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

“Confidence in the application of the EAW has been undermined by the systematic issue
of EAWs for the surrender of persons sought in respect of often very minor offences.” 756
This use of the EAW precisely suggests that the more pro-punishment and proprosecutorial
Member States can make use of an extra tool to expand their sovereign
powers beyond their national borders – and this can be done not only in relation to
extremely serious criminality but also petty crime as seen in the former section. Hence
EU instruments whose stated political rationale was to fight serious criminality are de
facto being used as instruments to prosecute or seek sentence enforcement for a
significantly broader range of crimes.
2.1 Nuancing the punitive impetus of the EAW: EU and national judicial reactions
The CJEU and the EAW
To be sure, the Framework Decision still offers several grounds for refusal to surrender.
It allows Member States to maintain or introduce three mandatory grounds for refusal
(cases where a Member State has to refuse the execution of a EAW): the offence being
covered by an amnesty in the executing State (when that State has jurisdiction to
prosecute such offence); when the person has already been finally judged by the same
acts; when the person may not be held criminally responsible owing to his age. 757 These
mandatory grounds are complemented by optional grounds for non-execution of the
warrant. The list is longer than the previous one and some criteria seem to overlap at
least partially. Eight grounds for optional refusal of a EAW by the executing Member
State are envisaged: the verification of dual criminality in relation to non-listed offences;
ongoing criminal prosecution in the executing Member State for the same acts; where a
final judgement has been passed in the executing Member State or when the latter
decided not to prosecute or to halt proceedings; when prosecution is statute-barred
according to the law of the executing Member State; when the requested person has been
finally judged in a third State in respect to the same acts and a sentence has been served,
is being served or can no longer be served under the law of the sentencing country; if the
requested person is staying in, is a national or a resident of the executing State and the
latter undertakes to execute the sentence or detention order in accordance with its
domestic law; and finally, when the offences are regarded by the law of the executing
756 European Commission Report COM(2011)175 final, supra note 736, 7.
757 Article 3 of the Framework Decision 2002/584/JHA, note 383.
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