Summaries of judgments made in collaboration with the Portuguese judge and référendaire of the CJEU (Nuno Piçarra and Sophie Perez)
Reference for a preliminary ruling – Directive 2004/80/EC – Article 12(2) – National schemes on compensation to victims of violent intentional crime guaranteeing fair and appropriate compensation – Scope – Victim residing in the Member State in which the violent intentional crime was committed – Obligation for the national compensation scheme to cover that victim – Concept of “fair and appropriate compensation” – Liability of Member States in the event of a breach of EU law
This request for a preliminary was made in proceedings between the Presidenza del Consiglio dei Ministri (Presidency of the Council of Ministers, Italy) and BV concerning the claim of non-contractual liability brought by BV against the Italian Republic for loss alleged to have been caused to BV owing to the failure to transpose Council Directive 2004/80/EC, of 29 April 2004, relating to compensation to crime victims (OJ 2004, L 261, p. 15) into Italian law.
In October 2005, BV, an Italian citizen residing in Italy, was the victim of sexual violence committed on the territory of that Member State. The perpetrators of those crimes were convicted and received prison sentences, and ordered to pay BV the sum of EUR 50 000 by way of damages. However, since their whereabouts were unknown, the latter sum could not be recovered. In February 2009, BV brought a claim before Presidenza del Consiglio dei Ministri for compensation for the harm that she alleged she had suffered as a result of the failure by Italy to transpose, within the appropriate time, Directive 2004/80. At first instance, the Presidenza del Consiglio dei Ministri was ordered to pay BV the sum of €90,000, which was reduced on appeal to EUR 50,000.
Hearing an appeal brought by the Presidenza del Consiglio dei Ministri, the Corte suprema di cassazione (Supreme Court of Cassation, Italy) had doubts, first, as to the applicability of the rules on non-contractual liability of a Member State for damages caused by the breach of EU law (owing, in concreto, to the late transposition of Directive 2004/80) as regards victims of violent intentional crime who are not in a cross-border situation. Second, that court had doubts as to whether the fixed sum of EUR 4,800, laid down in the Italian legislation for the compensation of victims of sexual violence, is ‘fair and appropriate’ within the meaning of Article 12(2) of Directive 2004/80.
Article 12 of Directive 2004/80 is worded as follows: “1. The rules on access to compensation in cross-border situations drawn up by this Directive shall operate on the basis of Member States’ schemes on compensation to victims of violent intentional crime committed in their respective territories. 2. All Member States shall ensure that their national rules provide for the existence of a scheme on compensation to victims of violent intentional crimes committed in their respective territories, which guarantees fair and appropriate compensation to victims.”
Having regard to the wording, context and objectives of Directive 2004/80, the ECJ held in particular that, by that provision, the EU legislature had opted not for the establishment, by each Member State, of a specific compensation scheme restricted to victims of violent intentional crime who were in a cross-border situation only, but for the application, in favour of those victims, of national schemes on compensation to victims of violent intentional crime committed in the respective territories of the Member States. The ECJ concluded that Directive 2004/80 imposes on each Member State the obligation to provide a scheme on compensation that covers all victims of violent intentional crime committed on its territory, and not only victims that are in a cross-border situation. Therefore, Directive 2004/80 confers the right to obtain fair and appropriate compensation not only on victims of crime who are in such a situation, but also on victims who habitually reside on the territory of the Member State in which the crime was committed. Consequently, provided that the other conditions for establishing the non-contractual liability of Member States for losses caused to individuals by breaches of EU law are met (that the breach of EU law is sufficiently serious, and that there is a direct causal link between the breach and the loss or damage sustained by the individuals), an individual has a right to compensation for loss caused to him or her by the breach, by a Member State, of its obligation under Article 12(2) of Directive 2004/80, irrespective of whether or not that individual is in a cross-border situation at the time he or she was the victim of the crime in question.
As regards the second question, the ECJ held that, in the absence of any indication in Directive 2004/80 as to the amount of the compensation deemed to be “fair and appropriate”, that provision allows Member States discretion in that regard. While that compensation need not necessarily ensure the complete reparation of material and nonmaterial loss suffered by the victims of violent intentional crime, it must not however be purely symbolic or manifestly insufficient having regard to the gravity of the consequences, for those victims, of the crime committed. According to the ECJ, the compensation granted to such victims under that provision must, in fact, compensate to an appropriate extent the suffering to which they have been exposed. In that regard, the ECJ also stated that a fixed rate of compensation for such victims may be classified as “fair and appropriate”, provided that the compensation scale is sufficiently detailed so as to avoid the possibility that, having regard to the circumstances of a particular case, the fixed rate of compensation provided for a specific type of violence proves to be manifestly insufficient.
Judgment of the Court (Grand Chamber) of 22 September 2020, Cali Apartments SCI and HX v Procureur général près la cour d’appel de Paris and Ville de Paris, Joined Cases C-724/18 and C-727/18, EU:C:2020:743
References for a preliminary ruling – Directive 2006/123/EC – Scope – Repeated short-term letting of furnished accommodation to a transient clientele which does not take up residence there – National legislation imposing a prior authorisation scheme for certain specific municipalities and making those municipalities responsible for defining the conditions for granting the authorisations provided for by that scheme – Article 4(6) – Concept of ‘authorisation scheme’ – Article 9 – Justification – Insufficient supply of affordable long-term rental housing – Proportionality – Article 10 – Requirements relating to the conditions for granting authorisations
These requests for a preliminary ruling were made in proceedings between Cali Apartments SCI and HX, on the one hand, and the Procureur général près la cour d’appel de Paris (Public Prosecutor at the Court of Appeal, Paris, France) and the ville de Paris (City of Paris, France), on the other, concerning the infringement by the former of national legislation requiring prior authorisation for the exercise of activities consisting in the repeated short-term letting, for remuneration, of furnished accommodation to a transient clientele which does not take up residence there.
Cali Apartments SCI and HX each own a studio apartment located in Paris (France). Those studio apartments, which had been offered for rent on a website, had repeatedly been let for short periods to a transient clientele without prior authorisation from the local competent authorities.
On the basis of the French Construction and Housing Code, Cali Apartments SCI and HX were ordered to pay a fine and that the use of the properties in question be changed back to residential. That code provides, inter alia, that, in municipalities with more than 200 000 inhabitants and in the municipalities in Paris’ three neighbouring departments, change of use of residential premises is subject to prior authorisation and the repeated short-term letting of furnished accommodation to a transient clientele which does not take up residence there constitutes such change of use. That code also provides that that authorisation, granted by the mayor of the municipality in which the property is located, may be subject to an offset requirement in the form of the concurrent conversion of non-residential premises into housing. Again according to that code, a decision adopted by the municipal council sets the conditions for granting authorisations and determining the offset requirements by quartier (neighbourhood) and, where appropriate, by arrondissement (district), in the light of social diversity objectives, according to, inter alia, the characteristics of the markets for residential premises and the need to avoid exacerbating the housing shortage.
In this context, the Cour de cassation (Court of Cassation, France) made two references for a preliminary ruling concerning the interpretation of several provisions of Directive 2006/123/EC of the European Parliament and of the Council, of 12 December 2006, on services in the internal market (OJ 2006, L 376, p. 36).
The ECJ first clarified that Directive 2006/123 applies to legislation of a Member State relating to activities consisting in the repeated short-term letting, for remuneration, whether on a professional or non-professional basis, of furnished accommodation to a transient clientele which does not take up residence there. In that regard, it emphasised that such activities are covered by the concept of “service” within the meaning of Article 4(1) of Directive 2006/123 and do not correspond to any of the activities that are excluded from the scope of that directive by Article 2(2) thereof.
Then, the ECJ recalled that an “authorisation scheme”, within the meaning of Article 4(6) of Directive 2006/123, is distinct from a “requirement”, within the meaning of Article 4(7) thereof, inasmuch as it involves steps being taken by the service provider and a formal decision whereby the competent authorities authorise that service provider’s activity. Therefore, the legislation in question in the main proceedings, which makes the exercise of certain activities consisting in the letting of residential premises subject to prior authorisation, is covered by the concept of “authorisation scheme” within the meaning of Article 4(6) of Directive 2006/123. Consequently, that legislation must comply with the requirements set out in Section 1 of Chapter III of Directive 2006/123, which entails, in particular, an assessment, first, of whether the very principle of establishing such a scheme is justified, in light of Article 9 of that directive, and, then, of the criteria for granting the authorisations provided for by that scheme, in the light of Article 10 thereof.
Regarding the conditions laid down by Article 9(1) of Directive 2006/123, the ECJ noted that the legislation in question is intended to establish a mechanism for combating the long-term rental housing shortage, the objective of which is to deal with the worsening conditions for access to housing and the exacerbation of tensions on the property markets, which constitutes an overriding reason relating to the public interest. The Court found moreover that the national legislation concerned is proportionate to the objective pursued, as its material scope is limited to a specific letting activity, it excludes from its scope housing which constitutes the lessor’s main residence, and the authorisation scheme which it establishes is of limited geographical scope. In addition, the objective pursued cannot be attained by means of a less restrictive measure, in particular because an a posteriori inspection, for example by way of a declaratory system accompanied by penalties, would not enable authorities to put an immediate and effective end to the rapid conversion trend which is creating a long-term rental housing shortage.
As regards the requirements applicable, under Article 10(2) of Directive 2006/123, the ECJ noted, concerning, first, the requirement that those criteria must be justified by an overriding reason relating to the public interest, that the criteria laid down by the national legislation concerned must, in principle, be regarded as justified inasmuch as they regulate the arrangements for determining, at local level, the conditions for granting the authorisations provided for by a scheme adopted at national level which itself is justified by an overriding reason relating to the public interest.
Regarding, second, the requirement that those criteria be proportionate, the ECJ noted that the national legislation concerned provides the option to make the grant of authorisation sought subject to an offset requirement in the form of the concurrent conversion of non-residential premises into housing, the quantum of which is to be defined by the municipal council of the municipalities concerned in the light of the objective of social diversity and according to, inter alia, the characteristics of the markets for residential premises and the need to avoid exacerbating the housing shortage. In that regard, the ECJ noted that such legislation is suitable for ensuring that the authorisation scheme it introduces is suited to the specific circumstances of each of the municipalities concerned, of which the local authorities have particular knowledge. Therefore, the abovementioned option constitutes, in principle, a suitable instrument for pursuing the objectives pursued, as it leaves it to the local authorities to decide whether to lay down an offset requirement and, if necessary, to determine the quantum of that requirement. However, it is for the national court to verify whether that option is an effective response to the shortage of long-term rental housing that has been observed in the territories of those municipalities and to make sure that that option is not only appropriate for the local rental market situation, but also compatible with the exercise of the letting activity in question.
Regarding, third, the requirements of clarity, non-ambiguity and objectivity, the fact that the legislation in question does not define, in particular using numeric thresholds, the concept of the “repeated short-term letting of furnished accommodation to a transient clientele which does not take up residence there” does not, in itself, constitute an element capable of demonstrating disregard for those requirements, provided that the local authorities concerned specify the terms corresponding to that concept in a way that is clear, unambiguous and objective. The ECJ noted that the fact that the national legislature confines itself to regulating the arrangements for a local authority determining the conditions for granting the authorisations provided for by a scheme cannot, in principle, lead to a finding that those conditions are insufficiently clear and objective, especially if the national legislation in question lays down not only the aims that must be pursued by the local authorities concerned but also the objective factors on the basis of which those authorities must determine those granting conditions.
Lastly, regarding, fourth, the requirements that the conditions for granting the authorisations be transparent and accessible and be made public in advance, the ECJ emphasised that it was sufficient that all owners wishing to let furnished accommodation to a transient clientele which does not take up residence there be in a position to familiarise themselves fully with the conditions for granting an authorisation and any offset requirements laid down by the local authorities concerned, before committing to the letting activities in question, which the display of the minutes of municipal council meetings in the town hall and online via the website of the municipality concerned enables them to do.