Dr. Ermioni Xanthopoulou, Reader/Associate Professor in Law, Brunel University of London
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Introduction
On 3 November 2026, the Grand
Chamber of the Court of Justice of the European Union (CJEU) gave its ruling in
Tagu
(C-583/24). The ruling was in response to a preliminary reference question
lodged by the District Court of Amsterdam seeking clarification on whether judicial
authorities executing a European arrest warrant (EAW) may refuse surrender
because the sentence to be served is deemed disproportionate to the offence,
contrary to Article 49(3) of the EU Charter of Fundamental Rights (Charter). The
Court ruled that the alleged disproportionality of the sentence alone cannot
allow the refusal of the EAW’s execution unless the penalty is so excessive that
this could be in breach of Article 49(3) of the Charter and the two-step test,
well-established by previous case law, is satisfied.
The blog examines the case in Tagu
and reflects on whether the Court has found the right balance between cooperation
interests, criminal justice imperatives and the limit posed by the protection of
fundamental rights. It is argued that while this development further expands
the exceptions to mutual trust within the EAW framework, it also highlights the
difficulty of meeting the two-stage test as a rigid mechanism for addressing concerns
over the protection of fundamental rights. As a result, the balance remains
tilted in favour of mutual trust and, in this case, respect for national
criminal policy, while inviting for a rigorous engagement with alleged rights
violations.
Facts of the main proceedings and the questions referred
for a preliminary ruling
The case concerns the execution
of an EAW issued to enforce a final seven-year prison sentence imposed by the
Constanța Court of Appeal on 20 December 2023. DZ was subsequently convicted
for importing into Romania three grams of cannabis and four MDMA tablets
together with his wife. According to the findings of the Amsterdam court, the
drugs had been imported solely for personal consumption. The court also found
no evidence that DZ intended to engage in the sale or distribution of the
substances. Notably, Romanian law treats these acts as a single criminal
offence, namely the importation of risk and high-risk drugs into the country.
The key issue before the Court
was whether an executing judicial authority may refuse to execute an EAW issued
for the enforcement of a custodial sentence where surrender would expose the
requested person to a risk of receiving a penalty that contravenes the
principle of proportionality enshrined in Article 49(3) of the Charter. More
specifically, the Court was asked to clarify whether, and under what
conditions, concerns regarding the proportionality of the sentence imposed in
the issuing Member State may justify a departure from the principle of mutual
recognition that underpins the EAW system.
Specifically, the preliminary
reference concerned the interpretation of Article 1(3) of the Framework
Decision on the European Arrest Warrant, read together with Article 49(3)
of the Charter and the relevant provisions of Framework
Decision 2004/757 on harmonising the minimum provisions on the constituent
elements of acts and penalties in the field of illicit drug trafficking. More
broadly, the Court was asked to clarify the relationship between the principle
of mutual recognition in criminal matters and the Charter guarantee that
penalties must not be disproportionate to the criminal offence.
Against that background, the
Court was required to determine whether, and under what conditions, an
executing judicial authority may refuse to surrender a requested person where
it considers that the custodial sentence imposed in the issuing Member State is
disproportionate and that the execution of the EAW would therefore infringe the
principle of proportionality of penalties protected by Article 49(3) of the
Charter. More specifically, the Court was asked to clarify whether such a
refusal is subject to the two-stage test developed in its case law and, if so,
to define the precise scope and content of each stage of that assessment.
Opinion
In his Opinion,
issued on 22 January 2026, Advocate General Richard de la Tour (AG de la Tour) reaffirmed
that mutual recognition of judicial decisions constitutes a cornerstone of the EAW
system and that the determination of criminal penalties falls, in principle,
within the competence of the issuing Member State. However, he stressed that
surrender cannot be regarded as automatic where fundamental rights concerns
arise. In his view, the executing judicial authority may refuse surrender where
it possesses objective, reliable, specific and up-to-date evidence
demonstrating the existence of systemic or generalised deficiencies in the
issuing Member State's compliance with the principle of proportionality of
penalties. Such deficiencies must be of a nature that prevents national courts
from adequately individualising sentences for certain categories of offences. In
addition, the executing authority must establish, in addition to the generic
assessment of the first step concerning the finding of systemic deficiencies,
that the requested person faces a real risk of being subjected to a manifestly
and exceptionally disproportionate punishment. All in all, the refusal requires
a two-stage assessment, combining evidence of systemic deficiencies with an
individualised evaluation of the circumstances of the case.
Ruling
The Court held that the mere fact
that a sentence imposed in one Member State would be regarded as unusually
severe in another does not justify refusing surrender under an EAW. Rather, the
case must be examined through the lens of the Court's established two-step
test, which governs when fundamental rights concerns may limit mutual
recognition. The first stage requires the executing judicial authority to
establish whether there are systemic or generalised deficiencies in the issuing
Member State's compliance with the principle of proportionality of penalties,
amounting to a manifest and serious breach of Article 49(3) of the Charter and
not capable of being effectively challenged through available remedies. According
to the Court, the first-stage threshold is met where either the applicable
sentencing regime permits inhuman or degrading punishment, or where it prevents
courts from tailoring penalties to the gravity of the offence and the
individual circumstances of the offender. Only where such systemic deficiencies
have been established must the executing judicial authority proceed to the
second stage of the assessment. The second stage requires the executing
judicial authority to assess whether, in the specific circumstances of the
case, the requested person faces a real risk of being subjected to a
disproportionate penalty if surrendered.
Applying the two-stage test, the
Court concluded that Romanian law did not disclose the systemic deficiencies
required at the first stage. Judges retained discretion to individualise
sentences within the statutory range, account for mitigating circumstances,
reduce penalties following an admission of guilt, and distinguish between
high-risk and other drugs. As a result, the sentencing framework could not be
regarded as manifestly incompatible with the principle of proportionality of
penalties. The Court also added that effective judicial remedies were available
in the present case, as DZ had challenged his sentence both on appeal and
through a subsequent point-of-law procedure. As the first-stage threshold was therefore not met, there was no
need to conduct the second-stage individual assessment.
Comment:
The Court has historically been careful
at allowing for derogations from mutual recognition of EAWs, favouring their
execution in the interest of criminal justice, cooperation among judicial
authorities and as an expression of respect to the issuing state’s criminal
policy. I believe that the court has overall succeeded in striking the right
balance between the protection of fundamental rights and the interests of
criminal justice cooperation in this case. The ruling is careful at both
1) asserting respect for mutual recognition of judgments and
national criminal policies by ruling that disproportionality alone cannot
justify refusal and
1) allowing for the check of
proportionality of a sentence when it is so excessive that it may amount to
inhumane or degrading punishment while fitting the exception in the two-step
test, in line with well-established case law.
Allowing for a proportionality
review to be performed by executing authorities, whenever penalties imposed by
the courts of the issuing state are deemed harsh by the standards of the executing
state, would put national criminal policies under scrutiny negating mutual
trust. Proportionality is already at the heart of the EAW’s operation in
express and implied ways, providing for a carefully balanced equilibrium. While
issuing authorities are expected to conduct a proportionality assessment when
issuing a warrant, executing authorities are not allowed to do so because they
are expected to trust their counterparts. Crucially, in the absence of complete
harmonisation of criminal law, executing authorities are expected to respect
the domestic legislation at the issuing state as an expression of national
policy on criminal law which is a policy field associated with statehood and expressing
societal choices. This is also in line with ECtHR case law concerning Article 3
ECHR. The European Court of Human Rights accepts that a grossly
disproportionate sentence can amount to inhuman or degrading punishment, but
only on ‘rare and unique occasions’ (Harkins and Edwards v UK, 2012, §133, and restated in Sanchez-Sanchez v UK [GC], 2022, §80). In extradition
cases, due regard must be had to the fact that sentencing practice legitimately
varies between States (Harkins, §134).
Nevertheless, manifest
disproportionality must not be ignored. The limit to mutual trust, is the
protection of fundamental rights, which explains why the Court generally allows
for carefully controlled exceptions,
organised around the two-step test originally (Joined Cases C-404/15 and C-659/15
PPU, Pal
Aranyosi and Robert Caldararu; Case C-216/18 PPU, Minister
for Justice and Equality v. LM). Systemic deficiencies to criminal laws
or judicial practices amounting to inhumane or degrading excessive punishment
without an effective remedy that could affect the individual in question
appears overall as not only a fair exception to mutual recognition but also owned
to the EU value of protecting rights.
The two-step test is also a
clever construct to assert the significance of mutual recognition. More
specifically, the possibility of meeting the threshold of it is actually thin.
Proving systemic deficiencies on the first level and then their concrete effect
on the requested person is challenging. Differences in penalties themselves are
not sufficient, according to the Court, to justify the existence of systemic
deficiencies. These need to be linked to broader legislation or judicial
practice that amounts to inhumane or degrading punishment, without the chance
of effective judicial remedy. The Court found this is not the case here and I
agree with this assessment with respect to Romanian law. The sentenced person
has the right to appeal, and the Romanian law allows for the individualisation
of the sentence which might lead to the reduction of it.
While the exception to mutual
trust cannot – and should not - be used simply to challenge national
choices of sentencing it may – and must - be used to target deeper
injustices stemming from draconian laws or pathologies in judicial practices
revealing breaches of the essence of some rights. While I am not convinced that
this is the case here, I disagree with the outcomes in previous rulings in
relation the protection of fundamental rights in certain cases where systemic
breaches of judicial independence was ascertained. More profoundly, my
disagreement, analysed here,
concerns the very structure of the test that requires both a systemic
and a specific assessment where the verification of either step alone is not
sufficient. This choice is structurally problematic and is likely not aligned
with the ECtHR individualised assessment. While I agree that mutual trust and
mutual recognition are undoubtedly worth protecting, they simply cannot exist
without an effective protection of fundamental rights. Without the latter,
trust fails to exist.
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