X (Mandat d'arrêt européen contre un chanteur - Double incrimination)

On 3 March 2020, the Grand Chamber delivered its judgment in Case C-717/18, X, which has given the Court of Justice the opportunity to clarify which point in time (and therefore the relevant national law) the national courts should take as a basis in order to rule on whether the minimum maximum threshold as set out in Article 2(2) of the Framework Decision on the European Arrest Warrant (EAW) is met. According to this provision, the requirement of double criminality is waived for a series of offences, including terrorism offences, only if they are punishable, in the issuing Member State, by a custodial sentence for a maximum period of at least three years.

The case relates to an EAW for the execution of a custodial sentence issued by Spanish authorities against a Spanish rapper and composer. He had been sentenced in Spain for the offences of glorification of terrorism and humiliation of the victims of terrorism. The requested person was arrested in Belgium upon execution of an EAW issued by the Spanish National High Court (Audiencia Nacional). The EAW indicated that the offences fell under the category ‘terrorism’ and that the length of the maximum custodial sentence for the offence was three years, following an amendment to the Spanish Criminal Code in 2015. Yet the facts for which the requested person had been sentenced were committed in 2012-2013, at a time when these offences were punishable, under the Spanish Criminal Code, by a prison sentence of maximum two years.

The competent Belgian court of first instance, in its capacity as executing authority, took into account the version of the legislation that was in force at the time when the facts were committed and, as the threshold of three years was not met, assessed whether those facts were also subject to criminal sanctions in Belgium. As the dual criminality test failed, the court refused to execute the EAW. The competent Belgian prosecuting authority appealed this decision and the court of second instance lodged a request for a preliminary ruling, in order to clarify which version of the law of the issuing Member State was relevant to appreciate whether the threshold provided for in Article 2(2) of the EAW Framework Decision was met. Should the version in force at the time of the issuing the EAW be taken into account (that is, the version providing for a minimum maximum penalty of three years of imprisonment), no double criminality test should be carried out. On the contrary, if the executing authority had to base its decision on the version of the Spanish legislation that was in force at the time of the committed offences, as the Belgian court of first instance argued, the execution of the EAW would first require an assessment of double criminality. The Grand Chamber endorsed the latter approach.

First, the fact that Article 2(2) of the EAW Framework Decision uses the present indicative (‘The following offences, if they are punishable in the issuing Member State by a custodial sentence or a detention order for a maximum period of at least three years…’) is irrelevant for the legal question raised. In line with the Advocate General’s Opinion, the Court argues that the present indicative is usually used to express the mandatory nature of a provision and, in any case, does not allow to infer any indication that is relevant for assessing the conditions of application of Article 2(2).

Second, Article 2(1) of the EAW Framework Decision allows the issuing of an EAW for the purpose of enforcing a decision to convict when the sentence or detention order provides for a penalty of at least four months of imprisonment. The minimum of four months, the Court clarifies, is to be determined by looking at the sentence actually imposed in accordance with the law of the Member State applicable to the facts giving rise to that decision and ‘not to the sentence which could have been passed under the law of that Member State applicable at the date of issue of that arrest warrant’ (para 23). The same rationale – that is, the relevance of the issuing Member State’s legislation that was in force at the time of the facts for the surrender procedure – applies to Article 2(2), which provides for a minimum threshold of penalty that allows the executing authority not to carry out any dual criminality test. A different interpretation would undermine the consistent application of the two provisions.

Third, Article 8 of the EAW Framework Decision supports the stance endorsed by the Court. In particular, Article 8(1)(f) provides that the EAW form, which is included in the Annex to the EAW Framework Decision, shall mention ‘the penalty imposed, if there is a final judgment, or the prescribed scale of penalties for the offence under the law of the issuing Member State’. In turn, section (c) of that form requires to specify the ‘maximum length of the custodial sentence or detention order which may be imposed for the offence(s)’ or the ‘length of the custodial sentence or detention order imposed’. The Court argues that such phrasing, and especially the use of the term ‘imposed’, implies that the legislation that shall be evaluated by the executing authority in accordance with Article 2(2) of the EAW Framework Decision is the legislation that was in force at the time of the facts: it is such legislation – and not the legislation in force at the time when the EAW is issued – that determines which sentence has been imposed or could be imposed on the person concerned.

Fourth, the purpose and rationale of the EAW itself further support the Court’s conclusion. Since the aim of the EAW Framework Decision is to ensure as much automaticity as possible in the execution of requests for surrender, it would be unreasonable to require the executing authority to assess whether the legislation in force at the time of the facts, which is mentioned in the EAW form, has changed in the meantime. This would also create uncertainty and run counter to the requirements of foreseeability that stem from the principle of legal certainty.

Fifth, the Court warns that, should a different position be adopted, Member States would be given the untenable power to amend national legislation in a way that would allow them to ‘bring within the scope of [Article 2(2) of the EAW Framework Decision] persons who, at the date of the acts constituting the offence, could have benefitted from verification of the double criminality of the act’ (para 39).

The Court adds a final remark that seems somehow intended to assuage the concerns of Member States and judicial authorities about the effectiveness of the EAW system, which is not undermined by the present decision of the Court. Even when the threshold of three years mentioned in Article 2(2) of the EAW Framework Decision is not met, the EAW can still be executed. However, the executing authority shall first undertake the dual criminality test.

Therefore, the Court concludes that Article 2(2) of the EAW Council Framework Decision must be interpreted as meaning that, in order to ascertain whether the offence for which an EAW has been issued is punishable in the issuing Member State by a custodial sentence or a detention order for a maximum period of at least three years, as it is defined in the law of the issuing Member State, the executing judicial authority must take into account the law of the issuing Member State in the version applicable to the facts giving rise to the case in which the EAW was issued.