Judgment of the Court of Justice Grand Chamber, 22 December 2022, Generalstaatsanwaltschaft München Request for extradition to Bosnia and Herzegovina, C-237/21

• Date: 22 December 2022
• Year: 2022

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I. CITIZENSHIP OF THE UNION: EXTRADITION OF A UNION CITIZEN TO A

THIRD STATE

Judgment of the Court of Justice (Grand Chamber), 22 December 2022,

Generalstaatsanwaltschaft München (Request for extradition to Bosnia and Herzegovina),

C-237/21

Link to the full text of the judgment

Reference for a preliminary ruling – Citizenship of the European Union – Articles 18 and 21 TFEU –

Request sent to a Member State by a third State for the extradition of a Union citizen who is a national of

another Member State and who has exercised his right to free movement in the first of those Member

States – Request made for the purpose of enforcing a custodial sentence – Prohibition on extradition

applied solely to own nationals – Restriction of freedom of movement – Justification based on the

prevention of impunity – Proportionality

S.M., who has Croatian, Bosnian and Serbian nationality, has lived in Germany since 2017 and has

been working there since 2020. In November 2020, the authorities of Bosnia and Herzegovina

requested that the Federal Republic of Germany extradite S.M. for the purpose of enforcing a

custodial sentence that was imposed on him by a Bosnian court.

The Generalstaatsanwaltschaft München (Munich Public Prosecutor’s Office, Germany) applied,

referring to the judgment in Raugevicius,

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for the extradition of S.M. to be declared inadmissible.

According to the Oberlandesgericht München (Higher Regional Court, Munich, Germany), which is the

referring court, the validity of that application depends on whether Articles 18 and 21 TFEU are to be

interpreted as providing for the non-extradition of a Union citizen even if, under the international

treaties, the requested Member State

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is required to extradite that Union citizen.

That question was not answered in the judgment in Raugevicius, since, in the case which gave rise to

that judgment, the requested Member State was authorised, under the international treaties

applicable, not to extradite the Lithuanian national in question out of the European Union. In the

present case, however, Germany is under an obligation to Bosnia and Herzegovina to extradite S.M.

pursuant to the European Convention on Extradition, signed in Paris on 13 December 1957. In

accordance with Article 1 of that convention, Germany and Bosnia and Herzegovina are required to

surrender to each other persons who are wanted by the judicial authorities of the requesting State for

the carrying out of a sentence. In that regard, the declaration made by Germany under Article 6 of

that convention, concerning the protection of its ‘nationals’ against extradition, restricts that term

solely to persons possessing German citizenship.

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In the judgment of 13 November 2018, Raugevicius (C-247/17, EU:C:2018:898; ‘the judgment in Raugevicius’), the Court interpreted Article 18

TFEU (which sets out the principle of non-discrimination on grounds of nationality) and Article 21 TFEU (which guarantees, in paragraph 1,

the right to move and reside freely within the territory of the Member States) as meaning that, where an extradition request has been made

by a third State for a Union citizen who has exercised his or her right to free movement, for the purpose of enforcing a custodial sentence,

the requested Member State, whose national law prohibits the extradition of its own nationals out of the European Union for the purpose of

enforcing a sentence and makes provision for the possibility that such a sentence pronounced abroad may be served in its terr itory, is

required to ensure that that Union citizen, provided that he or she resides permanently in the territory of the Member State in question,

receives the same treatment as that accorded to its own nationals in relation to extradition (paragraph 50 and the operative part).

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The Member State to which an extradition request was submitted.