62021CJ0237_RES
Case C‑237/21
S.M.
v
Generalstaatsanwaltschaft München
(Request for a preliminary ruling from the Oberlandesgericht München)
Judgment of the Court (Grand Chamber), 22 December 2022
(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)
Citizenship of the Union – Provisions of the Treaty – Scope ratione personae – National of a Member State who also holds the nationality of a third State – Included
(Arts 18 and 21 TFEU)
(see paragraph 31)
Citizenship of the Union – Right to move and reside freely within the territory of the Member States – Request addressed to a Member State by a third State for the extradition of a Union citizen, a national of another Member State who has exercised his right to free movement in the first Member State – Extradition request for the purpose of enforcing a custodial sentence – Prohibition on extradition applied solely to nationals of the requested Member State – Restriction on the free movement of Union citizens residing permanently in the requested Member State – Justification based on the prevention of impunity – Proportionality – Requested Member State allowing a sentence handed down abroad to be served in its territory – Obligation to ensure that Union citizens residing permanently in its territory are given the opportunity to serve their sentence in its territory under the same conditions as its own nationals
(Arts 18 and 21 TFEU)
(see paragraphs 33-36, 39-42)
Citizenship of the Union – Right to move and reside freely within the territory of the Member States – Request addressed to a Member State by a third State for the extradition of a Union citizen, a national of another Member State who has exercised his right to free movement in the first Member State – Extradition request for the purpose of enforcing a custodial sentence – Requested Member State prohibiting the extradition of its own nationals for the purpose of enforcing a sentence and allowing such a sentence, handed down abroad, to be served in its territory – Possible non-compliance of a refusal to extradite with the obligations of the requested Member State under the European Convention on Extradition – No automatic and absolute right for the requested person not to be extradited out of the European Union
(Arts 18 and 21 TFEU)
(see paragraph 47)
Citizenship of the Union – Right to move and reside freely within the territory of the Member States – Request addressed to a Member State by a third State for the extradition of a Union citizen, a national of another Member State who has exercised his right to free movement in the first Member State – Extradition request for the purpose of enforcing a custodial sentence – Requested Member State prohibiting the extradition of its own nationals for the purpose of enforcing a sentence and allowing such a sentence, handed down abroad, to be served in its territory, subject to the third State’s consent – Obligation for that Member State actively to seek such consent by using the available mechanisms for cooperation and assistance in criminal matters
(Arts 18 and 21 TFEU)
(see paragraphs 48-50, 56, operative part)
Citizenship of the Union – Right to move and reside freely within the territory of the Member States – Request addressed to a Member State by a third State for the extradition of a Union citizen, a national of another Member State who has exercised his right to free movement in the first Member State – Extradition request for the purpose of enforcing a custodial sentence – Requested Member State prohibiting the extradition of its own nationals for the purpose of enforcing a sentence and allowing such a sentence, handed down abroad, to be served in its territory, subject to the third State’s consent – Right for the requested Member State to extradite a Union citizen residing permanently in its territory in the absence of the third State’s consent – Condition – Obligation to verify protection of the guarantees provided for in Article 19 of the Charter of Fundamental Rights of the European Union
(Arts 18 and 21 TFEU; Charter of Fundamental Rights of the European Union, Art. 19)
(see paragraphs 53-55, 56, operative part)
Résumé
S.M., who has Croatian, Bosnian and Serbian nationality, has lived in Germany since 2017 and has been working there since 2020. In November 2020, the authorities of Bosnia and Herzegovina requested that the Federal Republic of Germany extradite S.M. for the purpose of enforcing a custodial sentence that was imposed on him by a Bosnian court.
The Generalstaatsanwaltschaft München (Munich Public Prosecutor’s Office, Germany) applied, referring to the judgment in Raugevicius, (
1
) for the extradition of S.M. to be declared inadmissible.
According to the Oberlandesgericht München (Higher Regional Court, Munich, Germany), which is the referring court, the validity of that application depends on whether Articles 18 and 21 TFEU are to be interpreted as providing for the non-extradition of a Union citizen even if, under the international treaties, the requested Member State (
2
) is required to extradite that Union citizen.
That question was not answered in the judgment in Raugevicius, since, in the case which gave rise to that judgment, the requested Member State was authorised, under the international treaties applicable, not to extradite the Lithuanian national in question out of the European Union. In the present case, however, Germany is under an obligation to Bosnia and Herzegovina to extradite S.M. pursuant to the European Convention on Extradition, signed in Paris on 13 December 1957. In accordance with Article 1 of that convention, Germany and Bosnia and Herzegovina are required to surrender to each other persons who are wanted by the judicial authorities of the requesting State for the carrying out of a sentence. In that regard, the declaration made by Germany under Article 6 of that convention, concerning the protection of its ‘nationals’ against extradition, restricts that term solely to persons possessing German citizenship.
Thus, the Court of Justice did not address in the judgment in Raugevicius the question whether the need to contemplate measures that are less restrictive than extradition may mean that the requested Member State infringes its obligations under international law.
The referring court therefore asks the Court about the interpretation of Articles 18 and 21 TFEU. It asks, in essence, whether, where a request for extradition has been made to a Member State 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, Articles 18 and 21 TFEU preclude that first Member State from extraditing that Union citizen, in accordance with its obligations under an international convention, if it cannot actually assume responsibility for enforcing that sentence in the absence of such consent.
In its judgment, the Court replies that Articles 18 and 21 TFEU must be interpreted as meaning that:
–
the requested Member State is, in such circumstances, required by those provisions actively to seek consent from the third State, which made the extradition request, for the sentence imposed on the national of another Member State, residing permanently in the requested Member State, to be enforced in the latter’s territory, 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;
–
in the absence of such consent, the requested 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. (
3
)
Findings of the Court
In the first place, the Court recalls that, in the judgment in Raugevicius, which, like the case in the main proceedings, concerned an extradition request from a third State which had not concluded an extradition agreement with the European Union, it held that although, in the absence of EU legal provisions on the extradition of nationals of Member States to third States, Member States have the power to adopt such provisions, that power must be exercised in accordance with EU law and, in particular, with Article 18 and Article 21(1) TFEU.
As a Croatian national who is lawfully resident in Germany, S.M. is entitled, as a Union citizen, to rely on Article 21(1) TFEU and falls within the scope of the Treaties, within the meaning of Article 18 TFEU. Holding also the nationality of the third country which made the extradition request cannot prevent him from asserting the rights and freedoms conferred by Union citizenship, in particular those guaranteed by Articles 18 and 21 TFEU.
In the second place, the Court notes that a Member State’s rules on extradition which give rise, as in the main proceedings, to different treatment, depending on whether the requested person is a national of that Member State or of another Member State, are liable to affect the freedom of movement and residence of nationals of other Member States who are lawfully resident in the territory of the requested State, in so far as they have the consequence that such nationals are not afforded the protection against extradition reserved for nationals of the latter Member State.
Consequently, in a situation such as that in the main proceedings, the unequal treatment involved in permitting the extradition of a national of a Member State other than the requested Member State constitutes a restriction on that freedom, which can be justified only where it is based on objective considerations and is proportionate to the legitimate objective of national law.
The legitimate objective of averting the risk that persons who have committed an offence should go unpunished may justify a measure that restricts the freedom laid down in Article 21 TFEU, provided that that measure is necessary for the protection of the interests which it is intended to secure and those objectives cannot be attained by less restrictive measures.
In the case of an extradition request for the purpose of enforcing a custodial sentence, the possibility, where available under the law of the requested Member State, of the sentence to which the extradition request relates being enforced in the territory of the requested Member State constitutes an alternative to extradition which is less prejudicial to the exercise of the right to free movement and residence of a Union citizen who is permanently resident in that Member State. Therefore, under Articles 18 and 21 TFEU, such a national of another Member State, residing permanently in the requested Member State, should be able to serve a sentence in the territory of that Member State under the same conditions as nationals of that Member State.
In the third place, the Court points out, however, that the case-law arising from the judgment in Raugevicius did not establish an automatic and absolute right for Union citizens not to be extradited out of the European Union. The Court also states that, where a national rule introduces, as in the case in the main proceedings, a difference in treatment between nationals of the requested Member State and Union citizens who reside there permanently, by prohibiting only the extradition of the former, that Member State is obliged actively to seek to ascertain whether there is an alternative to extradition that is less prejudicial to the exercise of the rights and freedoms which such Union citizens derive from Articles 18 and 21 TFEU, when they are the subject of an extradition request that has been issued by a third State.
Thus, where the application of such an alternative to extradition consists in Union citizens who reside permanently in the requested Member State being able to serve their sentence in that Member State under the same conditions as nationals of that Member State, but such application is subject to the consent of the third State which made the extradition request, Articles 18 and 21 TFEU require the requested Member State actively to seek the consent of that third State, 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 that third State consents to the sentence being enforced in the territory of the requested Member State, that Member State will be in a position to allow the Union citizen whose extradition has been requested and who resides permanently in its territory to serve in that Member State the sentence that was imposed on that Union citizen in the third State which made the extradition request, and to ensure that that Union citizen is treated in the same way as that Member State’s own nationals.
In such a case, that alternative to extradition could also allow the requested Member State to exercise its powers in accordance with its contractual obligations to that third State. The consent of that third State to the full sentence referred to in the extradition request being enforced in the requested Member State could render the execution of that request superfluous.
If, on the other hand, the consent of that third State is not obtained, the alternative to extradition required by Articles 18 and 21 TFEU could not be applied. In that situation, that Member State can extradite the person concerned in accordance with its obligations under the European Convention on Extradition, since a refusal to extradite would not enable the risk of that person going unpunished to be averted.
In that case, since the extradition of the person concerned constitutes, in the light of that objective, a necessary and proportionate measure, the restriction of the right to movement and residence stemming from extradition for the purpose of enforcing a sentence is justified. Nevertheless, the requested Member State must check that that extradition will not undermine the protection afforded by Article 19(2) of the Charter against any serious risk of being subjected to the death penalty, torture or other inhuman or degrading treatment or punishment in the third State which made the extradition request.
(
1
)	In the judgment of 13 November 2018, Raugevicius (C‑247/17, EU:C:2018:898; ‘the judgment in Raugevicius’), the Court interpreted Article 18 TFEU (which sets out the principle of non-discrimination on grounds of nationality) and Article 21 TFEU (which guarantees, in paragraph 1, the right to move and reside freely within the territory of the Member States) as meaning that, where an extradition request has been made by a third State for a Union citizen who has exercised his or her right to free movement, for the purpose of enforcing a custodial sentence, the requested Member State, whose national law prohibits the extradition of its own nationals out of the European Union for the purpose of enforcing a sentence and makes provision for the possibility that such a sentence pronounced abroad may be served in its territory, is required to ensure that that Union citizen, provided that he or she resides permanently in the territory of the Member State in question, receives the same treatment as that accorded to its own nationals in relation to extradition (paragraph 50 and the operative part).
(
2
)	The Member State to which an extradition request was submitted.
(
3
)	‘The Charter’.