Agreement on extradition between the European Union and the United States of America
Date: 2003-06-25
Institutions: European Union, United States
Subjects: United States, agreement (EU), criminal proceedings, extradition, judicial cooperation

19.7.2003

EN

Official Journal of the European Union

L 181/27

on extradition between the European Union and the United States of America

AGREEMENT

CONTENTS

Object and purpose

Definitions

Scope of application of this Agreement in relation to bilateral extradition treaties with Member
States

Extraditable offences

Transmission and authentication of documents

Transmission of requests for provisional arrest

Transmission of documents following provisional arrest

Supplemental information

Temporary surrender

Requests for extradition or surrender made by several States

Simplified extradition procedures

Transit

Capital punishment

Sensitive information in a request

Consultations

Temporal application

Non-derogation

Future bilateral extradition treaties with Member States

Designation and notification

Territorial application

Review

Entry into force and termination

Preamble

Article 1

Article 2

Article 3

Article 4

Article 5

Article 6

Article 7

Article 8

Article 9

Article 10

Article 11

Article 12

Article 13

Article 14

Article 15

Article 16

Article 17

Article 18

Article 19

Article 20

Article 21

Article 22

Explanatory Note

THE EUROPEAN UNION AND THE UNITED STATES OF AMERICA,

DESIRING further to facilitate cooperation between the European Union Member States and the United States of
America,

DESIRING to combat crime in a more effective way as a means of protecting their respective democratic societies and
common values,

HAVING DUE REGARD for rights of individuals and the rule of law,

MINDFUL of the guarantees under their respective legal systems which provide for the right to a fair trial to an extra-
dited person, including the right to adjudication by an impartial tribunal established pursuant to law,

DESIRING to conclude an Agreement relating to the extradition of offenders,

HAVE AGREED AS FOLLOWS:

L 181/28

EN

Official Journal of the European Union

19.7.2003

Article 1

Object and Purpose

in accordance with the
The Contracting Parties undertake,
provisions of this Agreement, to provide for enhancements to
cooperation in the context of applicable extradition relations
between the Member States and the United States of America
governing extradition of offenders.

1.

2.

3.

Article 2

Definitions

‘Contracting Parties’ shall mean the European Union and the
United States of America.

‘Member State’ shall mean a Member State of the European
Union.

its Ministry of

‘Ministry of Justice’ shall, for the United States of America,
mean the United States Department of Justice; and for a
Member State,
that with
respect to a Member State in which functions described in
Articles 3, 5, 6, 8 or 12 are carried out by its Prosecutor
General, that body may be designated to carry out such
function in lieu of the Ministry of Justice in accordance with
Article 19, unless the United States and the Member State
concerned agree to designate another body.

Justice, except

Article 3

Scope of application of this Agreement in relation to bilat-
eral extradition treaties with Member States

1.
The European Union, pursuant to the Treaty on European
Union, and the United States of America shall ensure that the
provisions of this Agreement are applied in relation to bilateral
extradition treaties between the Member States and the United
States of America, in force at the time of the entry into force of
this Agreement, under the following terms:

(a) Article 4 shall be applied in place of bilateral treaty provi-
sions that authorise extradition exclusively with respect to
a list of specified criminal offences;

(b) Article 5 shall be applied in place of bilateral treaty provi-
sions governing transmission, certification, authentication
or legalisation of an extradition request and supporting
documents transmitted by the requesting State;

(c) Article 6 shall be applied in the absence of bilateral treaty
provisions authorising direct
transmission of provisional
arrest requests between the United States Department of
Justice and the Ministry of Justice of the Member State
concerned;

(d) Article 7 shall be applied in addition to bilateral treaty
provisions governing transmission of extradition requests;

(e) Article 8 shall be applied in the absence of bilateral treaty
provisions governing the submission of supplementary
information; where bilateral
treaty provisions do not
specify the channel to be used, paragraph 2 of that Article
shall also be applied;

(f) Article 9 shall be applied in the absence of bilateral treaty
provisions authorising temporary surrender of persons
being proceeded against or serving a sentence in the
requested State;

(g) Article 10 shall be applied, except as otherwise specified
therein, in place of, or in the absence of, bilateral treaty
provisions pertaining to decision on several requests for
extradition of the same person;

(h) Article 11 shall be applied in the absence of bilateral treaty
provisions authorising waiver of extradition or simplified
extradition procedures;

(i) Article 12 shall be applied in the absence of bilateral treaty
provisions governing transit; where bilateral treaty provi-
sions do not specify the procedure governing unscheduled
landing of aircraft, paragraph 3 of that Article shall also be
applied;

(j) Article 13 may be applied by the requested State in place
treaty provisions

in the absence of, bilateral

of, or
governing capital punishment;

(k) Article 14 shall be applied in the absence of bilateral treaty
provisions governing treatment of sensitive information in
a request.

2.

(a) The European Union, pursuant

to the Treaty on
European Union, shall ensure that each Member State
acknowledges,
in a written instrument between such
Member State and the United States of America, the
application, in the manner set forth in this Article, of its
bilateral extradition treaty in force with the United
States of America.

(b) The European Union, pursuant

to the Treaty on
European Union, shall ensure that new Member States
acceding to the European Union after the entry into
force of this Agreement and having bilateral extradition
treaties with the United States of America,
take the
measures referred to in subparagraph (a).

(c) The Contracting Parties shall endeavour to complete the
process described in subparagraph (b) prior
to the
scheduled accession of a new Member State, or as soon
as possible thereafter. The European Union shall notify
the United States of America of the date of accession of
new Member States.

If

the process described in paragraph 2(b)

is not
3.
completed by the date of accession,
the provisions of this
Agreement shall apply in the relations between that new
Member State and the United States of America as from the
date on which they have notified each other and the European
Union of the completion of their internal procedures for that
purpose.

19.7.2003

EN

Official Journal of the European Union

L 181/29

Article 4

Extraditable offences

Documents that bear the certificate or seal of the Ministry
2.
of Justice, or Ministry or Department responsible for foreign
affairs, of the requesting State shall be admissible in extradition
proceedings in the requested State without further certification,
authentication, or other legalisation.

An offence shall be an extraditable offence if it is punish-
1.
able under the laws of the requesting and requested States by
deprivation of liberty for a maximum period of more than one
year or by a more severe penalty. An offence shall also be an
extraditable offence if it consists of an attempt or conspiracy to
commit, or participation in the commission of, an extraditable
offence. Where the request is for enforcement of the sentence
of a person convicted of an extraditable offence, the depriva-
tion of liberty remaining to be served must be at least four
months.

2.
If extradition is granted for an extraditable offence, it shall
also be granted for any other offence specified in the request if
the latter offence is punishable by one year's deprivation of
liberty or less, provided that all other requirements for extradi-
tion are met.

Article 6

Transmission of requests for provisional arrest

Requests for provisional arrest may be made directly between
the Ministries of Justice of the requesting and requested States,
as an alternative to the diplomatic channel. The facilities of the
International Criminal Police Organisation (Interpol) may also
be used to transmit such a request.

For the purposes of
3.
considered an extraditable offence:

this Article, an offence shall be

Article 7

(a) regardless of whether

the laws in the requesting and
requested States place the offence within the same category
of offences or describe the offence by the same termi-
nology;

(b) regardless of whether the offence is one for which United
States federal law requires the showing of such matters as
interstate transportation, or use of the mails or of other
facilities affecting interstate or foreign commerce, such
matters being merely for the purpose of establishing juris-
diction in a United States federal court; and

(c) in criminal cases relating to taxes, customs duties, currency
control and the import or export of commodities, regard-
less of whether the laws of the requesting and requested
States provide for the same kinds of taxes, customs duties,
or controls on currency or on the import or export of the
same kinds of commodities.

4.
If the offence has been committed outside the territory of
the requesting State, extradition shall be granted, subject to the
other applicable requirements for extradition, if the laws of the
requested State provide for the punishment of an offence
committed outside its territory in similar circumstances. If the
laws of the requested State do not provide for the punishment
of an offence committed outside its territory in similar circum-
stances, the executive authority of the requested State, at its
discretion, may grant extradition provided that all other applic-
able requirements for extradition are met.

Transmission of documents following provisional arrest

1.
If the person whose extradition is sought is held under
provisional arrest by the requested State, the requesting State
may satisfy its obligation to transmit its request for extradition
and supporting documents through the diplomatic channel
pursuant to Article 5(1), by submitting the request and docu-
ments to the Embassy of the requested State located in the
requesting State. In that case, the date of receipt of such request
by the Embassy shall be considered to be the date of receipt by
the requested State for purposes of applying the time limit that
must be met under the applicable extradition treaty to enable
the person's continued detention.

2. Where a Member State on the date of signature of this
Agreement, due to the established jurisprudence of its domestic
legal system applicable at such date, cannot apply the measures
referred to in paragraph 1, this Article shall not apply to it,
until such time as that Member State and the United States of
America, by exchange of diplomatic note, agree otherwise.

Article 8

Supplemental information

Article 5

Transmission and authentication of documents

1.
The requested State may require the requesting State to
furnish additional information within such reasonable length of
time as it specifies, if it considers that the information furnished
in support of the request for extradition is not sufficient to
fulfil the requirements of the applicable extradition treaty.

1.
Requests for extradition and supporting documents shall
be transmitted through the diplomatic channel, which shall
include transmission as provided for in Article 7.

2.
Such supplementary information may be requested and
furnished directly between the Ministries of Justice of the States
concerned.

L 181/30

EN

Official Journal of the European Union

19.7.2003

Article 9

Temporary surrender

Article 11

Simplified extradition procedures

If a request for extradition is granted in the case of a
1.
person who is being proceeded against or is serving a sentence
in the requested State, the requested State may temporarily
surrender the person sought to the requesting State for the
purpose of prosecution.

2.
The person so surrendered shall be kept in custody in the
requesting State and shall be returned to the requested State at
the conclusion of the proceedings against that person, in accor-
dance with the conditions to be determined by mutual agree-
ment of the requesting and requested States. The time spent in
custody in the territory of the requesting State pending prose-
cution in that State may be deducted from the time remaining
to be served in the requested State.

Article 10

Requests for extradition or surrender made by several
States

If

the

receives

requested State

1.
from the
requesting State and from any other State or States for the
extradition of the same person, either for the same offence or
for different offences, the executive authority of the requested
State shall determine to which State, if any, it will surrender
the person.

requests

2.
If a requested Member State receives an extradition
request from the United States of America and a request for
surrender pursuant to the European arrest warrant for the same
person, either for the same offence or for different offences, the
competent authority of the requested Member State shall deter-
mine to which State, if any, it will surrender the person. For
this purpose, the competent authority shall be the requested
Member State's executive authority if, under the bilateral extra-
dition treaty in force between the United States and the
Member State, decisions on competing requests are made by
that authority;
if not so provided in the bilateral extradition
treaty,
the competent authority shall be designated by the
Member State concerned pursuant to Article 19.

In making its decision under paragraphs 1 and 2, the
3.
requested State shall consider all of
factors,
including, but not limited to, factors already set forth in the
applicable extradition treaty, and, where not already so set
forth, the following:

the relevant

(a) whether the requests were made pursuant to a treaty;

(b) the places where each of the offences was committed;

(c) the respective interests of the requesting States;

(d) the seriousness of the offences;

(e) the nationality of the victim;

(f) the possibility of any subsequent extradition between the

requesting States; and

(g) the chronological order in which the requests were received

from the requesting States.

If
the person sought consents to be surrendered to the
requesting State, the requested State may, in accordance with
the principles and procedures provided for under its legal
system, surrender
the person as expeditiously as possible
without further proceedings. The consent of the person sought
may include agreement to waiver of protection of the rule of
specialty.

Article 12

Transit

1.
A Member State may authorise transportation through its
territory of a person surrendered to the United States of
America by a third State, or by the United States of America to
a third State. The United States of America may authorise
transportation through its territory of a person surrendered to
a Member State by a third State, or by a Member State to a
third State.

2.
A request for transit shall be made through the diplo-
matic channel or directly between the United States Depart-
ment of Justice and the Ministry of Justice of the Member State
Interpol may also be used to
concerned. The facilities of
transmit such a request. The request shall contain a description
of the person being transported and a brief statement of the
facts of the case. A person in transit shall be detained in
custody during the period of transit.

3.
Authorisation is not required when air transportation is
used and no landing is scheduled on the territory of the transit
State. If an unscheduled landing does occur, the State in which
for
the unscheduled landing occurs may require a request
transit pursuant to paragraph 2. All measures necessary to
prevent the person from absconding shall be taken until transit
is effected, as long as the request for transit is received within
96 hours of the unscheduled landing.

Article 13

Capital punishment

Where the offence for which extradition is sought is punishable
by death under the laws in the requesting State and not punish-
able by death under the laws in the requested State,
the
requested State may grant extradition on the condition that the
death penalty shall not be imposed on the person sought, or if
for procedural reasons such condition cannot be complied with
by the requesting State, on condition that the death penalty if
imposed shall not be carried out. If the requesting State accepts
extradition subject to conditions pursuant to this Article,
it
shall comply with the conditions. If the requesting State does
not accept the conditions, the request for extradition may be
denied.

19.7.2003

EN

Official Journal of the European Union

L 181/31

Article 14

Article 19

Sensitive information in a request

Designation and notification

Where the requesting State contemplates the submission of
particularly sensitive information in support of its request for
extradition, it may consult the requested State to determine the
extent
to which the information can be protected by the
requested State. If the requested State cannot protect the infor-
mation in the manner sought by the requesting State, the
requesting State shall determine whether the information shall
nonetheless be submitted.

Article 15

Consultations

The Contracting Parties shall, as appropriate, consult to enable
the most effective use to be made of this Agreement, including
to facilitate the resolution of any dispute regarding the interpre-
tation or application of this Agreement.

Article 16

Temporal application

This Agreement shall apply to offences committed before

1.
as well as after it enters into force.

2.
This Agreement shall apply to requests for extradition
made after its entry into force. Nevertheless, Articles 4 and 9
shall apply to requests pending in a requested State at the time
this Agreement enters into force.

Article 17

Non-derogation

1.
This Agreement is without prejudice to the invocation by
the requested State of grounds for refusal relating to a matter
not governed by this Agreement that is available pursuant to a
bilateral extradition treaty in force between a Member State
and the United States of America.

2. Where the constitutional principles of, or final
judicial
decisions binding upon, the requested State may pose an impe-
diment to fulfilment of its obligation to extradite, and resolu-
tion of the matter is not provided for in this Agreement or the
applicable bilateral
take place
consultations
between the requested and requesting States.

treaty,

shall

Article 18

Future bilateral extradition treaties with Member States

The European Union shall notify the United States of America
of any designation pursuant to Article 2(3) and Article 10(2),
prior to the exchange of written instruments described in
Article 3(2) between the Member States and the United States
of America.

Article 20

Territorial application

1.

This Agreement shall apply:

(a) to the United States of America;

(b) in relation to the European Union to:

— Member States,

— territories for whose external relations a Member State
has responsibility, or countries that are not Member
States for whom a Member State has other duties with
respect
to external relations, where agreed upon by
exchange of diplomatic note between the Contracting
Parties, duly confirmed by the relevant Member State.

2.
The application of this Agreement to any territory or
country in respect of which extension has been made in accor-
dance with subparagraph (b) of paragraph 1 may be terminated
by either Contracting Party giving six months' written notice to
the other Contracting Party through the diplomatic channel,
where duly confirmed between the relevant Member State and
the United States of America.

Article 21

Review

The Contracting Parties agree to carry out a common review of
this Agreement as necessary, and in any event no later than five
years after its entry into force. The review shall address in parti-
cular the practical implementation of the Agreement and may
also include issues such as the consequences of further develop-
ment of the European Union relating to the subject matter of
this Agreement, including Article 10.

Article 22

Entry into force and termination

This Agreement shall enter into force on the first day
1.
following the third month after
the date on which the
Contracting Parties have exchanged instruments indicating that
they have completed their internal procedures for this purpose.
These instruments shall also indicate that the steps specified in
Article 3(2) have been completed.

This Agreement shall not preclude the conclusion, after its
entry into force, of bilateral Agreements between a Member
State and the United States of America consistent with this
Agreement.

2.
Either Contracting Party may terminate this Agreement at
any time by giving written notice to the other Party, and such
termination shall be effective six months after the date of such
notice.

L 181/32

EN

Official Journal of the European Union

19.7.2003

In witness whereof the undersigned Plenipotentiaries have signed this Agreement

Done at Washington DC on the twenty-fifth day of June in the year two thousand and three in duplicate in
the Danish, Dutch, English, Finnish, French, German, Greek, Italian, Portuguese, Spanish and Swedish
languages, each text being equally authentic.

Por la Unión Europea

For Den Europæiske Union

Für die Europäische Union
Για την Ευρωπαϊκή Ένωση

For the European Union

Pour l'Union européenne

Per l'Unione europea

Voor de Europese Unie

Pela União Europeia

Euroopan unionin puolesta

På Europeiska unionens vägnar

Por los Estados Unidos de América

For Amerikas Forenede Stater

Für die Vereinigten Staaten von Amerika
Για τις Ηνωµένες Πολιτείες της Αµερικής

For the United States of America

Pour les États-Unis d'Amérique

Per gli Stati Uniti d'America

Voor de Verenigde Staten van Amerika

Pelos Estados Unidos da América

Amerikan yhdysvaltojen puolesta

På Amerikas förenta staters vägnar

19.7.2003

EN

Official Journal of the European Union

L 181/33

Explanatory Note on the Agreement on Extradition between the European Union and the United
States of America

This Explanatory Note reflects understandings regarding the application of certain provisions of the Agree-
ment on Extradition between the European Union and the United States of America (hereinafter ‘the Agree-
ment’) agreed between the Contracting Parties.

On Article 10

Article 10 is not intended to affect the obligations of States Parties to the Rome Statute of the International
Criminal Court, nor to affect the rights of the United States of America as a non-Party with regard to the
International Criminal Court.

On Article 18

Article 18 provides that the Agreement shall not preclude the conclusion, after its entry into force, of bilat-
eral agreements on extradition between a Member State and the United States of America consistent with
the Agreement.

Should any measures set forth in the Agreement create an operational difficulty for either one or more
Member States or the United States of America, such difficulty should in the first place be resolved, if
possible, through consultations between the Member State or Member States concerned and the United
States of America, or, if appropriate, through the consultation procedures set out in this Agreement. Where
it is not possible to address such operational difficulty through consultations alone, it would be consistent
with the Agreement for future bilateral agreements between the Member State or Member States and the
United States of America to provide an operationally feasible alternative mechanism that would satisfy the
objectives of the specific provision with respect to which the difficulty has arisen.