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  • Giulia Borgna

Finally a proportionality bar in EAW proceedings? (Reference for preliminary ruling)

Updated: Jun 9, 2022

Background of the case and main questions

The French Cour de Cassation referred three preliminary questions to the CJEU that deal with double criminality and proportionality. The reference is registered as case C-168/21 at the CJEU. The text of the reference (in French) is attached below and the summary of the request is available here.

In the case at issue, KL is wanted by the Court of Appeal of Genoa for the enforcement of custodial sentences imposed for four offences committed during protests against the G8 summit in 2001. The most severe custodial sentence (10 years) was handed down for the offence of devastation and looting (Article 419 of the Italian Criminal Code), consisting of seven acts resulting from the same criminal action, ranging from the destruction by fire of vehicles to the destruction and damage of bank premises and a construction site.

With a judgment of 4 November 2020 (also enclosed below), the Chambre de l’instruction d’Angers refused to surrender KL to the Italian authorities inasmuch as it had been issued for the enforcement of the 10-year custodial sentence handed down for devastation and looting. According to the Indictment Division, two of the acts underlying the offence (i.e. destruction by fire of several vehicles and the destruction of the premises of a bank) did not constitute an offence in France. Since the seven acts were considered by the Italian court to form one indivisible whole, the condition of double criminality required that all of the indivisible acts punished under the heading of devastation and looting by Article 419 of the Italian Criminal Code be dismissed. Moreover, the breach of the public peace is an essential element of the offence of devastation and looting under Italian law, whereas that element is not envisaged in the corresponding offence under French law.

The Cour de Cassation, in appellate proceedings, now seeks clarification from the CJEU by posing numerous questions related to the scope of double criminality and the principle of proportionality.

In fact, according to the Cour de Cassation, if the principle of double criminality does not prevent a surrender in the circumstances described above, then the question arises as to the proportionality of the sentence for which the surrender is sought, taking into account only those acts in respect of which the condition of double criminality is met.


The second question on proportionality is potentially groundbreaking. It interpolates with the principle of mutual trust, which is the main reason why no proportionality bar was contemplated in the EAW FD in the first place. The furthest the EU Commission has been prepared to go is to recognize a responsibility of the issuing State to verify the proportionality of the European arrest warrant prior to its issue (ivi, § 2.4).

However, the Cour de Cassation argues that the assessment made by the issuing State cannot prevent a failure to observe the principle of proportionality when, in a case such as the present one, the arrest warrant was issued for the enforcement of a sentence imposed for a single offence made up of several acts only some of which constitute an offence under the law of the executing Member State. In such a situation, the sentence pronounced by the issuing State will be enforced in full even though surrender is precluded for some of the acts covered by that sentence. Consequently, the Cour de Cassation raises doubts as to the compatibility with the the principle that the severity of penalties must not be disproportionate to the offence (Article 49(3) of the Charter).

If the CJEU follows the argumentation of the Cour de Cassation, it will have to make fundamental reflections on the principle of mutual trust.

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Reference preliminary ruling 26.01.2021 Cour de Cassation
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