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

Team

Related news

03.10.2019 NL law
It's in the details: HSBC fine quashed for insufficient reasoning

Short Reads - The General Court annulled the EUR 33.6 million fine imposed on banking group HSBC for its participation in the euro interest rates derivatives cartel. Full annulment was granted based on the Commission's failure to provide sufficiently detailed reasoning for the first step of the fine calculation, establishing the value of sales. As the value of sales could not be established in a straightforward way, the Commission used a proxy. When doing so, the Commission needs to properly explain its reasoning to allow the companies fined to understand how it arrived at the proxy. 

Read more

03.10.2019 NL law
The postman will no longer ring twice: Minister unblocks postal merger

Short Reads - The Dutch Authority for Consumers and Markets (ACM) recently blocked postal operator PostNL's acquisition of its only national competitor, Sandd, because this would create "a monopolist on the postal delivery market". However, the Dutch Minister of Economic Affairs and Climate Policy has overruled the ACM's decision on grounds of public interest. Invoking industrial policy or public interest reasons for merger clearance seems to be catching on.

Read more

03.10.2019 NL law
The ACM has to pay: moral damages awarded to real estate traders

Short Reads - The Dutch Authority for Consumers and Markets (ACM) needs to cough up a total of EUR 120,000 in moral damages to three real estate traders. The Dutch Trade and Industry Appeal Tribunal (CBb) agreed with the real estate traders that the annulment of the ACM's cartel decisions against them was insufficient compensation for the harm they suffered as a result of the length of the procedure and the press coverage of their cases.

Read more

02.10.2019 NL law
Politie aansprakelijk voor schietpartij Alphen aan den Rijn

Short Reads - De politie is aansprakelijk voor de schietpartij in een winkelcentrum Alphen aan den Rijn in 2011. Dat oordeelt de Hoge Raad in zijn arrest van 20 september 2019 (ECLI:NL:HR:2019:1409). Bij deze schietpartij vonden zes mensen de dood en raakten zestien mensen gewond. De dader doodde ook zichzelf. Nabestaanden van dodelijke slachtoffers, slachtoffers die gewond raakten en winkeliers spreken de politie aan tot schadevergoeding. Zij voeren aan dat de politie de vergunning voor de wapens die de man gebruikte, niet had mogen verlenen.

Read more

03.10.2019 NL law
Margrethe Vestager to play matchmaker between enforcement and regulation

Short Reads - Current Competition Commissioner Margrethe Vestager may face even greater challenges in the next European Commission. President-elect Ursula von der Leyen has not only nominated Vestager for a second term as Commissioner for Competition, but has also asked her to coordinate the European Commission's digital agenda. As a result, Vestager may soon be tackling digital issues through competition enforcement whilst also proposing additional regulation to deal with these (and related) issues pre-emptively.

Read more

02.10.2019 NL law
Dutch national police service liable for unlawful granting of firearms permit

Short Reads - In a recent decision (ECLI:NL:HR:2019:1409), the Supreme Court has decided that the Dutch national police force is liable for damage suffered by victims of a shooting which took place in a shopping centre in 2011; an event that shocked the Netherlands. The Supreme Court held that the police had unlawfully granted a permit for the firearms used in the shooting.

Read more

Our website uses functional cookies for the functioning of the website and analytic cookies that enable us to generate aggregated visitor data. We also use other cookies, such as third party tracking cookies - please indicate whether you agree to the use of these other cookies:

Privacy – en cookieverklaring