| What you need to know - key takeaways |
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- The extradition of an EU citizen by a Member State other than the Member State of which the EU citizen is a national to the US falls within the scope of EU law and thus the principles of non-discrimination need to be respected.
- However, under certain circumstances a Member State can treat its nationals preferentially. It can protect its own nationals from being extradited to the US by enacting national laws while the Member State does not have to extend the prohibition on the extradition to every EU citizen.
- However, the extraditing Member State must allow the authorities in the EU citizen's home state to seek surrender of the citizen to a European arrest warrant.
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Mr. Pisciotti had been accused in the US of anti-competitive practices, such as bid-rigging, in the worldwide marine hose cartel. Therefore, a US District Court in Florida had issued an arrest warrant against him in 2010 on the basis of which Mr. Pisciotti was arrested at Frankfurt/Main Airport in Germany in June 2013 while in transit from Nigeria to Italy. On the basis of the EU-USA Agreement on Extradition, he was extradited to the US in April 2014 where he was subsequently fined (USD 50,000) and imprisoned for two years. Mr. Pisciotti had tried to block his extradition, but all his applications to various German courts (including the German Federal Constitutional Court) and submission to the German Federal Ministry of Justice were dismissed.
Mr. Pisciotti brought an action before the Regional Court of Berlin ("Berlin Court") claiming that Germany should be required to pay damages given that Germany had breached EU law, in particular, the general principle of non-discrimination. If Mr. Pisciotti had been a German national, he would not have been extradited because the German Constitution prohibits Germany from extraditing its own nationals. As an Italian national, according to the German courts, Mr. Pisciotti did not benefit from this prohibition.
The Berlin Court stayed the proceedings and asked the ECJ for a preliminary ruling on the relevant EU provisions.
Other than the German courts, the ECJ found that the matter at stake, i.e. the extradition of an EU citizen by a Member State other than the Member State of which he is a national, falls within the scope of EU law since, by stopping over in Germany during his return journey from Nigeria, Mr. Pisciotti had made use of his right to move freely within the EU and the request for extradition was made under the EU-USA Agreement on Extradition.
However, the ECJ also held that in such a case EU law does not preclude the requested Member State (Germany) from drawing a distinction, on the basis of a rule of constitutional law, between its nationals and the nationals of other Member States. Therefore, Germany was entitled to extradite an Italian citizen, notwithstanding that a rule of German constitutional law prohibited the extradition of its own nationals in similar circumstances, provided that:
- Germany had already put the competent authorities in Italy in a position to seek the surrender of its citizen pursuant to a European arrest warrant; and
- the competent authorities in Italy had not taken any action in that regard.
The ECJ considered that this would negate any potential for unequal treatment. Given that in the present case the Italian authorities were kept fully informed and did not issue a European arrest warrant, the ECJ considered the extradition to have been lawful.
The case is now awaiting its final judgment by the Berlin Court, but in light of the ECJ ruling it can be expected that Mr. Pisciotti's claim will be dismissed.
