174 / 536
160
VÁCLAV ŠMEJKAL
CYIL 7 ȍ2016Ȏ
concluded that EU law did not permit an automatic refusal of a social assistance
benefit to them as the competent authorities of the host Member State must always
carry out an overall assessment of the personal circumstances and the individual
situation of applicants and also of the specific burden placed on the social assistance
system and, last but not least, must strictly respect the principle of proportionality
in measures they would adopt (paras 77-78).
The clarity and certainty of EU free movement law were thus left to be desired
as the outcome in practice often depended on how the general concepts (genuine
activity and link, unreasonable burden, etc.) will be applied to a specific case. And
even if it has become more firmly established that social assistance could be (after
a thorough individual assessment) refused to economically inactive EU-migrants
before they get their permanent resident status in the host Member State pursuant
to Directive 2004/38, it has remained at the same time completely unclear whether
EU-migrant citizens that would not qualify for such assistance and fall into poverty
can be expelled.
39
The provisions on the right of residence and on the conditions
defining the possibility of expulsion have not been harmoniously worded in Directive
2004/38.
40
The CJEU insisted in its case-law that expulsion of an EU-citizen must
remain an exceptional measure requiring an individual examination of the specific
case (i.e. how long the individual concerned has resided on its territory, his/her age,
state of health, family and economic situation, social and cultural integration into
that State and the extent of his/her links with the country of origin), even regarding
a person convicted of a serious crime.
41
Even though any automatism in refusing
support as well as in expulsing back to the Member State of origin seemed to
be inconsistent with EU law, national practice in many Member States went its
own way, sometimes in evident contradiction with EU standards.
42
Therefore the
criticism that “judicial-legislative shaping of social rights results in legal uncertainty
39
Threats to public policy , public security, public health as well as being an unreasonable burden on the
social security system of the host Member State have always been reasons for expulsion recognized both
by primary (see Article 45 TFEU) as well as secondary EU law (Article 27 of 2004/38 Directive). The
problem consisted in the lack of definition of their precise content in EU law and the pressure from
the Commission and the CJEU to limit Member States’ tendency to apply them disproportionally,
collectively, without proper assessment of individual situation or for purely economic ends. See for
details Maslowski (n 14) 65-67.
40
Article 14(3) of the Directive stipulates that the expulsion measure shall not be the automatic
consequence of a Union citizen’s or his or her family member’s recourse to the social assistance system
of the host Member State. This inconsistency within the Directive is highlighted for instance by
BENTON (n 1) 5; POPTCHEVA (n 11) 7 and 11.
41
Case C-348/09
P.I. v Oberbürgermeisterin der Stadt Remscheid
EU:C:2012:300 (the ruling).
42
See for details MASLOWSKI (n 14) 73-76. Well known examples are the collective expulsion of
Romanian and Bulgarian Roma from France in 2010. Also in SILVIA DIMITROVA, ‘The Illegality
of France’s Expulsions of Bulgarian and Romanian Roma under European Union Law’ [2013]
Revue
québécoise de droit international
Vol. 26 No 1, 33-61.