08 July 2026
The European Arrest Warrant (EAW) is one of the most important instruments of judicial cooperation in criminal matters within the European Union. Since its introduction by Framework Decision 2002/584/JHA, it has replaced the traditional extradition procedure between Member States, enabling the much swifter surrender of persons sought for trial or to serve a sentence.
However, the apparent simplicity of the procedure can be misleading. Underlying an EAW are significant procedural safeguards, numerous legal requirements and an ever-evolving body of case law from the Court of Justice of the European Union (CJEU) which determines the validity of many arrest warrants.
What is a European Arrest Warrant?
The European Arrest Warrant (EAW) is a judicial decision issued by a Member State of the European Union requesting another Member State to arrest and surrender a person for the purposes of criminal proceedings or for the enforcement of a custodial sentence or detention order.
It is primarily governed by:
- Council Framework Decision 2002/584/JHA;
- Law 23/2014 on the mutual recognition of criminal judgments in the European Union;
- the Charter of Fundamental Rights of the European Union;
- the case law of the Court of Justice of the European Union.
The procedure is based on the principle of mutual recognition between European judicial authorities, considered one of the pillars of the European area of freedom, security and justice.
The speed of the procedure requires action to be taken from the very outset
One of the greatest risks for any person subject to a European Arrest Warrant is the very limited timeframe available.
Following arrest, precautionary measures of enormous significance may be taken and very short procedural time limits may begin to run.
Decisions taken during the initial court appearances often determine the course of the entire subsequent proceedings.
It is therefore essential to have a lawyer specialising in both Spanish criminal law and international judicial cooperation immediately.
What are the main requirements for issuing a European Arrest Warrant?
Not every criminal investigation allows for the issuance of a European Arrest Warrant.
The most important requirements include:
1. The existence of a valid judicial decision
The warrant must be issued by a genuine competent judicial authority.
The Court of Justice of the European Union (CJEU) has precisely defined which authorities are validly authorised to issue a European Arrest Warrant, requiring them to act with sufficient independence from the executive branch.
2. The existence of genuine criminal proceedings
The order cannot be used as a mechanism for indiscriminate investigation or as a means of exerting pressure.
There must be an ongoing criminal proceeding that objectively justifies the need to locate the person sought and bring them before a court.
3. Proportionality
European case law has progressively reinforced the principle of proportionality.
Not every criminal offence justifies the activation of such an intensive mechanism of international cooperation.
It is becoming increasingly common for courts to analyse:
- the seriousness of the offence;
- the penalty provided for;
- the genuine interest in prosecution;
- less restrictive alternatives;
4. Respect for fundamental rights
Mutual recognition is not absolute.
Where there are real risks of a breach of fundamental rights, the executing State may examine certain exceptional circumstances.
European case law has developed this issue in particular with regard to:
- judicial independence;
- prison conditions;
- the right to a fair trial;
- the right of defence.
The importance of the case law of the Court of Justice of the European Union
The legal framework governing the OEDE has hardly changed in recent years.
What has really evolved is its interpretation by the CJEU.
Today, it is virtually impossible to properly defend a surrender procedure without being familiar with the extensive body of European case law developed over the last decade.
The significant development introduced by the CJEU judgment of 10 April 2025
One of the most significant rulings in recent years is the CJEU judgment of 10 April 2025 (Case C-481/23, Sangas), handed down precisely in response to a reference for a preliminary ruling made by the Spanish Audiencia Nacional.
The Court reiterates that Member States may not create new grounds for refusing enforcement other than those provided for by EU law.
In particular, it states that a European Production Order issued to ensure the defendant’s appearance during criminal proceedings cannot be refused simply because the executing State considers that less onerous measures might be available or because it assesses the appropriateness of the suspect’s travel differently.
Furthermore, the Court emphasises that the limitation period under the law of the executing State may only apply in the cases expressly provided for by European legislation.
This judgment once again reinforces the principle of mutual recognition and limits the scope for individual Member States to interpret the grounds for refusing an EAW at their own discretion.
Does this mean that an EAW can no longer be contested?
Not at all.
Recent case law does not eliminate the possibilities for defence.
What it requires is that the legal strategy be carefully constructed and based on arguments compatible with EU law.
Each case requires an analysis of, amongst other issues:
- the competence of the issuing authority;
- the formal validity of the order;
- the existence of a prior national decision where required;
- compliance with the principle of speciality;
- double criminality, where necessary;
- any potential infringement of fundamental rights;
- the proportionality of the measure;
- the specific procedural situation of the person against whom the request is made.
Many extraditions initially considered inevitable end up being rejected or subject to conditions following a proper legal assessment.
Specialised legal representation makes all the difference
OEDE proceedings combine national legislation, European Union law and extensive case law from the Court of Justice of the European Union (CJEU).
It is not enough simply to be familiar with the Spanish criminal procedure.
It is essential to have a thorough understanding of:
- international judicial cooperation;
- European law;
- case law of the CJEU;
- the functioning of the Audiencia Nacional;
- coordination with lawyers from the issuing State where necessary.
An incorrect procedural strategy during the initial days can significantly limit the chances of success later on.
The work of specialist lawyers must include, amongst other things, an immediate defence following arrest, experience in representing clients before the Audiencia Nacional, an assessment of the legality of the warrant, the preparation of a procedural strategy, coordination with foreign lawyers, and the lodging of appeals and taking legal action before national and European courts where appropriate.
Each case requires a personalised, swift and technically rigorous response.
Conclusion
The European Arrest Warrant continues to evolve thanks to the case law of the Court of Justice of the European Union.
The most recent rulings, and in particular the judgment handed down on 10 April 2025, consolidate the principle of mutual recognition, but at the same time require an increasingly specialised defence based on highly complex legal arguments.
When a person is served with a European Arrest Warrant, time is of the essence. Having a team of experts in international criminal law and European judicial cooperation from the very outset can be decisive for the protection of their rights and the success of their defence.