European Roma and Travellers Forum (ERTF) against France, Complaint No. 64/2011
(Adopted by the Committee of Ministers on 5 February 2013
at the 1161st meeting of the Ministers’ Deputies)
The Committee of Ministers,1
Having regard to Article 9 of the Additional Protocol to the European Social Charter providing for a system of collective complaints;
Taking into consideration the complaint lodged on 28 January 2011 by the European Roma and Travellers Forum (ERTF) against France;
Having regard to the report transmitted by the European Committee of Social Rights containing its decision on the merits, in which it concluded:
- violation of Article E taken in conjunction with Article 19§8 concerning Roma of Romanian and Bulgarian origin (unanimously)
Article 19§8, which obliges States to prohibit by law the expulsion of migrants lawfully residing in their territory, admits exceptions where they are a threat to national security, or offend against public interest or morality (Conclusions VI, Cyprus).
Given the obligation deriving from the Charter whereby States must observe, within its scope of application, the two essential elements of the rule of law that are the existence of a legal basis and the right of access to a court (Syndicat occitan de l’éducation against France, Complaint No. 23/2003, decision on the merits of 8 September 2004, § 26), Article 19§8 requires, firstly, that substantial safeguards accompany any administrative measure to expel foreign nationals (Conclusions IV, United Kingdom) and, secondly, that States ensure that those foreign nationals who are subject to an expulsion measure are entitled to challenge this decision before a court or another independent body, even where national security, public interest or morality are at stake (Conclusions IV, United Kingdom).
In view of the government’s observation that the European Commission considered the Act of 16 June 2011 governing the expulsion of European Union nationals to be compatible with European Union law, in particular Directive 2004/38/EC of the European Parliament and of the Council on freedom of movement of citizens of the Union, which this Act moreover transposes into national law, it is not for the Committee to assess a national situation’s conformity with EU law, but merely its conformity with the Charter, including where an EU directive is transposed into national law (Confédération générale du travail (CGT) against France, Complaint No. 55/2009, decision on the merits of 23 June 2010, § 33).
In this regard, following the submission in July 2011 to the European Commission by the non-governmental organisation Human Rights Watch of a document concerning the incompatibility with EU law of recent expulsions of Roma of Romanian and Bulgarian origin, a Commission spokesperson declared that the issue of expulsions of nationals of EU member States fell “exclusively within the jurisdiction of member States” and, consequently, within the member States’ obligations under international law, including those arising from the Charter (European Daily Bulletin, No. 10464, 1 October 2011, p. 14).
Under the national legislation in force, any European Union citizen may reside in France under conditions that vary according to the length of stay and the aim being pursued by the individual concerned. A decision to expel European Union nationals from French territory may be taken in two cases: if, for lack of resources, these persons are likely to become a burden on the social assistance system or if their presence may constitute a threat to public order. The question to be answered by the Committee is whether, beyond the applicable law, the practice is in conformity with the Charter.
If the Roma of Romanian and Bulgarian origin living in France are, indeed, to a large extent not economically active, according to many sources, they wish to find employment but are unable to do so. For this reason, they lead a hand to mouth existence, surviving with the extremely low income they obtain partially through begging. It is also for this reason, combined with the inadequate housing supply, that they are forced to live on illegal camp sites.
This situation however cannot be regarded as likely systematically to place an excessive burden on social assistance budgets. Nor can the occasional instances of theft, aggressive begging or unlawful occupation of the public domain or private property be systematically deemed to constitute a “genuine, present and sufficiently serious threat affecting one of the fundamental interests of society” that could justify their expulsion.
The government also does not establish, despite its repeated assertions, that the expulsion measures adopted by the French authorities were decided taking into account the individual characteristics of the persons being expelled and were not systematically targeted at Roma of Romanian and Bulgarian origin.
It was these considerations that led to the decision on the merits of 28 June 2011 in Collective Complaint
No. 63/2010 by the Centre on Housing Rights and Evictions (COHRE) against France, concerning a period predating that covered by the present complaint. Unlike the ministerial circular of 5 August 2010, which was annulled by the Conseil d’Etat, the new circular of 13 September 2010, that the Conseil d’Etat did not hold to be unlawful, no longer expressly targets the Roma. The operations carried out during the period concerned by this complaint nonetheless had the same characteristics as those that took place in the earlier period.
At a press conference on 21 July 2011, the RomEurope denounced the fact that, throughout the previous twelve months, administrative decisions requiring individuals to leave French territory had been “distributed en masse” and “the statistics prove that they were issued principally against Roma”. In addition, the document that Human Rights Watch submitted to the European Commission in July 2011 reported a number of cases of expulsion of Romanian and Bulgarian citizens from France, “the vast majority of whom were Roma”, after the dismantling of camp sites of Lyon, Créteil, Saint-Denis, Fontenay-sous-Bois and La Courneuve.
These observations, which are not contested in the government’s submissions, show that, in exercising the powers it holds under national law, the government did not respect the proportionality principle required by the Charter (International Movement ATD Fourth Word (ATD) against France, Complaint No. 33/2006, decision on the merits of 5 December 2007, §§ 164-168). Under this principle, the burden of coverage of the persons concerned by the social assistance system would have to be excessive, or even unreasonable, for an expulsion measure to be necessary, so as to relieve the State of this burden.
In the light of the above, the administrative decisions whereby, during the period under consideration, Roma of Romanian and Bulgarian origin were ordered to leave French territory, where they were resident, are incompatible with the Charter in that they were not founded on an examination of their personal circumstances, did not respect the proportionality principle and were discriminatory in nature since they targeted the Roma community.
- violation of Article E taken in conjunction with Article 30 concerning Travellers (unanimously)
The obstacles to the exercise of the voting rights of Travellers of French nationality have already been examined in the context of Complaint No. 51/2011 by the European Roma Rights Centre (ERRC) against France, decision on the merits of 19 October 2009. Then, it has been held that the reference to social rights in Article 30 should not be understood too narrowly and that the fight against social exclusion is one area where the notion of the indivisibility of fundamental rights takes on special importance and, in this regard, the right to vote, like other rights relating to civic and citizens’ participation, constitutes a necessary dimension in achieving social integration and inclusion and is thus covered by Article 30 (European Roma Rights Centre (ERRC) against France, Complaint No. 51/2008, decision on the merits of 19 October 2009, § 99). The exercise of voting rights without discrimination also applies to all European Union nationals with regard to local and European elections.
In the above-mentioned decision on the merits, it was found that there was a violation by France of Article E of the Charter taken in conjunction with Article 30, after noting that the rules applicable to citizens identified in terms of their association with the Traveller community were different from those applied to homeless citizens and that the difference in treatment between Travellers and homeless people with regard to their right to vote had no objective and reasonable justification (Ibid. § 102).
The law applicable to Travellers with regard to voting rights has not changed since that decision. In this connection, the report “Travellers – working towards ordinary law status” (known as the Hérisson report), presented to the Prime Minister in July 2011 by the Chair of the National Advisory Commission for Travellers, proposed on the subject of Travellers’ voting rights to “repeal section 10 of the Act of 3 January 1969 and permit Travellers to benefit from the rules of ordinary law, setting a six month period of attachment to a municipality in order to register on electoral rolls” and that this proposal has so far not resulted in an amendment of positive law.
The government stated that, by virtue of the Act of 2007, like homeless people, Travellers too can attach themselves to the municipality where the welfare centre or certified body with which they are registered is located and wait only six months, rather than the three year period provided for by the Act of 1969, before registering to vote.
Assuming this were the case and Travellers could lawfully request to be registered on the electoral roll after having their official residence at a welfare centre or a certified body for six months, it is not proven that in practice they are able, firstly, to avail themselves of this possibility and, secondly, to have their request accepted by the relevant authorities. This explains the Hérisson report’s proposal in the light of the widely known difficulties observed in this matter as to legal certainty.
- violation of Article E taken in conjunction with Article 31§1 concerning Travellers and Roma of Romanian and Bulgarian origin (unanimously)
Under Article 31§1 of the Charter, States Parties shall guarantee to everyone the right to housing and shall promote access to adequate housing. States must take the legal and practical measures which are necessary and adequate to the goal of the effective protection of the right in question. They enjoy a margin of appreciation in determining the steps to be taken to ensure compliance with the Charter, in particular as regards the balance to be struck between the general interest and the interest of a specific group and the choices which must be made in terms of priorities and resources (European Roma Rights Centre (ERRC) against Bulgaria, Complaint No. 31/2005, decision on the merits of 18 October 2006, § 35). Moreover, given that the achievement of the rights of Article 31§1 is exceptionally complex and particularly expensive to resolve, States Parties must take measures that allow it to achieve the objectives of the Charter within a reasonable time, with measurable progress and to an extent consistent with the maximum use of available resources. States Parties must be particularly mindful of the impact that their choices will have for groups with heightened vulnerabilities as well as for other persons affected (mutatis mutandis, International Association Autism-Europe against France, Complaint No. 13/2002, decision on the merits of 4 November 2003, § 53).
The Act of 5 July 2000 provides that the location of stopping places and the number of spaces provided for in the département plans must result from a prior assessment of Travellers’ needs. To this end, the Act provides that “in each département, an advisory committee, including representatives of the municipalities concerned, the Travellers themselves and associations working with them, shall be involved in the preparation and implementation of the plan”.
In the decision on the merits of 19 October 2009 in respect of Complaint No. 51/2009, European Roma Rights Centre (ERRC) against France, it was found that the implementation of the département plans for the reception of Travellers was manifestly inadequate. The government admitted that only 32% of the parking spaces on the sites provided for in the département plans were operational at the time. To determine whether Travellers continue to be discriminated against regarding access to adequate housing, it had to be established whether the action taken by the authorities since this finding met the criteria set out above (see § 96) which have to be satisfied for Article 31§1 to be complied with: (i) measurable progress; (ii) a funding arrangement which makes the best possible use of available resources; (iii) reasonable timeframe.
Concerning measurable progress, it was found that, in view of the statistics provided by the government which the Forum has not challenged, over three years the spaces created have increased by 20% (nearly 8,000 spaces completed per year), given that in 2010 52% of spaces on the sites provided for in the département plans were operational. Accordingly, measurable progress has been achieved.
Regarding the best possible use of available resources, since the decision on the merits in Complaint No. 51/2009, the percentage of parking spaces created with State funding has increased (from 50% in 2007 to 68% in 2010). Moreover, there is no evidence of insufficient funding of stopping places, in view of the margin of discretion enjoyed by States when allocating financial resources. Accordingly, the authorities have made adequate progress in implementing financial resources so as to permit the creation of stopping places.
Concerning the reasonable timeframe criterion, according to the Act of 5 July 2000, the département reception plans had to be finalised within eighteen months of the Act’s publication (section 1.III). It would seem from the case-file documents that most of these plans were not finalised until 2004. The Act also provided for a two year time-limit for equipping the sites and creating the parking spaces proposed in the plans. In view of the many difficulties encountered, the mayors requested the State to grant them an additional two years, a time-limit which in some cases was again extended by a further two years. This maximum period of eight years resulting from the successive amendments to the Act, while it is relatively long, does not exceed the State’s margin of appreciation. Nonetheless, at the end of 2010, the objectives set in the département plans were only 52% achieved.
In this connection, it is recalled that the Act provides “if (...) a municipality or a public establishment for intermunicipal co-operation has not fulfilled its obligations under the département plan, the State may acquire the necessary plots, carry out the works and manage the stopping places on behalf of the municipality or public establishment that has failed to act.” However, there is nothing in the case-file to show that the State took sufficient action instead of the municipalities in this field.
A situation’s conformity with the Charter results not only from the legislation but also from its effective implementation. The failure to implement in practice the provisions aimed at meeting Travellers’ specific accommodation needs, and thereby guaranteeing them equal access to housing, constitutes discrimination in the effective enjoyment of this right.
Consequently, the deficient implementation of the legislation on stopping places for Travellers constitutes a violation of Article E in conjunction with Article 31§1 of the Charter.
Roma of Romanian and Bulgarian origin
Persons unlawfully present on the territory of a State Party do not come within the personal scope of Article 31§1 of the Charter (Defence for Children International (DCI) against the Netherlands, Complaint No. 47/2008, decision on the merits of 20 October 2009, § 45). With regard to Roma migrants residing legally in France, under Article 31§1 of the Charter, persons legally residing or regularly working in the territory of the Party concerned who do not have housing of an adequate standard must be offered such housing within a reasonable time (Conclusions 2003 and 2011, France).
The government stated that legally resident Roma migrants who wish to live in mobile homes can take advantage, in the same way as Travellers, of the parking spaces available in the stopping places provided for this purpose. However, it did not deny the precarious housing conditions of Roma living outside the duly equipped sites. The Forum did not challenge the government’s argument. However, in view of the finding of a violation concerning the deficient implementation of the legislation on stopping places for Travellers, Roma wishing to live in mobile homes have to deal with the same shortage of parking spaces.
Consequently, the deficient implementation of the legislation on stopping places for Travellers constitutes a violation of Article E taken in conjunction with Article 31§1 of the Charter also with regard to Roma wishing to live in mobile homes.
- violation of Article E taken in conjunction with Article 31§2 concerning Travellers and Roma of Romanian and Bulgarian origin (unanimously)
Article 31§2 of the Charter is directed at the prevention of homelessness with its adverse consequences on individuals’ personal security and well-being (Defence for Children International (DCI) against the Netherlands, Complaint No. 47/2008, decision on the merits of 20 October 2009, § 61). States Parties must therefore take action to prevent categories of vulnerable people from becoming homeless (European Roma Rights Centre (ERRC) against Bulgaria, Complaint No. 31/2005, decision on the merits of 18 October 2006, § 54). This requires that procedures be put in place to limit the risk of evictions and to ensure that when these do take place, they are carried out under conditions which respect the dignity of the persons concerned (Centre on Housing Rights and Evictions (COHRE) against Italy, Complaint No. 58/2009, decision on the merits of 25 June 2010, § 67).
Moreover, when an eviction is justified by the public interest, authorities must adopt measures to re-house or financially assist the persons concerned (Conclusions 2003, France). If illegal occupation of a site or dwelling may justify the eviction of the illegal occupants, however, the criteria of illegal occupation must not be unduly wide. The eviction should be governed by rules of procedure sufficiently protective of the rights of the persons concerned and should be carried out according to these rules (European Roma Rights Centre (ERRC) against Greece, Complaint No. 15/2003, decision on the merits of 8 December 2004, § 51).
Concerning forced evictions of illegally parked mobile homes, in July 2010, the Conseil constitutionnel found that the administrative procedure applicable, as governed by sections 9 and 9-1 of the Act of 5 July 2000, complied with the Constitution.
However, the Committee noted that the Conseil constitutionnel did not rule on the situation’s compliance with the Charter. In that respect, the following circumstances are key to deciding whether forced evictions under the procedure in question are compatible with Article 31§2:
- the Act of 5 July 2000 provides that the mayor may prohibit the parking of caravans in places other than the stopping places (and throughout the municipality), which means that any parking outside these sites is unlawful and the procedure for forced eviction within 48 hours may be implemented if the illegal parking jeopardises public health, safety or order;
- as the number of parking space is still well below the needs assessed, a large number of Travellers can only park outside the duly equipped stopping places. They accordingly risk being systematically evicted, wherever they park.
A person or a group of persons, who cannot effectively benefit from the rights provided by the legislation (in this case the right to park on a site to this effect), may be forced to adopt reprehensible behaviour (in this case, to park unlawfully) in order to satisfy their needs. However, this circumstance can neither be held to justify any sanction or measure towards these persons, nor be held to continue depriving them of benefiting from their rights (European Roma Rights Centre (ERRC) against Bulgaria, Complaint No. 31/2005, decision on the merits of 18 October 2006, § 53).
In view of the finding of a violation of Article E taken in conjunction with Article 31§1, in practice, the execution of the impugned eviction procedure exposes Travellers to a greater risk of becoming homeless in view of the too limited lawful parking conditions, as a consequence of which no alternative accommodation taking account of their specific form of housing is offered to them.
The execution of the forced eviction procedure governed by sections 9 and 9-1 of the Act of 5 July 2000 breaches Article E taken in conjunction with Article 31§2 of the Charter.
Roma of Romanian and Bulgarian origin
Since the right to shelter is closely connected to the right to life and to the right to respect of every person’s human dignity, States Parties are required to provide shelter to persons unlawfully present in their territory for as long as they are in their jurisdiction (Conclusions 2011, France).
Moreover, to ensure that the dignity of the persons sheltered is respected, shelters must meet health, safety and hygiene standards and, in particular, be equipped with basic amenities such as access to water and heating and sufficient lighting. Another basic requirement is the security of the immediate surroundings (Defence for Children International (DCI) against the Netherlands, Complaint No. 47/2008, decision on the merits of 20 October 2009, § 62).
From a wide number of recent sources (European Roma Rights Centre (ERRC) submissions to the European Commission on the legality of the situation of Roma in France dated September 2010, the Amnesty International report of 2011 and a report of July 2011 by Médecins du Monde concerning the living conditions of the Roma in France), a large share of the Roma camp sites do not meet these requirements and have not done so since at least 2006 when the Council of Europe Commissioner for Human Rights noted, in a report of 15 February, that these camp sites were squalid, often without access to water or electricity, wedged under bridges or located between motorways and railway lines only a few metres away from a major ring-road.
Having regard to the continuing substandard housing conditions on these camp sites and since the government has not established that it has taken sufficient measures to guarantee the Roma living there housing conditions meeting minimum standards, the situation is in breach of Article E taken in conjunction with Article 31§2.
Concerning the allegation that the forced evictions do not respect the dignity of the persons concerned, there had been an aggravated violation of Article 31§2 having regard to the adoption of measures incompatible with human dignity and specifically aimed at vulnerable groups and taking into account the active role of the public authorities in framing and implementing these measures (Centre on Housing Rights and Evictions (COHRE) against France, Complaint No. 58/2009, decision on the merits of 28 June 2011, § 53).
The government considers that in so far as the circular of 5 August 2010 was replaced by the circular of 13 September 2010, which the Conseil d’Etat did not regard as unlawful, the situation is no longer in breach of the Charter. On the contrary, given that the police operations to evacuate sites unlawfully occupied by the Roma are continuing under the latter circular, the circular and its application constitute indirect discrimination. Based on statistics cited by Human Rights Watch in the above-mentioned report of July 2011, it transpires that, in February 2011, the Minister of the Interior stated that 70% of the 741 illegal Roma camp sites recorded in July 2010 had been dismantled. Accordingly, the circular of 13 September 2010 has had and continues to have a disproportionate impact on the Roma, in particular those originating from Romania or Bulgaria.
Therefore, the conditions in which the forced evictions of Roma camp sites take place are inconsistent with human dignity and constitute a violation of Article E taken in conjunction with Article 31§2.
- violation of Article E taken in conjunction with Article 31§3 concerning persons choosing to live in caravans (unanimously)
In the context of Article 31§3 of the Charter:
- an adequate supply of affordable housing must be ensured for persons with limited resources. Housing is affordable if the household can afford to pay initial costs (deposit, advance rent), current rent and/or other housing-related costs (e.g. utility, maintenance and management charges) on a long-term basis while still being able to maintain a minimum standard of living, according to the standards defined by the society in which the household is located (European Federation of National Organisations Working with the Homeless (FEANTSA) against France, Complaint No. 39/2006, decision on the merits of 5 December 2007, § 124);
- States Parties are required to adopt comprehensive housing benefit systems to protect low-income and disadvantaged sections of the population. A housing benefit is an individual right: all qualifying households must receive it in practice; legal remedies must be available in case of refusal (Conclusions 2003, France).
It was concluded that there is a shortage of social housing at an affordable price for the poorest people and low-income groups in France (Conclusions 2005 and 2011, France).
In the light of this finding and that concerning the violation of Article E taken in conjunction with Article 31§1 on the ground of the deficient implementation of the legislation on stopping places for Travellers, there is no effective access to social housing for Travellers and Roma wishing to live in mobile homes.
Concerning the discrimination in access to housing assistance because a caravan does not qualify as housing by law, the government pointed out that the “DALO Act” opened up to Travellers the possibility of establishing their official residence with a certified body or a municipal social welfare centre like any other person without a stable home, so they can have access to social benefits. In the absence of a sufficient response in quantitative and qualitative terms to the specific housing needs of Travellers, in particular regarding the adequate reception capacity of stopping places, this consideration cannot lead to a modification of the earlier assessment.
Consequently, the situation constitutes a violation of Article E taken in conjunction with Article 31§3 of the Charter.
- violation of Article E taken in conjunction with Article 16 concerning the families of Travellers and the families of Roma of Romanian and Bulgarian origin (unanimously)
The Travellers and the Roma of Romanian and Bulgarian origin referred to in this complaint include Traveller families and Roma families. In accordance with the equal treatment principle, Article 16 requires States Parties to ensure the protection of vulnerable families, including Traveller and Roma families.
Article 16 guarantees an entitlement to housing as a necessary element of the fabric of social, legal and economic protection that is required to ensure the meaningful enjoyment of family life (Centre on Housing Rights and Evictions (COHRE) against Croatia, Complaint No. 52/2008, decision on the merits of 22 June 2010 § 60). Moreover, “Articles 16 and 31, though different in personal and material scope, partially overlap with respect to several aspects of the right to housing. In this respect, the notions of adequate housing and forced eviction are identical under Articles 16 and 31”. (European Roma Rights Centre (ERRC) against Bulgaria, Complaint No. 31/2005, decision on the merits of 18 October 2006, § 17).
Consequently, the violation of Article E taken in conjunction with Article 31, paragraphs 1, 2 and 3 concerning Travellers and Roma of Romanian and Bulgarian origin also results in a violation of Article E in taken conjunction with Article 16.
Having regard to the information communicated by the delegation of France during the meeting of the Rapporteur Group on Social and Health Questions (GR-SOC) of 20 November 2012,
1. takes note of the statement made by the respondent government and the information it has communicated on the follow-up to the decision of the European Committee of Social Rights (see Appendix to the resolution) and welcomes the measures already taken by the French Government;
2. looks forward to France reporting, on the occasion of the submission of the next report concerning the relevant provisions of the Revised European Social Charter, on the implementation of the measures announced, and keeping, within this framework, the Committee of Ministers regularly informed of all progress made.
Appendix to Resolution CM/ResChS(2013)1
Reply by France to the conclusions of the European Committee of Social Rights (ECSR), submitted by the Representative of France at the GR-SOC meeting of 20 November 2012
PERMANENT REPRESENTATION OF FRANCE TO THE COUNCIL OF EUROPE
GR-SOC meeting of 20 November 2012
Collective Complaint No. 64/2011 – European Roma and Travellers Forum against France
Submissions by the government in reply to the ECSR’s report
In a decision of 24 January 2012, made public on 4 June 2012, the European Committee of Social Rights considered that the situation in France with regard to its Roma and Traveller populations constituted a violation of Articles 16, 19, 30 and 31 of the Social Charter.
In the context of the discussions which will be conducted by the Committee of Ministers to decide on the action to be taken on the ECSR’s report containing this decision, the French Government would like to provide the following clarifications.
I. The conclusions with regard to Travellers
I.1 Housing of Travellers
In the decision cited above, the ECSR considers that France breached Article 31 of the Charter (right to housing) taken in conjunction with Article E (prohibition of discrimination) because of the deficient implementation of the law on stopping places for Travellers.
The Law of 5 July 2000 on the reception and accommodation of Travellers recognises the specific lifestyle of this population group for whom the traditional form of dwelling is a mobile home (or caravan).
It should be emphasised that France is one of the few European countries to have framed a public policy for the reception and assistance of Travellers and introduced binding legislation on the subject. The policy in France is quite distinct from those pursued in other European countries, which have tended more to encourage populations to settle than to attempt to organise their itinerant lifestyles. In these countries, reception policies are based in practice on the voluntary action of local authorities.
In France, all the plans for the reception of Travellers (planning the construction and management of stopping places département by département) have been approved and implemented in 96 French départements. In view of the fact that this arrangement relies both on the establishment of a partnership and on the backing of the authorities concerned, the government has placed most emphasis on an incentive-based and educational approach.
There has been good progress on compliance with the guidelines contained in the plans in the 96 départements. By the end of 2011, the rate of compliance was over 50% in 65 départements. At the end of 2011, the number of available pitches on properly equipped stopping places amounted to 57% of the recommendations made in département plans. It should be noted that by the end of 2011, the State had made a financial commitment for 68% of the pitches on stopping places provided for in such plans. Over the period from 2000 to 2011, the grants awarded to authorities for the establishment of sites came to a total of €294 million. Total public spending (by the State and the local authorities) over the same period amounted to €632 million.
In practice, Travellers do not all have the same attitudes towards travel and itinerant living. Some travel regularly while others only do so occasionally and would like to “put down roots” somewhere. To meet the needs of travellers who would like some form of geographical base without giving up travelling for part of the year, the circular of 17 December 2003 on family plots authorises the State to jointly finance “rented family plots” provided by local authorities. Over the period from 2004 to 2011, 733 pitches on such plots were granted funding in 30 départements. This work is continuing. In addition, it is possible to bring ordinary law arrangements into play to finance housing for those who wish to settle. This policy to promote suitable housing is run in conjunction with the specific policy for the reception of Travellers. This meant that in all départements it was necessary to create links between the plan for Travellers and the action plan for housing deprived persons. Between 2005 and 2011, funding was provided for 251 dwellings designed to meet the needs of sedentary families.
In conclusion, although progress still needs to be made in the implementation of the Law of 5 July 2000, there has been a clear increase in the rate at which stopping areas have been set up in recent years despite the adverse economic climate. It should continue in view in particular of the number of stopping places for which the State has already allocated funding.
I.2 Travellers’ voting rights
The right to vote is by definition a civil and political right. The European Social Charter does not, moreover, make any express reference to this right. The European Committee of Social Rights views it nonetheless as “a necessary dimension in social integration and inclusion” and considers therefore that the right to vote is covered by Article 30 of the Charter. It is as a result of this legal interpretation that the Committee finds that there has been a violation of Article 30 of the Charter taken in conjunction with
As to the substance of the complaint, on 5 October 2012, the French Constitutional Council set aside the provisions of Article 10 of the Law of 3 July 1969 which required people moving around in France without a fixed domicile or residence to provide evidence of three years of uninterrupted attachment to the same municipality to be entitled to be registered to vote. This decision therefore did away with any difference in treatment between Travellers and other French citizens in the exercise of their civic rights.
II.1. Residence conditions for Roma of Romanian and Bulgarian origin
In its decision, the European Committee of Social Rights considered that France had violated Article 19§8 of the European Social Charter (right of lawfully resident migrant workers and their families to protection and assistance) taken in conjunction with Article E (prohibition of discrimination), in the light of the expulsion measures issued against Romanian and Bulgarian Roma, which in the Committee’s view, “were not founded on an examination of their personal circumstances, did not respect the proportionality principle and were discriminatory in nature since they targeted the Roma community”.
1) Firstly, it should be said that Romanian and Bulgarian nationals, like any other European national, may be required to leave French territory, either voluntarily or, where the legal circumstances allow, by force, if they do not meet statutory residence requirements.
Under the regulations on the right of entry and residence of aliens in France, Roma people are treated as nationals of the country of which they hold the nationality, irrespective of their belonging to a specific community.
Since 1 January 2007, when their countries acceded to the European Union, such persons holding Romanian or Bulgarian nationality have enjoyed freedom of movement, the right of settlement for the exercise of a self-employed occupation, free provision of services and the right to reside in the territory of the member States, as laid down in the Treaty on the European Union and Directive 2004/38/EC of 30 April 2004.
Like the nationals of all other EU Member States, the persons in question may reside freely for a maximum period of three months, on the sole condition that they must not represent an unreasonable burden on the host State’s social assistance system. The right to reside longer than three months is granted if they engage in an occupation. If they are studying or out of work, they must have health insurance and sufficient resources not to become a burden on the social assistance system, in accordance with European legislation.
In this connection, it has to be said that the interpretation of transposed provisions from European directives lies with the national courts and, where appropriate, the EU Court. As to the assessment of whether they have “sufficient resources not to become a burden on the social assistance system”, in 2008 the Conseil d’Etat considered that it followed from these provisions that “insufficient resources can be relied on by the prefect as a reason to expel a Community national residing in France for more than three months even if the person concerned is not actually covered by the social assistance system”. Clearly, the interpretation of the applicable law by France’s highest administrative court does not correspond to that of the Committee, which considers that “the burden of coverage of the persons concerned by the social assistance system would have to be excessive, or even unreasonable, for an expulsion measure to be necessary, so as to relieve the State of this burden”. The government takes note of the Committee’s position on this matter but, in view of the legal provisions by which it is bound, and which it implements under the supervision of the courts, it must express its greatest reservations about this.
2) Secondly, the government would like to point out that there is a proper judicial review in France of expulsion measures taken against foreign nationals.
The administrative courts will cancel an expulsion order if the authorities cannot show that they carried out a specific investigation of the situation of the person concerned. Yet, the government is not aware of any major cancellations of expulsion measures taken against Romanian or Bulgarian nationals because there was no investigation of their personal circumstances.
It should also be said that the courts review the reality of the threat to public order justifying any expulsion order. The Committee cites four judgments in this connection but they merely demonstrate quite clearly how effective this remedy is. However, here again, and contrary to what the Committee seems to understand, there have been no significant cancellations for this reason that are capable of supporting the Committee’s findings on this matter.
II.2. Residence conditions for Roma of Romanian and Bulgarian origin
In the decision, cited above, the Committee considers that France violated Article 31 of the European Social Charter (right to housing) taken in conjunction with Article E (prohibition of discrimination), firstly because of the insufficient number of stopping places for Travellers and Roma, secondly because of the continuing substandard housing conditions in Roma camps and lastly because of the forced evictions carried out without any respect for human dignity.
1) The interministerial circular of 26 August 2012 on “forward planning and support for operations to evict illegal camps” reminds prefects of the limits on the State’s actions in the event of eviction. It describes all the precautions to be taken and the arrangements for co-ordinating the actions of local operatives.
While the government considers that operations to dismantle illegal camps are entirely legitimate provided that they are organised pursuant to a court decision or to address a situation posing an immediate danger or health risk, it is nonetheless the role of the State and its partners, particularly the local and regional authorities, working in liaison with associations, to offer a detailed overall response geared to the situation of the persons and families concerned.
The aforementioned circular of 26 August 2012 constitutes an interministerial reference framework for the preparation and support of eviction operations. It places particular emphasis on the need for forward planning and individual tailoring of solutions so that co-operation can be established at as early a stage as possible. Prefects are now required, as soon as a camp has been set up, to prepare a diagnosis of the situation with regard to the health and employment of the inhabitants and the schooling of their children. They must also provide emergency accommodation before dismantling an illegal settlement.
In the accommodation and housing sphere, all the existing instruments can be brought into play, ranging from emergency arrangements, particularly for the most vulnerable people, to potentially setting up temporary accommodation facilities in liaison with the local and regional authorities.
In view of the particular problems faced by people evicted from illegal camps, the Prime Minister has assigned the prefect acting as the interministerial delegate for accommodation and access to housing the specific task of arranging support for people affected by the eviction of a camp – without any distinction to be made in view of the category of occupier. The aim is both to co-ordinate interministerial activities and to provide support for prefects and public services and establishments by providing them with reference points and methodological tools, helping them to identify technical engineering and financial solutions for the implementation of workable schemes for suitable accommodation on the ground and, lastly, proposing a multidimensional work programme for the support of the population groups concerned. Consultations have already begun and the interministerial delegate will meet the Prime Minister before the end of 2012 to take stock of the situation.
2) As to specific and general social and welfare measures and questions of schooling, an interministerial assignment will be given to several inspectorates to review existing arrangements and make an inventory of current experiments and good practices.
To address the problems connected with the schooling of Roma children, three circulars were sent to chief education officers on 12 September 2012. They provide for consistent measures for newly arrived pupils speaking a foreign language and for itinerant and travelling families, and improved organisation of the academic centres set up for them. In each regional education authority and each département, a liaison officer has been appointed to identify rapid solutions to existing problems. In addition, the local and regional network of partners has been reinforced to make the remedies proposed more effective.
The government also intends to step up its action against organised rings which take advantage of situations of poverty and vulnerable individuals (through prostitution, begging, exploitation of children, etc.), whose victims include minors.
3) Regarding the integration of Roma and, in particular, their access to employment, although France has activated the third and last stage of the transitional period during which EU law in matters of free movement of employed workers may be replaced by the application of national legislation on the employment of foreigners, it has decided to review this arrangement.
The government’s first step as a result of this has been to relax the conditions for its implementation. Firstly, the list of 150 occupations open previously to Romanian and Bulgarian employees (which covered 40% of the labour market) was extended to new occupations by an order of 1 October 2012 so as to facilitate access to work in new sectors of activity. The new list comprises 291 occupations rather than the 150 prior to October 2012, and covers over 72% of the job offers sent to job centres. Furthermore, the tax formerly paid by any employer who wished to recruit a Bulgarian or Romanian employee has been abolished. Secondly, France is due to examine, after some discussion with the States concerned, the possibility of lifting the transitional measures restricting access to the labour market before the time limit.
4) France believes strongly that lasting solutions geared to improving the situation of Roma populations are only possible if the States of which these persons are nationals continue to implement an active policy to promote the social integration of this population category. Several European programmes have initiated projects for the integration and economic development of these people in their own countries, by means of financial support and social advancement campaigns.
France considers that the solutions to this problem have to be adopted at European level and require the involvement of the countries of origin in efforts to find lasting solutions. This was the underlying purpose of the agreement signed on 12 September 2012 between the French Office for Immigration and Integration (OFII) and the Romanian authorities. The aim of this agreement is to set up and monitor 80 practical reintegration projects for people returning to Romania from France through a close co-operation programme between the French and Romanian national and local authorities which has yet to be set up. With the same goal in mind, the government asked the Cypriot Presidency of the EU to include this item on the agenda of the General Affairs Council of the European Union in November, as a result of which an initial discussion between Foreign Ministers was held.
1 In accordance with Article 9 of the Additional Protocol to the European Social Charter providing for a system of collective complaints, the following Contracting Parties to the European Social Charter or the revised European Social Charter have participated in the vote: Albania, Andorra, Armenia, Austria, Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Republic of Moldova, Montenegro, Netherlands, Norway, Poland, Portugal, Romania, Russian Federation, Serbia, Slovak Republic, Slovenia, Spain, Sweden, “the former Yugoslav Republic of Macedonia”, Turkey, Ukraine and United Kingdom.