OPINION OF ADVOCATE GENERAL

RUIZ-JARABO COLOMER

delivered on 12 September 2006 1( )

Case C-303/05

Advocaten voor de Wereld VZW

v

Leden van de Ministerraad

(Reference for a preliminary ruling from the Arbitragehof (Belgium))

(European Union – Third pillar – Police and judicial cooperation in criminal matters – Framework Decision 2002/584/JHA on the European arrest warrant and the surrender procedures between Member States – Legal basis – Article 2(2) – Abolition of the double criminality rule – Principle of equality and principle of legality in criminal proceedings)

I – Introduction

1. ‘The knowledge already acquired … concerning the surest rules to be observed in criminal judgments, is more interesting to mankind than any other thing in the world.’ ( )

2. The Belgian Arbitragehof or Cour d’arbitrage (Constitutional Court) has asked the Court, pursuant to Article 35 EU, ( ) to rule on the validity of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (‘the Framework Decision’). ( )

3. The Belgian court asks whether the Framework Decision is compatible with the Treaty on European Union in a procedural and a substantive context. With regard to the procedural context, which has its roots in Article 34(2)(b) EU, the Belgian court questions the legal basis relied on by the Council and asks whether the instrument chosen is suitable.

4. That question will require the Court to examine the system of sources of law in the third pillar of the Union, by analysing the nature of framework decisions, which are equivalent to the directives of the Community pillar. The judgment in Pupino( ) is a suitable starting point for that analysis.

5. As regards the second, substantive, context, the Belgian court casts doubt on what is perhaps the most important of the innovations entailed in this method of assistance between Member States for the arrest and surrender of individuals, that is, the fact that, in certain circumstances, it is prohibited to make execution of a European arrest warrant subject to the condition that the acts on which it is based must also constitute an offence in the State of execution. The Arbitragehof asks whether that innovation is compatible with the principle of equality and with the principle of legality in criminal proceedings and, accordingly, whether it complies with Article 6(2) EU.

6. In order to answer that question, it will be necessary to conduct a full examination of the role of fundamental rights in the sensitive sector of police and judicial cooperation in criminal matters, following the proclamation of the Charter of Fundamental Rights of the European Union. ( )

7. That is not a straightforward task because, in a number of Member States, transposition of the Framework Decision has been ruled out on the grounds that it infringes individual rights. In Poland, the Trybunał Konstytucyjny (Constitutional Court), which has jurisdiction to scrutinise laws in the light of the Constitution, held in a judgment of 27 April 2005 ( ) that Article 607t(1) of the Code on criminal procedure was incompatible with Article 55(1) of the Constitution, ( ) in that it authorised the surrender of a Polish national to the authorities of another Member State in response to a European arrest warrant. Barely three months later, on similar grounds, ( ) the German Bundesverfassungsgericht (Federal Constitutional Court) delivered a similar judgment ( ) with regard to the law implementing the Framework Decision. ( ) The Supreme Court of Cyprus has adopted the same approach, ( ) on the basis that Article 11 of the Cypriot Constitution does not provide for arrest with a view to the execution of a European arrest warrant. By contrast, the Czech Ústavní soud (Constitutional Court), in a judgment of 3 May 2006, ( ) dismissed an action for unconstitutionality brought by a group of senators and members of parliament contesting the law transposing the Framework Decision, which, they claimed, infringed the Constitution on the ground that it authorised the surrender of Czech nationals and abolished the protection inherent in the double criminality rule.

8. There is, therefore, a far-reaching debate concerning the risk of incompatibility between the constitutions of the Member States and European Union law. The Court of Justice must participate in that debate by embracing the prominent role assigned to it, with a view to situating the interpretation of the values and principles which form the foundation of the Community legal system within parameters comparable to the ones which prevail in national systems. ( )

II – The legal framework

A – The Treaty on European Union

9. The Union, which embodies a new stage in the process of integration and seeks to create closer ties between the peoples of Europe, is founded on the European Communities, supplemented by the policies and forms of cooperation established by the Treaty on European Union (Article 1 EU). The Union is founded on values common to Europeans, such as liberty, democracy, the rule of law, and respect for human rights and fundamental freedoms (Article 6(1) EU).

10. In particular, in accordance with the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 (‘the Rome Convention’), as they result from the constitutional traditions common to the Member States, those rights are enshrined as general principles of Community law, the protection of which, within the scope of the Treaties establishing the European Communities and the EU Treaty, is the responsibility of the Court of Justice (Article 6(2) EU in conjunction with Article 46(d) EU).

11. The objectives of the Union include the maintenance and development of the Union as an area of freedom, security and justice, in which the free movement of persons is assured by the adoption of measures for the prevention and combating of crime (Article 2(1) EU, fourth indent), as part of the so-called third pillar which concerns police and judicial cooperation in criminal matters (Title VI EU).

12. The third pillar is intended to provide citizens with a high degree of security by drawing up policies for the prevention and combating of crime, by means of increased cooperation between the judicial authorities, and for the approximation, where appropriate, of national criminal provisions (Articles 31 EU and 32 EU).

13. Action in the judicial sector includes, for example, (a) increasing mutual assistance in the processing of cases and in the enforcement of decisions, (b) facilitating extradition, (c) ensuring compatibility in rules applicable in the Member States, (d) preventing conflicts of jurisdiction, and (e) progressively establishing minimum rules relating to the constituent elements of criminal acts and to penalties in the fields of organised crime, terrorism and illicit drug trafficking (Article 31(1) EU).

14. To that end, the Council may adopt by unanimous decision (Article 34(2) EU, subparagraphs (a) to (c)):

(1) common positions defining the approach of the Union to a particular matter;

(2) framework decisions for the purpose of approximation of the laws and regulations of the Member States. Like the directives of the first pillar, framework decisions are binding as to the result to be achieved but leave to the national authorities the choice of form and method, although, by contrast, they do not have direct effect;

(3) binding decisions for any other purpose consistent with the objectives of the third pillar, which are not aimed at harmonisation and which do not have direct effect.

15. In addition, the Council may conclude conventions which it shall recommend to the Member States for adoption and which will enter into force when they have been ratified by half the Member States (Article 34(2)(d) EU).

B – Framework Decision 2002/584

16. Pursuant to Articles 31(1)(a) and (b) EU and 34(2)(b) EU, the Framework Decision addresses the desire to abolish the formal extradition procedure in the Union ( ) and to replace it with a simplified system of judicial surrender of sentenced or suspected persons for the purposes of execution or prosecution of criminal sentences (recitals 1 and 5). In accordance with that plan, the Framework Decision replaces, in relations between the Member States, prior and subsequent international conventions (Article 31(1)), ( ) which, however, continue to apply when they extend beyond the objectives of the Framework Decision or help to simplify or facilitate the execution of a European arrest warrant (Article 31(2)).

17. Accordingly, the system of cooperation between Member States has been abolished and a system of free movement of judicial decisions has been established, which is based on mutual confidence and recognition (recitals 5, 6 and 10, and Article 1(2)).

18. The Council of the European Union adopted the Framework Decision in accordance with the principles of subsidiarity and proportionality, and with a desire to respect fundamental rights and comply with Article 6 EU (recitals 7 and 12, and Article 1(3)). In that connection, the surrender of an individual must be refused ( ) when there are reasons to believe, on the basis of objective elements, that the arrest warrant has been issued for the purpose of prosecuting, punishing or prejudicing the position of a person on the grounds of his or her sex, race, religion, ethnic origin, nationality, language, political opinions or sexual orientation, or where there is a serious risk that that person would be subjected to the death penalty, torture or other inhuman or degrading treatment. Furthermore, the Framework Decision encourages Member States to have regard to their constitutional rules relating to due process ( ) and to freedom of association, freedom of the press and freedom of expression (recitals 12 and 13). There is also an undertaking to protect the personal data processed in the context of the implementation of the Framework Decision (recital 14).

19. The European arrest warrant is a decision from a court in a Member State, addressed to the authorities of another Member State, seeking the arrest and surrender of an individual for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order (Article 1(1)).

20. The warrant is strictly judicial in nature. It is a mechanism for judicial cooperation (Article 1 and Articles 3 to 6), without prejudice to any practical or administrative assistance which the central authority may be required to provide (recital 9 and Article 7).

21. The European arrest warrant is issued for the prosecution of offences punishable by the law of the issuing Member State by a custodial sentence or a detention order for a maximum period of at least 12 months, or for the execution of custodial sentences or detention orders for a period of at least four months (Article 2(1)). The Member State to which the arrest warrant is addressed may make surrender subject to the condition that the acts must also constitute an offence under its own legal system (Article 2(4)).

22. Under Article 2(2), that rule, which is known as the double criminality rule, does not apply in respect of 32 categories of offence, provided that the issuing Member State punishes those offences by a prison sentence of a maximum of at least three years. The list includes the following offences:

– participation in a criminal organisation,

– terrorism,

– trafficking in human beings,

– sexual exploitation of children and child pornography,

– illicit trafficking in narcotic drugs and psychotropic substances,

– illicit trafficking in weapons, munitions and explosives,

– corruption,

– fraud, including that affecting the financial interests of the European Communities within the meaning of the Convention of 26 July 1995,

– laundering of the proceeds of crime,

– counterfeiting currency, including of the euro,

– computer-related crime,

– environmental crime, including illicit trafficking in endangered animal species and in endangered plant species and varieties,

– facilitation of unauthorised entry and residence,

– murder, grievous bodily injury,

– illicit trade in human organs and tissue,

– kidnapping, illegal restraint and hostage-taking,

– racism and xenophobia,

– organised or armed robbery,

– illicit trafficking in cultural goods, including antiques and works of art,

– swindling,

– racketeering and extortion,

– counterfeiting and piracy of products,

– forgery of administrative documents and trafficking therein,

– forgery of means of payment,

– illicit trafficking in hormonal substances and other growth promoters,

– illicit trafficking in nuclear or radioactive materials,

– trafficking in stolen vehicles,

– rape,

– arson,

– crimes within the jurisdiction of the International Criminal Court,

– unlawful seizure of aircraft/ships,

– sabotage.

23. Article 3 sets out three grounds for mandatory non-execution of the European arrest warrant, while Article 4 lays down seven grounds for optional non-execution. The latter category covers cases where the convicted person is a national or resident of the State to which the warrant is addressed and that State undertakes to ensure that the sentence or detention order is executed in accordance with its domestic law (Article 4(6)). Similarly, Article 5(3) provides that, in the same circumstances, for the purposes of prosecution, surrender may be subject to the condition that the person, after being heard, is returned to his own Member State in order to serve there the punishment imposed on him.

24. In the proceedings, which are dealt with as a matter of urgency and within preclusive time-limits (Articles 17 and 23), the requested person is entitled to a hearing (Articles 14 and 19), to be assisted by a lawyer and an interpreter (Article 11(2)), to the rights available to arrested persons and, where appropriate, to provisional release in accordance with the law of the executing Member State (Article 12).

25. The order must contain the information necessary for its execution, in particular the details of the identity of the person sought and the nature and classification of the offence (Article 8(1)). Any difficulties which may arise during the procedure must be dealt with by direct contact between the courts involved, and, where appropriate, with the involvement of the supporting administrative authorities (Article 10(5)).

26. The period for complying with the Framework Decision expired on 31 December 2003 (Article 34(1)).

III – The main proceedings and the questions referred for a preliminary ruling

27. Advocaten voor de Wereld, a non-profit-making association, brought an action in the Arbitragehof contesting the Wet betreffende het Europees aanhoudingsbevel (Law on the European arrest warrant) of 19 December 2003, ( ) which transposes the Framework Decision into national law, on the ground that the said Law infringes Articles 10 and 11, in conjunction with Articles 36, 167(2), and 168, of the Grondwet (Belgian Constitution). The applicant claims that the European arrest warrant ought to have been established by an international convention and that Article 5(5) of the Law, which transposes Article 2(2) of the Framework Decision into national law, infringes the principle of equality and the requirement of legal certainty in the sphere of criminal proceedings.

28. In view of the nature of the dispute, prior to giving judgment, the Belgian Constitutional Court decided ( ) to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Is Framework Decision 2002/584 … compatible with Article 34(2)(b) EU, under which framework decisions may be adopted only for the purpose of approximation of the laws and regulations of the Member States?

(2) Is Article 2(2) of Framework Decision 2002/584 …, in so far as it sets aside verification of the requirement of double criminality for the offences listed therein, compatible with Article 6(2) EU and, more specifically, with the principle of legality in criminal proceedings guaranteed by that provision and with the principle of equality and non‑discrimination?’

IV – The procedure before the Court of Justice

29. The order for reference from the Arbitragehof was received at the Court Registry on 2 August 2005. Written observations were submitted by Advocaten voor de Wereld, the Commission, the Council of the European Union, and the Belgian, Czech, Spanish, Finnish, French, United Kingdom, Latvian, Lithuanian, Netherlands and Polish Governments. At the hearing held on 11 July 2006, oral argument was presented by the representatives of Advocaten voor de Wereld, the representatives of the Belgian, Czech, Spanish, French, Netherlands and United Kingdom Governments, and the representatives of the Council of the European Union and the Commission of the European Communities.

V – Analysis of the questions referred for a preliminary ruling

A – The legal basis (first question)

30. It is common ground that the Framework Decision concerns matters which fall within the scope of the third pillar of the European Union and, accordingly, that the Council has jurisdiction to adopt provisions in that connection. ( ) The dispute is focused on the type of instrument adopted, since, in the main proceedings, the suitability of a framework decision is contested on two grounds. The first is that the Framework Decision does not seek to approximate pre‑existing national laws, because the European arrest warrant is a newly created concept. The second ground is that prior international agreements on extradition cannot be repealed by a framework decision.

31. Having summarised the dispute in those terms, it is appropriate first of all to consider the essence of the European arrest warrant with a view to ascertaining its nature and concluding whether it is possible to apply to it the harmonising provisions of a framework decision. Should the reply to that question be in the affirmative, it will then be necessary to ascertain whether, in accordance with the principle of contrarius actus, the adoption of a framework decision was precluded because the field concerned had previously been governed by international agreements.

32. However, before considering those matters, I must propose a resolution of the claim put forward by the Czech Government that the first question is inadmissible.

1. Admissibility

33. The Czech Government contends that the examination of the question whether a framework decision is a suitable instrument to govern the European arrest warrant requires the Court to analyse a provision of primary law (Article 34(2)(b) EU) which is outside its control and, accordingly, the Court lacks jurisdiction to give a ruling. That approach is wholly erroneous specifically because one of the central responsibilities of this institution is to interpret the Treaties and to safeguard them vis-à-vis secondary law, tasks which are essentially constitutional in nature. ( )

34. All the powers of the Union are connected and are subject to the provisions enacted by the Community legislature, but the Court of Justice is also charged with preserving the integrity and ensuring the effectiveness of those powers by safeguarding them from any irregularities on the part of the other Community institutions. The Arbitragehof does not ask the Court for anything out of the ordinary, and instead merely requests that the Court exercise its powers in order to establish whether an act of the Union legislature is compatible with a provision of the Treaty, ( ) an assessment which, at the outset, and by way of necessity, requires the Court to interpret and define the scope of the contested provision.

35. However, the Czech Republic is adamant that the first question is inadmissible and asserts that the order for reference does not state clearly the reasons why the Framework Decision is invalid. The Czech Government maintains that, with regard to its application for a declaration that the Belgian implementing law is unconstitutional on the grounds that the Framework Decision is not a suitable instrument for approximating national laws, the applicant association should have based its claim on relevant arguments which the referring court should have set out in the order for reference.

36. The information provided by national courts must make it possible for interested parties in proceedings for a preliminary ruling to submit observations which supply the Court with facts which will enable it to give a useful reply. ( ) That requirement is satisfied in this case because it is clear that the dispute centres on the question whether a framework decision is capable of establishing the European arrest warrant through the approximation of national laws. That is the view taken by the other 12 parties who have submitted observations in these proceedings and the Czech Government, while complaining about a lack of clarity on the part of the Arbitragehof, has still found itself able to take part in the discussion. ( )

37. Now that I have cleared the way for a discussion of the substantive issue, I will analyse this new instrument governing cooperation between the Member States in criminal matters.

2. The European arrest warrant and extradition

38. It has been argued that the European arrest warrant procedure is a subspecies of extradition. Academic writers have described the Framework Decision as an attempt to facilitate extradition between the Member States, ( ) and as a modern version of extradition ( ) which is sui generis and has ( ) a different name. ( ) The Community legislature has contributed to the confusion by relying on Article 31(1)(b) EU. Certain high-ranking national courts have also contributed to the uncertainty; for example, the Trybunał Konstytucyjny described the surrender of an individual in compliance with a European arrest warrant as a form of extradition, ( ) although it did so with a view to making the warrant subject to the same determining factors from the point of view of the protection of the fundamental rights enshrined in the Polish Constitution. The Bundesverfassungsgericht acted similarly by tacitly equating the two concepts with one another. ( )

39. However, attention has also been drawn to the differences by legislatures, ( ) academic writers ( ) and national courts. ( )

40. However, the views held are not so different in as much as they depend on the perspective chosen. If the focus is the result there are numerous similarities, but the differences appear more stark if regard is had to the reasons for the method of cooperation concerned and the manner in which it is carried out.

41. The move from extradition to the European arrest warrant constitutes a complete change of direction. It is clear that both concepts serve the same purpose of surrendering an individual who has been accused or convicted of an offence to the authorities of another State so that he may be prosecuted or serve his sentence there. However, that is where the similarities end.

42. In the case of extradition, contact is initiated between two sovereign States, the requester and the requested, each of which acts from an independent position. One State asks for the cooperation of the other State which decides whether to provide that cooperation on a case-by-case basis, having regard to grounds which exceed the purely legal sphere and enter into the scope of international relations, where the principle of opportuneness plays an important role. Accordingly, the intervention of politicians and criteria such as reciprocity and double criminality are justified because they have their origins in different spheres.

43. The nature of the situation changes when assistance is requested and provided in the context of a supranational, harmonised legal system where, by partially renouncing their sovereignty, States devolve power to independent authorities with law-making powers. That approximation, which falls within the scope of the first pillar of the Union, ( ) also operates in the third, intergovernmental, pillar – albeit with a clear Community objective, as was demonstrated in Pupino – ( ) by transferring to framework decisions certain aspects of the first pillar and a number of the parameters specific to directives. ( )

44. The relationship is not established between hermetically sealed spaces where a case-by-case assessment is required to determine that the assistance does not undermine the foundations of social organisation. On the contrary, the aim is to provide assistance to someone with whom one shares principles, values and objectives, ( ) through the creation of an institutional framework with its own special sources of law which vary in force but which ultimately are all binding and which seek to prevent and combat crime in a single area of freedom, security and justice, by facilitating cooperation between States and harmonising their criminal laws.

45. In that context, inspired by mutual trust, cooperation is based not on the coming together of separate interests but rather on a common provision – the Framework Decision – which sets out the types of offence in respect of which assistance may be requested. Thus, arguments to the effect that there must be an individual assessment in the interests of reciprocity, ( ) or that the double criminality rule is an absolute principle, are outmoded, since the participants in the procedure both regard the conduct which gives rise to the request as criminal and the request would also be dealt with if it was made from the executing State to the issuing State instead. In that situation, any assessment of opportuneness is irrelevant and the power of review is limited strictly to the courts. In other words, the political authorities must allow the judicial authorities to take the lead and an individual assessment of each case must give way to a more general type of assessment because the Framework Decision assumes that national courts have the jurisdiction to prosecute the offences it lists. In short, the situation is no longer one where sovereign States cooperate in individual cases; instead, it is one where Member States of the European Union are required to assist one another when offences which it is in the common interest to prosecute have been perpetrated. ( )

46. It is therefore my view that extradition and the European arrest warrant and surrender procedure take account of axiological models whose sole similarity is their objective. The Framework Decision takes that approach by abolishing extradition and replacing it with a system of surrender between judicial authorities, which is based on mutual recognition ( ) and on the free movement of judicial decisions, and results from a high level of confidence between the Member States (recitals 1, 5, 6 and 10). For the reasons stated, reciprocity and double criminality are presumed for certain offences – that is, the most serious ones – and the grounds for refusing to provide assistance are restricted, while there is no scope at all for political discretion (Articles 3 and 4). ( )

47. That outcome appears to bolster the view of those who argue that, since the procedure concerned is new, there was nothing to harmonise, from which it follows that it was not appropriate to establish the European arrest warrant in a framework decision. However, that conclusion, by its simplicity, fails to take account of the nature of that source of law and of the essential character of the mechanism it creates.

3. The Framework Decision as a harmonising provision

48. That approach fails on its main premiss because the fact that the European arrest warrant and surrender procedure differs from the extradition system in all but its objective does not mean that the procedure was created in a vacuum, without any precedents in the national legal systems whose harmonisation is sought.

49. The European arrest warrant, a measure which is vital to the creation of an area of freedom, security and justice (Articles 2 EU and 29 EU), is an embodiment of judicial cooperation. It consists of a judicial decision requiring the arrest and surrender of an individual by a foreign judicial authority, for the purposes of conducting a criminal prosecution or executing a sentence (Article 1(1) of the Framework Decision). It is, therefore, a decision governed by the procedural law of the issuing Member State which, in accordance with the principle of mutual recognition, is treated in the other Member States in the same way as a decision of a national court, from which it follows that legislative harmonisation is essential. Arrest warrants are well established under the criminal procedure laws of the Member State and, in certain circumstances, subject to specified conditions, the Framework Decision affords them cross-border effect, an objective which requires approximation of the relevant national rules. The operative part of the Framework Decision addresses that objective, by harmonising the form and content of the decision, the methods of and time-limits for transmission and execution, the grounds for non-execution, and the rights which protect the arrested person during the procedure and for the purposes of surrender.

50. It is therefore not the case that a mechanism which did not previously exist has been created or that national extradition laws have been harmonised; rather, it is the concepts of arrest and surrender which have been harmonised so that the judicial authorities existing in each Member State may assist one another. ( )

51. This reference for a preliminary ruling does not concern the harmonising capacity of the Framework Decision but rather whether the decision is suitable for the purpose of creating a new concept. However, there is also an underlying ambiguity in that assertion because, as I have just pointed out, although the European arrest warrant differs from extradition, it is not a creation without parallels in the laws of the Member States. ( ) In any event, even if such an argument were put forward, nothing would preclude the use of a framework decision if harmonisation were required because the EU Treaty does not prohibit its use in such circumstances.

4. The system of sources in the third pillar; in particular, the relationship between framework decisions and conventions

52. Article 34(2) EU lists four sources of law within the third pillar and, as the Council, the Commission, the Netherlands and Belgium point out, does not place them in a hierarchical order or categorise them by assigning each type of act to a particular field. In principle, each type may be used for all fields, without prejudice to the limits imposed by the nature of the act and the objective set, within whose boundaries the legislature has freedom of choice.

53. That margin of discretion is not subject to judicial review, from which it follows that a decision which does not exceed those boundaries is legally correct, irrespective of its content.

54. On this occasion, the Council opted for a framework decision and it is therefore appropriate to begin the analysis by establishing whether, in the light of the aim pursued and the procedure followed to achieve it, the Council could have used a different type of act. The common position must be rejected as a suitable measure, although it is useful in the sphere of the international relations of the Union and the Member States for the purpose of setting out their opinion on a particular subject (Article 37 EU), and, together with the joint action, its specific features may equally well be employed within the second pillar (Article 12 EU). ( )

55. The remaining acts – framework decisions, decisions and conventions – are suitable for measures which require transposition into national law. ( ) However, the present proceedings do not call for an analysis of decisions, which are referred to in Article 34(2)(c) EU, because the article excludes their adoption for the purposes of harmonisation, which is vital to ensure the functioning of the European arrest warrant procedure.

56. Accordingly, the only alternative to a framework decision would have been a convention. The choice between the two types of measure entails the widest possible discretion. It is appropriate to dismiss the view, which is based on an assertion that the rank of provision has been ‘frozen’ pursuant to the contrarius actus principle, that, since extradition between Member States has traditionally been governed by international agreements, its ‘successor’, the European arrest warrant, must be established in the same manner.

a) The inapplicability of the contrarius actus principle

57. The rule which states that once a field has been governed by a particular type of provision, that field must always be governed by other provisions of the same rank, without any possibility of using a lower rank, is not absolute because it reflects an individual right in the context of relations between a sovereign power – the legislature – and another, essentially subordinate power – the executive – and their respective acts, namely laws and regulations. When parliament legislates in a field, the government must remain on the sidelines and intervene only to the extent that the representative chamber allows it to for the purpose of completing or incorporating its decisions, and no governmental act may regulate the same field, thereby usurping the will of the holder of power, unless, after the repeal of legislation, the latter authorises it and provided that there is no constitutional restriction to the effect that the field concerned must be governed by a law. ( )

58. Therefore, it makes no sense to discuss that point because framework decisions and international conventions have the same legal basis and must pass through the same procedure, in that both must be approved unanimously by the Council, following a proposal from a Member State or the Commission, and after consultation of the European Parliament (Article 34(2) EU in conjunction with Article 39(1) EU) ( )

59. An analysis of the practice leads to the same outcome as a theoretical analysis, since the Member States have on many occasions replaced measures enacted via a convention with other, harmonising measures. One paradigmatic example is the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, ( ) known as the Brussels Convention, which was replaced by Council Regulation (EC) No 44/2001 of 22 December 2000 (Article 68). ( )

60. In those circumstances, it is appropriate to consider whether the format of an international convention facilitates respect for the principles of subsidiarity and proportionality, with the result that the Community legislature is obliged to use that format.

b) The principles of subsidiarity and proportionality

61. Those two principles, which are enshrined in Article 5 EC, apply in the third pillar. The principle of subsidiarity applies pursuant to Article 2 EU in fine, while the principle of proportionality applies as a mechanism to facilitate subsidiarity. ( )

62. Recital 7 in the preamble to the Framework Decision states that those principles have been respected, and rightly so, because, since the Framework Decision governs the execution, in the territory of a Member State, of arrest warrants issued by another Member State, in a common area based on mutual confidence and the reciprocal recognition of judicial decisions, that task may be dealt with more effectively by a joint approach, using the structures of the Union, rather than separately, albeit in a coordinated manner, by each Member State. Accordingly, there was a need for multilateral action, from which it follows that the principle of subsidiarity was observed.

63. The adoption of an international convention would also have been compatible with the principle of subsidiarity but the latitude accorded to the Union legislature allowed it to choose a framework decision. Moreover, the inalienable principle of proportionality did not impose the need for a different approach since, as I will explain below, experience recommended the choice of a framework decision in the light of the failure of the conventions concluded in the past. Since the requirement that the method must be appropriate to the purpose means that action taken by the Union must be restricted to fulfilling the objectives proposed, it is essential to use an instrument which imposes an obligation on the Member States to achieve the results in a specified period.

64. In other words, the freedom of action of the Community legislature was not restricted by an alleged freezing of the rank of provision which has traditionally governed the surrender of a citizen from one Member State to another, for the purposes of prosecution or the execution of a sentence, or by the principle of subsidiarity. However, even if a certain restriction of that freedom of action were accepted, a framework decision would still be a suitable measure in accordance with the principle of proportionality and the principle of the effectiveness of Community law, which, it is clear from the Pupino judgment, also applies to the third pillar.

c) The demand for greater effectiveness

65. The disputed Framework Decision is not the first attempt to improve judicial cooperation in criminal matters within the Union. The 1995 and 1996 conventions were its immediate, albeit failed, precursors. Both those conventions were adopted pursuant to Article K.3 of the Treaty on European Union, but at the moment they do not apply in all the Member States, since a number have still not ratified them. ( )

66. It was precisely the limitations inherent in international treaties that led to the inclusion of a new category in the list of sources of law, which would avoid the difficulties arising from States having freedom of choice with regard to ratification. ( ) The Tampere European Council explicitly set out the objective of converting the Union into an area of freedom, security and justice, ‘by making full use of the possibilities offered by the Treaty of Amsterdam’. ( ) The proposal of the Commission is most revealing in that it states that a framework decision was chosen for reasons of effectiveness in view of the limited success of the previous conventions. ( )

67. The Member States and the institutions are required to achieve the objectives of Article 2 EU and, therefore, they must maintain and develop the area of freedom, security and justice and are obliged to use the most appropriate tools to meet that requirement. The Member States and the institutions are bound to ensure the effectiveness of Community law in general ( ) and the effectiveness of Union law in particular, ( ) from which it follows that the Council was not only entitled but, moreover, obliged to establish a mechanism for the European arrest warrant and surrender procedure in a framework decision. ( ) Accordingly, it is not appropriate to call into question the method chosen by the Council. ( )

68. Accordingly, I propose that the Court reply to the first question by ruling that Framework Decision 2002/584 does not infringe Article 34(2)(b) EU.

B – Framework Decision 2002/584 and fundamental rights (second question)

69. Framework Decision 2002/584 concerns the rights of an individual who is the subject of an arrest warrant and specifically sets out the objective of protecting fundamental rights. In points 18 and 24 of this Opinion, I referred to that objective of the Framework Decision, an example of a move towards cooperation in criminal matters which transcends the merely bilateral relationship between States and takes account of a third dimension, namely the rights of the individual concerned. ( )

70. In that connection, Article 1(3) of the Framework Decision contains a solemn declaration which, had it not been included, would have been implicit since one of the founding principles of the European Union is respect for human rights and fundamental freedoms (Article 6(1) EU), enshrined as general principles of Community law, with the scope which they derive from the Rome Convention and the constitutional traditions common to the Member States (Article 6(2) EU). ( )

71. That consideration requires an examination of the protection of those rights in the Union and of the role assigned to the Court.

1. The protection of fundamental rights in the European Union

72. The absence of a list of fundamental rights in the founding treaties did not mean that those rights were not part of Community law. The Communities, the result of an agreement between States based on the democratic model, were created with the objective that they would be organisations governed by the rule of law. The seed was sowed in fertile ground and, over time, basic individual rights flowered as a result of the case-law of the Court of Justice.

73. That work in the field of protection has resulted in rights which are specifically recognised, such as the prohibition of discrimination with regard to pay on grounds of sex, enshrined in the current Article 141 EC, ( ) but also in others which are not rooted directly in the Community legal system, such as the inviolability of private premises, ( ) freedom of expression, ( ) and, with closer links to this reference for a preliminary ruling, the nullum crimen, nulla poena sine lege principle. ( )

74. The Court applied a simple, logical line of reasoning to the effect that rules common to the legal systems of the Member States are general principles of Community law and, as such, they must be observed, from which it follows that fundamental rights, guarantees which are shared by all, form part of those principles and must be protected. ( ) The harmonising objective in that field is beyond doubt and it is based on sources external to Community law, ( ) namely, the aforementioned general principles which are shared by the Member States, ( ) the common elements of their constitutional traditions, ( ) and the international instruments for the protection of rights, ( ) in particular the Rome Convention. ( )

75. The Community legislature gathered the evidence, inserted that case-law into Article 6 EU with effect from the Treaty of Amsterdam, and charged the Court of Justice with the protection of fundamental rights (Article 46(d) EU).

76. In 2000, an event which was difficult to ignore occurred, in the form of the proclamation of the Charter of Fundamental Rights of the European Union. That instrument does not have binding force because there is no enacting provision incorporating its subject-matter. ( ) The proclamation is set out as a mere political declaration, devoid of legal force. ( )

77. However, that assertion does not lead me to the view that nothing has changed, as though the Charter were not worth the paper it is written on. First of all, the Charter did not emerge in a vacuum, without any link to its surroundings. On the contrary, the Charter belongs to a stage in the development process which I have described, in that, as it states in the preamble, ( ) it codifies and reaffirms certain rights which are derived from the heritage common to the Member States, at national and international level, ( ) from which it follows that the Union must respect those rights and the Court must protect them, in accordance with Articles 6 EU and 46(d) EU, whatever the legal nature and force of the instrument adopted in December 2000. ( )

78. Second, the Charter features in the case-law of the Court since the Advocates General have interpreted it, thereby transcending its merely programmatic and declarative nature. ( ) Furthermore, the Court of First Instance has referred to the Charter in a number of its judgments. ( ) However, the Charter is rarely cited in the judgments of the Court of Justice, ( ) not even to refute the views put forward by the Advocates General, and it was only very recently – barely two months ago, in fact – in Parliament v Council( ) that the Court announced a change of direction, ruling that, while the Charter is not a legally binding document, its importance must be acknowledged (paragraph 38).

79. Accordingly, the Court must break its silence and recognise the authority of the Charter of Fundamental Rights as an interpretative tool at the forefront of the protection of the fundamental rights which are part of the heritage of the Member States. That undertaking must be approached with caution and vigour alike, in the full belief that, while the protection of fundamental rights is an essential part of the Community pillar, it is equally indispensable in the context of the third pillar, which, owing to the nature of its subject-matter, is capable of affecting the very heart of individual freedom, the foundation of the other freedoms.

80. In that way it might be possible to avoid repeating past misunderstandings with national courts which have been reticent about the capacity of the Community institutions to protect fundamental rights. ( )

81. The protective role is exercised in three different spheres ( ) – national, Council of Europe and European Union – which are partly coextensive and, most importantly, are imbued with the same values. There are many points of intersection and overlapping is possible, but respect for other jurisdictions does not create any insurmountable problems where there is confidence that all parties exercise their jurisdiction while fully guaranteeing the system of coexistence. A dialogue between the constitutional courts of the European Union permits the foundations to be laid for a general discussion.

82. Thus, in the present reference for a preliminary ruling, the Court must have regard to the spirit of Articles 20 and 49 of the Charter of Fundamental Rights which respectively proclaim the principle of equality before the law and the principle of legality of criminal offences, principles which are widely accepted in the constitutional frameworks of the Member States, and the Court may refer, if necessary, to the case-law of the national courts and to the judgments of the European Court of Human Rights concerning Articles 14 and 7 of the Rome Convention.

2. Article 2(2) of Framework Decision 2002/584 and the principle of equality

a) Equality before the law

83. The Arbitragehof asks whether it is compatible with that fundamental right to provide that, where a European arrest warrant is executed for any of the offences listed in Article 2(2) of the Framework Decision, unlike in the case of other offences, it is not necessary to verify the criminality of those offences in the two Member States concerned.

84. For the purposes of analysing that question, it is important to consider the structure of Article 2 of the Framework Decision with a view to clarifying the misunderstanding which is clear in the question itself, as well as in a number of the observations submitted in these proceedings. A European arrest warrant is valid provided that the offence is punishable in the issuing Member State by a sentence of a specified duration (paragraph 1), although it is possible to make surrender conditional upon the act concerned constituting an offence in the State to which the warrant is addressed (paragraph 4). However, that option is not available for the 32 offences listed in paragraph 2. ( )

85. Accordingly, I believe it is incorrect to argue that, with the exception of the offences listed in Article 2(2), the European arrest warrant system is based on the principle of double criminality. On the contrary, prosecution in the requesting Member State is the only requirement that may be stipulated, even where the Member States are authorised, either when they transpose the Framework Decision ( ) or when their courts execute an individual arrest warrant, ( ) to make execution of the warrant conditional on the act concerned being categorised as an offence under their own legal systems, an option which is not available for the offences referred to in Article 2(2). ( )

86. In those circumstances, the question referred by the Arbitragehof is addressed to the wrong authority, since the discrimination complained of may not be attributed to the Union legislature but rather to national legislation or a national judicial decision, as applicable, matters on which the Court does not have jurisdiction to rule.

87. Even if the view were taken that the Framework Decision is the root cause of the infringement because it establishes different rules depending on the nature of the offence, the question would still lack logic.

88. Approached in those terms, the question must be restricted to the abstract concept of equality before the law, leaving aside, for the moment, consideration of the uncertainty surrounding its application and the prohibition of discrimination by reason of personal and social circumstances. ( )

89. The law must treat individuals equally and may not treat comparable situations differently or make different situations subject to identical rules. However, the law has a wide latitude to differentiate between similar situations provided that an objective and reasonable justification is given. In that connection, a justification will be objective and reasonable provided that the aim and the effects sought are legitimate and there is an adequate relationship of proportionality between them, which precludes particularly onerous and disproportionate outcomes. ( )

90. It is my view that in this case the situations concerned are not comparable. First, they are concerned with acts; regard is not had to individual circumstances but rather to the nature of the offence, from which it follows that there is no subjective discrimination. Second, from the point of view of their prosecution, there is no similarity between individuals who perpetrate different acts which do not have the same degree of seriousness and have different levels of culpability; the difference in the gravity of the offences precludes their comparability.

91. My opinion would not be altered if an assessment of the consequences of the execution of a European arrest warrant (arrest, surrender, prosecution, serving a sentence) led to the conclusion that the individuals concerned are in a similar situation, whatever the offence which gives rise to their arrest, since the distinction is objective, reasonable, fair and proportionate.

92. The distinction is objective because it takes account of factors which are external to the individual, are independent, and may be measured using abstract, general criteria, thereby avoiding any selective arbitrariness. Those factors are the nature of the offence and the punishment provided for it.

93. In addition, the distinction is reasonable and justified because it is aimed at one of the objectives of the European Union, namely, combating crime in an area of freedom, security and justice (Article 2 EU, fourth indent, in conjunction with Article 29 EU). The list in Article 2(2) of the Framework Decision contains offences which, as the Spanish Government observes in its notable statement in intervention (paragraph 121), have a serious effect on legal interests in need of special protection in Europe, and there is a requirement that the Member State issuing the arrest warrant must punish those offences by sentences with a particular degree of severity. ( ) They are offences where the verification of double criminality is regarded as superfluous because the acts concerned are punished throughout the Member States. ( )

94. Finally, the proportionality of the measure is beyond doubt because the different rules are crucial for ensuring the surrender by a Member State of a person accused or convicted of a serious offence to the authorities of a judicial system which is comparable to that of the said Member State and which respects the principles of the rule of law and guarantees the fundamental rights of the individual concerned, including the rights which apply during the course of criminal proceedings.

95. I will conclude this section of the Opinion at the point where the applicant association in the main proceedings begins its observations, that is, by referring to those extremely unusual cases ( ) where a Member State surrenders an individual under Article 2(2) of the Framework Decision for an act which is not punishable in its own territory. ( ) That situation does not bring into play the principle of equality because there can be no discrimination vis-à-vis oneself, and it is important to reiterate that, for the purposes of that principle, any European arrest warrant issued with a view to detaining a person suspected or convicted in a Member State of one of the offences referred to in Article 2(2), and punished by a penalty of the severity specified in that provision, must be executed notwithstanding the personal and social circumstances of the individual concerned.

b) Equality in the application of the law

96. The order for reference puts forward another aspect of that complaint of discrimination by pointing out that there is a risk that Article 2(2) of the Framework Decision may be interpreted incorrectly owing to a lack of precision in the definitions it contains.

97. Since the question has arisen in those terms, it is clear that such a situation is not capable of placing in doubt the precision of the provision, which does not take account of future, hypothetical discrimination at the time of its application. There is an underlying confusion here between equality in the law itself and the equality which operates when the law is applied. The former, which is substantive in nature and aimed at ensuring that comparable situations are treated in the same way, is not respected when a provision makes similar situations subject to different rules without reasonable justification, whereas the latter, which is procedural in nature, is breached when an authority which is required to apply the provision in a particular instance construes that provision differently from on previous occasions with regard to similar situations. Accordingly, there is no inequality in the application of the law where conflicting judgments are handed down by courts which are acting in the legitimate exercise of their jurisdiction to determine a case, because the principle of equality does not require separate courts to reach identical conclusions. It would be ludicrous to class a law as discriminatory because it may be open to different interpretations which it may be possible to consolidate via the appropriate remedies.

98. In any event, it will be necessary to wait and see whether the disparities predicted actually arise despite the safeguards which the system establishes to prevent them. The Framework Decision provides useful mechanisms in that connection, by providing for an accurate exchange of information and direct contact between the courts involved. ( ) In addition, should any uncertainty remain about the meaning of the terms used in Article 2(2) of the Framework Decision, the procedure for referring a preliminary ruling under Article 35 EU provides a suitable channel for a uniform interpretation within the territory of the Union.

99. The risk predicted, an obstacle arising from the absence of harmonisation of the criminal laws of the Member States, does not affect the principle of equality and is connected with the requirement of certainty in legal relationships, specifically ones which arise for the purposes of enforcement between the State and individuals. That assertion leads me to the other aspect of the second question referred for a preliminary ruling.

3. Article 2(2) of the Framework Decision and the principle of legality in criminal proceedings

100. That principle, ( ) which is contained in the Latin aphorism nullum crimen, nulla poena sine lege and enshrined in Article 7(1) of the Rome Convention, and in Article 49(1) of the Charter of Fundamental Rights of the European Union, comprises, in the time-honoured words of the Spanish Constitutional Court, ( ) two levels of protection. On the first level, which is substantive in nature and absolute in scope, the protection entails the fundamental requirement that there must be a pre-existing definition of offences and the penalties applicable to them. The second level is procedural and concerns the rank of the provisions which create those offences and govern the penalties, which, in the Spanish legal system, ( ) and in the legal systems of most of the Member States, is the equivalent of a law adopted by the legislature, the custodian of popular sovereignty.

101. With regard to the argument put forward by the applicant association in the main proceedings, the Arbitragehof seeks to ascertain whether, in the light of its vagueness and lack of precision, the list of offences in Article 2(2) of the Framework Decision is compatible with the substantive protection.

102. That protection is a reflection of the principle of legal certainty in criminal law ( ) and is all the more significant because it affects fundamental values, such as individual freedom. It seeks to ensure that people are aware in advance of the types of act from which they must refrain and the consequences of committing such acts (lex previa). ( ) The protection requires a strict, unambiguous definition of offences (lex certa), so that, from the time those offences are created, and, where applicable, with the assistance of the courts, ( ) individuals know with a reasonable degree of foreseeability the acts and omissions which will give rise to criminal liability, and it precludes the provisions concerned from being extensively construed by analogy, to the detriment of the accused, and from being applied retrospectively. ( )

103. Accordingly, the principle of legality applies to substantive criminal law as a requirement which is addressed to the legislature when it defines offences and sentences, and which is addressed to the courts when they analyse and apply those definitions in criminal proceedings. ( ) In other words, it comes into play during the exercise of the State’s right to punish and during the application of acts which may be strictly construed as imposing a penalty, from which it follows that the Framework Decision cannot be said to contravene the principle because it does not provide for any punishments ( ) or even seek to harmonise the criminal laws of the Member States. Instead, the Framework Decision is confined to creating a mechanism for assistance between the courts of different States during the course of proceedings to establish who is guilty of committing an offence or to execute a sentence. That system of cooperation is subject to a number of conditions, in that the sentences and detention orders which may be imposed must be of a certain severity, and it is also possible to require that the acts concerned must be classified as offences in the Member State of the court providing the assistance, except in the case of the offences referred to in Article 2(2) ‘as they are defined by the law of the issuing Member State’.

104. Thus, the certainty required by that principle must be demanded from the substantive criminal law of the issuing Member State and, therefore, from the legislature and the courts of that State for the purposes of commencing criminal proceedings and resolving them, where appropriate, with a sentence. It is clear that a correctly drafted European arrest warrant must be based on acts which are defined in law as offences in that State. The criminal law of the Member State which executes the warrant simply has to provide the assistance requested and, if the measure transposing the Framework Decision so provides, make surrender conditional on the conduct concerned also being classified as a criminal offence by its own legislation, with the exception of the offences referred to in Article 2(2) to which the principle of legality also applies.

105. Notwithstanding the foregoing considerations, I must add that the arrest and surrender procedure entailed in the execution of a European arrest warrant is not punitive in nature. The court responsible for executing the warrant must establish that the conditions for handing over an individual who is in its jurisdiction to the issuing court have been satisfied, but the executing court is not required to hear the substance of the case, except for the purposes of the surrender proceedings, and must refrain from assessing the evidence and delivering a judgment as to guilt. That was the view of the European Court of Human Rights with regard to extradition, which it excluded from the concept of punishment in Article 7 of the Rome Convention. ( )

106. The question submitted by the Arbitragehof relates little to the principle of legality in criminal proceedings and a great deal to the fear that the concepts referred to in Article 2(2) of the Framework Decision may be interpreted differently in each Member State, with the risk of non-uniform application. I have already referred to that possibility, which is inherent in the nature of all legislative provisions, both abstract and general, in points 96 to 99 of this Opinion. Now it merely remains for me to add that, if, after relying on the methods provided for in the Framework Decision to resolve any difficulties and obtain a uniform interpretation by means of a reference for a preliminary ruling, the court executing the European arrest warrant still harbours uncertainty about the legal classification of the acts which form the basis of the warrant and about whether those acts are covered by any of the 32 offences listed in Article 2(2), then that court must rely on the provisions of Article 2(1) and (4).

107. In 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.