Revenge is a dish best served cold: Extradition to US of Dutch executive on antitrust charges
Updated: Jun 9, 2022
The first rule in extradition law: if you have known for years that you’re wanted abroad to face criminal charges and no extradition request was ever filed, don’t leave the country. Especially if that country is the Netherlands and if you’re wanted by the United States of America. Unless, of course, you’re heading to a country that has no extradition agreement in place.
On 21 September 2010, Dutch national Maria Christina ‘Meta’ Ullings was charged before the Northern District of Georgia in a public, one-count indictment for conspiring to fix surcharge rates on air cargo shipments in violation of the Sherman Act. Ullings previously served as the senior vice president of cargo sales and marketing for Martinair N.V. (Martinair Cargo), an airline company based in the Netherlands. On 8 November 2011, an Interpol Red Notice was issued, requesting her arrest during international travel.
Since the DOJ had made her indictment public, Ullings was perfectly aware that she was wanted to face criminal charges in the US. Nonetheless, in nearly ten years, the United States did not request her extradition to the Netherlands. When this happens, there is usually a reason.
In this specific case, the reasons were probably two.
First, the Netherlands and the US do have an extradition agreement. Article 8 § 1 deals with extradition of nationals and states that, if there is a treaty in force on the execution of foreign penal sanctions, neither Contracting Party may refuse to extradite its own nationals solely on the basis of their nationality. Since there is a treaty on transfer of prisoners (both States are bound to the 1983 Strasbourg Convention on the Transfer of Sentenced Persons), they cannot refuse extradition of their citizens.
However, it is common knowledge that, in practice, the Netherlands conditions the extradition of its nationals to the US on the assurance that, if the requested person is convicted, the United States will consent to his transfer to the Netherlands to serve his sentence if he so wishes. The Netherlands have made a formal declaration to this effect, for example, to the 1957 European Convention on Extradition.
Second, and most importantly, most countries do not have criminalized antitrust violations (the first ever extradition of a EU citizen to the US on antitrust charges was ordered in the renowned case of Italian citizen Pisciotti, which prompted the judgment of the ECJ in the homonymous case). As matters currently stand, infringement of competition laws is not a criminal offence under Dutch law (see here), meaning that most likely extradition would have been denied in the case of Ullings for lack of the dual criminality requirement.
This is probably the reason why the United States never requested her extradition to the Netherlands in almost ten years. On their side, after all, there was no particular rush, since Ullings had been indicted and thus the clock on statute of limitations had stopped ticking.
Presumably the passing of time is what made Ullings feel safe enough to travel to Italy for the holidays. What she probably did not imagine was that the US had not forgotten about the charges and that they were still tracking her moves. Apparently, of the seven Antitrust Division cases involving extradition proceedings, five were prompted by the arrest of a foreign executive who travelled in another country of which the executive was not a citizen (for a background on the prior Antitrust Division extradition cases see here and here).
As soon as Ullings arrived in Palermo she was arrested by Italian authorities with a view to extradition.
With judgment dated 17 October 2019, the Court of Appeal of Palermo ordered her extradition to the US to stand trial, holding in particular that the requirement of dual criminality was satisfied (antitrust infringements are a criminal offence in Italy). Apparently, Ullings waived her appeal before the Court of Cassation.
She resurfaced in the US, where, on 13 January 2010, pre-trial detention was ordered. A couple of weeks after her initial appearance in court, Ullings pled guilty to the price-fixing conspiracy and was reportedly sentenced to 14 months in prison (minus the six months' of detention in Italy) and a fine of $ 20.000.
What the US did in the case of Ullings may be qualified, in the jargon, as “forum shopping”, moving jurisdiction to get a more favourable court judgment. This is a move which the defendants are frequently accused of in extradition proceedings, but practice demonstrates that there is also government forum shopping.
The extradition of Dutch national Maria Christina ‘Meta’ Ullings is a cautionary tale that the mere passing of time is no reason to feel safe. This case demonstrates the risk of international travel for executives who leave a country where there is little or no risk of extradition.