The Court of Justice and the Assessment of Double Criminality Under the European Arrest Warrant Framework Decision: KL

The Court of Justice provided a comprehensive interpretation of the dual criminality requirement under Framework Decision 2002/584/JHA when it handed down its judgment in the KL judgment (case C-168/21 Procureur général près la cour d’appel d’Angers ECLI:EU:C:2022:558). The case at hand raised three intertwined legal issues. Firstly, whether the double criminality criterion is fulfilled where the relevant offences in the issuing and executing Member States aim at protecting different legal interests. Secondly, whether an accused person’s refusal to surrender could be grounded on a partial lack of dual criminality. Lastly, whether the execution of a European Arrest Warrant may be denied in the event of a supervening disproportion of the penalty due to the said lack of double criminality. This Insight highlights how this ruling allows the executing authority significant flexibility when carrying out a double criminality check, with a view to minimising the applicability of the grounds for refusal in question. Comparing the KL judgment with the only existing precedent, it will be argued that the Court is increasingly oriented towards an abstract assessment of double criminality. A few final considerations will highlight the persistence of an effectiveness-oriented approach to mutual recognition and its exceptions.