Key facts of the case:
Reference for a preliminary ruling — Judicial cooperation in criminal matters — Framework Decision 2002/584/JHA — European arrest warrant — Article 2(2) — Execution of a European arrest warrant — Removal of verification of the double criminality of the act — Conditions — Offence punishable by the issuing Member State by a custodial sentence for a maximum period of at least three years — Amendment of the criminal legislation of the issuing Member State between the date of the acts and the date of issue of the European arrest warrant — Version of the law to be taken into account in verifying the maximum sentence threshold of at least three years.
Outcome of the case:
On the basis of the foregoing considerations, I propose that the Court answer the question referred by the Hof van Beroep te Gent (Court of Appeal of Ghent, Belgium) as follows:
94) According to the case-law of the Court, ‘under the principle that offences and penalties must have a proper basis in law (nullum crimen, nulla poena sine lege), as enshrined in particular in the first sentence of Article 49(1) of the Charter [of Fundamental Rights of the European Union], which constitutes a specific expression of the general principle of legal certainty, no one is to be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national law or international law at the time when it was committed.’ ( 29 ) The principle of legality therefore requires EU legislation to give a clear definition of offences and the penalties which they attract. That requirement is satisfied ‘where the individual can know from the wording of the relevant provision and, if need be, with the assistance of the courts’ interpretation of it, what acts and omissions will make him criminally liable’. ( 30 ) The principle of non-retroactivity of criminal law means ‘in particular that a court cannot, in the course of criminal proceedings, impose a criminal penalty for conduct which is not prohibited by a national rule adopted before the commission of the alleged offence or aggravate the rules on criminal liability of those against whom such proceedings are brought.’ ( 31 )
100) It seems, therefore, that in accordance with the case-law of both this Court and the ECtHR, consideration of the law of the issuing Member State at the time of the issuing of the EAW, for the purposes of assessing the condition relating to the length of the penalty in Article 2(2) of the Framework Decision, would not infringe the principle of legality enshrined in Article 49 of the Charter of Fundamental Rights of the European Union, interpreted in conformity with the scope of Article 7 ECHR. This is because such an interpretation would not lead to the imposition in the criminal case of a penalty which was not provided for by the issuing Member State at the time when the offences were committed.