Short Reads

Germany did not err in extraditing an Italian citizen to the US for a competition law infringement

Germany did not err in extraditing an Italian citizen to the US for a

Germany did not err in extraditing an Italian citizen to the US for a competition law infringement

01.05.2018 NL law

On 10 April 2018, the European Court of Justice ruled that Germany did not breach EU law by extraditing an Italian citizen to the United States for a competition law infringement in a situation where Germany's constitutional law does not permit extradition of its own nationals. The case highlights that extradition to the US for competition law infringements can be a real possibility for EU citizens.

In 2010, an arrest warrant was issued against Romano Pisciotti, an Italian citizen, by the District Court for the Southern District of Florida for his alleged involvement in the Marine Hose cartel. In 2013, Mr Pisciotti was arrested by the German authorities when his flight from Nigeria to Italy made a stopover at Frankfurt am Main airport. In 2014, Germany extradited Mr Pisciotti to the US where he served a prison sentence of approximately two years. He was the first European ever extradited to the US on cartel charges.

In 2014, Mr Pisciotti brought an action before the Landgericht Berlin for a declaration that Germany was civilly liable for having granted his extradition. According to Mr Pisciotti, Germany had breached EU law because Germany's constitutional law would not have allowed the extradition to the US of a German citizen who was in Mr Pisciotti's exact situation.

The Court of Justice ruled that Germany's unequal treatment between its nationals and the nationals of other Member States amounted to a restriction of the EU freedom of movement. Such restriction can only be justified if it is based on objective considerations and in so far as those objectives cannot be attained by less restrictive measures. The Court held that the objective of preventing the risk of impunity for persons who have committed an offence is an objective which can theoretically justify a free movement restriction. The Court then considered if Germany could have adopted a less restrictive course of action by surrendering him to Italy rather than to the US. The facts showed, however, that although the Italian authorities were informed of the US request for extradition, they did not issue an European arrest warrant requesting Mr Pisciotti's surrender to Italy. Germany was therefore allowed to extradite Mr Pisciotti to the US.

While the judgment highlights the possibility of successful EU-US extradition requests, it also makes clear that a request for surrender pursuant to a European arrest warrant by the EU citizen’s Member State of nationality has priority over a request for extradition issued by the US. The practical consequences of this prioritization appear to be limited, however, as an European arrest warrant can only be issued if the issuing Member State has jurisdiction, pursuant to national law, to prosecute the person for the offences to which the US extradition request relates. That will not always be the case if the cartel was implemented in the US.

This article was published in the Competition Law Newsletter of May 2018. Other articles in this newsletter:

  1. European Court of Justice provides guidance on assessing discriminatory pricing
  2. European Commission imposes record fine on Altice for premature implementation of PT Portugal acquisition
  3. European Commission proposes draft Regulation on online platforms and search engines
  4. District Court of Amsterdam rules on requests for pre-procedural hearings
  5. Rotterdam District Court quashes cartel fines imposed by the ACM on cold storage operators

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