Punishment and Rights in European Union Citizenship: Persons or Criminals?

Author:Leandro Mancano
DOI:http://doi.org/10.1111/eulj.12279
Publication Date:01 May 2018
ORIGINAL ARTICLE
Punishment and Rights in European Union
Citizenship: Persons or Criminals?
Leandro Mancano*
Abstract
While European Union (EU) citizenship has traditionally been key to limiting criminalisation at
national level, over recent years crime has become a criterion to distinguish between the good and
the bad citizen, and to allocate rights according to that distinction. This approach has been upheld
by the EU Court of Justice (CJEU) in its caselaw, where crimes show the offender's disregard for
the societal valuesof the host Member States, and deny his/her integrationtherein. This article argues
that citizenship serves to legitimate criminal law. The Court outlines twocounterposingtypes of
human being: the lawabiding citizen and the criminal. The article shows the legal unsoundness of
the Court's approach. It does so by analysing and locating the caselaw over a crimecitizenship spec-
trum, marked at its opposing ends by Duff's communitarian approach to criminal law, on the one
hand, and Jakobs' criminal law of the enemy, on the other.
1|INTRODUCTION
Over the last few years, the debate on rights and duties in European Union (EU) citizenship has been fiercely
revamped.
1
The eruption of the economic crisis has brought about a manifold and widespread attitude of closure
and wariness on the part of Member of States towards nonnationals. Scholars have identified continuity of such
evolution in a wider trend of unfreedomisation that started especially as a reaction to September 11.
2
In this context, thorny questions have arisen as to what to make of foreignersand in particular Union citizens
that have committed a crime in the Member State where they are based. Union law has seen crime and criminal
convictions slowly emerging as a criterion to allocate (or deny) rights and distinguish between the good and the
bad citizen. A number of cases have been brought to the attention of the EU Court of Justice (CJEUor the Court).
In these decisions, the Court regarded wrongdoings as a signifier of the offender's disregard for societal values and
lack of integration. Such an approach explicitly looks at integration as a requirement for granting citizenship rights;
integration which is, in turn, denied per se by criminal behaviour.
*
PhD, Lecturer in EU Law, Edinburgh Law School.
1
R. Bellamy, A DutyFree Europe? What's Wrong with Kochenov's Account of EU Citizenship Rights, (2015) 21 European Law Review,
558; D. Kochenov, EU Citizenship without Duties, (2014) 20 European Law Journal, 482; N. Nic Shuibhne, Limits Rising, Duties
Ascending: The Changing Legal Shape of Union Citizenship, (2015) 52 Common Market Law Review, 889.
2
C. Gearty, The State of Freedom in Europe, (2015) 21 European Law Journal, 706.
Received: 25 August 2017 Revised: 22 January 2018 Accepted: 18 April 2018
DOI: 10.1111/eulj.12279
206 © 2018 John Wiley & Sons Ltd. Eur Law J. 2018;24:206225.wileyonlinelibrary.com/journal/eulj
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 valuebased argumentative patter as a norma-
tive turn in the Union discourse.
3
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.
4
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.
5
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 crimeand the criminal.With the protection of the lawabiding citizen from the dangerous individual in
mindembodied by a broad interpretation of public securitythe Court allocates or restricts rights on the basis of an
individual's criminal record.
Therefore, the article analyses the Court's caselaw 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 lawabiding, on the one hand; the unemployed, the criminal, on the other.
In order to test the hypothesis, the article discusses the caselaw of the CJEU on crime and citizenship following
the Tsakouridis judgment through the lens of punishment theory.
6
The materials have been selected by researching
rulings including both the terms crime,orcriminal 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).
7
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
8
and persons
9
has been key
3
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.
4
S. Coutts, Union Citizenship as Probationary Citizenship: Onuekwere”’, (2015) 52 Common Market Law Review, 531.
5
L. Azoulai and S. Coutts, Restricting Union CitizensResidence 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 CounterIntuitive Trend in Case C348/09, P.I. v. Oberburgermeisterin der Stadt Remscheid, (2012) 19 Columbia
Journal of European Law, 369.
6
Case C145/09, Tsakouridis, ECLI:EU:C:2010:708.
7
Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004, OJ L 158/77.
8
Case C41/76, Suzanne Criel, née Donckerwolcke and Henri Schou v Procureur de la République au tribunal de grande instance de Lille and
Director General of Customs, ECLI:EU:C:1976:182; Case C299/86, Criminal proceedings against Rainer Drexl, ECLI:EU:C:1988:103;
Case C276/91, Commission of the European Communities v French Republic, ECLI:EU:C:1993:336; Case C95/01, Criminal proceedings
against John Greenham and Léonard Abel, ECLI:EU:C:2004:71.
9
Case C193/94, Criminal proceedings against Sofia Skanavi and Konstantin Chryssanthakopoulos, ECLI:EU:C:1996:70; Case C16/78,
Criminal proceedings against Michel Choquet, ECLI:EU:C:1978:210, para. 4; Case C265/88, Criminal proceedings against Lothar
Messner, ECLI:EU:C:1989:632; Case C243/01, Criminal proceedings against Piergiorgio Gambelli and Others, ECLI:EU:C:2003:597;
Joined cases C338/04, C359/04 and C360/04, Criminal proceedings against Massimiliano Placanica, Christian Palazzese and A ngelo
Sorricchio, ECLI:EU:C:2007:133; Case C5/83, Criminal proceedings against H.G. Rienks, ECLI:EU:C:1983:382; Case C186/87, Ian
William Cowan v. Trésor public, ECLI:EU:C:1989:47.
MANCANO 207

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