Opinion of the Advocate General — ECLI:EU:C:2022:775
Date: 2022-10-13
Language of the case: German
Subject matter: Citizenship of the Union;Right of entry and residence;Immigration and asylum policy;Principles, objectives and tasks of the Treaties;Approximation of laws;Public health;Judicial cooperation in criminal matters;Area of freedom, security and justice;Fundamental rights;Charter of Fundamental Rights
Procedure: Preliminary reference - urgent procedure
Origin: Germany

Summary C-435/22 PPU – 1 
Case C-435/22 PPU 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
1 July 2022 
Referring court: 
Oberlandesgericht München (Germany) 
Date of the decision to refer: 
21 June 2022 
Parties to the proceedings: 
Generalstaatsanwaltschaft München (Germany) 
HF 
  
Subject matter of the main proceedings 
Convention implementing the Schengen Agreement – Interpol – Red notice – 
Arrest of a third-country national in a Member State on the basis of a red notice – 
Extradition request from the third country which requested the red notice – 
Conviction already handed down for the offences in question in another Member 
State – Ne bis in idem – Extradition agreement between the Member State in 
which the arrest took place and the third country which made the extradition 
request 
Subject matter and legal basis of the request 
Interpretation of EU law, Article 267(1) [TFEU] 
Question referred for a preliminary ruling 
Must Article 54 of the Convention implementing the Schengen Agreement of 
14 June 1985 between the Governments of the States of the Benelux Economic 
Union, the Federal Republic of Germany and the French Republic on the gradual 
abolition of checks at their common borders, signed on 19 June 1990 in Schengen, 
EN 
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read in conjunction with Article 50 of the Charter of Fundamental Rights of the 
European Union, be interpreted as meaning that that those provisions preclude the 
extradition of a third-country national who is not an EU citizen in terms of 
Article 20 of the TFEU by the authorities of a contracting state to that Convention 
and an EU Member State to a third country if final judgment has been passed 
against the person concerned by another Member State of the European Union for 
the same offences to which the extradition request relates and that judgment has 
been enforced and where the decision to refuse to extradite that person to the third 
country would be possible only at the cost of breaching a bilateral extradition 
treaty that exists with that third country? 
Provisions of European Union law relied on 
Article 54 of the Convention implementing the Schengen Agreement of 14 June 
1985 (‘the CISA’) 
Article 50 of the Charter of Fundamental Rights of the European Union (‘the 
Charter’) 
Provisions of national law relied on 
Extradition Treaty between the Federal Republic of Germany and the United 
States of America of 20 June 1978 (‘the Germany-US Treaty’) in conjunction with 
the Supplementary Treaty of 21 October 1986 (‘the ST 1’) and the second 
Supplementary Treaty of 18 April 2006 (‘the ST 2’) 
Article 8 of the Germany-US Treaty reads as follows: 
‘Extradition shall not be granted when the person whose extradition is requested 
has been tried and discharged or punished with final and binding effect by the 
competent authorities of the Requested State for the offence for which his 
extradition is requested.’ 
Succinct presentation of the facts and procedure in the main proceedings 
1 HF was provisionally arrested in Germany on 20 January 2022 and has been held 
in custody since then. This arrest was made on the basis of a red notice issued by 
Interpol and requested by the United States of America because HF is alleged to 
have committed various offences (conspiracy to participate in racketeer influenced 
corrupt organisations and conspiracy to commit bank fraud and fraud by means of 
telecommunication under Title 18, US Code, Section 1962 [d] and Title 18, 
US Code, Section 1349) during the period between September 2008 and 
December 2013. 
2 By letter dated 25 January 2022, the US authorities submitted the arrest warrant 
issued by the Federal District Court for the District of Columbia on 4 December 
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2018 in connection with the indictment issued by the Grand Jury in the Federal 
Court for the District of Columbia on 4 December 2018. On 17 March 2022, the 
US authorities submitted the extradition documents. 
3 At the request of the referring court and the Munich Prosecutor-General’s Office, 
the Slovenian authorities provided the following information: 
HF was sentenced to 1 year and 3 months in prison by the judgment of the 
District Court of Maribor (Slovenia) of 6 July 2012, final and binding since 
19 October 2012, for the offence of ‘Attack on information systems’ 
pursuant to Article 221(IV) in conjunction with paragraph (II) KZ-1 of the 
Slovenian Criminal Code, committed during the period between December 
2009 and June 2010; the prison sentence handed down was replaced by 
480 hours of community service. HF completed the community service by 
25 June 2015. 
By order of 23 September 2020, the District Court of Koper (Slovenia) 
rejected a request for the extradition of the requested person for the purposes 
of criminal prosecution in the United States of America as the judgment of 
the District Court of Maribor had constituted a final and binding judgment 
with regard to the facts presented in the extradition request until June 2010. 
With regard to the other facts post June 2010 set out in the extradition 
request, the District Court held that there was no suspicion that a criminal 
offence had been committed. This judgment was confirmed by the ruling of 
the High Court of Koper (Slovenia) of 8 October 2020 and is final and 
binding. 
4 The extradition request of the United States of America addressed to the 
Slovenian authorities and the facts communicated therein, on which the District 
Court and the High Court of Koper had to rule, and the documents available to the 
referring court based on the extradition request of the United States of America 
addressed to the Federal Republic of Germany, concern the same facts. 
Furthermore, the facts on which the District Court of Maribor had to rule are 
identical to the facts of the extradition request addressed to the Federal Republic 
of Germany with regard to offences committed up to June 2010. 
5 HF is a Serbian and Kosovan national. At the time of his arrest in Germany, he 
said his place of residence was in Slovenia and he was carrying a valid Serbian 
passport, a Slovenian residence permit issued on 3 November 2017 and that 
expired on 3 November 2019, and a Kosovan ID card. In 2020, his application to 
renew his Slovenian residence permit had been rejected by the Slovenian 
authorities. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
6 The decision on the admissibility of HF’s extradition to the United States of 
America in respect of the offences he was charged with until June 2010 in the 
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arrest warrant issued by the Federal District Court for the District of Columbia on 
4 December 2018 in connection with the indictment of the Grand Jury in the 
Federal Court for the District of Columbia on 4 December 2018 depends on the 
question referred. 
7 This question was not answered by the Court of Justice in the judgment of 12 May 
2021, Bundesrepublik Deutschland (Interpol red notice) (C-505/19, 
EU:C:2021:376) because the present proceedings differ as follows: HF is not an 
EU citizen and the case does not concern a provisional arrest on the basis of an 
Interpol search, but a formal extradition request sent by the United States of 
America to the Federal Republic of Germany after HF was arrested in Germany 
on the basis of an Interpol red notice. 
8 According to the bilateral agreements between the Federal Republic of Germany 
and the United States of America, the legal situation is as follows: the extradition 
of HF is based on the Germany-US Treaty in conjunction with ST 1 and ST 2. The 
United States of America have submitted the documents required pursuant to 
Article 14 of the Germany-US Treaty. 
9 According to Article 2(1)(a) of the Germany-US Treaty in conjunction with 
Article 1(a) ST 1, offences are extraditable if they are punishable under the law of 
both states. The criminal liability under US law of the conduct with which HF is 
charged arises specifically from the US federal statutes submitted, namely Title 18 
Sections 1344, 1349 1963(a), 1962, 1349. The conduct of which HF is accused is 
also punishable under German law pursuant to Paragraphs 129, 303b, 202c of the 
Strafgesetzbuch (German Criminal Code; ‘the StGB’). 
10 The offence is extraditable pursuant to Article 2(2) of the Germany-US Treaty. 
Under US law, the offences carry a prison sentence of 20 years and 30 years, 
respectively, and under German law they carry a prison sentence of between 2 and 
10 years. 
11 There are also no impediments to extradition that may make it inadmissible. In 
particular, the fact that HF has already been convicted by final and binding 
judgment of the District Court of Maribor (Slovenia) on 6 July 2012 for part of the 
offences, namely the offences committed in the period up to June 2010 which are 
the subject of the present extradition request, and that the sentence imposed has 
already been enforced, does not – without taking into account the questions 
referred – constitute an impediment to extradition pursuant to Article 8 of the 
Germany-US Treaty. 
12 According to the unambiguous wording, the principle ne bis in idem only 
precludes an extradition if the requested person has been convicted with final and 
binding effect by the competent authorities of the requested state, in this case the 
Federal Republic of Germany. 
13 Due to this specific rule under international law, an interpretation that this 
provision also covers convictions in other EU Member States is not possible. 
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Moreover, the Federal Republic of Germany and the United States of America 
agreed during the negotiations on the bilateral treaty of 1978 that judgments 
handed down in third countries do not prevent an extradition. 
14 The fact that Article 8 of the Germany-US Treaty cannot be interpreted in that 
way is also reflected in that ST 2, which adapted the bilateral Germany-US Treaty 
to the Extradition Convention between the EU and the United States of America 
of 25 June 2003, which functions as a framework treaty, does not contain a 
separate provision to extend the prohibition of double jeopardy to all EU Member 
States and that Article 8 of the Germany-US Treaty was not amended. 
15 Furthermore, according to the case-law of the Federal Constitutional Court 
(Germany), there is still no general rule of customary international law and thus 
no minimum standard under international law in the field of human rights that has 
the same quality as mandatory international law and according to which the 
principle of the prohibition of double jeopardy must also be observed with regard 
to convictions in third countries. 
16 It is uncertain, however, whether Article 50 of the Charter in conjunction with 
Article 54 of the CISA prohibit the Federal Republic of Germany from extraditing 
HF to the United States of America with regard to the offences that were ruled on 
by the District Court of Maribor (Slovenia), namely with regard to the offences of 
the present extradition request that were committed up to and including June 
2010. 
17 The conditions of Article 50 of the Charter in conjunction with Article 54 of the 
CISA have been met. These provisions are not linked to EU citizenship or 
citizenship of a Member State. 
18 According to the case-law of the Court of Justice, a provisional arrest of a person 
who is the subject of a red notice issued by Interpol at the request of a third 
country constitutes a prosecution within the meaning of Article 50 of the Charter 
in conjunction with Article 54 of the CISA (see judgment of 12 May 2021, 
Bundesrepublik Deutschland (Interpol red notice), C-505/19, EU:C:2021:376). 
Similarly, a decision on the admissibility of the extradition, whose implementation 
leads to the extradition of the requested person to the third country for 
prosecution, must be regarded as a prosecution within the meaning of Article 50 
of the Charter in conjunction with Article 54 of the CISA. 
19 The decision on the admissibility of the extradition of a third-country national 
arrested in a Member State to the United States of America also involves the 
implementation of Union law as required by Article 51 of the Charter. This is 
because it involves the Agreement on extradition between the European Union 
and the United States of America of 25 June 2003 (OJ 2003 L 181, p. 27; ‘the EU-
US Agreement’). This was transposed into German law by ST 2, and the 
fundamental rights of the Charter must therefore be taken into account when 
applying the law. 
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20 In addition, at the time of his arrest, HF had the right to freedom of movement 
pursuant to Article 20(1) of the CISA in conjunction with Article 6(1)(b) of 
Regulation (EU) 2016/399 of the European Parliament and of the Council of 
9 March 2016 on a Union Code on the rules governing the movement of persons 
across borders (Schengen Borders Code) (OJ 2016 L 77, p. 1) and Article 4(1) of 
Regulation (EU) 2018/1806 of the European Parliament and of the Council of 14. 
November 2018 listing the third countries whose nationals must be in possession 
of visas when crossing the external borders and those whose nationals are exempt 
from that requirement (OJ 2018 L 303 p. 39), as he was exempt from the visa 
requirement as a Serbian national. The fundamental rights laid down in the 
Charter must also be taken into account in the application of Article 20 of the 
CISA in conjunction with the abovementioned regulations. 
21 The question arises whether the fulfilment of the requirements of Article 50 of the 
Charter in conjunction with Article 54 of the CISA means that a third-country 
national may not be extradited to the United States of America, which is neither a 
contracting state to the CISA nor an EU Member State. 
22 In its judgment of 12 May 2021, Bundesrepublik Deutschland (Interpol red 
notice) (C-505/19, EU:C:2021:376), the Court of Justice held that Article 54 of 
the CISA and Article 21(1) of the TFEU, in each case in conjunction with 
Article 50 of the Charter, must be interpreted as not precluding the provisional 
arrest, by the authorities of a State that is a party to the CISA, of a person in 
respect of whom Interpol has published a red notice, at the request of a third State, 
unless it is established, in a final judicial decision taken in a State that is a party to 
that agreement or in a Member State, that the trial of that person in respect of the 
same acts as those on which that red notice is based has already been finally 
disposed of by a State that is a party to that agreement or by a Member State 
respectively (see paragraph 122). 
23 However, in the reasons for its decision, the Court of Justice always referred to the 
right to freedom of movement as defined by Article 21 of the TFEU of the person 
affected by the red notice in the proceedings in question, i.e. a German national. 
As a Serbian national, HF does not enjoy the right to freedom of movement under 
Article 21(1) of the TFEU as he is not an EU citizen. 
24 He does, however, enjoy the right to freedom of movement under Article 20 of the 
CISA. As a preliminary and incidental question, it must therefore be examined 
whether the principles established by the Court of Justice in its judgment of 
12 May 2021, Bundesrepublik Deutschland (Interpol red notice) (C-505/19, 
EU:C:2021:376), with regard to the right to freedom of movement within the 
meaning of Article 21 of the TFEU, also apply to the right to freedom of 
movement within the meaning of Article 20(1) of the CISA. 
25 Furthermore, the subject of the abovementioned decision was a request for 
provisional arrest on the basis of a red notice issued by Interpol. In this case, 
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however, a formal extradition request was made after the person concerned was 
arrested in a Member State on the basis of a red notice issued by Interpol. 
26 In the view of the referring court, the answer to the question referred for a 
preliminary ruling must be that Article 54 of the CISA in conjunction with 
Article 50 of the Charter does not preclude the extradition of HF to the United 
States of America in the present case since the obligation of the Federal Republic 
of Germany under international law vis-à-vis the United States of America to 
extradite the requested person must be complied with. 
27 It is true that Article 351(1) of the TFEU does not apply directly since the 
Germany-US Treaty only entered into force on 30 July 1980 pursuant to 
Article 34(2) of the Germany-US Treaty and was thus entered into between the 
Federal Republic of Germany and the United States of America after 1 January 
1958. 
28 However, the referring court shares the view expressed by legal scholars that 
Article 351(1) of the TFEU applies to agreements which, although entered into by 
a Member State after 1 January 1958, concern a subject matter that fell within the 
EU domain only later once the EU responsibilities were increased, and the shift in 
responsibility could not have been objectively foreseen by the Member State when 
the agreement was entered into. It would appear that the Court of Justice has not 
handed down a ruling on that question. 
29 The Schengen Agreement entered into force on 14 June 1985 and the CISA on 
19 September 1990 and thus well after 30 July 1980. The Schengen Agreement 
was not incorporated into EU law until the Treaty of Amsterdam in 1997 and thus 
also only after 30 July 1980. This means that it was not foreseeable for the Federal 
Republic of Germany in 1978 and 1980 that the questions of a European-wide ne 
bis in idem principle and police and judicial cooperation in the area of criminal 
law would fall within the EU domain. 
30 The later amendments in ST 1 do not change this fact. On the one hand, ST 1 does 
not constitute a fundamental renegotiation of the Germany-US Treaty and, on the 
other, ST 1 already entered into force on 11 March 1993 and thus also at a time 
when it was not yet foreseeable that such areas of law would fall within the EU 
domain. 
31 With ST 2, the Federal Republic of Germany only transposed the EU-
US Agreement. Again, this did not include a specific provision regarding the 
prohibition of double jeopardy which applies across Europe. Pursuant to 
Article 17(1) of the EU-US Agreement, further grounds for refusal provided for in 
the bilateral extradition treaties may be invoked if the EU-US Agreement does not 
provide for this. However, the Germany-US Agreement does not contain any 
additional grounds for refusal but rather provides for an obligation to extradite. 
32 Since the EU-US Agreement does not contain a provision that corresponds to 
Article 50 of the Charter in conjunction with Article 54 of the CISA, it must in 
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turn be concluded that a bilateral extradition treaty such as the Germany-
US Agreement, which only provides for a national prohibition of double jeopardy, 
must continue to be complied with. 
33 The referring court asks the Court of Justice to rule on the reference for a 
preliminary ruling in an urgent procedure under Article 107 of the Rules of 
Procedure of the Court of Justice, as HF is currently in custody (Article 267(4) 
TFEU) and the question referred concerns issues relating to Part Three of the 
TFEU.