Report from the Commission based on Article 34 of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States {SEC(2005) 267}
Date: 2005-02-23
Institutions: European Commission
Subjects: European arrest warrant, European judicial area, application of EU law, framework decision, report

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 23.02.2005 
COM(2005) 63 final 

REPORT FROM THE COMMISSION 

based on Article 34 of the Council Framework Decision of 13 June 2002  
on the European arrest warrant and the surrender procedures between Member States 

{SEC(2005) 267} 

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1. 

METHOD 

The  Commission  is  submitting  this  report  evaluating  the  application  of  the  Council 
Framework  Decision  of  13  June  2002  on  the  European  arrest  warrant  and  the  surrender 
procedures between Member States1 ("the Framework Decision") pursuant to Article 34 of the 
Decision. The evaluation is important since the arrest warrant is the first and most symbolic 
measure applying the principle of mutual recognition.  

The  evaluation  criteria  adopted  by  the  Commission  for  this  report  are,  firstly,  the  general 
criteria  normally  used  nowadays  to  evaluate  the  implementation  of  framework  decisions 
(practical  effectiveness,  clarity  and  legal  certainty,  full  application  and  compliance  with  the 
time limit for transposal)2, and, secondly, criteria specific to the arrest warrant, principally the 
fact that it is a judicial instrument, its effectiveness and its rapidity. 

The  Commission  has based  the report, primarily,  on national provisions giving effect to the 
arrest  warrant,  as  communicated  to  it  by  the  Member  States  (Article 34(2)),  and  the 
supplementary information supplied by the Council (Article 34(3)), in particular the available 
replies  provided  to  the  questionnaires  addressed  to  the  Member  States  by  the  Council 
presidency3. 

The Commission has also tried to supplement its information, both by using the replies given 
to  the  European  Judicial  Network's  questionnaire,  which  concerned  the  practical  aspects  of 
the arrest warrant prior to 1 September 2004, and by maintaining a bilateral dialogue with the 
designated  national  contact  points.  The  contents  of  this  report  and  its  annex4  have 
nevertheless been affected by the many delays and shortcomings in transmission, the uneven 
quality of the information obtained and the brevity of the period examined. 

2. 

EVALUATION 

2.1. 

A  surrender  procedure  between  the  Member  States  that  is  now  basically 
judicial 

2.1.1.  Delayed implementation though now almost EU wide 

The arrest warrant has been implemented by 24 Member States with up to 8 months 
delay (CZ, DE). Only half complied with the time limit laid down (BE, DK, ES, IE, 
CY,  LT,  HU,  PL,  PT,  SI,  FI,  SE,  UK).  The  delay  was  the  cause  of  transitional 
difficulties. 

Nevertheless,  as  of  1  November  2004,  all  the  Member  States  had  transposed  the 
Framework  Decision  except  Italy,  which  still  has  its  draft  legislation  before 
Parliament.  All  Member States  have  adopted  specific  legislation  and  several  had  to 
revise  their  constitutions  in  order  to  do  this.  However,  some  (DK  and  EE)  have 

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OJ L 190, 18.7.2002, p. 1. 
COM(2001) 771, 13.12.2001, point 1.2.2. 
COPEN 96, 10.10.2003; COPEN 94, 26.7.2004. 
SEC(2005)267. 

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dispensed  with  binding  rules  for  certain  provisions,  which  do  not  meet  the 
requirement of legal certainty. 

In practice, from 1 January 2004, eight Member States applied the arrangements for 
the arrest warrant between them; by the date of enlargement the number had risen to 
16, and since 14 January 2005, the date of first application in CZ, there have been 24. 

the  arrest  warrant 

In  2004 
replaced  extradition  between 
thus  gradually 
Member States  and  appears  even  to  have  surpassed  it  in  volume  terms.  Only  a 
handful  of  Member  States  exercised  the  right  to  limit  its  temporal  or  substantive 
scope. As regards the former aspect, some did so in accordance with the Framework 
Decision,  once  this  had  been  adopted,  in  particular  by  ruling  out  the  warrant's 
application to acts that occurred before a given date (Article 32: FR, IT, AT). Others, 
however, wanted to make such a limitation without complying with the Framework 
Decision, whether with regard to procedure (Article 32: CZ, LU, SI), the substance 
of the limitation (CZ, LU) or even the effective date (CZ). The extradition requests 
which  they  continue  to  present  therefore  risk  being  rejected  by  the  other  Member 
States. 

Obligations  were  also  breached  by  those  Member  States  which  reduced  the 
substantive scope as regards either the minimum thresholds for sentences (Article 2: 
NL, AT, PL ; Articles 4(7)(b): UK), or certain categories of offence, for which they 
have reintroduced  (Article 2: BE,  PL, SI), or created the risk of reintroducing (EE, 
EL, FR), a check on double criminality. However, there are no major difficulties at 
this stage with the transposal of the list of 32 categories of offence for which double 
criminality is abolished. It is remains regrettable that a few Member States thought it 
did not cover attempted and complicit acts (Article 2: EE, IE). 

2.1.2.  A surrender procedure that is basically judicial  

The  surrender  of  requested  persons  between  Member  States,  pursuant  to  the 
Framework Decision (Article 1(1)), has become entirely judicial. This is attested to, 
for example, by the fact that the large majority of Member States authorises direct 
contacts  between  judicial  authorities,  at  the  different  stages  of  the  procedure 
(Articles  9(1),  15  and  23).  However,  certain  Member  States  have  designated  an 
executive body as the competent judicial authority for all aspects (Article 6: DK) or 
for some (EE, LV, LT, FI, SE). 

Following the Framework Decision, the interposition of a central authority with a 
monopoly on transmissions has been chosen only by a minority (Article 7: EE, IE, 
HU,  MT,  UK).  However,  it  is  to  be  regretted  that  there  are  cases  where  the 
decision-making  powers  conferred  on  central  authorities  exceed  the  simple 
facilitating role permitted by the Framework Decision (EE, IE). 

2.1.3.  Gradual dovetailing with the external system of extradition 

While  surrenders  between  Member  States  are  now  basically  governed  by  the  arrest 
warrant system, the Union's arrangements are taking longer to mesh with the system 
of international rules (Article 21: MT; Article 28: LT). 

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Not  all  Member  States  have  notified  the  Council  of  Europe  of  their  new  system 
(Article  28  of  the  European  Convention  on  Extradition  of  13  December  1957)5. 
However, this omission should be temporary. 

2.2. 

A more effective, faster procedure which respects fundamental guarantees 

2.2.1. 

Surrenders more easily accepted 

The  Framework  Decision  limits  the  grounds  for  refusing  a  surrender  between 
Member  States,  ruling  out  any  decision  based  on  political  expediency  and  thus 
guaranteeing  greater  effectiveness.  In  general,  the  framework  it  provides  has  been 
respected. The effectiveness of the arrest warrant can be gauged, provisionally, from 
the 2 603 warrants issued, the 653 persons arrested and the 104 persons surrendered 
up to September 2004. It should also be noted that refusals to execute a warrant so 
far account for a modest share of the total warrants issued. The full picture can only 
be  an  improvement  on  these  provisional  figures,  based  as  they  are  on  returns/ 
declarations? from only about twenty Member States. 

The  number  of  mandatory  grounds  for  refusal  taken  on  from  the  Framework 
Decision ranges from 3 to 10, depending on the Member State. All  Member States 
have transposed the three mandatory grounds, with a few exceptions (Article 3(1): 
NL,  UK)  or  deficiencies  (Article  3(1):  DK,  IE;  Article  3(2):  IE,  UK).  However, 
transposition of the optional grounds varies considerably from one Member State to 
the next: some States have only adopted them in part or have left a greater margin of 
discretion  to  their  judicial  authorities,  while  others  have  made  them  all  mandatory. 
Although possible in  principle, unless case law develops differently6 (Article  4(3)), 
this  choice  of  transposal  is  open  to  criticism  if  it  goes  so  far  as  to  make  executing 
judicial  authorities  themselves  prosecute  rather  than  accept  an  arrest  warrant  when 
proceedings are in progress in the issuing Member State (Article 4(2)). 

The  variety  of  national  arrangements  also  stems  from  the  fact  that  not  all 
Member States have opted to subject the execution of warrants to the three specific 
guarantees  provided  for  in  the  Framework  Decision.  Where  they  have  done  so, 
however,  some  Member  States  have  provided  that  extra  conditions  should  be 
required  (Article  5(1):  MT,  UK;  Article  5(3):  NL).  Moreover,  it  seems  that  in 
practice some authorities are requiring assurances not provided for in the form, or are 
even refusing surrender when assurances have been given. 

The surrender of nationals - a major innovation in the Framework Decision - has 
now  become  fact,  except  where  exempted  by  the  Decision  itself  (Article  33:  AT). 
Most Member States, with a few exceptions (IE, SK, UK) however, have chosen to 
apply  the  condition  that,  in  the  case  of  their  nationals,  the  sentence  should  be 
executed  on  their  territory  (Articles  4(6)  and  5(3)).  In  the  process,  most  Member 
States have opted for equal treatment of their nationals and their residents. 

There  are  still  some  difficulties,  however.  According  to  the  Commission's 
information,  it  seems  that  one  could  deplore  the  practice  of  certain  judicial 
authorities  which  refuse  to  execute  arrest  warrants  in  the  case  of  nationals,  in 

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Conclusions of the Council, 2-3.10.2003, point A/5. 
Joined Cases C-187/01 and C-385/01 Gozutok and Brugge [2003] ECR I-1345. 

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invoking  their  powers  (Article  4(2)  and  (7)),  but  do  not  themselves  carry  out  the 
prosecutions. One Member State, moreover, has introduced a reciprocity clause and 
the conversion of sentences imposed on its nationals (Article 4(6): CZ). Another also 
considered that, with regard to its nationals, it should reintroduce a systematic check 
on  double  criminality  and  make  their  surrender  conditional  on  the  assurance  that  it 
would be able to convert their sentences (Article 5(3): NL). However, this condition, 
authorised  by  the  Convention  of  21 March 1983  on  the  Transfer  of  Sentenced 
Persons, is not reproduced in the Framework Decision. Furthermore, the Convention 
can provide a legal basis for the execution of a sentence delivered in another State, 
only  if  that  sentence  has  already  started,  which  is  not  normally  the  case  where  an 
arrest warrant is issued for the purpose of executing a sentence.  

Lastly,  the  introduction  of  grounds  not  provided  for  in  the  Framework  Decision  is 
disturbing. The additional ground of refusal based on ne bis in idem in relation to the 
International Criminal Court, which enables certain Member States to fill a gap in the 
Framework  Decision,  is  not  an  issue  here.  The  same  can  be  said  of  the  explicit 
grounds of refusal for violation of fundamental rights (Article 1(3)) or discrimination 
(recitals 12 and 13), which two thirds of the Member States have chosen to introduce 
expressly  in  various  forms.  However  legitimate  they  may  be,  however,  apart  from 
where they exceed the Framework Decision (EL, IE, CY), these grounds should be 
invoked only in exceptional circumstances within the Union. More noticeable still is 
the  introduction  of  other  reasons  for  refusal,  which  are  contrary  to  the  Framework 
Decision  (Article  3:  DK,  MT,  NL,  PT,  UK),  such  as  political  reasons,  reasons  of 
national security or those involving examination of the merits of a case. 

2.2.2. 

Surrenders performed as soon as possible 

The speed of the arrest warrant is due not only to an entirely judicial procedure, but 
also to having a single form, several means of transmission and rules for procedural 
time  limits.  In  general,  the  Member  States  have  transposed  these  points  well.  It  is 
provisionally  estimated  that,  as  a  result  of  the  entry  into  force  of  the  Framework 
Decision, the average time taken to execute a warrant has fallen from more than nine 
months  to  43  days.  This  does  not  include  those  frequent  cases  where  the  person 
consents to his surrender, for which the average time taken is 13 days. 

All Member States (except MT and UK) have explicitly adopted the single form and 
provided for several possible means of transmission. A difficulty in this respect is 
that  the  Framework  Decision  does  not  provide  for  making  an  Interpol  alert 
equivalent  to  a  request  for  provisional  arrest,  unlike  an  SIS  alert  (Article  9(3)). 
Pending  the  application  of  the  second  Schengen  Information  System  (SIS  II),  each 
Member State could remedy this with a national provision.  

Member States' requirements vary considerably in detail as to the time limits for the 
receipt of warrants following an arrest (from 2 to 40 days), translations (from a single 
language  accepted  to  more  than  four)  and  means  of  authentification  (from  the 
requirement of exclusively the original to a simple fax). In practice, these differences 
can delay surrenders or even cause them to fail. 

More specifically, some Member States impose requirements not provided for in the 
Framework  Decision,  such  as  the  obligation  to  attach  items  or  documents  not 
stipulated in the form (Article 8(1): CZ, MT) or to issue a separate warrant for each 

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offence (IE). It should be possible, however, gradually to resolve these difficulties as 
practice in each national system becomes more standardised and the requirements of 
other  systems  become  more  familiar.  A  complete  review  of  pre-existing  alerts,  the 
extension  of  secure  means  of  transmission  (SIS  II)  and,  more  generally,  the 
consolidation of mutual confidence will help to achieve this. Greater acceptance by 
each Member State of languages other than its own is likely to facilitate work within 
the enlarged Union. 

Unlike  the  extradition  procedure,  the  execution  of  the  arrest  warrant  is  subject  to 
precise time limits (Articles 17 and 23). On the whole, the Member States have very 
largely fulfilled their obligations in this respect. Most surrenders appear to take place 
within the time limits laid down. 

However,  in  the  event  of  an  appeal,  some  Member  States  have  not  agreed  to  put  a 
time  limit  on  their  higher  courts  (CZ,  MT,  PT,  SK,  UK),  or  have  set  a  maximum 
period  for  the  proceedings  which  exceeds  the  norm  of  60  days  (BE)  or  even  the 
ceiling of 90 days (FR). It should be noted in this respect that a domestic appeal is 
not  in  itself  an  exceptional  circumstance  (Article  17(7)).  For  the  moment,  while 
significant delays are still rare, Eurojust having been informed of them, it is too soon 
yet to draw any conclusions. 

2.2.3. 

Surrenders consented to in accordance with the person’s fundamental guarantees 

Although more efficient and faster than the extradition procedure, the arrest warrant 
is still subject to full compliance with the individual’s guarantees. Contrary to what 
certain  Member  States  have  done,  the  Council  did  not  intend  to  make  the  general 
condition  of  respect  for  fundamental  rights  a  ground  for  refusal  in  the  event  of 
infringement. A judicial authority is, of course, always entitled to refuse to execute 
an arrest warrant, if it finds that the proceedings have been vitiated by infringement 
of  Article 6  of  the  Treaty  on  European  Union  and  the  constitutional  principles 
common to the Member States. However, in a system based on mutual trust, such a 
situation should remain exceptional. 

All  Member  States  have  on  the  whole  transposed  the  provisions  of  the  Framework 
Decision  relating  to  the  rights  of  a  requested  person  (Article  11),  with  it  being 
possible  for  the  degree  of  detail  to  vary  from  one  Member  State  to  another,  in 
particular  with  regard  to  the  expression  of  consent.  However,  there  are  still  some 
shortcomings, in particular, concerning vague procedural rules (Article 13: DK, LV, 
PL, PT; Article 14: DK). It should be emphasised, lastly, that the improvements due 
to the arrest warrant also benefit the persons concerned, who in practice now consent 
to their surrender in more than half the cases reported. 

The evaluation of the arrest warrant from the viewpoint of guaranteeing fundamental 
rights  leads  one  to  compare  the  current  situation  with  what  went  before.  Several 
positive features should be emphasised. The Framework Decision is more precise as 
regards  ne  bis  in  idem.  It  has  strengthened  the  right  to  the  assistance  of  a  lawyer 
(Articles 11(2), 12(2), 27(3) and 28(2)), to examine the appropriateness of keeping a 
person in detention (Article 12), and to the deduction from the term of the sentence 
of  the  period  of  detention  served  (Article  26).  More  generally,  as  a  result  of  the 
speed with which it is executed, the arrest warrant contributes to better observance of 
the  "reasonable  time  limit"  principle.  Through  its  effectiveness,  in  particular  in 

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obtaining  the  surrender  of  nationals  of  other  Member  States,  it  makes  it  easier  to 
decide  to  release  individuals  provisionally  irrespective  of  where  they  reside  in  the 
European Union (Article 12). 

3. 

CONCLUSION 

Despite an undeniable initial delay, the European arrest warrant is now operational in 
most of the cases provided for. Its impact is positive, since the available indicators as 
regards  judicial  control,  effectiveness  and  speed  are  favourable,  while  fundamental 
rights are equally observed. 

This overall success should not make one lose sight of the effort that is still required 
by  Italy  and  certain  other  Member  States  (in  particular  CZ,  DK,  EE,  IE,  LU,  MT, 
NL, SI, UK) to comply fully with the Framework Decision and for the Union to fill 
certain gaps in the system. 

As  this  evaluation  has  been  made  at  an  early  stage,  it  remains  provisional;  it  will 
need  to  be  reviewed,  in  particular  as  more  systematic  information  comes  in.  The 
Commission  accordingly  reserves  the  right  to  present  proposals  for  amending  the 
Framework Decision (Article 34(3)) in the light of further experience. 

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