Case C-303/05, Advocaten voor de Wereld

In proceedings between Advocaten voor de wereld, a non-profit-making association, and the Council of Ministers, the Belgium Court of Arbitration had asked whether the (in)famous Framework Decision 2002/584 of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States was compatible with Art. 34(2)(b) EU.

The Court held that was clear in particular from Art. 1(1) and (2) of the Framework Decision and recitals (5), (6), (7) and (11) in its preamble that the purpose of the Framework Decision was to replace the multilateral system of extradition between Member States with a system of surrender, as between judicial authorities, of convicted persons or suspects for the purpose of enforcing judgments or of criminal proceedings based on the principle of mutual recognition.

Contrary to what Advocaten voor de Wereld contended, there was nothing to justify the conclusion that the approximation of the laws and regulations of the Member States by the adoption of framework decisions under Art. 34(2)(b) EU was directed only at the Member States’ rules of criminal law mentioned in Art. 31(1)(e) EU.

Advocaten voor de Wereld argued that the subject-matter of the European arrest warrant therefore ought to have been regulated by means of a convention.

The Court, however, found that it was within the Council’s discretion to give preference to the legal instrument of the framework decision in the case where, as in the present, the conditions governing the adoption of such a measure were satisfied.

It followed that the Framework Decision was not adopted in a manner contrary to Art. 34(2)(b) EU.

Principle of legality

The Court also rejected the argument of Advocaten voor de Wereld that the removal of verification of double criminality for certain offences mentioned in the Framework Decision was contrary to Art. 6(2) EU or, more specifically the principle of legality in criminal matters.

The Court held that while the Framework Decision dispensed with verification of double criminality for certain categories of offences, the definition of those offences and of the penalties applicable continued to be determined by the law of the issuing Member State. The Court reiterated that, in that context, the Member States must respect fundamental rights and fundamental legal principles, including the principle of the legality of criminal offences and penalties.

Therefore, the removal of verification of double criminality for certain offences was in conformity with the principle of legality.

Principle of equality and non-discrimination

The Court also rejected the third argument of Advocaten voor de Wereld alleging infringement of the principle of equality and non-discrimination. The non-profit-making association argued that, since, for offences other than those which it covered, surrender might be made subject to the condition that the facts in respect of which the European arrest warrant was issued constituted an offence under the law of the Member State of execution, the Framework Decision made a distinction which was not objectively justified.

The Court reiterated that the principle of equality and non-discrimination required that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment was objectively justified (see also Case C-248/04 Koninklijke Coƶperatie Cosun [2006])

The Court however held that, first, with regards to the choice of the 32 categories of offences listed in Art. 2(2) of the Framework Decision, the Council was able to form the view 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 featured among those the seriousness of which in terms of adversely affecting public order and public safety justified dispensing with the verification of double criminality.

Consequently, the Court found that even if one were to assume that the situation of persons suspected of having committed offences featuring on the list set out in Art. 2(2) of the Framework Decision or convicted of having committed such offences was comparable to the situation of persons suspected of having committed, or convicted of having committed, offences other than those listed in that provision, the distinction was, in any event, objectively justified.

With regard, second, to the fact that the lack of precision in the definition of the categories of offences in question risks giving rise to disparate implementation of the Framework Decision within the various national legal orders, the Court simply pointed out that it was not the objective of the Framework Decision to harmonise the substantive criminal law of the Member States and that nothing in Title VI of the EU Treaty, made the application of the European arrest warrant conditional on harmonisation of the criminal laws of the Member States within the area of the offences in question.

Text of Judgment