Disproportionate Sentences and the EAW: The CJEU Grand Chamber in Tagu (C-583/24)
On 3 November 2026, the Grand Chamber of the Court of Justice of the European Union (CJEU) gave judgment in Tagu (C-583/24), on a reference from the District Court of Amsterdam. The question was whether a court executing a European arrest warrant (EAW) may refuse surrender because the sentence to be served is disproportionate to the offence, contrary to Article 49(3) of the EU Charter of Fundamental Rights. The answer: only in exceptional cases.
Romania sought DZ's surrender from the Netherlands to serve a sentence of seven years' imprisonment for importing three grams of cannabis and four MDMA pills into Romania. In the Netherlands, the same conduct carries one to three weeks.
The CJEU held:
Differences in sentencing between Member States, however large, are not on their own a ground for refusal.
The usual two-stage test applies. First, the issuing State's law or judicial practice must breach the principle of proportionate penalties in a manifest and serious way, with no effective remedy. The Court identified two situations in which that threshold must be found to be met: where the law allows sentences so severe that they amount to inhuman or degrading punishment; and where the law both ignores the seriousness of the offence in setting penalties and leaves the judge no means of adjusting the sentence to the facts of the case. Secondly, and only if the first stage is met, the executing court must examine the requested person's own circumstances and decide whether there are substantial grounds for believing that he or she would face a real risk of a breach of that principle if surrendered.
Romanian law did not meet the first-stage threshold. Under the drug-importation provisions in issue, the judge could weigh quantity and purpose within the 7-to-15-year range, cut the range by a third for mitigation or following a full admission of the charges, and convict of a lesser offence where the drugs were not "high-risk". An effective remedy also existed because DZ had challenged his sentence on appeal and again on a point of law. The Court therefore did not reach the second stage.
Why it matters to UK extradition practitioners
The judgment does not bind UK courts, but they may have regard to it (European Union (Withdrawal) Act 2018, s.6). It does not change the test in England and Wales.
Here, the governing test is Article 3 ECHR, applied through section 21 of the Extradition Act 2003. 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; endorsed by the Grand Chamber in Vinter v UK, 2013, §102, 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).
Both European courts look for a sentence the judge cannot tailor to the case. The European Court of Human Rights has said that the vice of any mandatory sentence is that it shuts out mitigation, and that a mandatory life sentence without parole is "much more likely to be grossly disproportionate", though not incompatible with Article 3 in and of itself (Babar Ahmad v UK, 2012, §242). The Court of Justice now treats a law that ignores the seriousness of the offence and leaves the judge unable to adjust the sentence as one of the two situations that satisfy the first stage (Tagu, §84). Neither court treats a sentence as unlawful merely because it is far longer than the executing State would impose (Tagu, §§75, 77; Harkins, §134).
A district judge at Westminster applying Article 3 may have regard to Tagu, and the Romanian judicial authority can now rely on a Grand Chamber finding that judges applying Romania's drug-importation provisions can tailor the sentence to the case. It is likely to deploy that finding to rebut arguments that such a sentence is so grossly disproportionate as to breach Article 3.
Article 8 offers little room for such arguments in any event. It will "rarely be appropriate" for the court to consider whether the sentence was very significantly different from what a UK court would have imposed (Polish Judicial Authorities v Celinski [2015] EWHC 1274 (Admin), [13]).
Successful challenges will remain rare. Those that succeed are likely to be won on expert evidence of the issuing State's sentencing law, not on a like-for-like comparison of sentencing regimes and hypothetical outcomes.
The English text of the judgment is not yet published; the French text is on CURIA.
Press release: https://curia.europa.eu/site/upload/docs/application/pdf/2026-11/cp260154en.pdf
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