Under the proposed framework decision, a judicial authority (and this need not be a judge) in one member state may issue a warrant requiring another state to obtain "objects, documents and data" to be used in criminal proceedings in the issuing state. The list of offences covered is wide: it stipulates no minimum penalty, and includes offences of "computer-related crime", "environmental crime", and "racism and xenophobia". The extent of criminalisation of such activities varies widely amongst the member states. It does not extend to a requirement to carry out new surveillance, DNA tests or interviews but such evidence can be requested if already in existence. Requests would go straight from one prosecuting authority to another instead of, as at present, going through a "political" stage involving national justice ministries and embassies. There are also strict time-limits for execution.
A state may refuse to carry out a warrant if it requires the production of self-incriminating evidence or if it may involve trying a person twice for the same offence ("ne bis in idem" or double jeopardy principle). However, the subject of an EEW cannot go to his national court to appeal against it: he would have to go to court in the country where the warrant was issued.
A main aspect of the proposal causing concern is that the legal basis for a warrant is that of the issuing state and not that of the state required to execute it. Thus the proposal, unlike the EAW, does not respect the doctrine of "dual criminality" which has hitherto been an accepted part of mutual recognition agreements on criminal matters in the EU. This principle prevents a member state from asking another to take action where, by its own criminal law, the requesting state could not do so. In this proposal, it can.
