Thereby, crime has become a sufficient reason on its own to deny citizenship rights (mainly right to residence and
protection against expulsion). Scholars have referred to such a strongly value‐based argumentative patter as a norma-
tive turn in the Union discourse.
Along similar lines, Stephen Coutts has traced back the Court's decisions to a retrib-
utive stance, and in particular to Anthony Duff's communitarian approach to criminal law.
The CJEU's application of
the latter approach to cases of Union citizenship would be directed towards the establishment of a community of
values within the EU. The CJEU would be using criminal law and public security to strengthen ‘the substance of
Union citizenship by complementing the rights of the Directive with correlative obligations’.
This paper challenges that vision and argues that the Luxembourg judges point in the opposite direction. It is sub-
mitted that the Court resorts to citizenship to strengthen the legitimacy of (in particular, EU) criminal law. It does so
by outlining a model of probationary citizenship, built upon presumptive mechanisms and the use of an abstract cat-
egory such as ‘crime’and ‘the criminal’.With the protection of the law‐abiding citizen from the dangerous individual in
mind—embodied by a broad interpretation of public security—the Court allocates or restricts rights on the basis of an
individual's criminal record.
Therefore, the article analyses the Court's case‐law beyond the logic of rights restriction or obligation imposed. It
offers a different perspective on the existing debate, by revealing a paradigmatic shift in the Court's approach. To do
so, the rulings are not merely understood and assessed as cases on the limits of citizenship rights. Rather, the
approach of this research brings to the fore the deeper understanding of the role for criminal law and the criminal
embraced by the CJEU. Furthermore, it connects this evolution to a broader redefinition of the Court's understanding
of citizenship, where anthropological models are opposed and divided by the very thin line of integration: the eco-
nomically active, the law‐abiding, on the one hand; the unemployed, the criminal, on the other.
In order to test the hypothesis, the article discusses the case‐law of the CJEU on crime and citizenship following
the Tsakouridis judgment through the lens of punishment theory.
The materials have been selected by researching
rulings including both the terms ‘crime’,or‘criminal law’, and ‘citizenship’, through the database of the CJEU. Then
the analysis focuses on cases where the Court had to decide whether or not to confer EU citizenship rights upon
a person with a criminal record. As a result, the materials mainly revolve around interpretation of Treaty provisions
on EU citizenship, such as Articles 18 and 21 of the Treaty on the Functioning of the EU (TFEU), and Directive
2004/38/EC (or ‘Citizenship Directive’).
The article focuses on the decisions issued following the Tsakouridis case, the latter constituting a turning point
in the Court's approach to crime and citizenship. Historically, free movement of goods
has been key
S. Barbou des Places, ‘The Integrated Person in EU Law’, in L. Azoulai, S. Barbou des Places, E. Pataut (eds.), Constructing the Person in
EU Law. Rights, Roles, Identities (Hart Publishing, 2016), 186ff.
S. Coutts, ‘Union Citizenship as Probationary Citizenship: “Onuekwere”’, (2015) 52 Common Market Law Review, 531.
L. Azoulai and S. Coutts, ‘Restricting Union Citizens’Residence Rights on Grounds of Public Security: Where Union Citizenship and
the AFSJ Meet: P.I.’, (2013) 50 Common Market Law Review, 553; D. Kochenov and B. Pirker, ‘Deporting the Citizens within the
European Union: A Counter‐Intuitive Trend in Case C‐348/09, P.I. v. Oberburgermeisterin der Stadt Remscheid’, (2012) 19 Columbia
Journal of European Law, 369.
Case C‐41/76, Suzanne Criel, née Donckerwolcke and Henri Schou v Procureur de la République au tribunal de grande instance de Lille and
Case C‐276/91, Commission of the European Communities v French Republic, ECLI:EU:C:1993:336; Case C‐95/01, Criminal proceedings
Case C‐193/94, Criminal proceedings against Sofia Skanavi and Konstantin Chryssanthakopoulos, ECLI:EU:C:1996:70; Case C‐16/78,
Criminal proceedings against Michel Choquet, ECLI:EU:C:1978:210, para. 4; Case C‐265/88,
Criminal proceedings against Lothar
Joined cases C‐338/04, C‐359/04 and C‐360/04, Criminal proceedings against Massimiliano Placanica, Christian Palazzese and A ngelo