Punishment and rights in European Union citizenship: Persons or criminals?

While European Union (EU) citizenship has been traditionally 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 in its case-law, where crimes show the offender disregard for the societal values of the host Member States, and deny her integration therein. This article argues that citizenship serve to legitimate criminal law. The Court outlines two – counter-posing - types of human being: the law-abiding citizen and the criminal. On that ground, the CJEU delineates a model of probationary citizenship directed towards the protection of the former category from the latter. The article shows the legal unsoundness of the Court’s approach. It does so by analysing and locating the case-law over a crime-citizenship spectrum, marked at its opposite ends by Duff’s communitarian approach to criminal law, on the one hand, and Jakobs’ criminal law of the enemy, on the other.