Opinion of the Advocate General — ECLI:EU:C:2020:748
Date: 2020-09-24
Language of the case: German
Subject matter: Citizenship of the Union;Right of entry and residence;Anti-discrimination;Non-discrimination on grounds of nationality
Procedure: Reference for a preliminary ruling
Origin: Germany

summary, therefore, I would conclude as follows: The judgment of 6 September 2016, Petruhhin (C‑182/15, EU:C:2016:630), was, with respect, wrongly decided and should not now be followed by this Court. Practice and experience has shown that the situation of a citizen of a Member State which does not extradite its own nationals and that of citizens of other Member States are not in fact comparable for the purpose of the application of Article 18 TFEU. These practical problems relating to potential criminal impunity are compounded by the absence of an appropriate EU legislative structure. I would therefore accordingly invite the Court to depart from the decision in Petruhhin for all the reasons stated above. 108. Irrespective of whether the Court agrees with this analysis or not, I have arrived at the conclusion that the Court should answer the questions posed by the Kammergericht Berlin (Higher Regional Court, Berlin, Germany) as follows: (1) Articles 18 and 21 TFEU must be interpreted as not precluding aUnion citizen from relying on the rights emanating from these provisions merely because he or she has only obtained such Union citizenship after he or she has taken residence in a Member State different from the Member State whose nationality he or she later obtains and has thus not exercised his or her rights to free movement after having become a Union citizen. Where (as here) the Union citizen’s right to reside in a Member State derives from EU law, then that citizen is entitled to rely on the rights guaranteed by Articles 18 and 21 TFEU. (2) The home Member State is not obliged under EU law to request that the requesting third country provide the case files for the purpose of examining whether to take over the prosecution. (3) EU law imposes no obligation on the requested State itself to take over the prosecution of a non-national who has been the subject of a third country extradition request. 1 Original language: English. 2 OJ 2002 L 190, p. 1, as amended by the Council Framework Decision 2009/299/JHA of 26 February 2009 (OJ 2009 L 81, p. 24) (‘Framework Decision 2002/584’). 3 21 Member States of the European Union have attached a declaration to the European Convention on Extradition of the Council of Europe of 13 December 1957 (European Treaty Series – No 24) declaring that they will not extradite nationals and/or defining the meaning of the term ‘nationals’ for that purpose under the European Convention on Extradition, sometimes with limitations or extensions. Thus, for example, Denmark, Finland and Sweden have extended the exception to nationals of those countries as well as those of Norway and Iceland and to people domiciled in one of those countries. Poland and Romania, on the other hand, have extended the exception to persons who have been granted asylum in their countries. Declarations and reservations are available online on the website of the Council of Europe, https://www.coe.int/en/web/conventions/search-on-treaties/-/conventions/treaty/024/declarations?p_auth=nQgwv713 (last accessed 11 September 2020). This is indicative of the prevalence of the nationality exception. For information on the German declaration, see point 11 of this Opinion. 4 The ‘nationality exception’. Note here the comments made in Deen-Ryacsmány, Z., and Judge Blekxtoon, R., ‘The Decline of the Nationality Exception in European Extradition’, European Journal of Crime, Criminal Law and Criminal Justice, Vol. 13(3), Brill Nijhof, p. 317-364, where the authors at page 322 point out that ‘The history of the non-extradition of nationals in Europe dates back to at least the 18-19th century. The dominance of civil law systems resulted in the nationality exception being a recognised rule, sanctified by constitutional provisions, national statutes and extradition agreements. Even treaties concluded with common law States – not opposed to extraditing their nationals – usually left the freedom of the parties not to extradite their citizens unaffected.’ 5 As Advocate General Bot has already pointed out in his Opinion in Petruhhin (C‑182/15, EU:C:2016:330, footnote 25), the ‘obligation to prosecute’ is the term which is most frequently used in this context. In effect, however, the obligation is actually limited to submitting the case to the prosecuting authorities. It does not involve an actual obligation to initiate prosecution. Whether proceedings will be instituted rather depends on the evidence: see generally ‘The obligation to extradite or prosecute (aut dedere aut judicare)’, Final Report of the International Law Commission 2014, paragraph 21). 6 See, e.g., the decision of the Permanent Court of International Justice of 7 September 1927, The Case of the SS Lotus, France v. Turkey, Ser. A. No 10. 7 Judgment of 6 September 2016 (C‑182/15, EU:C:2016:630) (‘Petruhhin’) 8 Paragraph 39 of Petruhhin. 9 Paragraph 50 of Petruhhin. 10 Entered into force in Germany on 1 January 1977 and in Ukraine on 9 June 1998. The European Convention on Extradition 1957 is also in force in Romania since 9 December 1997. 11 European Treaty Series No 98, in force for the Federal Republic of Germany since 6 June 1991, for Romania since 9 December 1997 and for Ukraine since 9 June 1998. The Fourth Additional Protocol to the European Convention on Extradition, Council of Europe Treaty Series No. 212 that contains further changes to Article 12 of the European Convention on Extradition 1957 is not applicable here as it has not been ratified by the Federal Republic of Germany so far and does therefore not apply as between Germany and Ukraine. 12 As per Article 5 of the Second Additional Protocol to the European Convention on Extradition of 17 March 1978, European Treaty Series No 98. 13 Declaration contained in a Note Verbale from the Permanent Representation of Germany, dated 8 November 2010, registered at the Secretariat General of the Treaty Office of the Council of Europe on 9 November 2010. 14 BGBl. 1949, p. 1, as amended by Gesetz zur Änderung des Grundgesetzes (Artikel 16) [Law amending the Basic Law (Article 16)] of 29 November 2000, BGBl. I 2000, p. 1633. 15 In the version published on 13 November 1998 (BGBl. I, p. 3322), as last amended by Article 62 of the Act of 20 November 2019 (BGBl. I, p. 1626). 16 Act on International Cooperation in Criminal Matters in the version published on 27 June 1994, BGBl. I S. 1537, as subsequently amended (‘the IRG’). 17 Paragraph 15 of the IRG provides in its second subparagraph that no order may be made for the individual sought to be detained pending extradition where the extradition appears to be prima facie unlawful. 18 Paragraph 112(1) of the Strafprozeßordnung (Code of Criminal Procedure) provides that the issuance of an arrest warrant requires ‘strong suspicion’ which can only be established on the basis of the examination of the available evidence. As has been seen above, the requested State is generally not in possession of the file to do so. 19 Judgment of 10 April 2018 (C-191/16, EU:C:2018:222). 20 Judgment of 13 November 2018 (C-247/17, EU:C:2018:898). 21 Opinion of Advocate General Bot in Petruhhin (C‑182/15, EU:C:2016:330). 22 The holding of a permanent residence permit for Latvia constituted a further ground for extraterritorial jurisdiction under the Latvian penal law; see Opinion of Advocate General Bot in Petruhhin (C‑182/15, EU:C:2016:330, point 65). 23 See points 49 to 70 of the Opinion of Advocate General Bot in Petruhhin (C‑182/15, EU:C:2016:330). 24 Opinion of Advocate General Bot in Petruhhin (C‑182/15, EU:C:2016:330, points 68 and 69). 25 Paragraph 33 of Petruhhin. 26 Paragraph 37 of Petruhhin. See also judgment of 10 April 2018, Pisciotti (C-191/16, EU:C:2018:222, paragraphs 46 and 47 and the case-law cited). 27 Paragraphs 42 and 47 of Petruhhin. 28 Paragraph 50 of Petruhhin. 29 Paragraph 50 of Petruhhin. 30 This implies that the courts of the home Member State have jurisdiction pursuant to their national law to prosecute that person for the offences committed outside that State’s territory. 31 Opinion of Advocate General Bot in Petruhhin (C‑182/15, EU:C:2016:330, point 51). 32 Decision of the Permanent Court of International Justice of 7 September 1927, The Case of the SS Lotus, France v. Turkey, Ser. A. No 10. 33 See O’Connell, D., International Law, 2nd ed., Vol. 2, Stevens, 1979, p. 602; Crawford, J., Brownlie’s Principles of Public International Law, 8th ed., Oxford University Press, 2012, p. 457; Ipsen, K., Völkerrecht, 6th ed., paragraphs 71 to 74; see also Combacau, J., and Sur, S., Droit international public, 13th ed., p. 390, who point out that the exercise of extraterritorial normative power, if neither a territorial nor a nationality link are present, is highly subsidiary and limited to very few cases. The exercise of this prescriptive principle of jurisdiction is well illustrated by Article 4(3) of the Latvian criminal law at issue in Petruhhin which allowed for the prosecution of non-nationals for ‘serious or very serious’ offences committed outside of Latvia which have been directed ‘against the interests of the Republic of Latvia or the interests of its inhabitants’: see point 67 of Opinion of Advocate General Bot in Petruhhin (C‑182/15, EU:C:2016:330). 34 Decision of the Permanent Court of International Justice of 7 September 1927, The Case of the SS Lotus, France v. Turkey, Ser. A. No 10. 35 See, e.g., Ryngaert, C., Jurisdiction in International Law, 2nd ed., Oxford University Press, 2015, at pp. 30-48; Beaulac, S., ‘The Lotus Case in Context’ in Allen, S., et al., Oxford Handbook of Jurisdiction in International Law, Oxford University Press, 2019, pp. 40-58. 36 Decision of the International Court of Justice of 14 February 2002, Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) [2002] ICJ Reports 2002, paragraph 16 of the separate opinion of President Guillaume. 37 See, to that effect, paragraph 39 of Petruhhin. 38 Points 68 and 69 of the Opinion (C‑182/15, EU:C:2016:330). 39 Opinion of Advocate General Bot in Petruhhin (C-182/15, EU:C:2016:330, point 68). 40 Paragraph 50 of Petruhhin. 41 Judgment of 13 November 2018 (C-247/17, EU:C:2018:898). 42 Opinion of Advocate General Bot in Raugevicius (C‑247/17, EU:C:2018:616). 43 Opinion of Advocate General Bot in Raugevicius (C‑247/17, EU:C:2018:616, point 55). 44 Opinion of Advocate General Bot in Raugevicius (C‑247/17, EU:C:2018:616, point 56). 45 Paragraph 50 of Petruhhin. 46 Judgment of 13 November 2018, Raugevicius (C-247/17, EU:C:2018:898, paragraph 31). 47 Judgment of 13 November 2018, Raugevicius (C-247/17, EU:C:2018:898, at paragraph 36). 48 European Treaty Series No 112 (‘Convention on the Transfer of Sentenced Persons’). 49 Judgment of 13 November 2018, Raugevicius (C-247/17, EU:C:2018:898, paragraphs 47 and 48). 50 Judgment of 13 November 2018, Raugevicius (C-247/17, EU:C:2018:898). 51 Judgment of 13 November 2018 (C‑247/17, EU:C:2018:898). 52 That is, by finding (if it be the case) that Mr Raugevicius was a long term resident of Finland and therefore entitled to be treated as if he were a Finnish citizen. 53 Paragraph 50 of Petruhhin. 54 The Commission points out that these were sought at short notice and only at staff level which means that the Member States can supplement and/or give more detail regarding their answer at any time. 55 Longer time periods will be less problematic if the person sought is already in detention for an offence other than the one he is sought for. 56 Though this is not a decisive factor due to the supremacy of EU law with regard to international treaties to which the European Union is not itself a party. See also below, point 107 of this Opinion. 57 Judgments of 20 March 1997, Hayes (C-323/95, EU:C:1997:169, paragraph 13), and paragraph 27 of Petruhhin and the case-law cited. 58 See, to that effect, judgment of 26 February 2019, Rimšēvičs and ECB v Latvia (C‑202/18 and C‑238/18, EU:C:2019:139, paragraph 57). 59 See, to that effect, judgments of 2 February 1989, Cowan (186/87, EU:C:1989:47, paragraph 19); of 24 November 1998, Bickel and Franz (C-274/96, EU:C:1998:563, paragraph 17); and of 28 April 2011, El Dridi (C-61/11 PPU, EU:C:2011:268, paragraphs 53 and 54). 60 Judgments of 2 October 2003, Garcia Avello (C-148/02, EU:C:2003:539, paragraph 22 to 24), and of 13 June 2019, TopFit and Biffi (C-22/18, EU:C:2019:497, paragraph 28 and the case-law cited). See also, to that effect, judgment of 2 April 2020, I.N. (C-897/19 PPU, EU:C:2020:262, paragraph 40). 61 Judgment of 5 May 2011, McCarthy (C-434/09, EU:C:2011:277, paragraph 45 and the case-law cited). 62 Judgment of 9 November 2000, Yiadom (C-357/98, EU:C:2000:604, paragraph 24 and the case-law cited), and, for the first part of that statement, judgment of 19 October 2004, Zhu and Chen (C-200/02, EU:C:2004:639, paragraph 31). 63 Judgment of 5 May 2011 (C-434/09, EU:C:2011:277). 64 Judgment of 5 May 2011, McCarthy (C-434/09, EU:C:2011:277, paragraph 49). 65 Judgment of 5 May 2011, McCarthy (C-434/09, EU:C:2011:277, at paragraph 46). 66 Judgment of 12 July 2005, Schempp (C-403/03, EU:C:2005:446, paragraph 25). 67 Judgments of 19 October 2004, Zhu and Chen (C-200/02, EU:C:2004:639, paragraph 19). 68 Judgment of 2 October 2003, Garcia Avello (C‑148/02, EU:C:2003:539, paragraph 27). 69 Judgment of 13 November 2018, Raugevicius (C-247/17, EU:C:2018:898, paragraph 29), see also judgment of 7 July 1992, Micheletti and Others (C-369/90, EU:C:1992:295, paragraph 19). 70 Judgment of 5 May 2011, McCarthy (C-434/09, EU:C:2011:277). 71 Judgment of 14 November 2017 (C-165/16, EU:C:2017:862). 72 See, to that effect, paragraph 42 of Petruhhin. 73 Given that the requested person is a national of the home Member State, only reverse discrimination could bring his case within the ambit of Articles 18 and 21 TFEU. In its decision in judgment of 11 July 2002, D’Hoop (C-224/98, EU:C:2002:432, paragraph 30), the Court found that ‘it would be incompatible with the right of freedom of movement were a citizen, in the Member State of which he is a national, to receive treatment less favourable than he would enjoy if he had not availed himself of the opportunities offered by the Treaty in relation to freedom of movement’. These cases concern nationals returning to their home country after having availed of their right of free movement and being treated differently to nationals who have stayed in their home country. That is not the case with regard to BY. See also, to that effect, judgment of 7 July 1992, Singh (C-370/90, EU:C:1992:296, paragraph 23). 74 Latvijas Vēstnesis, 11.05.2005, Nr 74 (3232). Available on: https://likumi.lv/ta/en/en/id/107820 (last accessed 11 September 2020). According to the Commission’s written answer to a question put by the Court, the Republic of Austria has also changed its law in a similar way by adding a new subparagraph (1a) to paragraph 31 of the Bundesgesetz über die Auslieferung und die Rechtshilfe in Strafsachen (Extradition and Mutual Assistance Act), published in BGBl. I. No. 20/2020, that entered into force on 1 June 2020. 75 Judgment of 10 April 2018, Pisciotti (C-191/16, EU:C:2018:222, paragraph 56). 76 Paragraph 50 of Petruhhin. 77 Judgment of 10 April 2018, Pisciotti (C‑191/16, EU:C:2018:222, paragraph 56). 78 Judgment of 10 April 2018 (C-191/16, EU:C:2018:222). 79 Paragraph 50 of Petruhhin. 80 Judgment of 10 April 2018 (C-191/16, EU:C:2018:222). 81 Judgment of 28 June 2018, Crespo Rey (C‑2/17, EU:C:2018:511, paragraph 34 and the case-law cited). 82 Judgment of 24 October 2013, Stoilov i Ko (C-180/12, EU:C:2013:693, paragraph 38 and the case-law cited). 83 Bundesgerichtshof, Order of 23 April 2019 (4StR 41/19), available on the Federal Court of Justice’s website: https://juris.bundesgerichtshof.de/cgi-bin/rechtsprechung/document.py?Gericht=bgh&Art=en&sid=09ff6a4c826bba36ff9531132f1210e7&nr=96151&pos=0&anz=1 (last accessed 11 September 2020). 84 See also Opinion of Advocate General Bot in Pisciotti (C-191/16, EU:C:2017:878, point 48), and judgment of 10 April 2018, Pisciotti (C-191/16, EU:C:2018:222, paragraph 49), which refer to the same reading of that provision. 85 Judgment of 13 June 2013, Kostov (C-62/12, EU:C:2013:391, paragraphs 24 and 25 and the case-law cited). 86 Counsel for BY argued that the provision is applicable to the present case. 87 Paragraph 39 of Petruhhin. 88 Judgment of 10 April 2018 (C-191/16, EU:C:2018:222). 89 Opinion of Advocate General Bot in Pisciotti (C-191/16, EU:C:2017:878, point 48). 90 Judgment of 10 April 2018, Pisciotti (C-191/16, EU:C:2018:222, paragraph 50).