by each Member State (listed on the EJN website). 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 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 a 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 (22)

Framework Decision 2008/947/JHA introduces the application of the principle of mutual recognition to alternatives to custody and measures facilitating early release. 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.

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 (23)

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’ (the Court of Justice has given indications as to the latter notion notably in its judgment in Case C-60/12 Baláž (24), paragraphs 39 and 40).

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 did 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).

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). Consent must be given 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 5.8 of this Handbook). In such cases the issuing Member State must give the appropriate guarantees (Article 27(4) of the Framework Decision on EAW).

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, as provided 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).

In its judgment in Case C-388/08 PPU Leymann and Pustovarov (25) 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 requiring the implementation of the consent procedure referred to in Article 27(3)(g) and 27(4) of the Framework Decision on EAW. The Court held that:

‘(…) it must be ascertained whether the constituent elements of the offence, according to the legal description given by the issuing State, are those in respect of which the person was surrendered and whether there is a sufficient correspondence between the information given in the arrest warrant and that contained in the later procedural document. Modifications concerning the time or place of the offence are allowed, in so far as they derive from evidence gathered in the course of the proceedings conducted in the issuing State concerning the conduct described in the arrest warrant, do not alter the nature of the offence and do not lead to grounds for non-execution under Articles 3 and 4 of the Framework Decision.’

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 of the rule of speciality which 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 point 3.1 of the SIRENE Manual).

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. 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 into one, or at least fewer, Member States.

The competent authorities should verify in 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 point 3.2 of the SIRENE Manual).

The competent authorities can also contact Eurojust or the EJN contact points or both or directly contact the competent authority of another Member State (26).

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 5.10). 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 15(2) 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. Thus the issuing judicial authority should 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. Therefore, it is vital that issuing judicial authorities ensure that the information in the EAW is clear, correct and comprehensive. If the EAW form is properly filled in, no additional documents are required.

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 on time limits).

3.2.2. Useful supplementary information from the issuing judicial authority

Photographs and fingerprints of the requested person must be added to the SIS alert, where available. Furthermore, the contact details and the mobile phone number of the duty office and person responsible should always be given, so that they can be notified immediately, whatever time of day the requested person is 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 return the requested person to the executing Member State under specified conditions (see Section 5.8).

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 SIS II Decision. 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.

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 and a translation, if available, and validates the entry of the alert in the SIS. In addition, the SIRENE Bureau communicates the contents of the EAW to all other SIRENE Bureaux through the exchange of supplementary information (A form). 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 only (geographical search).

Upon receipt of the A form, all other SIRENE Bureaux verify whether the information provided in the A form and the EAW is complete. In accordance with Article 25 of the SIS II Decision the SIRENE Bureaux may also, under judicial supervision, check whether it is obvious that the execution of the EAW will have to be refused and, if it is, add a ‘flag’ to the alert preventing the arrest. During this verification process, the alert should continue to be available to users. If a Member State does not execute the EAW and therefore decides to flag the alert, the alert will remain visible for users. This action will not be to arrest the requested person but to take the whereabouts of the person (Section 3.6 of the SIRENE Manual).

The receiving SIRENE Bureaux also check national databases, such as 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 alert for arrest is visible to the competent authorities of all Member States (usually law enforcement and judicial authorities). 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 (SIS II Decision, Article 31(1)). Since the entry into operation of the second generation of the SIS, transmission of the original EAW paper copy is no longer required as 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 to immediately attach, a copy of an EAW translation to the alert in one or more official languages of the Union.

The EJN website (http://www.ejn-crimjust.europa.eu) contains a list of the languages accepted by the Member States (see Section 3.4).

The issuing judicial authority should ensure that the alert entered in SIS is stored only for the time required to achieve the purposes for which it was entered (SIS II Decision, Article 44(1)). This means that the alert needs to be deleted if the EAW is withdrawn (see Section 10.4 of this Handbook) or surrender has taken place (Section 3.11 of the SIRENE Manual).

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 (http://www.ejn-crimjust.europa.eu) contains information and contact details of each Member State's competent authorities.

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 to avoid unnecessary work 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 the following Member States do not use the SIS: Ireland and Cyprus. Where transmission to those Member States 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 in some Member States an Interpol alert does not constitute grounds for arrest. Therefore it is important to clearly indicate the existence of the EAW in the alert since 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.

Where the EAW is transmitted via the SIS the issuing Member State may also attach a copy of a translation of the EAW in one or more other official languages of the institutions of the Union to the alert as provided in Article 27(2) of the SIS II Decision. These translations as well as the 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.

Where 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 of this Handbook for guidelines on good cooperation and communication with the competent authorities of the executing Member State. EJN or Eurojust can assist should 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. 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 thereof 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. (27) 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 (28) 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 court of its obligation to adopt a decision in that regard and does not preclude, in itself, the continued detention of the requested person. The release of the requested person, together with the measures necessary to prevent him from absconding must, however, be ordered if the duration of the custody is excessive.

The duty to inform Eurojust of delays

Where a Member State cannot observe the time limits, 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 the cases where the time limits could not be observed, if informed. On this basis Eurojust can help identify the 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.

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). For this reason, it is necessary to agree on the practical arrangements of the surrender without delays.

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, 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 (29) 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, which is for the referring court to ascertain. Those authorities remain obliged to agree on a new surrender date if the time limits prescribed in Article 23 have expired.

As regards postponement of surrender for serious humanitarian reasons, for example, serious illness of the requested person, see Section 5.9.1.

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

4.4.1. When to communicate

Supplementary information necessary to allow decision on surrender

Requests for supplementary information should be exceptional. This communication should take place via the SIRENE Bureaux by using the dedicated form (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 in the Framework Decision on EAW this is presented 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 5.6). Thus, requests for supplementary information should concern, in particular, the content required in the EAW form which is needed to assess the possibility to execute the EAW and the applicability of any ground for refusal.

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 might contact the issuing judicial authority before deciding to apply a ground for non-execution. For example, this can be beneficial for establishing 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 5.8); and

(b) in the case of multiple EAWs concerning the same person (see Section 5.10).

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.

Communication must take place, however, through central authority where the Member State designated a central authority for official correspondence pursuant to Article 7 of the Framework Decision on EAW. Information on Member States which have availed themselves of this possibility can be found on the EJN website (https://www.ejn-crimjust.europa.eu).

Judicial Atlas (contact details)

Contact details of 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 the 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 the EAW. Communication may be carried out by any available, sufficiently secure means (for example, telephone or email). The most efficient way is to communicate directly with minimum formalities and, whenever possible, by agreeing to use a common language.

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 misunderstanding 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 of this Handbook 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 attempt to minimise such delays.

Eurojust or EJN contact points can facilitate communication

The contact points of the EJN or national members of Eurojust can facilitate communication with the other 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 where 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, while the Eurojust national member should be involved in cases of repeated delays or refusals of execution or in the case of overlapping EAWs. In addition, the EJN 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 (30).

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 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.

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 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 notify the issuing Member State immediately 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 of this Handbook). 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.

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 (31) the Court of Justice ruled as follows:

‘47. (…) the concept of “detention” within the meaning of Article 26(1) of Framework Decision 2002/584/EC must be interpreted as covering not only imprisonment but also any measure or set of measures imposed on the person concerned which, on account of the type, duration, effects and manner of implementation of the measure(s) in question deprive the person concerned of his liberty in a way that is comparable to imprisonment. (…) 53. When applying Article 26(1) of Framework Decision 2002/584/EC, the judicial authority of the Member State which issued the European arrest warrant is required to consider whether the measures taken against the person concerned in the executing Member State are to be treated in the same way as a deprivation of liberty, as referred to in paragraph 47 of the present judgment, and therefore constitute detention within the meaning of Article 26(1). If, in carrying out that examination, the judicial authority comes to the conclusion that that is the case, Article 26(1) of Framework Decision 2002/584/EC requires that the whole of the period during which those measures were applied be deducted from the period of detention which that person would be required to serve in the Member State which issued the European arrest warrant. (…) 55. However, in so far as Article 26(1) of that framework decision merely imposes a minimum level of protection of the fundamental rights of the person subject to the European arrest warrant, it cannot be interpreted, as the Advocate General stated at point 72 of his Opinion, as preventing the judicial authority of the Member State that issued that arrest warrant from being able, on the basis of domestic law alone, to deduct from the total period of detention which the person concerned would have to serve in that Member State all or part of the period during which that person was subject, in the executing Member State, to measures involving not a deprivation of liberty but a restriction of it. 56. It must, lastly, be borne in mind that, in the course of the examination referred to in paragraph 53 of the present judgment, the judicial authority of the Member State which issued the European arrest warrant may, under Article 26(2) of Framework Decision 2002/584/EC, ask the competent authority of the executing Member State to transmit any information it considers necessary.’

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, thus, not necessarily required and the person may be released provisionally 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, for example, travel bans or a duty to regularly register and electronic surveillance.

The decision on detention is taken in accordance with national law and in conformity with Article 6 of the Charter of Fundamental Rights of the European Union which provides that everyone has the right to liberty and security of person.

In its judgment in Case C-237/15 PPU Lanigan the Court of Justice held:

‘Articles 15(1) and 17 of Council Framework Decision 2002/584/JHA (…) must be interpreted as meaning that the executing judicial authority remains required to adopt the decision on the execution of the European arrest warrant after expiry of the time-limits stipulated in Article 17. Article 12 of that Framework Decision, read in conjunction with Article 17 thereof and in the light of Article 6 of the Charter of Fundamental Rights of the European Union, must be interpreted as not precluding, in such a situation, the holding of the requested person in custody, in accordance with the law of the executing Member State, even if the total duration for which that person has been held in custody exceeds those time-limits, provided that that duration is not excessive in the light of the characteristics of the procedure followed in the case in the main proceedings, which is a matter to be ascertained by the national court. If the executing judicial authority decides to bring the requested person's custody to an end, that authority is required to attach to the provisional release of that person any measures it deems necessary so as to prevent him from absconding and to ensure that the material conditions necessary for his effective surrender remain fulfilled for as long as no final decision on the execution of the European arrest warrant has been taken.’

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). Those provisions are addressed in Sections 5 to 8 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 11.

5.2. 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 the list of 32 offences.

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 must recognise what the issuing judicial authority has indicated in the EAW.

In its judgment in Case C-289/15 Grundza, the Court of Justice interpreted Article 7(3) and Article 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:

‘38. (…) when assessing double criminality, the competent authority of the executing State is required to verify whether the factual elements underlying the offence, as reflected in the judgment handed down by the competent authority of the issuing State, would also, per se, be subject to a criminal penalty in the executing State if they were present in that State. (…) 49. (…) in assessing double criminality, the competent authority of the executing State must ascertain, not whether an interest protected by the issuing State has been infringed, but whether, in the event that the offence at issue were committed in the territory of the executing State, it would be found that a similar interest, protected under the national law of that State, had been infringed.’

If the executing judicial authority considers that there is an obvious error in this regard, it should contact the issuing judicial authority for clarifications (see Section 4.4 on communication).

5.3. 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 out in Article 2(1) of the Framework Decision on EAW.

The Framework Decision on EAW itself does not explicitly provide for a way to deal with the issue of accessory surrender. Some Member States have decided to allow it, whereas others do not. If the executing Member State does not surrender 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 advised that the executing judicial authority indicates clearly 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.

5.4. 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, that is to say, 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 the only ones which the executing judicial authority may invoke as the basis for non-execution. As regards the grounds for optional non-execution, the executing judicial authority can only invoke those which are transposed into its national law. The Court of Justice has clarified that the list of grounds is exhaustive (notably in its judgments in Case C-123/08 Wolzenburg, paragraph 57, and Joined Cases C-404/15 and C-659/15 PPU Aranyosi and Căldăraru, paragraph 80) (32).

The executing judicial authority can 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.

5.4.1. 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). Therefore, once the executing judicial authority has established that one of these grounds for refusal applies, it must refuse execution. These grounds are provided in Article 3 of the Framework Decision on EAW.

Amnesty (Article 3(1))

The offence on which the arrest warrant is based is covered by amnesty in the executing Member State. It is also required that the executing Member State had 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 (33) and clarify the concepts such as ‘final decision’, ‘same act’ and ‘sentence has been served’. In its judgment in Case C-129/14 PPU Spasic (34), the Court of Justice ruled that Article 54 CISA is as such compatible with Article 50 of the Charter of Fundamental Rights of the European Union, where the principle is enshrined.

Annex VI contains summaries of judgments of the Court of Justice concerning the ne bis in idem principle.

Article 54 CISA

‘A person whose trial has been finally disposed of in one Contracting Party may not be prosecuted by another Contracting Party for the same acts provided that, if a penalty has been imposed, it has been enforced, is actually in the process of being enforced or can no longer be enforced under the laws of the sentencing Contracting Party.’

Article 50 of the Charter

‘Right not to be tried or punished twice in criminal proceedings for the same criminal offence No one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the Union in accordance with the law.’

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. Also the moment when this age operates on a particular case varies: the relevant moment might be, for example, when the suspected offence takes place or when the person is charged.

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

5.4.2. 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.

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 only 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. However, even if the act corresponds to one of those listed in Article 2(2) of the Framework Decision on EAW, but it is punishable by a custodial sentence or a detention order for a maximum period of less than three years in the law of the issuing Member State, and that act does not constitute an offence under the law of the executing Member State, this ground for optional non-execution may apply. In its judgment in Case C-289/15 Grundza the Court of Justice has clarified how the double criminality condition needs to be assessed (see Section 5.2).

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 and 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 stop 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.

See also Section 5.4.1 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.

See also Section 5.4.1 on the ne bis in idem principle.

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.

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 of this Handbook). Framework Decision 2008/909/JHA has replaced the 1983 Convention and its additional protocol. Thus Framework Decision 2008/909/JHA must be applied for 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 pre-requisite in all cases.

In its judgment in Case C-66/08 Kozłowski (35) the Court of Justice held 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 cover respectively, 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.

As held by the Court of Justice in its judgment in Case C-123/08 Wolzenburg, in respect of Article 4(6) of the Framework Decision on EAW and the principle of equal treatment of citizens of the Union, domestic rules providing for the non-execution of an EAW in the case of migrant Union citizens, with a view to the enforcement of a custodial sentence, only if they had been lawfully resident within the national territory for a continuous period of five years, were compatible with Article 12 of the Treaty establishing the European Community (now Article 18 TFEU). 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 (36) the Court of Justice held 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, but 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.

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 wh