Case C-571/10, Kamberaj

Article 6(3) TEU not governing relationship between ECHR and legal systems of Member States

>> The Court today held that EU law precludes a national or regional law which – when the funds for the housing benefit are allocated – provides for different treatment for third-country nationals and nationals of the Member State in which they reside, in so far as the housing benefit falls within one of the three fields covered by the principle of equal treatment provided for under the Directive concerning third-country nationals who are long-term residents and constitutes a core benefit within the meaning of that directive, which are matters for the national court to determine.

Although several of the questions referred to the Court were declared inadmissible, the referring court also asked the interesting question whether, in case of conflict between the provision of domestic law and the ECHR, the reference to the latter in Article 6 TEU obliges the national court to apply the provisions of the ECHR – in the present case Article 14 ECHR and Article 1 of Protocol No 12 – directly, disapplying the incompatible source of domestic law, without having first to raise the issue of constitutionality before the Corte costituzionale (Constitutional Court).

According to Article 117 of the Italian constitution, the State has exclusive power to legislate in the field of social assistance only in order to determine the minimum level of benefits concerning the civil and social rights which must be guaranteed throughout the national territory. Competence is reserved to the regions in relation to matters extending beyond that objective.

According to Article 6(3) TEU, fundamental rights, as guaranteed by the ECHR and as they result from the constitutional traditions common to the Member States, are to constitute general principles of the Union’s law.

That provision of the Treaty on European Union reflects the settled case-law of the Court according to which fundamental rights form an integral part of the general principles of law the observance of which the Court ensures (see, inter alia, Case C-521/09 P Elf Aquitaine v Commission [2011] ).

The Court held, however, that  Article 6(3) TEU does not govern the relationship between the ECHR and the legal systems of the Member States and nor does it lay down the consequences to be drawn by a national court in case of conflict between the rights guaranteed by that convention and a provision of national law.

The Court therefore found that the reference made by Article 6(3) TEU to the ECHR does not require the national court, in case of conflict between a provision of national law and the ECHR, to apply the provisions of that convention directly, disapplying the provision of national law incompatible with the convention.