Procureur général près la cour d'appel d'Angers

On 14 July 2022, the Third Chamber of the Court ruled on the interpretation of the double criminality requirement and related grounds for refusal, as established by Articles 2(4) and 4(1) EAW FD, read in light of Article 49(3) of the Charter. The preliminary questions were raised by the French Court of Cassation, in proceedings aimed at the execution of an EAW issued by the Italian authorities in respect of Mr. KL. In particular, the latter had been convicted for a series of crimes, committed during the noglobal protests at the Genoa G8 summit. Amongst such crimes, he was sentenced to ten years of imprisonment for the crime of ‘devastation and looting’, a single composite offence under which the Italian courts had comprised seven conducts. The breach of public peace/public order is, according to wellsettled Italian case-law, a constituent element of this offence. Against this background, the French Court of Cassation asked the Court, first, if the dual criminality criterion is fulfilled in circumstances where the offence at the basis of the EAW has the breach of public order as a constituent element, while such an element is irrelevant for the similar offences provided in the executing State’s legal order. Secondly, the referring judge asked whether surrender may be refused, on grounds of lack of double criminality, in a case where the EAW refers to a single composite offence, and only some of the conducts comprised in that offence would constitute criminal behaviour in the executing Member State. Finally, the Court of Cassation sought to ascertain if Article 49(3) of the Charter imposes to refuse surrender in case of a supervening disproportion of the penalty due to the aforementioned partial lack of dual criminality. After stressing the importance of a restrictive interpretation of grounds for refusal, in order to foster mutual recognition thereby allowing for effective fight against impunity, the Court ruled that, first, the double criminality requirement is fulfilled – and the EAW shall be executed – where the conduct is per se punishable both in the issuing and the executing Member States, regardless of the fact that the offence requires the breach of a certain legal interest only in the issuing Member State and not in the executing one. In addition, the Court clarified that, under Articles 2(4) and 4(1) of the EAW FD read in light of Article 49(3) of the Charter, the EAW’s execution cannot be refused where the EAW refers to a composite offence and only some of the conducts comprised in it would be punishable in the executing Member State.