The evolution of European Union criminal law (1957-2012)

States should not have to use their sovereign powers for the enforcement of norms
contrary to their own conceptions of law. The principle was contemplated, for example,
by the 1957 European Convention on Extradition and hence, previous to the EAW, the
absence of dual criminality functioned as mandatory ground for refusal to extradite
amongst Member States.
Under the new EAW regime this guarantee can no longer be maintained in relation to
requests regarding 32 types of offence listed as long as these are punishable in the
issuing Member State by a custodial sentence or detention order of at least 3 years. The
offences include Euro-crimes (such as trafficking in human beings or drugs, fraud,
terrorism, participation in a criminal organisation, etc.), crimes within the jurisdiction of
the International Criminal Court, or serious crimes which have been untouched by
harmonisation at EU level (such as arson, murder, rape, racketeering or extortion, among
others). 740 Hence, in relation to these offences as defined by the issuing Member States
and as long as punishable with at least 3 years imprisonment, surrender of an individual
cannot be refused even in the circumstance where the same acts are not deemed as
criminal offences under the law of the executing Member State.
The abolition of dual criminality raises several issues. First, it raises a question of
whether it is necessary. If EU Member States share common values and understandings
of the purpose and goals of criminal justice (as suggested by the assumption of mutual
trust) it would be expected that, at least in relation to serious criminality (of which the
32 types of offence to which dual criminality does not apply are certainly examples),
their legal approaches would be similar to an extent where dual criminality would be
practically irrelevant because different Member States would make similar criminalising
options. 741
Hence, the fact that the principle of dual criminality was partly removed, suggests that
such similarity is lacking and that Member States still criminalise certain crimes
differently. In fact - different national laws do offer different definitions of the same
offences. 742 Hence, whilst in some countries a certain type of behaviour is considered a
criminal offence, in others the same behaviour might simply escape the umbrella of the
740 Article 2(2) of the Framework Decision 2002/584/JHA, note 383.
741 See G. Vermeulen, “How Far can We Go in Applying the Principle of Mutual Recognition”,
in C. Fijnaut and J. Ouwerkerk (eds) The Future of Police and Judicial Cooperation in the
European Union (Martinus Nijhoff Publishers, Leiden/Boston, 2010) 243.
742 This in fact happens even in relation to crimes whose definition has been harmonised by the
EU, see chapter 4.
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