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

An EEW can only be issued with the view to obtaining documents, objects and data. 829
In fact, the Framework Decision goes to lengths to specify that an EEW cannot be issued
to conduct interviews, take statements or initiate other types of hearing with suspects,
witnesses, experts or any other parties; neither to carry out bodily examinations or obtain
biometric data including DNA; nor to obtain information in real time such as
interception of communications, covert surveillance or monitoring of bank accounts;
conducting analysis on objects, documents or data; to obtain communications data
retained by providers if a publicly available electronic communications service or
network. 830 Furthermore, EEW can only be issued when the evidence sought is
necessary and proportionate for the purposes of the proceeding and if the evidence could
equally be obtained in a comparable case in the issuing State (even if different
procedural measures apply). These conditions shall be assessed by the issuing State
only. 831
The EEW was not only narrow in its scope. In fact, with it, dual criminality suffered its
first set back with the introduction of a declaration by Germany, reserving its right to
make execution of an EEW subject to verification of dual criminality when an EEW
involved search and seizure in relation to the offences of terrorism, computer related
crime, racism and xenophobia, sabotage, racketeering and extortion or swindling. 832 This
blow to the principle of dual criminality – one of the main features of mutual recognition
and mutual trust – was symbolic of the slowing down and progressive moderation of the
principle. As seen earlier in this chapter, the abolition of dual criminality gave priority to
the more severe penal law or, said differently, to the legal order which adopted broader
definitions of conducts to be criminalised. Having accepted the abolition of dual
criminality in relation to the 32 types of offences in the EAW, Germany has imposed
limitations regarding what crimes it is willing to help other States to build their
prosecution against. It will be seen in the next section that the mutual recognition
measures that followed the EEW allow for Member States to reintroduce dual
criminality fully.
828 Article 11 (3) (ii), ibid..
829 Article 4 (1), ibid..
830 Article 4(2) (a)(b)(c)(d)(e), ibid.. In this regard Belfiore notes how the EU Convention on
mutual legal assistance in criminal matters of 2000 was more pioneering than the EEW as it
included types of evidence not covered by the Framework Decision, R. Belfiore, “Movement of
Evidence in the EU: The Present Scenario and Possible Future Developments” (2009) 17
European Journal of Crime, Criminal Law and Criminal justice 1, 17.
831 Article 7 of the Framework Decision 2008/978/JHA, supra note 821.
832 Article 23 (4), ibid.; Declaration of the Federal Republic of Germany, OJ L 350/92 [2008].
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