# C_2011046EN.01000701.xml

| 12.2.2011 | EN | Official Journal of the European Union | C 46/7 |
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12.2.2011

EN

Official Journal of the European Union

C 46/7

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Reference for a preliminary ruling from the Tribunale di Bolzano (Italy) lodged on 7 December 2010 — Kamberaj Servet v Istituto Per l’Edilizia Sociale della Provincia autonoma di Bolzano (IPES), Giunta della Provincia Autonoma di Bolzano, Provincia Autonoma di Bolzano

(Case C-571/10)

2011/C 46/11

Language of the case: Italian

Referring court

Referring court

Tribunale di Bolzano

Parties to the main proceedings

Parties to the main proceedings

Applicant: Servet Kamberaj

Applicant:

Defendants: Istituto Per l’Edilizia Sociale della Provincia autonoma di Bolzano (IPES), Giunta della Provincia Autonoma di Bolzano, Provincia Autonoma di Bolzano

Defendants:

Questions referred

Questions referred

| 1. | Does the principle of the primacy [principe de primauté] of European Union law oblige a national court to give full and immediate effect to provisions of European Union law having direct effect, by disapplying provisions of domestic law in conflict with European Union law even if they were adopted in accordance with fundamental principles of the Member State’s constitutional system? |
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1.

Does the principle of the primacy [principe de primauté] of European Union law oblige a national court to give full and immediate effect to provisions of European Union law having direct effect, by disapplying provisions of domestic law in conflict with European Union law even if they were adopted in accordance with fundamental principles of the Member State’s constitutional system?

principe de primauté

| 2. | When there is a conflict between the provision of domestic law and the European Convention on Human Rights (‘the ECHR’), does the reference to the latter in Article 6 TEU oblige the national court to apply directly Articles 14 [ECHR] and 1 of Additional Protocol No 12 [to the ECHR], disapplying the incompatible source of domestic law, without having first to raise the issue of constitutionality before the national constitutional court? |
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2.

When there is a conflict between the provision of domestic law and the European Convention on Human Rights (‘the ECHR’), does the reference to the latter in Article 6 TEU oblige the national court to apply directly Articles 14 [ECHR] and 1 of Additional Protocol No 12 [to the ECHR], disapplying the incompatible source of domestic law, without having first to raise the issue of constitutionality before the national constitutional court?

| 3. | Does European Union law, in particular, Articles 2 and 6 TEU, Articles 21 and 34 of the Charter [of Fundamental Rights of the European Union] and Directives 2000/43/EC and 2003/109/EC preclude a provision of national [more correctly: regional] law, such as that contained in Article 15(3) [more correctly: 15(2)] of Presidential Decree No 670/1972 in conjunction with Articles 1 and 5 of Provincial Law No 13 of 1998 and Decision No 1865 of the Giunta Provinciale of 20 July 2009, inasmuch as that provision, with regard to the allowances concerned, in particular, so-called ‘housing benefit’, attaches importance to nationality by affording to long-term resident workers not belonging to the Union or to stateless persons treatment worse than that afforded to resident Community nationals (whether or not Italian)? |
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3.

Does European Union law, in particular, Articles 2 and 6 TEU, Articles 21 and 34 of the Charter [of Fundamental Rights of the European Union] and Directives 2000/43/EC and 2003/109/EC preclude a provision of national [more correctly: regional] law, such as that contained in Article 15(3) [more correctly: 15(2)] of Presidential Decree No 670/1972 in conjunction with Articles 1 and 5 of Provincial Law No 13 of 1998 and Decision No 1865 of the Giunta Provinciale of 20 July 2009, inasmuch as that provision, with regard to the allowances concerned, in particular, so-called ‘housing benefit’, attaches importance to nationality by affording to long-term resident workers not belonging to the Union or to stateless persons treatment worse than that afforded to resident Community nationals (whether or not Italian)?

If those questions [1 to 3] should be answered in the affirmative:

| 4. | In the case of an infringement of general principles of the Union, such as the prohibition of discrimination and the requirement of legal certainty, when there exists national implementing legislation permitting the court to ‘order the cessation of the damaging conduct and adopt any other suitable measure, according to the circumstances and the effects of the discrimination’, requiring the court to ‘order the discriminatory conduct, behaviour or action, if still subsisting, to cease and its effects to be eliminated’ and permitting the court to order ‘a plan for the suppression of the discrimination found to exist, in order to prevent its repetition, within the period fixed in the measure’, must Article 15 of Directive 2000/43/EC, in so far as it provides that sanctions must be effective, proportionate and dissuasive, be interpreted as including, in discrimination found to exist and effects to be eliminated, and in order to avoid unjustified reverse discrimination, all infringements affecting the persons discriminated against, even if they do not form part of the dispute? |
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4.

In the case of an infringement of general principles of the Union, such as the prohibition of discrimination and the requirement of legal certainty, when there exists national implementing legislation permitting the court to ‘order the cessation of the damaging conduct and adopt any other suitable measure, according to the circumstances and the effects of the discrimination’, requiring the court to ‘order the discriminatory conduct, behaviour or action, if still subsisting, to cease and its effects to be eliminated’ and permitting the court to order ‘a plan for the suppression of the discrimination found to exist, in order to prevent its repetition, within the period fixed in the measure’, must Article 15 of Directive 2000/43/EC, in so far as it provides that sanctions must be effective, proportionate and dissuasive, be interpreted as including, in discrimination found to exist and effects to be eliminated, and in order to avoid unjustified reverse discrimination, all infringements affecting the persons discriminated against, even if they do not form part of the dispute?

If the previous question [4] should be answered in the affirmative:

| 5. | Is it contrary to European Union law, in particular, to Articles 2 and 6 TEU, Articles 21 and 34 of the Charter and Directives 2000/43/EC and 2003/109/EC, for a provision of national [more correctly: provincial] law to require of non-Community nationals only and not of Community nationals also (whether or not Italian), who receive equal treatment merely in respect of the obligation to have resided for more than 5 years in the territory of the province, the further condition that they should have completed three years of work in order to be eligible for housing benefit? |
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5.

Is it contrary to European Union law, in particular, to Articles 2 and 6 TEU, Articles 21 and 34 of the Charter and Directives 2000/43/EC and 2003/109/EC, for a provision of national [more correctly: provincial] law to require of non-Community nationals only and not of Community nationals also (whether or not Italian), who receive equal treatment merely in respect of the obligation to have resided for more than 5 years in the territory of the province, the further condition that they should have completed three years of work in order to be eligible for housing benefit?

| 6. | Is it contrary to European Union law, in particular, to Articles 2 and 6 TEU, Articles 21 and 34 of the Charter and Directives 2000/43/EC and 2003/109/EC, for a provision of national [more correctly: provincial] law to require Community nationals (whether or not Italian) to make a declaration that they ethnically belong to or elect to join one of the three linguistic groups of the Alto Adige/Südtirol in order to be eligible for housing benefit? |
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6.

Is it contrary to European Union law, in particular, to Articles 2 and 6 TEU, Articles 21 and 34 of the Charter and Directives 2000/43/EC and 2003/109/EC, for a provision of national [more correctly: provincial] law to require Community nationals (whether or not Italian) to make a declaration that they ethnically belong to or elect to join one of the three linguistic groups of the Alto Adige/Südtirol in order to be eligible for housing benefit?

| 7. | Is it contrary to European Union law, in particular, to Articles 2 and 6 TEU, and to Articles 18, 45 and 49 TFEU in conjunction with Articles 1, 21 and 34 of the Charter, for a provision of national [more correctly: provincial] law to impose on Community nationals (whether or not Italian) the obligation to have resided or worked in the territory of the province for at least five years in order to be eligible for housing benefit? |
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7.

Is it contrary to European Union law, in particular, to Articles 2 and 6 TEU, and to Articles 18, 45 and 49 TFEU in conjunction with Articles 1, 21 and 34 of the Charter, for a provision of national [more correctly: provincial] law to impose on Community nationals (whether or not Italian) the obligation to have resided or worked in the territory of the province for at least five years in order to be eligible for housing benefit?

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