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The summer of 2010 will long be remembered in Europe for what has become known as “l’affaire des Roms” in France. The case has revealed profound institutional tensions at EU level between the French government and the European Commission and the European Parliament. The political spectacle that has unfolded has only complicated and added confusion to the actual nature and relevance of the affair from an EU perspective. In particular, it has obscured the legality of the eviction and expulsion of Romanian and Bulgarian nationals of Roma origin from France in light of that country’s obligations in the context of EU citizenship and free movement law, as well as its profound implications for fundamental rights protection. The Roma affair has constituted a severe test of the legitimacy of the EU’s AFSJ and the overall effectiveness of the EU’s legal landscape. The developments in France have demonstrated the limits of current EU enforcement mechanisms in providing a swift and depoliticized answer to contested national measures whose compliance with EU law and fundamental rights remains questionable.

With a view to preventing the kind of escalating political conflict that is being witnessed today over the Roma affair between the EU institutions and a Member State, this paper argues that the EU should develop a new ‘freezing enforcement procedure’ (complementing existing ones), in cases where there is evidence that certain national measures are in violation of EU law and the EU Charter of fundamental rights. This (ex ante) pre-emptive procedure would have the effect of immediately freezing the practical application of the contested national practice until the Commission had decided upon the formal launching of the infringement and/or fundamental rights proceedings and had reached a formal decision on their lawfulness and compatibility with European law and fundamental rights.

Sergio Carrera is Head of Section and Research Fellow in the Justice and Home Affairs Section at CEPS and Visiting Lecturer at the University of Kent (Brussels School of International Studies). Anaïs Faure Atger is a Researcher in the same section at CEPS.