Opinion of the Advocate General — ECLI:EU:C:2006:552
Date: 2006-09-12
Language of the case: Dutch
Based on: Treaty on European Union (1992)
Subject matter: Justice and home affairs
Procedure: Reference for a preliminary ruling
Origin: Belgium

summary, it is my view that Article 2(2) of the Framework Decision does not infringe Article 6(2) EU because it is consistent with the principle of equality and the principle of legality in criminal proceedings. VI – Conclusion 108. In the light of the foregoing considerations, I propose that the Court reply to the questions referred for a preliminary ruling by the Arbitragehof by declaring: (1) Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States does not infringe Article 34(2)(b) EU; (2) by abolishing verification of the requirement of double criminality for the offences listed therein, Article 2(2) of the Framework Decision does not contravene the principle of legality in criminal proceedings or the principle of equality, and, accordingly, is compatible with Article 6(2) EU. 1 – Original language: Spanish. 2 – Montesquieu, ‘L’esprit des lois’, Book 12, Chapter II, Gallimard, La Pléiade, Œuvres complètes, Paris, 1951, Volume II, p. 432. 3 – Belgium has accepted the jurisdiction of the Court of Justice to give preliminary rulings pursuant to that provision and has conferred on all courts and tribunals the power to submit questions to the Court (OJ 1999 C 120, p. 24). 4 – OJ 2002 L 190, p. 1. 5 – Case C-105/03 [2005] ECR I-5285. 6 – OJ 2000 C 364, p. 1. 7 – P 1/05. On that judgment, see Komárek, J., ‘Pluralismo constitucional europeo tras la ampliación – Un análisis de la jurisprudencia comunitaria del Tribunal Constitucional polaco –’, Revista Española de Derecho Europeo, No 16, 2005, pp. 627 to 657. 8 – That provision states: ‘Polish citizens shall not be extradited’. 9 – Article 16(2) of the Grundgesetz für die Bundesrepublik (Bonn Fundamental Law) provided that a German national could not be surrendered to another State. That provision was amended on 29 December 2000 to restrict the right in certain cases stipulated by the law 10 – Judgment of 18 July 2005 (2 BvR 2236/04), which held that there had been a breach of the essential subject-matter of the fundamental right laid down in Article 16(2) of the Bonn Fundamental Law. 11 – Europäisches Haftbefehlgesetz – EuHbG. The Polish Constitutional Court, relying on Article 190 of the Constitution, deferred the effects of the declaration of unconstitutionality for 18 months because ‘the European arrest warrant is crucially important to the operation of the administration of justice, especially – in so far as it is a method of cooperation between the Member States to promote the fight against crime – for the purpose of improving security’. However, the judgment of the German Federal Constitutional Court took immediate effect. Therefore, the Criminal Chamber of the Audiencia Nacional (National High Court), which is the Spanish judicial authority with jurisdiction in the field (Article 6(3) of the Framework Decision in conjunction with Ley Orgánica (Basic Law) 2/2003 of 14 March supplementing the Law on the European arrest warrant and surrender, Boletín Oficial del Estado (‘BOE’) No 65, 17 March 2003, p. 10244), set aside surrender proceedings commenced in response to warrants issued by Germany and converted them into extradition proceedings (order of 20 September 2005). A similar reaction may be seen in the judgment of the Arios Pagos (Greek Supreme Court of Cassation) of 20 December 2005 (Case 2483/2005). 12 – Judgment of 7 November 2005 (Case 294/2005). 13 – Case 66/04. 14 – Alonso García, R., Justicia constitucional y Unión Europea, Thomson-Civitas, Madrid, 2005, p. 41, echoes that need. 15 – That recommendation was made by the European Council held in Tampere on 15 and 16 October 1999 (point 35 of the Presidency Conclusions). 16 – Those conventions are as follows: (a) the European Convention on Extradition of 13 December 1957, its additional protocols of 15 October 1975 and 17 March 1978, and the European Convention on the Suppression of Terrorism of 27 January 1977; (b) Title III, Chapter 4, of the Convention of 19 June 1990 implementing the Schengen Agreement on the gradual abolition of checks at common borders (OJ 2000 L 239, p. 19); (c) the Agreement between the 12 Member States of the European Communities on the simplification and modernisation of methods of transmitting extradition requests of 26 May 1989; (d) the Convention of 10 March 1995 on simplified extradition procedure between the Member States of the European Union; and (e) the Convention of 27 September 1996 relating to extradition between the Member States of the European Union. The last two were concluded pursuant to Article K.3(2)(c) of the Treaty on European Union, the immediate precursor of Article 34(2)(d) EU. 17 – The Spanish version states: ‘Nada de lo dispuesto en la presente Decisión marco podrá interpretarse en el sentido de que impide la entrega de una persona contra la que se ha dictado una orden de detención europea cuando existan razones objetivas …’ [which translates as ‘Nothing in this Framework Decision may be interpreted as prohibiting the surrender of a person for whom a European arrest warrant has been issued when there are reasons to believe, on the basis of objective elements …’]. However, the desire of the Community legislature was exactly the opposite, as is clear, inter alia, from the French (‘Rien dans la présente décision-cadre ne peut être interprété comme une interdiction de refuser la remise d’une personne qui fait l’objet d’un mandat d’arrêt européen s’il y a des raisons de croire, sur la base d’éléments objectifs …’), English (‘Nothing in this Framework Decision may be interpreted as prohibiting refusal to surrender a person for whom a European arrest warrant has been issued when there are reasons to believe, on the basis of objective elements …’), German (‘Keine Bestimmung des vorliegenden Rahmenbeschlusses darf in dem Sinne ausgelegt werden, dass sie es untersagt, die Übergabe einer Person, gegen die ein Europäischer Haftbefehl besteht, abzulehnen, wenn objektive Anhaltspunkte dafür vorliegen …’) and Dutch (‘Niets in dit kaderbesluit staat eraan in de weg dat de overlevering kan worden geweigerd van een persoon tegen wie een Europees aanhoudingsbevel is uitgevaardigd, indien er objectieve redenen bestaan om aan te nemen…’) versions. 18 – Point 24 of this Opinion. 19 – Moniteur belge, 22 December 2003, Second edition, p. 60075. 20 – I hope that other constitutional courts, which are reluctant to accept their responsibilities as Community courts, will follow the example and enter into a dialogue with the Court of Justice which is essential for the purpose of building a united Europe. In ‘Reflexiones sobre el Tribunal Constitucional español como juez comunitario’, a contribution to the round table entitled ‘Los tribunales constitucionales ante el derecho comunitario’ during the conference entitled ‘La articulación entre el derecho comunitario y los derechos nacionales: algunas zonas de fricción’, which was organised by the General Council of the Spanish Judiciary and held in Murcia in November 2005, I criticised the reservations of the Spanish Constitutional Court, which remains on the fringes of Community discussions. 21 – The European arrest warrant addresses a concern which is reflected in Article 2(1) EU, fourth indent, Article 29 EU, second paragraph, second indent, and Article 31(1)(a) and (b) EU. The essential feature of the system is that the courts of a Member State confer validity on warrants issued by the courts of other Member States, thereby helping to consolidate and implement judicial cooperation (Article 31(1)(a) EU). If the arrest warrant is regarded as a form of extradition (an opinion which I do not share as I will explain below), it comes under the power referred to in Article 31(1)(b) EU. In any event, the list in Article 31 EU is not exhaustive (it uses the expression ‘shall include’) and, therefore, a procedure which facilitates the arrest and surrender of individuals so that they may be prosecuted or serve a sentence improves the level of safety of citizens of the Union, which is fully compatible with Article 29 EU. 22 – Rodríguez-Iglesias, G.C., has drawn attention to the role of the Court of Justice as a constitutional court in ‘El poder judicial en la Unión Europea’, La Unión Europea tras la Reforma, Universidad de Cantabria, 1998, p. 22 et seq. I myself have reiterated that view (Ruiz-Jarabo, D., ‘La vinculación a la jurisprudencia del Tribunal de Justicia de las Comunidades Europeas (I)’, Estudios de Derecho Judicial, No 34, Consejo General del Poder Judicial, 2001, pp. 287 to 291). 23 – Referring a question on validity provides an indirect means of reviewing the constitutionality of secondary law at the time of its application. 24 – Order of the Court in Case C-9/98 Agostini [1998] ECR I-4261, paragraph 5, and order of the Court in Case C-422/98 Colonia Versicherung and Others [1999] ECR I-1279, paragraph 5. 25 – The Court does not have jurisdiction to resolve the question as to how the unsuitability of the Framework Decision leads to the unconstitutionality of the implementing law. However, I would venture to suggest that to uphold the suitability of an international treaty would infringe Article 36, in conjunction with Articles 167 and 168, of the Grondwet. 26 – Tomuschat, C., ‘Ungereimtes – Zum Urteil des Bundesverfassungsgerichts vom 18. Juli 2005 über den Europäischen Haftbefehl’, Europäische Zeitschrift für Grundrechte, 2005, p. 456. 27 – Flore, D., ‘L’accueil de la décision-cadre relative au mandat d’arrêt européen en Belgique’, Le mandat d’arrêt européen, Bruylant, Brussels, 2005, p. 137. Conway, G., ‘Judicial interpretation and the third pillar’, European Journal of Crime, Criminal Law and Criminal Justice, 2005, p. 255, regards them as equivalent concepts. 28 – Keijzer, N., ‘The double criminality requirement’, Handbook on the European Arrest Warrant, Tob Blekxtoon, Wouter van Ballegooij (editors), The Hague, 2005, p. 139. 29 – Plachta, M., ‘European arrest warrant: Revolution in extradition’, Journal of Crime, Criminal Law and Criminal Justice, 2003, p. 193. 30 – Legal ground 3 of the judgment cited in point 7. 31 – Judgment referred to in footnote 10. 32 – The preamble to Spanish Law 3/2003 of 14 March 2003 on the European arrest warrant and surrender procedures (BOE No 65, 17 March 2003, p. 10244) states that the Law introduces ‘amendments to the traditional extradition procedure which are so substantial that it may be stated without reservations that that procedure has disappeared from the scope of judicial cooperation relations between the Member States of the European Union’ (final paragraph). 33 – Plachta, M., at p. 191 of the work cited in footnote 29, draws attention to the differences. Lagodny, O., ‘“Extradition” without a granting procedure: the concept of “surrender”’, Handbook on the European Arrest Warrant, Tob Blekxtoon, Wouter van Ballegooij (editors), The Hague, 2005, pp. 41 and 42, notes the judicial nature of the European arrest warrant. Jégouzo, I., ‘Le mandat d’arrêt européen ou la première concrétisation de l’espace judiciaire européen’, Gazette du Palais – Recueil, July-August 2004, p. 2311, maintains that the Framework Decision is innovative in that it replaces political powers with a strictly procedural mechanism. 34 – The Bundesverfassungsgericht, in the judgment referred to above, unwittingly points out the differences when it states that the Framework Decision has transformed a political decision, exempt from legal controls, into a judicial decision (ground 88, in fine). 35 – Since the judgments in Case 26/62 Van Gend & Loos [1963] ECR 1 and Case 6/64 Costa v ENEL [1964] ECR 585, it is generally accepted that Community law constitutes a special legal system which, with regard to the specific fields which comprise its body of law, takes precedence over the legal systems of the Member States. 36 – Paragraph 36 of the judgment in Pupino states that irrespective of the degree of integration envisaged by the Treaty of Amsterdam in the process of creating an ever closer union among the peoples of Europe within the meaning of the second paragraph of Article 1 EU, it is perfectly comprehensible that the authors of the Treaty on European Union should have considered it useful to make provision, in the context of Title VI of that treaty, for recourse to legal instruments with effects similar to those provided for by the EC Treaty, in order to contribute effectively to the pursuit of the Union’s objectives. Sarmiento, D., ‘Un paso más en la constitucionalización del tercer pilar de la Unión Europea. La sentencia María Pupino y el efecto directo de la decisiones marco’, Revista Electrónica de Estudios Internacionales, No 10, 2005 (http://www.reei.org), maintains that that judgment of the Court opens the way for a gradual ‘communitarisation’ of the intergovernmental fields of the EU Treaty. Alonso García, R., at pp. 36 to 38 of the work cited in footnote 14, maintains that the third pillar is a tertium genus, which is ‘strongly intergovernmental in nature, although there are also supranational elements present in the instruments governing participation and in the mechanisms for judicial control’. 37 – The principle of conforming interpretation (paragraphs 34, 43 and 47) and the principle of loyal cooperation (paragraph 42). 38 – Weigend, Th., ‘Grundsätze und Probleme des deutschen Auslieferungsrechts’, Juristische Schulung, 2000, p. 110, asserts that the fight against international crime gives rise to uncertainty about whether it is appropriate to remain wedded to inherited views which are derived from an unconditional preference for State sovereignty and from a distrust of foreign criminal justice systems. He adds that many States would renounce that traditional view in the case of other States to which they know they are linked by a common legal culture and by respect for human rights. 39 – As long ago as 1880, the Institute of International Law, Oxford, took the view that, although reciprocity in regard to extradition may be required for political reasons, it is not a requirement of justice (Article 5 of the Resolution of 9 September 1880 (Institute Yearbook new abbreviated edition, Volume I, 1875-83, p. 733). I have taken the quotation from Schultz, H., ‘Rapport général provisoire sur la question IV pour le Xe Congrès international de droit pénal du 29 septembre au 5 octobre 1969 à Rome’, Revue Internationale de Droit Pénal, 1968, No 3-4, p. 795. 40 – No one would accord the status of extradition to legal assistance for the surrender of an accused between a court in the Land of Bavaria and a court in the Land of Lower Saxony, or between a court in the autonomous community of Catalonia and a court in the autonomous community of Andalusia, from which it follows that assistance should not be regarded as extradition where it takes place in the context of the European Union. It might be countered that, just as the courts of one country (Germany or Spain) apply the same criminal law irrespective of where their seat is, so those of different Member States are bound by different criminal codes even though they share identical principles and values. However, that assertion is not entirely correct for the following reasons. On the one hand, there are harmonised fields within the Union while, on the other hand, there are basic criminal provisions (for example, those which create environmental offences, referred in Article 2(2) of the Framework Decision) which are implemented by technical measures whose adoption is the responsibility of the Länder or the autonomous communities, thereby leading to a number of differences in the categorisation of a particular offence in the same Member State. 41 – The Tampere European Council made the principle of the mutual recognition of judicial decisions into the cornerstone of judicial cooperation within the Union (point 33 of the Presidency Conclusions). That principle is examined by Sanz Morán, A.J., ‘La orden europea de detención y entrega: algunas consideraciones de carácter jurídico-material’, Cooperación Judicial Penal en la Unión Europea: la orden europea de detención y entrega, Lex Nova, Valladolid, 2005, pp. 81 to 90, which sets out the arguments of opponents of the principle. 42 – The Framework Decision is part of a process of development which began with the European Convention on Extradition of 1957 (Article 28(3)) and continued with the European Convention on Extradition of 1996 (Article 1(2)), paving the way for provisions more favourable to cooperation, contained in uniform or reciprocal laws which lay down a system for execution in the territory of a State of arrest warrants issued by other States. One example of that type of instrument is the treaty between the Kingdom of Spain and the Italian Republic for the prosecution of serious offences by means of the abolition of extradition in an area of common justice, done at Rome on 28 November 2000, which never entered into force because the procedure had begun which led to the adoption of the Framework Decision, described by the Council of the European Union as a uniform law within the meaning of Article 28(3) of the 1957 convention (‘Conclusions on the application of the European arrest warrant and its relationship with the Council of Europe legal instruments’, Brussels, 11 September 2003, doc. 12413/03). 43 – For example, in Spain, the Framework Decision has affected Articles 273 to 278 of Basic Law 6/1985 of 1 July 1985 on the judiciary and Articles 183 to 196 of the Law on criminal procedure of 14 September 1882. 44 – As the United Kingdom and France have pointed out (paragraphs 28 to 32 and 10 to 13 of their statements in intervention, respectively), in accordance with Articles 94 EC, 95 EC and 308 EC, any new act must be adopted pursuant to Article 308 EC, while the harmonisation of existing provisions and the coordination of the basic provisions of future laws must take place pursuant to Articles 94 EC and 95 EC. Thus, in Opinion 1/94 ([1994] ECR I-5267), the Court explained that the Community is competent, in the field of intellectual property, to harmonise national laws pursuant to Articles 94 EC and 95 EC and may use Article 308 EC as the basis for creating new rights superimposed on national rights (point 59). That applied to the creation of a supplementary protection certificate for medicinal products (Council Regulation (EEC) No 1768/92 of 18 June 1992 (OJ 1992 L 182, p. 1), as the Court pointed out in the judgment in Case C-350/92 Spain v Council [1995] ECR I-1985, paragraph 23. In Case C‑377/98 Netherlands v Parliament and Council [2001] ECR I‑7079, the Court noted that Directive 98/44/EC of the European Parliament and of the Council of 6 July 1998 on the legal protection of biotechnological inventions (OJ 1998 L 213, p. 13) comes under the first category because it does not create a Community-based right and instead is based on national concepts, such as patents, which are issued in accordance with internal procedures, notwithstanding the fact that the inventions covered were not previously patentable in certain Member States and that the directive makes certain clarifications and provides for derogations as regards the scope of the protection (paragraph 25). 45 – Simon, D., Le système juridique communautaire, Presses Universitaires de France, Second edition, November 1998, p. 238, calls them ‘atypical measures’. For example, the Council common position of 31 January 2000 on the proposed protocol against the illicit manufacturing of and trafficking in firearms, their parts and components and ammunition, supplementing the United Nations Convention against transnational organised crime (OJ 2000 L 37, p. 1), and Joint Action 96/443/JHA of 15 July 1996, adopted by the Council on the basis of Article K.3 of the Treaty on European Union, concerning action to combat racism and xenophobia (OJ 1996 L 185, p. 5). 46 – Brechmann, W., Kommentar zu EU-Vertrag und EG-Vertrag, Calliess/Ruffert, Second edition, 2002, paragraph 34.6, p. 267. 47 – Professors García de Enterría, E., and Fernández, T.R. explain the principle in Curso de Derecho Administrativo, Volume I, Civitas, 10th edition, Madrid, 2000, pp. 247 and 248. 48 – I feel obliged to mention the claim to the effect that the practice of adopting measures by means of framework decisions is undemocratic, which has been put forward by the applicant association in the main proceedings on the ground that, unlike international agreements, framework decisions do not require any additional action on the part of national legislatures. First of all, framework decisions, and the manner in which they are enacted, are governed by a treaty which has been freely adopted by the Member States under the decision-making leadership of their respective governments. Furthermore, as I have just stated, the European Parliament is consulted during the procedure for the adoption of framework decisions and its national counterparts have the right to draw up restrictions and have jurisdiction to adopt domestic measures applying and implementing framework decisions if their constitutional system requires that they must have the rank of a law. 49 – OJ 1972 L 299, p. 32; consolidated version in OJ 1998 C 27, p. 1. 50 – OJ 2001 L 12, p. 1. Other examples are Council Regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters (OJ 2001 L 174, p. 1) (Article 21); Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings (OJ 2000 L 160, p. 1) (Article 44); and Council Regulation (EC) No 1348/2000 of 29 May 2000 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (OJ 2000 L 160, p. 37) (Article 20). 51 – The close connection between the two principles is clear in Article 5 EC, which provides that the Community may take action only where the objectives of the proposed action cannot be achieved by the Member States unilaterally (subsidiarity) and restricts the action which the Community may take to that which is strictly necessary (proportionality). 52 – The Commission notes (paragraph 22 of its observations) that the conventions concluded pursuant to the Treaty of Maastricht did not enter into force before the Treaty of Amsterdam, because they had not been ratified by a sufficient number of Member States. On the date of adoption of the Framework Decision, those conventions had been ratified by 12 of the 15 Member States existing at the time. 53 – The Council only recommends its adoption (Article 34(2)(d) EU). 54 – Introduction to the Presidency Conclusions of the Tampere European Council, 15 and 16 October 1999. 55 – COM(2001) 522 final/2, p. 4, point 4.3. 56 – The principle of effectiveness also applies to the jurisdiction of the Member States with regard to procedural matters, by requiring that their national legal systems do not render excessively difficult or impossible the exercise of rights conferred by Community law. Case 33/76 Rewe [1976] ECR 1989 heads a long line of cases in which the Court made a ruling to that effect. Among the most recent are Case C-255/00 Grundig Italiana [2002] ECR I‑8003 and Case C‑30/02 Recheio-Cash & Carry [2004] ECR I‑6051. 57 – I have already argued in this Opinion that the principle of effectiveness is the basis for the judgment in Pupino, as stated in paragraphs 38 and 42 of that judgment. 58 – The United Kingdom Government describes the Framework Decision as ‘indispensable’ (paragraph 37, in fine, of its statement in intervention). 59 – The principle of effectiveness is the inspiration for Article 31(2) of the Framework Decision which provides that the Member States may continue to apply bilateral or multilateral agreements the provisions of which extend beyond those of the Framework Decision and help to simplify or facilitate the procedures for surrender. 60 – Vennemann, N., ‘The European arrest warrant and its human rights implications’, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, 2003, pp. 113 and 114. 61 – In the judgment in Pupino, the Court noted that framework decisions must be interpreted in accordance with the Rome Convention (paragraph 59). 62 – The case of Ms Defrenne is symbolic. The judgments in Case 80/70 Defrenne I [1971] ECR 445, Case 43/75 Defrenne II [1976] ECR 455, and Case 149/77 Defrenne III [1978] ECR 1365 mark the progress of the case through the Court. 63 – Judgments in Case 31/59 Acciaieria e Tubificio di Brescia v High Authority [1960] ECR 71; Case 136/79 National Panasonic v Commission [1980] ECR 2033; Joined Cases 46/87 and 227/87 Hoechst [1989] ECR 2859; and Case C-94/00 Roquette Frères [2002] ECR I-9011. 64 – Judgments in Case C-260/89 ERT [1991] ECR I-2925; Case C-112/00 Schmidberger [2003] ECR I-5659; and Case C-101/01 Lindqvist [2003] ECR I-12971. On the freedom of expression of Community officials, see the judgment in Case C-274/99 P Connolly v Commission [2001] ECR I‑1611. 65 – Judgments in Case 14/86 Pretore di Salò [1987] ECR 2545; Case 80/86 Kolpinghuis Nijmegen [1987] ECR 3969; Case C‑168/95 Arcaro [1996] ECR I-4705; and Joined Cases C-74/95 and C‑129/95 Criminal proceedings against X [1996] ECR I-6609. 66 – That approach first appears in the judgment in Case 4/73 Nold v Commission [1974] ECR 491, paragraph 13. 67 – Rubio Llorente, F., examined that process in detail in ‘Mostrar los derechos sin destruir la Unión’, La estructura constitucional de la Unión Europea, Civitas, Madrid, 2002, pp. 113 to 150. 68 – Pescatore P., ‘Los principios generales del derecho como fuentes del derecho comunitario’, Noticias C.E.E., 1988, No 40, pp. 39 to 54. 69 – In Nold v Commission, the Court held that, ‘in safeguarding these rights [fundamental rights], the Court is bound to draw inspiration from constitutional traditions common to the Member States, and it cannot therefore uphold measures which are incompatible with fundamental rights recognised and protected by the constitutions of those States’ (paragraph 13). Subsequently, in the judgment in Case 11/70 Internationale Handelsgesellschaft [1970] ECR 1125, the Court stated that ‘the protection of such rights, whilst inspired by the constitutional traditions common to the Member States, must be ensured within the framework of the structure and objectives of the Community’ (paragraph 4). 70 – In Nold v Commission, international treaties for the protection of human rights were regarded as having limited effect and as being capable merely of supplying ‘guidelines which should be followed within the framework of Community law’ (paragraph 13). However, a few years later, such treaties were expressly relied on (judgment in Case C-36/75 Rutili [1975] ECR 1219, paragraph 32) and emerged as deciding factors (judgment in Case 222/84 Johnston [1986] ECR 1651, paragraph 18 et seq.). 71 – Judgment in Criminal proceedings against X, paragraph 25. See also the judgment in ERT, paragraph 41, and the judgments to which it refers. The Court made similar observations in point 33 of Opinion 2/94 [1996] ECR I-1759, which was delivered pursuant to Article 228 of the EC Treaty (now, after amendment, Article 300 EC). 72 – The situation would change in the event of the adoption and entry into force of the Treaty establishing a Constitution for Europe, Part II of which incorporates the Charter. 73 – Díez-Picazo, J.M., ‘Carta de derechos fundamentales de la Unión Europea’, Constitucionalismo de la Unión Europea, Civitas, Madrid, 2002, pp. 21 to 42, in particular, p. 39. 74 – ‘This Charter reaffirms … the rights as they result, in particular, from the constitutional traditions and international obligations common to the Member States, the Treaty on European Union, the Community Treaties, the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Social Charters adopted by the Community and by the Council of Europe and the case-law of the Court of Justice of the European Communities and of the European Court of Human Rights.’ 75 – Although the order for reference makes no mention of it, attention must be drawn to the absence of a universally accepted right not to be extradited. Some States, such as Germany, Cyprus, Finland and Poland, grant that right to their citizens but the legal systems of many other States do not afford that fundamental protection to their citizens and it therefore remains on the fringes of the common constitutional traditions. Austria, Portugal and Slovenia have amended their constitutions to permit the surrender of their nationals. 76 – Alonso García, R., ‘Las cláusulas horizontales de la Carta de los derechos fundamentales de la Unión Europea’, Encrucijada constitucional de la Unión Europea, Civitas, Madrid, 2002, p. 151, maintains that the fact that the Charter of Fundamental Rights does not have binding force does not negate its effectiveness, as evidenced by the role played by the Rome Convention which, although it is not legally binding on the Community, has acted as a fundamental source of inspiration for the Court in the interpretation of fundamental rights. Carrillo Salcedo, J.A., ‘Notas sobre el significado político y jurídico de la Carta de derechos fundamentales de la Unión Europea’, Revista de derecho comunitario, 2001, p. 7, asserts that the Charter of Fundamental Rights enables criteria to be set for assessing the lawfulness of acts of the public authorities of the Union. Rodríguez Bereijo, A., ‘El valor jurídico de la Carta de los derechos fundamentales de la Unión Europea después del Tratado de Niza’, Encrucijada ..., p. 220, paraphrasing former Member of the Commission Antonio Vittorino, predicts that, through its interpretation by the Court, the Charter will become binding as a summary and an expression of the general principles of the Community law. 77 – In the Opinion in Case C‑173/99 BECTU [2001] ECR I-4881, Advocate General Tizzano argues that, notwithstanding that it has no binding force, ‘in proceedings concerned with the nature and scope of a fundamental right, the relevant statements of the Charter cannot be ignored; in particular, we cannot ignore its clear purpose of serving, where its provisions so allow, as a substantive point of reference for all those involved … in the Community context’ (point 28). Some months later, Advocate General Léger proposed in the Opinion in Case C-353/99 P Council v Hautala [2001] ECR I-9565 that the Charter was intended to constitute a privileged instrument for identifying fundamental rights (point 83), because it enshrines certain values which ‘have in common the fact of being unanimously shared by the Member States … The Charter has undeniably placed the rights which form its subject-matter at the highest level of values common to the Member States’ (point 80). In my Opinion in Case C-208/00 Überseering [2002] ECR I-9919, I accept that, while the Charter does not constitute binding law in the strict sense, it provides an extremely valuable source for the common denominator of the fundamental legal values of the Member States, from which the general principles of Community law are in turn derived (point 59). Other Advocates General have also taken up the cause. 78 – In Case T-54/99 max.mobil v Commission [2002] ECR II-313, the Court of First Instance applied Article 47 of the Charter by an indirect route, stating that judicial review of the activities of the Commission, and, accordingly, the right to effective legal protection, is one ‘of the general principles that are observed in a State governed by the rule of law and are common to the constitutional traditions of the Member States’ (paragraph 57). The same approach was taken in the judgments in Case T-177/01 Jégo-Quéré v Commission [2002] ECR II‑2365, paragraphs 42 and 47; Joined Cases T-377/00, T‑379/00, T-380/00, T-260/01 and T-272/01 Philip Morris and Others v Commission [2003] ECR II-1, paragraph 122; and Joined Cases T‑116/01 and T‑118/01 P & O European Ferries (Vizcaya) and Another v Commission [2003] ECR II-2957. 79 – In the judgment in Case C-245/01 RTL Televisión [2003] ECR I-12489, the Court referred in passing to Article 11(2) of the Charter, stating that it enshrines the right to freedom of opinion (paragraph 38). In the judgment in Case C-347/03 Regione autonoma Friuli-Venezia Giulia and ERSA [2005] ECR I-3785, the Court made a similar reference to Article 17 of the Charter (paragraph 118). 80 – Judgment in Case C-540/03 [2006] ECR I-0000. 81 – In the judgment of 29 May 1974 in Solange I (2 BvL 52/71), the Bundesverfassungsgericht called into question the competence of the Community institutions to protect fundamental rights, while upholding its jurisdiction where the protection concerned was not equivalent to protection at national level. That judgment resulted in a salutary lesson which was soon reflected in the pages of the European Court Reports to the extent that, in the judgment of 22 October 1986 in Solange II (2 BvR 197/83), the German Constitutional Court stated that the Communities had a system of protection comparable to the Bonn Fundamental Law and announced that in the future it would refrain from reviewing secondary provisions of Community law, although it asserted its opposition to the fundamental rights (Rodríguez Iglesias, G.C. and Woelker, U., ‘Derecho comunitario, derechos fundamentales y control de constitucionalidad (La decisión del Tribunal Constitucional Federal alemán de 22 de octubre de 1986)’, Revista de Instituciones Europeas, 1987, Volume 14/1987, No 3, pp. 667 to 685). The judgment of the Trybunał Konstytucyjny of 11 May 2005, concerning the Accession Treaty of Poland (Case K 18/04), and the more recent judgment of the Czech Ústavní soud of 8 March 2006, cited above, are in the same spirit as the Solange II judgment. However, I fear that the judgment of the Bundesverfassungsgericht concerning the German law transposing the Framework Decision is inspired by that old mistrust and is a reaction to the restrictions on judicial control in the third pillar (the optional nature of proceedings for a preliminary ruling, the limitation of legal standing to bring actions for annulment, the absence of an action for failure to fulfil obligations). It is rather paradoxical that, in an area where the Union has an increased influence on the fundamental rights of individuals, the powers of the Court have been somewhat restricted, to quote from Alonso García, R. and Sarmiento Ramírez-Escudero, D., ‘Los efectos colaterales de la Convención sobre el futuro de Europa en la arquitectura judicial de la Unión: ¿hacia una jurisdicción auténticamente constitucional europea?’, Revista de Estudios Políticos, No 119, January-March 2003, p. 136. 82 – Capotosti, P.A., ‘Quelles perspectives pour les rapports entre la Cour constitutionnelle et la Cour de justice des Communautés européennes?’, a report submitted to the Conference on Cooperation between the Court of Justice and National Courts, held in Luxembourg on 3 December 2002 on the occasion of the 50th anniversary of the Court, warns of ‘multilayered constitutionalism’ (p. 6). 83 – Paragraph 3 authorises the Council to extend the list by unanimous decision. 84 – That is the case in Belgium, since Article 5(1) of the Law of 19 December 2003, referred to above, provides that execution of a European arrest warrant must be refused if the acts in question do not constitute a criminal offence under Belgian law. 85 – Spanish Law 3/2003 of 14 March 2003, cited in footnote 32, opts for that alternative and leaves the decision in the hands of the courts (Article 12(2)(a) in conjunction with Article 9(2)). 86 – In fact, it is not the double criminality requirement which is set aside but rather the requirement of verification, because the nature of the acts listed – such as murder, grievous bodily injury, kidnapping, illegal restraint, hostage-taking, organised or armed robbery, and rape – is such that they are classed as offences in all the Member States. Another difficulty, which I will deal with below, concerns the definition of the offences by the legal systems of each Member State (point 96 et seq.). In any case, the list in Article 2(2) of the Framework Decision contains some acts for which there is, or is soon to be, a harmonised definition of the offence, and other acts which are certainly punished in all the Member States. In that connection, see the Council resolution of 21 December 1998 on the prevention of organised crime with reference to the establishment of a comprehensive strategy for combating it (OJ 1998 C 408, p. 1), and the United Nations Convention against Transnational Organised Crime of 15 November 2000, and the protocols thereto. On combating terrorism, see Framework Decision 2002/475/JHA of 13 June 2002 (OJ 2002 L 164, p. 3), and on combating trafficking in human beings, see Framework Decision 2002/629/JHA of 19 July 2002 (OJ 2002 L 203, p. 1). On combating the sexual exploitation of children and child pornography, see Framework Decision 2004/68/JHA of 22 December 2003 (OJ 2004 L 13, p. 44). On the illicit traffic in narcotic drugs and psychotropic substances, see the United Nations Convention of 20 December 1988. On financial crime, see Framework Decision 2000/383/JHA of 29 May 2000 on increasing protection by criminal penalties and other sanctions against counterfeiting in connection with the introduction of the euro (OJ 2000 L 140, p. 1), amended by Framework Decision 2001/888/JHA of 6 December 2001 (OJ 2001 L 329, p. 3); Framework Decision 2001/413/JHA of 28 May 2001 on combating fraud and counterfeiting of non-cash means of payment (OJ 2001 L 149, p. 1); and Framework Decision 2001/500/JHA of 26 June 2001 on money laundering, the identification, tracing, freezing, seizing and confiscation of instrumentalities and the proceeds of crime (OJ 2001 L 182, p. 1). On corruption, see the Convention drawn up on the basis of Article K.3(2)(c) of the Treaty on European Union on the fight against corruption involving officials of the European Communities or officials of Member States of the European Union (OJ 1997 C 195, p. 2), and Framework Decision 2003/568/JHA of 22 July 2003 on combating corruption in the private sector (OJ 2003 L 192, p. 54). On computer crime, see Framework Decision 2005/222/JHA of 24 February 2005 on attacks against information systems (OJ 2005 L 69, p. 67). On the protection of the environment in the European Union through criminal law, see Council Framework Decision 2003/80/JHA of 27 January 2003 (OJ 2003 L 29, p. 55), which was annulled by the Court in Case C-176/03 Commission v Council [2005] ECR I-7879, on the ground that legislation on that field must be enacted within the Community pillar by means of a directive. On the protection of victims in cases of illegal entry, see Framework Decision 2002/946/JHA of 28 November 2002 on the strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit and residence (OJ 2002 L 328, p. 1). Lastly, on racism and xenophobia, see the joint action of 15 July 1996, cited in footnote 45. 87 – The applicable provision of the Charter of Fundamental Rights of the European Union is Article 20, which provides: ‘Everyone is equal before the law.’ Article 14 of the Rome Convention enshrines the principle of equality with regard to the enjoyment of the rights and freedoms it proclaims, while Protocol No 12 of 4 November 2000, which entered into force on 1 April 2005, contains a general prohibition of discrimination. 88 – Judgments of the Court of Justice in Joined Cases 117/76 and 16/77 Ruckdeschel and Others [1977] ECR 1753, paragraph 7; Case 139/77 Denkavit [1978] ECR 1317, paragraph 15; and Case C‑110/03 Belgium v Commission [2005] ECR I-2801. Judgments of the European Court of Human Rights in Fretté v. France (26 February 2002, Reports of Judgments and Decisions 2002-I), § 34, and Pla and Puncernau v. Andorra (13 July 2004, Reports of Judgments and Decisions 2004-VIII), § 61. Judgments of the Spanish Constitutional Court 75/1983 (BOE Supplement No 197, 18 August 1983), third legal ground; 46/1999 (BOE Supplement No 100, 27 April 1999), second legal ground; and 39/2002 (BOE Supplement No 63, 14 March 2002), fourth legal ground. 89 – It includes the offences specifically referred to in Article 29 EU, the offences for which jurisdiction is assigned to Europol in the annex to the Council Act of 26 July 1995 drawing up the Convention on the Establishment of a European Police Office (OJ 1995 C 316, p. 2), and offences which there is a general duty to prosecute under international law. 90 – A number of writers take the view that Article 2(2) of the Framework Decision reflects the consensus of the Member States on criminal matters (Von Bubnoff, E., ‘Institutionelle Kriminalitätsbekämpfung in der EU – Schritte auf dem Weg zu einem europäischen Ermittlungs- und Verfolgungsraum’, Zeitschrift für europarechtliche Studien, 2002, p. 226; Combeaud, S., ‘Premier bilan du mandat d’arrêt européen’, Revue du Marché commun et de l’Union européenne, No 495, 2006, p. 116; and Hecker, B., Europäisches Strafrecht, Berlin, 2005, p. 433). 91 – The cases in question are extraordinary because the double test used (the nature of the offence and the severity of the penalty) normally precludes a Member State from being required to deal with an arrest warrant for an act which is not prosecuted under its own legal system. I find it difficult to imagine an act which is punished in one Member State by a sentence or detention order of a maximum of at least three years but which is lawful in another State. 92 – The Finnish Government points out (paragraph 49 of its observations) that the principle of territoriality governs criminal matters, so that a foreign national guilty of an offence perpetrated in Finland cannot evade liability by claiming that the act with which he is charged is not punished in his country of origin. With regard to the extraterritorial exercise of the right to punish, the Framework Decision provides (Article 4(7)) that a Member State may refuse to execute a European arrest warrant relating to offences committed in whole or in part in its jurisdiction, and even outside its jurisdiction, if its legislation does not provide for prosecution of such offences. 93 – Article 8 of the Framework Decision sets out in detail the information which an arrest warrant must contain, and Section (e) in the form provided for is used for the description of the offence and its legal classification. Any particular required by the court in the executing Member State is dealt with by direct contact with the issuing court. 94 – Rolland, P., ‘La Convention européenne des droits de l’homme (commentaire article par article)’, Economica, Second edition, Paris, 1999, p. 293, has described it as the foundation of European legal civilisation. 95 – Judgments 42/1987 (BOE Supplement No 107, 5 May 1987), second legal ground; 22/1990 (BOE Supplement No 53, 2 March 1990), seventh legal ground; and 276/2000 (BOE Supplement No 299, 14 December 2000), sixth legal ground. 96 – The principle of legality was developed in the criminal and fiscal fields in the Lower Middle Ages, as a restriction on the powers of the sovereign. In Spain, the communities, towns and cities made the acceptance of subsidies in favour of the crown and the punishment of certain acts conditional on the approval of representative assemblies (cortes). The evolution of a system of negotiation between the monarchy and political society, which consolidated a hierarchical political organisation and prevented further development of the powers of the monarch, is a constant theme, albeit with important differences and nuances, in the formation of the kingdoms of medieval Spain. In Aragon and Navarre, the cortes gained legislative and financial supervisory powers between the end of the 13th century and the middle of the 14th century (Ladero Quesada, M.A., ‘España: reinos y señoríos medievales’, España. Reflexiones sobre el ser de España, Real Academia de la Historia, Second edition, Madrid, 1998, pp. 95 to 129). In Castille, the same institution, which was at its peak in the 14th and 15th centuries, always had a lower profile and, although it played a crucial role in political life, its powers were more limited (Valdeón, J., ‘Los reinos cristianos a fines de la Edad Media’, Historia de España, Historia 16, Madrid, 1986, pp. 391 to 455, in particular pp. 414 to 423). 97 – Advocate General Kokott put forward a similar view in point 41, in fine, of the Opinion in Pupino. 98 – According to the judgment in Criminal proceedings against X, the principle of legality ‘precludes bringing criminal proceedings in respect of conduct not clearly defined as culpable by law’ (paragraph 25). In the Opinion in the same case, I argued that that principle ‘gives all persons the legal certainty that their conduct will lead to criminal liability only if it contravenes a national provision which defined it beforehand as an offence of that kind’ (point 53). 99 – That may even include taking appropriate legal advice (judgment in Joined Cases C-189/02/ P, C-202/02 P, C‑205/02 P to C-208/02 P and C-213/02 P Dansk Rørindustri and Others [2005] ECR I-5425, paragraph 219. 100 – That aspect of the principle of legality in criminal proceedings was upheld in the judgments of the European Court of Human Rights in Kokkinakis v. Greece (25 May 1993, Case 14307/77, A 260-A), § 52; S.W. v. United Kingdom (22 November 1995, Case 20166/92, A 335-B ), § 35; and Cases 34044/96, 35532/97 and 44801/98 (22 March 2001, Reports of Judgments and Decisions 2001-II), § 50. It has also been accepted by the Spanish Constitutional Court; see for example judgment 75/1984 (BOE Supplement No 181, 30 July 1984), fifth legal ground, and judgment 95/1992 (BOE Supplement No 169, 15 July 1992), third legal ground. 101 – The Spanish Constitutional Court held that that individual protection excludes the judicial creation of law and unforeseeable expressions which are incompatible with the wording of provisions or unsuitable with respect to the rights they seek to protect (judgment 25/1999 (BOE Supplement No 89, 14 April 1989), third legal ground), so that the definition of a criminal offence must respect the terms of the provision, the interpretational guidelines which make up the constitutional system, and the minimum criteria imposed by legal logic, in addition to the methods of reasoning adopted by the Community (judgment 42/1999 (BOE Supplement No 100, 27 April 1999), fourth legal ground). 102 – Academic writers argue that Article 2(2) does not contain offences because the list does not describe the characteristic features of each punishable act (Flore, D., ‘Le mandat d’arrêt européen: première mise en oeuvre d’un nouveau paradigme de la Justice pénale européenne’, Journal des Tribunaux, 2002, p. 276, and Unger, E.M., Schutzlos ausgeliefert? – Der Europäische Haftbefehl, Frankfurt am Main, 2005, p. 100). In the event of an argument to the contrary, it must be recalled that framework decisions do not have direct effect (Article 32(2)(b) EU), without prejudice to the principle that national provisions must be interpreted in such a way as to ensure the greatest possible effectiveness of Community law, as stated in the judgment in Pupino (paragraphs 43 to 47). In that case, provisions of national law which transpose the Framework Decision must comply with the principle of legality. 103 – Judgments in X v. Netherlands (6 July 1976, Case 7512/76, DR 6, p. 184); Polley v. Belgium (6 March 1991,Case 12192/86); and Bakhtiar v. Switzerland (18 January 1996, Case 27292/95). The Spanish Constitutional Court has applied the same criterion (judgments 102/1997 (BOE Supplement No 137, 9 June 1997), sixth legal ground, and 32/2003 (BOE Supplement No 55, 5 March 2003), second legal ground).