The evolution of European Union criminal law (1957-2012)

penal values in the future. Similar to the legislative developments described above, the
CJEU appears to be conducting its own dialogue between punitiveness and the
protection of the individual.
One of the main areas of judicial development has been the interpretation of the
Framework Decision on the EAW, namely the interpretation of some of the provisions
that allow executing authorities to refuse to surrender the requested person. National
implementation of these clauses and issues of how much can Member States
discriminate between their own nationals and non-nationals have been important points
of discussion. To be sure, this line of case law had its origins in the pre-Lisbon period,
which needs to be briefly revisited. As seen in Chapter 5, at least two important cases
provided guidance in regard to Article 4(6) of the Framework Decision on the EAW
which allows Member States to refuse the surrender of the requested person in cases
where the EAW was issued in respect to a person who is staying in, is a resident or a
national of the executing State, and the latter undertakes to enforce the sentence himself.
The first of those cases was Kozlowski in which the CJEU clarified the concept of
‘staying in’ the executing State, noting that it should not be read broadly and that
‘staying in’ entails a level of integration in the society of the executing States similar to
that of residence. This, the Court further noted, should be assessed according to
objective factors such as the length, nature and conditions of the presence as well as the
family and economic conditions which the requested person enjoys in the executing
State. 1023 Subsequently, in Wolzenburg, the CJEU held that national legislation
implementing Article 4(6) of the Framework Decision requiring nationals of other
Member States to have lawfully resided for a continuous period of five years in the
Member State of execution, in order to benefit from the non-execution exception, is not
disproportionate and hence does not go beyond what was necessary to attain the
objective of ensuring that nationals of other Member States achieve a degree of actual
integration into the Member State of execution. 1024 This threshold of five years had been
directly derived from the Directive on the rights of Union citizens and their family
members to move and reside freely within the EU. Recital 17 of the Directive’s
preamble and Article 16 of the Directive determine a continuous period of five years as
the length of time beyond which Union citizens acquire a permanent right of residence
in the host Member State. 1025
1023 Case C-68/08, supra note 762, in particular at 48.
1024 Case C-123/08, supra note 767.
1025 Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the
right of citizens of the Union and their family members to move and reside freely within the
territory of the Member States, OJ L 158/77 [2004].
263