the surrender of individuals. The recent developments in case law, most notably the recent joined decision of the CJEU, in Aranyosi and Căldăraru have shown that these concerns actually hinder the application of the FD EAW. Other common challenges identified included the varying legal systems, the delay in response from issuing States for requests of further information, the effects on family rights, as well as the assessment of the validity of a claim that the actual rights would be infringed on foot of a surrender. On a practical level, the insufficient time, and difficulties stemming from language barriers were also identified as obstacles by the surveyed judges. 1.3.2. framework decision 2008/909/jha on the transfer of prisoners Council Framework Decision 2008/909/JHA of 27 November 200843 on the application of the principle of mutual recognition of judgments imposing custodial sentences or measures involving deprivation of liberty (hereinafter FD TOP) establishes a post-trial mechanism to transfer a convicted person to the Member State of nationality, or habitual residence in order to execute the sentence. The deadline for implementation was the 5 December 2011. As of October 2016, 26 Member States had transposed the FD TOP into their national legal orders with Ireland and Bulgaria still having ongoing processes of implementation.44 The European Commission is communicating with Member States on this matter and considers taking legal action to ensure that all Member States comply with the EU framework. Cooperation in the field of transfer of prisoners is based on the presumption that the Member States mutually recognise judgments imposing custodial sentences or measures involving the deprivation of liberty issued by another Member State.45 In this context, FD TOP was presented as complementing the FD EAW in criminal matters on a European level. The objective of FD EAW is to request an arrest or/and a surrender to the Member States issuing the EAW to ensure that those accused or convicted of a criminal offence do not avoid a trial or a sentence by crossing borders. The rationale for the FD TOP was to enhance social reintegration, by transferring prisoners so that they can serve their sentence in a Member States in which there is a connection, be it nationality, permanent residence or other factors that presume a close link, including family structures or professional ties.46 There is little data available as to the exact numbers of transfer requests made, and executed under FD TOP. Europris are currently tasked by the Commission to collate data in this regard and have attributed the lack of figures recorded to the fact that some Member States have no competent authority gathering statistics.47 The concrete findings to date provided by Europris indicate that there is a steady increase in the use of FD TOP in terms of requests made, and transfers executed amongst EU Members that have implemented it. Furthermore, the number of requests made, are far in excess of the transfers completed. For example according to the available numbers provided by Europris, of 102 transfer requests made from Sweden in 2015, 18 transfers took place that year, 19 were refused, and 65 are pending or require further processing.48 There have been a number of practical challenges identified. In particular, it was found in Austria 43 Council Framework Decision 2008/909/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgements in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union (ToP), OJ 2008/L 327/27. 44 For the latest information on the implementation process see European Judicial Network, ´Status of Implementation of Framework Decision 2008/909/JHA on transfer of prisoners’, available at www.ejn-crimjust.europa.eu/ejn/EJN_library_statusOfImpByCat.aspx?CategoryId=36. 45 Recital 4 of FD 2008/909/JHA. 46 Francesca Ferraro, ´EU rules on transfer of sentenced persons´ (European Parliament, Jan. 2013) available at www.europarl.europa.eu/RegData/bibliotheque/briefing/2013/130411/LDM_BRI(2013)130411_REV2_EN.pdf p.3. 47 Details from discussions with Europris 2 November 2016. 48 Figures provided by Europris http://www.europris.org/. 21