Private Law and Housing Justice in Europe
| Author | Chantal Mak,Irina Domurath |
| Date | 01 November 2020 |
| Published date | 01 November 2020 |
| DOI | http://doi.org/10.1111/1468-2230.12557 |
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Modern Law Review
DOI:10.1111/1468-2230.12557
Private Law and Housing Justice in Europe
Irina Domurath and Chantal Mak∗
This article explores the dierent meanings of the right to housing in Europe in public and
private relations with housing providers.In light of the fundamental right to housing’s meaning
in the case law of the EuropeanCour t of Human Rights and the Court of Justice of the European
Union, we oer a new reading of the CJEU judgments that have hitherto been heralded as
extending the social dimension of EU (private) law. We submit that the emphasis on economic
and procedural rights risks further ‘economisation’ of housing relations in Europe. While the
possibilities to grant direct horizontal eect to the right to housing in EU law currently oer
limited potential to counter this trend, private law provides part of the framework for a further
balancing of social and economic elements in housing cases. Accordingly, we call for a debate
on the specic aspects of horizontal relationships in the complex system of housing justice.
THE RIGHT TO HOUSING AND THE EUROPEAN COURTS
As the provision of housing in many European countries has gradually shifted
from public authorities to the private sector, the question has arisen of how
to achieve housing justice in private law. Considerations on safeguarding the
access, quality, and security of housing increasingly appear in cases governed
by private law regarding the legal relationships between private actors, rather
than public law concerning the relationship between citizens and the state.The
importance of this shift became visible in the wake of the European economic
crisis of 2008, when many homeowners were evicted from their houses due to
default on their mortgage payments. The famous Spanish case of Aziz,brought
before the Court of Justice of the European Union (CJEU) was one of many
disputes in Europe1raising the question of how private law could contribute
∗Amsterdam Centre for Transformative Private Law (ACT), University of Amsterdam, the Nether-
lands.The authors wish to thank their colleagues at the Amsterdam Centre for Transformative Private
Law (formerly Centre for the Study of European Contract Law, CSECL),University of Amsterdam,
and participants at the European Network for Housing Research conference 2018 for most helpful com-
ments and discussions. We also thank the two anonymous reviewers for their very helpful comments.
All responsibility lies with the authors. All URLs were last accessed on 24 January 2020.
†The research for this article was made possible bygenerous grants of the National Council of Science
and Technology Chile,Fondecyt Project No.3190236 (Domurath), and the Dutch Research Council,
NWO Vidi 2014 ‘Judges in Utopia’ (Mak).
1 For overviews,see B.Kas, ‘European Union Litigation’(2015) 11 ERCL 51, 55-57;P.Hacker and
B.Kas, ‘European Union Litigation’ (2019) 15 ERCL 340, 354-357; B. Kas and H.-W.Micklitz,
‘Rechtsprechungsübersicht zum Europäischen Vertrags-und Deliktsrecht (2014-2018) – Teil I’
(2018) Europäisches Wirtschafts- und Steuerrecht 181.
© 2020 The Authors. The Modern Law Review published by John Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2020)83(6) MLR 1188–1220
Thisis an open access ar ticle under the terms of the CreativeCommons Attr ibution License,which permits use,distr ibution and reproduction
in any medium,provided the original work is properly cited.
Irina Domurath and Chantal Mak
to the protection of housing rights. It was the rst in a line of cases in which
the CJEU mentioned the special status of the ‘home’.2
The emerging role of the CJEU in the eld of housing adds a new dimen-
sion to protection of housing rights in Europe.3The CJEU is relatively new
to addressing rights to housing, while the European Court of Human Rights
(ECtHR) has dealt with a European right to housing for a long time.4The
ECtHR’s broader competence regarding the protection of human rights may
in part account for this. The Court can assess the compliance of the entire
legal systems of State Parties to the European Convention of Human Rights
(ECHR). The CJEU’s competence is, in contrast, conned to the scope of EU
law, addressing targeted areas and including housing law only to a limited ex-
tent.5As housing lies outside of the scope of EU law, housing interests are dealt
with indirectly, for example through the regulation of consumer credit and un-
fair contract terms. In this way, they also have an impact on European private
law. The new role of the CJEU and European private law make a ‘European
right to housing’ a challenging and topical research theme worth exploring.
Despite the shift from public to private housing provision, the private di-
mension of housing rights remains under-researched, especially concer ning the
meaning of the right to housing, conceived as a human right under the ECHR
and the EU Charter of Fundamental Rights (ChFR). The reliance on a funda-
mental right to housing is less self-evident on private markets than in cases in
which the state directly provides housing, insofar as fundamental human r ights
are in the rst place meant to protect citizens against the state.6To b e s u r e , re -
searchers such as Lilleholt7and Rutgers8have started debates on the eects of
the right to housing in private legal relationships. However, it remains unclear
whether and how the content of the right to housing changes when it is trans-
ferred from the public to the private sphere.9This contribution aims at lling
this gap by examining the following questions. What is the content of hous-
ing rights in private law relationships? How does this dier from the impact
2 Case C-415/11 Aziz vCatalunyacaixa ECLI:EU:C:2013:164 (Aziz) at [61].
3 A further reason for examining the ECtHR and CJEU case law on housing together is that the
courts can nd mutual inspiration in each other’s judgments,see T.Lock, The European Court of
Justice and International Courts (Oxford: OUP, 2015) ch 4, ‘The Court of Justice and the European
Court of Human Rights’.
4 See fur ther the cases discussed below, in the sections headed ‘Quality of housing: adequacy’,
‘Security of tenure and evictions’and ‘The r ight to housing’s meaning in European private law’.
5 Initiatives of the EU are, however, not oblivious to the importance of the right to housing.
The EU Commission has, for example, as part of its Urban Agenda, an interest in policies
and frameworks that foster access to adequate housing and, in this way, contribute to social
cohesion within the EU; see https://ec.europa.eu/regional_policy/en/policy/themes/urban-
development/agenda/.
6 H. Collins, ‘The Impact of Human Rights Law on Contract Law in Europe’ (2011) 22 European
Business Law Review 425.
7 K. Lilleholt, ‘The Right to Housing and its Impact on Contract Law’ in K. Ketscher et al
(eds), Velferd og rettferd. Festskrift til Asbjorn Kjonstad 70 ar (Oslo: University of Oslo,2013) 363-
374.
8 J.W. Rutgers,‘The right to housing (Article 7 of the Char ter) and unfair terms in general con-
ditions’ in H. Collins (ed), European Contract Law and the Charter of Fundamental Rights (Antwerp:
Intersentia 2017) 125-137.
9 cf H. Collins, ‘On the (In)compatibility of Human Rights Discour se and Private Law’ in H.-W.
Micklitz (ed), Constitutionalization of European Private Law (Oxford: OUP,2014) 26, 35-36.
© 2020 The Authors. The Modern Law Review published by John Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2020) 83(6) MLR 1188–1220 1189
Private Law and Housing Justice in Europe
of housing rights on public law relationships? To what extent does this balance
out the social and economic components of the right to housing?
By answering these questions, this contribution seeks to ll two gaps. First,
it identies the right to housing’s meaning in private legal relationships, thus
furthering the emerging debates on housing justice in European pr ivate law.
Second, examining economic and social elements of the right to housing, it
puts the legal debates into the context of political economy. In this way, we are
able to understand the legal implications of continuous privatisation of housing
sectors and analyse the impact privatisation can have on housing justice through
the right to housing.
Against this backdrop,the article is divided in six parts. First, we sketch the
privatisation of housing and identify the salience of private law. Second, we
introduce an understanding of the right to housing for the purposes of this
contribution and the theoretical framework within which we will assess the
cases. Here, we also elaborate on the economic and social dimensions of hous-
ing rights in Europe. Then, we analyse the content of the right to housing
in the case law on public and private legal housing relationships in the three
dimensions of access, quality and aordability, and secur ity of tenure. We sub-
sequently elaborate on the implications of the case law analysis. In light of the
right to housing’s meaning in the case law of the ECtHR and the CJEU, we
oer a new reading of the CJEU judgments that have hitherto often been her-
alded as further extending the social dimension of EU (private) law and hold
that the emphasis on economic and procedural rights poses the risk of a further
economisation of the right to housing. Giving direct horizontal eect to this
right in EU law may not be able to fully counter this trend.Still, we do see a role
for private law in safeguarding homeowners’ and tenants’ interests in relation
to those of private housing providers. Accordingly,we call for a debate on the
specic aspects of horizontal relationships in the complex system of housing
justice.
PRIVATE LAW AND HOUSING JUSTICE
The expansion of private housing markets and the salience of private law
The importance of the home as a ‘necessity of life’10 andasprotecting‘some
of the most fundamental human needs’11 has long been recognised. The home
provides shelter, a place to live, and a safe base from which to engage with the
life of a community and the state.12 As such,secure housing provides a space for
psychological and personal development and is fundamental for the protection
of the community and a sense of belonging13 – the home provides ‘a tangible,
10 P. Kenna, ‘International Instruments on Housing’ (2010) 2 Journal of Legal Aairs and Dispute
Resolution in Engineering and Construction 11, 11.
11 J. Hohmann, The Rights to Housing. Law,Concepts, Possibilities (Oxford: Hart Publishing, 2013) 4.
12 ibid, 4; P. Kenna, ‘Human Rights and Housing’ in International Encyclopedia of Housing and Home
(Amsterdam: Elsevier,2012) 703.
13 Hohmann, ibid, 4-5; Kenna (2012), ibid, 703.
1190 © 2020 The Authors. The Modern Law Review published by John Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2020) 83(6) MLR 1188–1220
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