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

criminal law altogether. The textbook example is, of course, that of euthanasia which is
deemed as murder by most legal orders but is permitted, under certain statutory
conditions, in Belgium and in the Netherlands. The lack of dual criminality in cases
involving such acts and those countries can lead to cases where the limits of the EAW
will be tested. Deen-Racsmany and Blextoon give the hypothetical example of the
Dutch doctor who is charged with murder in Italy for legal euthanasia in Belgium. 743
Equally representative would be the case of rape, an offence that has very different
definitions in different Member States. Whilst in some the lack of consent of the victim
for sexual penetration is sufficient to constitute rape, in other Member States the use of
compulsion, threat or physical force is absolutely necessary. 744
These differences in the criminalisation of the same acts by different Member States
partly defeat the idea of commonality between Member States’ views of crime. As the
examples given by Deen-Racsmany and Blextoon show, the abolition of dual criminality
clearly gives priority to the Member State who punishes a certain conduct even if the
executing State does not consider the same conduct as a criminal act. Ultimately then, by
dropping the requirement of dual criminality, the EAW gives preference to the legal
order that punishes more widely. The more lenient system – for example the one that
does not criminalise euthanasia – sees no use in the EAW in relation to those acts.
Consequently, it becomes a mere receiver of other States’ requests. In this light, the
EAW clearly becomes a tool of facilitation of prosecution and punishment for the States
that criminalise more heavily and / or that have more proactive prosecuting authorities
and policies.
Data on the EAW in practice clearly suggests this imbalance – some Member States are
heavy issuers of EAWs whilst others seem to use them moderately if not
parsimoniously. Germany and Poland, for example, issue a significantly higher number
of EAWs than any other country. If we look at the number of EAWs issued in 2009 we
find 4844 EAWs issued by Poland and 2433 by Germany as opposed to, for example, 17
EAWs issued by Cyprus, 220 by the UK, 263 EAWs by Finland and 1240 by France. 745
In fact, Poland has been a very active user of the EAW from the beginning. 746 This can
743 Z. Deen-Racsmany and Judge R. Blekxtoon, “The Decline of the Nationality Exception”,
supra note 714, 353.
744 See for a detailed list of differences N. Keijzer, “The Double Criminality Requirement, supra
note 739, 152-160.
745 See complete data (except for Italy who hasn’t provide information on their own practices yet)
in European Commission 2011 Report, supra note 736, 12.
746 The extremely high number of EAWs it issues, many to the UK, has led to slightly surreal
situations as reported by The Economist in an article on the EAW in 2010: “Every fortnight an
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