France expulsion of Roma: the EU law perspective

16 September 2010 by

In  the ongoing row over France’s repatriation of Roma nationals there has been little debate over precisely what power the EU Commission has to initiate legal action against the French government.

Viviane Reding, the EU Justice Commissioner, is widely reported to have declared that France faces possible infringement proceedings and a fine from the European Court of Justice in respect of its dismantling of Roma camps and repatriation of up to a thousand Bulgarian and Romanian Roma citizens since last month. It is suggested that the French government is guilty of applying the 2004 Directive of Free Movement of Persons in a “discriminatory” fashion, offending not only directive’s own provisions, but the European Treaty’s principle of non discrimination (Article 19) and also, possibly, the ban on collective expulsion of aliens under Protocol 4 Article 4 of the European Convention on Human Rights.

What in fact is the likelihood of infringement proceedings succeeding against France? Although Romanian and Bulgarian Roma are EU citizens, France retains the right to bar immigrants from the newer member states unless they find gainful occupation within three months or have independent means.
 This arrangement was put in place to protect the French labour market and is itself based on Article 7 of the Free Movement Directive which sets out the conditions that limit the right of residence of EU citizens within the territory of Member States. Such persons may remain in the territory of another Member State for a period of longer than three months if they:

(a) are workers or self-employed persons in the host Member State; or (b) have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence…

Although the Directive also allows Member States to restrict movement or residence on grounds of public policy, security or health, Article 27 requires that measures taken on grounds of such policy should be proportional and

shall be based exclusively on the personal conduct of the individual concerned…The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Justifications that are isolated from the particulars of the case or that rely on considerations of general prevention shall not be accepted.

So it would be incumbent on the French authorities to establish that they have taken each particular case in to account. Whether this burden is possible to discharge in the context of such high numbers of itinerant persons remains to be seen and in any event the EU Commissioners have not taken a decision yet as to whether such proceedings should be taken. The French government maintains that the Romas are not being targeted because they are an ethnic minority, but rather because they do not comply with the rules of entry. They contend that the decision to dismantle their illegal camps was taken judicially and that French law takes priority.

Whether this argument will prevail in an infringement action is ultimately a political question since it turns on the relative weight given to Member State’s sovereign interests in maintaining security and border control versus the increasingly controversial principle of free movement of persons. But an ECJ ruling on the alleged infringement, if it happens, will help to delineate the scope of the Free Movement Directive and give some welcome publicity to the restrictions contained within it.

Any infringement action against France in this particular case will have serious repercussions for other Member States dealing with an influx of itinerant persons from elsewhere in the Union.

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1 comment;

  1. Jan says:

    An interesting happening in the UK.

    Recently the UK Border Agency (UKBA) have launched a pilot scheme attempting to remove homeless EEA nationals, who do not wish to leave, on the basis that they are not exercising residence rights in the UK. The UKBA is aiming towards a combined strategy for dealing with homelessness, underpinned by the prospect of immigration enforcement for those who do not comply. However, the basis for expulsion on which the new scheme relies is yet to be tested in the courts.

    ILPA, Aire Centre and Migrants Rights Network have prepared a Factsheet on the coercive expulsion and the rights of European citizens.

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