Another chapter in the Pisciotti Saga: CJEU rules that his extradition to the USA was lawful

The decision follows decisions by several national and international courts; as well as the CJEU itself, which had already ruled on this matter. While the first time Mr. Pisciotti had (unsuccessfully) appealed directly to the Court, the CJEU became involved again due to a preliminary ruling by the Regional Court of Berlin, where a damages claim by Mr. Pisciotti against Germany is still pending.

Although the recent Petruhhin judgement might had given Mr. Pisciotti some hope, the CJEU ruled that his extradition to the USA was lawful.

In brief, Mr. Pisciotti was arrested by the German police following the issue of an international arrest warrant by the USA. He was accused – and later convicted – of having been a member of the marine hoses cartel. His extradition had a huge mediatic impact, since it was the first time that a European citizen had been extradited to the USA on antitrust charges. In fact, although the USA had tried multiple times in the past, extradition attempts following cartel charges had never been successful. This was mainly due to the fact that most international extradition agreements include double criminality requirements and antitrust violations are not, in principle, criminally sanctioned in the EU as they are in the USA. Mr. Pisciotti´s case was different, since he was being accused of, inter alia, bid rigging, which is also sanctioned by § 298 of the German Criminal Code.

Mr. Pisciotti’s main line of defence during his attempt to avoid extradition and in the present case was however, not based on competition law, but rather on primary EU law. He argued that Germany’s conduct was discriminatory and in breach of Art. 18 and 21 of the Treaty on the Functioning of the EU (TFEU) in extraditing an Italian national (Mr. Pisciotti) and thus EU citizen, in circumstances where in the same exact position, there would have been no extradition for a German national. Article 16 (2) of the German Constitution does not allow, in principle, the extradition of German citizens.

The Frankfurt Higher Regional Court and the German Constitutional Court had both rejected this argument, claiming that extradition matters were within a Member State’s competence and that thus EU law was not applicable. This assumption had already been dismissed by the CJEU in the Petruhhin and the Schotthöfer cases. Here, responding to the competency point, the CJEU reiterated that, irrespective of the EU having an extradition agreement in place with a third country (as it is the case with the USA), EU law applies as the citizens being extradited have made use of their freedom of movement pursuant to Article 21 TFEU. Accordingly, Article 18 TFEU forbids the Member State that has arrested a EU citizen to discriminate against him.

With its second question the Regional Court of Berlin inquired whether a Member State which treats its citizens and nationals of other EU member states differently on the basis of its constitution, is violating Articles 18 and 21 TFEU (as above) by granting the extradition of the latter where it would not permit the extradition of its own citizens. Citing Petruhhin, the CJEU reaffirmed that this conduct amounts to discrimination and a limitation of the freedom of movement, however, there may be legitimate justifications. In addition to pursuing a legitimate objective (in the instant case, the risk of impunity for persons who have committed an offence), discrimination must be necessary for the protection of the interest which it is intended to secure and only utilised where the objective cannot be attained by less restrictive measures.

As obiter, it was posited that in such extradition cases, a less restrictive measure would be to grant the home state of the person being held the possibility of extradition pursuant to the rules of the European Arrest Warrant (EAW). In Mr. Pisciotti’s case, Italy had been informed and had decided not to request extradition via EAW , meaning discrimination was justified and the extradition lawful.

Unfortunately, the CJEU did not examine whether there may be other actions that the member state may take which are less restrictive than extraditing the European citizen. This would have been of great interest, particularly since many EU member states emphasised the legal and practical difficulties associated with the EAW approach, in their written submission prior to the Advocate General’s opinion.

Bernardo Vasconcelos, LL.M. (Bruges) is a policy officer at the German Federal Ministry of Economics and Energy. This analysis is a summary of a comment on the present CJEU decision published by the same author on Verfassungsblog on 15 April 2018 and available at this link: https://verfassungsblog.de/the-pisciotti-saga-a-duel-in-karlsruhe-as-finale/. It presents only the personal opinion of the author.