Opinion of the Advocate General — ECLI:EU:C:2021:155
Date: 2021-03-02
Language of the case: German
Subject matter: Citizenship of the Union;Right of establishment;Principles, objectives and tasks of the Treaties;Freedom to provide services;Free movement of workers;Area of freedom, security and justice;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary C-94/20 — 1 
Case C-94/20 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
25 February 2020 
Referring court: 
Landesgericht Linz (Regional Court, Linz, Austria) 
Date of the decision to refer: 
6 February 2020 
Applicants and respondents: 
KV 
Defendant and appellant: 
Land Oberösterreich (Land of Upper Austria) 
  
Subject matter of the case in the main proceedings 
Social benefit in the form of housing assistance for third-country nationals who 
are long-term residents solely after proof of a basic command of German — 
Compatibility with European Union law — Discrimination based on racial or 
ethnic origin 
Subject matter and legal basis of the reference 
Interpretation of EU law; Article 267 TFEU 
Questions referred 
1. Is Article 11 of Directive 2003/109/EC to be interpreted as precluding 
national legislation, such as Paragraph 6(9) and (11) of the 
Oberösterreichisches Wohnbauförderungsgesetz (Upper Austrian Law on 
Housing Subsidies, ‘the oöWFG’), which allows EU citizens, EEA nationals 
and family members within the meaning of Directive 2004/38/EC to receive 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-94/20 
 
2  
a social benefit in the form of housing assistance without proof of language 
proficiency, while requiring third country nationals with long-term resident 
status within the meaning of Directive 2003/109/EC to provide particular 
proof of a basic command of German, where that housing assistance is 
intended to absorb unreasonable burdens in the form of housing costs even 
though minimum subsistence levels (including the need for housing) should 
also be ensured by way of another social benefit (needs-based guaranteed 
minimum benefits in accordance with the Oberösterreichisches 
Mindestsicherungsgesetz (Upper Austrian Law on Guaranteed Minimum 
Benefits)) for individuals suffering social hardship? 
2. Is the prohibition of ‘direct or indirect discrimination’ based on ‘racial or 
ethnic origin’ in accordance with Article 2 of Directive 2000/43/EC to be 
interpreted as precluding national legislation, such as Paragraph 6(9) and 
(11) of the oöWFG, which allows EU citizens, EEA nationals and family 
members within the meaning of Directive 2004/38/EC to receive a social 
benefit (housing assistance in accordance with the oöWFG) without proof of 
language proficiency, while requiring third country nationals (including 
those with long-term resident status within the meaning of Directive 
2003/109/EC) to provide particular proof of a basic command of German? 
3. If the answer to question 2 is in the negative: 
Is the principle of non-discrimination on grounds of ethnic origin in 
accordance with Article 21 of the Charter of Fundamental Rights to be 
interpreted as precluding national legislation such as Paragraph 6(9) and (11) 
oöWFG, which allows EU citizens, EEA nationals and family members 
within the meaning of Directive 2004/38/EC to receive a social benefit 
(housing assistance in accordance with the oöWFG) without proof of 
language proficiency, while requiring third country nationals (including 
those with long-term resident status within the meaning of Directive 
2003/109/EC) to provide particular proof of a basic command of German? 
Community legislation cited 
Directive 2004/38/EC of the European Parliament and of the Council of 29 April 
2004 on the right of citizens of the Union and their family members to move and 
reside freely within the territory of the Member States, amending Regulation 
(EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 
72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 
93/96/EEC; 
Council Directive 2003/109/EC of 25 November 2003 concerning the status of 
third-country nationals who are long-term residents, in particular Article 11, 
LAND OBERÖSTERREICH 
 
3 
Council Directive 2000/43/EC of 29 June 2000 implementing the principle of 
equal treatment between persons irrespective of racial or ethnic origin, in 
particular Articles 1-3, 
Charter of Fundamental Rights of the European Union, in particular Articles 21, 
34, 51, 52 
National legislation cited 
Oberösterreichisches Wohnbauförderungsgesetz (Upper Austrian Law on Housing 
Subsidies, ‘the oöWFG’), in particular Paragraph 6(9), (11), (23) and (24) 
Oberösterreichisches Antidiskriminierungsgesetz (Upper Austrian Non-
Discrimination Law, ‘the oöADG’), Paragraphs 1-4, 8 
Oberösterreichische Wohnbeihilfen-Verordnung (Upper Austrian Ordinance on 
Social Housing Assistance); in particular Paragraphs 2-4 
Oberösterreichisches Mindestsicherungsgesetz (Upper Austrian Law on 
Guaranteed Minimum Benefits, ‘the oöBMSG’), in particular Paragraphs 1, 4, 5, 
6, 7, 8, 13 
Brief summary of the facts and procedure 
1 The applicant, a Turkish national born in 1981, has lived in Austria since 1997 
and is a ‘third-country national who is a long-term resident’ within the meaning of 
Directive 2003/109. He lives with his wife and three children in the Land of 
Upper Austria and, until the end of 2017, received housing assistance pursuant to 
the oöWFG. Since 1 January 2018 — unlike for citizens of the Union, nationals of 
an EEA State and family members within the meaning of Directive 
2004/38/EC — eligibility for housing assistance for third-country nationals is 
subject to proof of a certain basic command of German in accordance with 
Paragraph 6(9)(3) and Paragraph 6(11) of the öoWFG. The applicant has a 
command of German at the required level but does not have any of the requisite 
formal evidence, which is why his application for housing assistance was rejected. 
He meets all of the other conditions and would receive housing assistance if he 
were an EEA national. 
2 The applicant seeks damages from the Land Oberösterreich amounting to the loss 
of housing assistance from January until November 2018, namely EUR 281,54 per 
month plus damages for non-material harm of EUR 1,000. The applicant bases his 
claim on Paragraph 8 oöADG. 
3 The court of first instance upheld the claim in all respects. The Land 
Oberösterreich brought an appeal against that decision before the referring court. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-94/20 
 
4  
4 The court of first instance held that housing assistance was a core benefit within 
the meaning of Article 11(4) of Directive 2003/109. At the same time, it held that 
the requirement to prove a certain command of German was inappropriate and 
discriminated against the applicant on grounds of his ‘ethnicity’. 
Principal arguments of the parties in the main proceedings 
5 The applicant maintained that Paragraph 6(9)(3) and Paragraph 6(11) of the 
oöWFG placed him at a disadvantage by reason of his ethnicity without any 
objective justification. In addition, he argued that housing assistance was a core 
benefit within the meaning of Article 11(4) of Directive 2003/109. 
6 The Land Oberösterreich considers that there is no difference in treatment on 
grounds of ethnicity, the requirement to speak German is objectively justified and 
housing assistance does not constitute a core benefit within the meaning of 
Directive 2003/109/EC. 
Brief summary of the grounds for the request for a preliminary ruling 
The relationship between the questions referred for a preliminary ruling 
7 Questions 1 and 2 should be answered independently of each other. If housing 
assistance must be regarded as a core benefit within the meaning of Article 11(4) 
of Directive 2003/109 it must, from the point of view of EU law, be granted to the 
applicant on that ground alone, irrespective of whether there is also 
discrimination. In addition to the loss of housing assistance, the applicant also 
claims damages for non-material harm due to discrimination on grounds of his 
ethnicity. 
8 Even if housing assistance is not considered to be a core benefit within the 
meaning of Article 11(4) of Directive 2003/109, it is nevertheless conceivable that 
the provision of Paragraph 6(9) and (11) of the oöWFG constitutes unlawful 
discrimination within the meaning of Directive 2000/43 or that it is contrary to the 
Charter of Fundamental Rights. The referring court considers that, in applying the 
exception provided for in Article 11(4) of Directive 2003/109, the Land 
Oberösterreich is required, when structuring such a provision, to comply with 
other requirements of EU law such as Directive 2000/43 and the Charter of 
Fundamental Rights and must not apply any discriminatory criteria in doing so. 
Recital 5 of Directive 2003/109 expressly states that Member States are to give 
effect to this Directive without discrimination on the basis of, inter alia, race, 
colour, ethnic or social origin, genetic characteristics or language. According to 
the referring court, the question whether Paragraph 6(9) and (11) of the oöWFG 
infringes Directive 2000/43 or the Charter of Fundamental Rights must therefore 
be assessed independently of Article 11 of Directive 2003/109. 
LAND OBERÖSTERREICH 
 
5 
9 As regards the relationship between Directive 2000/43 and the Charter of 
Fundamental Rights, the referring court anticipates that the Court of Justice will 
assess any discrimination that falls within the scope of Directive 2000/43 
primarily on the basis of that Directive and will revert to the Charter of 
Fundamental Rights only if it comes to the conclusion that the facts of the main 
proceedings are not covered by the scope of a secondary law, which gives 
concrete expression to the prohibition of discrimination laid down in the Charter 
of Fundamental Rights (see, for example, the judgment of the Court of Justice in 
Case C-555/07, Kücükdeveci). 
10 In the present proceedings, it is conceivable that Directive 2000/43 is not 
applicable on account, in particular, of Article 3(2) thereof. However, according to 
the referring court that would not necessarily mean that there is also no 
discrimination as prohibited by the Charter of Fundamental Rights, inter alia 
because the Charter of Fundamental Rights does not contain any exception 
consistent with Article 3(2) of Directive 2000/43. As regards Article 3(2) of 
Directive 2000/43, inter alia the question arises whether that article actually 
excludes from the scope of that Directive (by reference to the criterion of 
nationality) indirect discrimination on grounds of ethnic origin, which would 
otherwise be covered by that Directive, or whether, in the situations covered by 
Article 3(2) of that Directive, already no indirect discrimination on grounds of 
ethnicity may exist, with the effect that that article is to be regarded as a mere 
clarification. 
11 Furthermore, according to the referring court, it is possible that Paragraph 6(9) 
and (11) of the oöWFG might be contrary to European Union law for 
infringement of the Charter of Fundamental Rights, although neither Directive 
2003/109 nor Directive 2000/43 precludes that paragraph since those Directives 
cannot restrict the scope of the prohibitions of discrimination laid down in the 
Charter (see, for example, Opinion of Advocate General Kokott in Case 
C-236/09 Test-Achats, points 29 and 30). 
‘Core benefits’ within the meaning of Article 11(4) of Directive 2003/109 
12 According to the Ausschuss für Wohnbau, Baurecht und Naturschutz (Committee 
for Housing, Construction Law and Protection of the Environment, ‘Committee’) 
of the Landtag (State Parliament) of Upper Austria, housing assistance is not a 
core social benefit within the meaning of Article 11(4) of Directive 2003/109. The 
requirements laid down by that Directive with regard to core benefits are covered 
by the oöBMSG. An amendment to the law in 2013 provided, inter alia, that third 
country nationals had to satisfy certain minimum income requirements in the 
previous five years; this requirement did not apply to Austrian nationals or to 
persons treated as such. In the view of the referring court, that Committee had 
therefore expressed the view that the Landtag of Upper Austria intended to make 
use of the exception provided for in Article 11(4) of Directive 2003/109. 
However, third-country nationals (including third-country nationals who are long-
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-94/20 
 
6  
term residents) were not generally excluded from entitlement to housing 
assistance, but additional conditions were imposed on those persons. 
13 The Court of Justice has dealt with the concept of core benefits in Case C-571/10, 
Kamberaj, in relation to housing benefits in South Tyrol. It stated in that regard, 
that that concept covers social assistance or social protection benefits which 
enable individuals to meet their basic needs such as food, accommodation and 
health (paragraph 91). On that basis, referring to Article 34 of the Charter of 
Fundamental Rights, the Court identified criteria to be taken into account by the 
national court in its assessment of the classification of housing assistance as a core 
benefit in the remainder of the proceedings. The Court held that the objective of 
that benefit, its amount, the conditions subject to which it is awarded and its place 
in the Italian system of special assistance had to be considered (paragraph 92). 
14 The referring court considers that the application of those principles to the Upper 
Austrian housing assistances provisions is not clear. The objective of the housing 
assistance is to avoid excessive burdens due to housing costs. In terms of amount 
and in terms of the conditions for granting it, housing assistance constitutes a 
subsidy to housing costs which depends, inter alia, on income, number of 
household members and size of the home, and which is capped at EUR 300. 
Housing assistance is not intended to fully cover the housing costs of a recipient 
of the payment, but typically covers part of the housing costs in order to prevent 
individuals on low incomes from being required to spend too large a proportion of 
their income on adequate housing. 
15 The guaranteed minimum benefits provided by the oöBMSG (in the applicable 
version), however, are intended to generally enable persons suffering social 
hardship to lead a dignified life, including covering their housing needs. The 
guaranteed minimum benefits provisions are subject to significantly stricter 
conditions than housing assistance and may be granted to individuals without any 
income or on extremely low incomes. It requires a significantly higher degree of 
social need. Thus, individuals on incomes that, while being low, still provide a 
livelihood in principle — in terms of the conditions for the grant of guaranteed 
minimum benefits — may receive housing assistance but are not entitled to 
guaranteed minimum benefits. In certain cases, it is possible to receive both 
housing assistance and guaranteed minimum benefits (where applicable, these are 
partly set-off against each other). However, the target groups of those two social 
benefits are not identical. 
16 In the light of that regulatory framework the referring court asks whether (and, if 
so, in what additional circumstances) solely benefits covered by the oöBMSG are 
to be regarded as core benefits within the meaning of Article 11(4) of Directive 
2003/109, or whether that is also the case with regard to housing assistance 
provided for by the oöWFG, as that housing assistance is also intended to 
compensate for excessive burdens in terms of housing costs, even if, unlike the 
guaranteed minimum benefits, it does not require that the beneficiary is suffering 
social hardship. 
LAND OBERÖSTERREICH 
 
7 
Discrimination based on ‘racial or ethnic origin’ within the meaning of 
Directive 2000/43 
17 The oöADG transposes Directive 2000/43, which refers to ‘ethnicity’ instead of 
‘racial or ethnic origin’. However, as a general rule, that term has the same 
meaning as the concepts of ‘racial or ethnic origin’ in EU law. 
18 In the view of the referring court, a difference in treatment based on the criterion 
of status as a third-country national does not, in principle, fall within the scope of 
that Directive due to Article 3(2) of Directive 2000/43 (judgment of the Court of 
Justice, Case C-571/10, Kamberaj, in particular paragraphs 48-50, and Case 
C-668/15, Jyske Finans). 
19 The question which arises, however, is whether the reference to nationality may 
nevertheless, under certain conditions, constitute indirect discrimination based on 
ethnic origin. According to the referring court, it would be possible, by referring 
to the formal criterion of nationality, to indirectly pursue objectives which may be 
regarded as constituting indirect discrimination on grounds of ethnic origin. 
20 In the present case, the referring court is concerned with a provision which not 
only makes a distinction based on the nationality of the third-country national but 
which, linked to this, sets out a requirement of a certain level of German 
proficiency, evidence of which may only be furnished in certain, clearly defined 
ways (Paragraph 6(9) and (11) of the oöWFG). In the view of the referring court, 
it is unclear how such a case is to be categorised, in particular in the light of the 
scope of that directive and the exception provided for in Article 3(2) of Directive 
2000/43. 
21 In the event that Paragraph 6(9) and (11) of the oöWFG had to be assessed in 
terms of indirect or ‘covert’ discrimination, it would be necessary to examine the 
objective justification of that provision within the meaning of Article 2(2)(b) of 
Directive 2000/43. The purpose of Paragraph 6 (9) and (11) of the oöWFG was 
more restricted access for third-country nationals to housing assistance, with the 
main argument specifically in favour of the required proficiency in German being 
that this was an important element for social integration. 
22 According to the referring court it is worth considering whether the present 
requirement for proof of German proficiency for the grant of housing 
assistance — in particular if structured in the way it is here — can be regarded as 
objectively justified. On the one hand, it could be considered questionable why a 
language requirement should be necessary in addition to the other conditions laid 
down by the oöWFG, subject to which third-country nationals may, in any event, 
receive housing assistance only if they have lived in Austria for more than 5 years 
and, as a general rule, have already worked for a number of years. On the other 
hand, an additional requirement of proof of German proficiency could be regarded 
as a cause for concern particularly in the case of third-country nationals who are 
long-term residents within the meaning of Directive 2003/109 since those persons 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-94/20 
 
8  
have already had to satisfy various integration-related conditions stipulated by the 
österreichisches Niederlassungs- und Aufenthaltsgesetz (Austrian Law on 
Settlement and Residence) in order to obtain that status (see, from the point of 
view of EU law, Article 5(2) of Directive 2003/109). In addition, doubts might 
also be cast on the reasons why the relatively basic German proficiency level 
required can be demonstrated solely through the specific, formal evidence 
required by statute. 
Requirements of the Charter of Fundamental Rights 
23 Should the Court of Justice consider that Directive 2000/43 does not apply to the 
situation at issue in the main proceedings, in particular due to Article 3(2) thereof, 
the referring court asks whether the rule laid down in Paragraph 6(9) and (11) of 
the oöWFG must be assessed in the light of the Charter of Fundamental Rights. 
The Charter needs to be taken into consideration pursuant to Article 51(1) of the 
Charter of Fundamental Rights in the implementation of European Union law. In 
the light of the case-law relating to the scope of the Charter of Fundamental 
Rights, the referring court takes the view that it is likely that a provision such as 
Paragraph 6(9) and (11) of the oöWFG may only be structured with the provisions 
of the Charter in mind. The Charter may, inter alia, be applicable because there 
are principles under EU law concerning the grant of social benefits to third-
country nationals who are long-term residents, and the national legislation at issue 
in the main proceedings may be regarded as implementing those principles (see 
also recital 5 of Directive 2003/109). 
24 Article 21 of the Charter of Fundamental Rights provides, inter alia, a prohibition 
of any discrimination on grounds of ethnic origin. Any limitation on the exercise 
of the rights and freedoms recognised by the Charter is to be provided for by law 
and respect the essence of those rights and freedoms. Subject to the principle of 
proportionality, limitations are to be made only if they are necessary and 
genuinely meet objectives of general interest recognised by the Union or the need 
to protect the rights and freedoms of others (Article 52(1) Charter of Fundamental 
Rights). 
25 As regards the referring court’s considerations relating to the objective 
justification of Paragraph 6(9) and (11) of the oöWFG, reference is made to the 
considerations relating to Directive 2000/43. Those considerations may be applied 
accordingly to the review of proportionality in accordance with Article 52(1) of 
the Charter of Fundamental Rights.