Romano Pisciotti v Bundesrepublik Deutschland.
Date: 2018-04-10
33


In addition, it should be noted that, in the judgment of 6 September 2016, Petruhhin (C‑182/15, EU:C:2016:630, paragraph 30), concerning a request for extradition 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 TFEU on citizenship of the Union, include those involving the exercise of the freedom to move and to reside within the territory of the Member States, as conferred by Article 21 TFEU.
43


Accordingly, the application by a Member State, on the basis of Article 17(1) or (2) of the EU-USA Agreement, of a rule refusing extradition laid down in a bilateral treaty between a Member State and the United States of America, such as Article 7(1) of the Germany-United States Extradition Treaty, or of a provision of national law, such as Article 16 of the Basic Law, according to which no German is to be extradited, must comply with the TFUE, in particular with Articles 18 and 21 thereof.
44


In that regard, the Court has held that national rules of a Member State on extradition which give rise to a difference in treatment depending on whether the person concerned is a national of that Member State or a national of another Member State, in so far as they result in nationals of other Member States who have moved to the requested Member State not being granted the protection against extradition enjoyed by nationals of the latter Member State, are liable to affect the freedom of nationals of other Member States to move within the European Union (see, to that effect, judgment of 6 September 2016, Petruhhin, C‑182/15, EU:C:2016:630, paragraph 32).
45


It follows that, in a situation such as that at issue in the main proceedings, unequal treatment which allows the extradition of a Union citizen who is a national of a Member State other than the requested Member State, such as Mr Pisciotti, gives rise to a restriction of freedom of movement, within the meaning of Article 21 TFEU (see, to that effect, judgment of 6 September 2016, Petruhhin, C‑182/15, EU:C:2016:630, paragraph 33).
46


Such a restriction must be based on objective considerations and must be proportionate to the legitimate objective pursued (see, inter alia, judgments of 12 May 2011, Runevič-Vardyn and Wardyn, C‑391/09, EU:C:2011:291, paragraph 83 and the case-law cited, and of 6 September 2016, Petruhhin, C‑182/15, EU:C:2016:630, paragraph 34).
47


The Court has held that the objective of preventing the risk of impunity for persons who have committed an offence is to be seen in the context of the prevention and combating of crime. That objective must be considered, in the context of the area of freedom, security and justice without internal frontiers referred to in Article 3(2) TEU, to be a legitimate objective of EU law (see, to that effect, judgment of 6 September 2016, Petruhhin, C‑182/15, EU:C:2016:630, paragraphs 36 and 37 and the case-law cited).
48


However, measures which restrict a fundamental freedom, such as that laid down in Article 21 TFEU, may be justified by objective considerations only if they are necessary for the protection of the interests which they are intended to secure and only in so far as those objectives cannot be attained by less restrictive measures (judgments of 12 May 2011, Runevič-Vardyn and Wardyn, C‑391/09, EU:C:2011:291, paragraph 88 and the case-law cited, and of 6 September 2016, Petruhhin, C‑182/15, EU:C:2016:630, paragraph 38).
50


In the present case, however, the only question is whether the Federal Republic of Germany could adopt a course of action with regard to Mr Pisciotti which would be less prejudicial to the exercise of his right to free movement by considering surrendering him to the Italian Republic rather than extraditing him to the United States of America.
51


In that regard, the Court has held that the exchange of information with the Member State of which the person concerned is a national must be given priority in order, where relevant, to afford the authorities of that Member State the opportunity to issue a European arrest warrant for the purposes of prosecution. Thus, when a Member State to which a Union citizen who is a national of another Member State has moved receives an extradition request from a third State with which the former Member State has concluded an extradition agreement, it must inform the Member State of which the citizen in question is a national and, should that Member State so request, surrender that citizen to it, in accordance with the provisions of Framework Decision 2002/584, provided that that Member State has jurisdiction, pursuant to its national law, to prosecute that person for offences committed outside its national territory (see, to that effect, judgment of 6 September 2016, Petruhhin, C‑182/15, EU:C:2016:630, paragraphs 48 and 50).
54


Indeed, there is nothing inevitable in the possibility that the cooperation mechanism set out in paragraph 51 above might preclude a request for extradition to a third State by giving priority to a European arrest warrant, on the ground that this would be less prejudicial to the exercise of the right to freedom of movement (see, to that effect, judgment of 6 September 2016, Petruhhin, C‑182/15, EU:C:2016:630, paragraph 49). Thus, in order to safeguard the objective of preventing the risk of impunity for the person concerned in respect of the offences alleged against him in the request for extradition, a European arrest warrant issued by a Member State other than the requested Member State must, at least, relate to the same offences and, as appears from paragraph 50 of the judgment of 6 September 2016, Petruhhin (C‑182/15, EU:C:2016:630), the issuing Member State must have jurisdiction, pursuant to national law, to prosecute that person for such offences, even if committed outside its territory.
55


In the present case, as the Advocate General stated in point 52 of his Opinion, it is clear from the case file before the Court, and from the hearing, that the consular authorities of the Italian Republic were kept informed of Mr Pisciotti’s situation before the request for extradition at issue in the main proceedings was granted and that the Italian judicial authorities did not issue a European arrest warrant in respect of Mr Pisciotti.
56


The answer to the second question is therefore that in a case, such as that in the main proceedings, in which a Union citizen who has been the subject of a request for extradition to the United States under the EU-USA Agreement has been arrested in a Member State other than the Member State of which he is a national, for the purposes of potentially acceding to that request, 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 that extradition 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.