Report on Eurojust’s casework in the field of the European arrest warrant.
Date: 2021-08-02
Institutions: European Union Agency for Criminal Justice Cooperation
Subjects: European arrest warrant, judicial cooperation, judicial cooperation in criminal matters in the EU, legal profession, report

Report on Eurojust’s 
Casework in the Field of the 
European Arrest Warrant 

June 2021

Criminal justice across borders

Report on Eurojust’s Casework in the Field of the European Arrest Warrant  

 Contents 

Executive summary ................................................................................................................................. 4 

1.Introduction ....................................................................................................................................... 8 

1.1. 

Background ........................................................................................................................... 8 

1.2. 

Scope and purpose of this report ............................................................................................ 8 

2. Validity of the European Arrest Warrant ............................................................................................ 9 

2.1. 

Competent judicial authority .................................................................................................. 9 

  Compilation on the concept of ‘judicial authority’ ............................................................. 10 

  Questions on the validity of European Arrest Warrants issued by public prosecutors ......... 11 

  Questions on effective judicial protection ......................................................................... 11 

  Validation of invalid European Arrest Warrants ................................................................ 11 

  Questions on additional information provided by public prosecutors ................................ 12 

2.2. 

Content and form ................................................................................................................ 13 

Identity of the requested person ...................................................................................... 13 

  Contact details ................................................................................................................. 14 

  National arrest warrant .................................................................................................... 14 

  Offence(s) and description of the circumstances ............................................................... 15 

  Sentence.......................................................................................................................... 17 

  Signature ......................................................................................................................... 18 

  Translations ..................................................................................................................... 18 

  Form ................................................................................................................................ 19 

3.Grounds for non-execution, guarantees and fundamental rights ........................................................ 19 

3.1.  Grounds for non-execution .................................................................................................. 19 

  Ne bis in idem .................................................................................................................. 19 

  Territoriality grounds ....................................................................................................... 21 

  Ongoing prosecutions for the same acts in the executing Member State ........................... 22 

  Dual criminality ............................................................................................................... 24 

  Statute-barred offences ................................................................................................... 26 

In absentia judgments ...................................................................................................... 26 

  Nationals or residents ...................................................................................................... 30 

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  Proportionality ................................................................................................................ 32 

3.2.  Guarantees .......................................................................................................................... 33 

3.3. 

Fundamental rights .............................................................................................................. 34 

  Prison conditions ............................................................................................................. 35 

  Rule of law....................................................................................................................... 38 

4.Requests for information .................................................................................................................. 39 

4.1.  Necessary and supplementary information before taking a decision on the surrender ........... 39 

4.2. 

Information on the state of play of the European Arrest Warrant proceedings ...................... 40 

4.3. 

Follow-up information after a decision on the European Arrest Warrant has been taken ....... 41 

5.Transmission of European Arrest Warrants ....................................................................................... 42 

6.Competing requests for surrender/extradition and subsequent surrender/extradition ....................... 43 

6.1. 

Competing requests for surrender and extradition ................................................................ 43 

  Eurojust guidelines........................................................................................................... 43 

  Eurojust’s advice on competing requests .......................................................................... 44 

  Decisive factors in different scenarios ............................................................................... 44 

  Advice, coordination and follow-up measures .................................................................. 45 

6.2. 

Subsequent surrender/extradition ....................................................................................... 46 

7.Time limits for the decision to execute a European Arrest Warrant .................................................... 46 

8.Postponement of surrender and problems with the actual surrender ................................................ 49 

8.1. 

Force majeure ...................................................................................................................... 49 

8.2.  Humanitarian reasons .......................................................................................................... 50 

  Taking care of small children ............................................................................................ 50 

  Serious illness .................................................................................................................. 51 

  The COVID-19 pandemic................................................................................................... 51 

8.3.  Ongoing prosecution or execution of a sentence in the executing Member State ................... 52 

8.4. 

Transit ................................................................................................................................. 54 

9.Prosecution or carrying out of a custodial sentence for other offences (speciality rule) ...................... 54 

10.The European Arrest Warrant and its relation to other instruments ................................................. 56 

10.1. 
Coordinated  execution  of  European  Arrest  Warrants  and  other  mutual  recognition 
instruments ..................................................................................................................................... 57 

10.2. 

European Investigation Orders and letters of request ....................................................... 57 

European Investigation Orders in addition to European Arrest Warrants ....................... 57 

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European Investigation Orders instead of European Arrest Warrants ............................ 58 

10.3. 

Transfer of sentenced persons .......................................................................................... 59 

European Arrest Warrant replaced with a request for a transfer of sentenced person ... 59 

European Arrest Warrant replaced with a request for a transfer of a sentenced person and 
replaced again with a European Arrest Warrant ............................................................................ 60 

Simultaneous execution of a European Arrest Warrant and a request for the transfer of a 
sentenced person ......................................................................................................................... 61 

10.4. 

Extradition requests ......................................................................................................... 62 

Extradition requests instead of European Arrest Warrants ............................................ 62 

Extradition requests or European Arrest Warrants: implications of CJEU case-law for the 
extradition of EU citizens to non-EU countries ............................................................................... 62 

11.Conclusions and recommendations ................................................................................................. 63 

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Executive summary 

The  framework  decision  on  the  European  Arrest  Warrant  and  the  surrender  procedures  between 
Member  States  (EAW  FD)  was  adopted  in  2002.  It  was  the  first  instrument  in  the  field  of  judicial 
cooperation in criminal matters that was based on the principle of mutual recognition and aimed at 
simplifying  and  accelerating  cooperation  between  Member  States.  Over  the  past  17 years,  Member 
States have gained a lot of experience with the EAW FD. 

The  aim  of  this  report  is  to  inform  both  practitioners  and  policymakers  of  the  main  difficulties 
encountered  in  the  practical  application  of  the  European  Arrest  Warrant  (EAW)  on  the  basis  of 
Eurojust’s  casework  and  to  highlight,  where  relevant,  the  role  that  the  European  Union  Agency  for 
Criminal Justice Cooperation (Eurojust) has played in overcoming such difficulties. Between 2017 and 
2020, 2 235 cases involving EAWs were registered at Eurojust. The report clearly indicates that there 
are still several ongoing issues with the use of the EAW and that Eurojust has played an important role 
in facilitating cooperation and ensuring coordination in both bilateral and multilateral cases involving 
EAWs. 

Based on Eurojust’s casework, solutions and best practices were identified, but the report also stresses 
some  challenges  that  one  should  be  aware  of  and  sets  out  the  main  conclusions  reached  and 
recommendations proposed. Some of the conclusions of this report, particularly those that touch upon 
core features of the principle of mutual recognition, are similar to those of other Eurojust reports on 
other mutual recognition instruments. Such issues might therefore require a more horizontal approach. 

The  most  relevant  issues  identified  in  the  report,  followed  by,  where  possible,  Eurojust’s 
recommendations / best practices, are as follows. 

  Content of EAWs. The execution of EAWs was often put on hold because of missing, unclear or 
inconsistent  information  about  the  content  of  the  EAWs.  Eurojust  assisted  in  clarifying 
misunderstandings, replying to questions and providing additional information or documents. 
Requests  for  additional  information  were  justified  to  clarify  poorly  drafted  EAWs  that  were 
missing  crucial  information.  In  a  few  cases,  Eurojust  observed  requests  for  additional 
information that seemed to go beyond what could reasonably be considered justified under the 
mutual recognition regime. 
  National authorities might benefit from further guidance on how to fill in EAWs and how to 
provide  correct,  concise,  complete  and  consistent  information.  Cases  involving  different 
offences, different sentences and/or different criminal provisions are particularly challenging. 
In absentia judgments, particularly concerning appeal proceedings, are also challenging with 
the current EAW FD template. Moreover, (national) templates for some specific scenarios (e.g. 
return guarantees for nationals or residents) could be seen as a good practice. 

  Impact  of  the  case-law  of  the  Court  of  Justice  of  the  European  Union  (CJEU).  National 
authorities often approached Eurojust with questions on issues addressed in CJEU judgments, 
involving,  for  instance,  issues  related  to  the  validity  of  the  EAW  (e.g.  the  concept  of  issuing 
and/or executing judicial authorities and requirements of effective judicial protection), grounds 
for  non-execution  (particularly  in  absentia  judgments,  nationals  or  residents,  ne bis  in idem), 

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fundamental rights issues (prison conditions, rule of law) and extradition of EU citizens to non-
EU countries. Either authorities were unaware of certain CJEU judgments, or they were aware 
but struggling with how to apply them in practice or struggling with issues not yet (fully) settled 
in the CJEU’s case-law. 
  Eurojust will provide frequent updates of Eurojust’s overview of CJEU case-law on the EAW. 
  National authorities should not refrain from sending requests for preliminary rulings to the 
CJEU, as further clarifications of interpretation can improve the correct application of the EAW 
FD. 

  Eurojust will continue to update relevant compilations, if needed, and/or be ready to launch 

new ones, if needed, in view of further case-law developments. 

  Limits of direct contact. Direct contact is an excellent point of departure in judicial cooperation 
and  it  might  work  very  well  in  many  cases.  However,  this  report  confirms  that,  for  various 
reasons, direct contact sometimes fails. In most cases, involving Eurojust was the crucial step in 
breaking the deadlock. Eurojust brought clarification and a better understanding of the legal or 
practical concerns of the national authorities so that, jointly, workable and satisfying solutions 
could be agreed upon and the EAWs could be executed. 
  National  authorities  should  not  refrain  from  contacting  Eurojust  or  the  European  Judicial 
Network, in accordance with their respective competences and depending on the specificities 
of the cases, when direct contact is not working. 

  Good translations and good language skills. A good translation of an EAW is key to avoiding 
misunderstandings and unnecessary delays. This might seem obvious and redundant, yet it is a 
crucial rule that, in practice, is often not complied with, which then becomes problematic. 
  Further investment in good translations and also in good language training (to facilitate direct 
contact)  is  crucial  and  is  a  key  factor  in  improving  the  functioning  of  mutual  recognition 
instruments in general. 

  Requests  for  information.  When  requests  for  information  remained  unanswered,  direct 
contact failed and Eurojust was contacted. Eurojust assisted national authorities in relation to 
requests  for  information  at  different  stages  and  in  relation  to  different  topics.  Particularly 
significant  was  the  high  number  of  cases  in  which  executing  authorities  failed  to  provide 
information on how much time the requested person was in detention in the executing Member 
State on the basis of the EAW (Article 26 of the EAW FD). 
  As requests for additional information are one of the main reasons for non-compliance with 
time limits, it would be good to provide national authorities with further support on how to 
apply Article 15 of the EAW FD. In relation to Article 26 of the EAW FD, national authorities 
are kindly invited to comply with the obligations included in this provision. 

  Compliance  with  time  limits.  Time  limits  constitute  one  of  the  major  features  of  mutual 
recognition instruments. Article 17(7) of the EAW FD was meant to keep a good overview of 
cases  in  which  ‘in  exceptional  circumstances’  time  limits  could  not  be  met  and  to  identify 
underlying  reasons  for  recurrent  delays.  Unfortunately,  no  accurate  information  is  currently 
available on the number of cases for which time limits are not met. The template that Eurojust 

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created in 2018 for this purpose is hardly used and only a few countries notify Eurojust when 
time  limits  cannot  be  observed.  Yet  Eurojust’s  casework  reveals  that  requests  for  additional 
information  led  to  considerable  delays  in  some  cases.  Furthermore,  appeal  proceedings  in 
certain Member States seemed to allow cases to last for many years before a final decision was 
taken. 
  National authorities are kindly invited to comply with the obligations in Article 17(7) of the 

EAW FD. 

  Grounds for non-execution and fundamental rights. The report confirms that there is still 
margin  to  further  improve  the  interpretation  and  application  of  certain  grounds  for  non-
execution and to ensure the assessment of fundamental rights grounds in line with the case-law 
of the CJEU and the European Court of Human Rights (ECtHR). 
  Practitioners  should  receive  further  guidance  on  how  to  deal  with  questions  on  detention 
conditions and/or fundamental rights. Further guidance on the case-law of both the CJEU and 
the ECtHR is relevant in this regard. 

  Practitioners  should  receive  further  guidance  on  how  to  apply  certain  grounds  for  non-

execution. 

  In  cases  for  which  parallel  proceedings  are  ongoing  in  two  Member  States,  Eurojust  can 
provide  support  in  coordinating  and  helping  to  decide  which  jurisdiction  is  best  placed  to 
prosecute. 

  When  the  execution  of  EAWs  cannot  take  place  on  fundamental  rights  grounds,  further 
reflection at EU level is needed on how to avoid impunity in such cases, not only in relation to 
EAWs for the purpose of prosecution, but also, and more importantly, in relation to EAWs for 
the purpose of the execution of custodial sentences. 

  In relation to the application of the dual criminality check, it should be underlined that this test 
should not be applied in relation to ‘list offences’ and that the question of whether an offence 
falls within this list is determined by the issuing Member State’s legal framework. 

  In complex cases, or cases with parallel proceedings or cases in which requests could not be 
solved through direct contact within a reasonable time, Eurojust can provide assistance with 
requests  for  additional  information,  to  avoid  multiple  requests  being  sent  back  and  forth. 
Eurojust can support authorities in obtaining and providing quickly all relevant information 
to make the correct assessment. 

  Relation  to  other  instruments.  Eurojust’s  casework  revealed  difficulties,  but  also 
opportunities,  in  the  use  of  EAWs  vis-à-vis  other  instruments,  particularly  European 
Investigation Orders and transfers of sentenced persons. The report also highlights challenges 
in the coordinated use of different instruments and/or the choice of alternatives if the EAW is 
not an option. 
  There is a need for further clarification of the interrelationship between the EAW FD and the 
framework decision on the transfer of sentenced persons (FD 909), for example the obligation 
(or not) to send FD 909 certificates in the context of Article 4(6) of the EAW FD, or the margin 
of discretion of the executing authority in relation to the execution of the sentence in the light 
of the obligation of ‘actually enforcing the sentence’. 

  Eurojust  can  assist  national  authorities  with  the  choice of  the  most  appropriate  instrument, 
coordinating the use of different instruments and/or coordination among Member States. 

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  Competing requests for surrender and extradition. Although the EAW FD sets out an explicit 
role for Eurojust, few Member States have implemented this possibility in their national laws 
and  relatively  few  cases  are  brought  to  Eurojust.  Yet  the  report  confirms  that  Eurojust’s 
involvement in such cases can bring many benefits. 
  National  authorities  are  invited  to  bring  more  cases  on  competing  requests  for  surrender 
and/or extradition to Eurojust to ensure that a well-informed decision can be taken and to 
ensure coordination of any required follow-up measures, if needed. 

  Postponement of the actual surrender. The report indicates that, even in cases  in which a 
decision is taken to execute the EAW, many issues can arise before the actual surrender takes 
place. 
  Close cooperation, communication and coordination are extremely important in scenarios in 

which the actual surrender has to be postponed. 

  Speciality  rule.  The  application  of  the  speciality  rule  has  been  rather  cumbersome  in  some 

cases. 
  There is a need for further clarification of the scope of the principle of speciality and a need for 
measures to ensure a correct and more efficient application of the speciality rule in order to 
avoid considerable delays in the criminal proceedings in the issuing Member State. 

A  more  detailed  explanation  of  the  issues,  recommendations and  best  practices  mentioned  above, 
including  several  other  ongoing  issues,  can  be  found  in  this  report.  In  addition,  (anonymised)  case 
examples, presented by Eurojust National Desks, have often been provided to clarify the issues at stake. 

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1. Introduction 

1.1.  Background 

The  framework  decision  on  the  European  Arrest  Warrant  and  the  surrender  procedures  between 
Member States (EAW FD) (1) was adopted in 2002. It was the first instrument in the field of judicial 
cooperation in criminal matters that was based on the principle of mutual recognition and aimed at 
simplifying  and  accelerating  cooperation  between  Member  States.  Over  the  past  17 years,  Member 
States have gained a lot of experience with the EAW FD. 

Questions on the interpretation of the EAW FD have given rise to an increasing number of requests to 
the  Court  of  Justice  of  the  European  Union  (CJEU)  for  preliminary  rulings.  The  CJEU’s  case-law  has 
assisted practitioners in interpreting and applying the EAW FD. Different tools have been developed to 
guide practitioners with the use of the EAW FD, such as the Commission’s handbook on how to issue 
and  execute  a  European  Arrest  Warrant  or  the  European  Union  Agency  for  Criminal  Justice 
Cooperation’s (Eurojust’s) overview of case-law by the CJEU on the EAW. 

In 2020, the European Commission, the European Parliament and the Council of the European Union 
analysed,  from  different  perspectives,  the  functioning  of  the  EAW  FD,  in  view  of  possible  future 
improvements (2). In addition, the ongoing ninth round of mutual evaluations has played an important 
part in identifying the strengths and weaknesses of this instrument. 

1.2.  Scope and purpose of this report 

This report assesses how the EAW FD has been applied in the Member States. The assessment is based 
on the analysis of cases handled by the National Desks at Eurojust from 2017 to 2020. Like Eurojust’s 
previous report on the European Arrest Warrant (EAW), which was published in 2017 (3), this report 
confirms a further increase in cases since 2017 (see figure below), reflecting only a short fall in 2020. 

During 2017–2020, Eurojust registered 2 235 cases in its case management system. Given this large 
number of cases, the National Desks were invited to focus on major issues, practical difficulties and best 
practices that they encountered in their cases in relation to the practical application of the EAW FD. 

A total of 21 National Desks (4) provided input based on a selection of 625 cases, which were the basis 
for  this  report.  Some  of  the  cases  are  highlighted  in  text  boxes  whereas  others  are  grouped  and 
described from a more general perspective throughout the report. The issues identified in the cases 
relate, in particular, to the validity of the EAW, the content and form of the EAW, the grounds for non-
recognition, guarantees, fundamental rights, requests for additional information, the transmission of 
EAWs,  competing  EAWs,  time  limits,  the  postponement  of  the  EAW  and  problems  with  the  actual 
surrender,  the  speciality  rule,  and  the  use  of  the  EAW  vis-à-vis  other  instruments.  The  report  also 
highlights, where relevant, the impact of the CJEU’s case-law in the different fields. In addition to the 

(1) 

Council  Framework  Decision  2002/584/JHA  of  13 June  2002  on  the  European  arrest  warrant  and  the  surrender 
procedures between Member States, OJ L 190, 18.07.2002, amended by Council Framework Decision 2009/909/JHA. 

(2)  Commission’s report on the implementation of the EAW FD, the report of the European Parliament on the implementation 
of  the  EAW  and  the  surrender  procedures  between  Member  States  and  the  Council  conclusions  on  the  EAW  and 
extradition procedures – current challenges and the way forward. 

(3)  Report on Eurojust’s casework in the field of the European Arrest Warrant (2014–2016). 
(4)  AT, BE, BG, CZ, DE, EE, EL, ES, FI, FR, HU, IE, IT, LT, LV, NL, PL, PT, RO, SE and SK. 

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issues identified in Eurojust’s cases, the report also integrates the results of operational topics and other 
relevant strategic projects. The report concludes with some conclusions and recommendations. 

Number of EAW cases registered at Eurojust (2017–2020) 

565

116

11

444

418

68
8

345

658

55
5

600

594

59
4

537

2017

2018

2019

2020

Improve execution of EAWs

Article 16 of the EAW FD (multiple request)

Article 17 of the EAW FD (time limit exceeded)

Total

2. Validity of the European Arrest Warrant 

2.1.  Competent judicial authority 

According to Article 6 of the EAW FD, only judicial authorities are competent to issue and to execute 
EAWs. In recent years, the CJEU has ruled that the term ‘judicial authority’ is not limited to judges or 
courts of a Member State, but includes the authorities participating in the administration of criminal 
justice in that Member State. The CJEU clarified that the term does not cover a police service (5) or a 
ministry of justice (6), but can cover a public prosecutor’s office when it is adopting a decision to issue (7) 
or execute (8) an EAW, provided that it is not exposed to the risk of being subject, directly or indirectly, 

(5) 
(6) 
(7) 

(8) 

Judgment of the CJEU of 10 November 2016, Poltorak, C-452/16 PPU, ECLI:EU:C:2016:858. 
Judgment of the CJEU of 10 November 2016, Kovalkovas, C-477/16 PPU, ECLI:EU:C:2016:861. 
In relation to the concept ‘issuing judicial authority’: judgments of the CJEU of 27 May 2019, OG and PI, C-508/18 and C-82/19 PPU, 
ECLI:EU:C:2019:456, and PF, C-509/18, ECLI:EU:C:2019:457; judgments of the CJEU of 12 December 2019, JR and YC, C-566/19 PPU and 
C-626/19 PPU, ECLI:EU:C:2019:1077, XD, C-625/19 PPU, ECLI:EU:C:2019:1078, and ZB, C-627/19 PPU, ECLI:EU:C:2019:1079. 
Judgment of the CJEU of 24 November 2020, AZ, C-510/19, ECLI:EU:C:2020:953. In this judgment, the CJEU transposed its case-law on 

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to directions or instructions in a specific case from the executive, such as a minister for justice. The CJEU 
did not only rule on their independence, but also set certain requirements related to effective judicial 
protection when a public prosecutor is involved as the competent issuing or executing judicial authority. 
Eurojust assisted national authorities in clarifying questions and in finding solutions when invalid EAWs 
(issued by public prosecutors not meeting the requirements of the CJEU’s case-law) had to be replaced 
with valid EAWs (issued by courts). 

  Compilation on the concept of ‘judicial authority’ 

The abovementioned case-law raised many questions regarding the legal position of public prosecutors 
in  some  Member  States.  Therefore,  Eurojust  and  the  European  Judicial  Network  (EJN)  worked  on  a 
questionnaire and the compilation of replies from the national authorities of the Member States, with 
the aim of assisting practitioners with the application of the EAW FD in this field. Following further 
developments in the CJEU’s case-law and in the Member States, including changes in national legislation, 
the compilation has been updated regularly (9). The questionnaire and compilation on requirements for 
issuing  and  executing  judicial  authorities  in  EAW  proceedings  pursuant  to  the  CJEU’s  case-law 
(hereafter referred to as the compilation) includes a brief summary of the most relevant judgments that 
the CJEU has delivered on this issue. It compiles the replies received from the EU Member States (in 
relation to the application of the EAW FD), but also from Iceland and Norway (in relation to the relevant 
corresponding  provisions  of  the Surrender  Agreement  of  the  EU  with  Iceland  and  Norway),  and  the 
United Kingdom (in relation to the relevant corresponding provisions of the Trade and Cooperation 
Agreement) (10). The questionnaire addresses the following issues: 

  which are the issuing and executing judicial authorities under the EAW FD and whether public 

prosecutors can issue/execute an EAW; 

  what  authority  ultimately  takes  the  decision  to  issue/execute  an  EAW  (including  relevant 

information on ex officio review and/or endorsement by a court); 

  whether  national  law  guarantees  the  independence  of  the  public  prosecutors  from  the 

executive; 

  whether,  in  those  countries  where  a  public  prosecutor  can  issue/execute  an  EAW,  such  a 
decision  can  be  subject  to  court  proceedings  that  meet  in  full  the  requirements  inherent  in 
effective judicial protection; 

  what  legal  and/or  practical  measures  have  been  taken  to  address  the  issue  in  the  countries 

affected by the CJEU’s judgments; 

  any  other  additional  information,  including  recent  developments  in  national  law  and/or 
certificates issued to ensure compliance with the requirements set by the CJEU’s case-law. 

the concept of ‘issuing judicial authority’ in relation to public prosecutors (see previous footnote) to the concept of ‘executing judicial 
authority’ within the meaning of Articles 6(2), 27(3)(g) and 27(4) of the EAW FD. 
The most recent version, at the time of writing of this report, was published as Council document 5607/21 and is retrievable at Eurojust’s 
website here. 

(9) 

(10)  See, in relation to the Trade and Cooperation Agreement, Eurojust's note on judicial cooperation in criminal matters between the EU 

and the United Kingdom from 1 January 2021. 

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  Questions on the validity of European Arrest Warrants issued by public prosecutors 

In the aftermath of the OG and PI judgment and the PF judgment (11), national authorities from different 
Member States requested urgent support from Eurojust in relation to pending EAWs issued by a public 
prosecutor when questions arose about whether these public prosecutors met the requirements set by 
the case-law. 

Executing authorities requested, via Eurojust, assurances from the issuing Member State regarding the 
independence  of  the  public  prosecutor  and/or  information  on  the  requirements  of  effective  judicial 
protection in the issuing Member State. The abovementioned compilation often served as a first point 
of reference in concrete cases in which the executing authorities had questions in relation to the legal 
position of public prosecutors involved in taking decisions on the issuance or execution of EAWs. For 
requests  on  additional  information,  Eurojust  facilitated  the  cooperation  between  the  authorities 
involved, participated in the discussion on which information was needed and speeded up the delivery 
of that information, within very tight deadlines. 

In a few cases, EAWs were not executed because the executing authority concluded, on the basis of the 
information  available  to  it,  that  the  prosecutor  in  the  issuing  Member  State  did  not  fall  within  the 
concept of ‘issuing judicial authority’ and that the EAW issued by them was invalid, as it did not fulfil 
the requirements inherent in Articles 6(1) and 8(1) of the EAW FD. 

  Questions on effective judicial protection 

In  the  period  between  the  OG  and  PI  and  PF  judgments  (May  2019)  and  the  JR  and  YC,  XD  and  ZB 
judgments  (December  2019) (12),  the  primary  focus  in  some  of  Eurojust’s  cases  was  whether  a 
prosecutorial decision to issue an EAW was capable of being the subject of court proceedings meeting 
the  full  requirements  inherent  in  effective  judicial  protection  as  required  by  the  CJEU’s  case-law. 
Executing authorities sent, in some cases, detailed lists of questions to several issuing Member States to 
scrutinise their systems of judicial protection. 

Depending on the outcome of the assessment, executing courts either granted surrender or concluded 
that  the  EAWs  were  invalid  and  refused  to  execute  them.  In  several  cases,  courts  suspended  their 
decisions, to wait for an upcoming judgment of the CJEU. When, many months later, the CJEU clarified 
that a separate legal remedy was only one of the possible ways to ensure a sufficient level of judicial 
protection in EAW procedures, the executing authority concluded, in some of the cases, that the issuing 
authority fulfilled all the requirements set by the CJEU’s case-law and that the EAWs were valid all along 
and should thus be executed. 

Validation of invalid European Arrest Warrants 

National  authorities  addressed  Eurojust  in  relation  to  EAWs  that might  be  invalid,  that  is, issued  by 
public prosecutors allegedly not meeting the requirements set by the CJEU’s case-law, to remedy them 
as  soon  as  possible.  Issuing  authorities  requested  information  on  the  state  of  play  of  the  EAW 
proceedings and advised that, if a final decision on the execution of the EAW or the actual surrender 

(11)  See footnote 7. 
(12)  See footnote 7. 

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was still pending, the issuing court would issue ‘repairing’ EAWs to convert the invalid EAWs into valid 
ones. Often this was due within very tight deadlines in view of upcoming court hearings, limits for pre-
trial  detention  or  planned  surrenders.  Issuing  and/or  executing  authorities  contacted  Eurojust  to 
facilitate  and  speed  up  this  validation  process  by  ensuring  smooth  contact  between  the  national 
authorities. 

Failure to obtain the reissued EAW and its accompanying translation by the set deadline could have led 
to the requested person’s release. Fortunately, EAWs were mostly remedied in time and successfully 
executed.  Yet,  in  a  few  cases,  executing  authorities  faced  difficulties  when  some  issuing  courts  in  a 
Member State were not willing to reissue the EAW, as they did not consider themselves competent to 
do so under their national law. On appeal, most of these decisions were overturned by appeal courts, 
which validated the EAWs, and surrender could take place. 

Courts in an issuing Member State declaring themselves incompetent to issue European Arrest 
Warrants 
A  requested  person –  suspected  of  six  offences  of  stabbing  someone  with  a  knife,  two  violent 
robberies, witness intimidation and threats to kill one of the victims – was contesting his surrender 
on the ground that the EAW was invalid. He argued that, under the issuing Member State’s law, local 
courts did not have the power to issue EAWs, and the notification made under Article 6 of the EAW 
FD did not explicitly refer to ‘local courts’. As the outcome of this case was likely to affect many other 
EAWs, Eurojust’s assistance was requested. The National Desk of the executing Member State was 
aware that this point had been raised in a number of cases in the issuing Member State. On at least 
three occasions, the local court had considered itself incompetent and had refused to issue an EAW, 
whereas in other cases higher courts had overturned such decisions, concluding that the local courts 
were  competent  to  issue  EAWs.  Overall,  there  were  conflicting  decisions  in  the  issuing  Member 
State,  which  created  confusion  and  legal  uncertainty  for  the  executing  court.  Therefore,  the 
executing authority was seeking, from a more generic perspective, a response from the Ministry of 
Justice  or  other  appropriate  body  that  could  be  served  in  all  relevant  proceedings.  In  essence,  it 
requested  clarification  of  whether  EAWs  issued  by  courts  in  the  issuing  Member  State  were 
permitted by law and were therefore valid. In order to obtain a formal reply, Eurojust facilitated 
contact  between  the  executing  authority  and  the  issuing  Member  State’s  Ministry  of  Justice.  The 
ministry  clarified,  in  general  terms,  without  reference  to  any  specific  case,  that,  since  the  CJEU’s 
rulings,  only  courts  were  competent  to  issue  EAWs,  without  a  need  for  a  change  in  the  legal 
framework,  and  that  the  notification  under  Article 6(1)  of  the  EAW  FD  would  be  updated 
accordingly. It was also clarified that, while courts are competent to issue EAWs, not every court in 
every  case  can  do  this  (e.g.  differences  between  EAWs  for  prosecution  and  EAWs  for  execution 
purposes). 

The act of withdrawing invalid EAWs and replacing them with valid EAWs sometimes led to confusion 
or misunderstandings. In one case, the executing authority had misunderstood this ‘substitution’ and 
assumed that the issuing authority wanted to retract the old EAW. The issuing authorities asked for the 
support of their National Desks at Eurojust to clarify the situation. By an urgent note, transmitted via 
Eurojust, the issuing authorities informed the executing authorities that the EAWs were still valid and 
asked whether the surrender procedure could continue based on the new EAWs. The National Desks 
ensured urgent transmission of the new EAWs and translations of them. 

  Questions on additional information provided by public prosecutors 

In  some  cases,  the  validity  of  the  EAW  was  questioned  not  because  of  the  EAW  itself,  but  because 
additional information related to the EAW had been provided by a public prosecutor not meeting the 

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CJEU’s requirements. The question raised was whether, in such a situation, this additional information 
needed to be validated by the court in the same way as the EAW. 

Additional information provided by a public prosecutor 
An  issuing  authority  had  received  information  that  the  requested  person’s  lawyer  had  made  a 
complaint before the court that additional information regarding the date and the time of the crimes 
had been provided to the executing authority by a public prosecutor and was not endorsed by a court. 
The  lawyer  argued  that  a  certification  of  that  information  by  the  court  and  transmitted  in  the 
executing Member State’s language was required. The issuing authority disagreed, arguing that the 
additional information, unlike the EAW, is not a legal act, but serves only to clarify the scope of the 
EAW  and  can  therefore  be  provided  by  the  public  prosecutor.  The  district  court  in  the  executing 
Member State followed the lawyer’s argument and refused the surrender. The public prosecutor filed 
an appeal against this decision. During a level II meeting at Eurojust, the respective National Desks 
discussed it and concluded that, in order to avoid the risk of a refusal in the appeal proceedings, it 
would be best if the issuing authorities provided a document that clarified that the court confirmed 
the additional information on the EAW that had been provided by the public prosecutor. This was 
submitted to the appeal court, which subsequently executed the EAW and surrendered the person. 

Additional ‘crucial’ information provided by a public prosecutor 
An executing authority had noted that, based on the information included in two EAWs, the offences 
were statute barred under the executing Member State’s law, which constituted a mandatory ground 
for refusal. However, the executing authority requested additional information, which was provided 
by the public prosecutor and revealed that the crimes outlined in the EAWs were not statute barred. 
In the light of that information, the court of first instance in the executing Member State decided to 
execute both EAWs. The requested person appealed and the case was brought before the  supreme 
court as an appellate court. The supreme court concluded that additional information that had been 
provided was crucial for the decision on the execution of the EAWs. The supreme court wondered 
whether, in a situation in which the additional information is crucial for the execution of the EAW, this 
information  needs  to  be  validated  by  the  court  in  the  same  way  as  the  EAW.  The  supreme  court 
referred this question to the CJEU, where the case is currently pending (13). 

2.2.  Content and form 

Executing authorities often argued that EAWs were filled in inaccurately or that some information was 
missing or contradictory. All the elements mentioned in Article 8 of the EAW FD have been subject to 
requests for additional information in Eurojust’s casework. 

Identity of the requested person 

Generally, EAWs included the identity and nationality of  the requested person (Article 8(1)(a) of the 
EAW  FD).  However,  executing  authorities  sometimes  requested  the  assistance  of  Eurojust  to  get  in 
contact with the issuing authority to obtain additional information to confirm the requested person’s 
identity by means of photographs, fingerprints, DNA profile or similar evidence. The reason for these 
requests was that the requested persons, whose surrender was sought for very serious offences, denied 

(13)  Case C-78/20, Generálna prokuratura Slovenskej republiky. The question referred is ‘Must the requirements which an European arrest 
warrant  must  satisfy  as  a  judicial  decision  under  Articles 1(1)  and  6(1)  of  Framework  Decision  2002/584  be  applied  also  to 
supplementary information provided pursuant to Article 15(2) thereof, where, for the purposes of the decision of the executing judicial 
authority, it substantially supplements or changes the content of the arrest warrant originally issued?’ 

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being the persons targeted by the issuing authorities. Each claimed that someone had used their identity 
and committed the offences. However, after the transmission of the additional information via Eurojust, 
it was confirmed in all these cases that the arrested persons were those who were sought by the issuing 
authorities.  For  instance, additional  information  channelled  via  Eurojust –  linking  the  suspect  to  the 
crime  scene  by  DNA  evidence  that  was  discovered  on  the  crime  scene –  led  to  successful  EAW 
proceedings  and  the  surrender  of  the  requested  person.  Similarly,  in  a  case  in  which  the  requested 
person  had  claimed  that  they  were  in  prison  at  the  time  that  the  offences  had  been  committed,  the 
competent authorities provided certificates with the precise dates of detention of the requested person, 
clarifying that these dates did not correspond to the time when the offences had been committed. This 
information enabled the surrender of the requested person for serious offences, including rape, sexual 
exploitation of a minor and child pornography. 

  Contact details 

Occasionally, the executing judicial authorities urgently requested Eurojust’s support when the contact 
details  of  the  issuing  judicial  authority  (Article 8(1)(b)  of  the EAW  FD) were  missing  or  incomplete. 
Eurojust was then consulted to ensure smooth and fast communication. 

  National arrest warrant 

Since the CJEU’s Bob-Dogi judgment (14), it seems that executing authorities have become more rigorous 
in checking compliance with the requirement that an EAW must contain evidence of  ‘an enforceable 
judgment,  an  arrest  warrant  or  any  other  enforceable  judicial  decision  having  the  same  effect’ 
(Article 8(1)(c) of the EAW FD). Executing authorities requested Eurojust’s assistance in relation to the 
following: 

  checking the existence of a national decision on which the EAW was based (which was mostly 

available) and swiftly obtaining information on related questions; 

  clarifying misunderstandings or incorrect information in the EAW, for instance a wrong date of 
issuance  of  the  national  arrest  warrant  or  a  statement  that  the  EAW  was  based  on  an 
‘international’ arrest warrant and/or an indication ‘that the national arrest warrant would be 
notified  to  the  requested  person  upon  arrival’  when  further  clarification  revealed  that  the 
national arrest warrant already existed; 

  clarifying  inconsistencies  or  discrepancies  between  the  offences  mentioned  in  the  national 

arrest warrant and the EAW; 

  different views on the interpretation of the concept ‘any other enforceable decision having the 

same effect’. 

House arrest and the concept of ‘any other enforceable decision having the same effect’ 
Following a requested person’s arrest in the executing Member State in a case related to trafficking in 
cultural goods, the national arrest warrant in the issuing Member State was converted into a judicial 
decision  ordering  house  arrest  while  the  surrender  procedure  was  still  pending.  The  executing 
authority was informed thereof and considered that the conversion of a (national) arrest warrant into 
a house arrest had no legal basis in the EAW FD and should therefore be considered as a withdrawal 
of the national arrest warrant. Consequently, the executing authority concluded that there were no 

(14) 

Judgment of the CJEU of 1 June 2016, Bob-Dogi, C-241/15, ECLI:EU:C:2016:385. 

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grounds for detention and released the suspect. As it was not possible to enforce the house arrest in 
the  executing  Member  State,  the  issuing  authorities  withdrew  the  house  arrest  order  and, 
consequently, the EAW. It should be noted that, under the law of the issuing Member State, a house 
arrest  order  amounts  to  a  detention  order.  The  case  thus  reveals  problems  related  to  a  lack  of 
understanding of the concept of ‘detention order’ in the different national legislations. 

National Desks at Eurojust assisted the executing authorities with swiftly obtaining the national arrest 
warrant  with  the  correct information  from  the issuing  authorities,  together  with a  brief  cover  letter 
rectifying the mistake in one of the official languages of the executing Member State. In very few cases, 
issues related to the national decision led to refusals or withdrawals of the EAW. 

  Offence(s) and description of the circumstances 

In many cases, executing judicial authorities requested additional information concerning the nature 
and  legal  classification  of  the  offence  (Article 8(1)(d)  of  the  EAW  FD)  and/or  the  description  of  the 
circumstances in which the offence was committed, including the time, place and degree of participation 
in the offence by the requested person (Article 8(1)(e) of the EAW FD). 

Corrections  were  needed  whenever  the  executing  authority  discovered  that  the  original  EAW  or  its 
translation included wrong information such as: 

  a wrong date of when the offences had been committed; 
  reference to a law that had been abrogated several years earlier; 
  overlap between the time when the requested person had allegedly committed the crimes and 

when the suspect was in pre-trial detention in the issuing Member State; 

  inconsistency between the offences mentioned in the original EAW and in the translation; 
  discrepancy between the number of offences mentioned in the description and the number of 

list offences that were ticked. 

Issuing  authorities  prepared  and  transmitted,  via  Eurojust,  additional  notes  to  address  identified 
mistakes,  inconsistencies  or  doubts  and/or  sent  the  relevant  legal  provisions  or  legal  texts  and/or 
judgments or national arrest warrants, which further clarified and described the committed offences. 
In  various  cases,  the  exchange  of  additional  information  led  to  the  withdrawal  of  the  incorrect  or 
incomplete EAWs and the issuing of new, adjusted EAWs. In most cases, the additional information was 
expediently transmitted via Eurojust and the surrender took place shortly after. 

Sometimes  issuing  authorities  requested  last-minute  changes,  particularly  in  view  of  recent 
developments in the national investigation, which required extending the scope of the EAW by adding 
additional  offences.  After  modifying  the  scope  of  the  original  EAW,  issuing  authorities  contacted 
Eurojust.  They  wanted  to  find  out  whether  the  executing  authority  could still  consider  the  modified 
EAW or whether they should request a change to the offences after the surrender under the application 
of Article 27 of the EAW FD (see Section 9). 

Extending the scope of the surrender 
A requested person was arrested in the executing Member State based on an EAW for the purpose of 
prosecution for illegal restraint. The ongoing investigation in the issuing Member State showed new 
elements and the requested person also became the suspect in a murder (with robbery). Therefore, 
the issuing authority issued an additional EAW to also prosecute the requested person for murder. As 

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the  EAW  proceedings  in  the  executing  Member  State  were  already  well  advanced,  the  issuing 
authorities requested Eurojust to urgently contact the executing authority to check if the surrender 
could be granted for the offences mentioned in both EAWs. Through immediate action of the National 
Desks, the executing court was informed just in time, right before the EAW hearing started, and agreed 
to surrender the requested person for the acts included in both EAWs. 

EAWs sometimes included too little information, such as one line on the time, place (city) and offence, 
and  without  any  concrete  link  between  the  requested  person  and  the  offence(s).  Despite  repeated 
reminders, the executing authority had often not received any further feedback. The issuing authorities 
were then requested, via Eurojust, to complete Section (e) of the EAW form in respect of each of the 
offences of which the person was suspected or convicted, to provide a more detailed description of these 
acts and to link them to the requested person. 

Clarifying the scope of the European Arrest Warrant 
An executing authority sought clarification about the exact offences committed by the suspect. It was 
unclear whether the EAW concerned computer-related fraud, swindling or both. The EAW mentioned 
three offences, but it was unclear whether it constituted three incidents of selling programs to three 
different  persons  and/or  whether  three  different  laws  were  contravened  with  one  act.  As  the 
executing authority had not received a reply from its issuing counterpart, it sent a request to Eurojust 
to facilitate the communication and clarify the scope of the EAW. The issuing authority was requested 
to describe each of the three offences, the victims and the legal acts that constituted the offence. A 
new EAW was issued that brought clarification. 

Clarifying the scope of the European Arrest Warrant 
An executing court needed a more precise and detailed explanation regarding the place where a fraud-
related offence had been committed, the time (in particular whether the criminal activities were still 
ongoing) and how the crime had been committed (modus operandi). The National Desks concerned 
had  long  conversations,  as  the  scope  of  the  EAW  was  not  clear.  The  issuing  authorities  provided 
additional information, describing the role of the requested person very well, indicating that he had 
been active continuously from 2016 until that time, so that there was no risk of any offences being 
time barred. In addition, a compilation of victims with the exact time when and the place where the 
damage had occurred was provided. All the additional information was included in a note, translated 
into the required language and accompanied with the translated national arrest warrant. 

EAWs sometimes led to excessive requests for clarification. In several cases, executing authorities 
from certain Member States requested specific elements of evidence available in the criminal file of the 
issuing Member State, such as letters and minutes of conversations through Skype in a case concerning 
parental kidnapping, or the detailed content of wiretapped conversations in a criminal investigation 
into an organised criminal group suspected of drug trafficking. De facto, such requests amounted to a 
review of the merits of the case, not really in line with the mutual recognition principle. This practice 
was already subject to criticism in the report on the fourth round of mutual evaluations. In a number of 
cases,  the  executing  authorities  themselves  acknowledged  systemic  difficulties  regarding  certain 
aspects of their national law, but also noted attempts to improve the system through national case-law 
developments. 

Issuing authority complying with excessive requests 
An  executing  authority  that  had  issued  an  EAW  for  a  criminal  prosecution  for  theft  requested  a 
standard package of additional documents to the EAW. This included the national arrest warrant, the 
accusation act, the relevant legal act(s) and, in addition, a statement of the facts of the EAW, the factual 
evidence,  the  serious  indications  that  the  person was  guilty  and  a  formal  letter  with  the  evidence 

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supporting  the  accusation  (e.g.  fingerprints,  DNA,  telephone  tapping,  co-defendant  or  witness 
statements, video surveillance recording). This practice, which was not in line with the EAW FD, was 
very  time-consuming  and  costly,  as  all  these  documents  had  to  be  translated  into  the  executing 
Member State’s language. Despite lengthy discussions via Eurojust on the justified need for such a 
request,  the  issuing  authority  in  the  end  provided  the  requested  additional  information  and  the 
requested person was surrendered. 

Limits  to  an  executing  authority’s  power  to  assess  the  evidence  under  the  European  Arrest 
Warrant regime 
In  a  case  involving  drug  trafficking  and  participation  in  a  criminal  organisation,  the  court  of  first 
instance had rejected the EAW because the issuing authority had not submitted sufficiently detailed 
evidence.  However,  the  public  prosecutor  appealed  against  that  decision  and  the  supreme  court 
dismissed the first court’s ruling and granted the surrender. The supreme court underlined that it was 
not for the executing authority to assess the evidence available in the issuing Member State’s file, and 
thus rightly acknowledged the limits of control in the hands of the executing judicial authority in this 
regard. 

Sentence 

Several  cases  involved  questions  on  the  imposed  penalty  (if  the  EAW  was  for  the  purpose  of  the 
execution of a custodial sentence) or the scale of penalties for the offence under the law of the issuing 
Member  State  (if  the  EAW  was  for  the  purpose  of  prosecution)  (Article 8(1)(f)  of  the  EAW  FD). 
Executing authorities asked the issuing authorities to clarify or provide additional information related 
to different aspects of the sentence, such as the following. 

  The exact duration of a sentence (if already imposed) or the maximum custodial sentence(s) 
that the requested person could incur for the committed offence(s), when information provided 
in Section (c) was unclear or insufficient. 

  A  copy  of  the  conviction  sentence  mentioned  in  the  EAW,  for  instance  when  the  executing 
authority had to decide on a legal remedy against the first-instance decision that had granted 
the surrender. 

  The final nature of the sentence, whether an appeal had been lodged and the status of the appeal. 
  The  purpose  of  the  EAW,  when  it  was  unclear  whether  the  EAW  had  been  issued  for  the 
execution of a custodial sentence (and, if so, its duration) or for the purpose of prosecution. 
  Changes in the purpose of the EAW during the proceedings: a new EAW was delivered with the 
same reference number and there was a need to clarify whether the judgment mentioned in the 
new EAW was final, whether it was for the purpose of the execution of a custodial sentence and 
whether the first EAW had been withdrawn. 

  The time spent in detention, particularly if the requested person declared that they had served 
the totality or part of the sentence, as opposed to the information on the remainder of sentences 
specified in the EAW. Eurojust assisted with the clarification of the length of the sentence still to 
be served by the individual. 

  Time limitation for the execution of a custodial sentence to check the validity of the EAW or to 
consider when deciding on a possible decision to postpone the surrender, for example if the 
requested person was under custody in the executing Member State for other offences. 

  A copy of the judicial decision or the national rules on converting a non-custodial sentence into 
a  custodial  sentence,  when  the  EAW  mentioned  an  alternative  sanction  (e.g.  a  community 

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service)  or  a  financial  penalty  and  it  was  not  clear  how  these  sentences  were/would  be 
converted into a custodial sentence. 

  Adaptation of merged sentences in line with the principle of speciality (see also Section 9) in the 
case  of  a  partial  execution  of  an  EAW  when  the  executing  authority  decided  to  grant  the 
surrender in relation to some of the offences and to refuse it in relation to others. 

Adaptation of a merged sentence after a partial execution of a European Arrest Warrant 
An executing authority had only partially executed the EAW and wanted to be sure that the merged 
sentence would be adapted, as it had received information from the issuing court that the cumulative 
sentence  was final,  binding  and  enforceable.  A  coordination  meeting  was organised  to  discuss  the 
surrender of the requested person with full respect for the principle of speciality. The coordination 
meeting helped to clarify, also in view of other relevant future cases, the legal basis in the issuing 
Member State’s legal system to disaggregate and adapt a cumulative sentence in cases  in which an 
executing authority allowed only a partial surrender. The issuing authority agreed to send a letter 
signed by its Ministry of Justice confirming that the rule of speciality, as enshrined in the EAW FD, was 
transposed into the national law. The letter also explained the procedure by which the speciality rule 
would  be  observed  once  the  requested  person  was  surrendered  to  the  issuing  Member  State. 
Reference was also made to relevant case-law by a supreme court, which reconfirmed that the rule of 
speciality would be observed in the case of a decision of partial surrender. However, before a final 
decision on the actual surrender was taken, the requested person returned voluntarily to the issuing 
Member  State.  Therefore,  there  was  no  need  any  more  to  comply  with  the  speciality  rule  and  the 
issuing Member State could impose the merged sentence in its entirety. 

Signature 

In a few cases, the issuing judicial authority had not signed the EAW. Eurojust’s involvement was needed 
owing  to  the  urgency  of  the  case.  Eurojust  facilitated  the  transmission  of  duly  signed  EAWs  by  the 
required deadline. 

Translations 

In many cases, issues arose in relation to the required translations. Often Eurojust intervened to speed 
up  the  transmission  of  pending  translations.  In  several  cases,  executing  authorities  needed  very 
urgently – often within a few hours or days – the translation of the EAW, which they had not received, 
sometimes despite repeated reminders to the issuing Member State. In one case, the requested person 
had been arrested at the airport based on a Schengen information system (SIS) alert and the executing 
authority needed the translation of the EAW urgently. The issuing authorities quickly transmitted the 
requested translation to the executing authorities via Eurojust. In most cases, the very tight deadlines 
were  met  and  the  translation  could  be  provided  in  time,  thanks  †o  close  cooperation  between  the 
National Desks involved. Only in some exceptional cases was it not feasible to have the EAW translated 
within the period set by the national law. 

In some cases, translation issues were raised by the lawyer of the requested person, who argued that 
the conformity of the translation of the EAW with the original EAW could not be established, as the 
translation received so far was not an authorised/certified one. Eurojust facilitated obtaining a certified 
translation. Additional issues arose in other cases when, at a given time, the issuing authority started to 
require  that  any  requests  for  additional  information  were  to  be  sent  in  the  language  of  the  issuing 
Member State. 

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Another common problem was the overall quality of the translation of the EAWs or of the additional 
information requested or provided. There were translation errors, which made it difficult to understand 
the  information  included  therein.  Therefore,  new  translations  had  to  be  provided.  In  some  cases, 
translations provided by the Eurojust National Desk member were enough to clarify the doubts that had 
arisen. 

Form 

A national authority requested clarification from Eurojust further to a case in which it had encountered 
issues with a judge who had refused to fill in the EAW form. Instead, the judge had issued a court order 
in which he had confirmed the national arrest warrant and had requested an international search for 
the relevant person. The national authority wanted to know whether authorities in other Member States 
would start an execution procedure and be able to execute such a request without the EAW form. The 
reply provided to this authority was that a person could be arrested based on a SIS alert only, but that 
the EAW had to follow directly. The lack of the EAW form could be a reason to reject the request. 

3. Grounds  for  non-execution,  guarantees  and  fundamental 

rights 

3.1.  Grounds for non-execution 

Eurojust has often assisted judicial authorities when grounds for non-execution were under discussion 
(see Sections 3.1.1–3.1.7). A recurrent issue in relation to many grounds for non-execution is a too rigid 
interpretation of these grounds. This applies particularly in relation to ‘optional’ grounds, which were 
introduced in some national legal orders as ‘mandatory’ grounds, often leaving executing authorities 
with little to no margin of discretion. Such an approach is clearly not in line with the CJEU’s case-law, in 
which  the  CJEU  has  underlined  that,  in  relation  to  the  grounds  included  in  Article 4  of  the  EAW  FD 
(‘optional’  grounds  for  non-execution),  the  executing  judicial  authority  should  have  a  margin  of 
discretion, allowing them to make an assessment in a specific case, taking into consideration all relevant 
factors (15). 

  Ne bis in idem 

Executing authorities raised questions about whether the requested person had been ‘finally judged’ 
by a Member State in respect of the ‘same act’ as that on which the EAW was based (Article 3(2) of the 
EAW FD). 

In  several  cases,  involving  migrant  smuggling,  drug  trafficking  and  organised  criminal  groups, 
requested persons were arrested based on an EAW and then claimed that they had already served a 
custodial  sentence  (bis)  for  the  same  acts  (idem)  in  another  Member  State.  The  executing  authority 

(15) 

Judgment of the CJEU of 29 April 2021, X (Mandat d’arrêt européen – Ne bis in idem), C-665/20 PPU, ECLI:EU:C:2021:339, paras 43-44 
and the case-law mentioned there. 

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approached Eurojust to get in contact with the authorities of the Member State concerned to check when 
and on what basis the requested person had been in detention in that Member State. Eurojust’s role was 
crucial to obtaining the relevant information. Often incomplete or inaccurate information was available 
or authorities had simply not replied or not provided any translations of the requested information. 
Eurojust assisted in speeding up and transmitting the relevant information. 

Assessments were then made and decisions taken based on the information transmitted via Eurojust, 
in the light of the relevant CJEU case-law (16). In many cases, it was clarified that the requested person 
had been detained for similar – but not the same – offences, so there was no bis in idem scenario and 
surrender  could  be  granted.  However,  in  some  cases  the  consultation  process  revealed  that  the 
requested person’s claim was accurate and that the EAW was wrongly still ‘active’ in the SIS II and/or 
INTERPOL databases. Following Eurojust’s intervention, competent authorities withdrew the EAW. 

Ne bis in idem situation detected and remedied via Eurojust 
Upon  receiving  a  request  for  assistance  concerning  EAW  proceedings,  the  National  Desk  of  an 
executing Member State realised that the same EAW (same person and same offence) had already 
been executed in the past. The National Desk acted immediately by informing the National Desk of the 
issuing Member State that its national authorities had most likely omitted to delete the EAW from 
SIS II, as the same person had been arrested and surrendered before based on that same EAW. The 
National Desk of the issuing Member State swiftly verified and confirmed this information with its 
national authority. The EAW was then quickly withdrawn and the arrested person released. Needless 
to say, in such cases an urgent reaction is vital. 

National  authorities  also  approached  Eurojust  with  questions  about  the  extent  to  which  a  public 
prosecutor’s decision to dismiss proceedings could trigger the application of the principle of ne bis 
in idem under the EAW FD (Article 4(3) of the EAW FD). In the Kossowski judgment, the CJEU ruled that 
the principle of ne bis in idem must be interpreted as meaning that a decision of the public prosecutor 
terminating criminal proceedings and finally closing the investigation procedure against a person, albeit 
with  the  possibility  of  its  being  reopened  or  annulled,  without  any  penalties  having  been  imposed, 
cannot  be  characterised  as  a  ‘final  decision’  when  it  is  clear  from  the  statement  of  reasons  for  that 
decision that the procedure was closed without a detailed investigation having been carried out (17). In 
a case in which the investigation could be reopened, but the public prosecutor had already carried out 
a detailed examination, some questions were raised on the application of the principle of ne bis in idem. 

Impact of a public prosecutor’s decision to dismiss a case 
In a case related to trafficking in human beings involving six victims who had been recruited and 
trafficked as objects of labour exploitation, an executing authority refused to surrender the main 
suspect on ne bis in idem grounds. The executing authority explained that a public prosecutor in the 
executing  Member  State  had  also  looked  into  this  case  and  had  decided  to  dismiss  the  case  and 
terminate the prosecution. The issuing authority brought the case to Eurojust and questioned the 
applicability of these grounds, including in the light of the CJEU’s case-law. After further discussions, 
authorities agreed that the Kossowski judgment could not be applied by analogy, as, in the present 

(16)  Eurojust overview of the case-law of the CJEU on the principle of ne bis in idem (updated April 2020). 
(17) 

Judgment of the CJEU of 29 June 2016, Kossowski, C-486/14, ECLI:EU:C:2016:483. 

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case, a detailed investigation had been carried out in the executing Member State. A coordination 
meeting was organised to discuss the matter in depth; following the discussions and the exchange 
of  information,  the  executing  authority  agreed  to  assess  a  possible  reopening  of  the  case  in  the 
executing  Member  State.  However,  later  on,  while  noting  that  no  sustainable  elements  were 
identified that could prove that the facts had taken place, the executing authority decided not to 
reopen the case. As it was very likely that a new EAW would again be refused on the same grounds, 
the case was closed. 

The enforcement condition has also been subject to discussions in Eurojust’s casework. In the Spasic 
judgment, the CJEU held that, when a custodial sentence and a fine were imposed as principal penalties, 
the payment of the fine alone was not sufficient to consider that the penalty had been enforced or was 
in  the  process  of  being  enforced  within  the  meaning  of  the  Convention  Implementing  the  Schengen 
Agreement (18).  The  CJEU  has  not  yet  addressed  whether  the  same  applies  when  part  of  a  custodial 
case  handled  by  Eurojust. 
sentence  has  been 

executed,  which 

occurred 

in 

a 

The principle of ne bis in idem and the enforcement condition 
An  authority  in  a  Member  State  sent  an  extradition  request –  as  the  case  did  not  fall  within  the 
temporal  scope  of  the  EAW  FD –  for  the  execution  of  a  9-year  custodial  sentence.  The  requested 
Member  State  refused  to  execute  it  because  not  all  requested  supporting  documents  had  been 
provided.  Subsequently,  the  competent  authorities  in  the  executing  state  started  their  own 
proceedings.  They  requested  assistance  from  Eurojust  in  obtaining  feedback  from  the  requesting 
Member State about whether the requested person had already served a number of years of the 9-
year custodial sentence and whether there were documents available from the proceedings such as 
witness hearings, police reports, protocol of the trial, etc. The competent authorities also discussed 
the  possible  application  of  the  principle  of  ne  bis  in  idem  in  the  light  of  the  CJEU’s  case-law.  They 
acknowledged that the case was slightly different from the abovementioned Spasic judgment. While 
Spasic concerned a custodial sentence and a fine, and Spasic had not yet begun to serve the custodial 
sentence,  in  the  present  case  a  part  of  the  sentence  was  served,  namely  3 years  out  of  a  9-year 
sentence. Yet the executing authority concluded that the sentence imposed by the issuing Member 
State had not been (fully) enforced and was also not currently being enforced; therefore, it decided to 
continue its proceedings. 

Territoriality grounds 

In  cases  involving  offences  that  were  not –  or  not  fully –  committed  in  the  territory  of  the  issuing 
Member State, refusal on the grounds of territoriality (Article 4(7) of the EAW FD) sometimes came into 
play. Such cases often involved parallel proceedings in the issuing and executing Member States and/or 
the competent authorities of the executing Member State being under a rigid obligation to refuse the 
execution of the EAW when part of the crime had been committed on their territory. 

In  relation  to  cases  in  which  parallel  proceedings  were  ongoing  in  the  issuing  and  executing 
Member  States,  coordination  meetings  were  often  organised  at  Eurojust  to  exchange  all  relevant 

(18) 

Judgment of the CJEU of 27 May 2014, Spasic, C-129/14 PPU, ECLI:EU:C:2014:586. 

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information and to discuss the jurisdiction issue in depth. Not only territoriality, but also other relevant 
factors,  such  as  the  availability  of  evidence,  the  interest/protection  of  victims,  the  protection  of 
witnesses,  the  presence  of  co-suspects,  the  stage of  proceedings  and  the  other  factors mentioned  in 
guidelines for deciding ‘which jurisdiction should prosecute?’ (revised 2016), would be looked at and 
taken into consideration. The possible application of the ‘territoriality ground’ was then often discussed 
in this context long before an EAW was issued. At coordination meetings, competent authorities reached 
conclusions on which Member State should prosecute people suspected of trafficking in human beings, 
murder,  sexual  assault  and  other  serious  offences.  The  National  Desks  concerned  sometimes  issued 
formalised and reasoned (joint) requests to their national authorities in line with Article 4(2)(b) of the 
Eurojust Regulation (19). Such requests constituted an important element for executing authorities in 
their decision to execute EAWs and to dismiss a possible application of territoriality grounds. It confirms 
the importance of close cooperation and coordination in cases of parallel proceedings, preferably before 
issuing an EAW. 

More problematic were cases in which executing authorities were under a rigid obligation under their 
national law to refuse the execution of EAWs, even when only a very small part of the crime had 
been committed on their territory. During coordination meetings, executing authorities sometimes 
acknowledged  that  they  were  not  the  best-placed  Member  State  to  prosecute  the  case.  Yet  they 
explained that, owing to the rigid grounds for non-execution, prosecution in the executing Member State 
would  be  the  only  viable  option,  unless  the  requested  person  returned  voluntarily  to  the  issuing 
Member State and/or travelled to another Member State from where surrender would be feasible. In 
such cases, the focus during the coordination meeting was then on how to ensure that, after a refusal of 
the EAW, impunity could be avoided. The aim was to ensure that the available evidence in the issuing 
Member  State  would  be  shared  with  the  executing  Member  State  through  European  Investigation 
Orders (EIOs), letters of request (LoRs), joint investigation teams and/or transfer of proceedings. In 
some of these cases, the issuing Member State had to transmit all the evidence to the executing Member 
State  to  ensure  a  successful  prosecution  in  the  executing  Member  State  because  it  was  allegedly 
impossible in the executing Member State to make a less rigid interpretation of the grounds for non-
execution. 

  Ongoing prosecutions for the same acts in the executing Member State 

Executing authorities sometimes refused to execute an EAW on the grounds that the requested person 
was being prosecuted in the executing Member State for the same act as that on which the EAW was 
based  (Article 4(2)  of  the  EAW  FD).  The  most  relevant  or  recurrent  issues  identified  in  Eurojust’s 
casework related to the following. 

  Meaning of the ‘same acts’: executing authorities raised further questions on the description of 
the facts when there were ongoing criminal proceedings against the requested person for very 
similar  offences  in  the  executing  Member  State.  The  executing  authorities  needed  a  more 
detailed description before deciding whether there was an obstacle to the surrender or not. 

(19)  Regulation (EU) 2018/1727 of the European Parliament and of the Council of 14 November 2018 on the European Union Agency for 

Criminal Justice Cooperation (Eurojust), and replacing and repealing Council Decision 2002/187/JHA, OJ L 295, 21.11.2018, p. 138.  

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  Limited feedback: if the executing authority had refused to execute an EAW without providing 
information  on  whether national  proceedings  for  the  same  offences  had  been  or  were  being 
conducted, Eurojust was contacted to obtain more information on the executing Member State’s 
decision. 

  Parallel  proceedings  in  another  Member  State:  when  applying  Article 4(2)  of  the  EAW  FD, 
executing authorities considered not only ongoing proceedings in their own Member State, but 
also ongoing proceedings in other Member States. While grounds for non-execution should be 
interpreted restrictively, it is also true that keeping a good overview of ongoing proceedings in 
other Member States is crucial to decide which country is best placed to prosecute. Refusing to 
execute an EAW, against this background, might serve that purpose 

Parallel proceedings in the requested person’s Member State of origin 
An  executing  authority  arrested  a  requested  person  and  took  him  into  preliminary  custody.  The 
requested person informed the competent authority that criminal proceedings for the same offence 
were being conducted against him in his home Member State and that he had already been indicted 
there.  The  requested  person  provided  the  executing  authority  with  a  copy  of  a  judicial  decision 
stating that the same EAW had been refused by his home country because he was being investigated 
there for the same criminal activity. The executing authority requested further information from the 
home country, first without any response, and later with a short, insufficient reply. As the person 
was  in  custody,  the  executing  authorities  needed  to  obtain  the  information  as  soon  as  possible. 
Shortly  after  the  registration  of  the  case  at  Eurojust,  more  information  was  exchanged  and  the 
executing  authority  then  informed  Eurojust  that  the  EAW  had  been  withdrawn.  The  requested 
person was released from custody and the EAW proceedings were closed. 

  Parallel proceedings triggered by the issuing of an EAW: national authorities sometimes refused 
to execute an EAW, not because national proceedings were already ongoing in their Member 
States,  but  because,  following  the  receipt  of  the  EAW,  they  had  initiated  investigations 
themselves on the ground that the suspect and/or the victim were nationals. Issuing authorities 
sometimes questioned whether such an interpretation fell within that specific ground for non-
recognition and was compatible with the context of the EAW FD and the underlying principle of 
mutual recognition. 

European Arrest Warrant triggering criminal proceedings in the executing Member State 
An issuing judicial authority that was investigating a murder case that had occurred on its territory 
contacted Eurojust when the executing authority had refused to execute the EAW. There were parallel 
criminal proceedings for the same offence in the executing Member State, but they had started only 
after  the  executing  authority  had  received  the  EAW.  A  coordination  meeting  was  set  up  to  decide 
which country was best placed to prosecute. The National Desks involved finally agreed to issue a 
joint request and decided that the executing Member State was best placed to prosecute. The deciding 
factors for this decision were the nationality of the suspect and the victim (they were both nationals 
of the executing Member State) and the place where the suspect was located (he had returned to the 
executing Member State, after committing the murder, and that Member State refused to surrender 
the suspect). In addition, the interest of the (secondary) victims (the parents of the murdered person) 
played an important role. During the coordination meeting, the issuing authorities underlined that 
they would be interested in going to trial only if the suspect could be present during the trial. The 
authorities  also  discussed  the  executing  court’s  refusal  to  execute  the  EAW,  and  the  executing 
authorities confirmed that this decision was final. When the executing authorities were asked why 

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they  had  decided  to  open  their  own  investigations  upon  receipt  of  the  EAW,  they  referred  to 
provisions  of  their  national  criminal  code  and  criminal  procedure  code  and  explained  that  these 
provisions were applied rigorously. The issuing authorities explained that they had similar provisions 
in their legislation, but exceptions are available in the case of proceedings in another (Member) State. 
All  authorities  agreed  that  a  rigid  interpretation  of  such  a  provision  entails  the  risk  of  creating 
unnecessary conflicts of jurisdiction. 

Eurojust’s casework confirms that it is generally good practice to involve Eurojust at an early stage in 
cases  of  parallel  proceedings  to  ensure  close  cooperation  and  coordination,  and  a  well-informed 
decision on which jurisdiction should prosecute (20). 

Eurojust request instrumental in setting aside the Article 4(2) EAW FD refusal ground 
In a drug-trafficking case, the requested person’s lawyer relied on Article 4(2) of the EAW FD in the 
EAW proceedings in the executing Member State. The executing court dismissed this argument based, 
inter alia, on an agreement reached at Eurojust and the subsequent request that the national member 
had issued to its national authorities. This request clearly set out the background of the case and the 
discussions and conclusions reached at the coordination meeting between the two Member States 
involved,  including  the  envisaged  transfer  of  proceedings  to  the  issuing  Member  State,  as  it  was 
concluded that the issuing Member State was best placed to prosecute. 

  Dual criminality 

National  authorities  brought  several  cases  to  Eurojust  with  issues  on  the  dual  criminality  condition 
(Articles 2(4) and 4(1) of the EAW FD). While the total number of cases involving dual criminality issues 
was relatively low, they were not necessarily the easiest cases to solve (21). 

The offences for which Eurojust was asked to assist with a dual criminality assessment included: 

  preparatory acts for the use of a counterfeit document as an authentic one; 
  non-compliance with a court’s interdiction on operating motor vehicles; 
  failure by a sex offender to report the existence of a conviction for sexual assault to a local police 

authority and/or to notify any change of address; 

  sedition; 
  parental child abduction. 

Based on this list, the offence that most often, by far, triggered dual criminality issues in Eurojust’s cases 
was parental child abduction. Eurojust was asked to assist in assessing the dual criminality condition, 
which  in  some  cases  resulted  in  a  surrender  and  in  others  did  not,  depending  on  the  national  legal 
frameworks involved and the factual circumstances of each case. Often civil law decisions in the issuing 
and/or  executing  Member  State(s)  affected  the  outcome  of  that  assessment.  In  some  cases,  courts 
referred in their decisions to Articles 3 and 9 of the UN Convention on the Rights of the Child. In addition 
to  legal  issues,  Eurojust  was  also  involved  in  consultations  and  exchanges  of  information  on  more 

(20)  See also Eurojust’s guidelines for deciding ‘which jurisdiction should prosecute?’ (revised 2016). 
(21)  One of the cases dealt with at Eurojust was finally settled in 2020 by the  CJEU (Judgment of the CJEU of 3 March 2020, X, C-717/18, 
ECLI:EU:C:2020:142). The question that was brought to the CJEU in that case focused not on the dual criminality assessment as such, 
but on whether a dual criminality check had to take place (Article 4(4) of the EAW FD) or not (Article 4(2) of the EAW FD), depending 
on the applicable legal regime of the issuing Member State. 

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practical issues, such as the involvement of social worker services and how to get the child back from 
the executing Member State to the issuing Member State in those cases in which surrender was granted. 
In some cases, follow-up questions were raised and discussed. 

In addition to the abovementioned offences, Eurojust’s casework also included a few instances when 
executing authorities sometimes seemed to overstep their competences when applying dual criminality 
checks in cases involving ‘list’ offences such as corruption or extortion. As clearly stated in Article 2(2) 
of the EAW FD, and recalled by the CJEU in Advocaten voor de Wereld (22) and X (23), there should not be 
any verification of dual criminality for the offences mentioned in this provision. The issuing Member 
State’s  legal  framework  is  decisive  here,  and  any  interference  on  behalf  of  the  executing  authority 
should  be  modest.  Unfortunately,  Eurojust’s  casework  reveals  some  examples  of  bad  practices. 
Executing courts sometimes refused to execute EAWs, arguing that the description of the offence was 
not consistent with the characterisation of the corresponding list offence, despite the issuing court’s 
firm commitment that the constituent elements of the issuing Member State’s law and the threshold of 
Article 2(2) of the EAW FD were met. 

Another  challenge  in  some  cases  was  the  proper  assessment  of  the  dual  criminality  test.  Each 
Member State has a different approach. Some authorities refrained from discussing the details of the 
case  and  underlined  that,  in  the  context  of  EAW  proceedings,  the  merits  of  the  case  should  not  be 
discussed.  Other  authorities  requested  very  detailed  information  in  relation  to  the  case  in  view  of 
assessing the double criminality test, which almost came down to a full assessment of the merits of the 
case  from  the  perspective  of  the  executing  Member  State’s  legal  order.  These  different  approaches 
indicate  the  difficult  boundaries  that  judicial  authorities  encountered  when  they  struggled  with  the 
application  of  the  double  criminality  requirement.  Eurojust  provided  the  opportunity  to  discuss 
sometimes  sensitive  or  difficult  cases,  from  a  strictly  legal  point  of  view,  in  a  very  positive  and 
cooperative setting. Authorities could exchange requests for additional information quickly via Eurojust 
prior to and after coordination meetings. Authorities could clarify uncertainties regarding the different 
national legal frameworks and discuss questions concerning the dual criminality test from a national 
and  a  European (24)  perspective.  The  aim  was  to  prepare  well  for  upcoming  EAW  hearings  in  the 
executing Member State. 

The exact moment when cases with dual criminality issues were brought to Eurojust differed greatly 
from case to case. It is noteworthy that, in some Member States, public prosecutors are obliged to first 
determine,  as  part of  the  preparation  process  for  issuing  an  EAW,  whether  the  law  in  the  executing 
Member  State  penalises  the  offences  subject  to  the  EAW.  Such  early  involvement  of  the  executing 
Member State and/or Eurojust can be seen as good practice, as it can give a good indication of whether 
an EAW would be executable in a specific Member State. In some cases, Eurojust was consulted after the 
EAW was issued, to provide further guidance on the dual criminality assessment before the executing 
authority would decide on the execution. In many cases, authorities consulted Eurojust when an EAW 

Judgment of the CJEU of 3 May 2007, Advocaten voor de Wereld, C-303/05, ECLI:EU:C:2007:261. 
Judgment of the CJEU of 3 March 2020, X (European Arrest Warrant – Double criminality), C-717/18, ECLI:EU:C:2020:142. 

(22) 
(23) 
(24)  The CJEU’s case-law in relation to other mutual recognition instruments can be relevant too; in particular, see judgment of the CJEU of 

11 January 2017, Grundza, C-289/15, ECLI:EU:C:2017:4. 

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was refused. Authorities then wanted to understand the decision and discuss if a decision by a court of 
first instance could be reversed by an appeal court’s decision. 

The outcome following a dual criminality assessment varied from case to case. Sometimes executing 
authorities  decided  to  refuse  the  EAW.  Sometimes  they  decided  to  execute  the  EAW  either  fully 
(allowing surrender for all offences) or partially (allowing surrender only for offences that had passed 
the  dual  criminality  test).  In  some  of  these  cases,  Eurojust  was  involved  in  follow-up  requests.  For 
instance, in some cases, clarifications were needed when, in the case of an EAW for the execution of a 
custodial sentence, the merged sentence would need to be adopted in the light of the outcome of the 
partial  execution  (see  Section 2.2.5).  In  other  cases,  the  issuing  authority  sometimes  decided  to 
withdraw the EAW, for instance if co-suspects were already in pre-trial detention in the issuing Member 
State, and going ahead with the surrender might then lead to contradictory and diverging results for the 
different suspects involved, which constituted an inseparable legal unity. 

Statute-barred offences 

If EAWs included offences that had been committed a long time ago, executing authorities sometimes 
approached Eurojust to obtain further information from the issuing Member State before making a final 
assessment on whether the criminal prosecution or the punishment of the requested person was statute 
barred under the executing Member State’s law (Article 4(4) of the EAW FD). 

Executing  authorities  requested  information  on  the  exact  time  that  the  requested  person  had  been 
charged with the offences for the first time or raised questions on limitation periods under the issuing 
Member  State’s  law.  In  a  few  cases,  this  led  to  the  withdrawal  of  the  EAW  and  the  release  of  the 
requested person. 

If courts of first instance had decided to refuse the execution of the EAW, issuing authorities sometimes 
requested Eurojust’s support to explore whether an appeal against that decision could be successful. 
The issuing authorities then sought clarification of how the date of prescription had been calculated 
under the executing Member State’s law or how the provisions on prescription in the executing Member 
State should be understood. Sometimes, this information was needed urgently, as the right to appeal 
was subject to a time limit of only a few days. In some of these cases, an appeal was successful and the 
EAW was executed. 

In absentia judgments 

Eurojust intervened in several cases to clarify issues raised by the executing authorities in relation to 
EAW proceedings involving in absentia judgments. In most cases, the executing authorities requested, 
via Eurojust, additional information with regard to incomplete or unclear information in the EAW form, 
and/or further guarantees. The recurrent requests included questions on: 

  whether  any  of  the  procedural  requirements  set  out  in  Article 4a(1)  of  the  EAW  FD  were 

applicable; 

  how accurately the requested person had been summonsed or notified about the trial; 

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  how  it  had  been  unequivocally  established  that  the  requested  person  was  aware  of  the 
scheduled  trial,  for  example  how  and  when  the  requested  person  had  received  the  relevant 
information; 

  whether the requested person had or had not been represented by a lawyer; 
  whether the lawyer had been appointed by the requested person or ex officio; 
  whether the requested person or their mandated lawyer had submitted a writ of appeal; 
  how it could be proven that the accused had voluntarily sought to avoid trial; 
  whether and how it could be demonstrated that a conviction judgment had been served to the 

requested person; 

  to what extent the requested person had an unequivocal right to a retrial – with no discretion 

for the court – and which time limits would apply to a request for retrial; 

  whether the appeal/cassation procedure included a re-examination of the merits of the case; 
  whether the issuing authority could give a return guarantee ensuring that the requested person, 
who  was  a  national  or  resident  of  the  executing  Member  State,  could  be  returned  to  the 
executing State to serve there the sentence passed against them, following a new trial organised 
in their presence in the issuing Member State (Articles 4a(1) and 5(3) of the EAW FD); 

  clarifications of whether, after surrender, the requested person was arrested in view of a retrial 

and not in view of the execution of the custodial sentence. 

The  concrete  outcomes  differed  between  cases.  In  some  cases,  the  further  exchange  of  information 
resulted in a decision granting the surrender when clarifying and satisfactory replies were received. In 
other cases, in which the issuing authority did not manage to convince the executing authority that one 
of the criteria under Article 4a was fulfilled, the EAW was refused. Often the refusal was preceded by 
intensive discussions and different views on whether the requested persons had been duly summonsed, 
whether they were duly represented (e.g. by a lawyer ex officio) or whether they would be entitled to a 
retrial (e.g. discussions were still ongoing or it was  ‘very likely’ that the requested person would be 
entitled to a retrial, but still subject to a decision after the surrender). 

Different perspectives from various national legal orders with different interpretations of key concepts 
of Article 4a(1) of the EAW FD, for which the CJEU has not yet provided an autonomous and uniform 
interpretation,  implied  that,  despite  many  efforts,  the  EAW  could  not  be  executed,  as  a  result  of 
insurmountable differences between the legal systems. In various cases, the non-execution of an EAW 
was not related to concerns about the requirements concerning  in absentia judgments, but followed 
from  a  refusal  by  the  issuing  Member  State  to  grant  a  return  guarantee.  This  was  triggered  by 
misunderstandings of the interplay between Article 4a(1) of the EAW FD (in absentia) and Article 5(3) 
of the EAW FD (return guarantee), despite the clarifications provided by the CJEU’s IB judgment (25) 
(see also Section 3.1.7). 

Following  the  CJEU’s  judgments  in  August  2017  in  Tupikas  and  Zdziaszek (26),  Eurojust  faced  a 
significant increase in cases involving questions on in absentia judgments related to appeal proceedings 

(25) 
(26) 

Judgment of the CJEU of 21 October 2010, IB, C-306/09, ECLI:EU:C:2010:626. 
Judgment  of  the  CJEU  of  10 August  2017,  Tupikas,  C-270/17  PPU,  ECLI:EU:C:2017:628;  judgment  of  the  CJEU  of  10 August  2017, 

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and procedures leading to cumulative judgments. In the light of questions raised following this case-
law, Eurojust opened two operational topics. 

In March 2018, an operational topic was opened on the impact of the CJEU’s Tupikas and Zdziaszek 
case-law on EAW proceedings. The questions addressed the following issues: requests for additional 
information,  adequacy  of  the  form,  time  limits,  refusals  and  the  meaning  of  the  concept  of  ‘other 
circumstances’  as  mentioned  by  the  CJEU  in  Tupikas  and  Zdziaszek.  The  main  outcomes  of  the 
operational topic can be summarised as follows. 

  Cases  involving  Article 4a(1)  of  the  EAW  FD  often  triggered  requests  for  additional 
information,  not  only  in  cases  in  which  the  model  form  corresponding  to  Article 4a(1)  was 
ticked,  but  also  in  cases  in  which  this  form  was  not  ticked,  and  also  in  cases  in  which 
contradictory information about the procedure was contained elsewhere in the EAW. 

  Respondents’ views were divided in relation to the (in)adequacy of the EAW form in relation 
to appeal or subsequent proceedings. A few respondents simply replied that the form was 
adequate for appeal and subsequent proceedings. Some respondents also considered the form 
to be adequate if accurately completed, but indicated that the ticking of the form is usually not 
sufficient to take a decision. Additional information should therefore be provided on the form 
to explain the circumstances fully. Other respondents concluded that the form was not adequate, 
particularly in cases of aggregate judgments and cumulative sentences, as the form did not allow 
the judicial authority to provide comprehensive and clear data on the national case. One of the 
respondents  suggested  the  use  of  box (d) 4  (provide  information)  in  order  to  explain  the 
national  procedural  law  and  the  circumstances  of  the  concrete  case.  Another  respondent 
explained that, in some cases, there had been a need to seek a chronology of procedural history 
to  establish  whether  there  was  actual  personal  service,  whether  someone  was  personally 
present  and  whether  there  was  a  solicitor  instructed  who  appeared.  According  to  this 
respondent,  it  might  be  feasible  to  produce  a  form  covering  these  aspects  for  each  stage  of 
proceedings up to any cumulative sentencing. 

  Some respondents replied that they did not have any information on whether the requests for 
additional information had caused delays and/or whether time limits were respected. Others 
replied that, in relation to the cases that they were aware of, time limits had been met or only 
occasionally not met. One respondent replied that they had experienced considerable delays, 
explaining that finding out if there was an appeal or a merger of penalties is complex and time-
consuming. Furthermore, this same respondent explained that, in some countries, information 
requests  need  to  be  made  to  different courts  in  the  same country.  As  in most  countries,  this 
information is not registered in a centralised system; different courts and different people have 
to answer the same questions, which makes it more difficult for the issuing authority to retrieve 
all the requested information at once. 

  A majority of respondents replied that, to their knowledge, such EAW proceedings had not led 
to refusals of the execution of an EAW or had done so only very rarely, and particularly if 
additional information had not been provided. A few respondents replied that EAWs were not 
executed when the requested information was not provided, or not by the given deadline. In 

Zdziaszek, C-271/17 PPU, ECLI:EU:C:2017:629. 

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some jurisdictions, Article 4a(1) of the EAW FD is implemented into national law as a mandatory 
ground for refusal, and the court in charge is therefore quite thorough when it comes to the 
interpretation of that provision. 

  None  of  the  respondents  was  aware  of  EAW  proceedings  for  which,  in  the  context  of 
Article 4a(1) of the EAW FD, ‘other circumstances’ – as mentioned by the CJEU in Tupikas and 
Zdziaszek – had been taken into account. One respondent replied that they had tried to obtain 
relevant information from the requested persons by questioning them about the details of the 
trial, but the information had not enabled them to take a decision on the EAW in any such case. 
Another  respondent  explained  that,  under  their  national  law,  they  would  not  be  allowed  to 
consider any circumstances other than those mentioned in Article 4a(1) of the EAW FD. Another 
respondent mentioned the relevance of the case-law of the European Court of Human Rights 
(ECtHR) in this regard. 

In  November  2018,  another  operational  topic  related  to  the  Tupikas  case-law  was  opened.  The 
operational  topic  was  triggered  by  a  case  brought  to  Eurojust  involving  a  cassation  appeal.  It 
concerned a formal written procedure whereby the parties did not have a right to attend, neither the 
prosecutor  nor  the  accused.  The  requested  person’s  lawyer  and  the  public  prosecutor  had  different 
views on whether the cassation appeal was part of the ‘trial resulting in the decision’ within the meaning 
of Article 4a(1) of the EAW FD. The requested person maintained that he had been tried in absentia and 
could  not  be  surrendered  without  an  undertaking  that  he  would  be  allowed  to  request  a  retrial. 
However, the public prosecutor defended the view that the cassation appeal appeared to fall outside the 
parameters of Tupikas because it was not ‘an assessment, in fact and in law, of the incriminating and 
exculpatory evidence’, but a procedural examination of whether the law had been correctly applied to 
the  facts.  The  operational  topic  that  was  opened  in  relation  to  this  case  was  aimed  at  gathering 
information about different aspects related to cassation appeal systems in the EU Member States. 

The main outcomes of this questionnaire can be summarised as follows. 

  The  concept  of  cassation  appeal  is  not  part  of  all  legal  systems  within  the  EU.  Many 
respondents indicated that their legal system explicitly provides for cassation appeals, whereas 
a  minority  stated  that  such  an  appeal  procedure  is  not  part  of  their  legal  system.  Some 
respondents explained that, while their court of last instance is not formally described as a court 
of  cassation,  the  appeal  process  and  the  possibilities  it  provides  have  some  features  of  a 
cassation appeal procedure: the court of last instance focuses on points of law or procedural 
errors, and thus does not re-examine the merits of the case. 

  A  number  of  respondents  whose  legal  systems  include  cassation  appeals  indicate  that  the 
parties are allowed to attend the proceedings. Some legal systems that do not formally hold 
cassation appeals allow the parties to be present in proceedings before the court of last instance. 
However, attendance may not be the general rule and may only be permitted in specific cases 
and circumstances, sometimes depending on whether the matter is such that the court sits in 
public session. 

  The ruling pronounced by the court of cassation or by the court of last instance is considered 
the  final  decision  in  many  legal  systems.  However,  while  in  some  systems  the  court  of  last 
instance can change the decision of the lower courts, in other jurisdictions the ruling is the final 

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decision only in certain cases, depending on the matter dealt with by the court. In several legal 
systems that have cassation appeals, the decision of the court of cassation is not the final ruling 
on the guilt of the accused. In these legal systems, the court of cassation can only overturn the 
judgment of the lower court and refer the case back to a lower court, either the court of first 
instance or the court of appeals, depending on the legal system and/or the subject matter. 

  Nationals or residents 

In a number of cases, the surrender for the execution of a custodial sentence was refused because the 
requested person was a national or a resident of the executing Member State and this state preferred to 
execute the sentence itself (Article 4(6) of the EAW FD). 

Prior  to  the  enforcement  of  the  sentence,  Eurojust  often  facilitated  the  exchange  of  additional 
information, such as the sending of a certified copy of the sentence to be served, certified information 
on the date when the judgment became final and/or certified information on the remaining time to be 
served.  Furthermore,  questions  often  arose  about  how  the  sentence  should  be  submitted  and  how 
Article 4(6) of the EAW FD interrelates with the application of Framework Decision 2008/909/JHA on 
the transfer of sentenced persons (FD 909) (27) (see also Section 10.3). 

The key provision that addresses the interrelation between the EAW FD and FD 909 is Article 25 of 
FD 909 (28). The EU legislator seems to have been aware that the application of this provision might 
create  some  problems  in  practice (29).  Some  of  the  issues  encountered  in  Eurojust’s  casework  have 
related to the following: 

  need to send an FD 909 certificate or not: while some Member States insisted on the need to 
send a certificate under FD 909, other Member States believed that there was no need to use a 
certificate in the context of an application of the ground for refusal under Article 4(6) of the EAW 
FD; 

  withdrawal of EAW and SIS alert: in some cases, despite a final decision on the FD 909 request 

and the transfer of the custodial sentence, EAWs were still active; 

  meaning  of  the  wording  ‘mutatis  mutandis’  of  Article 25  of  FD 909  and  questions  about  the 
extent  to  which  rules  on  amnesty  or  pardon  (Article 19  of  FD 909)  or  rules  on  alternative 
sanctions,  in  the  light  of  the  provision  on  the  law  governing  the  enforcement  (Article 17  of 
FD 909), allow an executing judicial authority to reduce and/or convert a custodial  sentence 

(27)  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 OJ L 327, 5.12.2008, p. 27. 

(28)  This provision establishes that, without prejudice to the EAW FD, the provisions of FD 909 shall apply, mutatis mutandis to the extent 
that they are compatible with provisions under the EAW FD, to enforcement of sentences in cases in which a Member State undertakes 
to enforce the sentence in cases pursuant to Article 4(6) of the EAW FD or in which, acting under Article 5(3) of the EAW FD, it has 
imposed the condition that the person has to be returned to serve the sentence in the Member State concerned so as to avoid impunity 
of the person concerned. 

(29)  Article 29(4) of  FD 909  states  that ‘Without  prejudice  to  Article 35(7)  of  the Treaty  on  European  Union,  a  Member  State  which has 
experienced  repeated  difficulties  in  the  application  of  Article 25  of  this  Framework  Decision,  which  have  not  been  solved  through 
bilateral  consultations,  shall  inform  the  Council  and  the  Commission  of  its  difficulties.  The  Commission  shall,  on  the  basis  of  this 
information and any other information available to it, establish a report, accompanied by any initiatives it may deem appropriate, with 
a view to resolving these difficulties.’ 

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into  an  alternative  sanction  and  whether  this  is  compatible  with  the  requirement  that  the 
sentence will actually be enforced; 

  clarification of the conditions that must be met for a correct application of Article 4(6) of the 
EAW FD, including interpretation of the concepts ‘resident’ or ‘person staying in’ and ‘actual 
enforcement of the sentence’; 

  clarification of unclear or contradictory information, for instance in the EAW, certificate and/or 

accompanying letters. 

It follows from the CJEU’s case-law in Sut and Poplawski (30) that an executing judicial authority, before 
refusing surrender based on Article 4(6) of the EAW FD, must make some verifications. First, it must 
check whether the requested person falls within the scope of that provision, meaning that the requested 
person is a ‘national’, ‘a resident’ or a person ‘staying’ in the executing Member State. Second, it must 
verify whether the custodial sentence passed in the issuing Member State can actually be enforced in 
the executing Member State. Finally, it must consider whether there is a legitimate interest to execute 
the sentence in the executing Member State. In relation to some of these conditions, national authorities 
approached Eurojust with requests for clarification. 

In relation to the condition that it should concern ‘a national, a resident or a person staying in the 
executing Member State’, issuing authorities requested clarification of the requested person’s links 
with the executing Member State, before or after a decision had been taken. In addition, there were a 
few  cases  in  which  executing  authorities  requested,  via  Eurojust,  information  related  to  previous 
refusals of the same EAW by another Member State on the grounds of Article 4(6) of the EAW FD. 

Impact of a previous refusal decision in another Member State 
A requested person had been convicted in her Member State of nationality, but the Member State of 
residence – where the requested person had been residing for more than 4 years with her partner 
and children – refused the surrender and agreed to execute the sentence. Before the execution of the 
sentence started, the requested person went to another Member State, where she was arrested again 
based  on  the  same  EAW.  She  objected  to  the  surrender  on  the  ground  that  the  Member  State  of 
residence had engaged to execute that sentence. The executing authority obtained, via Eurojust, the 
decision of the court of the Member State of residence. Subsequently, it agreed – in the light of that 
decision and the underlying reintegration objectives included in Article 4(6) of the EAW FD, which 
linked the requested person to the Member State of residence – not to execute the EAW and to let the 
person return voluntarily to the Member State of residence. 

The abovementioned case is an interesting example of how a decision to refuse to execute an EAW in 
one Member State, while not per se binding upon the authorities of other Member States, can have an 
important impact in another Member State, depending on the grounds for refusal and the circumstances 
of the case. Furthermore, in a few similar cases, executing Member States refused to execute an EAW 
when they had received confirmation that another executing Member State had previously refused that 
same EAW on the basis of Article 4(6) of the EAW FD and that Member State had committed itself to 

(30) 

Judgment  of  the  CJEU  of  13 December  2018,  Sut,  C-514/17,  ECLI:EU:C:2018:1016,  para. 37;  judgment  of  the  CJEU  of  24 June  2019, 
Poplawski, C-573/17, ECLI:EU:C:2019:530, para. 100. 

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execute the sentence. It is not clear why, in these cases, the issuing authorities had not withdrawn the 
EAWs after decisions on the transfer of the sentence had been taken in the other Member States. 

In relation to the condition of ‘the actual enforcement of the sentence’, questions arose in cases in 
which  either  no  information  was  provided  on  the  execution  phase  or  custodial  sentences  were 
converted  into  alternative  sentences.  In  some  cases,  the  issuing  authority  requested,  repeatedly, 
information on the execution of the sentence and Eurojust had to intervene to clarify, for instance: 

  whether a court in the executing Member State had issued a decision on the recognition and 

execution of the judgments imposing the custodial sentences; 

  whether  the  decision  on  the  recognition  and  execution  could  be  sent  to  the  issuing  Member 

State; 

  whether the person had started the execution of the sentence of imprisonment and, if so, when 

and where (address of prison); 

  whether  the  requested  person  had  already  served  part  of /  the  entire  custodial  sentence 
(and/or what was the total duration of the served sentence) or whether they were conditionally 
released earlier and, if so, why and on what conditions. 

Particularly problematic were cases in which courts in the executing Member State applied Article 4(6) 
of the EAW FD to refuse the EAW, and committed to execute the sentence in the executing Member State, 
but,  later  on,  other  courts,  competent  to  execute  the  sentence,  converted  custodial  sentences  into 
alternative sanctions by applying their national legal framework. Questions were raised about whether 
such conversion would be in line with the abovementioned condition that the sentence must be ‘actually 
enforced’ in the executing Member State, in the light of the CJEU’s case-law. 

Eurojust  also  intervened  when  executing  authorities  had  provided  unclear  or  contradictory 
information.  For  instance,  when,  in  an  accompanying  letter,  the  executing  authority  had  asked  the 
issuing  counterpart  to  take  the  necessary  actions  to  transfer  the  requested  person  to  the  issuing 
Member State, while, in the corresponding decision, the executing court had concluded that the EAW 
could not be executed and requested that the court of the issuing Member State transfer its custodial 
sentence  for  execution  to  the  executing  Member  State,  Eurojust  clarified  that  the  information  in  the 
accompanying letter was wrong. 

On other occasions, the fact that EAWs had been withdrawn after the executing authority’s decision to 
apply  Article 4(6)  of  the EAW  FD created  confusion.  Executing  authorities had  doubts  whether  such 
withdrawals meant that the sentence had been revoked and wondered whether they should release the 
requested persons. Information provided by Eurojust confirmed that the sentence was still valid and 
that the issuing authority had revoked the EAW because the procedure had changed from a surrender 
procedure to a procedure on the transfer of the sentence. This again underlines the importance of a 
good understanding of the interrelationship between the EAW FD and FD 909 (see also Section 10.1). 

  Proportionality 

As clearly indicated in the Commission’s handbook on the EAW, the EAW FD does not provide for the 
possibility of evaluation of the proportionality of an EAW by the executing Member State. Only if serious 

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concerns on the proportionality of the received EAW arise in the executing Member State are the issuing 
and executing judicial authorities encouraged to enter into direct communication. (31) 

In Eurojust’s casework, proportionality arguments were only very rarely raised in the period covered 
by this report. 

Proportionality arguments leading to withdrawal of the European Arrest Warrant 
The requested person was wanted for a minor drug-related offence committed 5 years earlier in the 
issuing Member State. The requested person objected to his surrender, holding that his surrender 
would be a disproportionate measure and that it would breach the suspect’s right to respect for family 
life. Eurojust facilitated the hearing of the requested person in the executing Member State and the 
exchange of documents, including contact details of relevant authorities. In the end, the requested 
person  was  convicted  and  fined,  which  the  requested  person  paid  voluntarily,  and  the  EAW  was 
withdrawn by the executing court. 

3.2.  Guarantees 

Eurojust dealt with many cases involving Article 5 of the EAW FD. Nearly all of them concerned return 
guarantees for nationals or residents of the executing Member State (Article 5(2) of the EAW FD). Only 
very few cases concerned guarantees for life sentences (Article 5(1) of the EAW FD). Eurojust was asked 
to  improve  the  communication  between  issuing  and  executing  authorities  in  view  of  obtaining  the 
return  guarantee  and  clarifying  some  misunderstandings.  The  most  frequent  issues  concerned  the 
following: 

  guarantees not being sent, or not being sent in the original and/or translated version; 
  the submitted documents not being a return guarantee, as they included completely different 

information not related to the requested person’s return; 

  questions about which authority should give the return guarantee; 
  urgency of the case in view of upcoming court hearings to avoid the postponing of decisions; 
  updates  of  guarantees,  for  example  following  a  request  for  an  extension  of  the  EAW  under 
Article 27 of the EAW FD and/or after Eurojust had identified links with other cases involving 
additional criminal proceedings against the requested person in the issuing Member State; 
  corrections  of  previously  provided  return  guarantees,  for  example  when  the  executing 
authorities realised that they had made a mistake, as the requested person was not a national 
but a resident; 

  clarifying  misunderstandings  on  the  interplay  between  in  absentia  judgments  and  return 

guarantee in the light of the IB judgment (32). 

Eurojust’s  intervention  led  to  a  positive  outcome  in  most  cases.  Return  guarantees  were  obtained 
swiftly through Eurojust and led to successful surrenders. If needed, some National Desks also provided 
their home authorities with a template for a return guarantee to assist them with preparing a correct 
and complete return guarantee, which can be considered good practice. In a few cases, surrenders were 
refused or court hearings adjourned, when the guarantee did not arrive in time. Sometimes such delays 

(31)  Commission's Handbook on how to issue and execute a European Arrest Warrant, p. 34.  
(32) 

Judgment of the CJEU of 21 October 2010, IB, C-306/09, ECLI:EU:C:2010:626. 

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resulted in requested persons being at large or requested persons returning voluntarily to the issuing 
Member State and reporting themselves to the competent authorities. 

Confusion on the interplay between in absentia judgments and return guarantees 
An  executing  authority  arrested  the  requested  person  based  on  an  EAW  that  was  issued  for  the 
purpose of the execution of a custodial sentence imposed  in absentia. The requested person was a 
national of the executing Member State. The executing authority asked the issuing judicial authority 
to  provide  it  with  a  return  guarantee  in  accordance  with  Article 5(3)  of  the  EAW  FD  so  that  the 
requested  person  would  be  returned  to  the  executing  Member  State  in  order  to  serve  there  the 
sentence passed against him, but only following a new trial organised in his presence in the issuing 
Member  State.  The  executing  authority  did  not  receive  a  guarantee  and  was  informed  that  the 
Ministry  of  Justice  of  the  issuing  Member  State  had  been  asked  to  transfer  the  sentence  to  the 
executing Member State for recognition and execution. As, at that time, the recognition of the decision 
was  not  an  option,  the  executing  authority  asked  Eurojust’s  support  with  obtaining  the  return 
guarantee from the issuing Member State as soon as possible. Despite the CJEU’s IB judgment, the 
issuing authority maintained its initial position, saying that the only ‘guarantee’ it could provide was 
the  right  to a  retrial.  As  the  issuing  authority  had failed  to  provide  sufficient  reassurance  that  the 
requested person would be returned after the retrial, the executing court decided that the requested 
person would not be surrendered to the issuing Member State and the case was closed. 

After a surrender, Eurojust’s intervention was still sometimes needed. When the issuing authority had 
provided a return guarantee and the executing authority had surrendered the requested person, issues 
sometimes arose when the requested person, following their surrender and conviction in the issuing 
Member State, had to be sent back to the executing Member State for the execution of their custodial 
sentence. In several cases, issuing authorities had sent formal requests to the executing Member State 
in view of transferring the convicted person back to their home country in order to serve their custodial 
sentence there; Eurojust was requested to assist in obtaining the information concerning the status of 
that request and speeding up its execution. 

Ensuring compliance with a return guarantee 
A return guarantee had not been explicitly emphasised in the enclosed letter granting the surrender, 
but  it  was  specifically  mentioned  in  the  formal  court  decision  that  was  attached  to  the  letter. The 
requested person was sentenced to 2 years and 6 months of imprisonment in the issuing Member 
State. Instead  of  being  transferred  back  to  the  executing  Member  State,  the  requested  person  was 
informed that he would be sent to a prison in the issuing Member State to serve his sentence. The 
executing authority sent an urgent request to the issuing authorities recalling the return guarantee. 
However, since the executing authority did not receive any reply to this request, the case was settled 
via Eurojust, which speeded up the transfer in line with the return guarantee. 

3.3.  Fundamental rights 

Since the CJEU’s Aranyosi and Căldăraru judgment (33), there has been a large increase in fundamental 
rights issues in the cases brought to Eurojust. In the light of these developments, in 2017 the College of 
Eurojust held a College thematic discussion on the EAW and prison conditions. Moreover, later that year, 
Eurojust  also  hosted  an  expert  meeting  organised  by  the  European  Union  Agency  for  Fundamental 

(33) 

Judgment of the CJEU of 5 April 2016, Aranyosi and Căldăraru, C-404/15 and C-659/15 PPU, ECLI:EU:C:2016:198. 

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Rights  (FRA)  on  co-creating  a  tool  to  assess  detention  conditions.  Subsequently,  FRA  developed  a 
criminal detention database, which combines, in one place, information on detention conditions in all 
EU Member States. 

The outcome report of the College thematic discussion includes conclusions that are still relevant today, 
particularly those related to the importance of requests for additional information and the role Eurojust 
can play with level II meetings and coordination meetings, the difficulties in complying with time limits 
and the challenges of avoiding impunity. 

In recent years, Eurojust has dealt with a considerable number of fundamental rights issues in its cases; 
these were predominantly cases in which the requested person, their defence counsel or the executing 
court  raised  questions  on  the  compliance  of  the  surrender  with  certain  provisions  of  the  Charter  of 
Fundamental  Rights  of  the  EU  (hereafter  referred  to  as  ‘the  Charter’),  particularly  Article 4  of  the 
Charter (prohibition of torture and inhuman or degrading treatment or punishment, hereinafter ‘prison 
condition’ cases; see Section 3.3.1) or with Article 47(2) of the Charter (right to a fair trial, hereinafter 
‘fair trial’ cases see Section 3.3.2). In addition, Eurojust has dealt with a few cases in which arguments 
were partially based on Article 7 of the Charter (respect for private and family life). 

Developments in the case-law of the CJEU (34) and the ECtHR (35) have further clarified the executing 
court’s obligations when assessing a concrete risk. Yet it is clear that, despite these clarifications, the 
assessment requires a thorough and detailed assessment, which, in several cases, led to final decisions 
going well beyond the time limits included in Article 17 of the EAW FD. 

  Prison conditions 

Prison  condition  cases  usually  started  with  requests  for  additional  information;  Eurojust  became 
involved when either no additional information had been provided or the information submitted by the 
issuing  judicial  authorities  was,  after  numerous  requests  or  reminders,  still  not  satisfactory.  The 
executing  authorities  requested  specific,  updated  and  reliable  information  to  address  violations 
identified in ECtHR judgments or official reports. Obtaining the relevant information was crucial as, in 
some of these cases, the outcome could have an impact on the outcome in many other pending cases in 
the executing Member State. The information that was provided was often too limited, too general or 
simply  stereotyped  replies.  Coordination  meetings  were  often  seen  as  a  last  resort  to  address 
outstanding  issues,  as,  in  the  absence  of  relevant  supplementary  information,  the  requested  person 
would be released. During coordination meetings, competent authorities discussed and clarified, with 
Eurojust’s support, what type of supplementary information should be sent, by when, in order to satisfy 
the deadline set by the court in the executing Member State. 

(34) 

In  relation  to  prison  conditions:  judgment  of  the  CJEU  of  5 April  2016,  Aranyosi  and  Căldăraru,  C-404/15  and  C-659/15  PPU, 
ECLI:EU:C:2016:198; judgment of the CJEU of 25 July 2018, ML (Conditions of detention in Hungary), C-220/18 PPU, ECLI:EU:C:2018:589; 
and judgment of the CJEU of 15 October 2019, Dorobantu, C-128/18, ECLI:EU:C:2019:857. In relation to rights to a fair trial: judgment 
of the CJEU of 25 July 2018, Minister for Justice and Equality (Deficiencies in the System of Justice), C-216/18 PPU, ECLI:EU:C:2018:586; 
and judgment of the CJEU of 17 December 2020, Openbaar Ministerie (Indépendance de l’autorité judiciaire d’émission), C-354/20 PPU 
and C-412/20 PPU, ECLI:EU:C:2020:1033. 

(35)  See,  particularly,  the  interplay  between  the  execution  of  EAWs  and  risks  of  breaches  of  fundamental  rights  under  the  European 
Convention on  Human Rights:  ECtHR,  Romeo  Castaño  v Belgium, application  number 8351/17;  and ECtHR,  Bivolaru  and  Moldovan  v 
France, application numbers 40324/16 and 12623/17. 

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Discussions during coordination meetings enabled clarifications and a useful exchange of information, 
and were a vital step in preparation for upcoming court hearings. If the information provided was not 
sufficient  to  rebut  the  concerns  expressed  in  experts’  reports  or  judgments,  authorities  discussed, 
during  coordination  meetings,  whether  assurances  could  be  provided,  and  the  content  of  such 
assurances. The overall aim was to avoid the release of the requested persons. 

At  coordination  meetings  or  level II  internal  meetings,  competent  authorities  and  National  Desks 
discussed, for instance: 

  in which prison the requested person will be detained if surrendered, and later, if convicted, and 
under which conditions; if the requested person will be detained for the entire duration of the 
custodial sentence in that prison or if it is already foreseeable that they will go to other prisons 
(if so, which ones, and what conditions apply there); 

  how much personal space the requested person will have and whether they will be held in a 

single or shared cell; 

  what other prison conditions apply, for example adequate sanitary conditions, access to natural 
light  and/or  artificial  lighting  and  ventilation,  clean  mattresses  and  bedding,  adequate  and 
partitioned toilet facilities, access to basic hygiene products; 

  whether the requested person will be detained in a closed, open or semi-open regime; 
  what purposeful and/or outdoor activities will be available and whether they will have outdoor 

exercise for at least 1 hour a day; 

  measures that have been taken to address interprisoner violence, intimidation and exploitation 
in a specific prison in the issuing Member State as follow-up to a European Committee for the 
Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) report; 

  availability of medical facilities; 
  availability of rehabilitation programmes for requested persons who have a drug addiction. 

Authorities also discussed what assurance could look like and what information they could include: 

  the requested person will not serve any part of their imprisonment at … or …; 
  the requested person will serve the entire duration of their imprisonment at …; 
  the  requested  person  will  be  held  at  a  cell  that  provides  a  minimum  of  3 m2  per  inmate 
(excluding  sanitary  facilities,  toilet,  sink,  shower)  and  be  able  to  move  freely  around  the 
furniture in compliance with Article 3 of the European Convention on Human Rights (ECHR) / 
Article 4 of the Charter; 

  any cells occupied by the requested person while imprisoned will have lighting, a clean mattress, 
sheets and heating, and be free from pests, and there will be outside activities for at least 1 hour 
a day in compliance with Article 3 of the ECHR / Article 4 of the Charter. 

In some cases, issues were also raised from the perspective of Article 8 of the ECHR when requested 
persons indicated that they preferred to be surrendered to a prison close to their home (and family life). 

Coordination meetings sometimes served to provide clarifications or updates of the information that 
was available in previous reports or judgments: 

  clarifications that the calculations relied upon in a CPT report were based on 3 m2 (per inmate), 

while units in the issuing Member State now had 4 m2 or 6 m2; 

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  clarifications that the prison mentioned in a CPT report had been closed and replaced with a 

brand new prison with a similar name; 

  recently updated data from the prison service regarding statistics on prisoner numbers and the 

prison population; 

  details of the number of prisons in the issuing Member State and plans for the creation of new 

prison units and dates when they were likely to be made available; 

  information on national and international monitoring agencies (ombudspersons). 

The main challenge identified in prison condition cases relates to the exact information that could or 
should be requested/provided in the light of the executing authority’s assessment of whether there is a 
concrete risk in the case in question. The jurisprudence of the ECtHR indicates that a wrong assessment 
of the factual basis can lead to the ECtHR convicting the executing Member State not only in cases in 
which an executing authority decided to surrender (36), but also in cases in which an executing authority 
decided not to surrender (37). 

The  competent  authorities  involved  sometimes  struggled  with  identifying  what  was  ‘necessary’ 
information to assess, not only the factual basis of the case, but also  compliance with future or past 
assurances. For instance, in one case, an executing authority first considered requesting a hearing of 
prisoners in the issuing Member State by videoconference to double-check the written statements of 
other prisoners. After further discussion at Eurojust, a formal request for a hearing was not sent, as it 
was  concluded  that  the  very  detailed  replies  provided  by  the  issuing  Member  State’s  government 
sufficed to refute the allegations made in the written statements and to confirm the mutual trust that is 
the  basis  of  judicial  cooperation  within  the  EU (38).  The  requested  person  was  surrendered  after 
exhausting all possible appeals and well beyond the time limits included in Article 17 of the EAW FD. 

(36)  ECtHR, Bivolaru and Moldovan v France, Application numbers 40324/16 and 12623/17 (violation of Article 3 of the ECHR in the case of 
Moldovan; no violation of Article 3 of the ECHR in the case of Bivolaru). In  Moldovan, paras 121–126, the ECtHR concluded that the 
executing court had a sufficiently solid factual basis to conclude the existence of a real risk that the requested person would be subjected 
to inhuman or degrading treatment related to prison conditions in the issuing Member State. 

(38) 

(37)  ECtHR,  Romeo  Castaño  v  Belgium,  application  number 8351/17,  paras 82–91.  In  this  judgment,  the  ECtHR  stated  that  there  is,  in 
principle,  an  obligation  on  EU  Member  States  to  cooperate  in  order  to  clarify  the  circumstances  of  a  homicide  and  to  bring  the 
perpetrators to justice, and that the revocation of the presumption of respect for human rights on the part of the Member States should 
be justified by evidence of a concrete and evident danger of violation of the human rights of the person surrendered and should have 
sufficient factual basis. The ECtHR concluded that the executing court had not carried out an updated assessment of the circumstances 
of the situation in the issuing Member State in 2016 and had not proved the existence of a real and individualised risk of violation of the 
requested person’s human rights. The examination had thus not been sufficient to justify the refusal of surrender, and the executing 
Member State had failed in its obligation to cooperate and had violated Article 2 of the ECHR. 
In  its  case-law,  the  ECtHR  considered  as  evidence  written  statements  by  fellow  inmates  in  support  of  applicants’  allegations  in  the 
context  of  breaches  of  Article 3  of  the  ECHR.  However,  the  ECtHR  also  underlined  that  ‘Once  a  credible  and  reasonably  detailed 
description of the allegedly degrading conditions of detention, constituting a prima facie case of ill-treatment, has been made, the burden 
of  proof  is  shifted  to  the  respondent  Government  who  alone  have  access  to  information  capable  of  corroborating  or  refuting  these 
allegations. They are required, in particular, to collect and produce relevant documents and provide a detailed account of an applicant’s 
conditions of detention …’ ECtHR, Mursic v Croatia, application number 7334/13, para. 128. Moreover, within the EU, the rule is that 
confidence and recognition underpin the EAW system, which was meant to introduce clarity and simplicity. There may be, in very rare 
cases, circumstances in which mutual trust and confidence has broken down or where there is cogent evidence of bad faith or of abuse. 
In those circumstances, it may well be appropriate to go beyond the answers and seek more information, but these cases should remain 
the exception. 

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An  additional  challenge  for  the  executing  authority  was  obtaining  all  the  necessary  additional 
information within the time limits set by the EAW FD (39). While, in many cases, Eurojust enabled the 
speeding up of surrender procedures, there have been exceptional cases in which years have passed 
before the requested persons could be brought to justice (see Section 7). 

  Rule of law 

Since the CJEU’s judgment in Minister for Justice and Equality (Deficiencies in the System of Justice) (40), a 
few National Desks at Eurojust have received ‘rule of law’ cases, involving the same issuing Member 
State.  Executing  authorities  sent  a  series  of  questions  to  the  issuing  authorities  in  order  to  assess 
whether there was – in the concrete case in question – a real risk that the requested persons would 
suffer  a  breach  of  their  right  to  an  independent  tribunal /right  to  a  fair  trial  (Article 47(2)  of  the 
Charter). Often, executing authorities approached Eurojust when previous attempts  by the executing 
authorities to obtain that information directly from the issuing authorities had remained unsuccessful 
and a court hearing was approaching. Sometimes the issuing authorities approached Eurojust to obtain 
a state of play on the execution of the EAW proceedings. 

The  requests for  additional  information  that  the  executing  authorities submitted  via  Eurojust  to  the 
competent issuing authorities included information related to the following issues. 

  Competent court: which court (which formation of the court) heard the indictment or which 
court  would  be  responsible  in  the  event  of  an  indictment  being  served.  In  the  event  of  a 
conviction of the person prosecuted for the acts listed in the EAW, is an appeal available and, if 
so, what appeal is it and how is it structured? Which court would be called upon to rule on this 
appeal and is there any subsequent appeal? 

  Judicial staff: any retirements, transfers or dismissals of judges since the entry into force of the 
law  on  the  system  of  common  courts;  any  retirement  as  a  result  of  the  retirement  age  shift 
(number of retirements within a given judicial body); any cases of prolonging the term of office 
of judges after they reached the retirement age. 

  Assignment of cases: any changes to the rules and procedures for the assignment of criminal 

cases such as those pending against the requested person. 

  Disciplinary proceedings or other disciplinary measures: whether disciplinary measures were 
initiated against judges (if so, on what basis and which outcome); a binding assurance that no 
disciplinary proceedings will be initiated against judges of the formation(s) of the court called 
upon in the present proceedings concerning substantive decisions. 

  Procedures protecting the right to an independent court: remedies available to the requested 

person. 

The assessment that the executing judicial authority needs to make under Article 47(2) of the Charter 
is  based  on  the  two-step  assessment  developed  by  the  CJEU  in  Aranyosi  and  Căldăraru.  Eurojust’s 

(39)  For instance, judgment of the CJEU of 10 August 2017, Zdziaszek, C-271/17 PPU, ECLI:EU:C:2017:629, para. 105, in which the CJEU held, 
with reference to Aranyosi and Căldăraru, ‘that authority not only cannot tolerate a breach of fundamental rights but, as provided for in 
Article 15(2) of Framework Decision 2002/584, it must also ensure that the time limits laid down in Article 17 thereof for taking the 
decision on the European arrest warrant are complied with, with the result that it cannot be required to resort to that Article 15(2) 
again.’ 
Judgment  of  the  CJEU  of  25 July  2018,  Minister  for  Justice  and  Equality  (Deficiencies  in  the  System  of  Justice),  C-216/18  PPU, 
ECLI:EU:C:2018:586. 

(40) 

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casework  indicates  that  the  specific  elements  that  the  executing  judicial  authority  must  take  into 
consideration  when  performing  the  test  in  the  context  of  Article 47(2)  of  the  Charter  seem  more 
complicated under that provision than in the context of Article 4 of the Charter. Only in a few cases did 
the  executing  court  find  that  there  was,  in  the  case  in  question,  a  real  and  concrete  risk  that  the 
requested  person  would  face  a  breach  of  their  right  to  a  fair  trial.  As  in  prison  condition  cases,  the 
application  of  requests  for  additional  information  (Article 15  of  the  EAW  FD)  by  the  set  deadlines 
(Article 17 of the EAW FD) has been very challenging and not always met. 

4. Requests for information 

Eurojust often assisted national authorities in relation to requests for information when such requests 
had remained unanswered by direct contact, despite repeated reminders, and when the need for a reply 
had become extremely urgent. Clarifications, additional information, court decisions, updates and/or 
translated  documents  were  needed  within  a  few  days,  sometimes  even  within  a  few  hours.  Various 
reasons were given for the urgency of the request, for example the suspect was in preliminary custody 
with strict time limits, the scheduled date for a court hearing was approaching or the requested person 
was  serving  a  custodial  sentence  and  would  be  released  soon.  In  most  cases,  Eurojust  managed  to 
successfully assist the national authorities in obtaining the requested information and sending it by the 
set deadlines. In some cases, deadlines were not met and it took great efforts by the National Desks to 
get the requested information. 

Eurojust assisted national authorities in relation to requests for information at different stages: not only 
requests for information pursuant to Article 15(2) of the EAW FD before a decision on the EAW was 
taken (see Section 4.1), but also requests for information on the state of play of the EAW proceedings 
(see  Section 4.2)  and  follow-up  information  after  a  decision  on  the  EAW  had  been  taken  (see 
Section 4.3). 

4.1.  Necessary  and  supplementary  information  before  taking  a  decision  on  the 

surrender 

An executing judicial authority that finds the information communicated by the issuing Member State 
insufficient to take a decision on the surrender must request the necessary supplementary information. 
Article 15 of the EAW FD mentions, non-exhaustively, different topics on which additional information 
can be requested, namely the grounds for non-execution (see Section 3.1), guarantees (see Section 3.2) 
or  the  content  and  form  of  the  EAW  (see  Section 2.2).  In  Eurojust’s  casework,  many  requests  for 
additional information related to these categories, but some requests for additional information also 
concerned topics outside the scope of these provisions, such as questions regarding the issuing judicial 
authority (see Section 2.1), fundamental rights (see Section 3.3) or the possible use of other instruments 
(see Section 10). In several cases, executing authorities requested further information in relation to one 
of the aforementioned elements or a combination of them. Sometimes issuing authorities had omitted 
to fill in certain parts of the EAW and/or other parts were unnecessarily filled in and clarifications were 
then needed. 

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Issuing judicial authorities sometimes approached Eurojust and argued that the information requested 
by an executing judicial authority was excessive. For instance, when executing authorities asked about 
very detailed circumstances of the case and/or supporting evidence, this felt to the issuing authority as 
if  there  was  a  need  for  them  to  prove  that  the  EAW  was  lawful  and  that  the  information  given  was 
accurate and supported by documents. It seemed to go beyond the legal requirements under Article 15 
of the EAW FD that the requested additional information was ‘necessary’ (see also Section 2.2.4). In the 
context of prison conditions, requests for a hearing of prisoners by videoconference to double-check 
their written statements led to similar concerns (see Section 3.3.1). Other examples were requests for 
legal  provisions  (and  their  translation),  lengthy  reports  by  non-governmental  organisations  (and 
translations of them) or judgments of supreme courts (and translations of them in their entirety) when 
these judgments simply confirmed earlier rulings. In most of these cases, the intervention of Eurojust 
led to a reconsideration of the request for additional information and a successful surrender. 

4.2.  Information on the state of play of the European Arrest Warrant proceedings 

In many cases, issuing authorities approached Eurojust to obtain information on the state of play of an 
EAW.  Executing  authorities  sometimes  provided  initial  feedback,  for  instance  when  the  requested 
person  was  arrested  or  conditionally  released.  Then  sometimes  several  months  passed  without  any 
further follow-up information on the EAW proceedings being given. Depending on the cases involved, 
issuing authorities requested to be informed of different issues: 

  whether  the  EAW  had  been  received  in  good  order  and  which  was  the  competent  executing 

judicial authority; 

  whether the requested person had been arrested and was in detention and, if so, on which basis 

(EAW or other proceedings); 

  whether the EAW seemed executable or whether any obstacles had been identified that could 

be overcome and/or whether any further information was needed; 

  whether  there  were  any  ongoing  proceedings  in  the  executing  Member  State,  whether  the 
requested  person  was  executing  another  custodial  sentence  and/or  whether  the  executing 
authority was interested in executing the sentence itself; 

  whether there was information on the stage of the proceedings and the expected time frame for 

the decision on the surrender. 

The fact that the executing authority had not yet replied did not always mean that the execution of the 
EAW was problematic. Sometimes, the procedure was simply ongoing or an appeal had been launched. 
Sometimes delays were due to pending or recent judgments of the CJEU. Executing authorities were 
then postponing their decision until a CJEU judgment on a related topic became available, or they were 
analysing the impact of a recent CJEU judgment and had not yet figured out how to apply it in practice. 
In many cases, Eurojust’s intervention enabled a fast reply on the state of play with an (estimated) date 
or month of the court hearing and/or information on when the decision would be final. 

Executing authorities also clarified, in some cases, that the surrender had actually been granted, but that 
it was postponed, as the suspect was under house arrest or in detention in the executing Member State 
for the execution of a custodial sentence (see also Section 8.3). 

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4.3.  Follow-up information after a decision on the European Arrest Warrant has 

been taken 

Eurojust also assisted in obtaining and providing information at a later stage both in cases in which the 
executing authorities had decided to execute the EAW and in cases in which they had decided not to 
execute the EAW. 

In cases in which the surrender was refused, issuing authorities requested, for instance, the following 
information via Eurojust. 

  The executing court’s decision with the exact reasons for the refusal. 
  Information  on  possibilities  and  chances  for  reissuing  an  EAW.  In  some  cases  the  executing 
authority suggested the reissuing of an EAW, but the issuing authority informed it that, under 
its national law, the reissuing of an EAW was possible only if new case-related circumstances 
had arisen, which had not occurred. 

  Information  on  possibilities  of  and  chances  for  appeal  proceedings  against  the  executing 

authority’s decision. 

  Information on the current stage of the execution of the sentence, particularly if the EAW was 
issued for executing a custodial sentence against a national or resident of the executing Member 
State and the latter had agreed to execute the custodial sentence itself (Article 4(6) of the EAW 
FD). 

In cases in which the surrender was granted, issuing or executing authorities requested, for instance, 
the following information via Eurojust. 

  Information about the exact duration of the detention period arising from the execution of the 
EAW in the executing Member State. Despite the clear obligation in Article 26 of the EAW FD, 
issuing authorities often had to insist to obtain this information. In some of these cases, this 
information  was  transmitted  exclusively  via  the  Supplementary  Information  Request  at  the 
National Entry (SIRENE) bureau and had not reached the issuing judicial authority. 

  Whether the deprivation of liberty in the executing Member State had been for the purpose of 
the EAW or for the purpose of a domestic case. In some cases, the information received from 
police sources and from the requested person in relation to the date of the requested person’s 
arrest was contradictory and needed to be clarified. 

  Information, if applicable, in relation to details of the bail the requested person was admitted to, 
the terms of a curfew and/or conditions of release, in order to evaluate their relevance and how 
they should be considered in terms of deduction of the time of imprisonment to be served. 
  Reasons why the requested person had not yet been surrendered to the issuing Member State, 
urging the executing authorities to agree on a date for the actual surrender. In some of these 
cases,  the  executing  authority  explained  that  the  surrender  could  not  yet  take  place,  as  the 
decision was not yet final and could be appealed against. 

  The  executing  court’s  decision  to  obtain  precise  information  about  the  basis  on  which  the 
requested person was surrendered, for instance to check for which offences the surrender was 

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granted or to verify the requested person’s allegations that their surrender related to a different 
EAW, issued by another court in the issuing Member State. 

  Information and court decisions on previous convictions in the executing Member State when 

relevant in the context of an ongoing trial in the issuing Member State. 

  The executing authority’s consent to a subsequent surrender (see Section 6). 
  Information  on  whether  the  requested  person  had  waived  their  right  to  the  principle  of 
speciality or the executing authority’s consent to prosecution for other offences (see Section 9). 

5. Transmission of European Arrest Warrants 

In its casework, Eurojust was asked to intervene if problems occurred in relation to the chosen means 
of  transmission  (Articles 9  and  10  of  the  EAW  FD)  and  to  facilitate  the  transmission  of  EAWs, 
translations or supporting documents. 

Recurrent issues requiring Eurojust’s intervention related to the following: 

  verifying whether the transmission by fax or email had reached the competent authorities and, 

if not, transmitting the EAWs via the National Desks; 

  transmitting  a  copy  of  the  EAW  via  the  National  Desks  and  establishing  the  contact  details, 
preferably email address, of the competent executing authority that should receive the original 
directly from the issuing authority; 
  Urgently transmitting corrected EAWs; 
  addressing problems resulting from the use of SIRENE, police channels or central authorities; 
  resolving questions in relation to SIS II alerts or flagging; 
  raising  awareness  of  pending  SIS  alerts  in  cases  in  which  the  requested  person  was  to  be 

released soon after serving a custodial sentence in the executing Member State; 
  clarifying that EAWs had erroneously been removed while they were still valid; 
  clarifying that EAWs were no longer valid and that the executing authority needed a withdrawal 

notification, as they were not in the SIS II system, so a SIS notification was not enough; 

  checking the validity of several coexisting EAWs relating to the same acts and the same person 
and issued by the same authority and whether the last EAW had repealed the previous ones; 
  understanding  why  a  previous  EAW had  been  withdrawn  and  whether  the  new  EAW,  which 

referred to the same acts, was valid; 

  clarifying why an EAW was flagged in the system. 

Clarifying why a European Arrest Warrant was flagged 
An issuing authority had issued a fourth EAW when three previous EAWs had already been refused. 
The executing authority  advised that it could not proceed any longer with the  fourth EAW, as the 
executing authority had already decided on the previous EAWs addressing the same offences and the 
same person. The issuing authority was asked to withdraw the EAW, but refused to do so. In the end, 
the fourth EAW was flagged in SIS for the executing authority, to prevent repeated EAW proceedings 
in the executing Member State in relation to this specific case. At the same time, the EAW remained 
valid in respect of the other EU Member States. 

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In  2018,  an  operational  topic  was  opened  in  relation  to  the  requirement  of  the  original  paper 
version of the EAW. The questionnaire focused particularly on the question of how the Member States 
interpreted the term ‘EAW’, particularly whether, in their Member State, the transmission of an EAW by 
fax, email or SIRENE alone was sufficient for the purpose of its execution or whether, at any stage of the 
EAW  proceedings,  the  original  paper  version  of  the  EAW  was  required  before  a  decision  on  the 
execution of the EAW could be taken. 

The replies to the questionnaire indicate that, in the 22 Member States that replied to the questionnaire, 
the term ‘EAW’ is interpreted in a way that does not require the EAW to be the original paper version. 
In the vast majority of Member States, the transmission of an EAW by fax, email or  SIRENE alone is 
sufficient  for  the  purpose  of  its  execution.  EAWs  transmitted  by  fax  or  other  electronic  means  are 
treated and accepted as the original EAW. The original paper version of the EAW is not required, at any 
stage of the EAW proceedings, before a decision on the execution of the EAW can be taken, except when 
the authenticity is put in question, but this seldom occurs, according to the replies. 

6. Competing requests for surrender/extradition and 

subsequent surrender/extradition 

6.1.  Competing requests for surrender and extradition 

Article 16(2) of the EAW FD explicitly states that Eurojust may be requested by the executing judicial 
authority to provide advice on which of the EAWs should be executed when the requested person is 
subject to EAWs issued by two or more Member States (‘competing EAWs’). 

Eurojust guidelines 

In 2004, Eurojust published, for the first time, guidelines to support national authorities in the event of 
competing EAWs and to assist them in deciding which request to execute. These guidelines are flexible 
and  non-binding,  and  fully  respect  national  legal  orders.  They  include  the  factors  mentioned  in 
Article 16 of the EAW FD, but complement and develop these factors in the light of different scenarios. 

In  2019,  Eurojust  published  a  revised  version,  the  Eurojust  guidelines  for  deciding  on  competing 
requests for surrender and extradition (revised 2019) (hereinafter ‘Eurojust guidelines’). The Eurojust 
guidelines enlarged the scope of the original guidelines by including scenarios not only for Article 16(1) 
of  the  EAW  FD  (competing  EAWs),  but  also  for  Article 16(3)  of  the  EAW  FD  (competing  EAW  and 
extradition request(s)). Moreover, they further developed the factors to be used in the decision-making 
process (e.g. reintegration objective). They also addressed coordination and follow-up measures that 
could be relevant before and after an executing authority decides which of the requests it will execute, 
for  example  temporary  surrender,  transfer  of  proceedings,  transfer  of  prisoners  and  subsequent 
surrender (Article 28 of the EAW FD). 

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Eurojust’s advice on competing requests 

Between 2017and 2020, Eurojust provided advice and assistance to national authorities in the context 
of competing requests for surrender and extradition in 28 cases (see figure below). 

For cases of competing requests, Eurojust organised level II meetings, with representatives from the 
National Desks concerned, and issued in many cases, on the basis of the Eurojust guidelines and the 
additional  information  provided  by  the  issuing  authorities,  formal,  non-binding  opinions  on  which 
request should be executed (first). 

Number of Article 16 EAW FD cases in which Eurojust’s assistance was requested (2017–2020) 

11

8

5

4

2017

2018

2019

2020

  Decisive factors in different scenarios 

A first group of cases concerned cases in which all requests were issued for the purpose of prosecution 
(‘Scenario 2’ or ‘Scenario 5’ cases under the Eurojust guidelines). Factors that were mostly decisive in 
such  cases  were  the  seriousness  of  the  offence  (number  of  incidents  of  the  type  of  crime  and/or 
damage),  the  prosecution  of  co-suspects  and  advanced  stage  of  the  investigation,  the  risk  of  the 
prosecution being time barred, the number of victims and the link of the requested person with one of 
the  issuing  Member  States.  If  the  requested  person’s  immediate  presence  was  due  in  both  issuing 
Member States, authorities discussed arrangement for a temporary surrender (Article 24(2) of the EAW 
FD) to the other issuing Member State so that the investigative judge could finalise the investigation and 
take a formal decision on the indictment. 

A  second  group  of  cases  concerned  competing  requests  for  the  purpose  of  prosecution  and  for  the 
execution of a custodial sentence (‘Scenario 3’ or ‘Scenario 5’ cases under the Eurojust guidelines). In 
these cases, priority was normally given to the request for prosecution, unless (i) there was a risk that 
the execution of the custodial sentence would be time barred or (ii) the sentence in the other country 
was related to an extremely serious offence, compared with the other case. For instance, in a competing 
case of an EAW for prosecution for forgery and an extradition request for the execution of a 23-year 

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custodial  sentence  for  murder,  participation  in  a  criminal  organisation  and  illegal  possession  of 
firearms, the extradition request was prioritised. 

When the execution of the sentence was prioritised, authorities often agreed on measures to ensure 
that,  in  such  cases,  the  prosecution  could  move  forward,  for  example  the  issuing  of  an  EIO  (for  the 
hearing  of  the  requested  person)  and/or  a  temporary  surrender  (for  the  duration  of  the  trial  and 
appeal). In other cases, in which the EAW for prosecution was given priority and the requested person 
was a national of the executing Member State, the surrender was granted under a return guarantee. 
Moreover, it was agreed that, upon the requested person’s return to the executing Member State, that 
state would agree with the other issuing Member State on a transfer of sentence based on FD 909. 

Finally, a third group of cases concerned competing requests for the execution of custodial sentences 
(‘Scenario 4’  or  ‘Scenario 5’  cases  under  the  Eurojust  guidelines).  In  such  cases,  priority  was  usually 
given  to  the  EAW  that  concerned  the  more  serious  acts  and/or  the  acts  that  were  committed  first. 
Afterwards,  a  subsequent  surrender  took  place.  In  some  cases,  consideration  was  also  given  to  the 
rehabilitation  objective;  the  requested  person  was  then  surrendered  to  the  Member  State  of 
nationality /  habitual  residence,  which  could  not  only  execute  the  custodial  sentence  that  itself  had 
imposed, but also, after a transfer of sentence, the custodial sentence imposed by the other Member 
State. In such a scenario, there was no need for a subsequent surrender as the requested person could 
execute both sentences in the Member State of nationality / habitual residence. 

  Advice, coordination and follow-up measures 

Despite  the  explicit  reference  to  Eurojust’s  role  in  Article 16  of  the  EAW  FD,  the  number  of  cases  of 
competing  requests  in  which  Eurojust  has  become  formally  involved  has  remained  very  limited, 
compared with other EAW cases. Yet Eurojust’s involvement in such cases can bring many benefits. 

  Providing advice within tight deadlines and providing all relevant information from the issuing 
authorities so that the executing authority can take a well-informed decision. This information 
can relate to, for example, the purpose of the EAW, the seriousness of the offence, possible co-
suspects, any statute of limitation and the state of play of the investigations. 

  Not only focusing on the decision of which EAW should be executed (first) (see Section 6.1.3), 
but  also  coordinating  the  required  follow-up  actions  in  relation  to  the  other  EAW(s)  or 
extradition  request(s),  such  as  a  subsequent  surrender,  a  transfer  of sentenced  persons  or  a 
transfer of proceedings. 

  Clarifying  in  some  cases  that  competing  requests  were  in  fact  not  ‘competing  requests’,  for 

instance when one of the EAWs was not valid. 

  Giving information on appeal proceedings and helping to launch them if there were arguments 
to set aside the decision taken by a court of first instance, for example if the only factor that the 
court  of  first  instance  considered  was  the  requested  person’s  consent/preference  to  be 
surrendered to one of two Member States. 

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Deciding where to prosecute an international contract killer 
A contract killer of dual Serbian and Hungarian nationality was suspected of committing three 
proven murders, connected to drug-trafficking crimes in Amsterdam, Budapest and Belgrade. 
The contract killer, who remained at large, was therefore wanted in two EU Member States and 
in one non-EU country (Serbia). On 1 March 2019, following intensive judicial cooperation via 
Eurojust, the suspect was arrested and successfully searched for evidence in Prague. The Czech 
authorities had to decide which surrender/extradition request they should prioritise and serve 
with  the  evidence  seized.  The  National  Desks  at  Eurojust  quickly  arranged  a  close  dialogue 
between  the  countries  concerned,  advised  on  a  possible  transfer  of  proceedings  to  avoid 
potential conflicts of jurisdiction, and offered round-the-clock translation and transmission of 
EAWs and EIOs. Following the agreement to transfer the Dutch proceedings to Hungary, the 
joint conclusion set up and disseminated by Eurojust suggested that Hungary was best placed 
to prosecute. As Serbia was not legally in a position to either try the Dutch case or surrender its 
case to Hungary, the suspect was subsequently surrendered to Hungary upon the decision of 
the Czech Municipal Court in Prague and Minister of Justice. In 2021, the contract killer was 
sentenced to life imprisonment in Hungary. 

6.2.  Subsequent surrender/extradition 

In  many  cases  related  to  competing  requests,  the  subsequent  surrender/extradition  was  already 
discussed  at  the  time  when  the  executing  authority  decided  on  which  request  to  execute  (see 
Section 6.1).  However,  in  cases  in  which  the  second  EAW  was  issued  or  known  only  after  the  first 
surrender  or  extradition  took  place,  the  competent  authorities  needed  to  obtain  the  consent  of  the 
authority that arranged the first surrender/extradition (Article 28 of the EAW FD). 

Eurojust’s casework reveals several difficulties in obtaining that consent. Eurojust was involved in: 

  facilitating the exchange of relevant information on the pending request; 
  clarifying which authority/state should approve the subsequent surrender/extradition; 
  clarifying which authority/state should request the subsequent surrender/extradition; 
  speeding up obtaining the consent to avoid the lifting of the EAW proceedings; 
  clarifying that, despite confusing communication via SIRENE, an EAW was still active, and thus 

consent for the subsequent surrender was still needed. 

7. Time limits for the decision to execute a European Arrest 

Warrant 

According to Article 17(7) of the EAW FD, if a Member State cannot observe the time limits provided for 
in Article 17 of the EAW FD, it must inform Eurojust, giving the reasons for the delay. When notified of 
breaches  of  time  limits  in  the  execution  of  EAWs,  Eurojust  can  contribute  to  reducing  delays  in  the 
execution of EAWs and to improving the smooth operation of EAW proceedings, at both operational and 
strategic levels. 

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Overview of the number of formal Article 17 EAW FD notifications (time limit exceeded) to Eurojust 
(2017–2020) 

116

68

55

59

2017

2018

2019

2020

Overview of the number of formal Article 17 EAW FD notifications to Eurojust, per country (2017–
2020) 

Country (*)   2017 

 2018 

 2019  2020  Total 

BG 

CY 

CZ 

EL 

ES 

HR 

HU 

IE 

LV 

PT 

SE 

SI 

SK 

UK 

            0 

3 

1            0 

            0              0              0 

24 

6             2 

1             0              0 

            0              0              0 

3 

4 

1 

1 

1 

1             0             0 

            0 

1             0 

42 

79             0 

1 

43 

            0 

            0 

2             0             0 

1             0             0 

            0              0              0 

3 

            0 

1             0             0 

            0              0              0 

            0 

22 

52 

2 

1 

4 

3 

36 

2 

1 

2 

2 

164 

2 

1 

3 

1 

2 

75 

(*) The countries not included in this table have zero notifications. 

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The figure and table above give an overview of the number of cases that national authorities formally 
brought to Eurojust as ‘Article 17 EAW FD’ cases, meaning that the executing authority could not comply 
with the time limits. It is unlikely that these numbers represent the total number of cases  for which 
breaches  of  time  limits  occurred.  It  also  follows  from  other  sources  that  national  authorities  do  not 
always comply with their obligation to notify Eurojust when time limits are exceeded (41). Moreover, 
sometimes cases are registered at Eurojust in view of facilitating the execution of the EAW without the 
time  breach  being  mentioned.  Consequently,  such  cases  are  not  registered  in  Eurojust’s  case 
management system as ‘Article 17 EAW FD’ cases. 

In order to improve the compliance with Article 17(7) of the EAW FD, in 2018 Eurojust created a smart 
PDF form that national authorities can use when informing Eurojust that they cannot observe the time 
limits, giving the reasons for the delay (Article 17(7) of the EAW FD). This form is available on Eurojust’s 
website  in  22  languages.  Unfortunately,  the  use  of  this  template  has  been  quite  limited  and  has  not 
contributed to an increase in the number of notifications. 

On the basis of the notifications that were made to Eurojust in previous years, ‘requests for additional 
information’  and  the  ‘length  of  appeal  proceedings’  continued  to  be  the  main  reasons  explicitly 
mentioned for non-compliance with time limits, together with, since 2020, ‘COVID measures’. However, 
in the vast majority of notifications (91 %), no reasons were given for the delay in the execution of the 
EAW. When looking at cases that were brought to Eurojust to facilitate the execution of the EAW, it can 
be concluded that time limits were often exceeded in cases in which requests for additional information 
on fundamental rights issues or in absentia judgments led to follow-up questions, and also sometimes 
in cases for which national proceedings had been suspended in view of a pending CJEU judgment. 

In some cases, involving very serious offences, the EAW proceedings lasted for so many years that they 
were  more  like  lengthy  and  cumbersome  extradition  procedures  than  efficient  EAW  procedures. 

Requested person surrendered in 2020 to stand trial for a murder committed in 1981 
A requested person was wanted for prosecution for a murder in 1981 and membership of a terrorism 
group.  In  2013,  executing  authorities  refused  the EAW  for  the  first  time,  and  subsequent  refusals 
followed. Eurojust supported the national authorities in the exchange of relevant information related 
to  time-bar  limitation,  prescription  of  the  offences  and  fundamental  rights  grounds  (prison 
conditions). In 2019, the ECtHR condemned the executing Member State for having violated Article 2 
of the ECHR by refusing to execute the EAW for the surrender of the requested person (42). After a 
court of first instance again refused to execute the EAW, the court of appeal requested, via Eurojust, 
a  statement  by  the  issuing  authorities  with  guarantees  on  the  concrete  and  precise  conditions  of 
detention, in particular the ‘incommunicado’ regime and the alleged lack of assistance from a lawyer 
of  the  requested  person’s  choice.  The  court  of  appeal  received  the  additional  information  and 
concluded that neither the ‘statute bar’ grounds nor the prison condition argument could be invoked, 
and  therefore  granted  the  surrender.  The  supreme  court  dismissed  the  arguments  raised  by  the 
requested person in their appeal. Finally, in November 2020, the requested person was surrendered 
to the issuing Member State to stand trial for the murder committed in 1981. 

(41)  See particularly Commission staff working document, Replies to questionnaire on quantitative information on the practical operation of 
the  European  Arrest  Warrant –  Year  2018,  SWD  (2020)  127  final,  Council  doc.  9341/20,  p. 22.  This  document,  which  includes 
information related to 2018, reveals in point 8.2 differences from the numbers available in the table mentioned above and confirms that 
Eurojust is not always informed in cases where time limits are exceeded (see also point 8.1 of Council doc. 9341/20). 

(42)  Romeo Castaño v Belgium (see footnotes 35 and 37). 

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8. Postponement of surrender and problems with the actual 

surrender 

According to Article 23 of the EAW FD, the requested person must, in principle, be surrendered not later 
than 10 days after the final decision on the execution of the EAW. Exceptions are set out in the event of 
force majeure (Article 23(3) of the EAW FD), for serious humanitarian reasons (Article 23(4) of the EAW 
FD)  or  in  the  event  of  prosecution  or  execution  of  a  sentence  in  the  executing  Member  State 
(Article 24(1) of the EAW FD). In its casework, Eurojust has come across cases that fall within each type 
of exception. Eurojust’s assistance was also requested in relation to other issues involving the actual 
surrender (e.g. transits). 

8.1.  Force majeure 

In several cases, the actual surrender could not take place and competent authorities had to agree on a 
new  surrender  date.  In  some  cases,  repeated  attempts  to  surrender  the  requested  person  were  not 
successful,  and  the  actual  surrender  could  only  take  place  months  after  the  decision  granting  the 
surrender had been taken. Eurojust was requested to facilitate the agreement on a new surrender date 
and the exchange of information regarding transport arrangements. 

A reason for invoking Article 23(3) of the EAW FD was, for instance, when requested persons strongly 
resisted their surrender by plane and the airline company consequently refused to transport them. In 
one case, authorities considered picking up the requested person with a military aircraft, but finally 
concluded that this would be unreasonably expensive. 

In  other  cases,  the  requested  persons  were  not  kept  in  detention,  but  were  required  to  present 
themselves  every  2 weeks  at  the  police  station  and  simply  did  not  show  up  on  the  day  of  the 
surrender. Issuing authorities then often had difficulties in understanding why the requested persons 
were not in detention prior to the surrender and requested further explanations via Eurojust. Some 
National Desks underlined that it is a recurrent issue with some Member States that the actual surrender 
at  the  date  previously  agreed  between  police  authorities  cannot  take  place  because  the  requested 
persons cannot be found. 

Since April 2020, it has been impossible for many surrenders to take place as a result of the outbreak of 
the  COVID-19  pandemic.  Measures  applied  by  the  Member  States  in  relation  to  the  COVID-19 
pandemic, such as lockdowns, curfews and closures of borders, have seriously affected the final stage of 
the EAW procedure, that is the physical transfer of a requested person to the issuing Member State. The 
most frequent scenario identified in the cases brought to Eurojust  was when the executing authority 
decided on the recognition and execution of the EAW, but it was not possible to organise the transfer of 
the  requested  person  to  the  issuing  Member  State.  In  a  majority  of  cases,  the  request  for  the 
postponement  of  surrender  was  based  on  either  Article 23(3)  of  the  EAW  FD  (force  majeure)  or 
Article 23(4) of the EAW FD (humanitarian reasons) or both. In 2021, Eurojust published a report on 
the  impact  of  COVID-19 on  judicial cooperation  in  criminal  matters –  analysis  of  Eurojust  casework, 
which addresses this subject in more detail. 

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In most cases, the requested person remained in detention until the final date of the transfer was agreed 
between the authorities involved, but, on occasion, the requested person was released. In this regard, it 
should  also  be  recalled  that  Member  States  are  required  to  take  all  the  measures  that  they  deem 
necessary to prevent the person from absconding (Article 12 of the EAW FD) (43). 

COVID-19 affecting the actual surrender of a person suspected of child abduction and domestic 
violence 
An  issuing  authority  had  issued  an  EAW  in  December  2019  against  the  requested  person  for 
prosecution for child abduction and domestic violence. The individual was arrested in the executing 
Member State based on a national arrest warrant concerning other offences for which he had first to 
serve a 4-month prison term. The executing authority had agreed to surrender the requested person 
to the issuing authority after the full execution of his sentence, but the actual surrender could not take 
place because of the outbreak of the COVID-19 pandemic. The executing authority agreed to extend 
the detention of the suspect based on the EAW proceedings, but, as the actual surrender did not take 
place  within  the  deadline  of  10 days  set  in  Article 23  of  the  EAW  FD,  the  question  arose  of  the 
postponement  of  the  surrender  and  the  release  of  the  suspect.  On  17 April  2020,  the  executing 
authority considered it impossible to plan a new date of surrender owing to the uncertainty of the 
health situation  and  the duration  of  the  restrictions  applied  in  the  Member  States,  and  decided  to 
release  the  individual  until  the  issuing  and  executing  authorities  would  be  ready  to  resume  the 
surrender proceedings. After the surrender procedures between both countries started again and a 
new date was agreed, the actual surrender could not take place because the requested person did not 
show  up.  Judicial  and  police  cooperation  continues  in  this  case  to  try  to  locate  the  requested 
individual. 

8.2.  Humanitarian reasons 

Eurojust assisted in a number of cases in which humanitarian issues were raised. The most common 
grounds for raising issues were taking care of small children, physical or mental illness and the COVID-
19 pandemic. 

Taking care of small children 

When  the  requested  person  was  living  with  small  children –  usually  up  to  the  age  of  3 years –  and 
executing authorities feared that the surrender would be a traumatic experience for the children, the 
executing  authorities  decided  to  postpone  the  surrender  and  reflected,  with  Eurojust’s  support,  on 
possible solutions. In most of these cases, the surrender succeeded in the end, for example when the 
children had turned a certain age. Sometimes, it could take some time. For instance, in one case, when 
the  child  had  turned  3 years,  the  requested  person  was  pregnant  again  and  the  executing  authority 
postponed the surrender again. 

In some cases, alternative or complementary measures were discussed, such as the transfer of criminal 
proceedings  to  the  executing  Member  State,  a  temporary  surrender,  an  LoR  (e.g.  for  the  service  of 
documents) or an EIO (e.g. for the hearing of the requested person or a house search). In some other 
cases, the requested person disappeared before a solution could be found. 

(43)  For an interpretation of this provision in the light of the Charter, see the judgment of the CJEU of 12 February 2019, TC, C-492/18 PPU, 
ECLI:EU:C:2019:108, with reference to the judgment of the CJEU of 16 July 2015, Langian, C-237/15 PPU, ECLI:EU:C:2015:474. 

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Executing courts sometimes took into consideration the nature of the crimes for which the surrender 
was requested and/or the lack of a previous criminal record when deciding on the postponement of the 
requested person’s surrender. 

Serious illness 

Eurojust intervened in several cases in which the requested person suffered from a serious physical or 
mental illness,  to discuss whether a surrender would be justified and to find solutions to enable the 
surrender or to find alternative solutions, if surrender was not an option: 

  guarantees with regard to a specific medical treatment in the issuing Member State; 
  arrangements on a specialised medical air transport; 
  streamlining  the  communications  and  speeding  up  the  processes  by  clarifying  certain 

requirements; 

  withdrawal of the EAW and instead issuing an EIO for an interview so that information could be 

obtained to enable the issuing authorities to finalise their proceedings; 

  withdrawal  of  two  competing  EAWs  after  the  requested  person  was  hospitalised  following a 

very serious heart attack; 

  questions  on  the  reliability  of  a  medical  report  of  the  executing  Member  State,  which 
contradicted a report of the issuing Member State, leading to the appointment of an independent 
medical expert; 

  obtaining the final court decision to understand why the court had ruled that the person’s health 

condition did not permit him to be incarcerated or to fly; 

  exchange of information that indicated that the requested person was committing crimes again, 
which  raised  doubts  about  the  requested  person’s  alleged  illness  and  called  for  a  medical 
examination; 

  arrangements for a surrender with a medical assistant (doctor, paramedic) in order to avoid any 

danger and harm to the requested person and/or others during transport; 

  arrangements  to  transfer  the  requested  person  on  board  a  military  aeroplane  with  medical 
equipment  and  staff,  together  with  the  requested  person’s  minor  child,  who  needed  breast 
feeding, and to detain the suspect subsequently in an appropriate detention centre; 

  providing a ‘fit to fly’ declaration, signed by a doctor of the executing Member State and duly 

translated for the issuing Member State; 

  ensuring the presence of medical personnel on board during a flight and assurances on adequate 

medical treatment in the issuing Member State. 

The COVID-19 pandemic 

In some cases, national authorities invoked Article 23(4) of the EAW FD when surrenders could not take 
place owing to the outbreak of the COVID-19 pandemic (see also Section 8.1 and the report mentioned 
there). 

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8.3.  Ongoing prosecution or execution of a sentence in the executing Member 

State 

If the requested person is the subject of an ongoing prosecution, or is serving a sentence, in the executing 
Member State, then the executing authority can decide to either postpone the surrender (Article 24(1) 
of the EAW FD) or temporarily surrender the person to the issuing Member State (Article 24(2) of the 
EAW FD). 

Close  cooperation,  communication  and  coordination  were  often  key  to  ensuring  that  the  criminal 
proceedings or the execution of custodial sentences in both Member States were successful. In some 
cases, problems arose when the competent authorities failed to keep up the communication when the 
requested person’s date of release was approaching or if the requested person could be released before 
the prison term was fully served, for example early release or conditional release. Good communication 
could enable the requested persons to be taken in surrender detention at the moment of their release, 
with a view to a smooth surrender. 

Lack of coordination leading to a release 
A requested person’s surrender was postponed until a 6-month custodial sentence in the executing 
Member  State  was  executed.  The  requested  person  was  released after 6 months,  but –  despite  the 
postponement  decision –  the  surrender  was  not  carried  out.  Issuing  authorities  requested 
information  on  the  reason  for  non-surrender;  since  the  executing  authority  did  not  reply,  they 
contacted Eurojust. Via Eurojust, it was clarified that the requested person had been released owing 
to a mistake of the executing authorities: the prison authorities had not been informed that the EAW 
was  pending.  Fortunately,  the  requested  person  could  still  be  arrested  shortly  afterwards  in  the 
executing Member State and the EAW could be executed. 

Eurojust assisted national authorities in exchanging relevant information related to: 

  the expected date of the requested person’s surrender so that the issuing authority could also 

plan a number of investigative measures in other Member States; 

  the reasons for the requested person’s imprisonment in the executing Member State; 
  the expected duration of the proceedings in the executing Member State; 
  the expected trial date in the executing Member State; 
  the state of play of the execution of the sentence in the executing Member State; 
  the requested person’s expected release from prison; 
  practical  issues  in  allowing  the  requested  person  to  examine  the  criminal  file  related  to  the 
proceedings in the issuing Member State in a prison in the executing Member State, for example 
the presence of police authorities from the issuing Member State, transport of the extensive file 
and interpretation; 

  the temporary removal of the EAW from SIS, subject to the executing authority’s commitment 
to  inform  the  issuing  authority  when  the  EAW  could  be  uploaded  again  in  SIS  in  view  of  a 
surrender; 

  the requested person’s links with the issuing Member State, to consider a possible transfer of 

prisoners under FD 909. 

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Temporary surrenders were very helpful to ensure the continuity of criminal proceedings in the issuing 
Member  State.  Eurojust  successfully  assisted  national  authorities  in  assessing  the  feasibility  of 
temporary  surrenders  in  concrete  cases  and  in  reaching  agreements  on  the  temporary  surrender. 
Such agreements contained all relevant information, including the date and duration of the temporary 
surrender and any other specific requirements. Sometimes executing authorities approached Eurojust 
when issuing authorities were ignoring the temporary nature of the surrender and refusing to send the 
requested person back to the executing Member State. The issuing authority argued, for instance, that 
there  had  been  only  ‘email  exchange’  on  the  temporary  surrender,  but  not  a  ‘formal  agreement’. 
However, such arguments were set aside during discussions at Eurojust. Following an interpretation of 
the  national  laws  in  the  light  of  the  EAW  FD,  the  conclusion  was  that  neither  the  wording  nor  the 
purpose of the EAW FD require a formal agreement. An agreement can thus also be reached through 
email exchange, but it was underlined that it is important that the content of what was agreed must be 
clear and unequivocal. 

In most cases, executing authorities postponed the requested person’s surrender until the moment that 
the criminal proceedings in the executing Member State had ended and a possible sentence had been 
executed. However, in some cases, executing authorities surrendered the requested person after the 
trial and conviction phase, but before the execution of the custodial sentence had started, and without 
making any clear arrangements with the issuing Member State on the future execution of that sentence. 
illustrates  how  problematic  such  an  approach  can  be. 
The  case  mentioned  below 

Lack of coordination leading to a sentence becoming statute barred 
An executing authority agreed to execute an EAW for a non-EU country national, but postponed the 
surrender  until  the  criminal  proceedings  in  the  executing  Member  State  had  ended.  Shortly 
afterwards, the executing Member State sentenced the requested person to a custodial sentence of 
2 years  and  9 months  for  aggravated  rape.  They  surrendered  him  to  the  issuing  Member  State, 
without a condition that the suspect should be returned to the executing Member State to serve the 
sentence  for  the  aggravated  rape.  The  issuing  Member  State  then  prosecuted  and  convicted  the 
requested person for other very serious crimes and decided to deport him to his country of origin 
after finalising the custodial sentence of the issuing Member State. After serving several years in 
prison  in  the  issuing  Member  State,  the  sentence  of  the  executing  Member  State  was  close  to 
becoming statute barred. The executing Member State then issued an EAW to the issuing Member 
State for serving the sentence for the aggravated rape. The EAW was not executed, as the requested 
person was still serving the sentence imposed in the issuing Member State. The authorities briefly 
considered  the  possibility  of  a  transfer  of  the  sentence,  but  this  idea  was  rejected,  since  the 
requested  person  would  be  deported  to  his  country  of  origin  after  finishing  the  sentence  of  the 
issuing Member State, and transfer of the sentence could be arranged only in order to facilitate social 
rehabilitation  in  the  issuing  Member  State.  This  led  to  a  situation  in  which  the  sentence  of  the 
executing Member State became statute barred. Looking back, the statute bar could possibly have 
been avoided if the surrender from the executing Member State had been done on a temporary basis 
subject to the condition that the requested person would return to the executing Member State for 
the execution of his sentence when the criminal proceedings and trial in the issuing Member State 
had come to an end. 

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8.4.  Transit 

Eurojust  intervened  in  several  cases  in  which  transits  (Article 25  of  the  EAW  FD)  were  requested. 
Eurojust helped to obtain, urgently, the consent of the competent authority in the transit country to a 
transit. In most cases, the consent was successfully obtained. Yet problems occurred in some cases, for 
instance when transfers had to be rearranged at the last minute, as the airline company in the transit 
country declined to take prisoners on its flights. Solutions were usually found quickly and the requested 
person was transferred with another airline company or on a direct flight or via another transit country. 
In some cases, the feasible alternatives were more cumbersome. 

Finding an alternative solution in the case of a transit refusal 
An issuing authority had issued an EAW against the requested person, who was convicted of drug-
related offences. First, it was planned to surrender the requested person by plane, but he resisted a 
lot and the operation had to be cancelled. The next attempt was to transfer him by car through a 
transit  country.  Unfortunately,  the  authorities  of  that  country  declined  to  transport  him  through 
their territory because they did not allow the officials of the issuing Member State to be present in 
the case of a transit by land, while this was a requirement under the issuing Member State’s law. The 
final solution in this case was to organise a transit via another country, not only by land, but first by 
ship (so as not to go through the other country that had refused the transit) and then by land via the 
other country. It was agreed that police officials of the issuing Member State could be present during 
the transit, but they were not allowed to carry weapons with them on the territory of the transit 
country.  Armed  police  of  the  transit  country  would  assist  them  during  the  transit.  It  was  also 
specified that the cost of the transfer would be borne by the issuing Member State. This solution was 
also applied in other cases where the first-addressed transit country refused to cooperate. 

9. Prosecution or carrying out of a custodial sentence for other 

offences (speciality rule) 

When an issuing authority wanted to prosecute a requested person or execute a custodial sentence in 
relation  to  offences  that  were  different  from  those  for  which  the  surrender  was  granted,  difficulties 
sometimes arose in relation to the application of the ‘speciality rule’ (Article 27 of the EAW FD). Both 
issuing and executing authorities approached Eurojust when there was a need to speed up the process 
of obtaining consent or the requested additional information. 

Issuing  authorities  often  approached  Eurojust  prior  to  the  surrender  indicating  that  they  urgently 
needed  to  alert  the  executing  authority  to  necessary  changes  related  to  the  offences included in  the 
EAW.  Such  changes  resulted  from  further  developments  in  the  criminal  proceedings  or  because  the 
issuing authorities had become aware that the requested person was also wanted for other offences in 
the  issuing  Member  State.  In  most  cases,  the  EAW  was  updated  and  executed  in  time  before  the 
surrender took place and no recourse to Article 27 of the EAW FD was needed (see Section 2.2.4). 

In other cases, in which there were requests for extending the EAW and/or additional EAWs arrived 
after the surrender, Eurojust assisted in facilitating the process of obtaining consent and/or clarifying 
different issues in relation to the application of Article 27 of the EAW FD. Recurring issues related to the 
following. 

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  Lack  of  reply.  Requests  for  consent  through  direct  contact  had  remained  unanswered  and 

issuing authorities urgently needed to know the state of play of the consent proceedings. 

  Clarification  of  whether  or  not  requested  persons  who  had  been  surrendered  under  the 

consent procedure had renounced the principle of speciality. 

  Urgency of requesting consent, often in view of a pending indictment, or during a temporary 
surrender, but sometimes at the last minute, following a conviction for the other offences (44). 
  (Re)drafting  of  consent.  When  consent  was  not  accurately  drafted  or  did  not  refer  to  the 
correct offences or did not include any reference to a guarantee under Article 5(3) of the EAW 
FD, which had previously been provided in relation to the offences included in the EAW, new 
consent was needed. 

  Modifications  of  the  description  of  the  offence  following  further  developments  in  the 
investigation. Even though the CJEU clarified that the speciality rule does not require consent 
for  every  modification  of  the  description  of  the  offence (45),  national  authorities  sometimes 
struggled with different interpretations in concrete cases. For instance, in a few cases in which 
the requested persons had been surrendered on the basis of murder, the issuing authority later 
requested an extension of the surrender to ‘assault’ and ‘non-intentional killing’. The executing 
authorities involved disagreed that consent was needed, as it concerned the ‘same’ acts and did 
not constitute a different offence, yet they agreed to provide consent, as the issuing authorities 
insisted that they needed it to succeed with their proceedings. 

  Modification  of  the  description  of  the  offence  to  correct  factual  mistakes  in  the  EAW. 
Issuing authorities realised only after the surrender that the EAW had not specified the dates 
when drugs offences had actually occurred, but only when the drugs plantation was discovered. 
After consultation with the Eurojust National Desk, the issuing authority issued a request, using 
the EAW form, to extend the period in which the offen ces had occurred, specifying clearly that 
it concerned an ‘additional’ EAW, more particularly a request for an extension of the surrender 
granted by the court of (place) on (date). The issuing authority also sent the executing authority 
a document that confirmed that the requested person was informed of this extension. 

  Specific requirements under national law related to the requested person’s involvement in 
the consent proceedings in the executing Member State. For instance, executing authorities 
requested, via Eurojust, the contact details of the requested persons, including the address of 
the detention centre where they were serving their prison sentence or contact details of their 
defence lawyer. Sometimes they requested support with organising a hearing of the requested 
persons or with obtaining the requested person’s opinion. Often this considerably delayed the 
consent proceedings in the executing Member State and the criminal proceedings in the issuing 
Member State. 

  Partial  executions  of  cumulative  judgments,  in  particular  when  the  executing  authority 
wanted to be sure that the cumulative sentence would be adjusted in the light of the speciality 
principle. Before granting the actual surrender, coordination meetings were held at Eurojust, at 

(44)  As the CJEU clarified in Leymann and Pustovarov, the requested person can be prosecuted and sentenced for the ‘other’ offence before 
the consent has been obtained, provided that no measures of deprivation of liberty are applied during the prosecution on the basis of 
this ‘other’ offence. If the person is sentenced to a penalty or a measure restricting liberty, then consent is required in order to enable 
that penalty to be executed. Judgment of the CJEU of 1 December 2008, Leymann and Pustovarov, C-388/08 PPU, ECLI:EU:C:2008:669, 
para. 73. 
Judgment of the CJEU of 1 December 2008, Leymann and Pustovarov, C-388/08 PPU, ECLI:EU:C:2008:669,, paras 56–63. 

(45) 

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which issuing authorities ensured that they would comply with this requirement and provided 
additional supporting material in this regard (see Section 2.2.5). 

  Explanations  of  why  consent  was  not  granted,  for  example  dual  criminality  or  in  absentia. 
Exceptionally, executing authorities refused based on  ‘the principle of speciality’, but did not 
mention any of the reasons of Articles 3 or 4, as required under Article 27(4) of the EAW FD. 
This  even  happened  in  a case  in  which  the  requested  person  had  voluntarily  left  the  issuing 
Member State’s territory to return to the executing Member State (see example below). 

Problematic interpretation of the rule of speciality 
An issuing authority issued an EAW against the requested person for engaging in a fraudulent value 
added tax carousel. The executing Member State surrendered the requested person to stand trial in 
the issuing Member State for this offence. During the trial phase, he was released from custody on 
probation.  However,  after  his  release,  he  almost  immediately  returned  to  the  executing  Member 
State.  The  issuing  authorities  then  issued  a  second  EAW  for  other  fraud-related  offences.  The 
executing court recalled that the first surrender was being made ‘subject to the law of speciality’. 
Then the court noted that the requested person had left the issuing Member State ‘before his final 
discharge’ and that, thus, the 45 days mentioned in Article 27(3)(a) of the EAW FD had not started 
running. The executing court argued that ‘since Article 27(3)(a) found no application, Article 27(2) 
EAW FD applied’ and concluded that the requested person’s return to the issuing Member State was 
barred by the rule of speciality. 
It is difficult to understand the executing court’s reasoning in applying the speciality rule in a case 
in which the requested person had voluntarily left the issuing Member State and was back in the 
executing Member State, where the executing authority was asked to assess a second EAW. National 
Desks exchanged views on the problematic interpretation of the rule of speciality, but also explored 
alternative  solutions,  as  the  decision  in  the  executing  Member  State  was  final  and  could  not  be 
appealed against. 

10.  The European Arrest Warrant and its relation to other 

instruments 

Eurojust  dealt  with  several  cases  in  which  difficulties  or  questions  arose  from  the  simultaneous 
application of an EAW and other instruments (see Section 10.1). In some cases, the EAW was not the 
(only)  appropriate  instrument  to  use  and  it  was  suggested  that  the  authorities  either  use  another 
measure or combine an EAW with another legal instrument such as an EIO or an LoR (see Section 10.2) 
or a transfer of sentenced persons (see Section 10.3). In some cases, given the temporal scope of the 
EAW  FD  as  implemented  in  national  law,  EAWs  had  to  be  replaced  by  extradition  requests  (see 
Section 10.4.1). Eurojust was also consulted in relation to extradition requests concerning EU citizens, 
in order to assist national authorities in the consultation mechanism established in the CJEU’s Petruhhin 
case-law (see Section 10.4.2). 

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The use of other mutual recognition instruments, such as Framework Decision 2009/829/JHA (46) or 
Framework  Decision 2008/947/JHA (47),  was  barely (48)  raised  in  the  context  of  the  EAW  cases 
analysed for this report; therefore, this is not discussed in a separate section. 

10.1. Coordinated execution of European Arrest Warrants and other mutual 

recognition instruments 

Eurojust intervened in both bilateral and more complex multilateral cases in which its primary role was 
to ensure the coordination of the execution of EAWs and other instruments of judicial cooperation, often 
simultaneously across Member States and/or non-EU countries. The execution of the EAWs was then 
part of a bigger operation and went hand in hand with the execution of EIOs or LoRs (e.g. house searches, 
telephone  intercepts,  hearing  of  persons)  and  freezing  measures,  and  the  action  was  coordinated 
through  coordination  meetings  and/or  coordination  centres.  Authorities  exchanged  beforehand 
updated information related to the state of play of their respective proceedings and ideally agreed on a 
joint prosecutorial strategy with an overview of which Member States would issue (or withdraw) EAWs. 
Liaising with SIRENE bureaux was also needed to prepare for the synchronised activation of the EAWs 
in SIS, often a couple of hours before the planned action. In level II meetings, preparatory steps were 
often taken ex ante to ensure that the EAWs and other instruments fulfilled all legal requirements and 
that the simultaneous actions across the Member States would not be jeopardised. 

10.2. European Investigation Orders and letters of request 

  European Investigation Orders in addition to European Arrest Warrants 

Eurojust supported national authorities when EIOs or LoRs had to be issued in addition to EAWs. For 
instance, in a case concerning rape and sexual assault, the EAW proceedings were preceded by an EIO 
sent to the executing Member State seeking to obtain a DNA sample. In another sensitive case, involving 
a minor, it was discussed and confirmed that first an EIO or LoR was needed to locate the requested 
person in order to facilitate the surrender. In other cases, EIOs were sent for house searches, banking 
information and the seizure of money. Often, coordination of the execution of both measures was key to 
a successful result. 

(46)  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, OJ L 294, 11.11.2009, 
p. 20 (FD 2009/829/JHA). 

(48) 

(47)  Council  Framework  Decision 2008/947/JHA  of  27 November  2008  on  the  application  of  the  principle  of  mutual  recognition  to 
judgments  and  probation  decisions  with  a  view  to  the  supervision  of  probation  measures  and  alternative  sanctions,  OJ L 337, 
16.12.2008, p. 102 (FD2008/947/JHA). 
In one case, in which an EAW had been executed, Eurojust facilitated the transmission of relevant documents for supervision measures 
requested  under  FD 2009/829/JHA  after  the  trial  phase.  In  another  case,  Eurojust  became  involved  subsequent  to  a  request  for 
additional information in relation to the legal status of the requested person and the circumstances under which the EAW had  been 
issued. The issuing state replied that the requested person had been convicted of drug trafficking by a court of first instance and given a 
suspended sentence. The prosecution office in the issuing Member State had appealed against this judgment, so it was not final. As the 
accused unlawfully did not attend the appeal hearing, the issuing authority issued a national arrest warrant and an EAW. The EAW was 
executed so that the requested person could attend the appeal. In the margins of the consultations, the question was raised why the 
issuing authorities had not used FD 2009/829/JHA or FD 2008/947/JHA, but, as this was considered to be an issue outside the scope of 
the EAW proceedings, it was not discussed further. 

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Sometimes EAWs were issued in one case, and EIOs were issued in separate, linked, cases, involving 
different  authorities.  The  assistance  of  Eurojust  was  then  requested  in  order  to coordinate  common 
actions  and  discuss  the  next  steps  in  view  of  the  links  between  the  cases  (e.g.  same  suspects). 
Coordination was also crucial in a case in which the requested person was needed in the issuing Member 
State for a dual purpose: he was suspected of having committed a very serious offence, but also wanted 
for a hearing as a witness in a different case. After exploring several options to obtain the requested 
person’s statement, in tight cooperation with the National Desks, it was confirmed that the surrender of 
the requested person was scheduled soon enough for him to be also summonsed to the trial to be heard 
as witness. 

EIOs were also often sent with a view to obtaining the objects that the requested persons had with them 
at the time of their arrest. In some cases, the objects were transmitted directly, based on Article 29 of 
the EAW FD (handing over of property). Yet, in many other cases, executing authorities specified that 
they required from the issuing authorities an EIO to secure all belongings and evidence seized during 
the arrest of the requested person, for example luggage, clothes, phones and IT devices. These examples 
show that Member States do not have a common understanding of this, but take different approaches. 
The  practical  advantage  in  sending  an  EIO  is  that  the  issuing  authorities  can  obtain  the  items 
immediately,  whereas,  with  the  EAW  FD,  the  issuing  authorities  need  to  wait  until  the  person  is 
surrendered. 

Finally, LoRs were often sent in addition to EAWs in order to obtain the surrender decision issued by 
the competent executing judicial authority and other relevant documents concerning the surrender. 

  European Investigation Orders instead of European Arrest Warrants 

In a very few cases, it became clear that EAWs had been issued for the purpose of serving procedural 
documents. After clarification via Eurojust, the EAWs were withdrawn and replaced by LoRs. Such cases 
reflect  justified  concerns  that  EAWs  should  be  issued  ‘for  the  purpose  of  conducting  a  criminal 
prosecution’ (Article 1 of the EAW FD), and not merely for investigative purposes, and are also related 
to the requirement of ‘trial readiness’ (49). It should be underlined, though, that, in Eurojust’s casework, 
such cases were very rare in the time period covered by this report. 

In cases where the execution of the EAW was postponed because of the execution of long-term custodial 
sentences  and  the  requested  person  would  be  released  only  after  a  long  period,  authorities  were 
prompted to explore other possibilities in order to avoid further adjourning of the trial. In several cases, 
EAWs  were  withdrawn  and  EIOs  were  issued  for  the  hearing  of  the  requested  person  by 
videoconference during the trial phase, when allowed under the issuing Member State’s law. 

Finally, in some cases, national authorities sought clarification of which legal instrument to use when 
transferring a person to another Member State. Recital 25 of the directive on the European Investigation 
Order (50) clarifies that when a person is to be transferred to another Member State for the purposes of 

(49)  See also the reports mentioned in Section 1.1, particularly the European Commission’s report on the implementation of the EAW FD, 
pp. 7 and 13, and the report of the European Parliament on the implementation of the EAW and the surrender procedures between 
Member States, p. 21. 

(50)  Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the European Investigation Order in 

criminal matters, OJ L 130, 1.5.2014, p. 1. 

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prosecution, including bringing that person before a court for the purpose of standing trial, an EAW 
should be issued in accordance with the EAW FD. When a person is to be transferred to another Member 
State for evidence gathering, an EIO should be issued in accordance with the EIO directive. Two cases 
mentioned in the report on Eurojust’s casework in the field of the European Investigation Order clearly 
illustrate the sometimes challenging relation between the EAW and the EIO in relation to the temporary 
transfer of persons held in custody (51). 

10.3. Transfer of sentenced persons 

Eurojust encountered a number of recurrent practical and legal issues in its casework with regard to 
the application of the EAW FD in combination with the FD 909. Some of these issues related to problems 
resulting from the interpretation of Article 25 of FD 909, particularly in the context of Article 4(6) of the 
EAW FD (see Section 3.1.7). Eurojust also provided support in cases in which a request for the transfer 
of a sentenced person was issued in addition to an EAW, and the main question was how to coordinate 
the execution of both requests and/or how to determine which of the requests should be maintained. 

  European Arrest Warrant replaced with a request for a transfer of sentenced person 

Some issues occurred in cases in which a custodial sentence needed to be executed that had been issued 
by  an  issuing  judicial  authority  and  concerned  a  national  of  the  executing  Member  State  whose 
whereabouts were not clear. In a number of cases, the judicial authorities first issued an EAW to the 
executing Member State for the purposes of executing a custodial sentence and subsequently, when the 
EAW procedure was still pending, asked for the suspension of the effective surrender of the requested 
person with a view to issuing instead a certificate under Article 4 of FD 909 requesting the enforcement 
of  the  custodial  sentence  in  the  executing  Member  State.  Problems  also  occurred  in  cases  in  which 
issuing authorities had issued both an EAW and an FD 909 request, but then, when the FD 909 request 
was executed, did not withdraw the EAW. In some cases, the executing authorities then requested the 
assistance of Eurojust to discuss with the issuing authorities the withdrawal of the EAW and to facilitate 
the surrender of the requested person to serve the prison sentence in the executing Member State. 

These situations created a number of difficulties: 
  hampering judicial cooperation; 
  two  different  procedures  including  differences  related  to  the  competent  authorities,  the 

channels of communication and the languages accepted; 

  generating an extra burden on the executing authorities (and also on the issuing authorities), 

which had to deal with two different procedures; 

  generating the risk that the person would be first surrendered to the issuing Member State 
on the basis of an EAW and then, at a later stage, on the basis of an FD 909 certificate, sent 
back to the executing Member State, which is cumbersome, costly and unnecessary; 

  creating confusion with regard to the legal basis on which the person should be deprived of 

liberty; 

(51)  See Section 3.2.2.1, pp. 15 and 16, of the report on Eurojust’s casework in the field of the European Investigation Order (2020). 

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  entailing the risk of releasing the requested persons from their provisional arrest while the 

overlapping procedures were pending; 

  creating uncertainty as to the outcome, since the final objective of having sentenced persons 
serve the sentence in their Member State of nationality with a view to facilitating their social 
rehabilitation was not always achieved. 

In one of these cases, Eurojust organised a coordination meeting at which constructive discussions took 
place  to  clarify  the  legal  frameworks  and  implications,  as  well  as  to  identify  practical  solutions  to 
overcome some of these difficulties. It was clarified that one of the main reasons why an issuing judicial 
authority  first  issued  an  EAW,  and  only  afterwards  issued  a  certificate  under  FD 909,  was  that  the 
EAW/SIS alert was needed to locate the sentenced person. Once the person was located in the issuing 
Member State, and if all the requirements were met, the judicial authority issued a certificate under the 
FD 909. During the coordination meeting, the following way forward was suggested for future cases 
between the Member States involved, which could also be an example of best practice for other Member 
States. 

  Whenever possible, the best solution would be to rely upon police cooperation in order to locate 
the  sentenced  person  beforehand  (SIS  alert  only  for  location).  If  the  sentenced  persons  are 
located  in  their  Member  State  of  nationality,  the  issuing  competent  judicial  authority  should 
issue only and directly, if all the requirements are met, an FD 909 certificate instead of an EAW. 
  When the sentenced person cannot be located beforehand and an EAW has been issued, once it 
is established that the sentenced persons are located in their Member State of origin and all the 
requirements to issue an FD 909 certificate are met, the issuing competent judicial authority 
should transmit to the competent executing judicial authority, as soon as possible, one single 
document  requesting  that  it  simultaneously  (i)  withdraw  the  already  issued  EAW  and  (ii) 
provisionally arrest the person in accordance with FD 909. 

  Such  a  single  document  should  preferably  be  translated  into  the  language  of  the  executing 
Member State. The certificate and (the essential parts of) the judgment imposing the custodial 
sentence, duly translated, should be then transmitted within 30 days. 

  When the person is already under provisional arrest under the EAW procedure, both requests 
contained  in  the  single  document  should  be  dealt  with  urgently  by  the  competent  executing 
authority. 

  Ideally, for both the withdrawal of the EAW and the provisional arrest under FD 909, the same 
court in the executing Member State should be competent. This means that the decision on the 
two requests could happen simultaneously to avoid any risk of escape by the requested person. 
If different authorities are competent, close coordination is required. 

  European Arrest Warrant replaced with a request for a transfer of a sentenced person 

and replaced again with a European Arrest Warrant 

Sometimes EAW proceedings were ongoing in parallel in two executing Member States, and the issuing 
court asked for the support of Eurojust: 

  to make the two Member States aware of this situation; 
  to  obtain  information  on  the  status  of  these  proceedings  and  the  requested  person’s 

whereabouts; 

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  to understand which EAW proceeding should continue and which should be discontinued; 
  and/or to determine whether a request for a transfer of a sentenced person would be more 

appropriate than an EAW. 

European  Arrest  Warrant  or  FD 909  request  in  a  case  involving  multiple  executing  Member 
States 
A requested person was sought based on an EAW for the execution of a 5-year custodial sentence. 
The requested person was first arrested in a first Member State (Member State of nationality). The 
executing  authority  decided  to  refuse  the  EAW  and  to  take  over  the  enforcement  of  the  custodial 
sentence in accordance with FD 909. Later, the requested person was arrested in a second Member 
State, based on the SIS alert issued by the issuing authorities. The issuing authority  asked the first 
executing  state  to  clarify  whether  or  not  the  requested  person  had  served  (part  of  the)  5-year 
imprisonment. The latter replied that, unfortunately, the custodial sentence had not been enforced, 
as the person had absconded. As the enforcement of the sentence in the first executing state had not 
begun and the requested person was no longer in that country, the issuing court, after considering 
the case and all the information received, decided to withdraw the FD 909 certificate in accordance 
with  Article 13  of  FD 909.  Subsequently,  the  issuing  authority  issued  a  new  EAW.  Finally,  the 
requested person was arrested in a third Member State based on that new EAW and surrendered to 
the issuing Member State. 

  Simultaneous execution of a European Arrest Warrant and a request for the transfer of 

a sentenced person 

Sometimes Eurojust provided support in the simultaneous execution of an EAW and a request for the 
transfer of a sentenced person.  

Simultaneous execution of a European Arrest Warrant and an FD 909 request 
An  issuing  judicial  authority  had  issued  an  EAW  for  prosecution  while  the  person  was  serving  a 
previous conviction sentence in the executing Member State. After exploring different possibilities, 
including a temporary surrender or a transfer of prisoners, and after a hearing at which the executing 
court  gained  the  consent  of  the  convicted  person,  the  executing  authority  decided  to  transfer  the 
(remaining part of the) sentence to the issuing Member State, as this would enhance the requested 
person’s  social  rehabilitation.  The  assistance  of  Eurojust  was  instrumental  for  opening  the 
consultations  between  the  competent  authorities  of  the  issuing  and  executing  Member  States  and 
forwarding  the  judgment  and  the  certificate  to  the  competent  executing  authority.  The  support  of 
Eurojust permitted the simultaneous transfer of the requested person to serve the remaining part of 
the sentence in the executing Member State, and to allow the requested person to be tried there for 
the outstanding criminal offence. The two processes were coordinated so that the requested person 
was surrendered both to serve the remaining sentence and to face trial on the offence committed in 
the executing Member State. The coordination required taking into account the need to coordinate 
two very different competent authorities in the Member States involved. Once the competent judicial 
authority sent the FD 909 certificate, and the decision on the enforcement of the sentence and the 
actual  transfer  was  agreed,  Eurojust  alerted  the  EAW  executing  authority,  which  had  previously 
authorised but suspended the surrender, so that the transfer and the surrender could be dealt with 
simultaneously. 

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10.4. Extradition requests 

  Extradition requests instead of European Arrest Warrants 

A few cases involved EAWs related to acts committed before 2002, and the executing Member State had 
made a statement that it would continue to apply the extradition regime in relation to acts committed 
before  a  certain  date  (Article 32  of  the  EAW  FD).  Eurojust  then  facilitated  the  transmission  of  the 
extradition request and the supporting documents. In some of these cases, it was urgent to comply with 
certain time limits, for example under Article 16(4) of the 1957 Council of Europe Extradition Treaty. 

In some cases, the extradition was granted and the requested person was extradited successfully. In a 
few  other  cases,  the  requested  state  refused  to  extradite  the  requested  person.  In  a  first  case,  the 
executing  authority  refused  and  based  its  decision  on  a  statute  of  limitation,  but  the  EAW  and 
extradition  request  nevertheless  stayed  in  force.  The  requested  person  returned  voluntarily  to  the 
issuing Member State and agreed, without any objections, to go to prison to serve the 3-year custodial 
sentence. In a second case, the executing authority refused the extradition because it had not received 
all relevant supporting documents. Subsequently, the executing authorities started their own criminal 
proceedings against the requested person (see also Section 3.1.1). 

  Extradition requests or European Arrest Warrants: implications of CJEU case-law for the 

extradition of EU citizens to non-EU countries 

On  6 September  2016,  the  CJEU  introduced,  in  its  Petruhhin  judgment (52),  specific  obligations  for 
Member States that do not allow extradition of their own nationals when they receive an extradition 
request concerning an EU citizen who is a national of another Member State. The Petruhhin judgment 
implied an obligation for the requested Member State to inform the Member State of nationality of the 
extradition  request;  to  give  that  Member  State  the  opportunity  to  issue  an  EAW,  as  far  as  it  has 
jurisdiction; and to give priority to that potential EAW over the extradition request. This new approach 
was confirmed and, to a certain extent, refined in subsequent case-law (53). The application of this case-
law has proved difficult in practice, raising many questions of a legal and a practical nature. 

In 2020, Eurojust published, together with the EJN, a joint report on the extradition of EU citizens to 
non-EU  countries.  The  report  provides  an  overview  of  recurring  practical and  legal  issues  that  have 
been encountered in Eurojust casework and in the experience of the EJN in the process of implementing 
the obligations stemming from the CJEU’s case-law on extradition requests from non-EU countries. As 
the  support  that  Eurojust  and  EJN  contact  points  provided  to  national  authorities  predominantly 
occurred during the consultation procedure, the part of the report that deals with that procedure is 
more  extensive  than  the part  on  the  extradition  proceedings.  The  report  also  highlights  the  roles  of 
Eurojust and the EJN in relation to such cases and concludes with the main findings of the analysis. 

The report concludes that only in a very few cases  did the CJEU’s case-law regarding  extraditing EU 
citizens to non-EU countries result in the requested Member State giving priority to a prosecution in the 

(52) 
(53) 

Judgment of the CJEU of 6 September 2016, Petruhhin, C-182/15, ECLI:EU:C:2016:630. 
Judgment  of  the  CJEU  of  10 April  2018,  Pisciotti,  C-191/16,  ECLI:EU:C:2018:222;  judgment  of  the  CJEU  of  13 November  2018, 
Raugevicius, C-247/17, ECLI:EU:C:2018:898; judgment of the CJEU of 2 April 2020, Ruska Federacija, C-897/19 PPU, ECLI:EU:C:2020:262 
and  judgment  of  the  CJEU  of  17 December  2020,  Generalstaatsanwaltschaft  Berlin  (Extradition  vers  l’Ukraine),  C-398/19, 
ECLI:EU:C:2020:1032. 

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Member  State  of  nationality.  The  mechanism  seems  particularly  relevant  in  cases  in  which  parallel 
criminal proceedings are ongoing in the Member State of nationality for the offence mentioned in the 
extradition  request.  It  allows  the  Member  State  of  nationality  to  become  aware  of  the  extradition 
proceedings  and/or  to  take  action  to  prevent  its  criminal  proceedings  from  being  affected  by  the 
execution of the extradition request. 

Even though the CJEU further clarified its case-law after the joint report was published, many issues 
raised in the report still remain valid and highlight the important role that Eurojust can play in this field 
in support of the national authorities. 

11.  Conclusions and recommendations 

This report describes the main issues identified in Eurojust’s casework in the field of the EAW.  2 235 
EAW cases were registered between 2017 and 2020, which is a significant increase in case numbers 
compared with the previous report, which covered 2014–2016. This increase may have multiple causes. 
First of all, the report confirms that many of the issues identified in the previous report have not been 
remedied, but rather persist. Second, new issues have arisen, particularly those following from CJEU 
case-law  developments.  Finally,  it  is  possible  that  practitioners  have  addressed  Eurojust  more 
frequently as they realised that, in many circumstances, problems can be solved more easily with the 
assistance of Eurojust. Eurojust has played an important role in facilitating cooperation and ensuring 
coordination in bilateral and multilateral EAW cases. In many of these cases, issues were resolved and 
EAWs  were  executed.  In other cases,  lessons  were  learnt  to  address certain  issues  differently in  the 
future, if possible. 

This section summarises the main conclusions and formulates, where relevant, some recommendations. 
The report is complementary to the reports of the European Commission and the European Parliament 
and the conclusions of the Council (see Section 1.1). Many of the issues identified in their documents 
also appeared in Eurojust’s casework, and many of their suggested recommendations are very valid. For 
instance, reference could be made to the suggestions by the European Parliament and the Council to 
promote further soft law tools (e.g. the Commission’s handbook on how to issue and execute a European 
Arrest  Warrant  or  Eurojust’s  overview  of  case-law  by  the  CJEU  on  the  EAW)  and  to  invest  more  in 
training. 

It is also noteworthy that some of the conclusions of this report, particularly those that touch upon core 
features of the principle of mutual recognition, are strikingly similar to those of other Eurojust reports 
on other mutual recognition instruments (54). Such issues might therefore require a more horizontal 
approach. 

(54)  See, for instance, the report on Eurojust’s casework in the field of the European Investigation Order (2020), pp. 51–56, particularly the 
conclusions related to requests for additional information, restrictive interpretation of grounds for non-execution, compliance with time 
limits, direct contact, language issues, transmission and coordination. 

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  Content of EAWs. The execution of EAWs was often put on hold because of missing, unclear or 
inconsistent  information  about  the  content  of  the  EAWs.  Eurojust  assisted  in  clarifying 
misunderstandings, replying to questions and providing additional information or documents. 
Requests  for  additional  information  were  justified  to  clarify  poorly  drafted  EAWs  that  were 
missing crucial information related to, for example, the (existence of a) national arrest warrant, 
the offences, the description of the circumstances, the sentence(s) or in absentia judgments. In 
a few cases, Eurojust observed requests for additional information that seemed to go beyond 
what  could  reasonably  be  considered  justified  under  the  mutual  recognition  regime.  For 
instance, the legitimacy of requests for specific evidence available in the criminal file (55) could 
be questioned and sometimes led to decisions not to execute the EAW. Fortunately, in recent 
years, such bad practices seem to have occurred less often following developments in national 
case-law. 
  National authorities need further guidance on how to fill in EAWs and how to provide correct, 
concise,  complete  and  consistent  information.  Cases  involving  different  offences,  different 
sentences  and/or  different  criminal  provisions  are  particularly  challenging.  In  absentia 
judgments, particularly concerning appeal proceedings, are challenging with the current EAW 
FD  template.  Moreover,  (national)  templates  for  some  specific  scenarios  (e.g.  return 
guarantees for nationals or residents) could be seen as a good practice. 

  Impact of the CJEU’s case-law. National authorities often approached Eurojust with questions 
on issues addressed in CJEU judgments, involving, for instance, issues related to the validity of 
the EAW (e.g. the concept of issuing and/or executing judicial authorities and requirements of 
effective  judicial  protection),  grounds  for  non-execution  (particularly  in  absentia  judgments, 
nationals or residents, ne bis in idem), fundamental rights issues (prison conditions, rule of law) 
and extradition of EU citizens to non-EU countries. Either authorities were unaware of certain 
CJEU  judgments,  or  they  were  aware  but  struggling  with  how  to  apply  them  in  practice  or 
struggling with issues not yet (fully) settled in the CJEU’s case-law. 
  Eurojust will provide frequent updates of Eurojust’s overview of CJEU case-law on the EAW. 
  National authorities should not refrain from sending requests for preliminary rulings to the 
CJEU, as further clarifications of interpretation can improve the correct application of the EAW 
FD. 

  Eurojust will continue to update relevant compilations, if needed, and/or be ready to launch 

new ones, if needed, in view of further case-law developments. 

  Limits of direct contact. Direct contact is an excellent point of departure in judicial cooperation 
and  it  might  work  very  well  in  many  cases.  However,  this  report  confirms  that,  for  various 
reasons, direct contact sometimes fails. In some cases, there was, from the very beginning, a 
complete lack of contact or reaction after an EAW was sent. In other cases, direct contact became 
problematic  after  repeated  requests  for  additional  information,  when  differences  in  legal 
systems led to confusion and misunderstandings, and/or when language barriers complicated 
basic communication. In most of these cases, involving Eurojust was the crucial step in breaking 
the deadlock. Eurojust brought clarification and a better understanding of the legal or practical 

(55)  See also the Commission’s report on the implementation of the EAW FD, p. 10. 

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concerns of the national authorities so that, jointly, workable and satisfying solutions could be 
agreed upon and the EAWs could be executed. 
  National  authorities  should  not  refrain  from  contacting  Eurojust  or  the  EJN,  in  accordance 
with their respective competences and depending on the specificities of the cases, when direct 
contact is not working. 

  Good translations and good language skills. A good translation of an EAW is key to avoiding 
misunderstandings and unnecessary delays. This might seem obvious and redundant, yet it is a 
crucial  rule  that,  in  practice,  is  often  not  complied  with,  which  then  becomes  problematic. 
Incomprehensible  Google  translations  seriously  hampered  the  execution  of  numerous  EAWs 
and caused considerable delays. All too often, either poorly translated EAWs were sent back to 
the  issuing  authority  via  Eurojust  in  order  to  request  further  clarification  and/or  a  more 
accurate  translation,  or  problems  were  resolved  at  the  National  Desks  themselves  in  close 
cooperation with the national authorities. Moreover, for urgent EAWs there was often no time 
to  wait  for  the  official  translation.  The  National  Desks  at  Eurojust  themselves  then  often 
prepared,  within  very  tight  deadlines,  an  English  version  of  the  original  EAW  so  that  the 
executing  authority  could  at  least  start  the  preparatory  work,  and  the  translation  into  the 
requested language would follow soon. 
  Further investment in good translations and also in good language training (to facilitate direct 
contact)  is  crucial  and  is  a  key  factor  in  improving  the  functioning  of  mutual  recognition 
instruments in general. 

  Requests  for  information.  When  requests  for  information  remained  unanswered,  direct 
contact failed and Eurojust was contacted. Eurojust assisted national authorities in relation to 
requests  for  information  at  different  stages:  requests  for  necessary  additional  information 
before a decision on the EAW was taken (e.g. questions on the content of an EAW, requests to 
provide a guarantee), requests for information on the state of play of the EAW proceedings and 
follow-up information after a decision on the EAW has been taken. Particularly significant was 
the high number of cases in which – despite the clear obligation under Article 26 of the EAW 
FD – executing authorities often failed to provide information on how much time the requested 
person was in detention in the executing Member State on the basis of the EAW. 
  As requests for additional information are one of the main reasons for non-compliance with 
time limits, it would be good to provide national authorities with further support on how to 
apply Article 15 of the EAW FD (56). In relation to Article 26 of the EAW FD, national authorities 
are kindly invited to comply with the obligations included in this provision. 

  Compliance  with  time  limits.  Time  limits  constitute  one  of  the  major  features  of  mutual 
recognition instruments, including the EAW FD. Article 17(7) of the EAW FD was meant to keep 
a good overview of cases in which ‘in exceptional circumstances’ time limits could not be met 
and to identify underlying reasons for recurrent delays. Unfortunately, no accurate information 
is currently available on the number of cases for which time limits are not met. The template 

(56)  See  also  the  Council  conclusions  on  the  EAW  and  extradition  procedures –  current  challenges  and  the  way  forward,  p. 8,  marginal 

number 20, which focuses on requests for additional information regarding detention conditions. 

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that Eurojust created in 2018 for this purpose is hardly used and  only a few countries notify 
Eurojust when time limits cannot be observed. Yet Eurojust’s casework reveals that requests for 
additional  information  led  to  considerable  delays  in  some  cases.  Furthermore,  appeal 
proceedings in certain Member States seemed to allow cases to last for many years before a final 
decision was taken (57). 
  National authorities are kindly invited to comply with the obligations in Article 17(7) of the 

EAW FD. 

  Grounds for non-execution and fundamental rights. The report confirms that there is still 
margin  to  further  improve  the  interpretation  and  application  of  certain  grounds  for  non-
execution and to ensure the assessment of fundamental rights grounds in line with CJEU and 
ECtHR case-law. 
As regards fundamental rights issues, authorities sometimes provided too little information, or 
only  stereotyped  information,  while  executing  authorities  sometimes  requested  too  much 
information  or  refused  to  execute  an  EAW  despite  not  having  sufficient  grounds  to  do  so. 
Coordination meetings have proved useful in specific cases, but more guidance might be needed. 
As regards grounds for non-execution, the following issues can be singled out. 

o  General issue: optional versus mandatory grounds for refusal and lack of flexibility 
in  applying  ‘optional’  grounds,  which  were  implemented  in  some  national  law  as 
‘mandatory’ grounds and applied rigidly. 

o  Ne bis in idem: despite clarifications given in the CJEU’s case-law, some questions 
were raised in Eurojust’s casework in relation to a public prosecutor’s decision to 
dismiss a case and the enforcement condition. 

o  Territoriality grounds: sometimes a too rigid obligation under national law created 
an unnecessary conflict of jurisdiction and created a ‘forced’ transfer of proceedings 
to a Member State that was not necessarily ‘best placed’ to prosecute, but which was 
the only option to avoid impunity. 
‘Ongoing’ proceedings in the executing Member State for the same acts: sometimes 
a too rigid interpretation of national law, whereby criminal proceedings were not 
yet ongoing in the executing Member State, but were triggered by the receipt of the 
EAW, created unnecessary conflicts of jurisdiction. 

o 

o 

o  Dual  criminality:  Member  States  took  different  views  on  how  to  assess  the  dual 
criminality check and sometimes applied this ground incorrectly by applying it in 
relation to list offences. 
In absentia: different perspectives depended on the different national legal orders 
involved;  they  focused  on  national  interpretation  of  the  concept  of  the  EAW  FD 
rather than EU interpretation. Sometimes there was a lack of knowledge of relevant 
CJEU and ECtHR case-law. 

o  Nationals  or  residents:  several  problems  were  raised  by  the  interrelationship 
between the EAW FD and FD 909, for example the meaning of the concept mutatis 

(57)  See also the Commission’s report on the implementation of the EAW FD, p. 21, which states that ‘Less than half of the Member States 
transposed this provision completely’ and also indicates that ‘problems meeting the time limits … seem to stem also from lengthy appeal 
proceedings’. 

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mutandis,  questions  on  the  need  to  send  an  FD 909  certificate  or  not  and  the 
obligation to ‘actually enforce the sentence’. 

  Practitioners  should  receive  further  guidance  on  how  to  deal  with  questions  on  detention 
conditions and/or other fundamental rights. Further guidance on the case-law of both the CJEU 
and the ECtHR is relevant in this regard. 

  Practitioners  should  receive  further  guidance  on  how  to  apply  certain  grounds  for  non-

execution. 

  In  cases  for  which  parallel  proceedings  are  ongoing  in  two  Member  States,  Eurojust  can 
provide  support  in  coordinating  and  helping  to  decide  which  jurisdiction  is  best  placed  to 
prosecute. 

  When  the  execution  of  EAWs  cannot  take  place  on  fundamental  rights  grounds,  further 
reflection at EU level is needed on how to avoid impunity in such cases, not only in relation to 
EAWs for the purpose of prosecution (58) but also, and more importantly, in relation to EAWs 
for the purpose of the execution of custodial sentences. 

  In relation to the application of the dual criminality check, it should be underlined again that 
this test should not be applied in relation to ‘list offences’ and that the question of whether an 
offence falls within this list is determined by the issuing Member State’s legal framework. 
  In complex cases, or cases with parallel proceedings or cases in which requests could not be 
solved through direct contact within a reasonable time, Eurojust can provide assistance with 
requests  for  additional  information,  to  avoid  multiple  requests  being  sent  back  and  forth. 
Eurojust can support authorities in obtaining and providing quickly all relevant information 
to make the correct assessment. 

  Relation  to  other  instruments.  Eurojust’s  casework  revealed  difficulties,  but  also 
opportunities, in the use of EAWs vis-à-vis EIOs and in the relationship between the EAW FD 
and  FD 909.  The  report  also  highlights  challenges  in  the  coordinated  use  of  different 
instruments and/or the choice of alternatives if the EAW is not an option. 

o  The EAW FD and the EIO directive have distinct purposes and are not alternative 
instruments. That being said, there have been cases when it was not always clear 
which  instrument  to  use  (e.g.  temporary  surrender)  or  whether  an  EIO  was 
necessary in addition to an EAW (e.g. questions surrounding the scope and national 
implementation of Article 29 of the EAW FD). In some cases, when a surrender was 
impossible, EIOs or other tools of judicial cooperation were helpful to move forward 
with the investigation in the issuing Member State (e.g. a hearing by videoconference 
during the trial phase). 

o  The EAW FD and FD 909 have raised many questions on the use of certain provisions 
of FD 909 in the context of Article 4(6) of the EAW FD. In addition, both instruments 
sometimes were used in parallel, leading to confusion and duplication of procedures. 
  There is a need for further clarification of the interrelationship between the EAW FD and FD 909, 
for example the obligation (or not) to send FD 909 certificates in the context of Article 4(6) of the 

(58)  See also Council conclusions ‘The European Arrest Warrant and extradition procedures – current challenges and the way forward’, p. 12-

14, marginal numbers 32–38. 

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EAW FD, or the margin of discretion of the executing authority in relation to the execution of the 
sentence in the light of the obligation of ‘actually enforcing the sentence’. 

  Eurojust  can  assist  national  authorities  with  the  choice  of  the  most  appropriate  instrument, 

coordinating the use of different instruments and/or coordination among Member States. 

  Competing requests for surrender and extradition. Although the EAW FD sets out an explicit 
role for Eurojust, few Member States have implemented this possibility in their national laws 
and relatively few cases are brought to Eurojust. Yet Eurojust’s involvement in such cases can 
bring  many  benefits.  Eurojust  can  provide  advice  within  short  time  frames  and  obtain  all 
relevant information from the issuing authorities so that the executing authority can take a well-
informed decision. Moreover, Eurojust will not limit its advice to the decision on which EAW 
should be executed (first), but will also address, if requested, the required follow-up actions in 
relation  to  the  other  EAW(s)  or  extradition  request(s),  such  as  a  subsequent  surrender,  a 
transfer of sentenced persons or a transfer of proceedings, in close consultation with all involved 
authorities. 

  Eurojust would like to invite national authorities to bring more cases on competing requests for 
surrender and/or extradition to Eurojust to ensure that a well-informed decision can be taken and 
to ensure coordination of any required follow-up measures, if needed. 

  Postponement of the actual surrender. The report indicates that, even in cases  in which a 
decision is taken to execute the EAW, many issues can arise before the actual surrender takes 
place: 

o  persons who are not held in pre-trial detention prior to their surrender not showing up 

o 

o 

o 
o 

for the surrender; 
the need to reflect on alternative measures in case of postponements of the surrender, 
for example transfer of proceedings, temporary surrender, LoR/EIO; 
the need to agree on guarantees of specific medical treatment during travel / in issuing 
Member State and/or additional independent medical checks; 
last-minute problems with transits and the need to agree on alternatives; 
issues  arising  due  to  insufficient  coordination,  for  instance,  risk  of  a  person  being 
released in the executing Member State after an execution of a custodial sentence while 
prosecution is still ongoing in the issuing Member State. 

  Close  cooperation,  communication  and  coordination  are  extremely  important  in  scenarios  in 

which the actual surrender has to be postponed. 

  Speciality  rule.  The  application  of  the  speciality  rule  has  been  rather  cumbersome  in  some 

cases: 

o  national  authorities  sometimes  struggled  with  its  application –  when  it  should  be 

o 

invoked and when it should not; 
the role of the requested person in the consent proceedings in the executing Member 
State  sometimes  created  considerable  delays,  with  a  negative  impact  on  the  criminal 
proceedings in the issuing Member State; 

o  problems  sometimes  arose  when  it  was  not  clear  whether  the  issuing  Member  State 
would modify a cumulative sentence in the event of a partial execution of an EAW. 

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  There is a need for further clarification of the scope of the principle of speciality and a need for 
measures to ensure a correct and more efficient application of the speciality rule in order to avoid 
considerable delays in the criminal proceedings in the issuing Member State. 

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Eurojust, Johan de Wittlaan 9, 2517 JR The Hague, The Netherlands
www.eurojust.europa.eu  •  info@eurojust.europa.eu  •  +31 70 412 5000 
Twitter & LinkedIn: @Eurojust

PDF:    Catalogue number: QP-03-21-273-EN-N   •    ISBN: 978-92-9490-610-6   •    DOI: 10.2812/650674