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

“without any further formality being required and shall forthwith take the necessary
measures for its immediate execution in the same way as for a freezing order made by
an authority of the executing State…”. 818
Grounds for refusal are substantially fewer than the ones in the EAW: an incomplete
certificate (the form necessary for transmission of the order); immunity or privilege that
makes it impossible to execute the order; ne bis in idem; dual criminality if regarding an
offence outside the list of 32 serious criminal offence types. 819
Article 8 however does allow for grounds postponement of the execution namely the
possible damage to an on-going criminal investigation, or when a property or evidence is
already subjected to a freezing order in the executing State. The Framework Decision
also provides for legal remedies for interested parties. An order might thus be challenged
in both States (issuing and executing) by any interested party, including bona fide third
parties (if the challenge relates to the substantive grounds of the case the action will
have to be lodged on the issuing State). 820
Also in the context of mutual recognition of evidence there were proposals for the
introduction of a European Evidence Warrant (EEW). 821 The proposal for a Framework
Decision on a EEW had been on the table since 2003. 822 Yet because of difficult and
lengthy negotiations a final draft surfaced only in 2006 and was finally published in
2008. Difficulties during the negotiations varied from the general issues of automaticity
of the EEW and the scope of the measure (types of evidence available) to issues of
equivalence of admissibility and means of evidence between issuing and executing
Member State (whether issuing State could use or request evidence which is not
admissible under the laws of the issuing State but is so under the executing State regime;
and whether the issuing State could oblige the executing State to use coercive means
which are allowed in the issuing State). 823 These concerns led to the limitation of the
818 Article 5 (1), ibid..
819 Article 7, ibid..
820 Article 11, ibid..
821 Council Framework Decision 2008/978/JHA of 18 December 2008 on the European evidence
warrant for the purpose of obtaining objects, documents and data for use in proceedings in
criminal matters, OJ L 350/72 (2008).
822 For an overview and analysis of the initial proposal see C. Williams, “Overview of the
Commission’s Proposal for a Framework Decision on the European Evidence Warrant”, in J.A.E.
Vervaele (ed) European Evidence Warrant: Transnational Enquiries in the EU
(Antwerpen/Oxford:Intersentia, 2005) 69.
823 For an analysis of the major difficulties with an European system of evidence see John R.
Spencer, “An Academic Critique of the EU Acquis in Relation to Trans-border Evidence
219