HOUSING AS HUMAN RIGHT IN EUROPE

Transcription

1 HOUSING AS HUMAN RIGHT IN EUROPE MATTI MIKKOLA 1 Abstract This article analyses the exercise of the right to housing in Europe in the light of the European human rights standards. Special attention is given to the European Social Charter Art which deals with the right to housing in general and overlaps with paragraph 2 on the prevention of homelessness and paragraph 3 on the affordability of housing costs. The European Convention of Human Rights also includes provisions on the right to housing, such as Article 3 (degrading treatment) and Article 8 (family), which are overlapping with provisions of the Charter. Together these provisions challenge the states to guarantee citizens the right to receive temporary housing of dignity under all circumstances and access to standard housing without unreasonable delay. The last mentioned requires, in turn, that the states have at their disposal a sufficient and sufficiently rotating stock of social rental housing, which is accessible also to vulnerable persons and families. A multidimensional indicator is needed to assess the efficiency of the housing programs and measures to prevent and remove homelessness. Key words: adequate standard, affordability, basic amenities, contractual safety, habitability, homebuyer, homeless, housing, low-cost housing, standard housing, temporary housing, waiting period 1. OVERVIEW 1 Professor of Labour Law, Department of Private Law, University of Helsinki; Address: Yliopistokatu 3, P.O. Box 4, Helsinki, Finland; tel ; matti.mikkola@helsinki.fi. Formerly Member ( ) and Chairman of the European Committee on Social Rights. 1

2 Without a dwelling, it is difficult to find shelter from the elements, to satisfy basic needs or to replenish one s body and mind. Of course, the same difficulty applies to self-actualisation, as well as to maintaining privacy and starting a family. Housing is a necessity and it should be recognised as a basic human right across Europe, where there are considerable seasonal changes, where winters are cold and where life without a dwelling falls short of being dignified. Whether or not this is really the case, and the paths towards the realisation of the right to housing as a fundamental human right, are the concerns of this article. The question of housing encompasses economic, political, cultural and legal aspects. Any effort targeting one policy area alone is unlikely to guarantee the realisation of the right to housing. Legal measures are required, in particular when aiming to guarantee that the most vulnerable persons and families attain the possibility of living in dignity Situation and tendencies Market The majority of Europeans are either home-owners or tenants in dwellings owned by someone else. The landlord, whether this is a public landlord or some other type of organisation or a private individual, expects a profitable return on his investment in the form of rent or an increase in property values. It follows that a place of residence is also a capital investment. In recent decades, many countries have actively created in-between alternatives to owning and renting. A would-be occupant is typically required to invest in some portion of the dwelling s value and become a part owner. As a part owner, the occupant would not be entitled to a full share of any increase in value, but would enjoy greater security of tenure than a mere tenant. Ownership status can also be applied to distinguish between different types of markets within the housing market itself. There are owner-occupied and rental markets, as well as a market for housing that falls between the two. The possibility of securing housing is determined primarily by the citizen s competitive position and the means of action available to him in the aforementioned markets. Poor financial status limits the possibility of obtaining standard housing, and, in effect, may often result in inadequate housing or homelessness. 2

3 Because the market mechanism is insensitive to the universal need for housing and inept at correcting the inequalities it creates, active housing policy is needed. Policies The primary questions for housing policy deal with the functioning of the housing market, the relationship between demand and supply, and the accountability and reliability of contracts in all areas of the housing market. In the owner-occupied market, public intervention usually translates into providing consumer protection for the buyer against unfair or disproportionate contractual conditions, as well as against inadequacies of and faults in housing. The state may also regulate the owner-occupied housing market by means of interest rates, low-interest mortgages and interest rate subsidies, as well as tax relief. In the case of part-owned housing schemes, the state or municipality often partly finances new house construction. The public authority may also provide direct subsidies to reconstruction projects and to first-time homebuyers. In the rental market, the need for protection focuses also on contractual conditions, especially on the protection of the weaker party (i.e. the tenant) against unfair or disproportionate contractual conditions, unjustifiable rent increases and indiscriminate termination of tenancy agreements. Moreover, in the interest of meeting the housing needs of disadvantaged groups in a dignified and sustainable way, sufficient stock of rented and social rented housing, as well as temporary shelter for emergency accommodation, are required. Governments may also ensure the right to access and maintain rental housing by regulating rents or by introducing housing allowances. Contemporary housing policy is more and more frequently concerned with high purchase prices and housing expenditure, which have together resulted in disadvantaged groups increasingly seeking social rented housing and facing a greater risk of homelessness. To counter this trend, especially in countries aiming to secure social integration and promote the well-being of citizens, the core function of housing policy should be that of guaranteeing that the citizens can obtain adequate housing. To this end, many countries have subsidised housing costs with low-interest loans, interest rate subsidies, tax allowances and other such 3

4 systems. They have also borne some of the housing costs by regulating rents and by setting up housing benefit systems Legal sources and definitions Provisions The majority of housing demand is satisfied by markets. People either purchase a dwelling, rent it from a private individual, company, foundation or non-governmental organisation, or have it provided for their use by a public body. However, the most vulnerable citizens are not catered for by the market and thus face inadequate housing or homelessness. Well-functioning housing policy, supported by national legislation, not only ensures fair and undisturbed housing markets and access to housing but also sets minimum standards for the quality of housing and prevents homelessness. To this end, European States have committed themselves to universal international human rights conventions, which they have enforced further by adopting specific European human and basic rights. The UN International Covenant on Economic, Social and Cultural (ESC) Rights sets universal basic standards for the minimum requirements of housing (Art. 11 1). The UN Committee on ESC Rights (the CESCR) specified those requirements in a General Comment (1991) by introducing seven conditions. Housing is required to be safe for the tenant; equipped with working basic amenities; affordable; habitable; accessible; located allowing access to employment, public services and other social facilities; and suitable for size and culturally for the occupant and family. 2 The equivalent European human rights provision was added to the Revised European Social Charter (the ESC) in 1996 (Art. 31). The conditions of appropriate housing ( 1) are that housing is accessible and qualitatively of adequate standard ( 2), no one is left homeless and ( 3) housing prices are affordable. The European Convention on Human Rights (the Convention) also requires, at least potentially, that the States guarantee their citizens the possibility to housing of human dignity (Articles 2 and 3), to privacy and to family life (Article 8). However, the European Court of 2 CESCR General Comment 4 of 13.December

5 Human Rights (the Court) has largely refrained from setting positive obligations on the States in its case law in respect of housing situation or even prevention of homelessness. Thus, the main interest of this article will be focused on Article 31 of the Charter. Article 31 of the ESC With a view to ensuring the effective exercise of the right to housing, the Parties undertake 1. to take measures designed to promote access to housing of an adequate standard. 2. to take measures designed to prevent and reduce homelessness with a view to its gradual elimination. 3. to take measures designed to make the price of housing accessible to those without adequate resources. With the wording of the Charter s Article 31 and the aforementioned universal basic standards of housing in mind, the European human rights principles of housing could be summarized as the following: Fig. 1: Principles of the right to housing under Art. 31 of the ESC 3 3 Contrary to the disposition presented here, the ECSR has treated the right to standard housing under the first paragraph in general, but, in case of social rental housing, under the third paragraph. 5

6 Accessibility In order to ensure accessibility of housing, the state must provide legislation to protect homebuyers and tenants against unfair contractual conditions, provide home-buyers with consumer protection and tenants with protection against ill-grounded termination of contract and forced eviction. After all, housing is the single most important purchase decision for most home-buyers, while for tenants it constitutes a fundamental living arrangement. To ensure availability of housing, sufficient number of housing units is required. Crucial to housing supply is the availability of housing in general and rented housing in particular, including the degree to which social rented housing is available to those who are unable to rent from the open markets. Thus, the third determinant of the accessibility of housing is the allocation of social rental housing stock. Prevention of homelessness is not possible unless social rented housing is targeted at those living in poverty, in a vulnerable situation or in social exclusion. Adequate standards 6

7 Adequacy of housing may be considered as a general indicator of housing policy on the basis of the definition of the UN Committee on Economic, Social and Cultural Rights 4, or, on the basis of the Charter (Art. 31 1), as referring to the qualitative aspects of housing. As an indicator of quality, an adequate standard of housing means a dwelling should be habitable and allow a life of human dignity. It should be of robust construction and allow for safe, healthy and hygienic living. It should allow for basic living functions, an integral part of which is access to basic amenities, including clean water, lighting and heating. Another dimension of adequate standard of housing is suitability, which means that a dwelling should be suitable for the occupant family or person. This sets requirements on surface area, immediate surroundings, location vis-à-vis places of work, school and other social services, as well as on suitability with the occupants cultural background. 5 A cramped dwelling may pose limitations to occupants daily routines and, as such, be inhabitable, whereas a dangerous location may in fact constitute a health risk. Homelessness Homelessness may be defined in many ways. All definitions share the view that rooflessness lacking any kind of shelter amounts to homelessness. When a person is forced to live in unsafe or unbearably inadequate conditions may also be considered as homelessness. This may cover inadequate basic amenities, such as water, heating or lighting, or extreme overcrowding or other serious types of inadequacy. Living for unreasonably long periods and doing so involuntarily in conditions that prevent achievement of privacy or family life may also be considered as homelessness. In its case law, the ECSR has defined homelessness, or inadequacy of housing, in human rights terms, to mean situations where a person is: 4 5 The UN Committee on Economic, Social and Cultural Rights has required that adequate housing satisfies seven different conditions simultaneously. Housing is required to be: a) safe for the tenant, b) equipped with working basic amenities, c) affordable, d) habitable, e) accessible, f) located allowing access to employment, public services and other social facilities and g) suitable culturally for the occupant and family. CESCR General Comment 4 ( ) Ibid. 7

8 living roofless, living in an insecure or unhealthy situation, living without necessary basic amenities or waiting unreasonably long for standard housing. However, the Committee has not taken a similar stance on the lack of space or everyday problems in acquiring water or heating, which, for the time being, are not considered to amount to homelessness or to constitute human rights violations on the grounds of inadequate housing. Affordability Yet another important factor, characteristic of the private housing market, is the affordability of housing. In addition to purchase cost and expenditure of use, affordability is also dependent on the price of housing which can be regulated by subsidies targeting construction costs, as well as by compensating rent expenditure. Responsible for monitoring the realisation of the Social Charter, the European Committee on Social Rights (the ECSR) has left it to the States to choose between a policy of low-cost housing and a policy of compensating housing expenditure by means of housing allowances or other equivalent measures. Here the emphasis is on the extent to which a person or family can invest in housing and the extent to which society manifests a will to support those who would otherwise not gain access to standard housing. If the right to housing is understood as a possibility to benefit from an adequate dwelling, then affordability means housing expenditure should not overburden a person or family financially, or form an insurmountable barrier to adequate housing. This is what the ECSR has highlighted on several occasions, as in the decision on Collective Complaint no. 39/ The Committee notes that there must be an adequate supply of affordable housing. Housing is deemed to be affordable when the household can pay the initial costs (deposit, advanced rent), the current rent and/or other costs (utility, maintenance and management charges) on long term basis and still be able to 6 Collective complaint 39/2006, FEANTSA v. France, Decision of , p. 32 (paragraph 124) 8

9 maintain a minimum standard of living, as defined by the society which the household is located. The affordability of housing is closely related to other financial considerations of everyday life. Therefore, in order to include everyone in society, it is crucial to note the requirements of a minimum income set in Article 13. The measures against social exclusion provided under Article 30 of the Charter set a new standard for minimum income as well as for housing; the price of housing should not reach a level that forces a person or family into poverty Nature of rights Dichotomy, trichotomy and quatrotomy The right to housing is both a negative and a positive right in nature. In the negative sense, it is expected that a person enjoys respect and protection of dignity and of his or her freedom, integrity and accrued rights against interference from public authority or other organisations or persons. In the positive sense, States are required to fulfil positive obligations, which, in addition to legislation and enforcement, set on the States financial, organisational or human resource related extra requirements for the fulfilment of the rights; in case of housing, they may include developing the quantity or quality of housing, or maintaining affordable housing. Asbjörn Eide criticised already a quarter century ago (1982) that the division of rights into negative and positive rights is overly dichotomous and strict. He pointed out how also the protection of negative rights requires positive resources from the States for the judiciary and for the enforcement of its decisions. He typified human rights on the basis of a trichotomy: respect, protect and fulfil 7. The obligation to respect requires the state to abstain from all type of interferences that violate the dignity and fundamental freedom of people. The obligation to protect requires the public bodies to safeguard the rights of the people with judicial power and other necessary resources. The obligation to fulfil goes even further with the requirements of positive inputs from the state. 7 Eide, Asbjörn, (1989), Realization of Social and Economic Rights and the Minimum Threshold Approach, 10 Human Rights Law Journal, p

10 Many researchers have taken further steps and created tetrachotomies and even pentachotomies for typifying situations. Analysis of the intrinsic nature of social rights guides us also towards a more elaborate categorisation of those obligations that Eide referred to with the word fulfil. In the Social Charter, some of the positive obligations that include a requirement of additional resources are fundamental in nature. The States must ensure these rights as individual enforceable entitlements. The rest of the social rights have a dynamic nature, whereby the States are obliged to promote the fulfilment of the rights with the maximum available resources. In methodological discussions, the former are described as obligation of results, the latter as obligation of means or conduct. The typical negative right intends 1) to respect the property, as is the case under Article 1 of the First Additional Protocol of the Convention. It has, however, been applied also 2) to protect the social security savings of employees where some positive measures are required, for instance the creation of a system of pensions and measures to protect the funds of savings, protected also by Art of the Charter. Ban of forced labour and child labour, freedom to associate and to organize and the prohibition of discrimination are all examples of the same category of fundamental rights, provided again both by the Convention (Art. 4, 11 and 14) and the Charter (Art. 1 2, 7 and E). Duty 3) to ensure the fundamental social rights of persons, such as immediate access to temporary housing, right to minimum income and access to emergency social and medical care, form the other common category of fundamental rights of these two legal instruments, requiring the states to guarantee subsistence and life of human dignity to everyone. The higher is the agreed standard and the more positive obligations it requires from the States, the clearer it is that the right is to be categorised to the fourth group of rights. The obligation of the state is 4) to promote the means towards full compliance with the agreed standards. Thus, the rights in question are rights agreed between European states and they are to be advanced in a way that the results of economic growth and increased welfare are 10

11 enjoyed by all, while everyone is guaranteed the opportunity to standard housing, social and health services, professional development and a decent standard of living. The major part of social rights, a kind of guarantees for welfare, should thus be promoted gradually towards full compliance with agreed standards of human rights of Europe. Articles 2, 3 and 8 of the Convention are applicable in relation to housing and impose requirements on states to protect and ensure persons and families, whose rights have been violated by a third party, against forced eviction, or whose homelessness results from other reasons. 8 All three paragraphs of Article 31 of the Charter provide standards that have the nature of fundamental entitlements and which create requirements on the States to ensure those rights in all circumstances. Other housing rights have a dynamic nature and the States have no immediate obligation to fulfil them upon ratification, but rather within a reasonable or foreseeable timeframe. Textual point of departure The nature of an individual provision is best characterised by the verbs used in the wording. In the Social Charter, in the context of resource regulation, the verbs include among others: facilitate, fulfil, provide, prevent, reduce, make and promote. In Article 31 1, promote is used in the wording demonstrating the dynamic nature of the provision. The States are expected to promote possibilities to housing both in quantitative and qualitative terms, so as to ensure that everyone has access to standard housing. Textual analysis of paragraph 2 leads to a similar conclusion. The verbs used prevent and reduce presuppose that measures are taken with a view to eradicating homelessness in the foreseeable future. The wording of the paragraph 3 of the provision appears to be the most obliging of all, as it requires the States to make the price of housing accessible. Although the States are free to choose their policy in this regard too, they must have a system for ensuring that no one is left 8 In its decision, Moldovan and others (No. 2) v. Romania judgement of 12 July 2005, the ECHR found that the applicants living conditions and the racial discrimination to which they had been subjected had constituted an interference with their human dignity which amounted to degrading treatment within the meaning of Article 3. For environtal cases from social angle under Article 8 of the Convention, see in particular Guerra and Others v. Italy, judgement of Grand Chamber of 19 February 1998 and Fadeyeva v. Russia, judgement of 9 June

12 without a dwelling due to a lack of resources or income. In practice it means that the housing expenditure of those with the least resources must be compensated in full by means of lowprice housing, housing allowances or last-resort social assistance (Art and 30). Each of these textual interpretations is subject to further scrutiny when the principles behind human rights and the decisions of the supervisory bodies are taken into account. Systematic approach The principle, which serves as a starting point for a more systematic and contextual approach, is that everyone should have the possibility to live a life of human dignity. An integral part of this is that everyone, regardless of their situation, should be given immediate access to at least temporary housing, which must be safe, hygienic and offer basic amenities, such as water, heat and lighting. This obligation mainly derives from Article 31 2 of the Charter, but is also grounded in the requirements of Articles 2 and 3 of the Convention that reflect the principle of respecting human dignity and, thus, embody the hard core of the right to housing. In addition, no one is supposed to live in temporary housing indefinitely, as it might jeopardise possibilities for working or attending education, and restrict basic freedoms and the possibility of family life provided by Article 8 of the Convention. Therefore, the right to housing should lead to what is referred to in Article 31 1 of the Charter, which is to ensure standard housing. Noting the provisions of both key treaties, the Convention and the Charter, the fight against homelessness could be seen as the key issue under article 31 of the Charter. It calls for collective measures although, as a last resort, article 31 should be understood as individual standard for right to housing. At the same time, however, it is important that no one should be subject to discrimination. 9 Individual and collective obligations 9 Art.14 of the ECHR and Art. E of the ESC. 12

13 An often used characterisation of the rights provided by the Convention and the Charter is that the Convention protects all individual persons from violations against citizens civil and political rights, whereas social rights are basically collective rights in nature. Social rights define, in principle, the standards of citizens, employees, children, the elderly and other groups of people in general or in relation to work, education, social security and social and health services, which the States must guarantee for their citizens and other legal residents. Social rights have an impact on individual persons only indirectly, through national legislation and as a function of national institutions. There is a theoretical distinction that has fuelled debates among researchers, starting from the obligatory nature of positive rights, methods of assessment and the individual or collective nature of these rights as human rights, which Ida Koch illustrates sharply: 10 economic, social and cultural rights are not formulated as individual rights. Instead, they follow a means-and-ends approach. That is, there is no link between the facts and the legal consequence, but merely a relation between an end and the means supposed to lead to that end. In contrast, civil and political rights are norm rational, as there is usually a link between the facts and the legal consequences; they follow what could be described as an if-so formula. On the basis of this distinction, it has been questioned whether economic, social and cultural rights deserve the designation legal rights in the same way that civil and political rights do. The theoretical distinction falls short in describing the right to housing well, especially if the requirement of human dignity is taken to mean guaranteeing the right to housing for all. The nature of some of the Charter s minimum standards of housing may be viewed as protecting individual citizens just as the rights to minimum income or emergency social and medical care do. Such rights include: reasonable waiting time for standard housing (31 1), habitability of both standard and temporary housing (31 1 and 2), temporary housing for all in all circumstances (31 2), 10 Koch, Ida Elisabeth, Dichotomies, Trichotomies or Waves of Duties, Human Rights Law Review, 5 (1), p

14 affordable housing for those without adequate income (31 3), and non-discrimination (E). Obligations of means or results The ECSR decision of February is an important decision in principle on the right to housing, as the Committee, in accordance with the collective nature of the social rights, held that a provision sets obligations on the States regarding legislation and other resources as well as measures to enforce the right to housing. Furthermore, it required that progress should be statistically transparent and that development programmes should be monitored continually. Equally important is that the Committee required States to submit a schedule on the achievement of stages of development and final results. 12 This is what the Committee had decided already in Collective complaint Autisme Europe v. France (13/2002) and repeated it in following decisions. 13 When one of the rights in question is exceptionally complex and particularly expensive to implement, states party must take steps to achieve the objectives of the Charter within a reasonable time, with measurable progress and making maximum use of available resources. 14 In connection with timetabling with which other regulatory bodies of international instruments are also very concerned it is essential for reasonable deadlines to be set that take account not only of administrative constraints but also of the needs of groups that fall into the urgent category. At all events, achievement of the goals that the authorities have set themselves cannot be deferred indefinitely FEANTSA v. France, Decision of , pp (paragraph and 62). Ibid. paragraph 56. Collective complaint 13/2002, Autisme Europe v. France, Decision of , p.14 (paragraph 53). Collective complaint 33/2006, ATD Fourth World v. France, Decision of , p. 21 (paragraph 62) and Collective complaint 39/2006, FEANTSA v. France, Decision of , pp (paragraph 58). Collective complaint 33/2006, ATD Fourth World v. France, Decision of , p. 21 (paragraph 66) and Collective complaint 39/2006, FEANTSA v. France, Decision of , pp (paragraph 62). 14

15 The meaning of the last mentioned requirement is that, in the absence of a reason mentioned in the Charter s Article G, States are not permitted to fall behind on their development and that the dynamic development required by Article 31 must, in the course of a projected time frame, approach a situation where the minimum standards of housing must be ensured for everyone. Consequently, the requirement of dynamic development approaches a situation where, instead of measures, immediate results are required from States. As previously mentioned, this situation is at hand in respect of human dignity and the rights requiring a State to be in compliance with the standards of Article 31 from the first moment of commitment to it. 2. RIGHT TO STANDARD HOUSING In a well functioning housing market, the starting point is that there is sufficient availability of housing to meet varying social and personal needs as well as sufficient financial resources. To cover the needs of those unable to access the owner-occupied housing market or the private rental market, sufficient availability of social rented housing together with a fair and equal system of allocation is required, as well as positive measures to guarantee the housing rights of the most vulnerable groups. In this context, Article 31 of the Social Charter is the key European human rights provision. Article 31 1 of the ESC With a view to ensuring the effective exercise of the right to housing, the Parties undertake to take measures designed to promote access to housing of an adequate standard. The provision is written in so that it does not apply directly to an individual right, but requires the fulfilment of the right to standard housing with the intention of ensuring that it is effective. Emphasis is placed on both the accessibility and adequacy of housing. The ECSR has promulgated the scope and the expected effects of the provision from the viewpoint of vulnerable groups of people in particular: 15

16 States must guarantee to everyone the right to adequate housing. 16 They should promote access to housing in particular of the different groups of vulnerable persons, particularly low-income persons, the unemployed, single parent households, young persons, persons with disabilities including those with mental health problems Accessibility Contractual safety As housing is the most important investment for most people, the key principle in buying and selling the property of individuals and families is the requirement of fairness and protection of the weaker party in contracting, especially in unequal market situations. Herein lies the opportunity to extend consumer safety. The tenant must also be protected against unfair or disproportionate contractual conditions, faults and deficiencies in the dwelling, indiscriminate rent rises or the termination of contract. In addition, certain standards must be set for the legal protection of tenants, leading to specific questions of policy on harassment, threats and forced eviction. Housing may not be considered accessible simply because it is occupied; the sustainability of the right to occupy housing is also a factor. From this viewpoint, the focus is primarily on the fairness, or reasonableness, of rental contracts. Security of tenure has a dual meaning: it contributes to the fulfilment of the right to housing on one hand, and is used to prevent unpredictable homelessness on other. In this context, the first and second paragraphs of Article 31 are overlapping. Regarding termination of contracts, the starting point should be that there are acceptable criteria which also cover situations where social rented housing is privatised, or sold to a third party. The minimum time for the termination of tenure is comparable to the minimum time for the termination of a work contract where experience, commitment and integration into a Conclusions 2003, France, p Conclusions 2003, Italy, p

17 community are respected by offering longer minimum times for the termination of a contract the longer the validity of the contract. However, in well-functioning housing markets, the landlord must also enjoy the right to a minimum time of termination, during which time a new tenant may be sought. Stemming from different interests and different needs for protection, the tenant and landlord need not have the same minimum times for the termination of tenure. Availability In order to extend the right to housing to cover all in need, there must be sufficient availability of housing. Availability is dependent, first, on the aggregate size of housing stock in general, the rented housing stock in particular and, especially, the volume of social rented housing, and, second, on its turnover rate, i.e. on availability of social housing units for new tenants. Therefore, assessment of accessibility should focus primarily on the amount of housing, on the share of rented housing and, in particular, on the share of social rented housing and its allocation. The size of the social rented housing stock depends, among other things, on the level of construction activity, demolition of old housing and degree of privatisation. Privatisation is accelerated by the increasing faith in the benefits of a market economy, which is supported by the successes of rising industrial countries in the global economy. Social problems in housing projects, brought about by segregation which turns housing areas into slums, constitute the primary motivation for favouring demolition the logic seems to be that it is easier to demolish houses than it is to rehabilitate a slum into a sustainable community. Demolition may be also the only option because the building materials used in industrial construction were not designed to last and because housing projects have had to struggle to get renovation undertaken in time. However, the considerable loss of social rented housing must be compensated by the construction of new social housing, which is often hampered by neo-liberal social policy. Another option for increasing the availability of social rented housing is to speed up the turnover rate. If those who have gained income or property are directed away from social rented housing, it can then be allocated to the less advantaged. Moving one family out and taking another one in may reduce homelessness, but it can also create it. If taken to an 17

18 extreme, it may constitute a violation of the principle of inclusion as families rooted in a community are moved away from their familiar surroundings. Finally, the right to housing becomes a question of how the most vulnerable secure access to new or vacated social housing. If the supply of such housing is less than the demand for it, the right to housing cannot be exercised in full. If five per cent of a country s population lives below the poverty line and if these people are to be placed in adequate housing, then it should be evident that the country needs at least an equal percentage of social rented housing. Doing so is only a theoretical possibility for meeting the housing needs of the poorest part of a population, because the allocation of social housing needs to be fully targeted at this group. Frequently, the percentage of poor people is higher than that. In addition, people approaching the poverty line may also require social rented housing. States are also required, and motivated, to allocate social housing to other social groups as well as the poor. Therefore, one may conclude that in order to guarantee the housing of all vulnerable groups or individuals, the state should have a stock of social rented housing that equals perhaps per cent of the aggregate housing. Allocation In recent times, it has become customary for states to allocate their social rented housing according to level of income and property. When a person reaches an income or property level that is judged sufficient for owning a home or renting it in the open market, then the person is no longer considered entitled to social housing. Financial criteria thus create a mechanism of exclusion. However, it is not only the mechanism of exclusion that determines who gets a dwelling. The social landlords usually select people with the best credit. The poor, unemployed, evicted and other minorities are often left at the bottom of their list of priorities, along with families with difficult children or pets. 18

19 If the availability of social housing is scarce and the objective of eradicating homelessness is anchored to efficiency and results, then the selection criteria must be different. It must be based on the urgency of need, i.e. giving priority to families needs. Multidimensional indicator A general indicator of accessibility must be based on several, simultaneously considered, aspects of housing policy. This is what the ECSR has done by putting together indicators for evaluating the employment situation and measures taken to achieve full employment in different states (under Article 1 1), as well as in evaluating the adequacy of health care systems (under Article 11 1). Therefore, the starting point should be the need for social rented housing in general, and an indicator of its availability in particular, combined with allocation criteria and the urgency of need. When a country has an adequate number of partially-owned housing and a large stock of rented housing, the state may succeed in ensuring the right to housing for all, even if social rented housing makes up for only 10 per cent, or even less, of the aggregate housing. However, such success requires that the allocation of social housing is based on the urgency of need and not only on the level of income or property. If there is a small private housing market, and if the selection criteria are not based on the urgency of need, or are based on level of income and property alone, then the need for social rental housing may be two to even three times higher, i.e up to 30 per cent of aggregate housing. Those who are urgently in need of housing are vulnerable individuals and families, such as homeless persons and families, including homeless youth, families at risk of having children being taken into custody, handicapped and elderly persons living in unsuitable conditions, as well as those who would otherwise be segregated from their secure communities, or whose only option would be residential care or who would be subjected to living in conditions characterised by a lack of human dignity. Information published in 2006 by the UN Economic Commission for Europe on the share of social rented housing in the aggregate housing stock in each European country indicates that, 19

20 in nine countries it was over 15 per cent in 2000 and in four countries it was below 5 per cent. In the light of any indicator, the last mentioned situation is manifestly inadequate. 18 When creating the aforementioned indicators, it must be stressed that they are based on country-specific averages. Within countries, situations may vary considerably. Even if the situation is good on average, the reality in the country s large cities or underdeveloped rural areas may be different. Therefore, there is a need to develop systems for measuring and gathering statistics which reflect the situation in countries problem regions. Waiting periods Vital to evaluating the allocation of housing is the issue of waiting periods for social housing. Temporary shelter provides emergency service, but if vulnerable people stay there for long periods, it might make their situation even more vulnerable. The waiting periods for housing should not become unreasonably long, a view which is endorsed by the ECSR. 19 In determining maximum waiting periods, one starting point could be health care services waiting periods (Art. 11 1), which are measured in weeks or months. However, since the urgent provision of health care is based on the idea of a disease progressing and making treatment less effective, the analogy is not entirely justified despite its apparent similarities. Selection criteria are an important factor in determining maximum waiting periods. If the criteria are based on the income and property levels, then the urgency of need might be overlooked. Nevertheless, there will always be, among applicants, vulnerable families in urgent need of housing and individuals at risk of being institutionalised. In order to take into account their vulnerable situation, maximum waiting periods should be kept short. A family under threat of custodial intervention views six months as a long time and access to standard housing should not be postponed any longer than that. On the other hand, if the urgency of need is incorporated into the selection criteria, then the maximum waiting period in less urgent cases can be longer. One year is a very long time in the lives of those suffering UN Economic Commission for Europe, Guidelines on Social Housing, Principles and Examples, 2006, p.15. The statistics were based on EU Housing Statistics, which were gathered in 2000 and published in Digest 3/2005, p

21 from homelessness or living in temporary circumstances and the maximum waiting period should not extend beyond that for anyone. Therefore, the maximum waiting period could vary from six months up to a year. This would, in principle, be achieved if young persons and families with children, together with others in urgent need, had a maximum waiting period of half a year and others in temporary circumstances one year. However, the actual waiting periods should be tested first against the nature of current homelessness; if the requirement of human dignity is not satisfied, then maximum waiting periods should not be permitted at all. On the other hand, if temporary shelters are to provide the possibility of enjoying integrity, privacy and family life, then the maximum waiting periods could stretch in the opposite direction. Who is covered? Another starting point for tenant selection should be the equal treatment of all citizens, including ethnic minorities and immigrants. Temporary residents might be treated differently. In the meaning of the Charter, temporary residents are: tourists, posted employees and those whose work or resident permit expires in one year, or whose stay has not lasted over a year. The preliminary measures to ensure equal treatment of less resourced people would be: information about the right to and possibility of social housing should reach vulnerable groups and immigrants in a way that is understandable to them; advice, guidance and mediation services should be provided so that their position in the housing market and as applicants to social housing would be, as closely as possible, identical to that of other citizens and, whenever possible, direct and indirect discrimination should be avoided, 2.2. Adequate standard In the Charter, adequate standard refers, above all else, to the qualitative aspects of housing, such as habitability and suitability. The question of affordability is separately regulated in the third paragraph of Article 31 and its evaluation will be returned to in that context. 21

22 law: 20 A dwelling is safe from a sanitary and health point of view if it possesses all Habitability The core provisions concerning habitability are found in Article 31 1 of the Charter and in Articles 2 (right to life), 3 (prohibition of inhuman and degrading treatment) and 8 (respect of privacy and family life) of the Convention. In principle, habitability means that a dwelling should comply at least with the demands of safety, health and hygiene. It should also offer certain basic amenities, the guaranteeing of which is closely related to public services, such as water, heating and light, which both the Court and the the ECSR have stressed in their case basic amenities, such as water, heating, waste disposal, sanitation facilities, electricity, etc. and if specific dangers, such as the presence of lead or asbestos, are under control. 21 The immediate surroundings are also a factor of habitability both under the Charter and the Convention. The Court expressed in a decision in 1998 that it considers, in principle, the close proximity of chemical factories as being potentially harmful to people s lives and preventing people from using their homes and even destroying their family lives. 22 A similar decision was made by the ECSR in The complaint, lodged on 4 April 2005, relates to Article 11 (right to protection of health), Article 2 4 (right to reduced working hours or additional holidays for workers in dangerous or unhealthy occupations), Article 3 1 (safety and health regulations at work) and Article 3 2 (provision for the enforcement of safety and health regulations by measures of supervision) of the European Social Charter. It is alleged that in the main areas where lignite is mined, the State has not adequately prevented the impact for the environment nor has developed an appropriate strategy in order to prevent and respond to the health hazards for the population. It is also alleged that there is no legal framework guaranteeing Digest 12/2006, p. 160; see also Collective complaint 39/2006 FEANTSA v. France, Decision of , pp (paragraph and 62) Conclusions 2003, France, p Guerra and Others v. Italy, Judgment of 19 February Reports 1998-I. Collective Complaint No. 30/2005, Marangopoulos Foundation for Human Rights (MFHR) v. Greece 22

23 security and safety of persons working in lignite mines and that the latter do not benefit from reduced working hours or additional holidays. Suitability From the viewpoint of suitability, adequacy of housing refers to requirements on size, surroundings and location in relation to work, school and social services. Evaluation of suitability should also take into account the tenants cultural background. 24 Of these four factors, the ECSR has taken a position on only one of them, on the question of size: 25 No position on the suitability of surroundings, accessibility to and from places of work or cultural suitability has been promulgated yet. A dwelling is over-crowded means that the size of the dwelling is not suitable in light of the number of persons and the composition of the household in residence. 26 An important guideline to evaluating cultural suitability is the Charter s core functional principle of inclusion. Accordingly, cultural suitability should not mean that people of different social, ethnic or cultural origins are segregated into different areas or different housing blocks. On the contrary, following on from the principle of inclusion, it is required that different sections of the population are encouraged to come into closer contact with one another. This should be accompanied by a social attitude that encourages tolerance, despite the differences in custom and habits. Thus, cultural suitability could mean that citizens should have the possibility of engaging in activities customary to their cultural background in their new housing, as long as their exercise does not cause disproportionate disturbance to the rest of the community Full coverage So far, the ECSR has given concrete meaning to the requirements of Article 31 of the Charter regarding adequate quality, but similar standards for accessibility have not been developed As done by The UN Committee on Economic, Social and Cultural Rights. CESCR General Comment 4 ( ) Digest 12/2006 p. 160 Conclusions 2003, France, p

24 Therefore, this summary comprises an overview of qualitative requirements and a proposed road map to ensure standard housing for every citizen. Fig 2: Road Map for adequate standard housing under Art of the ESC 2.4. Supervision and remedies The ECSR has considered essential that adequate standards of housing are defined in law and applied to practice, and that they should not merely be applied to new projects but, after reconstruction, to all existing housing. Standards of adequacy apply to both owner-occupied and rented housing, including social rented housing. 27 States may set their own measures for supervising the effective application of the regulations. This supervision must cover the sustainability of public services, i.e. water, electricity and communications. 28 It is incumbent on the public authorities to ensure that housing is adequate through different measures such as, in particular, an inventory of the housing stock, injunctions against owners who disregard obligations, urban development rules and maintenance obligations for landlords. Public authorities must also guard against the interruption of essential services such as water, electricity and telephone Conclusions 2003, France, p Digest 12/2006, s. 160 Conclusions 2003, France, p

25 As the right to housing is essentially an individual right, legal protection should cover all violations of a person s or family s right to housing, and it should guarantee the possibility of lodging an appeal to an independent legal body for final decision. Special attention should be paid to the feasibility of this application. It must be, as far as possible, predictable and reliable, and its cost should be affordable to all parties, including vulnerable groups of tenants. If the effectiveness of the process is unattainable by means of conventional legal remedies, then the state is required to create more suitable procedural guarantees for the fulfilment of this right. The ECSR has, for the time being, taken the view that to enforce the right to housing effectively, it must be protected by sufficient legal remedies. Tenants and owners must have the option of appealing to an independent legal body and the cost of legal process must not become an obstacle to the application of law FIGHT AGAINST HOMELESSNESS The second paragraph of Article 31 constitutes the hard core of the regulation. Its objectives are prevention and reduction of homelessness, which requirements are put forth in a manner more obliging than in the first paragraph: take measures with a view to its gradual elimination. Article 31 2 of the ESC With a view to ensuring the effective exercise of the right to housing, the Parties undertake to take measures designed to prevent and reduce homelessness with a view to its gradual elimination. Home means a dwelling that allows a person and members of her/his family to benefit from standard housing and inclusion in the community. Homelessness can be viewed as the 30 Conclusions 2003, France, p

26 opposite, i.e. person or family lacks access to standard housing which would allow home-like residence and inclusion in the wider community. The ECSR has defined homelessness in the following way: The homeless are those individuals who legally do not have at their disposal a dwelling or other form of adequate shelter 31. Furthermore, the ECSR has required that housing in a temporary shelter should not be unreasonably long. 32 In other words, homelessness has been viewed as a condition of rooflessness, i.e. not having any shelter at all, or inadequate housing in a temporary shelter or for an unreasonably long time. Thus the definition of the ECSR is inclusive of the aforementioned definition of homelessness Prevention Prevention of homelessness may refer to either general or targeted housing policy measures to promote access to housing. Essential measures include legal protection of tenants against unfair and disproportionate contractual conditions, indiscriminate termination of contract and forced eviction, as well as having a sufficient stock of rented housing with sufficient turnover to provide housing for vulnerable groups. In this respect, the regulation overlaps with the first paragraph provision of standard housing. In addition, the regulation overlaps also with the requirements concerning availability of social rented housing, selection criteria and maximum waiting periods. Therefore, the standards for availability of social rented housing and maximum waiting periods discussed above are also applicable. In ECSR case law, too, the overlap of regulations has been noted. 33 Above all, the Committee has considered it crucial that the States target their housing measures to guarantee housing for disadvantaged and vulnerable groups of people Conclusions 2003, Italy, p Digest 12/2006, p. 161 Although sufficient social housing production is an important precursor to availability of housing, it is also an important measure of preventing homelessness as put forth in the second paragraph. The matter thus relates to both the first and the second paragraph. If a State has ratified both paragraphs, then a conclusion should be delivered only in relation to one or the other. (Digest 6/2006, p. XX) 26

27 States must take action to prevent categories of vulnerable people from becoming homeless. To this purpose, they must implement a housing policy for all disadvantaged groups of people to ensure access to social housing 34. The same procedural guarantees and remedies against unfair contracting, inhuman quality of housing and illegal treatment that protect the right to housing in general should be applied to protection against homelessness. Protection of tenure against forced eviction is an area where both the Court and the Committee have developed case law. The ECSR has defined eviction as deprivation of housing that a person occupied, on account of insolvency or wrongful occupation. 35 The Committee has emphasised the necessity of legal protection for evicted persons and families both in preventive and in reparative sense: 36 Legal protection for persons threatened by eviction must include, in particular, an obligation to consult the parties affected in order to find alternative solutions to eviction and the obligation to fix a reasonable notice period before eviction. The law must also prohibit evictions carried out at night or during the winter period, provide legal remedies and offer legal aid to those who are in need of seeking redress from the courts. Procedural safeguards are of great importance. Compensation for illegal evictions must also be provided. When an eviction is justified by the public interest, authorities must adopt measures to re-house or financially assist the persons concerned. In order to help vulnerable groups, persons and families with multiple social problems, it should be required also that everyone has recourse to social and legal assistance to defend his or her rights Reduction of homelessness Conclusions 2005, Lithuania, pp Conclusions 2003, Sweden, p Digest 12/2006, p. 161; see also Collective Complaint 39, FEANTSA v. France, Decision of , p

28 Above all, the reduction of homelessness implies the introduction of emergency and long term measures, such as provision of immediate shelter and care of the homeless, as well as measures to help such people overcome their difficulties and to prevent them from returning to situation of homelessness. 37 Temporary housing Although setting waiting periods for adequate housing is admissible, the starting point should be, besides meeting the requirements of the second and third articles of the Convention, to guarantee that all people, regardless of their circumstances, can benefit from dignified housing, the minimum being temporary shelter. Consequently, the state should have at its disposal a sufficient quantity of temporary shelters that can provide for all in need without delay. The requirement of dignity in housing means that even temporary shelters must fulfil the demands for safety, health and hygiene, the integral part of which are basic amenities, i.e. clean water, sufficient lighting and heating. The basic requirements of temporary housing include also the security of the immediate surroundings. Nevertheless, temporary housing should not be subject to the same requirements of privacy, family life and suitability that are required from more permanent forms of standard housing. 38 The latest decision of the ECSR highlights the importance of respecting human dignity and the greatest possible degree of independence in temporary housing. 39 The founding of reception camps, and the housing of people in temporary shelters do not satisfy human dignity and are in violation of the aforementioned requirements. Gradual elimination of homelessness In addition to general means, persons and families with multiple social problems should be supported by effective multidimensional measures that improve their capacity to cope with Collective complaint 39/2006, FEANTSA v. France, Decision of , p. 26. Access to temporary shelter should be always available to those in need. Temporary shelters also need to meet the requirements of adequacy, yet the more stringent requirements (privacy, possibility for family life) might have to be reserved for the more permanent forms of housing. On this, see Digest 12/2006, p Collective complaint 39/2006, FEANTSA v. France, Decision of , p. 29 (paragraph 106). 28

29 the requirements of everyday life and improve their possibilities of obtaining sustainable housing. Positive actions should be focused on the most vulnerable groups of society, such as young couples and families with children, the elderly, disabled persons and in particular those who are socially excluded from the rest of society. Furthermore, special attention should be given to equal treatment of ethnic minorities and migrants, discussed in greater detail in section 6.1 below. The States may set their political priorities independently, as long as the measures taken produce results. 4. AFFORDABILITY It is central to affordable housing prices that demand and supply are balanced in the housing market in general and in the rented market in particular. In case there is no balance, or in case housing costs effectively limit the possibilities of those with least resources obtaining standard housing, then the public authority should aim at correcting the situation. There are several measures that can be taken, including regulation of social housing costs, rent regulation and provision of indirect or direct income transfers. Here again the choice lies in the hands of the States, but the effects will be assessed on international criteria. Article 31 3 of the ESC With a view to ensuring the effective exercise of the right to housing, the Parties undertake to take measures designed to make the price of housing accessible to those without adequate resources. The wording of the regulation does not specify the type of support that should be granted to those who would otherwise not have the possibility to adequate housing. Owing to the nature of the housing markets, the analysis starts with support for buying a home, the importance of which is evident for first-time homebuyers. Regarding first-time homebuyers with family, the regulation overlaps with Article 16. Following that, the analysis focuses on housing allowances, which may be targeted to compensate for housing prices in general or on certain groups of individuals or at the costs of 29

30 specific utilities. The allowance may take the form of direct or indirect support, or it may be a benefit in the form of a price subsidy, e.g. discounted rates on electricity, water or communications Support for homebuyers In order to advance equality between generations, the primary beneficiaries of support should be first-time homebuyers. Another important group consists of disabled persons, who are at a disadvantage in both owner-occupied and part-owned housing markets. As with other forms of support, support for homebuyers may be universal in nature, or it may be related to the level of income and property. As before, here international legal supervision is impartial as regards the priorities of political decision-making and thus the States may define the forms of support that suit them best. Issues for monitoring include the level of support, especially the proportion of total housing costs, itspact on housing prices and its effectiveness in advancing housing standards. The transition to new methods of payment, such as credit cards, has steepened the divide between those served by credit institutions who are able to purchase a home and related commodities on credit and those who are unable to do so. The self-regulating financial market has become a significant regulator of housing markets. At the same time, it also regulates indirectly the relationship of owners and tenants, and has an impact on the social exclusion of others. To preserve equality in the allocation of owner-occupied housing, it is important that no group in the population, such as ethnic minorities or migrants, is subjected to legal constraints on purchase, discounts, loans, interest rate subsidies or tax relieves, unless customary individual grounds exist Low-cost housing Over time, local communities have extended their boundaries into land which is not only cheaper than in the suburbs and city centres, but where the construction of single houses is potentially less costly. Societies may support independent construction and reconstruction by 30

31 means of investment loans, building grants or interest rate subsidies, which further reduce the capital cost of housing. Societies also have many means at their disposal for curtailing housing expenditure. In the context of Article 31 1, the ECSR addresses the possibility to social housing overall, not merely in terms of housing prices, but in terms of accessibility and adequate standards, demonstrating that the Committee s decision-making is primarily focused on low-cost housing. In this article, access to and adequate standard of social housing are discussed in the context of Article Compensation for housing costs A poorly functioning housing market, or other factors, may force a state to resort to rent regulation, or to cutting social housing costs, e.g. by not invoicing administrative expenses. In such a case there is a reduced need to balance housing prices with allowances. However, the remaining housing costs should be compensated at least for those who are unable to afford the price of housing. To guarantee that persons with inadequate resources have the possibility of obtaining standard housing, it is important that the compensation of housing prices is passed into law. Further, the system should be sufficiently attentive to the requirements of adequacy of housing and it should cover the price of basic amenities (water, lighting and heating). At the same time, the compensation should guarantee that: households housing prices do not rise to an unreasonable level, which might obstruct the possibilities of fulfilling other basic social needs too much; high housing prices of persons and families with inadequate resources do not lead to segregated low-quality housing or slums; and an inadequate level of income or property does not lead to homelessness. The level of housing allowance may be made dependant on the number of people who benefit from it, surface area or other objective criteria, or it may be universal and independent of income. It may also be targeted, paid to certain groups in the population who are considered 31

32 disadvantaged in accessing standard housing, such as young people, the elderly and disabled persons. The benefit may also be based on means testing or a combination of the aforementioned. One starting point for developing housing price indicators could be that prices of any group of population should not exceed a third of their disposable income. However, regarding families of one or two adults with many mouths to feed, operating with one indicator alone would not be justified. In line with the definition of minimum income (Art. 12 and 13), it is more judicious to standardised indicators. In the evaluation of housing allowance s adequacy, one indicator could be derived from relating average benefit levels to the minimum wage, or to the minimum income of the lowest earning families. In ECSR case law, support for housing has been understood primarily as adequate supply of low-cost or subsidised housing and the requirement has been that an adequate supply of affordable housing must be ensured. 40 Another requirement has been that housing prices should not lower anyone s standard of living below the minimum. 41 Housing is affordable if the household can afford to pay initial costs (deposit, advance rent), current rent and/or other costs (utility, maintenance and management charges) on a long-term basis while still being able to maintain a minimum standard of living, according to the standards defined by the society in which the household is located. 42. For housing allowances (or housing benefit), the ECSR has set three requirements. It should (a) target low-income and disadvantaged sections of the population, (b) be based on objective criteria and (c) allow recourse to legal remedies. 43 States must introduce housing benefits for low-income and disadvantaged sections of the population 44. Housing allowance is an individual right: all Conclusions 2003, Sweden, p Digest 12/2006, p. 162 Conclusions 2003, Sweden, p Digest 9/2006, p Conclusions 2003, Sweden, p

33 qualifying households must receive it in practice; legal remedies must be available in case of refusal. 45 The Committee put pressure on Sweden, which has a universal system, for not targeting its housing allowance system on low-income earners. The Conclusion may be criticised because it focuses on a country s chosen policy option.. Instead of political alternatives, the focus should be on the effectiveness of support systems. In the case of Sweden, a negative conclusion would be justified if recipients of universal housing allowance, or any additional support, could not maintain a minimum standard of living. This, however, is not the case, as the required difference is guaranteed in the form of minimum income. In practice, a person with low income receives additional support as an income-related benefit. Evaluation criteria for housing allowance systems have not yet materialised, neither in terms of volume nor coverage. The evaluation of the situation in different countries should concentrate first on the support system s total volume per capita or per household. At the same time, there could be an assessment of the levels of benefits or allowances granted and of impacts on households housing prices. A system s effectiveness would thus be evaluated as the compound effect of several simultaneous factors. In addition to aggregate totals, allocation of allowances or benefits and equal treatment of different sections of the population would be important. In principle, equal treatment should cover all people within the scope of the Social Charter. As with Article 13 of the Charter, illegal immigrants and temporary residents are excluded. However, anyone in emergency due to lack of resources, as well as illegally immigrated children are required to be supported with temporary measures according to Article The complaint, lodged on 3 March 2003, relates to Articles 13 (the right to social and medical assistance), 17 (the right of children and young persons to social, legal and economic protection) as well as Article E of the Revised European Social Charter (prohibition of all forms of discrimination in the application of the rights guaranteed by the treaty). It is alleged that recent reforms of the Aide médicale de l Etat (State medical assistance) and to the Couverture maladie Conclusions 2005, Sweden, p Collective complaint No. 14/2003 International Federation of Human Rights Leagues (FIDH) v. France 33

34 universelle (Universal sickness cover) deprive a large number of adults and children with insufficient resources of the right to medical assistance. Since housing allowances are not retrospective benefits, immigrants may have to wait for them for a long time. Internationally, several years has been viewed as acceptable. 47 However, the ECSR has required that the waiting period must not be excessive and stated: Housing allowance is an individual right: all qualifying households must receive it in practice; legal remedies must be available in case of refusal. Whether the Committee s analogy to coordination of social security benefits is fully justified here could be discussed. However, the question of inclusion and full citizenship remains unanswered. Sufficient time for an individual or family to manifest its willingness to resettle and integrate into the society needs to be assessed, as well as the time which no longer prompts suspicion of misuse of benefits, known as social tourism. 5. CASE LAW UNDER ARTICLE 31 OF THE ESC The Social Charter s Article 31 regulating the right to housing and its related case law demonstrate the creation of new case law. The provision came into force in 1999, after which the States that were bound by the Revised Charter, and the provision in question, submitted their national reports. Thereafter, Conclusions by state (2003) set a direction for future case law. Moreover several general and a number of specific decisions on the collective complaints have been taken by the ECSR since In February 2008, the ECSR added several standpoints on the content of Article 31 when it took decisions on two collective complaints (nos. 33/2006 and 39/2006). 48 As their subject matter was largely the same, the Committee decided the two complaints at the same time and even used much the same wording in the reasoning. Figure 3 summarises the items with which the decisions were concerned European Code of Social security (1964). Collective complaint 33/2006, ATD Fourth World v. France, Decision of , and Collective complaint 39/2006, FEANTSA v. France, Decision of

35 Fig 3: Items of decisions of the ECSR on complaints no.33/2006 and 39/2006 With all the overlapping merits combined, there were 10 decisions on the merits of the complaints. In the first seven the decision was unanimous; in the last three a majority decision was reached. Beside the decision, the importance of the cases is in the reasoning which reflects their actual content. In line with the Committee s normal practice, the decision starts with an account of the normative base related to the case, which is usually accompanied by an overview of the previous case law. What follows is an account of the situation in the country in question and, finally, the conclusions that constitute the Committee s decision. They show whether the case law has remained unchanged or if, as a result of the analysis, a new synthesis has been established; i.e. new case law. 35