That is, in particular, the case where the requested Member State is obliged under international law to extradite the person concerned, and the third State which requested extradition does not consent to the sentence being enforced in the requested Member State.
Bosnia and Herzegovina requested that Germany extradite a Bosnian national, who also holds Croatian nationality
and is thus a Union citizen, for the purpose of enforcing a custodial sentence.
According to the Higher Regional Court, Munich (Germany), Germany is, in principle, obliged to extradite the
individual concerned because of commitments made to Bosnia and Herzegovina under the European Convention
The Higher Regional Court, Munich, queries however whether EU law precludes extradition, particularly in view of
the right of Union citizens to move and reside freely within the territory of the Member States, but also of the
prohibition on discrimination on grounds of nationality.
The German Basic Law prohibits the extradition of Germans to a third State. In such circumstances, EU law permits a difference in treatment between Germans and nationals of other Member States who, like the individual concerned, reside permanently in Germany – in the sense that the latter do not benefit from that prohibition – only if that difference is based on objective considerations and is proportionate to the legitimate objective of national law.
Being uncertain as to the application of the case-law of the Court of Justice when there is an extradition obligation
under international law, the Higher Regional Court, Munich, referred certain questions to the Court. It notes that the
German authorities informed the Croatian authorities of the extradition request but received no response from them. However, according to German law, the individual concerned could serve his sentence in Germany if Bosnia and Herzegovina consented to that.
By its judgment today, the Court of Justice replies that, in that situation, the requested Member State (Germany)
must actively seek such consent in order for the sentence to be served in the territory of that Member State, thus ensuring that the risk of impunity is averted while adopting an alternative in respect of the citizen concerned that is less prejudicial to his freedom of movement than his extradition to a third State.
Nevertheless, if that consent is not obtained, EU law (in this case, the right of Union citizens to move and reside
freely within the territory of the Member States and the prohibition on discrimination) does not preclude the
requested Member State (Germany) from extraditing the Union citizen concerned pursuant to an international convention. There would otherwise be a risk that the individual concerned would remain unpunished.
It is however important to note that, under the Charter of Fundamental Rights of the European Union,
extradition must be ruled out where there is a serious risk that the individual concerned would be subjected
to the death penalty, torture or other inhuman or degrading treatment or punishment in the third State