Romano Pisciotti

On 10 April 2018, the Court of Justice (Grand Chamber) delivered its judgment in case C-191/16 on the application of the principle of non-discrimination on grounds of nationality in the context of the extradition of an EU citizen to a third country.

Suspected of having been engaging in concerted practices in the United States, Romano Pisciotti, an Italian national, was the subject of a request for extradition for the purposes of prosecution made by the US authorities. On 26 August 2010, an arrest warrant was issued against him by the US District Court for the Southern District of Florida in Fort Lauderdale and a bill of indictment was returned by the Grand Jury of the same court. On 17 June 2013, as his flight from Nigeria to Italy made a stopover at Frankfurt am Main airport, Mr Pisciotti was arrested by officers from the German federal police. In January 2014, the Higher Regional Court of Frankfurt am Main declared Mr Pisciotti’s extradition to the US to be permissible. Mr Pisciotti made an application to the German Constitutional Court for interim measures to prevent execution of the order to extradite him, arguing that his extradition would be contrary to EU law in that a literal application of Article 16(2), first sentence, of the Basic Law which is confined to German nationals would infringe the general prohibition on discrimination on grounds of nationality. His application was dismissed. On 17 March 2014, the German Government granted Mr Pisciotti’s extradition. On the same day, he brought an action before the Regional Court of Berlin for a declaration that the Federal Republic of Germany was liable for having granted his extradition to the United States of America and an order requiring it to pay damages. His extradition to the US took place on 3 April 2014. Mr Pisciotti was sentenced in the US and served his prison sentence until his release on 14 April 2015.

Against this background, the Regional Court of Berlin asks the Court whether, when applying the extradition agreement concluded between the EU and the US, the nationals of another Member State must benefit, in the light of the principle of non-discrimination laid down in the first paragraph of Article 18 TFEU, from the rule which prohibits extradition of nationals.

Building on its judgment in the Petruhhin case, the Court first found 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 has been arrested, for the purposes of potentially acceding to that request, in a Member State other than the Member State of which he is a national, the situation of that citizen falls within the scope of EU law since he has made use of his right to move freely within the European Union and the request for extradition was made under the EU-USA Agreement.

It then held that 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.

With respect to the question of 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, the Court recalled 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 EAW for the purposes of prosecution.

It stressed that, although that solution was adopted in a context characterised by the absence of an international agreement on extradition between the European Union and the third State in question, it may be applied in a situation such as that at issue in the main proceedings, in which the EU-USA Agreement gives the requested Member State the option of not extraditing its own nationals.

In the present case, it stemmed from the case file before the Court 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 EAW in respect of Mr Pisciotti.

The Court therefore concluded 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 EAW and the latter Member State has not taken any action in that regard.