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Questionnaire and Compilation on the Requirements for Issuing and Executing Judicial Authorities in EAW Proceedings Pursuant to the CJEU’S Case-Law

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Questionnaire and Compilation on the Requirements for Issuing and Executing Judicial Authorities in EAW Proceedings Pursuant to the CJEU’S Case-Law Updated Questionnaire and Compilation on the Requirements for Issuing and Executing Judicial Authorities in EAW Proceedings pursuant to the CJEU’s Case-Law Revised on 19 April 2021 Contents 1. Background ....................................................................................................................... 4 2. Summary of the CJEU’s case-law .......................................................................................... 5 2.1. Overview of judgments on public prosecutors as issuing/executing authorities ...................... 5 2.2. Requirements for the purpose of issuing/executing EAWs by public prosecutors .................... 8 2.3. Scope of the CJEU’s case law ............................................................................................. 9 3. Questionnaire ...................................................................................................................11 4. Overview of full responses to the questionnaire ...................................................................13 4.1. Overview of responses by the EU Member States...............................................................13 4.1.1. Austria (AT) ............................................................................................................13 4.1.2. Belgium (BE) ...........................................................................................................15 4.1.3. Bulgaria (BG)...........................................................................................................18 4.1.4. Croatia (HR) ............................................................................................................22 4.1.5. Cyprus (CY) .............................................................................................................24 4.1.6. Czech Republic (CZ)..................................................................................................25 4.1.7. Denmark (DK) .........................................................................................................26 4.1.8. Estonia (EE).............................................................................................................28 4.1.9. Finland (FI) .............................................................................................................30 4.1.10. France (FR) ..........................................................................................................33 4.1.11. Germany (DE) ......................................................................................................38 4.1.12. Greece (EL) ..........................................................................................................42 4.1.13. Hungary (HU) .......................................................................................................44 4.1.14. Ireland (IE)...........................................................................................................46 4.1.15. Italy (IT) ..............................................................................................................48 4.1.16. Latvia (LV) ...........................................................................................................50 4.1.17. Lithuania (LT) .......................................................................................................51 4.1.18. Luxembourg (LU)..................................................................................................54 4.1.19. Malta (MT) ..........................................................................................................56 4.1.20. The Netherlands (NL) ............................................................................................57 4.1.21. Poland (PL) ..........................................................................................................59 4.1.22. Portugal (PT)........................................................................................................60 4.1.23. Romania (RO) ......................................................................................................62 4.1.24. Slovakia (SK) ........................................................................................................64 Last updated: 19 April 2021 Page 1 of 77 4.1.25. Slovenia (SI).........................................................................................................66 4.1.26. Spain (ES) ............................................................................................................68 4.1.27. Sweden (SE).........................................................................................................70 4.2. Overview of responses by Norway, Iceland and the United Kingdom ....................................72 4.2.1. Norway (NO)...........................................................................................................72 4.2.2. Iceland (IS)..............................................................................................................74 4.2.3. United Kingdom (UK) ...............................................................................................76 Last updated: 19 April 2021 Page 2 of 77 Executive summary The Court of Justice of the European Union (CJEU) interpreted in its case-law the notion of ‘issuing judicial authority’ under Article 6(1) of the Framework Decision on the European Arrest Warrant and the surrender procedures between the Member States (EAW FD). In 2019, the CJEU clarified in several judgments the requirements under which public prosecutors can be regarded as ‘issuing judicial authority’ for the purposes of the EAW FD. This case-law raised many questions regarding the legal position of public prosecutors in the Member States. Therefore, Eurojust and the European Judicial Network (EJN) worked on a questionnaire and compilation of replies from the national authorities of the Member States and Norway, with the aim of assisting practitioners with the application of the EAW FD in this field (last version, Council document no. 7182/1/20 of 6 April 2020). In November 2020, the CJEU transposed the case-law on the ‘issuing judicial authority’ and the requirements developed therein in relation to public prosecutors also to the notion of ‘executing judicial authority’ under Article 6(2), Article 27(3)(g) and Article 27(4) EAW FD. Following this judgment and upon agreement with the Council, Eurojust and the EJN (in close cooperation with the Commission) merged the information on ‘issuing judicial authorities’ (Council document no. 7182/1/20) with the information on ‘executing judicial authorities’ collected by the Council and the Commission (Council document no. 13820/20) into a single updated compilation (Council doc no. 5607/1/21). The compilation includes a brief summary of the most relevant judgments that the CJEU delivered on this issue in the period between May 2019 and March 2021. 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). 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 which 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 current version of this compilation has been updated with a reference to further developments in the CJEU’s case-law in this area (Case C-648/20 PPU PI) and also includes a few new or revised contributions that have been received by 15 April 2021. Last updated: 19 April 2021 Page 3 of 77 1. Background In recent years, the Court of Justice of the European Union (CJEU) clarified in a number of judgments the concept of ‘issuing judicial authority’ (Article 6(1) EAW FD)1 and the concept of ‘European arrest warrant’ (Article 1(1) EAW FD).2 With specific reference to public prosecutors, in several judgments of 2019 the CJEU underlined the importance of their independence when issuing EAWs and clarified the requirements of effective judicial protection. These judgments raised many questions amongst practitioners on consequences concerning the legal position of public prosecutors in the Member States. Against this background, Eurojust prepared in 2019 a questionnaire and compiled the relevant information from the Member States and Norway (Council doc. 10016/19). Eurojust and EJN revised this compilation a few times when updated information had become available (last update Council doc. 7182/1/20). On 24 November 2020, the CJEU transposed its case-law on the concept of ‘issuing judicial authority’
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