NOTE

From: Eurojust
Date: 04/03/2019
Romanian Presidency of the Council of the EU
To:
General Secretariat of the Council of the EU
Subject: 9th round of mutual evaluations: contribution to the questionnaire
Attachment: Eurojust’s template on Article 17(7) of the FD on EAW

1. Purpose
On 13 February 2019, the General Secretariat of the Council invited Eurojust to make suggestions
on the questions to be included in the questionnaire to be addressed to the Member States to
prepare the 9th round of mutual evaluations.
Eurojust is pleased to provide a contribution, based on its casework experience in facilitating the
application of FD 2002/584 on the EAW, FD 2008/909 on custodial sentences and, to a
considerably lesser extent, FD 2008/947 on probation and alternative sentences and FD 2009/829
on ESO. It takes into account the concrete aspects of the instruments to be evaluated, as outlined in
Council doc. 6333/19, and addresses general and specific issues which could be considered for the
questionnaire.

2. FD 2002/584/JHA on the EAW

- Practical challenges encountered by Member States’ judicial authorities in relation to
the recent case-law of the CJEU in the field of mutual recognition (e.g. procedure to
follow in case of a risk of infringement of fundamental rights because of detention
conditions; supplementary information and procedures to respond to questions
related to prison conditions):
On the basis of its casework, Eurojust would suggest to address the following issues in the
questionnaire:
 Whether the competent national authorities are aware of EAW proceedings in
which their Member States were involved, either as issuing or executing authority,
in relation to EAW proceedings where detention conditions/fundamental rights
related arguments were raised, whether such requests resulted in considerably
delaying the execution of the EAW and whether such EAW proceedings lead, in the
end, to the refusal of the execution of the EAW or not;
 Legal and/or practical challenges with the application of the Aranyosi/Căldăraru
test, particularly an accurate assessment of the test (general detention conditions
and detention conditions in a specific case), the legal sources to retrieve and assess
relevant information, the scope of the information that could/should be requested,
time limits for providing the supplementary information;

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 Follow-up on compliance with previously issued assurances in view of legal
arguments raised by the defence and legal basis for such requests;
 Legal and practical difficulties in finding alternative solutions to avoid impunity in
cases where the application of the Aranyosi/Căldăraru test resulted in a decision not
to execute the EAW.
In addition to the CJEU developments in the area of fundamental rights and prison
conditions, Eurojust believes, on the basis of its casework experience, that it would also be
relevant to evaluate, in relation to a number of other issues raised and developed in the
CJEU’s case law, their impact on judicial cooperation in the Member States (see particularly
the issues and judgments mentioned below under “future challenges that have risen since
the 4th round of mutual evaluations”).
- Certain issues identified in the 4 th round of mutual evaluations that still remain
problematic and require further assessment
o Proportionality in relation to the use of the EAW as the most appropriate
instrument. On the basis of its casework, Eurojust would suggest to address the
following specific issues: temporary surrender (EAW) versus temporary transfer
(EIO); Article 8 ECHR (right to family) considerations in the context of EAWs (e.g.
single parents with small children); use of the EAW for notification purposes;
o Role of the central authorities and direct contacts between the competent
judicial authorities, including issues arising in the post Aranyosi/Căldăraru context;
o Deficits of information by the executing authority to the issuing authority. On
the basis of its casework, Eurojust would suggest addressing particularly deficits in
information related to the state of play of the EAW proceedings and necessary
follow-up information after a decision on the EAW has been taken (e.g. duration of
detention period in the executing Member State) and the channels to be used for
sending the information.
o Requirement of providing additional information by the issuing authority to
the executing authority. On the basis of its casework, Eurojust would like to
underline that in its view this issue is one of the major challenges in the context of
the application of this instrument. In its casework, Eurojust often witnesses how
judicial authorities struggle with assessing what should be considered “necessary”
supplementary information. Questions on the scope of the requested information
are not only triggered in the context of fundamental rights developments (see
supra), but also in relation to more “traditional” issues such as the content of the
EAW (see Report on Eurojust’s Casework in the field of the EAW (2014-2016),
retrievable here, for some specific examples). Eurojust believes that it is important
to evaluate, on the basis of concrete examples, which are the type of concrete
deficits of information that executing authorities encountered when dealing with
EAWs and whether such deficits were easily remedied via the application of Article
15(2) EAW FD. In addition, Eurojust believes that it is also important to assess, from
the issuing authorities’ perspective, to what extent issuing authorities experienced
cases where, in their view, information was requested that should not be considered

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as “necessary” and how discrepant views of what should be considered “necessary
supplementary information”, in the meaning of Article 15(2), could be resolved. An
additional important issue that could also be looked at would be how/whether
national authorities managed to comply with the time limits (Article 17 EAW FD,
see also infra 7) in cases where (repeated) requests for additional information were
sent.1
- Further challenges that have arisen since the 4 th round of mutual evaluations
o New obstacles identified with regard to grounds for refusal, e.g. in relation to
judgments “in absentia”. On the basis of its casework, Eurojust would suggest:
 An assessment of Framework Decision 2009/299/JHA and particularly the
legal and/or practical challenges that have remained after the entry into
force of this instrument;
 The impact of the Tupikas, Zdziaszek and Ardic judgments; whether they led
to an increase in requests for additional information and/or to delays in the
execution of the EAW; to what extent the model form (box related to Article
4a(1)) is suitable for appeal/subsequent proceedings; and, to what extent
these judgments might require legislative changes at the national level.
o On the basis of its casework and also taking into consideration the CJEU’s AY
judgment (Case C-268/17), Eurojust would like to suggest the consideration of
challenges related to the application of another ground for refusal, namely ne bis in
idem, particularly questions surrounding the assessment of the elements “same
acts” and “final judgment”.
o Extradition requests concerning EU citizens: On the basis of its casework,
Eurojust would suggest the following topics:
 Whether the competent national authorities are aware of extradition
proceedings concerning EU citizens in which their Member State were
involved in a Petruhhin, a Raugevicius or alike scenario;
 Whether such cases led to in the issuing of an EAW or the use of another
judicial cooperation instrument resulting in the EU citizen not being
extradited to a third country;
 The internal procedures followed in such cases;
 The difficulties faced, if any, by the Member State of nationality when
deciding to issue or not to issue an EAW;
 The instrument to be used in case of an extradition request for the purpose
of the execution of a sentence, the procedure to be followed and/or
difficulties in using these instruments, if any;

1
It should be noted that in several judgments the CJEU linked the provision on requests for additional information
(Article 15(2) EAW FD) to the provision on time limits (Article 17 EAW FD), see, for instance: Aranyosi/Căldăraru (paras
95-99) Tupikas (para 97); Piotrowski (para 55-61).

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 The application of the Petruhhin line of case law beyond the scope of the
CJEU’s judgment (e.g. by Member States which do not have the nationality
exception in their national legislation).
o Legal and practical challenges in relation to the actual surrender, particularly
issues such as a release on bail (the requested person becoming a fugitive and
related cost issues) and, as also occurred in the Vilkas case, (repeated) physical
resistance to being surrendered (leading in some cases, where no alternative means
of transportation can be agreed upon, to the non-surrender).
o House arrests: despite clarifications given by the CJEU in Bob Dogi in relation to
Article 8(1)(c), Eurojust’s casework reveals that questions remain in relation to the
interpretation and scope of this provision and particularly the wording “any other
enforceable judicial decision having the same effect”. On the basis of Eurojust’s
casework the question was raised whether an executing authority is entitled to
refuse to execute an EAW for prosecution if the requested person, when
surrendered to the issuing Member State, will not be held in pre-trial detention, but
instead put under house arrest.

3. FD 2008/909/JHA on custodial sentences

- Nature of measures involving deprivation of liberty-differences in legal systems;
- Issues linked to the assessment of facilitating social rehabilitation (Article 4(4));
- Opinion and notification of the sentenced person concerned (Article 6);
- Adaptation of the sentence (Article 8(2));
- Grounds for non-recognition and non-enforcement (Article 9);
- Minor custodial sentences summing up to a custodial sentence of at least 6 months (Article
9.1 (h));
- Judgements in absentia (Article 9.1 (i));
- Partial recognition and enforcement (Article 10);
- Time limits for recognition and enforcement (Article 12);
- Law governing enforcement-grounds for early or conditional release (Article 17);
- Imprisonment in lieu of a fine-differences in Member States' legal systems and practices;
- Requirement of a written judgment-differences in legal systems;
- Requirement of translation of the judgment (Article 23(2) and (3)).

4. Links between FD on the EAW and FD on custodial sentences

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- Possibility for the executing authority to refuse a surrender of its nationals or residents, if
the latter undertakes to enforce the prison sentence in accordance with FD 2008/909/JHA
(e.g. Poplawski case).
- On the basis of its casework, Eurojust would also like to suggest the situation whereby an
issuing authority first issues an EAW for the purpose of executing a custodial sentence and,
subsequently, when the EAW procedure is still pending, it asks for the suspension of the
effective surrender of the requested person in view of issuing instead a certificate under
Article 4 FD 2008/909/JHA requesting the enforcement of the custodial sentence in the
executing state. In some cases, the issuing competent authority even issues at the same time
for the same requested person both an EAW and a 909 certificate, giving rise in this manner
to the activation of two parallel procedures. Such practice can seriously hamper judicial
cooperation. Eurojust would suggest questions that assess whether national authorities,
either as issuing or executing authority, were faced with such a scenario, the practical and
legal problems that they encountered and the solutions, if any, that they applied to
overcome this issue.
- Dual criminality: application of the ground for non-recognition in EAW and 909 cases;
possible application of the legal reasoning applied by the CJEU in the Grundza judgment
beyond the context of FD 2008/909/JHA.

5. FD 2008/947/JHA on probation and alternative sentences and FD 2009/829/JHA on ESO

As explained at the meeting held at the premises of Eurojust on 15 January, Eurojust’s experience in
relation to these two instruments is very limited. Eurojust fully supports the focus on questions that
are of a rather general nature and aimed at establishing the reasons that have led to a scares
application of these two Framework Decisions.

6. Horizontal issues
 Compliance with time limits;
 Direct contact (reasons why direct contact sometimes fails);
 Grounds for non-recognition (focus on those grounds that are considered to be the most
problematic ones across the different instruments);
 Templates (adequateness of the forms).

7. Role of Eurojust
The following general issues could be taken into account in the questions as regards Eurojust’s role
in facilitating the application of the four instruments in accordance with its legal framework:
- Instances in which Eurojust is used for facilitating the transmission of the instruments,
particularly in urgent cases;
- Instances in which Eurojust is used for providing assistance to the issuing authority (e.g. for
drafting the request) and to the executing authority (e.g. when assisting in the execution

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phase in case of legal or practical issues, and in the framework of a coordination meeting or
a coordination centre at Eurojust, etc.);
- National authorities’ experiences of Eurojust’s support, i.e. in cases referred to Eurojust, and
expectations regarding Eurojust’s continuous support;
- Existence of national training modules on the assistance that can be provided by Eurojust to
judicial practitioners;
As regards in particular the EAW, the following specific issues could be considered:
- Involvement of Eurojust in cases of conflicting EAWs or whenever EAWs are in competition
with extradition requests (Article 16 FD EAW).The latter has become particularly relevant
since the Petruhhin line of case law which can trigger the issuing of an EAW in cases where
an extradition request already exists;
- Notifications to Eurojust in case of breaches of time limits 2 in the execution of the EAW and
the reasons therefore (Article 17(7) FD EAW);3 and use of the template developed by
Eurojust, in consultation with the national authorities, in 2018 and available in all EU
official languages (see Attachment 1);
- Knowledge of practitioners and their access to supporting documents prepared by Eurojust
(e.g. regularly updated Overview of Case Law of the CJEU on the EAW, retrievable here;
casework reports; briefing notes on relevant new judgments; operational topics).
________________________________________

2
For more information on the services that Eurojust can provide at operational and strategic level further to the
compliance by Member States of their obligation to inform Eurojust of breaches of time limits in the execution of EAWs
and the reasons therefor pursuant to Article 17(7) (first sentence) of FD EAW, please consult Council doc. 10270/14 of 26
May 2014.
3
In several judgments, the CJEU recalled the executing Member State’s duty, in cases where it cannot observe the time
limits, to inform Eurojust, giving reasons for the delay, in accordance with Article 17(7) EAW FD. See, for instance:
Aranyosi/Căldăraru (para 99); Piotrowski (para 56).

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