OPINION OF ADVOCATE GENERAL
COLLINS
delivered on 13 October 2022 (1)
Case C‑435/22 PPU
Generalstaatsanwaltschaft München
v
HF
(Request for a preliminary ruling from the Oberlandesgericht München (Higher Regional Court, Munich, Germany))
(Reference for a preliminary ruling – Urgent preliminary ruling procedure – Judicial cooperation in criminal matters – Convention implementing the Schengen Agreement – Article 54 – Charter of Fundamental Rights of the European Union – Article 50 – Principle ne bis in idem – Free movement of persons – Citizenship of the European Union – Extradition of a third-country national by a Member State to the United States under a bilateral extradition treaty – Third-country national convicted by final judgment for the same acts in another Member State who has already served his sentence in full in that State – Extradition agreement between the European Union and the United States of America – Article 351 TFEU)
Introduction
1. This request for a preliminary ruling from the Oberlandesgericht München (Higher Regional Court, Munich, Germany) has been made in the context of a request by the United States of America to the Federal Republic of Germany seeking the extradition of a third-country national in order to prosecute him for acts in respect of which he has already been convicted by final judgment in another Member State and been given a sentence that he has served in full.
2. Does the principle ne bis in idem, enshrined in Article 54 of the Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders, which was signed in Schengen on 19 June 1990 and entered into force on 26 March 1995, as amended by Regulation (EU) No 610/2013 of the European Parliament and of the Council of 26 June 2013 (OJ 2013 L 182, p. 1) (‘the CISA’), (2) read in conjunction with Article 50 of the Charter of Fundamental Rights of the European Union (‘the Charter’), apply in such a situation, bearing in mind that the person concerned is not a citizen of the European Union? Can a bilateral extradition treaty concluded between the requested Member State and the third State concerned operate as a bar to the principle ne bis in idem being invoked in order to refuse to extradite that person? What is the possible role of Article 351 TFEU in that situation? Those are, in essence, the main questions which arise in the present case.
Legal context
European Union law
The CISA
3. Article 20(1) of the CISA, which is in Chapter 4, headed ‘Conditions governing the movement of aliens’, of Title II of the CISA, provides:
‘Aliens not subject to a visa requirement may move freely within the territories of the Contracting Parties for a maximum period of 90 days in any 180-day period, provided that they fulfil the entry conditions referred to in Article 5(1)(a), (c), (d) and (e).’ (3)
4. Article 54 of the CISA, which is in Chapter 3, headed ‘Application of the ne bis in idem principle’, of Title III of the CISA, reads as follows:
‘A person whose trial has been finally disposed of in one Contracting Party may not be prosecuted in another Contracting Party for the same acts provided that, if a penalty has been imposed, it has been enforced, is actually in the process of being enforced or can no longer be enforced under the laws of the sentencing Contracting Party.’
The Protocol integrating the Schengen acquis into European Union law
5. The CISA was incorporated into EU law by the Protocol integrating the Schengen acquis into the framework of the European Union, annexed to the Treaty on European Union and to the Treaty establishing the European Community by the Treaty of Amsterdam, (4) as part of ‘the Schengen acquis’, as defined in the annex to that protocol.
6. It follows from Article 2 of Council Decision 1999/436/EC of 20 May 1999 determining, in conformity with the relevant provisions of the Treaty establishing the European Community and the Treaty on European Union, the legal basis for each of the provisions or decisions which constitute the Schengen acquis (5) and from Annex A to that decision that the Council selected Articles 34 and 31 EU (6) as the legal basis for Articles 54 to 58 of the CISA.
The Agreement on extradition between the European Union and the United States of America
7. Article 1 of the Agreement on extradition between the European Union and the United States of America of 25 June 2003 (7) (‘the EU-USA Agreement’), headed ‘Object and Purpose’, states:
‘The Contracting Parties undertake, in accordance with the provisions of this Agreement, to provide for enhancements to cooperation in the context of applicable extradition relations between the Member States and the United States of America governing extradition of offenders.’
8. Article 17 of that agreement, headed ‘Non-derogation’, provides:
‘1. This Agreement is without prejudice to the invocation by the requested State of grounds for refusal relating to a matter not governed by this Agreement that is available pursuant to a bilateral extradition treaty in force between a Member State and the United States of America.
2. Where the constitutional principles of, or final judicial decisions binding upon, the requested State may pose an impediment to fulfilment of its obligation to extradite, and resolution of the matter is not provided for in this Agreement or the applicable bilateral treaty, consultations shall take place between the requested and requesting States.’
The Schengen Borders Code
9. Article 6(1) of Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code), (8) as amended by Regulation (EU) 2018/1240 of the European Parliament and of the Council of 12 September 2018 establishing a European Travel Information and Authorisation System (ETIAS) and amending Regulations (EU) No 1077/2011, (EU) No 515/2014, (EU) 2016/399, (EU) 2016/1624 and (EU) 2017/2226, (9) (‘the Schengen Borders Code’) reads as follows:
‘For intended stays on the territory of the Member States of a duration of no more than 90 days in any 180-day period, which entails considering the 180-day period preceding each day of stay, the entry conditions for third-country nationals shall be the following:
(a) they are in possession of a valid travel document entitling the holder to cross the border satisfying the following criteria:
(i) its validity shall extend at least three months after the intended date of departure from the territory of the Member States. In a justified case of emergency, this obligation may be waived;
(ii) it shall have been issued within the previous 10 years;
(b) they are in possession of a valid visa, if required pursuant to [Regulation (EU) 2018/1806 of the European Parliament and of the Council of 14 November 2018 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement (10)], or of a valid travel authorisation if required pursuant to [that regulation], except where they hold a valid residence permit or a valid long-stay visa;
(c) they justify the purpose and conditions of the intended stay, and they have sufficient means of subsistence, both for the duration of the intended stay and for the return to their country of origin or transit to a third country into which they are certain to be admitted, or are in a position to acquire such means lawfully;
(d) they are not persons for whom an alert has been issued in the [Schengen Information System (SIS)] for the purposes of refusing entry;
(e) they are not considered to be a threat to public policy, internal security, public health or the international relations of any of the Member States, in particular where no alert has been issued in Member States’ national data bases for the purposes of refusing entry on the same grounds;
(f) they provide biometric data …’
10. Article 20(1) of the CISA must be construed as referring to Article 6(1) of the Schengen Borders Code. The latter provision replaced Article 5(1) of Regulation No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code), (11) which had itself replaced Article 5(1) of the CISA.
Regulation 2018/1806
11. Article 3(1) of Regulation 2018/1806 provides:
‘Nationals of third countries listed in Annex I shall be required to be in possession of a visa when crossing the external borders of the Member States.’
12. Under Article 4(1) of that regulation:
‘Nationals of third countries listed in Annex II shall be exempt from the requirement set out in Article 3(1) for stays of no more than 90 days in any 180-day period.’
13. Serbia is among the third countries listed in Annex II.
The Treaty between the Federal Republic of Germany and the United States of America concerning extradition
14. Article 1 of the Auslieferungsvertrag zwischen der Bundesrepublik Deutschland und den Vereinigten Staaten von Amerika (Treaty between the Federal Republic of Germany and the United States of America concerning extradition) of 20 June 1978 (12) (‘the Germany-USA Extradition Treaty’), headed ‘Obligation to extradite’, provides:
‘(1) The Contracting Parties agree to extradite to each other subject to the provisions described in this Treaty persons found in the territory of one of the Contracting Parties who have been charged with an offense or are wanted by the other Contracting Party for the enforcement of a judicially pronounced penalty or detention order for an offense committed within the territory of the Requesting State.
(2) When the offense has been committed outside the territory of the Requesting State, the Requested State shall grant extradition subject to the provisions described in this Treaty if either
(a) its laws would provide for the punishment of such an offense committed in similar circumstances, or
(b) the person whose extradition is requested is a national of the Requesting State.’
15. Article 2 of the Germany-USA Extradition Treaty, headed ‘Extraditable offenses’, as amended by the Zusatzvertrag zum Auslieferungsvertrag zwischen der Bundesrepublik Deutschland und den Vereinigten Staaten von Amerika (Supplementary Treaty to the Treaty between the Federal Republic of Germany and the United States of America concerning extradition) of 21 October 1986 (13) (‘the First Supplementary Treaty’), provides:
‘(1) Extraditable offenses under this Treaty are offenses which are punishable under the laws of both Contracting Parties. In determining what is an extraditable offense it shall not matter whether or not the laws of the Contracting Parties place the offense within the same category of offenses or denominate an offense by the same terminology, or whether dual criminality follows from Federal, State or Laender laws. …
(2) Extradition shall be granted in respect of an extraditable offense:
a) For prosecution, if the offense is punishable under the laws of both Contracting Parties by deprivation of liberty for a maximum period exceeding one year, …
…’
16. Under Article 8 of the Germany-USA Extradition Treaty, headed ‘Prior Jeopardy for the Same Offence’:
‘Extradition shall not be granted when the person whose extradition is requested has been tried and discharged or punished with final and binding effect by the competent authorities of the Requested State for the offense for which his extradition is requested.’
17. Article 34 of that treaty, headed ‘Ratification; Coming into force; Denunciation’, provides, in paragraph 4:
‘This Treaty shall continue in force until the expiration of one year from the date on which written notice of termination is given by one Contracting Party to the other.’
18. According to the referring court, the Germany-USA Extradition Treaty was adapted to the EU-USA Agreement by the Zweiter Zusatzvertrag zum Auslieferungsvertrag zwischen der Bundesrepublik Deutschland und den Vereinigten Staaten von Amerika (Second Supplementary Treaty to the Treaty between the Federal Republic of Germany and the United States of America concerning extradition) of 18 April 2006 (14) (‘the Second Supplementary Treaty’).
The facts giving rise to the dispute in the main proceedings and the question referred for a preliminary ruling
19. On 20 January 2022, HF, a Serbian national, was remanded in custody in Munich (Germany) pursuant to a red notice issued by the International Criminal Police Organisation (Interpol) at the request of the authorities of the United States of America. Those authorities seek HF’s extradition in order to prosecute him for offences he allegedly committed between September 2008 and December 2013. That red notice was published on the basis of an arrest warrant issued on 4 December 2018 by the US District Court for the District of Columbia concerning charges of ‘conspiracy to participate in racketeer influenced corrupt organisations and conspiracy to commit bank fraud and fraud by means of telecommunication’, under Title 18 of the US Code, Sections 1962(d) and 1349, respectively. (15) HF is currently in detention in Germany pending extradition.
20. By letter of 25 January 2022, the authorities of the United States of America requested the German authorities to arrest HF provisionally and forwarded to them the arrest warrant of 4 December 2018 together with the indictment of the Grand Jury of the United States Court of Appeals for the District of Columbia Circuit (United States), bearing the same date. By letter of 17 March 2022, they sent the German authorities the documents that had to be submitted with the extradition request.
21. When he was arrested, HF stated that he was resident in Slovenia and produced a Serbian passport issued on 11 July 2016 and valid until 11 July 2026, a Slovenian residence permit issued on 3 November 2017 which had expired on 3 November 2019, and a Kosovan identity card. According to the order for reference, the Slovenian authorities rejected HF’s application to renew his residence permit in 2020.
22. At the request of the referring court and the Generalstaatsanwaltschaft München (Public Prosecutor’s Office, Munich, Germany), the Slovenian authorities provided the following information:
– by judgment of the Okrožno sodišče v Mariboru (District Court, Maribor, Slovenia) of 6 July 2012, which became final on 19 October 2012, HF was sentenced to one year and three months’ imprisonment for the offence of ‘attacking information systems’ within the meaning of Article 221(IV) of the Kazenski zakonik (Criminal Code), read in conjunction with Article 221(II) thereof, committed between December 2009 and June 2010, a sentence that was commuted to 480 hours’ community service;
– HF served that commuted sentence in full by 25 June 2015;
– by decision of 23 September 2020, the Okrožno sodišče v Kopru (District Court, Koper, Slovenia) refused a request by the authorities of the United States of America seeking HF’s extradition for the purposes of prosecution, on the ground that the Okrožno sodišče v Mariboru (District Court, Maribor) had delivered final judgment in respect of the acts prior to July 2010, set out in that request;
– there is no suspicion that any offence was committed in respect of the other acts described in the extradition request which post-date June 2010;
– the decision of 23 September 2020 was upheld by decision of the Višje sodišče v Kopru (Court of Appeal, Koper, Slovenia) of 8 October 2020 and became final.
23. According to the order for reference, the extradition request sent to the Slovenian authorities and the extradition request at issue in the present case concern the same offences. Furthermore, the acts which the Okrožno sodišče v Mariboru (District Court, Maribor) adjudicated on are identical to those referred to in the latter extradition request with regard to offences committed prior to July 2010.
24. The referring court has doubts as to the lawfulness of HF’s extradition to the United States in respect of the acts of which he is accused in the arrest warrant and the indictment of 4 December 2018 which pre-date July 2010.
25. In that regard, the referring court states that the principles laid down by the Court in its judgment of 12 May 2021, Bundesrepublik Deutschland (Interpol red notice) (16) are not sufficient to resolve the case pending before it, given the differences between the present case and the case which gave rise to that judgment. Thus, it observes that, in the present case, first, the person concerned is not an EU citizen, second, in issue is a formal extradition request, not a provisional arrest on the basis of a red notice published by Interpol, and third, if the Federal Republic of Germany were required to refuse to extradite HF on account of the obligation, imposed by EU law, to observe the principle ne bis in idem, it would be in breach of its obligation to extradite under the Germany-USA Extradition Treaty. As regards that last point, the referring court indicates that, in the present case, the authorities of the United States of America have produced the documents which, pursuant to Article 14 of that treaty, must be submitted with the extradition request, that HF’s conduct is punishable under both United States and German law, (17) and that the offences in question carry a maximum prison sentence of 20 or 30 years under United States law and between 2 and 10 years under German law. (18)
26. As matters currently stand, there is therefore no impediment to the legality of HF’s extradition under Paragraph 2 et seq. of the Gesetz über die internationale Rechtshilfe in Strafsachen (IRG) (Law on international mutual legal assistance in criminal matters), of 23 December 1982, (19) and Article 4 et seq. of the Germany-USA Extradition Treaty.
27. More specifically, as regards the principle ne bis in idem enshrined in Article 8 of that treaty, the referring court states that the fact that HF has already been convicted by final judgment of the Okrožno sodišče v Mariboru (District Court, Maribor) of 6 July 2012 for the offending acts committed before July 2010, to which the extradition request at issue relates, and that the sentence imposed on HF by that court has already been served in full, does not prevent his extradition to the United States. First of all, it is clear from the text of that article that it covers only the situation where the individual sought has already been convicted by final judgment by the competent authorities of the requested State, in this case the Federal Republic of Germany. It cannot be interpreted as also covering convictions handed down in other Member States. Next, during the negotiations on the Germany-USA Extradition Treaty, the Federal Republic of Germany and the United States of America agreed that decisions delivered in third States would not be an impediment to extradition. Moreover, the Second Supplementary Treaty adapting the Germany-USA Extradition Treaty to the EU-USA Agreement did not lay down any specific provision extending the prohibition of double jeopardy to all Member States or amend Article 8 of the Germany-USA Extradition Treaty. Finally, according to the case-law of the Bundesverfassungsgericht (Federal Constitutional Court, Germany), there is no principle of customary international law according to which that prohibition also applies to convictions handed down in third States.
28. However, the referring court is uncertain whether Article 50 of the Charter, read in conjunction with Article 54 of the CISA, requires the Federal Republic of Germany to refuse to extradite HF to the United States for the offences for which he has already been convicted by the Okrožno sodišče v Mariboru (District Court, Maribor), namely those relating to the acts referred to in the extradition request at issue which were committed before July 2010.
29. In that regard, in the first place, the referring court takes the view that the conditions resulting from the combined provisions of those two articles are satisfied in the present case. First, HF was convicted by final judgment of a court of a Member State, namely the Okrožno sodišče v Mariboru (District Court, Maribor) and the sentence imposed was served in full. Second, the application of those provisions is not dependent on the person concerned being an EU citizen or a national of a Member State. Third, it follows from paragraphs 94 and 95 of the judgment in Interpol red notice that the provisional arrest, by one of the Contracting States, (20) of a person who is the subject of an Interpol red notice at the request of a third State constitutes ‘prosecution’ within the meaning of Article 54 of the CISA. Therefore, a decision on the lawfulness of an extradition which results in the surrender of the person concerned to a third State with a view to his or her prosecution must also be regarded as ‘prosecution’. Fourth, a decision on the lawfulness of extraditing a third-country national arrested in a Member State of the European Union to the United States involves the implementation of EU law within the meaning of Article 51 of the Charter, since it concerns, on any view, the EU-USA Agreement. It is therefore necessary to take account of the fundamental rights guaranteed by the Charter when applying that agreement. In addition, according to the referring court, when HF was arrested, he was entitled to move freely under Article 20(1) of the CISA, read in conjunction with Article 6(1)(b) of the Schengen Borders Code and Article 4(1) of Regulation 2018/1806, since he was exempt from the visa requirement as a Serbian national. For that reason also, those fundamental rights should be taken into account.
30. In the second place, the referring court nonetheless enquires whether Article 50 of the Charter, read in conjunction with Article 54 of the CISA, may lead to the situation whereby a third-country national cannot be extradited to the United States, which is neither a party to the CISA nor a Member State. In that regard, it states that in order to justify the judgment in Interpol red notice and that judgment’s scope, the Court referred to the right to freedom of movement, provided for in Article 21 TFEU, of the person subject to the red notice in the case which gave rise to that judgment, namely a German national. HF, as a Serbian national, does not enjoy the right to freedom of movement provided for in Article 21(1) TFEU. However, he does enjoy the right to freedom of movement provided for in Article 20 of the CISA, since he is exempt from the visa requirement. The referring court adds that, in paragraph 98 of the judgment in Interpol red notice, the Court made clear that the situation referred to in the request for a preliminary ruling in that case concerned the provisional arrest of a person subject to a red notice published by Interpol at the request of a third State, not the extradition of that person to that State. The Court has therefore not yet ruled on the situation at issue in the present case, which involves an extradition request.
31. The referring court is of the opinion that the answer to the question referred for a preliminary ruling should be that the combined provisions of Article 54 of the CISA and Article 50 of the Charter do not preclude, in the present case, HF’s extradition to the United States, since it is required to comply with the Federal Republic of Germany’s obligation under international law to extradite the individual sought.
32. In that context, the referring court shares the view expressed in legal literature that the first paragraph of Article 351 TFEU applies to agreements which, although concluded by a Member State after 1 January 1958, relate to a field in which the European Union became competent only at a later stage ‘due to an extension of competences [which] was objectively not foreseeable by the Member State concerned when the [agreement concerned] was entered into’. Advocate General Kokott appears to support that view in her Opinion in Commune de Mesquer. (21) In that regard, the referring court observes that the Schengen Agreement and the CISA post-date the entry into force, on 30 July 1980, of the Germany-USA Extradition Treaty, and that the Schengen Agreement was not incorporated into EU law until the Treaty of Amsterdam in 1997. The Federal Republic of Germany could not therefore have foreseen, in 1978 and 1980, that a principle ne bis in idem applicable ‘at European level’ or police and judicial cooperation in criminal matters would be incorporated into the European Union’s sphere of competence.
33. The referring court considers that the amendments made by the First Supplementary Treaty and the Second Supplementary Treaty do not alter that situation in any way. The First Supplementary Treaty does not amount to a fundamental renegotiation of the Germany-USA Extradition Treaty and came into force on 11 March 1993. By the Second Supplementary Treaty, the Federal Republic of Germany merely transposed the EU-USA Agreement. No specific provision was adopted concerning the application of the principle ne bis in idem ‘at European level’.
34. Lastly, the referring court states that, since the EU-USA Agreement does not lay down a principle ne bis in idem applicable ‘at European level’, in accordance with the combined provisions of Article 50 of the Charter and Article 54 of the CISA, it may be inferred a contrario that a bilateral extradition treaty which requires observance of that principle only at national level must continue to be complied with.
35. It was against that background that, by decision of 21 June 2022 lodged at the Court Registry on 1 July 2022, the Oberlandesgericht München (Higher Regional Court, Munich) referred the following question to the Court of Justice for a preliminary ruling:
‘Must Article 54 of the [CISA], read in conjunction with Article 50 of [the Charter], be interpreted as meaning that those provisions preclude the extradition of a third-country national who is not an EU citizen in terms of Article 20 of the TFEU by the authorities of a contracting state to that Convention and an EU Member State to a third country if final judgment has been passed against the person concerned by another Member State of the European Union for the same offences to which the extradition request relates and that judgment has been enforced and where the decision to refuse to extradite that person to the third country would be possible only at the cost of breaching a bilateral extradition treaty that exists with that third country?’
Procedure before the Court
36. As HF has been in detention since 20 January 2022 and the request for a preliminary ruling raises questions in an area covered by Title V of Part Three of the Treaty on the Functioning of the European Union, (22) the referring court also asked the Court, by the same decision, to deal with this reference for a preliminary ruling under the urgent preliminary ruling procedure provided for in Article 107 of its Rules of Procedure.
37. By decision of 15 July 2022, the Court granted that request.
38. The Generalstaatsanwaltschaft München (Public Prosecutor’s Office, Munich), HF, the German Government and the European Commission lodged written observations in which they replied inter alia to the questions put to them by the Court for a written answer. Those parties presented oral argument and replied to the questions put by the Court at the hearing on 13 September 2022.
Analysis
Preliminary remarks
39. Article 54 of the CISA, which enshrines the principle ne bis in idem, precludes a Contracting State from prosecuting a person for the same acts as those in respect of which the person’s trial has been finally disposed of in another Contracting State, provided that, if a penalty has been imposed, it has been enforced, is actually in the process of being enforced or can no longer be enforced under the laws of that latter State.
40. Article 50 of the Charter elevates that principle to a fundamental right, providing that ‘no one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the Union in accordance with the law’.
41. Furthermore, as is apparent from those two articles, the principle ne bis in idem derives from the constitutional traditions common to both Member States and Contracting States. It is therefore appropriate to interpret Article 54 of the CISA in the light of Article 50 of the Charter, Article 54 serving to ensure respect for the essence of Article 50. (23)
42. The Court has held that, as a corollary to the principle res judicata, the principle ne bis in idem aims to ensure legal certainty and fairness; in ensuring that once the person concerned has been tried and, as the case may be, punished, that person has the certainty of not being tried again for the same offence. (24)
43. In order to answer the question referred for a preliminary ruling, I will examine, first of all, whether the principles the Court identified in its judgment in Interpol red notice, concerning the interpretation of Article 54 of the CISA, can be applied to a situation such as that at issue in the main proceedings, then, if necessary, whether, by refusing to extradite HF to the United States on account of the principle ne bis in idem, the Federal Republic of Germany would be in breach of its obligations under the Germany-USA Treaty, read in conjunction with the EU-USA Agreement, and, finally, following on from that last point, whether Article 351 TFEU may affect the interpretation sought by the referring court.
Applicability of the principles established in the Interpol red notice judgment
44. In its judgment in Interpol red notice, the Court held that Article 54 of the CISA and Article 21(1) TFEU, read in the light of Article 50 of the Charter, did not preclude the provisional arrest, by the authorities of a Contracting State or by those of a Member State, of a person in respect of whom Interpol has published a red notice, at the request of a third State, unless it is established, in a final judicial decision taken in a Contracting State or in a Member State, that the trial of that person in respect of the same acts as those on which that red notice is based has already been finally disposed of by a Contracting State or by a Member State respectively.
45. In the present case, it is apparent from the findings of the referring court that, by its judgment of 6 July 2012, the Okrožno sodišče v Mariboru (District Court, Maribor), namely a court of a Contracting State, gave a final ruling on the offending acts committed by HF before July 2010 and that HF served the sentence imposed on him in full. It is also apparent from those findings that those acts (25) are identical to those referred to in the United States of America’s request to extradite HF, in so far as it describes offences committed before July 2010. According to the order for reference, the extradition request from the authorities of the United States of America is concerned, more broadly, with offences HF allegedly committed between September 2008 and December 2013. However, the request for a preliminary ruling is limited to acts relating to offences committed before July 2010. For the purposes of the present Opinion and the judgment to be delivered, it is necessary to abide by the assumption made in the question referred, namely that the acts – and therefore the offences – at issue are identical. It is for the referring court, not the Court of Justice, to determine whether the acts in respect of which the Slovenian courts passed final judgment are the same as those referred to in the extradition request.
46. If Article 54 of the CISA is to apply in the present case, it is also necessary, in particular, for there to be a fresh ‘prosecution’ brought against HF by another Contracting State, in this case the Federal Republic of Germany, for those identical acts. In its judgment in Interpol red notice, the Court held that the provisional arrest by a Contracting State of a person in respect of whom Interpol has published a red notice, at the request of a third State for the purpose of criminal proceedings against that person in that third State, constitutes an action by that Contracting State which thus forms part of criminal proceedings that extend to the territory of the Contracting States. (26) In my view, that approach is perfectly capable of being applied to the dispute at issue in the main proceedings, even though, as the referring court points out, it concerns a decision relating to a formal request for extradition. As the Commission rightly submits in its written observations, if such provisional arrest, the very purpose of which is to prepare for extradition, is already covered by the concept of ‘prosecution’ within the meaning of Article 54 of the CISA, the same is true a fortiori of a decision on an extradition request. The referring court also shares that view.
47. Accordingly, the present case clearly concerns a situation in which a person whose trial for certain acts has been finally disposed of in one Contracting State is prosecuted for the same acts in another Contracting State.
48. Another difference which the referring court flagged up between the case that gave rise to the judgment in Interpol red notice and the case at issue in the main proceedings is that, in the former case, the person concerned was an EU citizen and thus enjoyed the right to freedom of movement guaranteed by Article 21(1) TFEU, while, in the latter, the person concerned is a third-country national.
49. In that regard, it must be observed, first, that the text of Article 54 of the CISA refers to any ‘person’ whose trial has been finally disposed of in a Contracting State; it is not limited to nationals of a Member State or a Contracting State. Similarly, Article 50 of the Charter, which uses the indefinite pronoun ‘no one’, does not establish any link with citizenship of the European Union. Moreover, that article is included not in Chapter V, headed ‘Citizens’ rights’, but in Chapter VI, headed ‘Justice’.
50. Second, it is true that the Court, in its judgment in Interpol red notice, when interpreting Article 54 of the CISA in the light of its objective, relied on the principle of the free movement of persons, in particular EU citizens. Thus, in paragraph 79 of that judgment, it stated that it is apparent from case-law that the principle ne bis in idem set out in that article is intended to ensure, in the area of freedom, security and justice, that a person whose trial has been finally disposed of is not prosecuted in several Contracting States for the same acts on account of his or her having exercised his or her right to freedom of movement. According to the Court, Article 54 of the CISA should, in that regard, be interpreted in the light of Article 3(2) TEU. (27) It made clear that, specifically, it follows from that case-law that a person whose case has already been finally disposed of must be able to move freely without having to fear a fresh prosecution for the same acts in another Contracting State. It is also true that, in that judgment, the Court’s reasoning, in so far as it concerns the questions at issue here, (28) contains several references to Article 21(1) TFEU. (29)
51. In my view, however, it cannot be concluded from those findings that, as the Generalstaatsanwaltschaft München ((Public Prosecutor’s Office, Munich) and the German Government submit, the scope of Article 54 of the CISA is limited to EU citizens exercising their right to freedom of movement.
52. To my mind, those different references to Article 21(1) TFEU are already largely explained by the background to the case which gave rise to the judgment in Interpol red notice. The person concerned was a German national who sought an order from the German referring court requiring the Federal Republic of Germany to take all necessary measures to have the red notice to which he was subject withdrawn, his main concern being that the existence of that notice prevented him from travelling to a Member State or Contracting State other than the Federal Republic of Germany without risking arrest. Accordingly, two of the questions referred to the Court for a preliminary ruling expressly referred to Article 21(1) TFEU.
53. As regards the Court’s statement, cited in point 50 of the present Opinion and reproduced by the German Government, that Article 54 of the CISA must be interpreted in the light of Article 3(2) TEU, which contains a reference to the concept of ‘EU citizen’, that statement is not, to my mind, decisive. Thus, in the judgment in Spasic, (30) the Court provided such an interpretation even though the person concerned was a Serbian national. Similarly, earlier case-law had already interpreted Article 54 of the CISA in the light of the provision which preceded Article 3(2) TEU, namely the fourth indent of the first paragraph of Article 2 EU, (31) despite Article 2 EU containing no reference to that concept. (32)
54. Consequently, I take the view that the principle ne bis in idem enshrined in Article 54 of the CISA protects all persons entitled to move freely within the Schengen area, whether or not they are EU citizens.
55. In that regard, it should be borne in mind that, as the referring court and the Commission rightly observe, under certain conditions, in particular if they hold a valid residence permit or are not subject to a visa requirement, third-country nationals are also entitled to move freely within the Schengen area, at least for a given period of time. In the present case, the referring court thus states that, when HF was arrested, he was entitled to move freely within the Schengen area under Article 20(1) of the CISA, since he was exempt from the visa requirement on account of his Serbian nationality. The situation of those nationals in the context of the CISA is therefore, in some instances, comparable to that of EU citizens, which, as the Commission also observes, may be one of the reasons why the parties to that agreement did not limit the application of the principle ne bis in idem to EU citizens.
56. It is true that, as the Generalstaatsanwaltschaft München (Public Prosecutor’s Office, Munich) and the German Government submit, the freedom of movement thus conferred on third-country nationals and the freedom of movement enjoyed by EU citizens are not equivalent. However, the fact remains that equity and leaving persons ‘undisturbed’ (33) mean that third-country nationals, like EU citizens, whose trial has been finally disposed of in a Contracting State, should be able to exercise their right to move freely within the Schengen area without fear of further prosecution for the same acts in another Contracting State.
57. Third, I agree with the Commission’s argument that the sole purpose of the principle ne bis in idem laid down in Article 54 of the CISA is not to ensure the free movement of persons, although it is undeniable that the free movement of persons plays an important role in the relevant case-law. (34) That principle is also intended, in the area of freedom, security and justice, to ensure legal certainty through respect for decisions of public bodies that have become final, in the absence of harmonisation or approximation of the criminal laws of the Member States. (35) The fact that the principle ne bis in idem, the scope of which was originally limited to the territory of each country considered separately, is applied, under Article 54 of the CISA, ‘transnationally’ is an expression of that area of freedom, security and justice, which is based on the principles of mutual trust and mutual recognition of judicial decisions in criminal matters. Thus, in the judgment in Interpol red notice, as in a number of earlier judgments, the Court made clear that that article necessarily implies that the Contracting States have mutual trust in their respective criminal justice systems and that each of those States consents to the application of the criminal law in force in the other Contracting States even when the outcome would be different were its own national law to apply. (36) As the Commission rightly maintains, were it possible, in the area of freedom, security and justice, to bring multiple prosecutions against the same person for the same acts, the purpose of such an area would be defeated and the principles of mutual trust and mutual recognition of judicial decisions in criminal matters would be infringed.
58. The considerations set out above appear, moreover, to be confirmed by paragraph 89 of the judgment in Interpol red notice, in which the Court ruled that, where it is established that the principle ne bis in idem applies to a person subject to a red notice published by Interpol, ‘both the mutual trust which is required between Contracting States under Article 54 of the CISA … and the right to freedom of movement guaranteed in Article 21(1) TFEU, read in the light of Article 50 of the Charter, preclude [the] authorities [of a Contracting State or of a Member State to which that person has travelled] from making a provisional arrest of that person or, as the case may be, from keeping that person in custody’. (37) By ruling in that way, the Court did not make the application of Article 54 of the CISA conditional on the application of Article 21(1) TFEU, nor did it interpret the first provision in the light of the second.
59. In the light of all the foregoing considerations, I am of the opinion that the principles identified by the Court in its judgment in Interpol red notice, concerning Article 54 of the CISA, are applicable to a factual and legal situation such as the present one. Since the CISA is an integral part of EU law, (38) it must also be held that, in such a situation, the authorities of the Member State are implementing EU law within the meaning of Article 51(1) of the Charter and, therefore, must respect the fundamental rights guaranteed by the Charter, including the right not to be tried or punished twice in criminal proceedings for the same offence, enshrined in Article 50 thereof. (39) Accordingly, I consider that a decision of the Federal Republic of Germany to extradite HF to the United States in order to prosecute him there for acts identical to those in respect of which he has already been convicted by final judgment in Slovenia and been given a sentence that he has already served in full would infringe Article 54 of the CISA, read in conjunction with Article 50 of the Charter.
60. That conclusion cannot, in my view, be called into question by the argument of the Generalstaatsanwaltschaft München (Public Prosecutor’s Office, Munich) that an extension of the principle ne bis in idem in the field of extradition to cover third States, combined with a linkage to convictions handed down in States other than the requested State, carries the risk that offenders might misuse that principle in order to evade prosecution. That line of argument – which, moreover, is difficult to understand – is based on pure conjecture. (40) Furthermore, the risk cited could, in any event, also arise in situations involving only Contracting States or EU citizens. Finally, there is nothing in the order for reference to suggest that HF is improperly relying on the principle ne bis in idem in the present case.
The Germany-USA Extradition Treaty and the EU-USA Agreement
61. In the light of the foregoing conclusions, it is necessary to examine whether, as the referring court maintains, by refusing to extradite HF to the United States on the ground of the principle ne bis in idem, the Federal Republic of Germany would be in breach of its obligations under the Germany-USA Extradition Treaty, where appropriate read in conjunction with the EU-USA Agreement, and, if so, whether that treaty could preclude such a refusal.
62. Having regard to the findings made in the order for reference, set out in points 25 to 27 of the present Opinion, it would appear that, in the present case, as the referring court points out, the German authorities are in principle required to extradite HF to the United States under Article 1 of the Germany-USA Extradition Treaty, since all the conditions laid down in that treaty are ostensibly met. As regards, more specifically, the ground for refusal provided for in Article 8 (headed ‘Prior Jeopardy for the Same Offence’) of that treaty, the referring court states that that ground does not apply in the present case, since the earlier final decision was issued by the Slovenian authorities and not by the authorities of the requested State, namely the Federal Republic of Germany.
63. The referring court relies on the EU-USA Agreement, observing that it does not provide for the application of a principle ne bis in idem ‘at European level’, in order to infer a contrario that the obligation to extradite under the Germany-USA Extradition Treaty must be complied with.
64. In that regard, like the referring court and the Commission, I consider that the EU-USA Agreement, the purpose of which is, in accordance with Article 1 of that agreement, to enhance cooperation between the European Union and the United States of America in the context of applicable extradition relations between the Member States and that third State, applies in a situation such as the present. (41) As the Commission rightly points out, that agreement ‘provides a common framework that supplements and overlaps with the bilateral extradition agreements concluded between the Member States and the United States [of America] and therefore applies, in principle, to all extradition relations between those parties’. It cannot be inferred from any provision of the EU-USA Agreement that bilateral extradition treaties concluded by the Member States take precedence over it. In particular, the possible subordination of the EU-USA Agreement to those treaties does not follow either from Article 3 thereof, under which a number of provisions of that agreement are to apply only in the absence of corresponding provisions in those treaties, or from Article 17(1) thereof, under which the requested State is to retain the possibility of relying on grounds for refusing extradition contained in a bilateral extradition treaty relating to a matter not governed by that agreement. On the contrary, other provisions of the EU-USA Agreement, such as Article 18, which provides that only bilateral agreements consistent with that agreement may be concluded after its entry into force between a Member State and the United States of America, confirm that the EU-USA Agreement is of general application.
65. It is true that, as the Court pointed out in paragraph 97 of its judgment in Interpol red notice, the EU-USA Agreement does not expressly provide that, where the principle ne bis in idem applies, the authorities of the Member States may refuse an extradition requested by the United States of America. More generally, with the exception of Article 13 of that agreement on capital punishment, the agreement itself does not set out any grounds for refusing extradition. (42) As Advocate General Bobek pointed out in his Opinion in the case Bundesrepublik Deutschland (Interpol red notice), (43) in the absence of EU regulation on the matter, the rules on extradition fall within the competence of the Member States, which may, in that context, conclude bilateral agreements with third States. However, the Member States are required to exercise that power in compliance with EU law and, more specifically, with the fundamental rights guaranteed by the Charter, including the principle ne bis in idem enshrined in Article 50 thereof, and cannot therefore enter into obligations which are incompatible with those arising under EU law.
66. I am therefore of the view that the referring court’s reasoning based on an a contrario interpretation of the EU-USA Agreement cannot be upheld and that, subject to the provisions of Article 351 TFEU, to be examined below, I conclude that the Federal Republic of Germany cannot invoke its obligations under the Germany-USA Extradition Treaty in order to grant the request to extradite HF.
67. That said, specifically on the basis of the EU-USA Agreement, it could be considered, as the Commission does, that a refusal to extradite HF to the United States would not necessarily infringe the Germany-USA Extradition Treaty. It follows from Article 17(2) of that agreement that ‘the constitutional principles of, or final judicial decisions binding upon, the requested State may pose an impediment to fulfilment of its obligation to extradite’ and that, if ‘resolution of the matter is not provided for in [that] Agreement or the applicable bilateral treaty, consultations shall take place between the requested and requesting States’. While it is true that the only legal consequence envisaged by that provision in the above scenario is the obligation for the States concerned to engage in consultations with each other, the fact remains that it reflects the intention of the parties to the EU-USA Agreement to acknowledge that certain circumstances not expressly provided for in the applicable bilateral extradition treaty may constitute an impediment to extradition. (44)
68. Besides the fact that the judgment of the Okrožno sodišče v Mariboru (District Court, Maribor) of 6 July 2012 may be regarded as a ‘final judicial decision binding upon’ the Federal Republic of Germany, it seems to me that the ‘constitutional principles’ of a Member State include the primacy of EU law and the protection of fundamental rights. In my view, therefore, in a situation such as the present, it is primarily for the competent authorities of the requested Member State to initiate consultations with the competent authorities of the United States of America. Although I agree with the Commission’s assessment that those consultations cannot result in that Member State disregarding the ‘impediment’ established by EU law, I do not go as far as the Commission to say that the Germany-USA Extradition Treaty, read in conjunction with the EU-USA Agreement, is ultimately not contrary to EU law. If the outcome of those consultations was anything other than the withdrawal or, as the case may be, the limitation of the extradition request by the competent authorities of the United States of America, the requested Member State would have no choice but to give precedence to EU law over its obligations under the bilateral extradition treaty.
The applicability of Article 351 TFEU
69. It remains to be determined whether the Federal Republic of Germany could rely on the first paragraph of Article 351 TFEU in order to comply with its obligation under the Germany-USA Extradition Treaty to extradite HF to the United States notwithstanding that that obligation is contrary to EU law. (45)
70. The first paragraph of Article 351 TFEU provides that the rights and obligations arising from agreements concluded before 1 January 1958 or, for acceding States, before the date of their accession, between one or more Member States on the one hand, and one or more third countries on the other, are not affected by the provisions of the Treaties. (46)
71. The Germany-USA Extradition Treaty was signed on 20 June 1978 and entered into force on 30 July 1980, that is to say after 1 January 1958, when the Federal Republic of Germany was already a member of what was then the European Economic Community. Therefore, on a strict reading of the first paragraph of Article 351 TFEU, it must be concluded that that provision is not applicable in the present case.
72. However, like the referring court, the Generalstaatsanwaltschaft München (Public Prosecutor’s Office, Munich), the German Government and the Commission, I take the view that the first paragraph of Article 351 TFEU should be interpreted broadly to cover, by analogy, agreements concluded by a Member State after 1 January 1958 or the date of its accession, but before the date on which the European Union became competent in the field concerned by those agreements.
73. In the present case, it was only after the entry into force, first, of the Treaty of Maastricht on 1 November 1993 and, then, of the Treaty of Amsterdam on 1 May 1999, that the European Union became competent in the field of police and judicial cooperation in criminal matters, those dates being subsequent to the entry into force of the Germany-USA Extradition Treaty. The same is true if account is taken of the Schengen Agreement and the CISA, which were signed on 14 June 1985 and 19 June 1990 respectively and were not incorporated into EU law until the Treaty of Amsterdam.
74. Therefore, it seems to me that the Federal Republic of Germany, when it concluded the Germany-USA Extradition Treaty with the United States of America, was in a situation analogous to that referred to in the first paragraph of Article 351 TFEU.
75. Does this mean that, in the present case, it should be allowed to grant the request to extradite HF to the United States? I do not think so.
76. The Court has already held, in its judgment in Kadi and Al Barakaat International Foundation v Council and Commission, that Article 307 EC, which preceded Article 351 TFEU, may in no circumstances permit any challenge to the principles that form part of the very foundations of the EU legal order, one of which is the protection of fundamental rights. (47) Contrary to what the Commission claims in its written observations, the principles thus identified by the Court in that judgment are fully transposable to the present case, since it is not appropriate, in the field of fundamental rights, to distinguish between rights on the basis that some are more fundamental than others. (48) It follows, in my view, that the Federal Republic of Germany cannot invoke its obligation to comply with the Germany-USA Extradition Treaty to justify the breach of the principle ne bis in idem enshrined in Article 50 of the Charter that HF’s extradition to the United States would entail.
77. Furthermore, the second paragraph of Article 351 TFEU obliges Member States to take all appropriate steps to eliminate any incompatibilities between the agreements concerned and the treaties. Those steps may require Member States courts to ascertain whether such an incompatibility can be avoided by interpreting the agreement, to the extent possible and in compliance with international law, in a way consistent with EU law. (49) If it is not possible to interpret the agreement in a way that it is consistent with EU law, the Member States could, in a situation such as the present one, engage in consultations, as provided for in Article 17(2) of the EU-USA Agreement, and might even be required, if they encounter difficulties which make amendment of the agreement impossible, to denounce it. (50) As regards that last point, it should be observed that Article 34(4) of the Germany-USA Extradition Treaty contains a clause which expressly affords each of the parties the possibility of denouncing that treaty.
Conclusion
78. In the light of the foregoing considerations, I propose that the Court answer the question referred for a preliminary ruling by the Oberlandesgericht München (Higher Regional Court, Munich, Germany) as follows:
Article 54 of the Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders, which was signed in Schengen on 19 June 1990 and entered into force on 26 March 1995, as amended by Regulation (EU) No 610/2013 of the European Parliament and of the Council, of 26 June 2013, read in conjunction with Article 50 of the Charter of Fundamental Rights of the European Union,
must be interpreted as precluding the extradition of a person, whether or not he or she is a citizen of the European Union within the meaning of Article 20 TFEU, by the authorities of a Member State of the European Union to a third State, where final judgment has been passed against that person in another Member State for the same acts as those to which the extradition request made by that third State relates and that judgment has been enforced, even if the decision to refuse extradition would be possible only at the cost of breaching a bilateral extradition treaty with that third State.