WRITTEN QUESTION P-1326/02

by Earl of Stockton (PPE-DE) to the Commission

(2 May 2002)

Subject: The European Arrest Warrant

Is it the opinion of the European Commission that proposals for a European Arrest Warrant, as drafted, would not cover conduct in one Member State which is not contrary to the law of that Member State?

If such conduct was illegal in another Member State, will the Commission confirm that that Member State will not be entitled to invoke the European Arrest Warrant to demand the extradition of any persons involved?

Does the Commission consider that material posted onto the Internet in one Member State, or posted abroad via international mail, is conduct occurring exclusively in that Member State?

Answer given by Mr Vitorino on behalf of the Commission

(6 June 2002)

The framework decision on the European arrest warrant yet to be adopted formally by the Council is based on the principle of mutual recognition of judicial decisions. This means that the decision made by the judicial authority of one Member State, to require the arrest and surrender of a person, should be recognized and executed in the other Member State.

To be effective mutual recognition has to diminish the scope of the double incrimination principle which, as far as extradition is concerned, allows a Member State not to surrender a person for committing acts which are not considered as criminal offences in its territory.

In the Framework decision on the European arrest warrant(1), the double incrimination principle has been excluded for a list of 32 categories of offences, when those offences are punishable, under the law of the issuing Member State, by at least three years imprisonment. This means that, when, according to the law of the issuing Member State, an act will fall under one of those 32 types of conduct and is punishable by at least three years imprisonment, the executing judicial authority shall not verify that the act is also an offence according to its national law.

When the offence is not in the list or is not punishable in the issuing Member State by at least three years imprisonment, the executing judicial authority can refuse to surrender the person if the acts which have given rise to the European arrest warrant are not considered as offences according to its own national law (article 4(1)). Nevertheless, the appreciation of double incrimination has to be made in a soft way. The executing authority shall appreciate whether the acts are offences according to its national law, but shall not consider whether the definition of the offences are exactly the same (some of the components can differ) or whether the level of punishment is comparable. On this point the European arrest warrant differs from the former extradition procedure because the requirement of a minimum penalty in the executing Member State has disappeared.

The judicial authority can only issue a European arrest warrant for the purpose of conducting a criminal prosecution if, according to its own national law, it has jurisdiction on the offence, and the acts are considered as offences punishable by at least one year imprisonment. Of course the judicial authority of a Member State will not be able to issue a European arrest warrant for something which is considered as an offence by the law of another Member State but not by its own.

In the context of illegal material posted on the Internet, it is currently for Member States' national laws to determine whether such conduct falls within their jurisdiction. Eurojust may assist in co-ordination of investigations and prosecutions involving more than one Member State.

During discussions in the Council on the Commission proposal for a Framework Decision on the sexual exploitation of children and child pornography(2), the Commission has sought to ensure that the minimum rules on jurisdiction ensure that at least one Member State will always have jurisdiction to prosecute child pornography on the Internet where material was posted from, or posted to, the territory of a Member State. The Commission has adopted the same approach in its proposal for a Framework Decision on racism and xenophobia(3). The Commission has not proposed in these instruments that such conduct should be considered as occurring exclusively in a particular Member State. Nevertheless, the issue of exclusive jurisdictional rules will be addressed by the Commission later this year in its Communication on jurisdiction the context of mutual recognition of judicial decisions in criminal matters.

It has to be noted, that the analysis of jurisdictional issues provided in this answer only applies in the context of the European arrest warrant, and that the situation is different in civil law cases.

(1) Based on the commission proposal, which is published in OJ C 332 E, 27.11.2001.

(2) OJ C 62 E, 27.2.2001.

(3) OJ C 75 E, 26.3.2002.