FEANTSA Housing Rights Expert
Group 2015
London Doughty St. Chambers
Insights from and discussions with European
colleagues. - Assisting the EU to implement the
Charter of Fundamental Rights
Dr. Padraic Kenna NUI Galway
28 EU States – variety of national housing, eviction,
social housing and homelessness systems
AT EU LEVEL: Single market
and consumers, Mortgage
Credit Directive, Europe 2020
Strategy, Social Investment
Package, Social Inclusion
Policies, EU Fundamental
Rights…
EU Charter of Fundamental Rights (EUCFR)
• Charter was “solemnly proclaimed” in 2000
• Became part of binding EU law in 2009
• (Art 2 TEU also states that Treaties are based on respect for
rule of law and human rights).
• EUCFR creates a catalogue of human rights within EU law
Housing rights nexus ?
Foundation Abbé Pierre/FEANTSA (2015)
Overview of Housing Exclusion in Europe:
- Directives and Articles on non-discrimination on gender or
race
- Directive/Regs on free movement of workers
- Directive on reception conditions for asylum-seekers
- Directive on mass influxes
- UNCRPD – Energy – construction products and standards,
- Regulation on EU- SILC
- EU 2020 Strategy – ESF, FEAD and ERDF funding
Housing rights nexus ?
-
EU single market and consumer protection Articles, Regulations, Directives
and Recommendations
Mortgage Credit Directive (2014) and unfair terms Directive
Competition and State Aid rules – (residualisation of social housing)
Commission Social Inclusion policy (Art 153 TFEU)
Art 34(3) EUCFR) “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 Union
law and national laws and practices”
ARTICLE 6 TEU (2009)
1. The Union recognises the rights, freedoms and principles set out in the Charter
of Fundamental Rights of the European Union of 7 December 2000, as
adapted at Strasbourg, on 12 December 2007, which shall have the same legal
value as the Treaties. The provisions of the Charter shall not extend in any way
the competences of the Union as defined in the Treaties. The rights, freedoms
and principles in the Charter shall be interpreted in accordance with the
general provisions in Title VII of the Charter governing its interpretation and
application and with due regard to the explanations referred to in the
Charter, that set out the sources of those provisions.
… 3. 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.
(‘respect the rights’ and ‘observe the principles” to satisfy UK and Poland)
Whats in it - Explanations
Article 51 EUCFR (2009)
1. ”The provisions of this Charter are addressed to the institutions, bodies,
offices and agencies of the Union with due regard for the principle of
subsidiarity and to the Member States only when they are implementing
Union law. They shall therefore respect the rights, observe the principles and
promote the application thereof in accordance with their respective powers
and respecting the limits of the powers of the Union as conferred on it in the
Treaties.
2. The Charter does not extend the field of application of Union law beyond
the powers of the Union or establish any new power or task for the Union, or
modify powers and tasks as defined in the Treaties”
“institutions, bodies, offices and agencies of
the Union” Article 13 TEU
“The Union shall have an institutional framework which shall aim
to promote its values, advance its objectives, serve its interests,
those of its citizens and those of the Member States, and ensure
the consistency, effectiveness and continuity of its policies and
actions. The Union's institutions shall be: the European
Parliament, the European Council, the Council, the European
Commission, the Court of Justice of the European Union, the
European Central Bank, the Court of Auditors”.
• ‘bodies, offices and agencies of the Union’ - includes EBA
(based in Canary Wharf)
Promote the application of the charter… Commission
• The European Semester is the EU's annual cycle of economic policy
guidance and surveillance (based on EU law). The Commission analyses
the fiscal and structural reform policies of every Member State, provides
recommendations, and monitors their implementation; The Member
States implement the commonly agreed policies
• Commission proposes Country Specific Recommendations (CSRs) for
budgetary, economic and social policies.
• For 2016 Country Reports and Country Specification
Recommendationshttp://ec.europa.eu/europe2020/making-ithappen/country-specific-recommendations/index_en.htm
• No references to the EUCFR !
Promoting the application...CJEU
• In 2014, 210 decisions in EU Courts (CJEU) quoted the Charter, compared
with 43 in 2011, 87 in 2012 and 114 in 2013.
• Case C-243/08 Pannon GSM Zrt. V Erzsébet Sustikné Győrfi [2009] –
national court must examine of its own motion compatibility of agreement
with Unfair Terms Directive
• C-415/11 Aziz v Caixa d´Estalvis de Catalunya, Tarragona i Manresa
(Catalunyacaixa) [2013]. CJEU examined the arrangements in relation to
mortgage loans for a family home in the context of the Unfair Terms
Directive.
– Para 61. That applies all the more strongly where, as in the main proceedings, the
mortgaged property is the family home of the consumer whose rights have been
infringed, since that means of consumer protection is limited to payment of damages
and interest and does not make it possible to prevent the definitive and irreversible loss
of that dwelling.
Promoting the application...CJEU
•
•
•
Case C-34/13 Monika Kušionová v SMART Capital, a.s. a loan of €10,000 secured
on her home. The charge allowed for enforcement without any review by a court –
based on Slovakian Civil Code §151. Whether incompatible with Unfair Contract
Terms Directive 93/13/EC?
CJEU considered as relevant - Article 7 EUCFR on right to respect for private and
family life, home and communications; Article 38 EUCFR on on ensuring a high
level of consumer protection, Article 47 EUCFR on the right to a remedy
“Secondly, in its case-law, the Court has already held that the system of protection
introduced by Directive 93/13 is based on the idea that the consumer is in a weak
position vis-à-vis the seller or supplier, as regards both his bargaining power and
his level of knowledge. This leads to the consumer agreeing to terms drawn up in
advance by the seller or supplier without being able to influence the content of
those terms (judgments in Pohotovosť, EU:C:2014:101, paragraph 39 and case-law
cited; Kásler and Káslerné Rábai, C-26/13, EU:C:2014:282 paragraph 39 and the
case-law cited; and Sánchez Morcillo and Abril García, C-169/14, EU:C:2014:2099,
paragraph 22).” (para 48)
“62. With regard to the proportionality of the penalty, it is necessary to give
particular attention to the fact that the property at which the procedure for the
extrajudicial enforcement of the charge at issue in the main proceedings is
directed is the immovable property forming the consumer’s family home.
63 The loss of a family home is not only such as to seriously undermine
consumer rights (the judgment in Aziz, EU:C:2013:164, paragraph 61), but it
also places the family of the consumer concerned in a particularly vulnerable
position (see, to that effect, the Order of the President of the Court in Sánchez
Morcillo and Abril García, EU:C:2014:1388, paragraph 11).
64 In that regard, the European Court of Human Rights has held, first, that
the loss of a home is one of the most serious breaches of the right to respect for
the home and, secondly, that any person who risks being the victim of such a
breach should be able to have the proportionality of such a measure reviewed
(see the judgments of the European Court of Human Rights in McCann v United
Kingdom, application No 19009/04, paragraph 50, ECHR 2008, and Rousk v
Sweden, application No 27183/04, paragraph 137).
65 Under EU law, the right to accommodation is a fundamental right
guaranteed under Article 7 of the Charter that the referring court must take into
consideration when implementing Directive 93/13.?”
Promoting the application….ECB
• Article 127(1) TFEU sets out the objectives of the ESCB (ECB): “The
primary objective of the European System of Central Banks (hereinafter
referred to as ‘the ESCB’) shall be to maintain price stability. Without
prejudice to the objective of price stability, the ESCB shall support the
general economic policies in the Union with a view to contributing to the
achievement of the objectives of the Union as laid down in Article 3 of
the Treaty on European Union.”
• Article 3(3) TEU states: “The Union shall establish an internal market. It
shall work for the sustainable development of Europe based on balanced
economic growth and price stability, a highly competitive social market
economy, aiming at full employment and social progress, and a high level
of protection and improvement of the quality of the environment. It shall
promote scientific and technological advance. It shall combat social
exclusion and discrimination, and shall promote social justice and
protection, equality between women and men, solidarity between
generations and protection of the rights of the child.”
European Banking Authority (EBA)
• Set up by Regulations 1093/2010 and 1022/13 – primary role to create the
European Single Rulebook on prudential rules for for financial institutions
– which includes a common definition of non-performing loans and
forbearance.
• The EBA is entrusted with developing a Single Rule book and
recommendations, along with a European supervisory handbook, to
ensure there is supervisory convergence and consistency of supervisory
outcomes within the Union.
• The MCD (which takes effect from March 2016) provides in Article 28(1),
that ’Member States shall adopt measures to encourage creditors to
exercise reasonable forbearance before foreclosure proceedings are
initiated.’
EBA Guidelines on arrears and foreclosure (2015) come into
effect in March 2016.
“The Guidelines provide broad European minimum standards on how
financial institutions should give effect to the provisions stated in Article
28 MCD, by encouraging creditors to make concessions towards a
consumer facing, or about to face, difficulties in meeting his/her financial
commitments”
“The aim of the Guidelines is to provide greater detail on how financial
institutions should give effect to the relevant arrears and foreclosure
provisions in the MCD, consistent with the EBA’s aim of greater
supervisory convergence. The Guidelines are an appropriate tool for
achieving supervisory convergence because they are legally binding on
the addressees.”
“The EBA does not consider it necessary to add ‘especially preventing the
loss of the debtors residence’ to the guideline because Article 28 MCD
refers to ’exercise reasonable forbearance before foreclosure proceedings
are initiated.”
Promoting the application….