In 2009, an Albanian long-term resident in Italy (hence deserving equal treatment with EU citizens in the field of social assistance, as expressed by Directive 2003/109/EC on the status of long-term resident third-country nationals in the EU) was refused housing assistance for the first time since his first application in 2004. The funds for housing assistance for non-EU nationals, inferior to the funds available for EU citizens, were exhausted.

The referring Court asked, among other issues, whether this constituted discrimination on the ground of nationality in violation of Article 34 of the European Charter of Fundamental Rights in combination with Directive 2003/109. The Court of Justice of the European Union answered that it was indeed contrary to this provision in that the calculation method used for 2009 had reduced the available funds for housing assistance of non-EU nationals, thus disadvantaging them. While EU law does not impose any autonomous definition in the field of social assistance, Member States must apply Directive 2003/109/EC in compliance with the Charter, as is shown by the explicit reference to it in its preamble.

This could be seen as the simple effect of the principle of equal treatment, had the Court not expressly held that, as long as Article 34 expressly mentions housing assistance, the Italian authority cannot argue that housing allowance can justifably be reduced in a discriminatory way. Although Directive 2003/109 allows Member States to limit equal treatment in the social field to essential services, the latter includes housing (para 92 to 96), in accordance with Article 34(3). This case shows that the fundamental EU principles of subsidiarity and of equality are actually applied with consideration of this provision of the Charter, which creates new rights. Article 34(3) of the leads to the inclusion of housing allowance in the essential services that Member States must equally provide to nationals and non-nationals under the Directive. But it remains clear that this article only covers cases when the Union and the Member States are implementing EU law to provide housing assistance, not housing.

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Comment by G. Bianco and G. Martinico

Edited by Cecile Benoliel
Court of Justice of the European Union
Human rights