The evolution of European Union criminal law (1957-2012)

Member State of execution, irrespective of their connections with that Member State
(the terms ‘resident’ and ‘staying in’ having to be defined uniformly by the Member
States). The Court further clarified that this did not mean that national authorities were
under obligation to refuse to execute an EAW issued in respect to a person staying in or
a resident of its territory. However, in so far as there is a demonstrated degree of
integration into the society, comparable to that of a national, the executing authority
must be able to assess whether there is a legitimate interest which would justify the
sentence imposed in the issuing Member States being enforced within the territory of the
executing Member State. 1028
The case I.B., concerning the execution of an EAW and trials in absentia, also provided
further guidance in relation to the grounds for non-execution of an EAW. At stake were,
once again, Article 4(6) of the Framework Decision as well Article 5 (1) and (3). Article
5(1) of the Framework Decision stipulates that where the EAW has been issued
following a decision rendered in absentia, and if the person concerned has not been
summoned in person or otherwise informed of the date and place of the hearing which
led to the decision rendered in absentia, surrender may be subject to the condition that
the issuing judicial authority gives an adequate assurance to guarantee the subject of the
EAW will have an opportunity to apply for a retrial; in turn, Article 5(3) holds that the
execution of an EAW, for the purposes of prosecution, may be subject to the condition
that the national or resident in the executing State, after being heard, is returned to the
executing Member State in order to serve the custodial sentence or detention order
passed against him in the issuing State. In its decision, the Court emphasised the
importance of granting some discretion to Member States in how they choose to
implement the grounds for non-execution of an EAW (in case they choose to implement
these optional grounds at all). In doing so, the Court reaffirmed that Member States
ought to take into account the objective of enabling the possibility of increasing the
requested person’s chances of reintegrating into society. The Court thus found that
where the executing Member State has implemented Articles 4(6) and 5(1) and (3) of the
Framework Decision, the execution of an EAW issued for the purposes of enforcement
of a sentence imposed in absentia, may be subject to the condition that the person
concerned, who is a national or resident of the executing Member State, should be
returned to the executing State in order to serve the sentence passed against him,
following a new trial, with his presence, in the issuing State. 1029
1028 Case C-42/11, supra note 770, 49-60.
1029 Case C-306/09 Proceedings concerning the execution of a European arrest warrant against
I.B. ECR I-10345 [2010] see, in particular, at 61.
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