Since 2004, the European Arrest Warrant (EAW) allows for faster and simpler surrender procedures and puts an end to political involvement in extradition procedures.
In a headline-grabbing judgment on 27 May 2019, the European Court of Justice ruled that German public prosecution offices may no longer issue European Arrest Warrants (EAW) since they were found not to have a sufficiently independent status. The ruling, which has immediate and far-reaching implications for the daily interaction between judicial authorities, immediately spurred Eurojust into action. A country-by-country overview has been established with concise information on (i) the position of public prosecutors, (ii) who ultimately takes the decision on EAWs, and (iii) whether national law affords public prosecutors a guarantee of independence from the executive branch.
150 EAWs replaced in Germany
Following the judgement of 27 May, German public prosecutors remain in charge of preparing the EAWs, but the German courts have the competence to issue them. Approximately 150 EAWs have already been replaced, starting with EAWs for which persons were actually held in custody only on the basis of the disputed EAW, and also EAWs for serious offences. The Netherlands is in the process of adapting its national law, indicating that a judge (‘rechter commissaris’) will become the competent judicial authority for issuing EAWs.
Practical snapshot of the position of public prosecutors in each Member State
Established in close cooperation with the National Desks at Eurojust and with representatives of the Member States through the EU Council of Ministers, the new compilation by Eurojust provides an important snapshot of key features of the national legal systems and each Member State’s assessment of the degree of independence of its public prosecutors. It is a practical tool that will help judicial authorities to quickly find the answers to important questions when cooperating on the basis of the EAW, and is available to practitioners via their National Desks at Eurojust.
See Eurojust's Questionnaire on the impact of the EAW ruling.
The 2018 edition of Eurojust’s Overview on Case Law of the Court of Justice of the European Union (CJEU) on the European Arrest Warrant (EAW) contains 10 additional judgments when compared to the 2017 edition. This makes a total of 33 important judgements in the period 2007–2018, categorised according to a set of important keywords. The updated version covers inter alia the following topics:
- The impact on human rights in the application of the EAW Framework Decision (FD), particularly the prohibition of inhuman or degrading treatment and the right to a fair trial. The CJEU developed further the two-stage examination that an executing judicial authority is required to perform before taking a decision on the execution of an EAW in cases where human rights are at risk. The CJEU clarified, for instance, to what extent an executing judicial authority is required to assess the detention conditions in the issuing Member State, and ruled that an executing authority is solely required to assess the detention conditions in the prison(s) in which the person concerned is intended to be detained, including on a temporary or transitional basis.
- Refusal grounds. The CJEU interpreted inter alia the refusal grounds related to minors, residents, ne bis in idem and in absentia judgments. For instance, in relation to ne bis in idem, the CJEU has clarified that this ground does not apply to a case where a Public Prosecutor’s Office terminated an investigation opened against an unknown person and the subject of the EAW was interviewed as a witness only. In the context of in absentia judgments, the CJEU has clarified the term ‘trial resulting in the decision’ in relation to appeal proceedings.
- Requests for necessary, supplementary information and time limits. In a number of judgments, the CJEU referred to Article 15(2) EAW FD (requests for necessary, supplementary information) in conjunction with Article 17 EAW FD (time limits) and underlined that recourse to Article 15(2) EAW FD may only be had as a last resort in exceptional cases.
- EU citizenship and non-discrimination on the basis of nationality. The CJEU provided further guidance on the interpretation of Article 18 of the Treaty on the Functioning of the European Union (TFEU) in conjunction with Article 21(1) TFEU in the context of extradition requests from third States that concern EU citizens.
- A Member State’s intention to withdraw from the EU. The CJEU interpreted Article 50 of the Treaty on European Union (TEU) in relation to the EAW FD.
- The preliminary ruling procedure. The CJEU interpreted Article 267 TFEU in the context of the EAW FD and clarified that an issuing judicial authority can request a preliminary ruling that concerns obligations of the executing judicial authority.
The index and summaries in Eurojust’s overview are not exhaustive and are to be used only for reference and as a supplementary tool for practitioners. The summaries contain links, including to the original language in which the judgement was issued, for further reference. The full text of the judgments of the CJEU can be found, in all EU official languages, on the CJEU’s website.