Proceedings relating to the extradition of BY.
Date: 2020-12-17
It is plain that the Court  has jurisdiction to provide to the  referring court  the relevant interpretative guidance to enable it  to determine whether  EU law  is applicable to such a situation (see, to that effect, judgment of 5 May 2011, McCarthy, C‑434/09, EU:C:2011:277, paragraphs 43  and 56).
It must be recalled that, in the judgment of 6 September 2016, Petruhhin (C‑182/15, EU:C:2016:630, paragraph 30), concerning, as in the present case, 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 Union citizenship, 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.
It is clear from the Court’s case-law  that a national of  a Member State, who thereby has Union citizenship, and who is lawfully resident  in the territory of another  Member State, falls within the scope of  EU law (see, to that effect, judgments of 2 October 2003, Garcia Avello, C‑148/02, EU:C:2003:539, paragraphs 26  and 27, and of  8 June 2017, Freitag, C‑541/15, EU:C:2017:432, paragraph 34).
Accordingly, by virtue of having Union citizenship, a  national  of a  Member State residing in another  Member State is entitled to rely on  Article 21(1)  TFEU (see, to that effect, judgments of  19 October 2004, Zhu and Chen, C‑200/02, EU:C:2004:639, paragraph 26, and of 2 October 2019, Bajratari, C‑93/18, EU:C:2019:809, paragraph 26  and  the case-law cited) 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 (see, to that effect, judgments of 6 September 2016, Petruhhin, C‑182/15, EU:C:2016:630, paragraph 31  and  the case-law cited, and of  13 November 2018, Raugevicius, C‑247/17, EU:C:2018:898, paragraph 27).
The fact that that  Union citizen  acquired the nationality  of a  Member State and, therefore, Union citizenship, only at a time when he or she  was already residing  in a  Member State other than that  of which he or she subsequently became a national  is not capable of invalidating that consideration. A contrary interpretation, in so far as it would  prevent such a  citizen  from taking advantage of the  rights conferred  by  Union citizenship, would undermine the effectiveness  of such status, destined to be the fundamental status of  nationals of the  Member States (see, in that  regard, judgment of  20 September 2001, Grzelczyk, C‑184/99, EU:C:2001:458, paragraph 31).
The same can be said of the fact that  the Union citizen  whose extradition is requested  also holds the nationality  of the third State which made that request. Holding dual nationality of a Member State and a third State cannot deprive the person concerned of the freedoms he or she derives from EU law as a national of a Member State (judgment of 13 November 2018, Raugevicius, C‑247/17, EU:C:2018:898, paragraph 29 and the case-law cited).
As a preliminary point, it should be recalled that, according to the Court’s settled case-law, in the procedure laid down by Article 267 TFEU, providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to determine the case before it. In that light, the Court may have to reformulate the questions referred to it (judgments of 13 September 2016, Rendón Marín, C‑165/14, EU:C:2016:675, paragraph 33, and of 8 June 2017, Freitag, C‑541/15, EU:C:2017:432, paragraph 29).
In this instance, by its  second question, the referring court expresses doubts as to the obligations which might, in  the context of the exchanging of information referred to in  paragraphs 47  to 49 of  the judgment  of  6 September 2016, Petruhhin (C‑182/15, EU:C:2016:630), be incumbent on the  Member State  of which the requested person is a national, that person being a Union citizen  subject to an  extradition request  sent, by a third State, to the Member State  in whose territory  that person is residing. As formulated by the referring court, that question concerns  the possible existence of an obligation, binding on the Member State of which the requested person is a national, to ask the third State that is requesting extradition  to send to it the  file  relating to the  criminal offence which  that person is alleged to have committed.
In the first place, it must be recalled that, in accordance with the Court’s case-law, the national rules  of a Member State  on extradition which give rise, as in the main proceedings, 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 (see, to that effect, judgments of  6 September 2016, Petruhhin, C‑182/15, EU:C:2016:630, paragraph 32, and of  10 April 2018, Pisciotti, C‑191/16, EU:C:2018:222, paragraph 44).
It follows that, in a situation such as that in the main proceedings, the unequal treatment involved in  permitting  the extradition of a  Union 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 (see, to that effect, judgments of  6 September 2016, Petruhhin, C‑182/15, EU:C:2016:630, paragraph 33, and of  10 April 2018, Pisciotti, C‑191/16, EU:C:2018:222, paragraph 45).
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 (judgment of 6 September 2016, Petruhhin, C‑182/15, EU:C:2016:630, paragraph 34).
In that context, the Court  has recognised that  the objective of averting the risk that persons  who have committed an offence  should go unpunished must be considered a legitimate objective  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  that it is intended to secure  and only in so far as those objectives  cannot be attained by less restrictive measures (see, to that effect, judgments of  6 September 2016, Petruhhin, C‑182/15, EU:C:2016:630, paragraphs 37  and 38;  of  10 April 2018, Pisciotti, C‑191/16, EU:C:2018:222, paragraphs 47  and 48;  and of  2 April 2020, Ruska Federacija, C‑897/19 PPU, EU:C:2020:262, paragraph 60).
In that regard, the Court has 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 the authorities of that Member State the opportunity to issue a European arrest warrant for the purposes of prosecution. 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 Framework Decision 2002/584, provided that the latter  Member State  has jurisdiction, under its national law, to prosecute the requested person for offences committed  outside its  national territory (see, to that effect, judgments of  6 September 2016, Petruhhin, C‑182/15, EU:C:2016:630, paragraphs 48  and 50;  of  10 April 2018, Pisciotti, C‑191/16, EU:C:2018:222, paragraph 51;  and of  2 April 2020, Ruska Federacija, C‑897/19 PPU, EU:C:2020:262, paragraph 70).
Further, in order to protect the  objective  of averting the risk that  the requested person should go unpunished for the offences he or she is alleged in the extradition request to have committed, the  European arrest warrant  that may be issued  by the Member State  of which that person is a national  must relate, at least, to the same  offences  as those  of which that person is accused in the  extradition request (see, to that effect, judgment of  10 April 2018, Pisciotti, C‑191/16, EU:C:2018:222, paragraph 54).
On the other hand, 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, provided that 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 (see, to that effect, judgment of  6 September 2016, Petruhhin, C‑182/15, EU:C:2016:630, paragraph 60).
In that regard, it follows, in essence, from  paragraphs 55  and 56 of  the judgment  of 10 April 2018, Pisciotti (C‑191/16, EU:C:2018:222), that  the requested Member State fulfils its obligation to provide information, referred to in  paragraph 43  of the present judgment, by putting  the  competent authorities  of  the Member State of which the requested person is a national in a position  to request the surrender of that person by means  of a  European arrest warrant.
To that end, in accordance with the principle of sincere cooperation, laid down in  the first subparagraph of Article 4(3)  TEU, which provides that the Union and the  Member States  are, in full mutual respect, to assist each other  in carrying out tasks which flow from the Treaties (see, to that effect, judgment of  6 September 2016, Petruhhin, C‑182/15, EU:C:2016:630, paragraph 42), it is incumbent on  the requested Member State to inform the  competent authorities  of  the Member State of which the requested person is a national  not only of the existence of an  extradition request  concerning that person, but also of all the  matters  of fact and law communicated  by  the third State requesting extradition  in the context of that  extradition request, though those  authorities  are  bound to respect the confidentiality  of such matters  where confidentiality has been sought by  that third State, that State being kept duly informed  on that point. Further, it is also incumbent on  the requested Member State  to keep those  authorities informed  of any changes in the situation of the requested person that might be relevant to the possibility  of a  European arrest warrant  being issued with respect to that person,  in accordance with what has been stated in  paragraphs 43  and 44  of the present judgment.
In addition to the fact that there is no legal basis in EU law, as it currently stands, for such an obligation, it would also be incompatible  with the  objectives which underlie  the exchange of  information  referred to in  paragraph 43  of the present judgment, in so far as, in accordance with the Court’s case-law, that  exchange of  information  serves  the objective  of safeguarding Union citizens from measures liable to  deprive them  of the rights of free movement and residence  laid down in  Article 21  TFEU  while ensuring that criminal offences do not go unpunished (see, to that effect, judgment of  6 September 2016, Petruhhin, C‑182/15, EU:C:2016:630, paragraph 47).
It must be recalled that extradition is a procedure whose aim is to ensure that  a person who is present in a territory other than that in which he or she has allegedly committed an offence does not go unpunished. Although, in the light of the maxim aut dedere, aut judicare (either extradite or prosecute), the non-extradition of own nationals is generally counterbalanced by the possibility that  the requested Member State  may prosecute its own nationals for serious offences committed outside its territory, that Member State as a general rule has no jurisdiction to try cases concerning such offences when neither the perpetrator nor the victim of the alleged offence is a national of that Member State. Extradition thus ensures that  offences committed  in the territory of a State  by persons who have fled that territory do not  remain unpunished (judgment of  6 September 2016, Petruhhin, C‑182/15, EU:C:2016:630, paragraph 39).
In that context, the Court  has held that national rules  which allow an extradition request to be granted for the purposes of prosecution and judgment in a  third State where the offence is alleged to have been committed appear appropriate to achieve the objective pursued, provided that there is no alternative measure that is less prejudicial  to the exercise of the rights conferred  by Article 21  TFEU (see, to that effect, judgment of  6 September 2016, Petruhhin, C‑182/15, EU:C:2016:630, paragraphs 40  and 41).
In that regard, it should be recalled that, as far  as the interpretation of provisions of national law is concerned, the Court is in principle required to rely on the description given in the order for reference. According to settled case-law, the Court does not have jurisdiction to interpret the internal law of a Member State (judgment of 7 August 2018, Banco Santander and Escobedo Cortés, C‑96/16 and C‑94/17, EU:C:2018:643, paragraph 57 and the case-law cited).
In such a situation, if there were an obligation on  the requested Member State  to refuse extradition and itself to conduct a  criminal prosecution,  the consequence would be that  that Member State  would be deprived of the opportunity to decide itself  on the appropriateness of conducting a  prosecution of that  citizen  on the basis  of national law, in the light of all the circumstances of the particular case, including the prospect of that  prosecution  resulting in a  conviction,  taking account of the evidence available. Accordingly, such an obligation would go beyond the limits  that  EU law  may impose on  the exercise of the discretion  enjoyed by that Member State  with respect to  whether or not prosecution  is appropriate in an area such as  criminal law which  falls, in accordance with the Court’s settled case-law, within the competence of the  Member States, even though they must  exercise that competence with due regard for  EU law  (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).
It follows that, where, as in the main proceedings, the requested Member State has been sent, by a third State, a  request  for the extradition of a  Union citizen  who is a national  of another Member State, for the purposes of a  criminal prosecution, the question of EU law that arises is solely  whether  the requested Member State  is able to adopt a course of action, with respect to that  Union citizen, which would be less prejudicial to the exercise of that citizen’s right to free movement and residence by considering that he or she should be surrendered to the Member State of which he or she is a  national rather than extradited to  the third State requesting extradition (see, by analogy, judgment of  10 April 2018, Pisciotti, C‑191/16, EU:C:2018:222, paragraph 50).