Handbook on European non-discrimination law – Contents
Under EU law, Protection from discrimination in the field of access to the supply of goods and services, including housing, applies to the ground of race under the Racial Equality Directive, and to the ground of sex under the Gender Goods and Services Directive. Paragraph 13 of the Preamble to the Gender Goods and Services Directive gives more precision to prohibition of discrimination, stating that it relates to all goods and services “which are available to the public irrespective of the person concerned as regards both the public and private sectors, including public bodies, and which are offered outside the area of private and family life and the transactions carried out in this context”. It expressly excludes application to ‘the content of media or advertising’ and ‘public or private education’, though this latter exclusion does not narrow the scope of the Racial Equality Directive, which expressly covers education. The Gender Goods and Services Directive also refers to Article 57 of the Treaty on the Functioning of the European Union:
“Services shall be considered to be ‘services’ within the meaning of this Treaty where they are normally provided for remuneration […]
‘Services’ shall in particular include:
(a) activities of an industrial character
(b) activities of a commercial character
(c) activities of craftsmen
(d) activities of the professions.”
It would thus seem that this area covers any context where a good or a service is normally provided in return for remuneration, so long as this does not take place in an entirely personal context, and with the exclusion of public or private education. For example, in “CHEZ Razpredelenie Bulgaria” AD v. Komisia za zashtita ot diskriminatsia, the CJEU confirmed that the supply of electricity is covered by Article 3 (1) (h) of the Racial Equality Directive (2000/43).
Case law from national bodies suggest that this will cover scenarios such as gaining access to or the level of service received in bars, restaurants and night clubs, shops, purchasing insurance, as well as the acts of ‘private’ sellers, such as dog breeders. Although healthcare is covered specifically under the Racial Equality Directive, it may also fall under the scope of services, particularly where this is private healthcare or where individuals are obliged to purchase compulsory sickness insurance to cover health costs. In this sense, the CJEU has interpreted services in the context of free movement of services to cover healthcare that is provided in return for remuneration by a profit-making body.
The Racial Equality Directive does not define housing. It is suggested, however, that this should be interpreted through the lens of international human rights law, in particular the right to respect for one’s home under Article 7 of the EU Charter and Article 8 of the ECHR (given that all EU Member States are party) and the right to adequate housing contained in Article 11 of the International Covenant on Economic Social and Cultural Rights (to which all EU Member States are party). According to the UN Committee on Economic Social and Cultural Rights, adequate housing must satisfy a range of requirements. In particular, housing should: be of sufficient quality to ensure protection from the elements; reflect the cultural requirements of inhabitants (and so include vehicles, caravans, encampments and other non-permanent structures); be connected to public utilities and sanitation services; and connected to public services and work opportunities through an
adequate infrastructure. It should also include adequate protection against forced or summary eviction, and be affordable. This understanding of housing also appears in FRA’s approach in its report The state of Roma and Traveller housing in the European Union – Steps towards equality.
Adopting this approach, access to housing would not only include ensuring that there is equality of treatment on the part of public or private landlords and estate agents in deciding whether to let or sell properties to particular individuals. It would also include the right to equal treatment in the way that housing is allocated (such as allocation of low quality or remote housing to particular ethnic groups), maintained (such as failing to upkeep properties inhabited by particular groups) and rented (such as a lack of security of tenure, or higher rental prices or deposits for those belonging to particular groups). In addition, Article 34 (3) of the EU Charter provides: “In order to combat social exclusion and poverty, the Union recognises and respects the right to social and housing assistance so as to ensure a decent existence for all those who lack sufficient resources, in accordance with the rules laid down by Community law and national laws and practices.”
Example: In Servet Kamberaj v. IPES and Others, an Albanian national with a residence permit for an indefinite period in Italy, was denied certain housing benefits because the budget for the grant of that benefit to third- country nationals was already exhausted. With regard to housing benefit, the CJEU stated that the treatment of third-country nationals who are long-term residents cannot be less favourable than that granted to citizens of the Union. However, if the benefit does not fall under the concept of social security and social protection under Article 11 (1) (d) of Council Directive 2003/109/EC, Article 11 (4) of that directive does not apply (the possibility to limit equal treatment to core benefits).
Under the ECHR, the ECtHR has interpreted Article 8 to include cases relating to activities capable of having consequences for private life, including relations of an economic and social character. The ECtHR has also taken a broad approach
to the interpretation of the right to respect for home under Article 8. The ECtHR has construed the right to respect for home widely to include mobile homes such as caravans or trailers, even in situations where they are located illegally. Where state-provided housing is in particularly bad condition, causing hardship to the residents over a sustained period, the ECtHR has also held that this may constitute inhuman treatment.
Example: In Moldovan and Others v. Romania (No. 2),  the applicants had been chased from their homes, which were then demolished under particularly traumatic circumstances. The process of rebuilding their houses was slow, and the accommodation that was granted in the interim was of low quality. The ECtHR stated:
“the applicants’ living conditions in the last ten years, in particular the severely overcrowded and unsanitary environment and its detrimental effect on the applicants’ health and well-being, combined with the length of the period during which the applicants have had to live in such conditions and the general attitude of the authorities, must have caused them considerable mental suffering, thus diminishing their human dignity and arousing in them such feelings as to cause humiliation and debasement”.
This finding, among other factors, led the ECtHR to conclude that there had been degrading treatment contrary to Article 3 of the ECHR.
Example: In Vrountou v. Cyprus, the applicant had been refused a refugee card that would have made her eligible for a range of benefits – including housing assistance – from the authorities. The decision had been based on the fact that she was a child of a displaced woman and not a displaced man. The ECtHR found that this difference of treatment had no objective and reasonable justification and that this unequal treatment had resulted in a breach of Article 14 of the ECHR in conjunction with Article 1 of Protocol No. 1.
Example: In Hunde v. the Netherlands, the applicant, a failed asylum seeker, complained that the denial of shelter and social assistance diminished his human dignity in a manner incompatible with Article 3 of the Convention. The ECtHR noted that, after his asylum proceedings had come to an end, the applicant had been afforded a four-week grace period during which he retained his entitlement to state-sponsored care and accommodation. Following this, he had the possibility to apply for a “no-fault residence permit” and/or to seek admission to a centre where his liberty would have been restricted. Consequently, the ECtHR concluded that the authorities had not failed in their obligation under Article 3 by having remained inactive or indifferent to the applicant’s situation, and rejected the case as manifestly ill-founded.
Under the ESC, the right to adequate housing is guaranteed in Article 31 (1), and the right of adequate housing in respect of families in Article 16. The ECSR clarified this provision as meaning a dwelling which possess all basic amenities such as water, heating, waste disposal, sanitation facilities and electricity. It must not be overcrowded and must be secured. The relevant rights thus provided must be guaranteed without discrimination, particularly in respect of Roma or travellers.
Example: In the complaint against France, FEANTSA alleged that the manner in which legislation related to housing was implemented resulted in a situation of non-conformity with the right to housing under Article 31 and prohibition of non-discrimination under Article E of the ESC. It argued specifically that despite having improved the quality of housing for the majority of the population in France during the last 30 years, the country had effectively failed to implement the right to housing for all, and in particular in meeting the housing needs of the most vulnerable. ECSR found six violations of Article 31 by France, which concerned:
- insufficient progress as regards the eradication of substandard housing and lack of proper amenities of a large number of households;
- unsatisfactory implementation of the legislation on the prevention of evictions and the lack of measures to provide rehousing solutions for evicted families;
- measures in place to reduce the number of homeless being insufficient, both in quantitative and qualitative terms;
- insufficient supply of social housing accessible to low-income groups;
- malfunctioning of the social housing allocation system, and the related remedies;
- deficient implementation of legislation on stopping places for Travellers (in conjunction with Article E).
Example: In FEANTSA v. the Netherlands, the ECSR found that the Netherlands had not complied with the ESC by failing to provide adequate access to emergency assistance (food, clothing and shelter) to adult migrants in an irregular situation.
Under International Law, Article 9 of the CRPD provides for an obligation to take appropriate measures to ensure that persons with disabilities have access, on an equal basis with others to information, communications and other services, including electronic services. This obligation can be fulfilled by identifying and eliminating obstacles and barriers to accessibility.
Example: This case from Romania concerns the criteria for access to social housing. An assessment as to whether or not an applicant has the right to access social housing was based on a points system. A certain number of points were awarded for different categories, including four points for persons with disabilities, compared to 10 points for persons with a higher
education and 15 points for veterans and war widows, revolutionaries and former political detainees. The National Council for Combating Discrimination found that these rules limited access to public housing by persons with disabilities, and therefore constituted direct discrimination on the ground of disability.
352. CJEU, C-83/14, “CHEZ Razpredelenie Bulgaria” AD v. Komisia za zashtita ot diskriminatsia [GC], 16 July 2015.
353. Ibid., para. 43.
354. Hungary, Equal Treatment Authority, Case No. 72, April 2008. For an English summary, see European Network of Legal Experts on the Non-Discrimination Field (2009), ‘Hungary’, European Anti-Discrimination Law Review, No. 8, July 2009, p. 49.
355. Sweden, Supreme Court, Escape Bar and Restaurant v. Ombudsman against Ethnic Discrimination T-2224-07, 1 October 2008. For an English summary, see European Network of Legal Experts on the Non-Discrimination Field (2009), ‘Sweden’, European Anti-Discrimination Law Review, No. 8, July 2009, p. 68.
356. Austria, Bezirksgericht Döbling, GZ 17 C 1597/05f-17, 23 January 2006.
357. France, Nîmes Court of Appeal, Lenormand v. Balenci, No. 08/00907, 6 November 2008; France, Court of Cassation, Criminal Chamber, No. M 08-88.017 and No. 2074, 7 April 2009. For an English summary, see European Network of Legal Experts on the Non-Discrimination Field (2009), ‘France’, European Anti-Discrimination Law Review, No. 9, December 2009, p. 59.
358. Sweden, Court of Appeal, Ombudsman Against Discrimination on Grounds of Sexual Orientation v. A.S., T-3562-06, 11 February 2008. For an English summary, see European Network of Legal Experts on the Non-Discrimination Field (2009), ‘Sweden’, European Anti-Discrimination Law Review, No. 8, July 2009, p. 69.
359. CJEU, C-158/96, Raymond Kohll v. Union des caisses de maladie, 28 April 1998; CJEU, C-157/99, B.S.M. Geraets-Smits v. Stichting Ziekenfonds VGZ and H.T.M. Peerbooms v. Stichting CZ Groep Zorgverzekeringen, 12 July 2001; and CJEU, C-385/99, V.G. Müller-Fauré v. Onderlinge Waarborgmaatschappij OZ Zorgverzekeringen UA and E.E.M. van Riet v. Onderlinge
Waarborgmaatschappij ZAO Zorgverzekeringen, 13 May 2003.
360. UN, Committee on Economic Social and Cultural Rights (1991), General comment No. 4: The right to adequate housing (Art. 11 (1)), UN Doc. E/1992/23, 13 December 1991.
361. FRA (2010), The state of Roma and Traveller housing in the European Union – Steps towards equality, Summary report, Vienna, FRA.
362. CJEU, C-571/10, Servet Kamberaj v. Istituto per l’Edilizia sociale della Provincia autonoma di Bolzano (IPES) and Others [GC], 24 April 2012.
363. ECtHR, Buckley v. the United Kingdom, No. 20348/92, 25 September 1996.
364. ECtHR, Moldovan and Others v. Romania (No. 2), Nos. 41138/98 and 64320/01, 12 July 2005.
365. Ibid., para. 110.
366. Case law of the ECtHR indicates that, in certain circumstances, discriminatory treatment can amount to degrading treatment. For example, see ECtHR, Smith and Grady v. the United Kingdom, Nos. 33985/96 and 33986/96, 27 September 1999, para. 121.
367. ECtHR, Vrountou v. Cyprus, No. 33631/06, 13 October 2015.
368. ECtHR, Hunde v. the Netherlands (dec.), No. 17931/16, 5 July 2016.
369. ECSR, International Movement ATD Fourth World v. France, complaint No. 33/2006, 5 December 2007, paras. 149-155. See also, ECSR, International Centre for the Legal Protection of Human Rights (INTERIGHTS) v. Greece, Complaint No. 49/2008, 11 December 2009; ECSR, European Roma Rights Centre (ERRC) v. France, Complaint No. 51/2008, 10 October 2010.
370. ECSR, European Federation of National Organisations working with the Homeless (FEANTSA) v. France, Complaint No. 39/2006, 5 December 2007.
371. ECSR, European Federation of National Organisations working with the Homeless (FEANTSA) v. the Netherlands, Complaint No. 86/2012, 2 July 2014. See also ECSR, Conference of European Churches (CEC) v. the Netherlands, No. 90/2013, 1 July 2014.
372. See UN, Committee on the Rights of Persons with Disabilities (2010), Communication No. 1/2010, CRPD/C/9/D/1/2010, 16 April 2013 concerning accessibility of the banking card services provided by private financial institution for persons with visual impairments on an equal basis with others.
373. Romania, National Council for Combating Discrimination, Decision 349, 4 May 2016; European network of legal experts in gender equality and non-discrimination (2016), National equality body decision on social housing criteria in Bucharest, News report, Romania, 20 September 2016.
4.4. Access to supply of goods and services, including housing