Stream repository

REPOSITORY OF EAW CASE LAW ANALYSIS

The Repository is where the STREAM Project stores different resources that have been created for it concerning the Court of Justice of the European Union’s relevant case-law on the European Arrest Warrant. It includes three types of resource: detailed analytical Case Notes of the most recent and important judgments, distilled Case Summaries that cover key issues related to the relationship between the principle of mutual recognition, protection of fundamental rights, and the rule of law, and a list of CJEU case-law that serves as a reference point.

CJEU CASE NOTES

CJEU CASE SUMMARIES

LIST OF CJEU CASE LAW

CJEU Case Notes 

These Case Notes provide an in-depth analysis of recent judgments on the European Arrest Warrant that were delivered by the Court of Justice of the European Union whilst the STREAM Project was ongoing (2020-2023).

KEYWORDS: Concept of “executing judicial authority”; Independence of the “executing judicial authority”; Public prosecutor subject to instructions in specific cases from the executive; Effective judicial protection; Rule of speciality; Consent to prosecute for an offence other than the one for which the person is surrendered.

 

On 24 November 2020, the Grand Chamber of the Court of Justice of the European delivered its judgment in AZ, Case C-510/19, as a result of a request for preliminary ruling made by the Court of Appeal of Brussels (Belgium). The case concerns the execution of an additional EAW against a Belgian citizen who was surrendered from the Netherlands to Belgium, following a previous EAW. This case relates to the concept of “executing judicial authority” in view of Article 6(2) and Article 27(3)(g) of the European Arrest Warrant Framework Decision (EAWFD).

KEYWORDS: Independence of the “issuing judicial authority”; Refusal to surrender a person subject to a European Arrest Warrant only in “exceptional circumstances”; Right of access to an independent and impartial tribunal; Systemic or generalised deficiencies; Real risk of a violation of the right to a fair trial; Two-step test; rule of law; effective judicial protection; Article 47 of the Charter; Article 1(3) of the European Arrest Warrant Framework Decision; Article 6(1) of the European Arrest Warrant Framework Decision

 

On 17 December 2020, the Grand Chamber of the Court of Justice of the European Union delivered its judgment in Joined Cases L and P, C-354/20 PPU and C-412/20 PPU. The decision originated from two requests for preliminary rulings made by the District Court of Amsterdam (Netherlands), in proceedings related to the execution of two EAWs issued by Polish courts. The judgment concerns the requirement of independence of the “issuing judicial authority” and the right to a fair trial under Article 47(2) of the Charter.

KEYWORDS: Concept of “issuing judicial authority”; Effective judicial protection; National arrest warrant; Any other enforceable judicial decision having the same effect; Validity of the EAW; Judicial review of the EAW; Access to judicial remedies post surrender; Pre-trial detention.

 

On 13 January 2021, the Court of Justice of the European Union (Third Chamber) delivered its judgment in MM, Case C-414/20 PPU, pursuant to a request for preliminary ruling made by the Specialised Criminal Court of Bulgaria.

CJEU Case Summaries:

These Case Summaries form a Digest that serves as a research-based aid for users of the European Arrest Warrant system.

A selection of 30 key selected judgments of the Court of Justice of the European Union was made based on a categorisation according to the themes of the STREAM Project on the principle of mutual recognition, fundamental rights, and the rule of law, and cover the interpretation of EU primary law and the definition of legal concepts such as ‘arrest warrant’, ‘issuing judicial authority’, and ‘executing judicial authority’.

General rules:

  • Validity of the European Arrest Warrant Framework Decision
  • Direct Effect
  • Primacy of EU law

Advocaten voor de Wereld, C-303/05 (3 May 2007) 

 

Keywords:Validity of the Framework Decision; no need to verify double criminality for 30 offences; principle of legality; Article 2(2) of the EAW FD

 

The Court of Justice held that the Framework Decision’s validity was not affected by abolishing the double criminality requirement for 30 offences (Article 2(2) of the EAW FD) in light of the principle of legality. The Member States still had sovereignty in defining offences and penalties, and national law must in any event respect the principle of legality and fundamental rights. Nor did it find that the legal instrument should have been a Convention instead of a Framework Decision, or find any issue concerning equality and non-discrimination.

Spetsializirana prokuratura, C-649/19 (28 January 2021)

 

Keywords: Rights of persons subject to an arrest warrant; Rights of suspects or accused persons who are arrested and detained; Directive on the right to be informed does not apply pre-surrender; effective judicial protection is ensured post-surrender; Framework Decision is not invalid in light of Articles 6 and 47 of the Charter; Article 6 of the Charter; Article 47 of the Charter

 

The Court of Justice ruled that certain rights under Directive 2012/13 on the right to be informed do not apply to persons subject to an EAW (concerning the Letter of Rights, information about the criminal act, and access to the case file). This did not however affect its validity in the light of Articles 6 and 47 of the EU Charter because: (i) Article 8(1)(d) and (e) of the EAW FD require certain information about the offence to be provided; (ii) from the moment of surrender and becoming an ‘accused person’, those rights are ensured; (iii) there is no right to effective judicial protection pre-surrender; and (iv) after that the right to effective judicial protection is ensured because the decision to issue a European Arrest Warrant must be subject to review by a court.

Melloni, C-399/11 (26 February 2013)

 

Keywords: person sentenced in absentia; right to be present at trial; right to a fair trial; surrender conditional on possibility to review the judgment; higher national standards than EU standards for fundamental rights do not apply; Article 4a(1) of the EAW FD; Articles 47, 48(2), and 53 of the Charter.

 

The Court of Justice ruled that the executing judicial authority cannot make surrender conditional on the fulfilment of higher, additional national (fundamental rights) requirements which are not foreseen in exhaustively harmonised EU law (Framework Decision 2009/299). This was in the context of the executing authority intending to make surrender conditional on the issuing authority enabling a review where there was an in absentia sentencing of the person subject to the EAW.

The issuing stage:

  • Who can request the surrender of a person to be prosecuted or sentenced by issuing a European Arrest Warrant
  • What constitutes a valid European Arrest Warrant?

Poltorak, C-452/16 PPU (10 November 2016)

 

Keywords: meaning of ‘issuing judicial authority; ’independence of issuing judicial authority; central police service not an issuing judicial authority; separation of powers

 

The Court of Justice ruled that a central police service (the Swedish National Police Board) is not an ‘issuing judicial authority’. The term ‘issuing judicial authority’ is broader than only courts and tribunals and includes actors ‘participating in the administration of justice’. But the police service was an actor falling within the executive branch, and not considered as falling within that wider notion of judiciary. This was important in the light of the principle of the separation of powers (the rule of law).

Özçelik, C-453/16 PPU (10 November 2016)

 

Keywords: meaning of ‘arrest warrant’; national arrest warrant issued by police service and confirmed by a public prosecutor; Article 8(1)(c) of the Framework Decision

 

The Court of Justice ruled that it is irrelevant if a national arrest warrant has been issued by a police service if the public prosecutor’s office verifies and validates it. Doing so makes it the authority responsible for issuing the national arrest warrant. As a public prosecutor can fall within the term ‘judicial authority’ where it administers criminal justice, it is covered by the term ‘judicial authority’, and its decision is a ‘judicial decision’ under Article 8(1)(c) of the Framework Decision.

Kovalkovas, C-477/16 PPU (10 November 2016)

 

Keywords: meaning of ‘arrest warrant’; national arrest warrant issued by a police service and confirmed by a public prosecutor

 

The Court of Justice confirmed its ruling in Poltorak: organs belonging to the executive branch such as ministries could not be an ‘issuing judicial authority’. 

Non-exectuion of the EAW:

  • What are the reasons for which an executing judicial authority can refuse to surrender a person to another Member State for prosecution or sentencing purposes
  • How is the principle of mutual recognition to be applied at the same time as protecting fundamental rights in line with EU and international law

Radu, C-396/11 (29 January 2013)

 

Keywords: Right to be heard at the EAW-issuing stage; grounds for refusal to surrender person subject to EAW

 

This ruling is an early EAW case that is significant because it restricted the scope of the right to be heard in the context of EAW proceedings: there was no such right before the judicial authorities in the issuing Member State: there was a possibility rather for the executing judicial authority to scrutinize the EAW. In this case Mr Radu argued that the EAW should not have been issued without his being able to exercise his right to a fair trial, in breach of Articles 47 and 48 of the EU Charter of Fundamental Rights, and Article 6 of the ECHR.

The judgment is well-known for being restrictive with respect to fundamental rights not only in that context but also as a whole: the Court of Justice followed the letter of the law and concept of mutual trust in the Framework Decision strictly, in a way that did not open the door for fundamental rights concerns to serve as a grounds for refusal to surrender a person subject to an EAW under Article 1(3) of the Framework Decision. It did not consider the issue raised concerning the constitutional principle of proportionality where a breach of fundamental rights had been alleged (the right to a fair trial: presumption of innocence, right to be heard, and right to liberty). In that respect this case is now out of date, as the Aranyosi and LM judgments of 2016 and 2018 establish and develop a fundamental-rights test which means the principles of mutual trust and recognition can in specific circumstances be limited for fundamental rights reasons. It made a point of making  the distinction between EAWs issued for prosecution purposes (as in this case) and EAWs issued for sentenced persons to carry out their sentence.

Melloni, C-399/11 (26 February 2013)

 

Keywords: person sentenced in absentia; right to be present at trial; right to a fair trial; surrender conditional on possibility to review the judgment; higher national standards than EU standards for fundamental rights do not apply; Article 4a(1) of the EAW FD; Articles 47, 48(2), and 53 of the Charter.

 

The Court of Justice ruled that the executing judicial authority cannot make surrender conditional on the fulfilment of higher, additional national (fundamental rights) requirements which are not foreseen in exhaustively harmonised EU law (Framework Decision 2009/299). This was in the context of the executing authority intending to make surrender conditional on the issuing authority enabling a review where there was an in absentia sentencing of the person subject to the EAW.

Refusal on fundamental grounds (constitutionally protected) did not apply if the right had been expressly or implicitly waived. That waiver of the right to be present at trial occurs if established unequivocally, there were minimum safeguards in place, and it is not contrary to public interest. There is no violation of the right if the person was informed of the date and place of the trial, or was defended by counsel they instructed, and the person did not appear.

Aranyosi, C-404/15 (5 April 2016) 

 

Keywords: refusal to surrender on fundamental rights grounds; prohibition of inhuman and degrading treatment; detention conditions in the issuing Member State 

 

For the first time the Court of Justice ruled that a possible violation of a fundamental right – in this case the right not to be tortured or subjected to inhuman and degrading treatment as a result of poor prison detention conditions – could be an exception to the principles of mutual trust and mutual recognition. It established a two-step test to prove that there was a risk of facing such breach under Article 4 of the Charter if the person in question was surrendered, based on ‘objective, reliable, specific, and properly updated information on the detention conditions’ that (1) demonstrates the existence of systemic or generalised deficiencies; and (2) a specific and precise assessment of the conditions in which the person will be detained. 

The threshold for inhuman and degrading treatment was determined by reference to the European Court of Human Right’s jurisprudence on Article 3 ECHR., including Varga and Others v. Hungary finding that prison conditions in Hungary violated that right. To evaluate the risk, the space available to an individual, including in a multi-occupancy cell, sanitary conditions, the possibility of free movement within the prison, as well as the ‘cumulative effects of all aspects of life in detention’ had to be taken into account. The risk could not be ruled out by the mere existence of a legal remedy to challenge detention conditions. The Court of Justice developed the duty of the executing judicial authority to request additional information from the issuing Member State: if then it concluded there was a real risk of breach of that right, it must refuse to surrender the person in question. 

List of CJEU Case Law:

Full list of the most important and latest CJEU cases on the EAW, as provided in the Annex of the STREAM State of the Art Report.

The initial search criteria used to devise this selection of case summaries revealed 74 judgments where the European Arrest Warrant Framework Decision appears either in the ‘grounds of judgment’ or the ‘operative part’. This was narrowed down to 61 judgments that include terms referring to the relevant Article 2 TEU values: ‘rule of law’ or ‘fundamental rights’ or ‘human rights’. All 61 judgments were considered by experienced legal professionals, resulting in a smaller number of cases where the search terms only came up incidentally. Those judgments were filtered out, leaving 57 relevant judgments.

Judgment's ECLI number: EU:C:2023:295

Date: 18/04/2023 

Parties: E.D.L.

Judgment's ECLI number: ECLI:EU:C:2022:964

Date: 08/12/2022

Parties: CJ (Décision de remise différée en raison de poursuites pénales)

Judgment's ECLI number: ECLI:EU:C:2022:307

Date: 28/04/2022

Parties: C and CD (Obstacles juridiques à l’exécution d’une décision de remise)