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

no justification to choose those specific 32 types of offences and not others. The CJEU
again dismissed this argument in a rather circular manner deferring the justification to
the choice previously made by the Council and noting that,
“the council was able to form the view, on the basis of the principle of mutual
recognition and in the light of the high degree if trust and solidarity between the
member states, that, whether by reason of their inherent nature or by reason of the
punishment incurred of a maximum of at least three years, the categories of offences in
question feature among those the seriousness of which in terms of adversely affecting
public order and public safety justified dispensing with the verification of double
criminality.” 779
In replying to the questions asked by the national Court, the CJEU evaded the main
concerns of the claimants and of many constitutional courts. 780 It did so by linking the
justifications of the choice of principles and crimes either to the issuing State or to the
political decision of the Council without entering into considerations regarding any of
the two. In a nutshell, the CJEU held that the principle of legality was not violated given
that the definition of offences and their clarity were to be assured by the law of the
issuing State. This argument, however does not address the situation of the person who
only travels through the issuing State and commits an offence, or more significantly, of
the person who commits an offence outside the issuing State and sees prosecution being
brought against her by the executing State. The fact that, for instance, rape has a clear
definition in Portuguese law, does not provide legal certainty nor behavioural guidance
to a person in Sweden or in the UK (or anywhere else besides Portugal). It is this
‘dislocation’ that raises serious questions of legal certainty, with which the CJEU did not
engage with in its decision. Secondly, when the Court circumvented discussing the
choice of crimes in relation to which dual criminality is abolished, by noting that the
Council had itself taken that choice upon itself, considering the inherent nature and
gravity of those offences, it provided for a purely formal argument. Hence, instead of
discussing the choice of crimes and seeking to look at why these listed offence types
deserved an enhanced regime of cooperation amongst Member States, the Court simply
stated that the Council made the decision according to its own reasoning. Hence, as
Sarmiento argues, although this is a narrow decision by the Court, it strongly
encapsulates the idea that both Council and Member States enjoyed a high degree of
779 Case C-303/05, supra note 777, para 57.
780 D. Leczykiewicz, “Constitutional conflicts and the third pillar” (2007) 33 European Law
Review 230.
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