# C_2023054EN.01001001.xml

| 13.2.2023 | EN | Official Journal of the European Union | C 54/10 |
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13.2.2023

EN

Official Journal of the European Union

C 54/10

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Judgment of the Court (Grand Chamber) of 22 December 2022 (request for a preliminary ruling from the Oberlandesgericht München — Germany) — Proceedings relating to the extradition of S.M.

(Case C-237/21) (1)

(Reference for a preliminary ruling - Citizenship of the European Union - Articles 18 and 21 TFEU - Request sent to a Member State by a third State for the extradition of a Union citizen who is a national of another Member State and who has exercised his right to free movement in the first of those Member States - Request made for the purpose of enforcing a custodial sentence - Prohibition on extradition applied solely to own nationals - Restriction of freedom of movement - Justification based on the prevention of impunity - Proportionality)

(2023/C 54/11)

Language of the case: German

Referring court

Oberlandesgericht München

Parties to the main proceedings

Applicant: S.M.

Other party: Generalstaatsanwaltschaft München

Operative part of the judgment

Articles 18 and 21 TFEU must be interpreted as meaning that:

| — | a Member State to which a request for extradition has been made by a third State for the purpose of enforcing a custodial sentence imposed on a national of another Member State residing permanently in the first Member State, the national law of which prohibits only the extradition of its own nationals out of the European Union and makes provision for the possibility that that sentence may be enforced in its territory provided that the third State consents to it, is required by those provisions actively to seek such consent from the third State which made the extradition request, by using all the mechanisms for cooperation and assistance in criminal matters which are available to it in the context of its relations with that third State; |
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a Member State to which a request for extradition has been made by a third State for the purpose of enforcing a custodial sentence imposed on a national of another Member State residing permanently in the first Member State, the national law of which prohibits only the extradition of its own nationals out of the European Union and makes provision for the possibility that that sentence may be enforced in its territory provided that the third State consents to it, is required by those provisions actively to seek such consent from the third State which made the extradition request, by using all the mechanisms for cooperation and assistance in criminal matters which are available to it in the context of its relations with that third State;

| — | if such consent is not obtained, that first Member State is not precluded by those provisions, in such circumstances, from extraditing that Union citizen, in accordance with its obligations under an international convention, in so far as that extradition does not infringe the rights guaranteed by the Charter of Fundamental Rights of the European Union. |
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if such consent is not obtained, that first Member State is not precluded by those provisions, in such circumstances, from extraditing that Union citizen, in accordance with its obligations under an international convention, in so far as that extradition does not infringe the rights guaranteed by the Charter of Fundamental Rights of the European Union.

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(1)  OJ C 297, 26.7.2021.

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