CYIL Vol. 7, 2016
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’  Revue québécoise de droit international Vol. 26 No 1, 33-61.
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