The right to housing is part of the international obligations of the Member States of the European Union and is explicit mentioned in some constitutions. In practice, however, the European citizens have no real right to access to decent and affordable housing. They usually have temporary access to housing support, social housing or emergency accommodation only when they meet the legal requirements and criteria. The right to housing is not enforceable as a subjective right and has no real operational character.
EU legislation influences Europe’s housing markets
Housing is as a service of general economic interest (SGEI) in the competence of the Member States and their national, regional and local authorities in line with Article 36 of the Charter of Fundamental Rights of the European Union titled ‘Access to services of general economic interest: ‘The Union recognizes and respects access to services of general economic interest as provided for in national laws and practices, in accordance with the Treaties, in order to promote the social and territorial cohesion of the Union’
Nevertheless, EU legislation has a considerable impact on the production of affordable, decent and energy-efficient housing, for instance, through the fiscal and competition regulations or funding. The EU creates the framework for public investments and due to this fact, the EU can influence the housing markets.
Back to the state’s obligations: The right to housing is recognised in the United Nations Universal Declaration of Human Rights, which says in Article 25 (1) that ‘Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services’.
The European Social Charter of the Council of Europe aims at applying the United Nations’ Universal Declaration of Human Rights of 1948 within Europe. The right to housing can be found in article 31: ‘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;
- to prevent and reduce homelessness with a view to its gradual elimination; and
- to make the price of housing accessible to those without adequate resources.
“The respect for the right to social and housing assistance…”
In the Charter of Fundamental Rights of the European Union (2012/C 326/02) the “right to housing” is not mentioned. On the other hand, the right to housing assistance (meaning financial support) is stated in Article 34 Social security and social assistance (3): ‘In order to combat social exclusion and poverty, the Union recognizes 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.’
Housing as service of general economic interest (SGEI)
In most Member States, housing is implemented by means of a service of general economic interest (SGEI), in line with Article 36 of the Charter of Fundamental Rights of the European Union „Access to services of general economic interest“. The Union recognises and respects access to services of general economic interest as provided for in national laws and practices, in accordance with the Treaties, in order to promote the social and territorial cohesion of the Union. Under the terms of Protocol No 26 annexed to the Treaty of Lisbon, the primary responsibility for commissioning, providing, financing and organising SGEIs falls to the Member States and their national, regional and local authorities, which have wide discretion in the matter and the freedom of democratic choice.
The right to housing in Member States’ constitutions
Ten constitutions of the EU Member States contain provisions to protect the right to housing. Three Member States (Belgium, Portugal and Spain) constitute an explicit subjective right to housing. Even if the right to housing is formulated as a subjective right in the three constitutions, it is not attributed in the literature to the character of an enforceable right. They are rather principles that bind state violence and thus constitute a state goal without establishing a subjective right.
Deutscher Bundestag (2019): Recht auf Wohnen. Ausgestaltung und Rechtswirkung in den Verfassungen der Bundesländer und der EU-Mitgliedstaaten. WD 3 – 3000 – 120/19