Proposal on a Council common position on notifying the Council of Europe, pursuant to Article 28(3) of the European Convention on Extradition of 13 December 1957, of the application by the Member States, as between themselves, of the European arrest warrant
Date: 2003-05-06
Institutions: European Commission
Subjects: European arrest warrant, European cooperation, extradition, judicial cooperation in criminal matters in the EU

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 6.5.2003
COM(2003) 253 final

Proposal on a

COUNCIL COMMON POSITION

on notifying the Council of Europe, pursuant to Article 28(3) of the European
Convention on Extradition of 13 December 1957, of the application by the Member
States, as between themselves, of the European arrest warrant

(presented by the Commission)

EXPLANATORY MEMORANDUM

1.

COUNCIL OF EUROPE INSTRUMENTS

All  the  Member  States  are  parties  to  the  European  Convention  on  Extradition
concluded under the aegis of the Council of Europe on 13 December 1957.

This  multilateral  convention  is  the  main  European  extradition  instrument.  It  was
followed by an additional protocol on 15 October 1975 listing the offences which are
not  deemed  political  (Article 1)  and  setting  out  the  ne  bis  in  idem  rules  (Article 2)
and a second additional protocol on 17 March 1978 extending extradition to include
fiscal  offences  (Article 1)  and  limiting  the  scope  for  refusing  to  extradite  where
judgments are rendered in absentia.

The European Convention on the Suppression of Terrorism, signed in Strasbourg on
27 January 1977, also amends the Convention of 13 December 1957 by laying down
a new list of offences which cannot be regarded as political offences for extradition
purposes.

The Convention is amended by a protocol extending  that list  which will  be opened
for signing on 15 May 2003. All the Member States have declared their willingness
to sign and ratify the protocol.

Article 28(3) of the 1957 European Convention on Extradition states:

“Where, as between two or more Contracting Parties, extradition takes place on the
basis of a uniform law, the Parties shall be free to regulate their mutual relations in
respect of extradition exclusively in accordance with such a system notwithstanding
the provisions of this Convention.The same principle shall apply as between two or
more  Contracting  Parties  each  of  which  has  in  force  a  law  providing  for  the
execution  in  its  territory  of  warrants  of  arrest  issued  in  the  territory  of  the  other
Party or Parties. Contracting Parties which exclude or may in the future exclude the
application  of  this  Convention  as  between  themselves  in  accordance  with  this
paragraph shall notify the Secretary General of the Council of Europe accordingly.
The Secretary General shall inform the other Contracting Parties of any notification
received in accordance with this paragraph.”

Article 9  of  the  1977  European  Convention  on  the  Suppression  of  Terrorism,  as
introduced by the second additional protocol states that:

“The Contracting States may conclude between themselves bilateral or multilateral
agreements in order to supplement the provisions of this Convention or to facilitate
the application of the principles contained therein.”

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2.

COUNCIL  FRAMEWORK  DECISION  OF  13  JUNE  2002  ON  THE  EUROPEAN  ARREST
WARRANT  AND  THE  SURRENDER  PROCEDURES  BETWEEN  MEMBER  STATES
(2002/584/JHA)

On  13 June  2002  the  Council  adopted  the  aforementioned  framework  decision
which, with effect from 1 January 2004, replaces the corresponding provisions of the
aforementioned  instruments  in  the  field  of  extradition  in  relations  between  the
Member States (Article 31(1)(a)).

The  framework  decision  on  the  European  arrest  warrant  establishes  arrangements
which are significantly different from traditional extradition mechanisms in that the
procedure is entirely  judicial,  is  subject  to  strict  deadlines  and  makes  provision  for
only a limited number of grounds for refusals, such as non-extradition of nationals,
the political nature of offences or the lack of double criminality where the offence is
on  a  list  of  thirty-two  categories  and  the  maximum  penalty  is  at  least  three  years’
imprisonment.

The  framework  decision  entered  into  force  on  the  twentieth  day  following  its
publication  in  the  Official  Journal,  i.e.  7 August  2002.  The  Member  States  must
comply with its provisions by 31 December 2003 at the latest.

Requests  received  from  1 January  2004  onwards  will  be  governed  by  the
implementing  rules  for  the  framework  decision  adopted  by  the  Member  States.
However,  when  the  framework  decision  was  adopted,  France  made  it  known
pursuant to Article 32 that it would continue to process requests relating to offences
committed  before  1 November  1993  in  accordance  with  the  extradition  system
applicable prior to 1 January 2004. Austria and Italy made similar declarations with
regard  to  offences  committed  before  7 August  2002,  the  date  on  which  the
framework decision entered into force.

Pursuant to Article 31(2) of the framework decision, Member States may continue to
apply  bilateral  or  multilateral  agreements  or  the  arrangements  in  force  when  the
framework decision was adopted in so far as those agreements or arrangements allow
its objectives to be extended or enlarged and help to simplify or facilitate procedures
for surrendering persons for whom European arrest warrants have been issued.

Member  States  may  also  conclude  bilateral  or  multilateral  agreements  or
arrangements  after  the  framework  decision  enters  into  force  in  so  far  as  those
agreements or arrangements allow its provisions to be extended or enlarged and help
to  simplify  or  facilitate  procedures  for  surrendering  persons  for  whom  European
arrest warrants have been issued, in particular by fixing time limits shorter than those
laid down in Article 17, by extending the list of offences indicated in Article 2(2), by
further limiting the grounds for refusal set out in Articles 3 and 4 or by lowering the
threshold provided for in Articles 2(1) or 2(2).

Finland, Denmark and Sweden gave notice on 5 and 7 November 2002 respectively
that  they  would  continue  to  apply  the  uniform  law  established  between  them  on
extradition in so far as the framework decision allowed.

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3.

NOTIFICATION TO THE SECRETARY GENERAL OF THE COUNCIL OF EUROPE

There is no doubt that the European arrest warrant constitutes a uniform law within
the meaning of Article 28(3) of the 1957 European Convention on Extradition.

The  above  statement  is  undiminished  by  the  fact  that  Member  States  may  apply
arrangements agreed previously between themselves or conclude new agreements to
simplify or facilitate procedures for surrendering persons for whom European arrest
warrants have been issued, given that these improvements are specifically authorised
within the context of executing these warrants.

Article 28(3)  of  the  European  Convention  on  Extradition  does  not  lay  down  a
specific deadline by which two or more contracting parties must notify the Secretary
General of the Council of Europe that their mutual relations in respect of extradition
are regulated exclusively in accordance with uniform law and not by the Convention.
The third sentence of paragraph 3 clearly states that this notification may take place
prior  to  implementation  of  the  uniform  law.  Given  that  the  framework  decision
entered into force on 7 August 2002 and should be implemented by 1 January 2004
at  the  latest  (except,  as  regards  France,  Italy  and  Austria,  in  their  capacity  as
executing  Member  States,  in  respect  of  offences  committed  prior  to  1 November
1993 in the case of France and 7 August 2002 in the cases of Italy and Austria), this
notification may be effected right away.

The  case  for  immediate  notification  is  reinforced  by  the  opening  for  signature  on
15 May 2003 of the Protocol amending the European Convention on the Suppression
of Terrorism, Article 5 of which inserts a new Article 9 into the 1977 Convention. It
should be emphasised that this new Article does not affect in any way the possibility
of  applying  specific  arrangements  for  extraditing  or  surrendering  persons,  for
instance  in  the  form  of  a  uniform  law,  between  two  or  more  contracting  parties
pursuant to Article 28(3) of the 1957 Convention. Accordingly, a notification should
be made as soon as possible to the Secretary General of the Council of Europe of the
impending introduction of the European arrest warrant, with a view to transparency
and clarity vis-à-vis the other contracting parties.

4.

PROCEDURE

Article 34 of the Union Treaty states that, acting unanimously on the initiative of any
Member  State  or  of  the  Commission,  the  Council  may  adopt  common  positions
defining the approach of the Union to a particular matter. According to Article 37 of
the  Union  Treaty,  Member  States  defend  the  common  positions  adopted  under  the
provisions  of  this  Title  within  international  organisations  and  at  international
conferences  in  which  they  take  part.  Under  Article 18,  which  is  applicable  to
Title VI,  it  is  the  Presidency  which  expresses  the  position  of  the  Union  in
international organisations.

This  was  the  procedure  followed  in  the  past  for  negotiating  international
instruments.1

1

Common Position of 6 October 1997 defined by the Council on the basis of Article K.3 of the Treaty on
European  Union  on  negotiations  in  the  Council  of  Europe  and  the  OECD  relating  to  corruption

4

                                                
However,  there  is  nothing  in  those  Articles  to  suggest  that  the  sole  purpose  of
common  positions  is  to  negotiate  international  instruments.  On  the  contrary,  the
common  position  is  the  most  appropriate  means  of  notifying  an  international
organisation (the Council of Europe) that the Member States of the European Union
will  use  an  instrument  specific  to  them  within  the  framework  of  their  mutual
relations (the framework decision on the European arrest warrant) to the exclusion of
the  1957  European  Convention  on  Extradition  and  the  additional  protocols.  Hence
the proposal that the Presidency make a notification to that effect at the Committee
of  Ministers  meeting  when  the  additional  protocol  to  the  1977  Convention  for  the
Suppression  of  Terrorism  is  opened  for  signing.  That  notification  will  refer  to  the
restrictions  placed  by  France,  Austria  and  Italy,  pursuant  to  Article 32  of  the
framework  decision,  on  acceptance  of  the  European  arrest  warrant  in  respect  of
requests concerning offences committed prior to the dates set by those countries.

5.

WORDING

Article 28(3) of the European Convention on Extradition does not require a particular
wording. The wording of the enclosed text is designed to ensure that it:

– 

– 

– 

applies to the mutual relations between the current and future Member States of
the European Union;

applies in all cases, including in circumstances in which another State which is
party  to  the  conventions  but  is  not  part  of  the  European  Union  makes  an
extradition request for the same person;

refers to the whole of the framework decision as regards the scope for Member
States  to  apply  arrangements  which  further  simplify  the  surrender  of  persons
for  whom  European  arrest  warrants  have  been  issued  and  to  the  declarations
made  by  France,  Austria  and  Italy  pursuant  to  Article 32  of  the  framework
decision;

(97/661/JHA); Second Common Position of 13 November 1997 defined by the Council on the basis of
Article K.3 of the Treaty on European Union on negotiations in the Council of Europe and the OECD
relating to corruption (97/783/JHA); Common Position of 29 March 1999 defined by the Council on the
basis  of  Article  K.3  of  the  Treaty  on  European  Union  on  the  proposed  United  Nations  convention
against organised crime (1999/235/JHA); Common Position of 27 May 1999 adopted by the Council on
the  basis  of  Article  34  of  the  Treaty  on  European  Union  on  negotiations  relating  to  the  Draft
Convention  on  Cyber  Crime  held  in  the  Council  of  Europe  (1999/364/JHA);  Common  Position  of
31 January  2000  on  the  proposed  protocol  against  the  illicit  manufacturing  of  and  trafficking  in
firearms,  their  parts  and  components  and  ammunition,  supplementing  the  United  Nations  Convention
against transnational organised crime (2000/130/JHA).

5

                                                                                                                                                        
– 

– 

emphasises  that  implementation  by  the  Member  States  of  the  framework
decision on the European arrest warrant replaces, in their mutual relations, both
the 1957 European Convention on  Extradition and its  protocols  and  the  1977
Convention and its protocols, in so far as it concerns extradition;

covers possible future developments within the European Union on the basis of
the framework decision on the European arrest warrant and relevant European
law.

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Proposal on a

COUNCIL COMMON POSITION

on notifying the Council of Europe, pursuant to Article 28(3) of the European
Convention on Extradition of 13 December 1957, of the application by the Member
States, as between themselves, of the European arrest warrant

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on European Union, and in particular Article 34(2)(a) thereof,

Having regard to the proposal from the Commission,

Whereas:

(1)

(2)

(3)

(4)

(5)

(6)

(7)

On 13 June 2002 the Council of the European Union adopted a  Framework Decision
on the European arrest warrant and the surrender procedures between Member States.

This  Framework  Decision  entered  into  force  on  7 August  2002  and  the  deadline  for
transposing it into national law is 31 December 2003.

Pursuant to Article 31(1) thereof, from 1 January 2004 this Framework Decision is to
replace  the  provisions  applicable  in  the  field  of  extradition  in  relations  between  the
Member States, of the European Convention on Extradition of 13 December 1957 and
its protocols and the European Convention on the Suppression of Terrorism amended
by  a  protocol  opened  for  signature  on  15 May  2003,  in  so  far  as  it  concerns
extradition.

The  Framework  Decision  on  the  European  arrest  warrant  constitutes  a  uniform  law
which  is  common  to  the  Member  States  of  the  European  Union  and  by  which  their
mutual  relations  in  the  field  of  extradition  will  henceforth  be  regulated,  to  the
exclusion of the aforementioned instruments.

Pursuant to Article 28(3) of the European Convention on Extradition, it is appropriate
to make a notification to this effect to the Secretary General of the Council of Europe.

For  the  sake  of  clarity,  transparency  and  legal  certainty,  it  is  appropriate  to  make  a
joint notification.

A common position is the best way of ensuring that this objective is met in the form of
a univocal notification for which the Presidency is charged.

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HAS ADOPTED THIS COMMON POSITION:

Article 1

The Member States agree that it is appropriate to make the following joint notification to the
Secretary  General  of  the  Council  of  Europe  pursuant  to  Article  28(3)  of  the  European
Convention on Extradition of 13 December 1957:

"Pursuant to Article 28(3) of the European Convention on Extradition of 13 December 1957,
as from 1 January 2004 at the latest, the Member States of the European Union will regulate
their  mutual  relations  in  the  field  of  extradition  exclusively  on  the  basis  of  the  Council
Framework  Decision  on  the  European  arrest  warrant  and  the  surrender  procedures  between
Member  States  and  any  future  developments  based  on  that  framework  decision  and  the
relevant  provisions  of  the  Treaty  on  European  Union,  and  not  on  the  basis  of  the
aforementioned Convention or of its additional or amending instruments.

France,  on  the  one  hand,  and  Austria  and  Italy  on  the  other,  have  declared  at  the  time  of
adoption  of  the  Framework  Decision  that  they  intend  to  continue  processing  requests
concerning  offences  committed  prior  to  1 November  1993  and  7 August  2002  respectively
according to the extradition system applicable before 1 January 2004”.

Article 2

The Presidency is charged with  making this  notification  on  behalf  of  the  Member  States on
the  occasion  of  the  opening  for  signature  of  the  additional  protocol  to  the  European
Convention  on  the  Suppression  of  Terrorism  of  27 January  1977.[or  ,subsequently,  at  the
latest by 31 December 2003]

Article 3

This Common Position shall be published in the Official Journal of the European Union.

Done at Brussels, […]

For the Council
The President

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