this has been considered incorrect here because it does not grant the same level of protection as the Directive. Though Estonia and Spain80 also did not transpose this provision, in these two countries the right of residence is unconditional and expulsion is only possible on grounds of public security and public order, which cannot be invoked to serve economic ends. Therefore, in these two cases, the non transposition is considered correct (see comments above). In Denmark, Germany, Romania, Sweden and Slovakia the transposition did not guarantee that the recourse to the social assistance regime would not lead to an automatic expulsion for being an unreasonable burden. Czech Republic provides a very detailed mechanism to assess whether a person may become an unreasonable burden which includes evaluation of social benefits obtained. From the assessment system it is very clear that expulsion cannot be an automatic consequence of recourse to the social assistance system. •
Workers, self-employed persons and job seekers (Article 14(4))
Most of the problems identified were linked to the Article 14 protection for job seekers. Austria, Bulgaria, Denmark, Hungary and Ireland did not transpose the provision. The experts indicate that the system does not offer enough guarantees against expulsion in these cases. In Belgium, Czech Republic, Lithuania,81 Latvia, Romania and Slovakia the system did not grant the same level of protection for job seekers. In Greece, the provision did not protect family member of jobseekers. In Greece and Malta the protection does not extend to self-employed/workers’ family members. In Estonia and Spain, even though the provision has not been transposed, it is still considered as being effective in the national system.. The Estonian and Spanish systems extend the protection to all Union citizens and their family members since expulsion measures can only take place on the basis of public policy and public security. (d) Expiry of passport or identity card and expulsion (Article 15(2)) and prohibition of a ban on entry (Article 15(3))
Article 15(2) provides that expiry of an ID card or passport cannot be a ground for expulsion. Article 15(3) provides that MS cannot use an expulsion decision as the basis for a ban on entry. Most Member States correctly transposed these two provisions82. In Bulgaria, Denmark and Poland, Article 15(2) has not been expressly transposed into the national legislation. However, given that these countries give an exhaustive list of the possible expulsion grounds which does not contain the expiry of an ID card or a passport, the transposition is considered as effective by using an a contrario reasoning. In Ireland and Italy, Article 15(2) has not been transposed; thus in these cases an invalid or expired ID card may be a legal ground for expulsion. The UK and Hungary also fall within this same category: the UK because both the definition of extended family members and appeal rights are based on a valid ID card, and Hungary because an invalid ID card is linked to invalidity of a residence card, thus 80
The concept of unreasonable burden does not exist under the Spanish law (either Community regime or general immigration regime). The possibility of becoming an unreasonable burden is not foreseen by the Aliens Act and cannot be used as justification to terminate the right of residence. Access to social assistance is a fundamental right. 81 Although in Czech Republic and Lithuania the transposition protects workers, Article 7(3) has not been correctly transposed, which implies that certain categories of workers may be not covered by the provision. 82 Both Articles 15(2) and 15(3) have been correctly transposed in Austria, Bulgaria, Cyprus, Finland, France, Germany, Greece, Lithuania, Luxembourg, Malta, the Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain and Sweden. Milieu Ltd & Europa Institute
Horizontal analysis of transposition of Directive 2004/38/EC
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