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

does not deem the acts in question as criminal). 775 Furthermore, the German
Constitutional Court also clarified that, in its view, although minimal conditions for trust
could exist, these did not dispense with a procedure where all circumstances of the case
and of the systems of criminal justice of the issuing state ought to be examined – a clear
sign of mistrust in other States’ systems. 776
Similar issues such as dual criminality, equality before the law and legality in criminal
proceedings were also raised before the Belgium Cour D’Arbitrage which referred the
case to the CJEU. 777 This was the first time the CJEU had the opportunity to address the
controversial EAW and participate in the constitutional dialogue with national courts. 778
In a nutshell, the Cour d’Arbitrage questioned three main points - the legal basis of the
framework decision (in fact whether a framework decision was the correct instrument
for the EU to legislate on extradition matters); and, more importantly to our discussion
here, the possible violation of the principle of equality and legality in criminal
proceedings namely by the abolition of the principle of double criminality. This was so
as the Framework Decision listed the 32 offence types to which dual criminality could
not be applied without justifying such choice and with no reference to their legal
definition and content.
The CJEU offered a very formalistic and hermetic reasoning. In relation to the legality
argument the Court noted that the list in the Framework Decision is not intended to
create criminal offences and penalties per se but rather to simply refer to the law of the
issuing Member State (hence it is this law that ought to fully comply to the principle of
legality). The Court went on to focus on the ‘equality’ questions: namely that there was
775 See para 65-100, ibid.. For a detailed analysis of the case see Nicolas Nohlen, “Germany: The
European Arrest Warrant case” (2008) 6 International Journal of Constitutional Law 153 or A.
Hinarejos, Case Note (2006) 43 Common Market Law Review 583.
776 See mostly para 118 ibid.. Ironically, regardless of these findings, German authorities
continued to issue European arrest warrants to other Member States although refusing to execute
incoming requests. This was not well received by Spain or Hungary, for example, and both
invoked the principle of reciprocity, refusing to recognise German warrants during that period.
They considered that if Germany was not applying the principle of mutual trust they should not
do so either. Section 2.1.2., page 5 of the 2007 Report from the Commission, see supra note 641.
The Thessaloniki Supreme Court and the Greek High Court, for example, also took similar
stances, see E. A. Stefanou & A. Kapardis, “The First Two Years of Fiddling around with the
Implementation of the European Arrest Warrant (EAW) in Cyprus” in E. Guild (ed)
Constitutional challenges to the European Arrest Warrant (Nijmegen: WLP, 2006) 75, 76.
777 Case C-303/05, Advocaten voor de Wereld , ECR I 3672 (2007).
778 Apart from the EAW however the ECJ has adjudicated on a considerable number of cases in
which it touched upon the relationship between national and EU legal orders and Community and
national law. For more details on this case law, including the national case law in relation to the
EAW, see V. Mitsilegas “Constitutional Principles of the European Community and European
Criminal Law”, supra note 454, 301. See also chapter 3.
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