In a grand chamber judgment on Tuesday (case C-571/10 Kamberaj), the Court dealt with some fun and intriguing aspects of EU law, which relate to the relationship between the ECHR, EU law and national law on social security matters.
Mr Kamberaj, an Albanian national with a residence permit for an indefinite period in Italy, was denied certain housing benefits because the funds for those benefits were exhausted. Mr Kambery was of the opinion that this resulted in discriminatory treatment between him, a third country national, and Union citizens since the funding of those housing benefits was split in two categories namely Union citizens and third country nationals and only the funds for the latter category were exhausted.
There are two interesting aspects of EU law in this case:
- Firstly, the relationship between the EU legal order and the national legal order with respect to the ECHR;
- and secondly, the interpretation of Directive 2003/109/EC on the status of third country nationals and its implications for national social security systems.
Relationship between the ECHR, the EU legal order and the national legal order
The first aspect of this case concerns the question whether the reference to the ECHR in article 6 TEU obliges national courts to give direct effect and primacy to provisions of the ECHR, thereby not applying national rules that determine otherwise. Essentially, the national court asks whether Simmenthal II applies to the ECHR now that article 6 (3) TEU states that ‘Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law’. Such an interpretation would have an enormous influence on the effectiveness of the ECHR in the national legal orders of the Member States and on the Court’s powers to interpret the ECHR. Such an interpretation was however averted by the Court:
61 That provision of the Treaty on European Union reflects the settled case-law of the Court according to which fundamental rights form an integral part of the general principles of law the observance of which the Court ensures (see, inter alia, Case C-521/09 P Elf Aquitaine v Commission  ECR I-0000, paragraph 112).
62 However, Article 6(3) TEU does not govern the relationship between the ECHR and the legal systems of the Member States and nor does it lay down the consequences to be drawn by a national court in case of conflict between the rights guaranteed by that convention and a provision of national law.
63 The answer to the second question must therefore be that the reference made by Article 6(3) TEU to the ECHR does not require the national court, in case of conflict between a provision of national law and the ECHR, to apply the provisions of that convention directly, disapplying the provision of national law incompatible with the convention.
Interestingly in cases like Kücükdeveci and Mangold the Court had no difficulty in accepting direct effect and primacy of general principles of EU law. However, since this concerns the ECHR (to which the EU is not a party) that treaty cannot in itself through a reference in the TEU be directly effective through EU law. So the principles are part of the autonomous legal order, but the ECHR is not.
The second aspect of this case concerns the interpretation of Directive 2003/100/EC on the status of third country nationals. That directive provides equal treatment between third country nationals which are long term residents in a Member State and Union citizens with regard to amongst other things social security and social protection. The question the Court needed to answer here was, firstly, whether housing benefits fall under the concept of social security and social protection, and secondly, whether the Italian authorities could limit the principle of equal treatment to ‘core benefits’ of the social security system in such a way that it would exclude housing benefits.
The Court in both instances referred to article 34 of the Charter of Fundamental rights and the objective pursued by the Directive (the integration of third-country nationals with long term legal residence in the Member States) in interpreting article 11 of the Directive.
With regard to the first matter – whether housing benefits fall under the concept of social security and social protection – the Court recalls that it is precluded by the Union legislator to give an autonomous and uniform definition of those concepts. That does not mean that the Member States can do whatever they want:
78 However, the absence of such an autonomous and uniform definition under European Union law of the concepts of social security, social assistance and social protection and the reference to national law in Article 11(1)(d) of Directive 2003/109 concerning those concepts do not mean that the Member States may undermine the effectiveness of Directive 2003/109 when applying the principle of equal treatment provided for in that provision.
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 referrring 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.
The directive also provides for an express derogation for the Member States from their obligations under article 11 (the equal treatment principle). It states that Member States can limit equal treatment with regard to social assistance and social protection to ‘core benefits’. Do housing benefits fall under core benefits? Well, according to the Court it does if it falls under article 34 of the Charter:
90 The meaning and scope of the concept of ‘core benefits’ in Article 11(4) of Directive 2003/109 must therefore be sought taking into account the context of that article and the objective pursued by that directive, namely the integration of third-country nationals who have resided legally and continuously in the Member States.
91 Article 11(4) of Directive 2003/109 must be understood as allowing Member States to limit the equal treatment enjoyed by holders of the status conferred by Directive 2003/109, with the exception of social assistance or social protection benefits granted by the public authorities, at national, regional or local level, which enable individuals to meet their basic needs such as food, accommodation and health.
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.
The Charter is thus slowly but gradually finding its way into the legal systems of the Member States. Moreover, I think it is noteworthy that the Court dismissed the reference to the ECHR so easily in the first part of the judgment, but did give effect to the Charter. Is this to indicate the Court likes the EU Charter more than the Strasbourg ECHR?