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

These decisions reflect the increasing importance given to different penal values—such
as the reintegration of the offender—as the CJEU reasserts the need for Member States
to give weight to the person’s chances of reintegrating into the society with which the
offender has stronger bonds. In doing so, however, the CJEU does not make it the
primary priority, but rather develops a dialogue between the needs of the individual at
stake and the obligations of the executing State. Hence, on the one hand, in setting, for
example, the principle of non-discrimination between national and residents or persons
‘staying in’ in particular territory, when Member States implement grounds for refusal
provided for in the Framework Decision (as the Court did in Lopes da Silva), the CJEU
extends the protection afforded by the national legislation to a broader class of
individuals. However, ruling on the proportionality of the five year requirement before a
Member State has to take into consideration the possibility of allowing a national of
another Member State to serve a sentence in the territory of the executing Member State,
the Court is also excluding the possibility of some people which might already have a
considerable connection and level of integration into the society of the executing State
from serving a sentence in the place where they are currently living (as seen for example
in Wolzenburg and indirectly in Lopes da Silva). In the context of the Wolzenburg case,
Herlin-Karnell suggests that the five-year residence requirement—before an individual
can fully benefit from host State’s prisons—appears to be a reasonable decision that
fully recognises the free movement dimension to the EAW and the burden undertaken
by national tax payers. 1030
Yet, if in the context of the EAW, the CJEU is beginning to strike a balance between
reintegration of the offender into his or her State of residence and the rules of free
movement and punishment, this equilibrium becomes less clear in two recent cases on
citizenship matters. The cases are not concerned with instruments of ECL directly, but
give an important insight into how far the CJEU is willing to impose values of
reintegration of offenders upon Member States, namely when considering expulsion
from their territory. The cases were both in context of the already-mentioned Directive
on the rights of he Union citizens and their family members to move and reside freely
within the EU. 1031 The preamble of the Directive notes that it establishes a system of
protection against expulsion measures which is based on the degree of integration of
Union citizens in the host Member State, so that the higher the degree of integration, the
greater the degree of protection they are afforded. In turn, Article 28 of the Directive
concerns decisions of expulsion on grounds of public policy and security and notes that,
when taking such decisions, Member States shall take into account considerations such
1030 E. Herlin-Karnell, “European Arrest Warrant Cases and the Principles of Non-discrimination
and EU citizenship” (2010) 73 Modern Law Review 835.
1031 Directive 2004/38/EC, supra note 1025 .
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