The term ‘executing judicial authority’ (Article 6(2) FD EAW) responsible for deciding on the execution of EAWs, once the final decision to surrender is reached, has recently sparked a discussion. This particularly pertains to the determination of (exceptional) circumstances for temporary postponement of surrender – force majeure, serious humanitarian reasons and the postponement of surrender for criminal prosecution/execution of a sentence (Articles 23(3) and (4) and 24(1) FD EAW). This article unpacks the meaning of these circumstances and analyses the ECJ’s requirement for ‘necessary independence vis-à-vis the executive’, clarifying who qualifies as an ‘executing judicial authority’. The findings illustrate the difficulty in meeting the requirement by bodies other than a judge/court. Its impact on the Dutch system, leading to a new amendment to the surrender law, is demonstrated. The FD establishes a higher standard than the extradition regime (European Convention on Extradition), which does not necessarily require intervention by a ‘judicial authority’. Nonetheless, it is argued that the ECJ’s stringent criteria for an ‘executing judicial authority’ in decisions on actual surrender ensure a consistent interpretation of the FD EAW and maintain a balance between safeguarding (fundamental) rights and the need for efficiency in the EAW system.
Messele et al. (Tue,) studied this question.