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 (revised version) {SEC(2006)79}
Date: 2006-01-24
Institutions: European Commission
Subjects: EU law - national law, European arrest warrant, Italy, extradition, international criminal law, judicial cooperation in criminal matters in the EU, judicial proceedings, mutual recognition principle

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 24.1.2006 
COM(2006)8 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 

(revised version) 

{SEC(2006)79} 

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1. 

METHOD 

The  Commission  is  submitting  this  revised  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 revision concerns only the Italian legislation, adopted since the presentation of 
the original report. A second report, planned for June 2006, will update the evaluation for all 
the  Member  States  in  the  light  of  the  conclusions  of  the  JHA  Council  of  2 June 2005.  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, application in full 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, principally, on the 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 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.  Now being implemented throughout the EU, after initial delay 

The arrest warrant has now been implemented by all the Member States. However, 
only half complied with the time limit laid down (BE, DK, ES, IE, CY, LT, HU, PL, 
PT, SI, FI, SE, UK). The delay, which lasted up to 16 months (IT), caused temporary 
difficulties. 

Nevertheless,  at  22 April 2005,  the  date  of  adoption  of  the  Italian  law,  all  the 
Member States had transposed the Framework Decision. Several Member States had 
to revise their constitutions in order to do this. All have adopted specific legislation. 

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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(2004) 267. 

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However,  some  (DK  and  EE)  have  dispensed  with  binding  rules  for  certain 
provisions, which does 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 May 2005, the date of first application in IT, there have been 25. 

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 taken 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,  with  the  notable  exception  of  one  country’s  legislation, 
which appears not to recognise the principle (Article 2: IT). It is still 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 
contact  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 
some (EE, LV, LT, FI, SE). 

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

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 

Guaranteeing  greater  effectiveness,  the  Framework  Decision  limits  the  grounds  for 
refusing  a  surrender  between  Member  States,  ruling  out  any  decision  based  on 
political expediency. 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 from only 
about twenty Member States. In the absence of statistics, it can be mentioned that IT 
has,  since  May 2005,  effectively  surrendered  a  number  of  persons  to  whom  a 
European  arrest  warrant  applied,  including  in  an  important  case  concerning 
terrorism. 

The number of grounds for refusal taken over 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,  the  optional 
grounds  transposed  vary  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  special 
guarantees  provided  for  in  the  Framework  Decision.  Where  they  have  done, 
however,  some  Member  States  have  provided  that  extra  conditions  should  be 
required  (Article  5(1):  MT,  UK ;  Article  5(3):  NL;  IT).  Moreover,  it  seems  that  in 
practice  some  authorities  are  requiring  assurances  not  provided  for  on  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, 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)), with a few exceptions (IE, SK, UK). In the process, most Member States have 
opted for equal treatment for their nationals and their residents. 

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Conclusions of the Council, 2-3.10.2003, point A/5. 
Gozutok (C-187/01) and Brugge (C-385/01), 11.2.2003. 

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There  are  still  some  difficulties,  however.  According  to  the  Commission's 
information,  the  practice  of  certain  judicial  authorities  which,  while  invoking  their 
powers  (Article  4(2)  and  (7)),  refuse  to  execute  arrest  warrants  in  the  case  of 
nationals, but do not themselves carry through the prosecutions, would appear to be 
regrettable. One Member State, moreover, has introduced a reciprocity clause and the 
conversion  of  sentences  imposed  on  its  nationals  (Article  4(6):  CZ).  Another  also 
thought 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 applies to 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, even if they do exceed 
the Framework Decision (EL, IE, IT, CY), these grounds should only be invoked in 
exceptional circumstances within the Union. It is even more important to emphasise 
the  introduction  of  other  reasons  for  refusal,  which  are  contrary  to  the  Framework 
Decision (Article 3: DK, IT, MT, NL, PT, UK), such as political reasons, reasons of 
national  security  or  ones  involving  examination  of  the  merits  of  a  case,  e.g.  of  its 
special  circumstances  or  the  personal  or  family  situation  of  the  individual  in 
question. 

2.2.2. 

Surrenders performed as soon as possible 

The swiftness 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 

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requirement for the original only 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 on the form (Article 8(1): CZ, IT, MT) or to issue a separate warrant for 
each  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 
amply 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 could exceed the norm of 60 days (BE) or even the 
ceiling  of  90  days  in  the  event  of  final  appeal  (FR,  IT).  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  fundamental  guarantees  for  the 
individual 

Although more efficient and faster than the extradition procedure, the arrest warrant 
is still subject to full compliance with the guarantees for the individual. Contrary to 
what  certain  Member  States  have  done,  the  Council  did  not  intend  to  make  the 
general condition of respect for fundamental rights an explicit 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; in a system based on mutual trust, such a 
situation should remain exceptional. 

All  Member  States  have  in  the  main  transposed  the  provisions  of  the  Framework 
Decision relating to the rights of a requested person (Article 11), 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. There are still some shortcomings, however, in 
particular concerning procedural vagueness (Article 13: DK, LV, PL, PT ; Article 14: 
DK).  It  should  be  emphasised,  lastly,  that  the  facilitation  due  to  the  arrest  warrant 
also benefits 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 standpoint of guaranteeing fundamental 
rights  leads  one  to  compare  the  current  situation  with  what  went  before.  Several 

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positive features deserve to 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". Through its effectiveness, in particular in 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 observed. 

This overall success should not make one lose sight of the effort that is still required 
for certain Member States (in particular CZ, DK, EE, IE, IT, 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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