Implementing the Charter of Fundamental Rights: Insights and Discussions with European Colleagues

1. 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

2. 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…

3. 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

4. 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

5. 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 recognisesand 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”

6. ARTICLE 6 TEU (2009) • The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Unionof 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)

7. Whats in it - Explanations

8. 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”

9. “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)

10. 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-it-happen/country-specific-recommendations/index_en.htm • No references to the EUCFR !

11. 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.

12. 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)

13. “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.?”

16. 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.”

17. 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.’

18. 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….