First Person Extradited From Europe to the United States for Criminal Antitrust Charges—Continued

Can Germany extradite an EU national to the United States for criminal prosecution when Germany’s own nationals are protected from extradition? This question has been put to the European Court of Justice, and the court’s advisor, Advocate General Yves Bot, has said “yes”.

Mr. Pisciotti, an Italian national, was arrested in a German airport following the issuance of an arrest warrant by a U.S. District Court in Florida. Mr. Pisciotti was wanted in the U.S. for having participated in the “marine hoses” cartel. The U.S. requested his extradition, which was granted by the German courts. He pleaded guilty in the criminal proceedings brought against him and served a prison sentence until his release in April 2015. We reported on this case in a previous post (accessible here).

While Mr. Pisciotti was still in the U.S., his lawyers brought an action before the Regional Court in Berlin (Landgericht Berlin) for a declaration that the Federal Republic of Germany was liable for having granted his extradition to the U.S. and an order requiring it to pay damages. Their argument was that, by extraditing Mr. Pisciotti, Germany had violated two fundamental guarantees of EU law: the principle of non-discrimination on the basis of nationality and the free movement of persons. If Mr. Pisciotti had been a German citizen, he would not have been extradited because the German constitution prohibits Germany to extradite its own nationals. However, as an Italian citizen, Mr. Pisciotti was not protected in the same way. After hearing these arguments, the German court stayed the proceedings and asked the European Court of Justice for a preliminary ruling on the relevant provisions of EU law.

Before the Court of Justice issues a judgment, an Advocate General issues an impartial opinion to the Court. The role of the Advocate General is to consider the written and oral submissions to the Court and propose a solution. Although the Advocate General is a full member of the Court, he does not take part in the Court’s deliberations, and his opinion is not binding on the Court.

In the Pisciotti case, Advocate General Bot has now suggested that there was no infringement of EU law by Germany. According to his opinion, Mr. Pisciotti did exercise his freedom of movement when he stopped over in a German airport on his way to Italy. This means that Mr. Pisciotti could rely on EU law and that Germany had to respect the principle of non-discrimination on grounds of nationality when processing the request for his extradition. Not applying the national law prohibiting the extradition of German nationals to his case restricted his freedom of movement and constituted unequal treatment.

However, measures which restrict a fundamental freedom may be justified by objective considerations if: (i) they are necessary for the protection of the interests which they are intended to secure (necessity); and (ii) in so far as those objectives cannot be attained by less restrictive measures (proportionality). In the case at hand, Advocate General Bot argues that Germany could invoke a legitimate objective—preventing the risk of impunity—and that no other measure than extradition could have restricted Mr. Pisciotti’s freedom of movement to a lesser degree while still enabling the attainment of that legitimate objective. In particular, the Advocate General noted that Mr. Pisciotti could not have been prosecuted in Germany for offences allegedly committed in the United States.

Therefore, in the view of the Advocate General, although there was unequal treatment, it was justified to prevent criminal impunity. If the Court of Justice and subsequently the referring Landgericht Berlin apply the logic proposed by Advocate General Bot, Mr. Pisciotti will not succeed in his action to claim damages and to have his extradition to the U.S. declared unlawful.