Article 21 - Non-discrimination
Article 34 - Social security and social assistance
Key facts of the case:
Request for a preliminary ruling from the Landesgericht Linz. Reference for a preliminary ruling – Directive 2003/109/EC – Status of third-country nationals who are long-term residents – Article 11 – Right to equal treatment as regards social security, social assistance and social protection – Derogation from the principle of equal treatment in respect of social assistance and social protection – Concept of ‘core benefits’ – Directive 2000/43/EC – Principle of equal treatment between persons irrespective of racial or ethnic origin – Article 2 – Concept of discrimination – Article 21 of the Charter of Fundamental Rights of the European Union – Legislation of a Member State subjecting the grant of housing assistance to third-country nationals who are long-term residents to the condition that they provide proof, in a form specified by that legislation, that they have a basic command of the language of that Member State.
Outcome of the case:
On those grounds, the Court (Fifth Chamber) hereby rules:
1) The present request for a preliminary ruling concerns the interpretation of Article 11 of Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents (OJ 2004 L 16, p. 44), of Article 2 of Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (OJ 2000 L 180, p. 22) and of Article 21 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
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21) That court states, as a preliminary point, that its first and second questions should be answered independently of each other for the purpose of resolving the dispute before it. If housing assistance is to be regarded as a ‘core benefit’ within the meaning of Article 11(4) of Directive 2003/109, an answer to the second question referred would nevertheless be useful for it, since KV bases his action on his right to compensation under Paragraph 8(1) of the oöADG and claims both payment of the amount of housing assistance not received and compensation for non-material harm suffered due to the fact that he was discriminated against on account of his ethnicity. Even if that assistance is not to be regarded as a ‘core benefit’ within the meaning of Article 11(4) of Directive 2003/109, it is nevertheless conceivable, in the referring court’s view, that the rule laid down in Paragraph 6(9) and (11) of the oöWFG amounts to discrimination prohibited under Directive 2000/43 or infringes the Charter. The referring court takes the view that, in exercising the option to apply the derogation provided for in Article 11(4) of that directive, the Land Oberösterreich, when determining the specific modalities for granting housing assistance, was required to comply with other requirements of EU law and of Directive 2000/43 and the Charter and could not apply discriminatory criteria. According to the referring court, the question as to whether Paragraph 6(9) and (11) of the oöWFG is contrary to Directive 2000/43 or to the Charter must therefore be assessed independently of Article 11 of Directive 2003/109.
27) Lastly, should the Court take the view that Directive 2000/43 does not apply to the situation at issue in the main proceedings, the question arises, according to the referring court, as to whether the rule laid down in Paragraph 6(9) and (11) of the oöWFG must be examined in the light of Article 21 of the Charter. It appears to the referring court that the specific modalities of such a rule must be determined in the light of the requirements of the Charter, as that court takes the view that the case in the main proceedings comes within the scope thereof by reason of the fact that there are rules of EU law which require that social benefits be paid to third-country nationals who are long-term residents and that the national legislation at issue in the main proceedings may be regarded as legislation implementing those rules.
28) In those circumstances, the Landesgericht Linz (Regional Court, Linz) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
39) Furthermore, 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. According to Article 34 of the Charter, the European 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 a benefit fulfils the purpose set out in that article of the Charter, it cannot be regarded, under EU law, as not forming part of the ‘core benefits’ within the meaning of Article 11(4) of Directive 2003/109 (judgment of 24 April 2012, Kamberaj, C‑571/10, EU:C:2012:233, paragraphs 80 and 92).
42) It is apparent from the information provided by the referring court that, as the Advocate General noted in point 59 of his Opinion, housing assistance contributes to guaranteeing that those persons can lead a decent existence by enabling them to find adequate housing without spending too large a proportion of their income on housing to the detriment, possibly, of the satisfaction of other basic needs. Housing assistance thus appears to be a benefit that contributes to combating social exclusion and poverty, it being intended to ensure a decent existence for all those who lack sufficient resources, as referred to in Article 34(3) of the Charter. If that is the case, the grant thereof to third-country nationals who are long-term residents is therefore also necessary in order to achieve the integration objective pursued by Directive 2003/109. Consequently, housing assistance appears to be such as to constitute a ‘core benefit’ within the meaning of Article 11(4) of that directive.
58) By its third question, the referring court asks, in essence, whether Article 21 of the Charter, in so far as it prohibits any discrimination based on ethnic origin, must be interpreted as precluding legislation of a Member State under which the grant of housing assistance to third-country nationals who are long-term residents is subject to the condition that they provide proof, in a form specified by that legislation, that they have a basic command of the language of that Member State.
59) In that regard, it should be borne in mind that Article 51(1) of the Charter provides that the provisions thereof are addressed to the Member States only when they are implementing EU law. Article 6(1) TEU and Article 51(2) of the Charter specify that the provisions of the Charter are not to extend in any way the competences of the European Union as defined in the Treaties. Accordingly, the Court is called upon to interpret, in the light of the Charter, EU law within the limits of the powers conferred on it and therefore has no jurisdiction to examine the compatibility with the Charter of national legislation falling outside the scope of EU law (see, to that effect, judgments of 6 March 2014, Siragusa, C‑206/13, EU:C:2014:126, paragraphs 20 and 21, and of 10 July 2014, Julián Hernández and Others, C‑198/13, EU:C:2014:2055, paragraph 32).
62) It follows that, in that situation, a provision such as Paragraph 6(9) and (11) of the oöWFG falls outside the scope of the Charter and cannot therefore be assessed in the light of the provisions of the latter, in particular Article 21 thereof (see, to that effect, judgment of 19 November 2019, TSN and AKT, C‑609/17 and C‑610/17, EU:C:2019:981, paragraph 53 and the case-law cited).
63) By contrast, if housing assistance does constitute a ‘core benefit’ within the meaning of Article 11(4) of Directive 2003/109, it should be noted that, as is apparent from paragraph 39 of the present judgment, the Charter will be applicable. However, a provision such as Paragraph 6(9) and (11) of the oöWFG, which is applicable to all third-country nationals without distinction and from which it is not apparent that it places persons of a particular ethnic origin at a disadvantage, cannot be regarded as constituting discrimination based on ethnic origin within the meaning of Article 21 of the Charter, to which Directive 2000/43 gives specific expression in the substantive fields that it covers (see, to that effect, judgment of 16 July 2015, CHEZ Razpredelenie Bulgaria, C‑83/14, EU:C:2015:480, paragraph 58).
64) In the light of all of the foregoing considerations, the answer to the third question referred is that, where use has been made of the option to apply the derogation provided for in Article 11(4) of Directive 2003/109, Article 21 of the Charter is not intended to apply to legislation of a Member State under which the grant of housing assistance to third-country nationals who are long-term residents is subject to the condition that they provide proof, in a form specified by that legislation, that they have a basic command of the language of that Member State, if that housing assistance does not constitute a ‘core benefit’ within the meaning of Article 11(4) of that directive. If the housing assistance in question does constitute such a core benefit, Article 21 of the Charter, in so far as it prohibits any discrimination based on ethnic origin, does not preclude such legislation.
