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Case 1:20-cr-00330-AJN Document 97-22 Filed 12/14/20 Page 21 of 30 William JULIE avocat a la cour — attorney at law 69. Articles 3 and 4 of the EAW FD set out a number of grounds for refusing the enforcement of a EAW, that are respectively mandatory and optional. Article 4(6) on optional grounds provides that a Member State may refuse the execution of a EAW « issued for the purposes of execution of a custodial sentence or detention order, where the requested person is staying in, or is a national or a resident of the executing Member State and that State undertakes to execute the sentence or detention order in accordance with its domestic law ». This article is the only provision in the EAW FD that allows Member States to consider nationality in the execution of a EAW. As such, nationality can only act as a bar to the execution of a EAW issued for the purpose of executing a custodial sentence, not conducting a criminal prosecution. 70. It follows that European Union law does not prohibit the extradition of nationals. (iii) French constitutional law 71. As regards the status of the protection of nationals from extradition under French law, the fact that France did not have to change its Constitution or domestic laws regarding the extradition of nationals to incorporate the EAW FD effectively means that the prohibition against the surrender of a French citizen to foreign authorities does not constitute an absolute prohibition per se under French law**. 72. The Conseil Constitutionnel (French constitutional Court) has long considered that France could not ratify an international amendment which went against the Constitution, thereby necessitating a modification of the text of the Constitution prior to the ratification of the purported international treaty*>. For example, the Constitution had to be amended prior to the ratification of the Rome Statute, to create an exception to the rule that the President of the Republic cannot be found criminally liable in respect of acts committed during his mandate. By contrast, the provisions of the Rome Statute which require Contracting Parties to surrender their nationals when the jurisdiction of the International Criminal Court is established did not trigger an amendment to the French Constitution. Like the EAW FD, the example of the Rome Statute must be taken as evidence that there is no constitutional principle against the extradition of nationals in France. 34 By contrast, several Member States of the EU such as Germany, Poland or Cyprus, had to amend their national constitutions prior to incorporating the EAW FD, following constitutional courts’ rulings. 35 Décision No. 98-408 DC, 22 Janvier 2009. 51, rue Ampére - 75017 paris - tél. 01 88 33 51 80 — fax. 01 88 33 51 81 wj@wjavocats.com - 20 www.wjavocats.com - palais C1652 DOJ-OGR-00002145