OPINION OF ADVOCATE GENERAL

RICHARD DE LA TOUR

delivered on 14 July 2022 ( 1 )

Case C‑237/21

Generalstaatsanwaltschaft München

other party:

S.M.

(Request for a preliminary ruling

from the Oberlandesgericht München (Higher Regional Court, Munich, Germany))

(Reference for a preliminary ruling – Citizenship of the European Union – Articles 18 and 21 TFEU – Request for extradition of an EU citizen issued by a third State for the purpose of enforcing a custodial sentence – Requested Member State which prohibits the extradition of its own nationals – Restriction of freedom of movement – Justification based on the objective of preventing the risk of impunity for persons who have committed an offence – Proportionality – Obligation to extradite under an international convention)

I. Introduction

1. The present request for a preliminary ruling concerns the interpretation of Articles 18 and 21 TFEU. The request was made in the context of a request for extradition from the authorities of Bosnia and Herzegovina to the authorities of the Federal Republic of Germany in respect of S.M., a Serbian, Bosnian and Croatian national, for the purpose of enforcing a custodial sentence.

2. The request is part of by the case-law which started with the judgment of 6 September 2016 in Petruhhin, ( 2 ) relating to the extradition to third States of EU nationals who have exercised their right to free movement in EU Member States other than those of which they are nationals, where there is a rule in those Member States prohibiting the extradition of their own nationals out of the European Union. Among the cases to have been brought before the Court, it is possible to draw a distinction between, on the one hand, the cases relating to a request for extradition for the purposes of a criminal prosecution, which gave rise to the judgment in Petruhhin; and to the judgments of 10 April 2018 in Pisciotti; ( 3 ) of 2 April 2020 in Ruska Federacija; ( 4 ) and of 17 December 2020 in Generalstaatsanwaltschaft Berlin (Extradition to Ukraine); ( 5 ) and to the order of 6 September 2017, Peter Schotthöfer & Florian Steiner; ( 6 ) and, on the other hand, the case relating to a request for extradition for the purpose of enforcing a sentence, which gave rise to the judgment of 13 November 2018 in Raugevicius. ( 7 )

3. By that case-law, the Court applied, in the area of extradition, its findings in its judgment of 20 September 2001 in Grzelczyk, ( 8 ) namely that ‘Union citizenship is destined to be the fundamental status of nationals of the Member States, enabling those who find themselves in the same situation to enjoy the same treatment in law irrespective of their nationality, subject to such exceptions as are expressly provided for’. ( 9 ) That led the Court to require Member States which do not allow the extradition of their own nationals to ascertain whether there are alternatives to extradition if they receive an extradition request from a third State concerning a national of another Member State who has exercised his or her right to free movement.

4. By its request for a preliminary ruling, the referring court wishes to obtain clarification from the Court as to how the judgment in Raugevicius should be understood and how the contribution to the case-law made by that judgment can be reconciled with the obligations of the Member States under the European Convention on Extradition, signed in Paris on 13 December 1957. ( 10 )

5. In the judgment in Raugevicius, the Court ruled that Articles 18 and 21 TFEU must be interpreted as meaning that, where an extradition request has been made by a third State for an EU citizen who has exercised his or her right to free movement, not for the purpose of prosecution, but 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 imposed abroad may be served on its territory, is required to ensure that that EU citizen, provided that he or she resides permanently in its territory, receives the same treatment as that accorded to its own nationals in relation to extradition. ( 11 )

6. It should be pointed out that in the case which gave rise to the judgment in Raugevicius, the requested Member State, Finland, had made a declaration under the European Convention on Extradition which allowed it to refuse extradition not only of its own nationals but also of nationals of other States residing in its territory. Unlike the Republic of Finland, the Federal Republic of Germany made a declaration in which the definition of the term ‘nationals’, within the meaning of that Convention, was limited to nationals of that Member State. It is that difference in context which gives rise to the question from the referring court as to the application in the present case of the approach adopted by the Court in its judgment in Raugevicius, in so far as, in view of the limited scope of the declaration made by the Federal Republic of Germany under the European Convention on Extradition, a refusal by that Member State to extradite a national of another Member State who resides permanently in its territory could be contrary to that convention.

7. In order to answer that question, I will explain in the present Opinion the reasons why I consider that the judgment in Raugevicius should not be understood as imposing on the requested Member State an obligation to refuse, automatically and absolutely, to extradite a national of another Member State who resides permanently in its territory for the purpose of enforcing a sentence, contrary to the requirements under the European Convention on Extradition. The Court’s findings in that judgment rather imply, in my view, that the requested Member State is required, under Articles 18 and 21 TFEU, actively to seek to ascertain whether there is an alternative to extradition which is less prejudicial to the exercise of the right to free movement and residence enjoyed by the EU citizen who is the subject of the extradition request. If an alternative to extradition cannot be found, despite the approaches made by the requested Member State to the requesting third State, those articles cannot, in my view, be interpreted as preventing the requested Member State from extraditing that EU citizen.

II. Legal context

A. The European Convention on Extradition

8. Article 1 of the European Convention on Extradition provides: ‘The Contracting Parties undertake to surrender to each other, subject to the provisions and conditions laid down in this Convention, all persons against whom the competent authorities of the requesting Party are proceeding for an offence or who are wanted by the said authorities for the carrying out of a sentence or detention order.’

9. Article 6(1) of that convention, entitled ‘Extradition of nationals’, provides: ‘1 (a) A Contracting Party shall have the right to refuse extradition of its nationals. (b) Each Contracting Party may, by a declaration made at the time of signature or of deposit of its instrument of ratification or accession, define as far as it is concerned the term “nationals” within the meaning of this [c]onvention. …’

10. The Federal Republic of Germany made a declaration at the time of the deposit of the instrument of ratification on 2 October 1976, pursuant to Article 6 of that convention, in the following terms: ‘Extradition of Germans from the Federal Republic of Germany to a foreign country is not permitted by virtue of Paragraph 16(2), first sentence [of the Grundgesetz für die Bundesrepublik Deutschland (Basic Law for the Federal Republic of Germany) ( 12 ) of 23 May 1949] and must, therefore, be refused in every case. The term “nationals” within the meaning of Article 6, paragraph 1[(b)] of the European Convention on Extradition covers all Germans within the meaning of Paragraph 116, paragraph 1, of the Basic Law for the Federal Republic of Germany.’

B. German law

1. The Basic Law for the Federal Republic of Germany

11. Paragraph 16(2) of the Basic Law for the Federal Republic of Germany states: ‘No German may be extradited to a foreign country. The law may provide otherwise for extraditions to a Member State of the European Union or to an international court, provided that the rule of law is observed.’

12. Paragraph 116(1) of the Basic Law for the Federal Republic of Germany provides: ‘Unless otherwise provided by a law, a “German” within the meaning of this Basic Law is a person who possesses German citizenship or who has been admitted to the territory of the German Reich within the boundaries of 31 December 1937 as a refugee or expellee of German ethnic origin or as the spouse or descendant of such person.’

2. The Law on international mutual assistance in criminal matters

13. The Gesetz über die internationale Rechtshilfe in Strafsachen (Law on international mutual assistance in criminal matters) ( 13 ) of 23 December 1982, in the version applicable to the facts, ( 14 ) contains provisions on mutual assistance in enforcing foreign judgments in Germany.

14. Paragraph 48 of the IRG provides: ‘Mutual legal assistance may be provided in criminal proceedings by way of enforcement of a sentence or any other penalty imposed abroad by a final judgment …’

15. In accordance with Paragraph 57(1) of the IRG, enforcement in Germany of a sentence imposed by a foreign judgment is possible only if, and to the extent to which, the State which delivered judgment consents to it.

III. The facts in the main proceedings and the question referred for a preliminary ruling

16. On 5 November 2020, acting on the basis of the European Convention on Extradition, the authorities of Bosnia and Herzegovina requested that the Federal Republic of Germany extradite S.M. for the purpose of enforcing a six-month custodial sentence for corruption imposed by a judgment of the Municipal Court of Bosanska Krupa (Bosnia and Herzegovina) of 24 March 2017. The referring court states that the Croatian authorities were informed of the request by the German authorities.

17. S.M. is a Serbian, Bosnian and Croatian national who has lived in Germany with his wife since 2017. He has been working there since 22 May 2020 and has been released following having been detained pending extradition.

18. The Generalstaatsanwaltschaft München (Munich Public Prosecutor’s Office, Germany) requested, referring to the judgment in Raugevicius, that the extradition of S.M. be declared inadmissible.

19. According to the referring court, the validity of that request from the Munich Public Prosecutor’s Office depends upon whether Articles 18 and 21 TFEU are to be interpreted as precluding the extradition of an EU citizen even if, under the international treaties, the requested Member State is required to extradite him or her.

20. That court considers that that question was not answered in the judgment in Raugevicius since, in the case which gave rise to that judgment, the requested Member State, namely the Republic of Finland, was entitled not to extradite the person whose extradition was requested (‘the requested person’) to the third State, in the instant case, the Russian Federation. Indeed, the Republic of Finland, as provided for in Article 6(1)(a) of the European Convention on Extradition, was entitled to refuse extradition of its nationals. In accordance with the possibility provided for in Article 6(1)(b) of that convention, that Member State had chosen to define, in its declaration of accession of 12 May 1971, the term ‘nationals’ within the meaning of that convention, as ‘nationals of Finland, Denmark, Iceland, Norway and Sweden as well as aliens domiciled in these States’. Since the requested person was covered by that definition, the Republic of Finland could refuse to extradite him without infringing its international treaty obligations to the third State which had made the extradition request.

21. The referring court is now faced with a different situation under international law. In accordance with the possibility provided for in Article 6(1)(b) of the European Convention on Extradition, the Federal Republic of Germany made a declaration, at the time of the deposit of the instrument of ratification on 2 October 1976, in which the definition of the term ‘nationals’ was limited to persons having German nationality and was not extended to cover to persons residing permanently in its territory.

22. The referring court adds that the conditions laid down in the European Convention on Extradition for the extradition of S.M. have been met and that there is no obstacle to his extradition. In particular, that extradition and the acts on which it is based meet the minimum standards under international law applicable in the Federal Republic of Germany and do not infringe mandatory constitutional principles or the mandatory level of protection of fundamental rights.

23. However, that court is uncertain whether Articles 18 and 21 TFEU require S.M. not to be extradited to Bosnia and Herzegovina, given that he is not covered by the definition of ‘nationals’ within the meaning of the European Convention on Extradition, and that it would therefore not be possible for the Federal Republic of Germany to take the approach set out by the Court in its judgment in Raugevicius without infringing its obligations under that convention to Bosnia and Herzegovina.

24. The referring court also states that the custodial sentence imposed by the Municipal Court of Bosanska Krupa (Bosnia and Herzegovina) could be enforced in the Federal Republic of Germany. In so far as S.M. is already in German territory, the Convention on the Transfer of Sentenced Persons, ( 15 ) which both the Federal Republic of Germany and Bosnia and Herzegovina have ratified, is irrelevant. That enforcement is therefore governed by Paragraph 48 et seq. of the IRG and there is no requirement for the person concerned either to have German nationality or to give his or her consent.

25. Pursuant to Paragraph 57(1) of the IRG, however, enforcement in Germany of the custodial sentence imposed by the Municipal Court of Bosanska Krupa (Bosnia and Herzegovina) is possible only if, and to the extent that, the third State which delivered judgment consents to it. In that regard, the referring court states that is not so, at least at present, since the Bosnian authorities have requested that S.M. be extradited, and not that the German authorities assume responsibility for enforcing the sentence imposed on him.

26. In those circumstances, the Oberlandesgericht München (Higher Regional Court, Munich, Germany) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling: ‘Do the principles governing the application of Articles 18 and 21 TFEU established [in the judgment in Raugevicius] require that a request from a third country under the [European Convention on Extradition] seeking the extradition of an EU citizen for the purpose of enforcing a sentence is to be refused, even where the requested Member State is obliged by international law under that Convention to extradite the EU citizen, because it has defined the term “nationals” within the meaning of Article 6(1)(b) of [that] Convention as meaning that it refers only to its own nationals, not to other EU citizens?’

27. The Governments of Spain, Croatia, Lithuania and Poland and the European Commission submitted written observations. A hearing was held on 26 April 2022 at which the Munich Public Prosecutor’s Office, the Governments of Germany, Czech Republic and Spain and the Commission were heard.

IV. Analysis

28. By the question referred for a preliminary ruling, the national court asks the Court to clarify the scope of its judgment in Raugevicius in a situation where the failure to extradite the requested person would, in the view of that court, be contrary to the requested Member State’s obligation under the European Convention on Extradition to extradite that person.

29. That question relates, to a large extent, to the contextual difference between the case which gave rise to the judgment in Raugevicius and the present case as regards the obligations under the European Convention on Extradition. As stated above, that difference concerns the definition of the term ‘nationals’ within the meaning of that convention, which is more restrictive in the context of the present case, since it is limited to persons who possess German nationality, in accordance with the declaration made by the Federal Republic of Germany under Article 6(1)(b) of that convention. It follows that, in contrast to the situation which gave rise to the judgment in Raugevicius, a refusal by the Federal Republic of Germany to extradite S.M. to Bosnia and Herzegovina might be contrary to the obligations of that Member State under the European Convention on Extradition.

30. Accordingly, the referring court seeks, in essence, to ascertain whether Articles 18 and 21 TFEU are to be interpreted as meaning that, in order to grant a request for extradition made by a third State for the purpose of enforcing a sentence imposed in that State, nationals of a Member State other than the requested Member State must benefit from the provision which prohibits the requested Member State from extraditing its own nationals, despite the extradition obligation imposed on the requested Member State under the European Convention on Extradition.

31. Although that court’s question is based on the premiss that the case-law of the Court of Justice on the extradition of EU citizens who have exercised their right to free movement in a Member State other than that of which they are a national might be incompatible with the declaration made by the Federal Republic of Germany under Article 6(1)(b) of the European Convention on Extradition, according to which only German nationals are to enjoy protection against extradition, I shall show, on the contrary, that there is no such incompatibility.

32. To that end, I shall recall how the Court, while allowing an EU citizen who has exercised his or her right to free movement to be protected against extradition to a third State, has not established an automatic and absolute right for that citizen not to be extradited outside the territory of the European Union, but rather introduced an obligation for the requested Member State actively to seek to ascertain whether there is an alternative to extradition which is less prejudicial to the exercise of the right to free movement and residence enjoyed by that citizen where he or she is the subject of an extradition request. I shall conclude that the specific nature of treaty law, as evidenced by the circumstances of the main proceedings, does not put the requested Member State in a position which is at odds either with the obligation to extradite the convicted person under the European Convention on Extradition, or with its obligations under Articles 18 and 21 TFEU, as interpreted by the Court.

33. As a preliminary point, it must be recalled that, in its judgment in Petruhhin, which, as in the present case, concerned an extradition request received from a third State with which the European Union had not concluded an extradition agreement, the Court held that, although, where there is no such agreement, the rules on extradition fall within the competence of the Member States, the situations that fall within the scope of Article 18 TFEU, read in conjunction with the provisions of the FEU Treaty on European Union citizenship, include those involving the exercise of the freedom to move and reside within the territory of the Member States, as conferred by Article 21 TFEU. ( 16 )

34. It is clear from the Court’s case-law that a national of a Member State, who thereby has EU citizenship, who has exercised his or her right to free movement and who is lawfully resident in the territory of another Member State, falls within the scope of EU law. ( 17 ) Accordingly, by virtue of having EU citizenship, a national of a Member State residing in another Member State is entitled to rely on Article 21(1) TFEU and falls within the scope of the Treaties, within the meaning of Article 18 TFEU, which sets out the principle of non-discrimination on grounds of nationality. ( 18 )

35. That finding is in no way affected by the fact that the requested person also holds the nationality of the third State which made that request. ( 19 )

36. Furthermore, it is apparent from the case-law of the Court that the national rules of a Member State on extradition which give rise to a difference in treatment depending on whether the requested person is a national of that Member State or a national of another Member State, in so far as they have the consequence that nationals of other Member States who are lawfully resident in the territory of the requested Member State are not afforded the protection against extradition enjoyed by nationals of the latter Member State, are liable to affect the freedom of the nationals of other Member States to move and reside in the territory of the Member States. ( 20 ) It follows that the unequal treatment involved in permitting the extradition of an EU citizen who is a national of a Member State other than the requested Member State gives rise to a restriction on the freedom to move and reside in the territory of the Member States, within the meaning of Article 21 TFEU. ( 21 )

37. According to the Court, such a restriction can be justified only where it is based on objective considerations and is proportionate to the legitimate objective of the provisions of national law. ( 22 )

38. In that regard the Court has repeatedly held that the objective of preventing the risk of impunity for persons who have committed an offence must be regarded as a legitimate objective in EU law and may justify a measure that restricts a fundamental freedom, such as that laid down in Article 21 TFEU, provided that that measure is necessary for the protection of the interests which it is intended to guarantee and in so far as those objectives cannot be attained by less restrictive measures. ( 23 )

39. While it is possible to distinguish, among the cases before the Court, between those concerning an extradition request for the purposes of a criminal prosecution and those concerning an extradition request for the purpose of enforcing a sentence, all the Court’s judgments have a common thread, which is the introduction of an obligation on the requested Member State to ascertain whether there is an alternative to extradition which is less prejudicial to the exercise of the right to free movement and residence of the EU citizen whose extradition has been requested, before that Member State can, in the absence of any such alternative, extradite that citizen.

40. Accordingly, as regards a request for extradition for the purposes of a criminal prosecution, the Court has observed that the use of the cooperation and mutual assistance mechanisms provided for in the criminal field under EU law is, in any event, an alternative means, which is less prejudicial to the exercise of the right to free movement than extradition to a third State with which the European Union has not concluded an extradition agreement, and which also allows the objective of preventing the risk of impunity for persons who have committed a criminal offence to be effectively achieved. ( 24 )

41. The Court has therefore held that the exchange of information with the Member State of which the person requested for extradition is a national must be given priority, in order, where relevant, to afford to the authorities of that Member State the opportunity to issue a European arrest warrant for the purposes of prosecution. This is the so-called ‘Petruhhin mechanism’. Accordingly, where another Member State, in which that person lawfully resides, is sent an extradition request by a third State, that Member State is obliged to inform the Member State of which that person is a national and, where appropriate, if the latter Member State so requests, to surrender that person to it, in accordance with the provisions of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, ( 25 ) as amended by Council Framework Decision 2009/299/JHA of 26 February 2009. ( 26 )

42. However, it is clear from the case-law of the Court that there is nothing inevitable in the possibility that the ‘Petruhhin mechanism’ might preclude a request for extradition to a third State by giving priority to a European arrest warrant. ( 27 ) Indeed, the Court made that mechanism subject to a number of conditions and limits intended to ensure that its use does not undermine the objective of preventing the risk of impunity for persons who have committed an offence.

43. It follows, in particular, that, in order to protect that objective, the use of the ‘Petruhhin mechanism’ requires that the Member State of which the person who is the subject of an extradition request is a national has jurisdiction, under its national law, to prosecute that person for offences committed outside its national territory. ( 28 ) Moreover, the European arrest warrant that may be issued by the Member State of which the requested person is a national must relate, at least, to the same offences as those of which that person is accused in the extradition request. ( 29 ) Furthermore, provided that the requested Member State has informed the Member State of which the requested person is a national of all the elements of fact and law communicated by the third State within the context of the extradition request, the requested Member State may carry out the extradition of that person where a European arrest warrant has not been issued by the Member State of which the requested person is a national within a reasonable time. ( 30 )

44. Accordingly, Articles 18 and 21 TFEU must be interpreted as not precluding the requested Member State from drawing a distinction, on the basis of a rule of constitutional law, between its nationals and the nationals of other Member States and from granting the extradition of the latter for the purpose of a criminal prosecution whilst not permitting extradition of its own nationals, provided that the requested Member State has already put the competent authorities of the Member State of which the citizen is a national in a position to seek the surrender of that citizen pursuant to a European arrest warrant and the latter Member State has not taken any action in that regard. ( 31 ) The Court did not therefore create a mechanism allowing the requested Member State to refuse, in all circumstances, to extradite to a third State for the purpose of a criminal prosecution EU citizens who have exercised their right to free movement, but established a requirement for that Member State to cooperate effectively with the Member State of origin so that the latter is able to issue a European arrest warrant.

45. In short, as Advocate General Tanchev observed, the Court, in its judgment in Petruhhin, placed emphasis on ‘the availability of an alternative that guarantees against impunity to the same or similar extent as extradition’. ( 32 ) The protection against extradition which an EU citizen who has exercised his or her right to free movement and residence in the requested Member State may derive from Articles 18 and 21 TFEU therefore applies only in so far as that Member State is able to establish that there is an alternative to extradition which is equally effective in achieving the objective of preventing the risk of impunity for persons who have committed an offence. If there is no such alternative, EU law ceases to preclude the extradition of the EU citizen whose extradition is requested.

46. For the requested Member State, the logic of seeking to ascertain whether there is an alternative to extradition which is equally effective in achieving the objective of preventing the risk of impunity for persons who have committed an offence must, in my view, be the same when what is at issue is an extradition request not for the purposes of a criminal prosecution, but rather for the purpose of enforcing a custodial sentence. That must, in my view, result in the Court clarifying the scope of its judgment in Raugevicius, which to date is the only one which concerns an extradition request in that latter category.

47. The present reference for a preliminary ruling shows that any tension which exists between EU law and international law is based on a reading of the judgment in Raugevicius from which it would follow that an EU citizen who resides permanently in the requested Member State should automatically and absolutely enjoy the same protection against extradition as enjoyed by nationals of that Member State. However, that reading of the judgment in Raugevicius seems to me to be incorrect, in so far as the Court made the protection against extradition for the purposes of enforcing a sentence which must be granted to an EU citizen who resides permanently in the requested Member State subject to the condition that that citizen is able to serve his or her sentence in the territory of that Member State, in order to avoid undermining the objective of preventing the risk of impunity for the requested person.

48. In that judgment, the Court proceeded on the basis that, assuming that Mr Denis Raugevicius could be regarded as a foreign national permanently residing in Finland, for the purpose of the Finnish legislation on international cooperation for the enforcement of certain criminal law sanctions, ( 33 ) that legislation has the result Mr Raugevicius could serve in Finland the sentence which he received in Russia, provided that both Russia and Mr Raugevicius himself consent to it. ( 34 ) The Court also stated that, in view of the aim of preventing the risk of impunity, Finnish nationals, on the one hand, and on the other, nationals of other Member States who reside permanently in Finland and demonstrate a certain degree of integration into that State’s society are in a comparable situation. ( 35 )

49. The Court then ruled, on the basis of those findings, that Articles 18 and 21 TFEU require that nationals of other Member States who reside permanently in Finland and whose extradition is requested by a third country for the purpose of enforcing a custodial sentence should benefit from the provision preventing extradition from being applied to Finnish nationals and may, under the same conditions as Finnish nationals, serve their sentences in Finnish territory. ( 36 ) In other words, the Court held that nationals of other Member States who reside permanently in Finland demonstrate a degree of integration in that host Member State such that they are entitled to benefit, under the same conditions as Finnish nationals, from the rule that a sentence imposed on them in a third State may be served in the territory of the host Member State. ( 37 )

50. Furthermore, it is clear from the judgment in Raugevicius that when what is at issue is an extradition request from a third State for the purpose of enforcing a custodial sentence, the alternative to extradition, which is less prejudicial to the exercise of the right to free movement and residence of an EU citizen who resides permanently in the requested Member State, is the possibility of enforcing that sentence in the territory of that Member State. In that way, the aim of encouraging the social rehabilitation of sentenced persons after their sentence has been served converges with the aim of preventing the risk of impunity for nationals of Member States other than the requested Member State. I note in that regard that, in the operative part of its judgment in Raugevicius, the Court rules that the requirement for the requested Member State to ensure, in accordance with Articles 18 and 21 TFEU, that an EU citizen who resides permanently in its territory receives the same treatment as that accorded to its own nationals in relation to extradition is subject to the condition that that Member State must make provision for the possibility that a custodial sentence imposed in a third State may be served in the territory of that Member State. ( 38 )

51. Where, as was the case under Finnish law, the law of the requested Member State provides that custodial sentences imposed in the requesting third State may be enforced in the territory of the requested Member State only with the consent of that third State, ascertaining whether there is an alternative to extradition which is equally effective in achieving the objective of preventing the risk of impunity for persons who have committed an offence is possible only on the condition that third State has actually given such consent. The approach taken by the Court in its judgment in Raugevicius must therefore, in my view, be understood as intrinsically and necessarily containing such a condition so that the objective of preventing the risk of impunity for the requested person can be achieved in a manner which is genuine and effective.

52. In that regard, it must be stated that the requested Member State, which protects its own nationals against extradition, cannot remain passive when it receives a request for extradition for the purpose of enforcing a sentence concerning an EU citizen who resides permanently in its territory. Where the national law of that Member State provides that a custodial sentence imposed by a third State may be served in its territory provided that third State consents to it, Articles 18 and 21 TFEU require the requested Member State actively to seek the consent of that third State, by using, to that end, all the mechanisms for cooperation and mutual assistance in criminal matters which are available to it in the context of its relations with that third State.

53. If, despite the use of those mechanisms, the requesting third State does not consent to the custodial sentence in question being served in the territory of the requested Member State, Articles 18 and 21 TFEU do not prevent that Member State from extraditing the requested person, in accordance with its obligations under the European Convention on Extradition. ( 39 )

54. The obligation imposed on the requested Member State by Articles 18 and 21 TFEU to ensure that an EU citizen who resides permanently in its territory receives the same treatment as its own nationals as regards protection against extradition is thus limited where, in the absence of the requesting third State’s consent, the custodial sentence imposed in that third State cannot be enforced in the territory of the requested Member State. The resulting difference in treatment between those two categories of nationals is, in such a situation, justified by the objective of combating the impunity of persons who have committed an offence.

55. Such an approach would prevent any conflict between the obligations incumbent on the requested Member State under EU law and those incumbent on that Member State under the European Convention on Extradition. Indeed, in the event that the requesting third State consents to the custodial sentence in question being enforced in the territory of the requested Member State, the request for extradition it has made lapses. Otherwise, EU law does not prevent the requested Member State from extraditing the requested person after it has actively sought to obtain the consent of the requesting third State. ( 40 ) That approach thereby helps to guarantee effective international cooperation based on a relationship of trust with third States in the prosecution of offences.

56. It is in the light of that analysis that it is necessary to determine whether, in circumstances such as those at issue in the main proceedings, the Federal Republic of Germany is required, under EU law, to refuse the request to extradite S.M. to Bosnia and Herzegovina, even though it is not able to put forward such a refusal to that third country under Article 6(1) of the European Convention on Extradition.

57. In that regard, it must be stated that enforcement in German territory of the sentence imposed in Bosnia and Herzegovina against S.M. appears to be possible under German law. ( 41 ) Indeed, it is clear from Article 48 and Article 57(1) of the IRG that a sentence imposed abroad may be served in German territory if the third State in which that sentence was imposed consents to that. The sentence S.M. received in Bosnia and Herzegovina could therefore be served in German territory, in so far as Bosnia and Herzegovina consents to that.

58. The implementation of an alternative to extradition which is less prejudicial to the exercise of S.M.’s right to free movement and residence, is therefore, in those circumstances, subject to consent being obtained from Bosnia and Herzegovina.

59. The competent German authorities are required, under Articles 18 and 21 TFEU, to apply all the mechanisms for cooperation and mutual assistance in criminal matters which are available to them in the context of their relations with that third State in order to secure the latter’s consent to the custodial sentence imposed in that third State being enforced in German territory. Those authorities would thus be acting in a manner which is less prejudicial to the exercise of S.M.’s right to freedom of movement and residence, while avoiding, as far as possible, the risk that, without enforcement of the sentence, the offence giving rise to the conviction will remain unpunished. ( 42 ) At the same time, those authorities would be promoting the objective of the social rehabilitation of the convicted person after he has served his sentence. ( 43 )

60. It follows from the foregoing that if Bosnia and Herzegovina were to consent to the sentence imposed on S.M. being enforced in German territory, the original request for extradition would lapse and be replaced by a request to assume responsibility for the enforcement of that sentence in German territory. The Federal Republic of Germany would then no longer be required, under the European Convention on Extradition, to extradite S.M. to Bosnia and Herzegovina.

61. If, on the other hand, Bosnia and Herzegovina were not to consent to the sentence imposed on S.M. being enforced in German territory, the German authorities would have no alternative to extradition which is equally effective in achieving the objective of preventing the risk of impunity for that EU citizen. Consequently, Articles 18 and 21 TFEU would not prevent S.M. from being extradited to that third State, as provided for in the European Convention on Extradition. ( 44 )

62. I would point out, in conclusion, that Articles 18 and 21 TFEU should not, in my view, be interpreted as meaning that, when seeking an alternative to extradition which is less prejudicial to the exercise of the right to freedom of movement and residence enjoyed by an EU citizen, the requested Member State is forced to amend the declaration it has made pursuant to Article 6(1)(b) of the European Convention on Extradition so that nationals from other Member States who reside permanently in the territory of that Member State in all cases enjoy the same protection as that granted to its own nationals. The hearing which took place in that connection before the Court revealed, moreover, that the possibility of such an amendment being made appeared legally questionable. ( 45 ) Furthermore, as I have already indicated, the Court does not appear to me to interpret Articles 18 and 21 TFEU as requiring a requested Member State which protects its own nationals against extradition to guarantee such protection automatically and absolutely to nationals of other Member States. Rather, the Court interprets those articles as obliging the requested Member State to use the mechanisms for cooperation and mutual assistance in criminal matters which are available to it, according to which, what is involved is a request for extradition for the purpose of a criminal prosecution or for the purposes of enforcing a sentence with the Member State of which the requested person is a national or even with the requesting third State, in order actively to seek to ascertain whether there is an alternative to extradition which would be equally effective in achieving the objective of preventing the impunity of the requested person.

V. Conclusion

63. In the light of all the foregoing considerations, I propose that the Court answer the question referred by the Oberlandesgericht München (Higher Regional Court, Munich, Germany) for a preliminary ruling as follows: Where a request for extradition has been made for the purpose of enforcing a custodial sentence imposed on an EU citizen who resides permanently in the territory of the requested Member State, Articles 18 and 21 TFEU must be interpreted as not precluding that 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 imposed abroad may be served in its territory provided that the requesting third State consents to it, from extraditing that EU citizen, in accordance with its obligations under an international convention, where it cannot actually assume responsibility for enforcing that sentence. Accordingly, the requested Member State may proceed with that extradition only where, after having fulfilled its obligation under Articles 18 and 21 TFEU actively to seek the consent of the requesting third State by using, to that end, all the mechanisms for cooperation and mutual assistance in criminal matters which are available to it in the context of its relations with that third State, the latter does not consent to the sentence in question being served in the territory of the requested Member State.

( 1 ) Original language: French.

( 2 ) C‑182/15, EU:C:2016:630; ‘the judgment in Petruhhin’.

( 3 ) C--191/16, EU:C:2018:222; ‘the judgment in Pisciotti’.

( 4 ) C‑897/19 PPU, EU:C:2020:262; ‘the judgment in Ruska Federacija’.

( 5 ) C‑398/19, EU:C:2020:1032; ‘the judgment in Generalstaatsanwaltschaft Berlin (Extradition to Ukraine)’.

( 6 ) C‑473/15, EU:C:2017:633.

( 7 ) C‑247/17, EU:C:2018:898; ‘the judgment in Raugevicius’.

( 8 ) C‑184/99, EU:C:2001:458.

( 9 ) Paragraph 31 of that judgment.

( 10 ) ‘The European Convention on Extradition’.

( 11 ) See the judgment in Raugevicius (paragraph 50 and the operative part).

( 12 ) BGBl 1949 I, p. 1; ‘the Basic Law for the Federal Republic of Germany’.

( 13 ) BGBl. 1982 I, p. 2071.

( 14 ) In the version published on 27 June 1994 (BGBI. 1994 I, p. 1537), as last amended by Article 1 of the Law of 23 November 2020 (BGB1. 2020 I, p. 2474); ‘the IRG’.

( 15 ) Council of Europe Convention on the Transfer of Sentenced Persons, which opened for signature in Strasbourg on 21 March 1983, ETS No 112.

( 16 ) See, inter alia, the judgment in Petruhhin (paragraph 30 and the case-law cited), and the judgment in Generalstaatsanwaltschaft Berlin (Extradition to Ukraine) (paragraph 28).

( 17 ) See, inter alia, the judgment in Generalstaatsanwaltschaft Berlin (Extradition to Ukraine) (paragraph 29 and the case-law cited).

( 18 ) See, inter alia, the judgment in Generalstaatsanwaltschaft Berlin (Extradition to Ukraine) (paragraph 30 and the case-law cited).

( 19 ) See, inter alia, the judgment in Generalstaatsanwaltschaft Berlin (Extradition to Ukraine) (paragraph 32 and the case-law cited).

( 20 ) See, inter alia, the judgment in Raugevicius (paragraph 28 and the case-law cited), and the judgment in Generalstaatsanwaltschaft Berlin (Extradition to Ukraine) (paragraph 39 and the case-law cited).

( 21 ) See, inter alia, the judgment in Raugevicius (paragraph 30 and the case-law cited), and the judgment in Generalstaatsanwaltschaft Berlin (Extradition to Ukraine) (paragraph 40 and the case-law cited).

( 22 ) See, inter alia, the judgment in Raugevicius (paragraph 31 and the case-law cited), and the judgment in Generalstaatsanwaltschaft Berlin (Extradition to Ukraine) (paragraph 41 and the case-law cited).

( 23 ) See, inter alia, the judgment in Raugevicius (paragraph 32 and the case-law cited), and the judgment in Generalstaatsanwaltschaft Berlin (Extradition to Ukraine) (paragraph 42 and the case-law cited).

( 24 ) See, in particular, the judgment in Ruska Federacija (paragraph 69 and the case-law cited).

( 25 ) OJ 2002 L 190, p. 1.

( 26 ) OJ 2009 L 81, p. 24. See, also, the judgment in Generalstaatsanwaltschaft Berlin (Extradition to Ukraine) (paragraph 43 and the case-law cited).

( 27 ) See, inter alia, the judgment in Pisciotti (paragraph 54 and the case-law cited).

( 28 ) See, inter alia, the judgment in Generalstaatsanwaltschaft Berlin (Extradition to Ukraine) (paragraph 43 and the case-law cited).

( 29 ) See, inter alia, the judgment in Generalstaatsanwaltschaft Berlin (Extradition to Ukraine) (paragraph 44 and the case-law cited). The Court’s case-law is thus guided by its desire ‘to avoid a paradox, namely that the consolidation of the European area of criminal justice goes hand in hand with the reinforcement of impunity, even though, as was emphasised in the judgment in Petruhhin (paragraphs 36 and 37), the European Union offers its citizens an area of freedom, security and justice without internal frontiers, in which the free movement of persons is ensured in conjunction with appropriate measures with respect to external border controls and the prevention and combating of crime’: see Lenaerts, K., ‘L’extradition d’un citoyen de l’Union européenne vers un pays tiers à l’heure de la consolidation de l’espace pénal européen’, Sa Justice – L’Espace de Liberté, de Sécurité et de Justice – Liber amicorum en hommage à Yves Bot’, Bruylant, Brussels, 2022, p. 383 and 384.

( 30 ) See, inter alia, the judgment in Generalstaatsanwaltschaft Berlin (Extradition to Ukraine) (paragraphs 53 to 55). While the Court has held that, where a European arrest warrant is not issued by the Member State of which the requested person is a national, the requested Member State may carry out his or her extradition, it may do so only if it has verified, as required by the Court’s case-law, that that extradition will not prejudice the rights referred to in Article 19 of the Charter of Fundamental Rights of the European Union (paragraph 45 of this judgment and the case-law cited).

( 31 ) See the judgment in Pisciotti (paragraph 56).

( 32 ) See the Opinion of Advocate General Tanchev in Ruska Federacija (C‑897/19 PPU, EU:C:2020:128, point 100).

( 33 ) See the judgment in Raugevicius (paragraph 41).

( 34 ) See the judgment in Raugevicius (paragraph 42).

( 35 ) See the judgment in Raugevicius (paragraph 46). However, the Court left it to the referring court to establish whether Mr Raugevicius fell within that category of nationals of other Member States In my view, the same must apply to the question whether, in the present case, S.M. can be regarded as residing permanently in Germany.

( 36 ) See the judgment in Raugevicius (paragraph 47).

( 37 ) See Lenaerts, K., ‘L’extradition d’un citoyen de l’Union européenne vers un pays tiers à l’heure de la consolidation de l’espace pénal européen’, Sa Justice – L’Espace de Liberté, de Sécurité et de Justice – Liber amicorum en hommage à Yves Bot’, Bruylant, Brussels, 2022, p. 386.

( 38 ) See the judgment in Raugevicius (paragraph 50 and the operative part).

( 39 ) I would note that that presupposes that the requested Member State has already ascertained that such extradition will not infringe the rights referred to in Article 19 of the Charter of Fundamental Rights.

( 40 ) In so far as the solution I suggest seems capable of neutralising an incompatibility between EU law and the European Convention on Extradition, Article 351 TFEU, although referred to at the hearing, does not appear to be relevant to respond to the present question submitted for a preliminary ruling.

( 41 ) I would note that, according to the referring court, in so far as S.M. is already in German territory, the Convention on the Transfer of Sentenced Persons is not relevant.

( 42 ) See the Opinion of Advocate General Bot in Raugevicius (C‑247/17, EU:C:2018:616, point 82).

( 43 ) As the Court has already pointed out, the social rehabilitation of the EU citizen in the State in which he or she has become genuinely integrated is not only in his or her interest but also in that of the European Union in general: see, inter alia, judgment of 17 April 2018, B and Vomero (C‑316/16 and C‑424/16, EU:C:2018:256, paragraph 75 and the case-law cited.)

( 44 ) In that regard, it should be borne in mind that, in view of the fact that the content of the declaration made by the Republic of Finland differs from that of the declaration made by the Federal Republic of Germany, pursuant to Article 6(1)(b) of the European Convention on Extradition, as regards the definition of the term ‘nationals’ within the meaning of that convention, the latter Member State does not have the same room for manoeuvre as the former as regards the possibility of refusing to extradite an EU citizen who resides permanently in its territory.

( 45 ) It is clear from the wording of Article 6(1)(b) of the European Convention on Extradition that the declaration is to be made at the time of signature or of deposit of the instrument of ratification or accession, without any provision for amending the declaration at a later stage. Furthermore, amending that declaration to extend the protection against extradition to categories of persons other than nationals of the State in question could defeat the purpose of the European Convention on Extradition.