Resolution CM/ResChS(2008)8
Collective Complaint No. 39/2006
by the European Federation of National Organisations working with the homeless (FEANTSA) against France

(Adopted by the Committee of Ministers on 2 July 2008
at the 1031st meeting of the Ministers' Deputies)

The Committee of Ministers,1

Having regard to Article 9 of the Additional Protocol to the European Social Charter providing for a system of collective complaints,

Taking into consideration the complaint lodged on 2 November 2006 by the European Federation of National Organisations working with the homeless (FEANTSA) against France,

Having regard to the report transmitted by the European Committee of Social Rights, in which the Committee concluded,

(i) unanimously on a violation of Article 31§1 of the Revised Charter on the grounds of insufficient progress as regards the eradication of substandard housing and lack of proper amenities of a large number of households;

Article 31§1 of the Revised Charter guarantees adequate housing for everyone, which means a dwelling which is safe from a sanitary and health point of view. The statistics available show that a significant number of households in France are deprived of basic amenities and/or are overcrowded. Despite the introduction of measures by the government to eradicate substandard housing across the country, serious problems remain: health risks due to substandard conditions still affect around 400 000 to 600 000 dwellings (over 1 million persons). The absence for a considerable period of time of a systematic scheme to address the problem of substandard housing, and insufficient progress in this field, amounts to a violation of Article 31§1.

(ii) unanimously on a violation of Article 31§2 of the Revised Charter on the grounds of unsatisfactory implementation of the legislation on the prevention of evictions and the lack of measures to provide rehousing solutions for evicted families;

Under Article 31§2 of the Revised Charter, Parties must put in place procedures to limit the risk of evictions. Legal protection for persons threatened by eviction must include, in particular, an obligation to consult the affected parties in order to find alternative solutions to eviction and the obligation to fix a reasonable notice period before eviction. Certain elements of the French system on evictions, for example, the two month period after formal notice has been served before eviction can take place, or the suspension of evictions in winter, comply with the guiding principles laid down by the Charter. However, the French system does not, either in law or in practice, offer the required safeguards, particularly as regards rehousing. The Anti-Exclusion Act of 29 July 1998 contains no guarantees that a person subject to eviction will be rehoused. Therefore, given the high number of eviction judgments which are issued in France every year, and taking into account the risk of eviction leading to situations of precariousness, the lack of guarantees ensuring stable and accessible rehousing options before eviction takes place amounts to a breach of Article 31§2. It has not been possible to assess the contribution of the specialised committees on the prevention of evictions, created by Act No. 2006-872 of 13 July 2006 on a national housing commitment, as the law has only been recently passed.

(iii) unanimously on a violation of Article 31§2 of the Revised Charter on the grounds that measures currently in place to reduce the number of homeless are insufficient, both in quantitative and qualitative terms;

Article 31§2 obliges Parties to gradually reduce homelessness with a view to its elimination. In order to achieve this objective, states must obtain the necessary factual information to deal with the problem. The deficiencies noted in the French system for collecting data on accommodation/sheltering needs, and more generally on the homelessness phenomenon, is a fundamental shortcoming which prevents the authorities from determining the adequacy of the measures taken to reduce homelessness.

Another deficiency in the French system is the shortage of places in emergency shelters for the homeless, as well as the insufficiency of arrangements at municipal level for day reception and overnight accommodation capable of suiting different situations, which illustrates the underlying failure of state policy in this field. There is also too much of a fallback on transitional forms of accommodation which are inadequate, and which offer no definite prospect of access to normal housing. Therefore, the measures currently in place to reduce the number of homeless are insufficient, both in quantitative and qualitative terms, and constitute a violation of Article 31§2 of the Revised Charter.

(iv) unanimously on a violation of Article 31§3 of the Revised Charter on the grounds of insufficient supply of social housing accessible to low-income groups;

Under Article 31§3 Parties must adopt appropriate measures to encourage the construction of social housing. In 2005, the stock of social housing in France was manifestly inadequate. Since then, the government has taken a number of steps to improve the situation. However, even if all the planned measures were achieved, that is, if 591 000 new social housing units were built by 2009, there would still be a considerable shortfall compared to the amount of applications made for social housing.

There is also a lack of a clear policy mechanism in place to ensure that priority is given to the most deprived members of the community as regards the provision of social housing, nor has an assessment of the needs of the most deprived been built into the programme of providing social housing. The situation therefore constitutes a violation of Article 31§3.

(v) unanimously on a violation of Article 31§3 of the Revised Charter on the grounds of the malfunctioning of the social housing allocation system, and the related remedies;

Under Article 31§3 Parties must make available an adequate supply of affordable housing. The system of allocating social rental housing is not functioning well in France. The allocation procedure does not ensure sufficient fairness and transparency, since social housing is not reserved for the poorest households. The application of the concept of “social mix” in the Anti-Exclusion Act of 1998, which is often used as the basis for refusing social housing, often leads to discretionary results excluding the poor from access to social housing. The major problem stems from the unclear definition of this concept in the law, and in particular, from the lack of any guidelines on how to implement it in practice. In addition, although legislation entitles prefects to allocate a certain contingent of social housing to persons considered by the law as being in a priority situation of need (Article L 441-1 of the Building and Housing Code), this procedure does not appear to be used to a significant extent in practice.

The system of legal redress for people who are denied social housing is also subject to serious shortcomings, namely: the mediation commissions foreseen by the 1998 Act to examine applications which are pending after an inordinately long waiting time have only been created in a minority of municipalities. Therefore, the malfunctioning of the social housing allocation system, and the related remedies, constitute a violation of Article 31§3 of the Revised Charter

(vi) unanimously on a violation of Article 31§3 of the Revised Charter, taken in conjunction with Article E on the grounds of the deficient implementation of legislation on stopping places for Travellers;

All the rights set out in the Charter, including the right to adequate housing, must be ensured without discrimination on any ground. In respect of social housing, Parties must guarantee that migrants have access to it on conditions ‘not less favourable’ than that of nationals. Statistics show that unfulfilled social housing applications for migrants are higher than for French households, which is an indication that there might be a problem of indirect discrimination against migrants in respect of access to social housing.

As regards housing for Travellers, local authorities and the state have failed to take into account to a sufficient degree the specific needs of this community for a considerably long period. This being said, legislation on settlements/stopping places for Travellers was adopted in 2000 (the Reception and Accommodation of Travellers Act, No. 2000-614 of 5 July 2000). The legislation requires municipalities with over 5 000 residents to prepare a plan for the setting up of permanent camp sites for Travellers. However, the Act has only been implemented in a minority of the municipalities concerned. The government has acknowledged the delay in the implementation of the departmental schemes for the reception of Travellers and estimates that there is a deficit of around 41 800 places. The delay in implementing the above-mentioned Act is regrettable, since it compels Travellers to make use of illegal sites and therefore exposes them to the risk of forcible eviction under the 2003 Act on internal security. Therefore, the deficient implementation of legislation on stopping places for Travellers constitutes a violation of Article 31§3 of the Revised Charter in conjunction with Article E.

Having regard to the information communicated by the French delegation during the 1026th meeting of the Ministers’ Deputies,

1. Takes note of the statement made by the respondent government indicating that France had, even before the adoption of the mentioned report of 5 December 2007, taken measures to bring the situation into conformity with the revised Charter and undertakes to follow these up by taking into account the said report, namely by implementing the Act on the enforceable right to housing of 5 March 2007 (see appendix to the present resolution):

– which establishes an effective appeal in cases of the refusal of social housing to persons in a priority situation;

– which has led to an order issued by the juge des référés of the Paris administrative court dated 20 May 2008, in which, for the first time, a mother living with her two children in an emergency accommodation and social reintegration centre has obtained the suspension of a decision of a mediation commission which had considered that her request for social housing did not have “priority” nor was it “urgent”;

– and which foresees an important programming of budgetary resources to protect against exclusion the most vulnerable persons in a priority situation, such as the homeless or evicted persons of good faith.

2. Looks forward to France proving, on the occasion of the submission of the next report concerning the relevant provisions of the Revised European Social Charter, that the measures announced have been implemented, and keeping the Committee of Ministers regularly informed of all progress made.

Appendix to Resolution CM/ResChS(2008)8

During the 1026th meeting of the Ministers’ Deputies on 14-15 May 2008, the French Representative transmitted the following piece of information:

PERMANENT DELEGATION OF FRANCE
TO THE COUNCIL OF EUROPE
________

1026th meeting of the Ministers’ Deputies (14-15 May 2008)
________

Collective Complaints No. 33/2006 by International Movement ATD Fourth World
and No. 39/2006 by FEANTSA
Reply by France to the conclusions of the European Committee of Social Rights (ECSR)
________

1. The French Government asks the Ministers’ Deputies to take note of the following submissions in reply to the conclusions of the European Committee of Social Rights with regard to collective complaints No. 33/2006 by International Movement ATD Fourth World and No. 39/2006 by FEANTSA.

2. With regard to the period to which the Committee refers in order to assess whether domestic law and practice complies with the Charter, the government understands that, in accordance with the Committee’s case law,2 this should correspond to the date on which it took its decision on the merits of the complaint, namely, in the present case, 5 December 2007. However, the Deputies must bear in mind that the act establishing an enforceable right to housing, known as the “DALO Act” – a highly ambitious piece of legislation, the equivalent of which is found only in Scotland – began to take effect on 1 January 2008, only a few weeks after the Committee's decision, and not on 1 December 2008 as the Committee claims. The date of 1 December 2008 was actually the date from which it became possible to bring legal proceedings in the administrative courts, that is to say a very advanced stage in the implementation of the Act. The Act set up a system of preliminary applications to mediation boards and introduced major budget planning measures right from the beginning of 2008, giving priority to protecting the most vulnerable members of our society from exclusion, such as the homeless and evicted people acting in good faith.

3. As to the Committee’s findings of violations, the government is aware of the progress it still has to make on housing to honour its obligations under the Charter in the same way as the seven other states which have ratified Articles 30, 31 and E and agreed to the collective complaints mechanism.3 The Committee’s reports will be taken into account in these efforts, although they are already yielding some tangible results. For instance, despite the Committee’s finding of a violation in the FEANTSA case, in September 2007, the European Commission cited France's supposedly unworthy efforts in the housing field as an example of good practice, during a Community peer-review programme in which FEANTSA participated.4

4. A major effort has been made in response to the Committee’s comments on the gaps in public policy on co-ordination and the collection of data for the purposes of evaluation. The Prime Minister has singled out access to housing as one of the government’s priority projects for 2008-20125 and a “super-prefect” has just been appointed to co-ordinate the public authorities' work in the housing sector. Information systems have also been set up to follow the progress of homeless people,6 as well as a national observatory centred on the 115 homeless hotline.7

5. In addition to the DALO Act, the government has launched important activities which address most of the specific points raised by the Committee in its conclusions.

6. With regard to the amount of social housing on offer, the government disagrees with the Committee’s contention that the construction of 591 000 social dwellings planned for the period from 2005 to 2009 will not facilitate access to social housing as the number of applicants amounted to 1 640 000 in 2004,8 because some account needs to be taken of the existing stock of housing. The figures for 2007 give very encouraging signs that the goals of the social cohesion plan will most probably achieved. Funding was allocated for 100 000 social housing units in 2007. The special9 social housing intended for the most disadvantaged groups accounts for a large, clearly identified10 portion of this contingent. The implementation of the DALO Act has led inter alia to a 50% increase in the amount of this special social housing financed in 2007, the aim being to finance 20 000 such dwellings in 2008.

7. With regard to the procedure for allocating social housing, the DALO Act offers an effective remedy for housing and accommodation applicants before the mediation boards which have been set up in all the French départements. Within a very short time,11 these boards identify priority applicants whom the prefect must rehouse or offer temporary accommodation, which must be implemented within three months and six weeks respectively. Since the beginning of 2008, 3 110 applications for housing have been examined in this way. 1 385 (45%) were granted, and 91 of these were redirected to temporary accommodation.

8. As to the eviction of tenants, the government points out that its activities in this connection must be in keeping with the European Convention on Human Rights and the case law of the Court, which ensures its effective application. The Court is required to protect the right to property enshrined in Article 1 of Protocol No. 1 to the Convention and, in so doing, has already ruled against France for failing to evict a tenant.12 The Committee’s reports do not reflect the government’s developments to that effect.

9. It should be noted, however, that persons of good faith who are threatened with eviction are one of the priority groups which the DALO Act seeks to protect and they are entitled to use the remedies described above. Furthermore, the situation which was criticised by the Committee has changed substantially in recent times. The implementing decrees for the Housing Act of 13 July 2006, adopted on 29 November 2007 and 26 February 2008 and relating to the départements’ action plans for the housing of disadvantaged people and for the prevention of evictions, enacted measures intended to enhance the co-ordination of national and local action to prevent eviction and facilitate rehousing, in which prefects play a major role. A Prime Minister’s Circular13 on accommodation for the homeless was issued to endorse these new policies and ensure that they would be implemented by the prefects.

10. Substantial progress has been made in the area of the allegedly inadequate application of the Act of 5 July 2005 on Travellers. In 2007, €64 million was allocated for the construction of sites for Travellers, compared to 42 million in 2006. Fifty percent of the total of 41 840 sites planned for the whole country have received a state subsidy and 32% are already functioning. In 2007, to accelerate progress towards the goals set by the 2000 Act, the Senator, Mr Hérisson, was asked to prepare a parliamentary report on the subject. The government would also point out that the offence of illegal occupation of land described in Article L.322-4-1 of the Criminal Code and criticised by the Committee applies only when the sites provided for by the 2000 Act have actually been constructed in the municipality concerned.

11. With regard to the homeless, a parliamentary fact-finding survey was assigned to the Member of Parliament, Mr Pinte, in 2007. It should be said that accommodation facilities for the homeless, which were heavily criticised by the Committee for their insufficient capacity and poor quality, have improved considerably recently. At the end of 2007, they offered 96 615 places, not 90 000, as stated in the FEANTSA report. 8 000 of the 10 000 emergency accommodation places are now available around the clock. The rule is that no one will be put back on the street without some form of long-term care being provided. As a result of Mr Pinte’s findings, the Prime Minister has decided to make it a priority to renovate and “humanise” accommodation centres in 2008. An inquiry has just been launched to identify projects which are ready for implementation once funding is available. This new funding will come on top of the €50 million allocated recently to improve security at centres. As a result, there will now be one social worker for 20 people accommodated. Homeless people may also apply for accommodation to the mediation boards set up under the DALO Act.

12. In view of all the foregoing, which is intended to show that France has taken on board the Committee’s conclusions concerning the complaints by ATD and FEANTSA and taken steps to improve its housing policies in the long term, the government asks the Deputies to adopt a resolution bringing an end to the examination of the Committee’s reports in relation to these complaints.

Note 1 In conformity with Article 9 of the Additional Protocol to the European Social Charter providing for a system of collective complaints, the Contracting Parties to the European Social Charter or to the Revised Social Charter have participated in the vote: Albania, Andorra, Armenia, Austria, Azerbaijan, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Moldova, Netherlands, Norway, Poland, Portugal, Romania, Slovak Republic, Slovenia, Spain, Sweden, “the former Yugoslav Republic of Macedonia”, Turkey, Ukraine and United Kingdom.
Note 2 European Council of Police Trade Unions against Portugal, Complaint No. 11/2001, decision of 21 May 2001.
Note 3 Only 8 of the 14 countries which have agreed to the collective complaints mechanism have also accepted Articles 30 and 31 of the Charter, namely Finland, France, Italy, Netherlands, Norway, Portugal, Slovenia and Sweden. Two other countries have agreed to the collective complaints mechanism but accepted only Article 30, namely Belgium and Ireland.
Note 4 National Action Plan for Social Inclusion (PNAI), Paris, 27 and 28 September 2007. http://www.peer-review-social-inclusion.net/peer-reviews/2007/national-action-plan-against-substandard-housing
Note 5 Prime Minister’s Circular of 22 February 2008; project allocated €250 million.
Note 6 A single information system for the accommodation and social rehabilitation centres was established in 2006 and progressively extended to cover the entire housing network.
Note 7 7 The first results are expected in early 2009.
Note 8 See §§94-98 of the decision on the ATD case.
Note 9 PLAI.
Note 10 In accordance with associations’ wishes.
Note 11 Three months for long-term housing (six in cities with over 300 000 inhabitants); 6 weeks for temporary accommodation.
Note 12 ECHR, Matheus against France, 31 March 2005.
Note 13 Circular of 22 February 2008.


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