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

With these judgements, the Court stipulated minimum and maximum parameters of
interpretation and application of Article 4(6). The Court held that the term ‘staying in’
could not be interpreted too broadly, thus avoiding too liberal interpretations of this
ground for refusal in the Framework Decision. Hence, an executing authority cannot
refuse the execution of an EAW simply based on the fact that the requested person is
temporarily located in the territory of the executing Member State. This would defeat the
purpose and goal of the Framework Decision. On the contrary, the executing Member
State has to take into consideration the objective factors characterising the situation of
that person and a degree of connection with the executing Member State is essential if
grounds for refusal are to be considered. Furthermore, the Court also set limits in order
to avoid too strict interpretations of such provision. Hence, it held that the executing
State cannot, a priori, exclude nationals of other Member States from benefiting from
the provision, as this would amount to a violation of the principle of non-discrimination
based on nationality.
Furthermore, in Leymann and Pustovarov the CJEU sought to strike a balance between
the punitive impetus of the EAW and the protection of the person individual in relation
to further prosecutions to which he or she can become exposed after being surrended. 771
In the case in question the CJEU had the opportunity to clarify the scope of Article 27 of
the Framework Decision—the ‘specialty rule’—which holds that a person surrendered
under an EAW for the purposes of prosecution for a criminal offence, can only be
prosecuted for that same offence. The Court clarified that, in order to determine whether
or not a different offence was concerned, it must be established whether the elements of
the offences as described in the EAW are still present in the current prosecution and
whether there is a sufficient connection between the two. Certain alterations are allowed
under specific circumstances, such as those of time and place. 772 Furthermore, in this
specific case, the Court found that an alteration in the class of narcotics concerned (from
amphetamines mentioned in the EAW to hashish mentioned in the criminal proceedings)
was not, in itself, capable of characterising another offence. This was so, given that both
offences were punishable by imprisonment of the same maximum period of at least three
years and came under the rubric of ‘illegal trafficking in narcotic drugs.’ 773
771 Case C-388/08 PPU Criminal proceedings against Artur Leymann and Aleksei Pustovarov
ECR I-08993 [2008]. See also below Case C-261/09 Proceedings concerning the execution of a
European arrest warrant issued in respect to Gaetano Mantello, ECR I-11477 [2010].
772 C-388/08 PPU, para 59, ibid..
773 Para 62-63, ibid..
207