European Arrest Warrant: The Court of Cassation and Ruling 30618/2025 on the Issuing State's Consent

The European Arrest Warrant (EAW) is a crucial instrument for judicial cooperation in criminal matters within the European Union, aimed at speeding up surrender procedures between Member States. However, its application can present complexities, especially in balancing the execution of the sentence with the guarantees for the convicted person. A recent ruling by the Court of Cassation, Ruling No. 30618 of 08/09/2025, has provided fundamental clarifications on a delicate aspect: the necessity of the issuing State's consent for refusing surrender based on social reintegration needs.

The Context: EAW, Refusal of Surrender, and Article 18-bis of Law 69/2005

Established by Framework Decision 2002/584/JHA and implemented in Italy by Law No. 69 of April 22, 2005, the EAW provides for grounds for refusing surrender. Among the optional grounds, Article 18-bis of Law No. 69/2005 allows the Court of Appeal to refuse surrender if taking over the sentence in Italy favors the convicted person's social reintegration. This provision aims to protect the rehabilitative process, in line with constitutional principles and European directives. However, the application of this option has raised questions about its compatibility with the principle of mutual recognition and the need for coordination with the issuing State.

The Jurisprudential Turning Point: CJEU C-305/22 and Cassation 30618/2025

A decisive moment was the ruling of the Grand Chamber of the Court of Justice of the European Union of September 4, 2025, case C-305/22. This ruling had a significant impact on the interpretation of Article 18-bis, emphasizing the importance of dialogue between judicial authorities for a harmonized application of the EAW. The Court of Cassation's Ruling No. 30618 of 08/09/2025 fits into this framework, annulling with referral a decision of the Court of Appeal of Milan. The Supreme Court, presided over by Dr. DE AMICIS G. and with Dr. CALVANESE E. as rapporteur, clarified that the Court of Appeal, before invoking the optional ground for refusal related to social reintegration and taking over the execution of the sentence, must necessarily obtain the consent of the issuing State. In the absence of such consent, the Italian Court is bound to order the surrender of the requested person.

In the matter of an executive European Arrest Warrant, by virtue of the ruling of the Grand Chamber of the Court of Justice of the European Union of September 4, 2025, C305/22, the Court of Appeal, before invoking the optional ground for refusal of surrender related to the convicted person's social reintegration needs, transposed into Article 18-bis of Law of April 22, 2005, No. 69, and taking over the execution of the sentence, is required to obtain the consent of the issuing State, which is expressed through the transmission of the conviction judgment accompanied by the relevant certificate pursuant to Articles 4 and 5 of Framework Decision 2008/909/JHA, being, in its absence, bound to order the surrender of the requested person.

This maxim is of fundamental importance. It establishes that the option to refuse surrender for social reintegration reasons is not a unilateral decision of the executing State. It requires explicit approval from the State that issued the EAW. Consent is manifested through the transmission of the conviction judgment accompanied by the certificate provided for in Articles 4 and 5 of Framework Decision 2008/909/JHA. Without this step, the Italian judicial authority cannot independently decide to detain the convicted person for the execution of the sentence in Italy but is obliged to proceed with the surrender.

How is Consent Obtained?

The Cassation ruling specifies the methods for obtaining consent, referencing Framework Decision 2008/909/JHA, which facilitates the cross-border recognition and enforcement of criminal judgments. Articles 4 and 5 of this Decision provide for the transmission of a standardized certificate that accompanies the conviction judgment, providing the necessary information for the execution of the sentence in the other Member State.

The practical implications for the Italian Courts of Appeal are clear:

• Assess the appropriateness of refusal based on social reintegration.
• Formally obtain the consent of the issuing State by transmitting the judgment with the certificate pursuant to Articles 4 and 5 of Framework Decision 2008/909/JHA.
• In the absence of such specific consent, proceed mandatorily with surrender.

This mechanism strengthens judicial cooperation, ensuring that decisions on the place of sentence execution are the result of an agreement between States, respecting both justice requirements and rehabilitative needs.

Conclusions

Ruling No. 30618 of 08/09/2025 by the Court of Cassation is a fundamental piece in the complex mosaic of the European Arrest Warrant. Reaffirming the principles of the EU Court of Justice, it clarifies the indispensability of coordinated and consensual action between Member States for refusing the surrender of a convicted person for social reintegration reasons. This ruling offers legal certainty and underscores the importance of a harmonized approach in applying European criminal cooperation instruments, balancing effectiveness and rights protection. For legal professionals and citizens alike, understanding these dynamics is essential for effective justice that respects European principles.