The recent police operation in France leading to the expulsion of thousands of Roma citizens of Romania and Bulgaria has been a hot topic in the news for some time. Now Euractiv reports that Italy has also plans to expel Roma citizens of other Member States.
The big question here is – is it legal?
There are two separate legal systems that must be assessed in this case. One is the European Union law, and the other is the European Convention on Human Rights. These two systems must not be mixed together in the analysis, and they have different outcomes.
Let’s start with EU law. The citizens of the European Union have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect (art 3, para. 2 TEU; art. 20, para. 2, “a” and art. 21 TFEU). Most of these limitations and conditions are provided in Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States. The main principle of Directive 2004/38/EC is that the right of residence for Union citizens and their family members for periods in excess of three months is subject to conditions. This is very important to note, since many EU citizens mistakenly believe that their right of residence is unconditional.
These conditions for the right of residence over three months are spelled out in art. 7 of Directive 2004/38/EC. The resident should be a worker or self-employed person in the host Member State or should have sufficient resources for himself and the family members in order not to become a burden on the social assistance system of the host Member State. Art. 14 stipulates the conditions for an expulsion measure and specifically points out that the expulsion measure should not be the automatic consequence of a Union citizen’s recourse to the social assistance system of the host Member State.
In addition to that Member States may restrict the freedom of movement and residence of Union citizens and their family members, irrespective of nationality, on grounds of public policy, public security or public health. Measures taken on grounds of public policy or public security must comply with the principle of proportionality and must 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 cannot be accepted (art. 27, para. 2 of Directive 2004/38/EC).
These texts are very concrete, and they raise important questions about the conduct of French authorities. In each and every case of expulsions the French state must have assessed the personal conduct of the individual, any general policy concerns notwithstanding. The information that is delivered by the media in this case is insufficient to assess the legality of the actions of the French Ministry of the Interior, but I am quite skeptical that they have been able to go though individual assessment of personal conduct in each of the cases. More, the reference to the ethnicity of the persons expelled is a serious breach of the principle of non-discrimination (art. 19, para. 1 TEU).
That being said, it is the European Commission that must decide whether in this case France has breached the relevant texts of Directive 2004/38/EC. I would also urge the European Ombudsman to independently observe this case.
Apart from the considerations about EU law, France is a party to the European Convention on Human Rights. Mevlüt Çavuşoğlu, President of the Parliamentary Assembly of the Council of Europe, has voiced some criticism towards the measures. Article 4 of Protocol No. 4 to the European Convention for the Protection of Human Rights and Fundamental Freedoms explicitly prohibits the collective expulsion of aliens. Now the question is whether the actions of French authorities constitute such a collective expulsion.
In conclusion the actions of the French authorities for the mass expulsion of Roma citizens of other member states may breach relevant EU law and texts of the European Convention for the Protection of Human Rights and Fundamental Freedoms. France should restrain from any actions that constitute collective expulsion. The European Commission should fully investigate this case. The Council of Europe should also carefully monitor this case.