AEMI

168 AEMI JOURNAL 2015 2016
This gap results firstly from the weakness
of definitions of the legal grounds
on the European level allowing Member
States to abuse their expulsion power.
Furthermore recent events showed the
necessity of a deeper reflection on the
right of residence of economically inactive
Union citizens as well as on their
access to social assistance.
1. A Better Definition of Legal
Grounds Allowing Expulsion of
Union Citizens
Legal grounds allowing expulsion of
Union citizens are either not defined or
are defined too generally in the Citizenship
Directive and in the relevant treaties.
Large leeway is given to individual
Member States. This leads to a multiplicity
and diversity of national definitions
which is endangering:
· Legal security, because there is a
clear risk of abuse of expulsions powers
by the Member States.
· The uniformity of application of
the law of the Union, because it is not
realized in practice.
· The principle of equality of
treatment between Union citizens on
the move, because for example, a Union
citizen can be expelled in France on
the ground of renewing stays of three
months while he would not be expelled,
for the same facts, in the Czech Republic.
In the Chakroun case (point 34) 27 , the
Commission submits that the discretion
left to the Member States in implementing
the Directive must not adversely
affect its objectives or effectiveness. National
practises show that national implementations
are often affecting the
Directive’s objective and effectivness.
For these reasons, it would be desirable
to unify national definitions of legal
grounds leading to expulsion orders.
And if states‘ sovereignity does not allow
such step, it would be at least desirable
to establish limits to national discretion.
2. The Exceptional Use of the Expulsion
Sanction
Sanctions deriving from a violation of
the provisions of the Citizenship Directive
can range from a simple refusal
of social assistance to expulsion. Expulsion
is the most severe sanction that
can be used against mobile Union citizens.
As Recitals 23 and 24 of Directive
2004/38/EC state, expulsions can
seriously harm the migrants and, for
this reason, should be used only exceptionally
against mobile Union citizens.
The Observatoire des politiques Sociales en
Europe reminds us that the notion of expulsion
today, which is so easily associated
to the destiny of Union citizens, is
really scaring because it is something so
close to us all and could happen to every
one of us 28 . Likewise, as Professor Lhernoud
already proposed, a clarification of
the consequences of unlawful stays of
Union citizens is needed, knowing that
the ultimate sanction, i.e. the expulsion,
should be avoided as much as possible 29 .
National practices however show the
contrary: expulsion orders being used
on a large scale, without attempting first
to regulate the problematic situation by
less severe sanctions like the refusal of
social assistance.
Moreover, expulsion can only be used
within the allowed scope of EU law
(threat to public order or security, threat
to public health, unreasonable burden
on the social assistance system, abuse of