Policy of favouring young persons in matters related to the right of access to housing
Appropriate means of positive discrimination
Access to a home of one’s own
Gradual fulfilment of a social right
Protection of the family
Essential content of a fundamental right
RULING Nº 590/04
6 of October of 2004
The constitutional provisions on promotion of the right to housing are aimed mainly at the state.
Low-interest loans are not a home ownership measure required by the Constitution. Neither are they essential to the adoption by the state of the policies which either Article 65 or Article 9 of the Constitution require it to implement. Parliament has many other ways of discharging its responsibility for promoting home ownership. The Constitution requires Parliament to promote a home ownership policy, which must be reflected in the adoption of practical measures, the choice of which lies exclusively with Parliament. The only conditions set by the Constitution are the existence of measures, irrespective of the form those measures take, and the need to distinguish between these measures to promote home ownership and rent incentives.
However, the abolition of the system of low-interest loans for home ownership does not automatically lead to a situation of unconstitutionality through violation of the right to housing. It is important to understand the role of low-interest loans for home ownership in the policies on access to housing which the Constitution requires the state to adopt. Admittedly, the adoption by the state of policies geared especially to home ownership is a condition for implementing the right to housing. The right provided for under Article 65 of the Constitution may be seen as a right to benefits. State intervention is required to put into practice the constitutional requirements contained in this provision. The legal theory and case-law of other countries also consider the right to housing as a right applicable solely through the intervention of Parliament, which should be given wide room for manoeuvre. Parliament can intervene, for example, in such fields as that of the principles governing the operation of the housing market (construction, ownership and rent), an increase in the stock of vacant housing (for the benefit mainly of the most deprived social groups), or financial assistance to certain categories of citizens. However, as regards specifically the acquisition of property, the choice can be made, for example, to promote the setting up of housing co-operatives and other incentives to private construction for rental purposes; the granting of preferential rights for the purchase of rented housing; an increase in the stock of vacant housing under public financing and construction schemes; the assignment of publicly-owned housing; the setting up of mechanisms to encourage savings with a view to home ownership, or tax incentives (income tax, deductibility of sums spent on home ownership). Furthermore, it must not be forgotten that, according to Article 9.d of the Constitution, it is for the state (as one of its basic tasks) to promote the effective exercise of all economic, social and cultural rights. It is necessary to combine the different constitutional rights and objectives for this purpose. It is essential, therefore, to reconcile the right to housing with other equally important social rights and public interests such as environmental protection, town planning and appropriate spatial planning.
A group of MPs applied to the court for a finding of unconstitutionality having general binding force in respect of the provisions abolishing the low-interest loan scheme to promote home ownership and the scheme under which low-interest loans were granted to young people in connection with new operations to finance the purchase and construction of homes, the carrying out of regular and extraordinary maintenance work, and improvements to a main dwelling owned by its occupants.
The Court pointed out that the right to housing consisted in the "right to a dwelling of adequate size, that meets satisfactory standards of hygiene and preserves personal and family privacy". It was recognised as a fundamental right in Article 65 of the Constitution, in the chapter devoted to social rights and obligations. The right in question was undeniably important since it was a consequence flowing from the principle of the dignity of the human person. It was essential for the implementation of other fundamental rights, such as the protection of privacy.
The constitutional provisions on promotion of the right to housing were aimed mainly at the state. The Constitution provided for various ways of realising this aim, in particular the adoption of a policy for the institution of a system of rents that were compatible with family incomes, and a policy to promote home ownership (Article 65.3 of the Constitution). These were two distinct policies which necessarily complemented one another. Consequently, the pursuit of one of them did not make it unnecessary to pursue the other and could not take the place of the other.
One measure to promote home ownership was the low-interest loan, which had become increasingly important over the last few decades. Low-interest loans for home ownership and low-interest loans to young people had taken on a particular importance as a result of the macroeconomic situation in the 1970s and 80s.
After considering in turn each of the questions raised, the Constitutional Court held that low-interest loans were not a home ownership measure required by the Constitution.
With regard to the right to found a family, the constitutional provision did not impose a duty on the state to facilitate home ownership as a measure aimed at the effective exercise of the fundamental rights in question. Neither did it require the adoption of any other concrete measure. The Constitution guaranteed the individual freedom to found a family and to marry, and the existence of the legal institution of marriage. Specifically, the Constitution stipulated only that the state must guarantee the existence of the legal institution of marriage and, at the same time, refrain from any behaviour which would prevent citizens from exercising those rights or make it difficult for them to do so. The Constitution allowed the state a considerable margin of discretion in the choice of concrete measures for pursuing that aim. It mentioned only, by way of example, a few aspects which must not be overlooked (Article 67.2 of the Constitution). Home ownership by families was not one of those aspects.
With regard to youth protection policy, it could be implemented through measures of various kinds. It was important to see, therefore, whether the legal system comprised instruments - of whatever kind - able to ensure, with some degree of legal effectiveness, the special protection of young people required by the Constitution. The abolition of one measure implementing the provisions of Article 70.1.c of the Constitution would only raise an issue of constitutionality if there was no other measure in this field, resulting in non-compliance with the constitutional provision. This non-compliance would amount, in its basic premises, to unconstitutionality by omission. But there was at least one legislative measure discriminating in favour of young people in the area of access to housing: this was the scheme introducing a "rent incentive for young people". It was aimed at young people under the age of 30 who were tenants of property which they occupied on a permanent basis, and consisted in the payment of a monthly subsidy.
Lastly, with regard to the rule against reducing the level of protection of social rights, the court's case-law stipulated that, in cases where the Constitution imposed a sufficiently precise and concrete obligation to legislate, the scope available to Parliament for reducing the level of protection already achieved was necessarily very small. In other circumstances, however, the rule against reducing the level of protection could only operate in borderline cases, firstly because the principle of democratic alternation of power entailed the reversibility of political and legislative choices, even if they were fundamental choices. With this in mind, the question that arose was whether, in the instant case, the Constitution imposed a precise and concrete obligation to legislate in order to identify the instruments which the state must use to implement the constitutional rules. The constitutional provisions concerning the right to housing and the special protection of young people in access to housing did not entail an obligation to legislate in the terms specified above. Parliament could choose how to apply the constitutional rules. Consequently, the reduction of protection prohibited by the Constitution appeared only in borderline cases, where the essence of a fundamental right established in the Constitution was no longer guaranteed. Hence, owing mainly to the continued existence of other legal instruments implementing the right to housing and the right to special protection of young people, the necessary conclusion was that the "reduction in the level of protection of social rights" resulting from the abolition of the low-interest loan scheme did not impair the essence of those rights. The solution contained in the provision in question must therefore be viewed in the context of the reversibility of the legislative choices resulting from the principle of democratic alternation of power.
- On the question of the prohibition on reducing the level of protection of social rights, see Judgment 509/02.