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CJEU - C 571/10 / Opinion

Servet Kamberaj v Istituto per l’Edilizia Sociale della Provincia autonoma di Bolzano (IPES), Giunta della Provincia autonoma di Bolzano, Provincia Autonoma di Bolzano

Deciding Body type:
Court of Justice of the European Union
Deciding Body:
Opinion of Advocate General
Type:
Opinion
Decision date:
24/04/2012

Key facts of the case:

  1. This reference for a preliminary ruling concerns the interpretation of Article 2 TEU, Article 6 TEU, Article 18 TFEU, Article 45 TFEU and Article 49 TFEU, and Articles 1, 21 and 34 of the Charter of Fundamental Rights of the European Union(2), and the provisions of Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, (3) and Council Directive 2003/109 of 25 November 2003 concerning the status of third-country nationals who are long-term residents.(4) The Tribunale di Bolzano (Italy) also raises questions concerning Article 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, (5) and Article 1 of Additional Protocol No 12.
  2. The reference has been made in proceedings brought by Mr Kamberaj, the applicant in the main proceedings, against the Instituto per l’Edilizia Sociale della Provincia autonoma di Bolzano (IPES) (Institute for Social Housing of the Autonomous Province of Bolzano), the Giunta della Provincia autonoma di Bolzano (Government of the Autonomous Province of Bolzano, ‘the Giunta provinciale’) and the Provincia Autonoma di Bolzano (Autonomous Province of Bolzano) regarding the refusal by the IPES to grant him, in respect of the year 2009, the housing benefit provided for in Article 2(1)(k) of Provincial Law No 13 (legge provinciale n.13) of 17 December 1998 in the version in force at the material time (‘the provincial law’). That monthly benefit, which is designed to make up the rent, is for tenants on low incomes.

Results (sanctions) and key consequences of the case:

Article 11(1)(d) and (4) of Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents should be interpreted as meaning that it precludes a law of a Member State, such as that at issue in the main proceedings, which, with respect to housing benefit, treats third-country nationals who are long-term residents less favourably than home-country nationals and Union citizens who reside in that State, provided that the referring court: – first, establishes that such assistance is covered, pursuant to Article 11(1)(d) of Directive 2003/109, by the concepts of ‘social security’, ‘social assistance’ or ‘social protection’ as they are defined by the law of that State; and – second, verifies whether the Member State has exercised, in compliance with the principle of legal certainty, the option provided for in Article 11(4) of that directive. If that is the case, the concept of ‘core benefits’ within the meaning of that provision must be understood as referring to those which, by helping to satisfy basic needs such as food, accommodation and health, combat social exclusion. It is for the referring court, in the course of a comprehensive examination of the benefits which make up the social assistance system in force in the Member State of residence of a third-country national who is a long-term resident, to ascertain whether the loss of housing assistance, such as that at issue in the main proceedings, would cause the person who formerly received that benefit to lose his accommodation and make it very difficult or even impossible to obtain alternative accommodation.