European Arrest Warrant: ECJ stops unilateral departure from its recognition

But what if a Member State refuses to surrender the individual and instead seeks to enforce the sentence itself – relying, for example, on the argument that this would improve the person's chances of social rehabilitation? The Court of Justice of the European Union has recently answered this question.

Background of case C-305/22

A Romanian national was sentenced in 2017 in Bucharest to a custodial sentence of four years and two months. In November 2020, the court issued a European Arrest Warrant (EAW) for the enforcement of the sentence. Shortly thereafter, the person was arrested in Italy.

The Italian judicial authorities, however, refused to surrender him to Romania. Instead, they recognised the Romanian judgment, credited periods of detention already served, and ordered that the sentence be enforced in Italy. They justified this approach by invoking the better prospects for social rehabilitation of the requested person, who had been lawfully residing in Italy. No other grounds for refusal were raised.

The Romanian authorities did not accept this course of action. The competent court in Bucharest therefore referred the matter to the Court of Justice of the European Union (ECJ), seeking clarification on whether a judicial authority executing an EAW may refuse surrender and unilaterally assume responsibility for enforcing the sentence without the consent of the issuing Member State.

The decision

Legal basis for refusal of surrender

The ECJ used the present case to clarify the interplay between Framework Decision 2002/584 on the EAW and Framework Decision 2008/909 on the Mutual Recognition and Enforcement of Judgments. The ECJ first reiterated that the EAW was based on the principle of mutual recognition, which obliged the Member States to execute any such warrant.

A refusal is therefore permissible only in expressly defined exceptional cases, the applicability of which must be interpreted strictly. In addition to the mandatory grounds for non-execution set out in Article 3 of Framework Decision 2002/584, which were not relevant in this case, Article 4 provides optional grounds that permit, but do not require, refusal. Pursuant to subparagraph 6, these grounds apply where the requested person is a national of, resides in or is staying in the executing Member State, and that State undertakes to enforce the sentence itself. This was precisely the situation in the present case.

However, Article 4(6) of Framework Decision 2002/584 must be read in conjunction with Framework Decision 2008/909. That decision stipulates that where the judicial authorities of a Member State refuse to execute a EAW in order to enforce the sentence on their territory, they must obtain the consent of the authorities of the issuing Member State. Without it, the conditions for assuming responsibility for enforcing the sentence are not met and the person concerned must be surrendered.

Outcome of the proceedings

In the present case, the consent of the Romanian authorities had not been obtained. As a result, there was no legal basis under EU law for an autonomous assumption of enforcement by the Italian authorities. Unsurprisingly, since the conditions laid down in Framework Decision 2008/909 were not met, Romania, as the issuing Member State, retained the right to maintain the EAW and to enforce the sentence on its own territory.

As the ECJ pointed out, the objective of increasing the chances of social rehabilitation is important but not absolute. On one hand, it must be balanced against the fundamental principle that Member States are obliged to execute any EAW. Furthermore, taking into account criminal policy considerations, the authorities of the Member State in which a custodial sentence has been imposed may legitimately justify enforcing that sentence on their own territory. Consequently, they are entitled to refuse the enforcement of the sentence in another Member State.

Conclusion

The ECJ's judgment in Case C-305/22 reaffirms that the EAW regime can function only if the principle of mutual recognition is observed in its purest form. Unless explicitly stipulated mandatory grounds are provided for non-execution, any unilateral attempt to assume enforcement of a custodial sentence – however well-intentioned or motivated by social-rehabilitation policy – risks undermining this cornerstone principle by replacing an EU-wide obligation with national discretion. The ruling therefore serves as a clear reminder that safeguarding the integrity of mutual recognition is essential. It preserves the uniform and expedient operation of the EAW, protects legal certainty for both issuing and executing Member States, and ultimately guarantees that cross-border criminal justice within the EU remains effective, predictable and rooted in the rule of law.

authors: Oliver M. Loksa, Marc Cistota