CJEU - C 571/10 / Judgment Servet Kamberaj v Istituto per l’Edilizia Sociale della Provincia autonoma di Bolzano (IPES), Giunta della Provincia autonoma di Bolzano, Provincia Autonoma di Bolzano

Key facts of the case:
 
Since the year 1994, Mr Kamberaj,an Albanian national, applicant in the main proceedings, has resided and has been employed in the Autonomous Province of Bolzano. According to the order for reference, he is the holder of a residence permit for an indefinite period. He has received the housing benefit provided for under Article 2(1)(k) of the provincial law, in respect of the years 1998 to 2008. In 2010, the IPES informed the applicant in the main proceedings that his application for benefit for the year 2009 had been rejected, on the ground that the Autonomous Province of Bolzano’s budget for the grant of that benefit to third-country nationals was exhausted. Following this rejection of his application for housing benefit for the year 2009, Mr Kamberaj started the proceedings against the Istituto per l’Edilizia sociale della Provincia autonoma di Bolzano (the Social Housing Institute of the Autonomous Province of Bolzano; ‘the IPES’), the Giunta della Provincia autonoma di Bolzano (Government of the Autonomous Province of Bolzano; ‘the Giunta’) and the Provincia autonoma di Bolzano (Autonomous Province of Bolzano). 
 
According to the order for reference, the Tribunale di Bolzano acknowledged that the applicant in the main proceedings was, provisionally, entitled to receive the housing benefit applied for in respect of the period from October 2009 to June 2010, that is to say, EUR 453.62 per month. Since the  resolution of the dispute before it called for an interpretation of European Union law, the Tribunale di Bolzano decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling. This reference for a preliminary ruling concerns the interpretation of Articles 2 TEU, 6 TEU, 18 TFEU, 45 TFEU and 49 TFEU, 21 and 34 of the Charter of Fundamental Rights of the European Union and the provisions of Council Directive 2000/43/EC, implementing the principle of equal treatment between persons irrespective of racial or ethnic origin and Council Directive 2003/109/EC, concerning the status of third-country nationals who are long-term residents. The referring court also raises questions concerning Articles 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, and Article 1 of Protocol No 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms. 
 
Results (sanctions) and key consequences of the case:
 
The court ruled that all questions were inadmissible, except two. Firstly, the reference made by Article 6(3) TEU to the European Convention for the Protection of Human Rights and Fundamental Freedoms does not require the national court, in case of conflict between a provision of national law and that convention, to apply the provisions of that convention directly, disapplying the provision of domestic law incompatible with the convention. Secondly, the court ruled that Article 11(1)(d) of Council Directive 2003/109/EC, concerning the status of third-country nationals who are long-term residents, must be interpreted as precluding a national or regional law, such as that at issue in the main proceedings, which provides, with regard to the grant of housing benefit, for different treatment for third‑country nationals enjoying the status of long-term resident conferred pursuant to the provisions of that directive compared to that accorded to nationals residing in the same province or region when the funds for the benefit are allocated, in so far as such a benefit falls within one of the three categories referred to in that provision and Article 11(4) of that directive does not apply.
Paragraphs referring to EU Charter: 

55. By its sixth and seventh questions, which should be examined together, the referring court asks, in essence, whether European Union law and, in particular, Articles 2 TEU, 6 TEU, 18 TFEU, 45 TFEU and 49 TFEU, read in conjunction with Articles 1, 21 and 34 of the Charter, must be interpreted as precluding national or regional legislation which requires citizens of the European Union, in order to be eligible for the housing benefit provided for under that legislation, first, to have resided or worked in the territory of the Autonomous Province of Bolzano for at least five years and, second, to have declared that they belong to or elect to join one of the three linguistic groups present on that territory.

79. According to recital 3 in the preamble to Directive 2003/109, the directive respects the fundamental rights and observes the principles recognised, inter alia, by the Charter which, according to the first subparagraph of Article 6(1) TEU, is to have the same legal value as the Treaties. Pursuant to Article 51(1) of the Charter, the Charter’s provisions are addressed to the Member States when they are implementing European Union law.

80. It follows that, when determining the social security, social assistance and social protection measures defined by their national law and subject to the principle of equal treatment enshrined in Article 11(1)(d) of Directive 2003/109, the Member States must comply with the rights and observe the principles provided for under the Charter, including those laid down in Article 34 thereof. Under Article 34(3) of the Charter, in order to combat social exclusion and poverty, the Union (and thus the Member States when they are implementing European Union law) ‘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 European Union law and national laws and practices’.

81. Since both Article 11(1)(d) of Directive 2003/109 and Article 34(3) of the Charter refer to national law, it is for the referring court, taking into account the integration objective pursued by that directive, to assess whether housing benefit such as that provided for under the provincial law falls within one of the categories referred to in Article 11(1)(d), the Autonomous Province of Bolzano arguing that that is not the case.

92. In that regard, it should be recalled that, according to Article 34 of the Charter, 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. It follows that, in so far as the benefit in question in the main proceedings fulfils the purpose set out in that article of the Charter, it cannot be considered, under European Union law, as not being part of core benefits within the meaning of Article 11(4) of Directive 2003/109. It is for the referring court to reach the necessary findings, taking into consideration the objective of that benefit, its amount, the conditions subject to which it is awarded and the place of that benefit in the Italian system of social assistance.