1 This request for a preliminary ruling concerns the interpretation of Article 2(2)(a) and (b) of Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (OJ 2000 L 180, p. 22).
2 The request has been made in five sets of proceedings between, as regards the first four, the public housing association Slagelse Almennyttige Boligselskab, Afdeling Schackenborgvænge (‘SAB’) and 5 tenants of public family housing units and, as regards the fifth, 11 tenants of public family housing and the Social-, Bolig- og Ældreministeriet (Ministry of Social Affairs, Housing and Senior Citizens, Denmark) concerning national legislation laying down an obligation to adopt development plans designed to reduce the percentage of public family housing units in residential areas that are characterised, inter alia, by the fact that, during the last five years, the proportion of ‘immigrants from non-Western countries and their descendants’ residing there has exceeded 50%.
3 Recitals 2 to 4, 9, 12, 13, 15, 16 and 28 of Directive 2000/43 read as follows: … …
4 Article 1 of that directive, entitled ‘Purpose’, provides: ‘The purpose of this Directive is to lay down a framework for combating discrimination on the grounds of racial or ethnic origin, with a view to putting into effect in the Member States the principle of equal treatment.’
5 Article 2 of that directive, entitled ‘Concept of discrimination’, provides: ‘1. For the purposes of this Directive, the principle of equal treatment shall mean that there shall be no direct or indirect discrimination based on racial or ethnic origin. 2. For the purposes of paragraph 1:
6 Article 3 of that directive, entitled ‘Scope’, provides: ‘1. Within the limits of the powers conferred upon the Community, this Directive shall apply to all persons, as regards both the public and private sectors, including public bodies, in relation to: … 2. This Directive does not cover difference of treatment based on nationality and is without prejudice to provisions and conditions relating to the entry into and residence of third-country nationals and stateless persons on the territory of Member States, and to any treatment which arises from the legal status of the third-country nationals and stateless persons concerned.’
7 Article 8 of Directive 2000/43, entitled ‘Burden of proof’, provides, in paragraph 1 thereof: ‘Member States shall take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment.’
8 Recital 27 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) provides: ‘This Directive should not cover those social services in the areas of housing, childcare and support to families and persons in need which are provided by the State at national, regional or local level by providers mandated by the State or by charities recognised as such by the State with the objective of ensuring support for those who are permanently or temporarily in a particular state of need because of their insufficient family income or total or partial lack of independence and for those who risk being marginalised. These services are essential in order to guarantee the fundamental right to human dignity and integrity and are a manifestation of the principles of social cohesion and solidarity and should not be affected by this Directive.’
9 Under Article 2(1) and (2) of that directive: ‘1. This Directive shall apply to services supplied by providers established in a Member State. 2. This Directive shall not apply to the following activities: … (j) social services relating to social housing, … …’
10 Article 4(1) of that directive states: ‘For the purposes of this Directive, the following definitions shall apply:
11 Paragraph 27(4) of the lovbekendtgørelse nr. 1877 om almene boliger m.v. (almenboligloven) (Consolidated Law No 1877 on, inter alia, public housing (Law on Public Housing)) of 27 September 2021 (‘the Law on Public Housing’) reads as follows: ‘In the case of housing units situated in a transformation area within the meaning of Paragraph 61a(4), the Minister shall approve the sale on condition that the tenancy agreements concluded with tenants who do not meet the criteria laid down by the municipal council pursuant to Paragraph 27c(1) are terminated …’
12 Paragraph 27c of that law states: ‘1. The municipal council shall lay down criteria for the letting of land situated in a vulnerable residential area, within the meaning of Paragraph 61a(1), which is sold to private buyers. The criteria referred to in the first sentence shall be laid down by the municipal council at the latest when the sale is approved and shall be valid for 10 years from the date on which the land concerned is acquired. The criteria laid down in accordance with the first sentence shall also apply to new rental properties built on the land. … 3. If a rental property is let in breach of those criteria, the municipal council imposes an obligation on the lessor to terminate the lease.’
13 Paragraph 61a of that law provides: ‘1. A vulnerable residential area is an area which meets at least two of the following criteria: 2. A parallel society is defined as a residential area where the proportion of immigrants from non-Western countries and their descendants exceeds 50% and where at least two of the criteria listed in subparagraph 1 are met. … 4. A transformation area means a residential area which has satisfied the conditions referred to in subparagraph 2 for the past five years. 5. The [Indenrigs- og boligministeren (Minister for the Interior and Housing, Denmark)] shall publish on 1 December each year [the list of] areas which satisfy the conditions laid down in subparagraphs 1, 2 and 4 and in Paragraph 61b.’
14 Paragraph 168a(1) and (2) of that law provides as follows: ‘1. The public lessor and the municipal council shall jointly prepare a development plan for a transformation area within the meaning of Paragraph 61a(4). The joint development plan must aim at reducing, by 1 January 2030, the share of public family housing to a maximum of 40% of all housing units in the transformation area concerned, within the meaning of Paragraph 61a(4). Housing units demolished after 2010 and not replaced by other public family housing units may be included in the calculation of the total number of housing units in the residential area concerned. Commercial spaces are included in the calculation of the number of housing units, so that each area of 75 square metres [(m2)] of commercial space is counted as one housing unit. 2. The Minister for the Interior and Housing shall approve the development plans referred to in subparagraph 1.’
15 Paragraph 168b(1) and (2) of the Law on Public Housing provides: ‘1. In the absence of agreement on a joint development plan within the meaning of Paragraph 168a(1), the municipal council may request the Minister for the Interior and Housing to approve a municipal development plan. The municipal development plan must aim at reducing, by 1 January 2030, the proportion of public family housing to a maximum of 40% of all housing units in the transformation area concerned, within the meaning of Paragraph 61a(4). Housing units demolished after 2010 and not replaced by other public family housing units may be included in the calculation of the total number of housing units in the residential area concerned. Commercial spaces are included in the calculation of the number of housing units, so that each area of 75 m2 of commercial space is counted as one housing unit. The Minister shall forward the municipal development plan to the public lessor for consultation before making a decision pursuant to the first sentence. 2. The municipal council may order the public lessors to implement a municipal plan approved in accordance with subparagraph 1, including the implementation of measures of significant importance for the implementation of the municipal development plan and for the protection of the general public interest, within a period to be determined by the municipal council.’
16 It is apparent from the request for a preliminary ruling that, in its original version, Paragraph 61a of the Law on Public Housing, which was inserted into that law by lov nr. 1610 om ændring af lov om almene boliger m.v. (Law No 1610 amending the Law on public housing, inter alia) of 22 December 2010, used the term ‘ghetto’ in subparagraph 2 thereof, and the expression ‘hard ghetto area’ in subparagraph 4 thereof, instead of the expressions currently used, namely ‘parallel society’ and ‘transformation area’, respectively.
17 In the preparatory documents for that Law No 1610 of 22 December 2010, in order to define the concept of ‘ghetto’ or ‘ghetto area’, it was ‘proposed to focus on three criteria …: the proportion of immigrants from non-Western countries and their descendants, the proportion of people with no link to the labour market and the proportion of people convicted of offences under the Criminal Code, the Law on Weapons or the Law on Narcotics, each of which indicates that there is a social and societal problem that so deviates from the general situation in Denmark that it is necessary to make a particular effort’.
18 The definition of the concept of ‘ghetto area’ was amended by lov nr. 1609 om ændring af lov om almene boliger m.v. (Law No 1609 amending the Law on public housing, inter alia) of 26 December 2013, which added two new criteria relating to education and income. The preparatory documents for Law No 1609 of 26 December 2013 state, in particular, as follows: ‘The integration of immigrants from non-Western countries and their descendants in disadvantaged districts is a key issue. It is important that residents of residential areas interact with each other beyond their ethnic origins. Otherwise, it may become more difficult to understand each other culturally and linguistically, and prejudices, negative attitudes and a dangerous division between “them” and “us” may more easily arise. This threatens the cohesion of society. A high concentration of citizens of a different ethnic origin is therefore an indication that attention should be paid to the area in question.’
19 The obligation to adopt development plans such as those at issue in the main proceedings was introduced by lov nr. 1322 om ændring af lov om almene boliger m.v., lov om leje af almene boliger og lov om leje (Law No 1322 amending the Law on public housing, inter alia, the Law on the renting of public housing and the Law on Leases) of 27 November 2018. Under Law No 1322 of 27 November 2018, the criterion relating to the proportion of ‘immigrants from non-Western countries and their descendants’ exceeding 50% in the residential area concerned became a necessary condition for such a residential area to be classified as a ‘ghetto area’. The preparatory documents for that law indicate that that criterion ‘highlights the fact that, in ghetto areas, the central challenge is the lack of integration of immigrants from non-Western countries and their descendants’.
20 The draft law which led to the adoption of the law referred to in the previous paragraph was based on a proposal prepared by the Danish Government in March 2018, entitled ‘A Denmark without parallel societies - no ghettos by 2030’. That proposal stated, inter alia, as follows: ‘The government wants a Denmark with cohesion. … Over the past 40 years, Denmark’s ethnic composition has changed significantly. In 1980, Denmark had a population of 5.1 million. Today, that is close to 5.8 million. The population growth comes from outside. From both immigrants and their descendants. The majority of new Danes are of non-Western origin. … There are too many immigrants who do not actively participate [in Danish society]. A parallel society has emerged among people of non-Western origin. Too many immigrants and descendants of immigrants have ended up disconnected from the surrounding society. Without education, without jobs and without sufficient knowledge of Danish. … For decades too many refugees and their family members have been admitted to Denmark without being integrated into Danish society. They have been allowed to gather in ghettos with no contact with the surrounding society, even after many years in Denmark, because we have not clearly required them to be part of Danish society. … Holes have been punched in the map of Denmark. Many people live in more or less isolated enclaves. Far too many citizens are not taking sufficient responsibility. They do not participate actively in Danish society and the labour market. We have [welcomed] a group of citizens who do not fully embrace Danish norms and values. [A group] in which women are considered less valuable than men, and in which social control and lack of equality set narrow limits on the individual’s freedom of expression. …’
21 As stated in paragraph 2 of the present judgment, the request for a preliminary ruling has been made in the context of five sets of proceedings, four of which concern Schackenborgvænge, a housing estate in the residential area of Ringparken in Slagelse (Denmark), and one of which concerns Mjølnerparken, a housing estate in Copenhagen (Denmark).
22 The Ringparken residential area consists of five housing estates, four of which are managed by the public housing association Fællesorganisationens Boligforening, with the fifth, Schackenborgvænge, managed by SAB.
23 On 1 December 2018, the Ringparken residential area was designated a ‘hard ghetto area’, within the meaning of the original version of Paragraph 61a(4) of the Law on Public Housing. That area is now classified as a ‘transformation area’ within the meaning of the version of that provision applicable to the disputes in the main proceedings. That designation was made on the grounds that, first, that residential area satisfied the four criteria laid down in Paragraph 61a(1), namely those relating to the residents’ links to the labour market or education, the level of crime, the level of primary education and the average income (‘the socioeconomic criteria’), and, second, 55.6% of the residents of that residential area were ‘immigrants from non-Western countries and their descendants’, within the meaning of that Paragraph 61a(2).
24 Fællesorganisationens Boligforening, SAB and Slagelse Kommune (the Municipality of Slagelse, Denmark) drew up a development plan for the Ringparken residential area, which was approved by the municipal council on 27 May 2019, with the intention of reducing the proportion of public family housing to 40% of all housing in that residential area, in accordance with Paragraph 168a(1) of the Law on Public Housing.
25 In June 2019, SAB decided to sell 136 public family housing units located in Schackenborgvænge to a private buyer. As that sale had not been provided for in the development plan referred to in the previous paragraph, that plan was updated and approved by the Municipality of Slagelse on 26 August 2019 (‘the Ringparken development plan’).
26 On 26 August and 17 September 2019, that municipality also approved, in accordance with Paragraph 27c of the Law on Public Housing, the criteria for renting out housing units sold to private buyers in vulnerable residential areas located in the territory of the Municipality of Slagelse. Those criteria determine the conditions that must be satisfied in order for the tenants of housing units located in Schackenborgvænge to be able to remain in their homes after that sale, namely the fact of having a certain level of income and the fact that neither those tenants nor their partners have committed a criminal offence during the last six months.
27 On 14 January 2020, the Ringparken development plan and the sale of the Schackenborgvænge housing estate were approved by the Trafik-, Bygge- og Boligstyrelsen (Transport, Construction and Housing Authority, Denmark).
28 On 17 February 2020, SAB terminated 17 leases at Schackenborgvænge. It is apparent from the order for reference that the termination of those leases was based on the criteria referred to in paragraph 26 of the present judgment.
29 Since five of the tenants concerned (‘the five Schackenborgvænge tenants’) opposed the termination of their lease, despite the rehousing offer made to them, SAB brought, on 7 May 2020, an action against each of them seeking a declaration that the termination of those leases was lawful and satisfied the conditions laid down, inter alia, in Paragraph 61a(1) of the Law on Public Housing. Those five tenants contended that those actions should be dismissed and, also, requested that SAB recognise that Paragraph 61a of that law is invalid.
30 It is apparent from the order for reference that three of the five Schackenborgvænge tenants are Danish, but were born in ‘non-Western countries’ within the meaning of Paragraph 61a(2) of the Law on Public Housing, that another of those tenants is a national of a ‘non-Western country’, in which he was born, and that there is no information regarding the place of birth or the nationality of the fifth of those tenants. One of them has been a resident in Schackenborgvænge since 2012, another since 2013 and the other three since 2017.
31 BL - Danmarks Almene boliger (the Danish federation of non-profit housing providers) intervened in support of the form of order sought by SAB, while the Institut for Menneskerettigheder (Institute for Human Rights, Denmark) intervened in support of the form of order sought by the five Schackenborgvænge tenants.
32 Since 1 December 2021, the Ringparken residential area is no longer a transformation area, as it no longer meets three of the socioeconomic criteria. Nevertheless, SAB is still required to implement the Ringparken development plan.
33 The fifth dispute in the main proceedings concerns the Mjølnerparken housing estate, managed by the public housing association Bo-Vita, which consists of 528 public family housing units and 32 housing units for young people, divided into four blocks.
34 On 1 December 2018, the Mjølnerparken residential area was designated a ‘hard ghetto area’, within the meaning of the original version of Paragraph 61a(4) of the Law on Public Housing. That area is now classified as a ‘transformation area’ within the meaning of the version of that provision applicable to the disputes in the main proceedings. That designation was made on the grounds that, first, that residential area met three of the socioeconomic criteria and, second, approximately 80% of the residents of that residential area were ‘immigrants from non-Western countries and their descendants’, within the meaning of Paragraph 61a(2) of that law. At the time the present reference for a preliminary ruling was made, Mjølnerparken was still a transformation area.
35 In accordance with Paragraph 168a(1) of the Law on Public Housing, Bo-Vita prepared a development plan for Mjølnerparken, which was approved on 20 June 2019 by Københavns Kommune (the Municipality of Copenhagen, Denmark) and on 10 September 2019 by the Transport- og Boligministeriet (Ministry of Transport and Housing, Denmark), which became the Indenrigs- og Boligministeriet (Ministry of the Interior and Housing, Denmark), then the Ministry of Social Affairs, Housing and Senior Citizens. That development plan provides, inter alia, that the reduction of the proportion of public family housing units to 40%, in accordance with Paragraph 168a(1), must be achieved through the sale of blocks 2 and 3.
36 Bo-Vita concluded an agreement for the sale of those blocks, which was approved by the Municipality of Copenhagen on 2 June 2022, and by the Social- og Boligstyrelsen (Social and Housing Authority, Denmark) on 4 January 2023.
37 The referring court states that, under the law, Bo-Vita is responsible for terminating the leases of the tenants of those blocks.
38 On 27 May 2020, 11 tenants who are or were residents of Mjølnerparken blocks 2 and 3 (‘the 11 Mjølnerparken tenants’) brought an action against the Ministry of Social Affairs, Housing and Senior Citizens seeking a declaration that that ministry’s approval of the development plan referred to in paragraph 35 of the present judgment was invalid, in particular in so far as it was based on Paragraph 61a(4) of the Law on Public Housing. That ministry contended that that action should be dismissed.
39 It is apparent from the order for reference that those 11 tenants are all Danish, but that 8 of them were born in ‘non-Western countries’, within the meaning of Paragraph 61a(2) of that law, and that the parents of another of those tenants were born in Lebanon. Nine of the same tenants have lived in Mjølnerparken for more than 20 years and the other two have lived there since 2012 and 2014 respectively.
40 The Institute for Human Rights intervened in support of the form of order sought by the 11 Mjølnerparken tenants, as did the United Nations Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance and the United Nations Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, and on the right to non-discrimination in that context.
41 The Østre Landsret (High Court of Eastern Denmark), which is the referring court, states that, in the five disputes in the main proceedings, the central question is whether the national provisions relating to development plans designed to reduce the share of public family housing in transformation areas, laid down in Paragraph 168a(1) of the Law on Public Housing, constitute discrimination on the ground of ethnic origin contrary to lov nr. 374 om etnisk ligebehandling (Law No 374 on equal treatment on the ground of ethnic origin) of 28 May 2003, in the version applicable to the dispute in the main proceedings, and Directive 2000/43, which the law on equal treatment seeks to transpose into Danish law.
42 That court states that the 5 Schackenborgvænge tenants and the 11 Mjølnerparken tenants claimed, inter alia, that the termination of their leases or the adoption of the development plan concerning them constituted direct discrimination based on ethnic origin prohibited by Directive 2000/43, in that the criterion of ‘immigrants from non-Western countries and their descendants’, laid down in Paragraph 61a(2) of the Law on Public Housing, comes within the concept of ‘ethnic origin’ within the meaning of Article 2(2)(a) of that directive.
43 In the alternative, those tenants claim that the lease terminations which they contest are indirectly discriminatory, since the practice of terminating such leases particularly affects persons of a particular ‘ethnic origin’ within the meaning of Article 2(2)(b) of that directive.
44 According to the referring court, SAB and the Ministry of Social Affairs, Housing and Senior Citizens argued, inter alia, that the criterion relating to ‘immigrants from non-Western countries and their descendants’, laid down in Paragraph 61a(2) of the Law on Public Housing, does not come within the concept of ‘ethnic origin’ in Article 2(2)(a) and (b) of Directive 2000/43.
45 That court states that the concept of ‘non-Western country’, developed by Danmarks Statistik (Statistics Denmark, the Danish office for national statistics), includes all countries other than the Member States of the European Union, Andorra, Iceland, Liechtenstein, Monaco, Norway, San Marino, Switzerland, the United Kingdom, the Vatican City State, Canada, the United States, Australia and New Zealand.
46 That office defines an ‘immigrant’ as a person born abroad and neither of whose parents was both (i) born in Denmark and (ii) a Danish national. That office defines a ‘descendant’ as a person who was born in Denmark but neither of whose parents was both (i) born in Denmark and (ii) a Danish national, or whose parents, even if they were born in Denmark and acquired Danish nationality, both also retain a foreign nationality.
47 The referring court is of the view that it cannot be deduced either from the wording of Article 2(2)(a) and (b) of Directive 2000/43 or from the case-law of the Court resulting from the judgments of 16 July 2015, CHEZ Razpredelenie Bulgaria (C‑83/14, ‘the judgment in CHEZ Razpredelenie Bulgaria’, EU:C:2015:480); of 6 April 2017, Jyske Finans (C‑668/15, EU:C:2017:278); and of 10 June 2021, Land Oberösterreich (Housing assistance) (C‑94/20, EU:C:2021:477), whether the concept of ‘ethnic origin’ includes a group of persons defined as ‘immigrants from non-Western countries and their descendants’ and, if it does, whether the national legislation at issue in the main proceedings constitutes direct or indirect discrimination within the meaning of that provision.
48 In those circumstances the Østre Landsret (High Court of Eastern Denmark) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
49 By its questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 2(2)(a) and (b) of Directive 2000/43 must be interpreted as meaning that national legislation laying down an obligation to adopt development plans designed to reduce the percentage of public family housing units in residential areas that are characterised, inter alia, by the fact that, during the last five years, the proportion of ‘immigrants from non-Western countries and their descendants’ residing in those areas has exceeded 50% constitutes direct or indirect discrimination based on ethnic origin, within the meaning of that provision.
50 As a preliminary point, it is necessary to ascertain whether the disputes in the main proceedings, in so far as they concern the Danish public family housing system, as regulated by the Law on Public Housing, come within the material scope of Directive 2000/43.
51 In that regard, in the first place, it is apparent from recital 12 of Directive 2000/43 that the EU legislature considered that, in order to ensure the development of democratic and tolerant societies which allow the participation of all persons irrespective of racial or ethnic origin, specific action in the field of discrimination based on racial or ethnic origin should in particular cover areas such as those listed in Article 3(1) of that directive (judgments of 12 May 2011, Runevič-Vardyn and Wardyn, C‑391/09, EU:C:2011:291, paragraph 41, and of 15 November 2018, Maniero, C‑457/17, EU:C:2018:912, paragraph 35).
52 Consequently, as the Court has already held, in the light of the objective of Directive 2000/43 and the nature of the rights which it seeks to safeguard, and in view of the fact that that directive gives specific expression, in its field of application, to the principle of non-discrimination on grounds of race and ethnic origin enshrined in Article 21 of the Charter of Fundamental Rights of the European Union (‘the Charter’), the scope of that directive cannot be defined restrictively (the judgment in CHEZ Razpredelenie Bulgaria, paragraphs 42 and 72, and judgment of 15 November 2018, Maniero, C‑457/17, EU:C:2018:912, paragraph 36).
53 In the second place, Article 3(1)(h) of Directive 2000/43 provides that, within the limits of the powers conferred upon the European Union, that directive is to apply to all persons, as regards both the public and private sectors, including public bodies, in relation to access to and supply of goods and services which are available to the public, including housing.
54 In that regard, Article 2(1) of Directive 2006/123 provides that that directive applies to services supplied by providers established in a Member State, the concept of ‘service’ being defined in Article 4(1) of that directive as ‘any self-employed economic activity, normally provided for remuneration, as referred to in Article [57 TFEU]’.
55 Under Article 57 TFEU, services normally provided for remuneration, including activities of a commercial character, are considered to be ‘services’ within the meaning of the Treaties. Pursuant to the settled case-law of the Court, the essential characteristic of remuneration lies in the fact that it constitutes consideration for the service in question (judgment of 23 February 2016, Commission v Hungary, C‑179/14, EU:C:2016:108, paragraphs 151 and 153 and the case-law cited).
56 In that regard, the Court has held that the letting of immovable property by a legal person comes within the concept of ‘service’ within the meaning of Article 4(1) of Directive 2006/123 (see, to that effect, judgment of 22 September 2020, Cali Apartments, C‑724/18 and C‑727/18, EU:C:2020:743, paragraph 34).
57 In the present case, as the Advocate General observed, in essence, in points 41 and 42 of her Opinion, it is apparent from the explanations provided at the hearing by the Danish Public Housing Association, the 5 Schackenborgvænge tenants and the 11 Mjølnerparken tenants that the Danish public family housing system is characterised, inter alia, by the fact that it is managed by public lessors, namely non-profit organisations. Any person aged 15 years or over may register on a waiting list for the allocation of that housing, without there being any income requirement. Persons who are allocated a public family housing unit are required to pay rent the amount of which is lower than the market price, since that rent is intended solely to cover the operating and maintenance costs of those housing units.
58 In the light of that information, which it is for the referring court to verify, it must be held that the provision of housing in exchange for rent, under a scheme such as the Danish public family housing system, must be regarded as constituting a supply of ‘services’, within the meaning of Article 57 TFEU and, by extension, within the meaning of Article 4(1) of Directive 2006/123, since it is a service provided for remuneration.
59 In that regard, it is irrelevant that the public lessors which manage that system are non-profit organisations and that the amount of the rent paid by the tenants is lower than the market price.
60 The decisive factor which brings an activity within the ambit of the FEU Treaty provisions on the freedom to provide services is its economic character, that is to say, the activity must not be provided for nothing. By contrast, there is no need in that regard for the person providing the service to be seeking to make a profit (judgments of 18 December 2007, Jundt, C‑281/06, EU:C:2007:816, paragraphs 32 and 33, and of 23 February 2016, Commission v Hungary, C‑179/14, EU:C:2016:108, paragraph 154).
61 The Court has also held that services provided in exchange for remuneration, which, while not coming within the exercise of public powers, are carried out in the public interest and without a profit motive, and which are in competition with those offered by operators pursuing a profit, can be classified as economic activities (see, by analogy, judgments of 6 September 2011, Scattolon, C‑108/10, EU:C:2011:542, paragraph 44 and the case-law cited, and of 27 June 2017, Congregación de Escuelas Pías Provincia Betania, C‑74/16, EU:C:2017:496, paragraphs 45 and 46 and the case-law cited). The fact that such services are less competitive than comparable services provided by operators pursuing a profit cannot prevent the activities concerned from being regarded as economic activities (judgments of 25 October 2001, Ambulanz Glöckner, C‑475/99, EU:C:2001:577, paragraph 21, and of 11 November 2021, Manpower Lit, C‑948/19, EU:C:2021:906, paragraph 39).
62 Furthermore, the fact that a supply of services is provided at a price below the normal market price is not, in itself, such as to prevent that service from being classified as an economic activity, since that fact is not, in itself, such as to affect the existence of a direct link between that service and the economic consideration for it (see, to that effect and by analogy, judgment of 15 April 2021, Administration de l’Enregistrement, des Domaines et de la TVA, C‑846/19, EU:C:2021:277, paragraph 43 and the case-law cited).
63 In those circumstances, since it is apparent from the documents before the Court that the Danish public family housing system involves the provision of services, within the meaning of Article 4(1) of Directive 2006/123, it must be held that it concerns access to and supply of housing services, within the meaning of Article 3(1)(h) of Directive 2000/43.
64 That finding does not appear to be called into question by Article 2(2)(j) of Directive 2006/123, which provides that that directive does not apply to social services relating to social housing. Indeed, interpreted in the light of recital 27 of that directive, that provision means that Directive 2006/123 does not apply to activities that are essential in order to guarantee the fundamental right to human dignity, which seek to prevent the marginalisation of the persons benefiting from it and constitute to that effect a manifestation of the principles of social cohesion and solidarity (see, to that effect, judgment of 11 July 2013, Femarbel, C‑57/12, EU:C:2013:517, paragraphs 42 and 43), since such activities cannot in fact be classified as ‘economic’ activities.
65 In the present case, in view of the characteristics of the Danish public family housing system set out in paragraph 57 of the present judgment, the provision of housing for remuneration under that scheme is an activity that is economic in nature and therefore does not come within the scope of ‘social services’ relating to social housing, within the meaning of Article 2(2)(j) of Directive 2006/123.
66 Accordingly, subject to the verifications referred to in paragraph 58 of the present judgment, which it is for the referring court to carry out, it must be held that the Danish public family housing system concerns an area coming within the scope of Directive 2006/123, which is sufficient to establish the applicability, in the context of that scheme, of Directive 2000/43 under Article 3(1) thereof.
67 It follows that the disputes in the main proceedings come within the material scope of Directive 2000/43.
68 Article 2(1) of Directive 2000/43 gives specific expression to the principle of equal treatment in the sense that there is to be no direct or indirect discrimination based on racial or ethnic origin.
69 In so far as, by its questions, the referring court asks, in essence, whether national legislation such as that at issue in the main proceedings, setting out a criterion relating to ‘immigrants from non-Western countries and their descendants’, constitutes direct or indirect discrimination based on ethnic origin, within the meaning of Article 2(2)(a) and (b) of that directive, it is necessary to begin by examining whether the use of that criterion in Paragraph 61a(2) of the Law on Public Housing may constitute direct discrimination within the meaning of Article 2 of that directive.
70 Article 2(2)(a) of Directive 2000/43 states that, for the purposes of applying paragraph 1 of that article, direct discrimination is to be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation on grounds of racial or ethnic origin.
71 The concept of ‘ethnic origin’ is not defined in Directive 2000/43.
72 However, the Court has previously held that the concept of ‘ethnic origin’, within the meaning of that directive, has its origin in the idea of societal groups marked in particular by common nationality, religious faith, language, cultural and traditional origins and backgrounds (the judgment in CHEZ Razpredelenie Bulgaria, paragraph 46, and judgment of 6 April 2017, Jyske Finans, C‑668/15, EU:C:2017:278, paragraph 17).
73 It is also apparent from the Court’s case-law, first, that, in so far as the list of criteria set out in the previous paragraph of the present judgment is introduced by the words ‘in particular’, it is not exhaustive and, second, that ethnic origin cannot be determined on the basis of a single criterion, but, on the contrary, is based on a whole number of factors, some objective and others subjective (see, to that effect, judgment of 6 April 2017, Jyske Finans, C‑668/15, EU:C:2017:278, paragraphs 18 and 19).
74 It follows that, in the absence of a definition of the concept of ‘ethnic origin’ in Directive 2000/43, the scope of that concept must be defined on the basis of a combination of criteria such as those referred to in paragraph 72 of the present judgment.
75 To that end, it is necessary to take into account the objective pursued by that directive and the context in which that concept occurs.
76 In accordance with settled case-law, it follows from the need for a uniform application of EU law and the principle of equality that the terms of a provision of EU law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an independent and uniform interpretation throughout the European Union, having regard not only to the wording of that provision but also to the context in which it occurs and the objectives pursued by the rules of which it is part (judgments of 18 January 1984, Ekro, 327/82, EU:C:1984:11, paragraph 11, and of 8 April 2025, European Public Prosecutor’s Office (Judicial review of procedural acts), C‑292/23, EU:C:2025:255, paragraph 51).
77 As regards, in the first place, the objective pursued by Directive 2000/43, it is apparent from Article 1 thereof that the purpose of that directive is to lay down a framework for combating discrimination on the grounds of racial or ethnic origin, with a view to putting into effect in the Member States the principle of equal treatment. Furthermore, as recital 28 of that directive states, its objective is to ensure a common high level of protection against discrimination on those grounds in all the Member States.
78 As regards, in the second place, the context of the concept of ‘ethnic origin’ within the meaning of Directive 2000/43 and, in particular, Article 2 thereof, it must be borne in mind, first, that, as has already been noted in paragraph 52 of the present judgment, that directive gives specific expression, in its field of application, to the principle of non-discrimination on grounds of racial and ethnic origin enshrined in Article 21 of the Charter. According to the Explanations relating to the Charter of Fundamental Rights (OJ 2007 C 303, p. 17), Article 21(1) thereof draws on, inter alia, Article 14 ECHR and, in so far as it corresponds with the latter, applies in compliance with it.
79 In that regard, it follows from the case-law of the European Court of Human Rights relating to Article 14 ECHR, which prohibits any discrimination based on, inter alia, race, that discrimination based on a person’s ethnic origin is a form of racial discrimination and that such discrimination is a particularly invidious kind of discrimination which, in view of its perilous consequences, requires from the authorities special vigilance and a vigorous reaction. The authorities must use all available means to combat racism, thereby reinforcing democracy’s vision of society (ECtHR, 13 November 2007, D.H. and Others v. the Czech Republic, CE:ECHR:2007:1113JUD005732500, § 176, and ECtHR, 20 February 2024, Wa Baile v. Switzerland, CE:ECHR:2024:0220JUD004386818, § 90).
80 Second, recital 3 of Directive 2000/43 states that the right to equality before the law and protection against discrimination for all persons constitutes a universal right recognised by various international agreements, including the International Convention on the Elimination of All Forms of Racial Discrimination, adopted on 21 December 1965, which was signed by all the Member States and should therefore be duly taken into account. According to Article 1 of that convention, ‘the term “racial discrimination” shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin’, and as such discrimination based on a person’s ethnic origin constitutes a form of racial discrimination within the meaning of that convention (see, to that effect, the judgment in CHEZ Razpredelenie Bulgaria, paragraph 73).
81 Third, as is apparent from both recital 13 of Directive 2000/43 and Article 3(2) thereof, that directive does not cover differences of treatment based on nationality, since a person’s nationality cannot, in itself, give rise to a presumption of belonging to a particular ethnic group.
82 That provision cannot, however, prevent nationality or the criteria underlying its grant from being taken into account, among other factors, for the purposes of defining the parameters of ‘ethnic origin’. Indeed, it is apparent from the list of criteria relating to that concept referred to in paragraph 72 of the present judgment that ‘common nationality’ is one of the factors which, in conjunction with others, may lead to the conclusion that a person belongs to an ethnic group.
83 Similarly, the criterion of a person’s country of birth may be one of the specific factors which may justify the conclusion that that person belongs to an ethnic group (see, to that effect, judgment of 6 April 2017, Jyske Finans, C‑668/15, EU:C:2017:278, paragraph 18).
84 Indeed, a person’s country of birth may be connected to their nationality, religious faith, language, cultural and traditional origins or even their living environment and is thus one of the factors which may be taken into account in order to determine whether a person belongs to an ethnic group, provided that it forms part of a body of evidence relating to the concept of ‘ethnic origin’.
85 By contrast, the criterion of a person’s country of birth cannot, on its own, give rise to a presumption of belonging to a particular ethnic group. Indeed, it cannot be presumed that each sovereign State has one, and only one, ethnic origin (judgment of 6 April 2017, Jyske Finans, C‑668/15, EU:C:2017:278, paragraph 21).
86 As a result, even though neither the criterion of a person’s nationality nor that of his or her country of birth is sufficient, in itself, to justify such a presumption of belonging to an ethnic group, both may be taken into account, together with other factors, for the purpose of assessing whether there is direct discrimination on the basis of ‘ethnic origin’ within the meaning of Directive 2000/43.
87 As was pointed out in paragraph 70 of the present judgment, a difference in treatment must be classified as ‘direct discrimination’ on the ground of ethnic origin, within the meaning of Article 2(2)(a) of Directive 2000/43, where one person is treated less favourably than another is, has been or would be treated in a comparable situation on the ground of ethnic origin. In the present case, it is necessary, therefore, to determine, first of all, whether the national legislation at issue in the main proceedings establishes a difference in treatment based on ethnic origin and, if it does, to examine, second of all, whether that difference in treatment results in certain persons being placed at a disadvantage compared with other persons in a comparable situation.
88 As regards, first of all, the condition that a difference in treatment has been established ‘on grounds of ethnic origin’, it should be noted that it is apparent from the Law on Public Housing, and in particular from Paragraphs 168a and 168b thereof, that the obligation to adopt a development plan designed to reduce the percentage of public family housing units applies to ‘transformation areas’ within the meaning of that law. Those are defined in Paragraph 61a(4) of that law as residential areas which, during the last five years, have fulfilled the conditions set out in Paragraph 61a(2). That provision defines ‘parallel societies’ as residential areas, first, which fulfil at least two of the socioeconomic criteria and second, in which the proportion of ‘immigrants from non-Western countries and their descendants’ residing there exceeds 50%.
89 The Law on Public Housing thus introduces a difference in treatment between those residential areas and those which, during the last five years, have also fulfilled at least two of those socioeconomic criteria, but in which the proportion of ‘immigrants from non-Western countries and their descendants’ residing there has not exceeded 50%. For the latter areas, referred to as ‘vulnerable residential areas’, that law does not impose an obligation to adopt such a development plan or, consequently, to reduce the percentage of public family housing units.
90 In the present case, those socioeconomic criteria do not appear to have any direct link with the ethnic origin of the residents of transformation areas. The referring court will thus have to establish whether or not the taking into account of a fifth criterion, linked to the proportion of ‘immigrants from non-Western countries and their descendants’, permits the inference that the Law on Public Housing establishes a difference in treatment based on ethnic origin.
91 In that context, it should be noted that the latter criterion plays a decisive role in identifying transformation areas. Even when all the socioeconomic criteria are fulfilled in a given residential area during a period of five years - a fact which tends to demonstrate the existence of a problematic socioeconomic situation - the Law on Public Housing does not require a development plan to be adopted if the proportion of ‘immigrants from non-Western countries and their descendants’ residing in that area does not exceed 50%. By contrast, where the proportion of ‘immigrants from non-Western countries and their descendants’ residing in an area exceeds 50%, it is sufficient that two of the four socioeconomic criteria are fulfilled in order for the area in question to be classified as a ‘transformation area’ and, consequently, for the obligation to adopt a development plan for that area to apply.
92 Consequently, the difference in treatment at issue in the main proceedings appears to be based primarily on the criterion of ‘immigrants from non-Western countries and their descendants’ within the meaning of the Law on Public Housing.
93 In accordance with what was stated in paragraph 87 of the present judgment, it is therefore necessary to examine whether that criterion concerning ‘immigrants from non-Western countries and their descendants’ establishes a difference in treatment on the ground of ethnic origin, within the meaning of Article 2(2)(a) of Directive 2000/43.
94 Since that criterion is laid down in Danish law, it is for the referring court to take a decision in that regard.
95 It is settled case-law that, in the context of proceedings brought on the basis of Article 267 TFEU, the interpretation of provisions of national law is a matter not for the Court but for the courts of the Member States, and the Court has no jurisdiction to rule on the compatibility of rules of national law with EU law. However, the Court does have jurisdiction to provide the national court with all the guidance as to the interpretation of EU law necessary to enable that court to determine whether those national rules are compatible with EU law (judgments of 17 December 1981, Frans-Nederlandse Maatschappij voor Biologische Producten, 272/80, EU:C:1981:312, paragraph 9; of 30 November 1995, Gebhard, C‑55/94, EU:C:1995:411, paragraph 19; and of 30 November 2023, Ministero dell’Istruzione and INPS, C‑270/22, EU:C:2023:933, paragraph 43).
96 In that regard, first of all, it is apparent from the order for reference that the concept of ‘immigrant’, within the meaning of the Law on Public Housing, corresponds to a person born abroad and neither of whose parents was both (i) born in Denmark and (ii) a Danish national.
97 Next, the concept of ‘descendant’ corresponds, according to the order for reference, to a person who was born in Denmark but neither of whose parents was both (i) born in Denmark and (ii) a Danish national, or whose parents, even if they were born in Denmark and acquired Danish nationality, both also retain a foreign nationality.
98 Lastly, the concept of ‘Western countries’ includes the Member States of the European Union, Andorra, Iceland, Liechtenstein, Monaco, Norway, San Marino, Switzerland, the United Kingdom, the Vatican City State, Canada, the United States, Australia and New Zealand. All countries other than those mentioned above are therefore considered to be ‘non-Western countries’.
99 As was pointed out in paragraphs 81 and 85 of the present judgment, the criteria relating to the country of birth of the person concerned, as well as the country of birth and nationality of his or her parents, are not sufficient, taken in isolation, to establish a person’s ethnicity. Each of those criteria may therefore be regarded as neutral in that regard.
100 However, as the Danish Government acknowledged in its written observations, the general criterion of ‘immigrants from non-Western countries and their descendants’ is based not solely on the criterion of the country of birth of a given person and his or her parents, or on the sole criterion of the nationality of the latter, but on a complex combination of those criteria. First, account is taken of the country of birth of the person concerned, as well as the country of birth and nationality of his or her parents. Second, it is necessary to determine whether the country or countries in which all those persons were born and/or of which they are nationals are considered to be ‘non-Western countries’.
101 It is important also to add, in the first place, that the mere fact that a general criterion such as that of ‘immigrants from non-Western countries and their descendants’ may be considered to refer to several ethnic origins is not sufficient, in itself, to preclude such a general criterion being based on the ethnic origin of the persons concerned.
102 It would be contrary to the effectiveness of Directive 2000/43 if the objective of combating discrimination based on racial or ethnic origin, as provided for in Article 1 thereof, did not apply where several ethnic groups are subject to the same discrimination.
103 In that regard, in paragraph 28 of the judgment of 10 July 2008, Feryn (C‑54/07, EU:C:2008:397), which concerned a case in which the director of an undertaking had publicly stated that he refused to hire ‘allochtones’, namely an antonym of ‘indigenous persons’ and equivalent, in essence, to ‘foreigners’, the Court held that the fact that an employer states publicly that it will not recruit employees of a certain ethnic or racial origin constitutes direct discrimination within the meaning of Article 2(2)(a) of that directive. The Court did not therefore rule out the possibility that a broad concept such as that of ‘allochtones’, referring in essence to all foreign nationals, may relate to racial or ethnic origin within the meaning of that directive.
104 In those circumstances, the scope of Directive 2000/43 cannot be limited to combating discrimination against a single ethnic group.
105 In the second place, the context surrounding the adoption of a general criterion such as that of ‘immigrants from non-Western countries and their descendants’, as clarified by the preparatory documents for the legislation of which that criterion forms part, is also likely to contain relevant information in order to determine whether that legislation establishes a difference in treatment on the ground of ethnic origin. Accordingly, in the present case, preparatory documents such as those mentioned in the order for reference and reproduced in paragraphs 18 and 20 of the present judgment may be relevant in that regard.
106 It must be borne in mind that the Court has held that it is sufficient, in order for there to be direct discrimination within the meaning of Article 2(2)(a) of Directive 2000/43, that a consideration relating to ethnic origin determined the decision to introduce a difference in treatment (see, to that effect, the judgment in CHEZ Razpredelenie Bulgaria, paragraph 76).
107 In the third place, the mere fact that residents of the transformation areas also include persons who are not ‘immigrants from non-Western countries and their descendants’ is not such as to preclude national legislation such as that at issue in the main proceedings from being held to have been adopted on the basis of ethnic origin (see, to that effect, the judgment in CHEZ Razpredelenie Bulgaria, paragraph 75).
108 Lastly, in the fourth place, the use of the concept of ‘non-Western country’ does not appear to preclude, subject to verification by the referring court, the general criterion of ‘immigrants from non-Western countries and their descendants’ from covering persons whose place of birth and/or the place of birth of their parents is in a ‘Western country’, or persons whose nationality and/or the nationality of their parents is that of such a ‘Western country’.
109 However, such a fact is not, in itself, sufficient to rule out the possibility that the complex combination of criteria referred to in paragraph 100 of the present judgment may lead to a difference in treatment based on ethnic origin.
110 As was pointed out in paragraph 87 of the present judgment, if the referring court, following all the verifications which it must carry out, reaches the conclusion that the general criterion of ‘immigrants from non-Western countries and their descendants’, within the meaning of the Law on Public Housing, establishes a difference in treatment based on ethnic origin, it will then be for that court to ascertain whether that law has the effect of certain persons being treated less favourably than others in a comparable situation.
111 Article 2(2)(a) of Directive 2000/43 lays down, in addition to the condition relating to the fact that a difference in treatment has been established ‘on grounds of ethnic origin’, two other conditions relating, respectively, to the existence of ‘less favourable treatment’ and the ‘comparable’ nature of the situations examined.
112 It is important to note that the requirement relating to the ‘comparability’ of the situations for the purpose of determining whether there is a breach of the principle of equal treatment must be assessed in the light of all the elements which characterise them (the judgment in CHEZ Razpredelenie Bulgaria, paragraph 89 and the case-law cited).
113 In the present case, tenants of public family housing residing in transformation areas appear, so far as their lease is concerned, to be in a situation comparable to that of tenants benefiting from a similar lease in vulnerable residential areas which have, during the last five years, fulfilled at least two of the socioeconomic criteria, but in which the proportion of ‘immigrants from non-Western countries and their descendants’ has not exceeded 50%.
114 As regards the existence of ‘less favourable treatment’, the referring court will have to examine the consequences, for all residents of a residential area, that result from the designation of that area as a ‘transformation area’.
115 In that regard, it should be borne in mind that Paragraphs 168a and 168b of the Law on Public Housing impose an obligation to adopt a development plan which must aim to reduce, by 1 January 2030, the share of public family housing to a maximum of 40% of all housing in the transformation area concerned.
116 By imposing such an obligation, that law appears to expose all residents of transformation areas to an increased risk of early termination of their leases and, consequently, of losing their homes.
117 It appears, subject to verification by the referring court, that the Law on Public Housing itself provides that the early termination of leases is one of the consequences which may arise from the approval of a development plan for a transformation area.
118 Accordingly, it is apparent from the file before the Court that, where such a plan is implemented by the sale of housing units to a private purchaser, Paragraph 27(4) of that law provides that the approval of such a sale by the competent minister is subject to the condition that the leases of tenants who do not fulfil the criteria which the municipal council is required to approve in accordance with Paragraph 27c(1) of that law are terminated.
119 Similarly, Paragraph 27c(3) of the Law on Public Housing provides that if a rental property is let in breach of those criteria, the municipal council will impose an obligation on the lessor to terminate the lease.
120 In those circumstances, the residents of transformation areas appear to face an increased risk of early termination of their leases, whereas the residents of vulnerable residential areas, characterised by the existence of a problematic socioeconomic situation which is at least similar to that prevailing in transformation areas, are not exposed to such a risk.
121 It is important to emphasise that the right to respect for the home is a fundamental right guaranteed in Article 7 of the Charter, which contains rights corresponding to those guaranteed in Article 8(1) ECHR and which must therefore, in accordance with Article 52(3) of the Charter, be given the same meaning and scope as the latter (see, to that effect, judgment of 4 October 2024, Mirin, C‑4/23, EU:C:2024:845, paragraph 63 and the case-law cited).
122 In that regard, it is apparent from the case-law of the European Court of Human Rights that the loss of one’s home is a most extreme form of interference with the right to respect for the home. Indeed, such a loss places the person concerned and his or her family in a particularly vulnerable position (see, to that effect, ECtHR, 13 May 2008, McCann v. the United Kingdom, CE:ECHR:2008:0513JUD001900904, § 50, and judgment of 10 September 2014, Kušionová, C‑34/13, EU:C:2014:2189, paragraphs 63 and 64).
123 It follows that the increased risk identified in paragraph 120 of the present judgment may constitute ‘less favourable treatment’ within the meaning of Article 2(2)(a) of Directive 2000/43.
124 It should also be noted that, for the purpose of assessing whether there is less favourable treatment, it is irrelevant whether or not the criteria according to which the leases to be terminated are individually chosen include the criterion of ‘immigrants from non-Western countries and their descendants’. Such a circumstance would not be such as to call into question the existence of an increased risk of early termination of those leases.
125 Furthermore, it is also irrelevant, for that purpose, whether or not the tenants whose leases have been terminated are ‘immigrants from non-Western countries and their descendants’. The Court has already held that the principle of equal treatment which Directive 2000/43 seeks to implement applies not to a particular category of person but by reference to the grounds mentioned in Article 1 of that directive, so that that principle is intended to benefit also persons who, although not themselves belonging to the race or ethnic group concerned, nevertheless suffer less favourable treatment or a particular disadvantage on one of those grounds (see, to that effect, the judgment in CHEZ Razpredelenie Bulgaria, paragraph 56 and the case-law cited).
126 Lastly, in order to assess whether or not there is ‘less favourable treatment’, within the meaning of Article 2(2)(a) of Directive 2000/43, arising from the classification of a residential area as a ‘transformation area’, the referring court could also examine whether, as has been argued by some of the parties and interested persons who have submitted written observations, the very name ‘transformation area’, which for the residents of areas classified as such gives rise to an increased risk of early termination of their lease, and which replaced the name ‘hard ghetto area’, is, at national level, offensive and stigmatising (see, to that effect, the judgment in CHEZ Razpredelenie Bulgaria, paragraph 87).
127 In that context, the referring court could also assess whether certain statements contained in the various preparatory documents referred to in the order for reference and cited in paragraphs 17 to 20 of the present judgment are such as to suggest that the national legislation at issue is based on stereotypes or prejudices against ‘immigrants from non-Western countries and their descendants’, or, as the Advocate General stated, in essence, in point 152 of her Opinion, contributes to perpetuating such stereotypes and prejudices.
128 It should also be noted that, if the referring court were to conclude that there is a presumption of direct discrimination on the ground of ethnic origin, the effective implementation of the principle of equal treatment would require that the burden of proof then falls, in particular, on the Ministry of Social Affairs, Housing and Senior Citizens, which, in accordance with the rule laid down in Article 8(1) of Directive 2000/43, would have to prove that there was no infringement of that principle and that the adoption of the Law on Public Housing, in so far as it defines transformation areas and lays down the obligation to adopt development plans in respect of those areas, is not in any way based on the ethnic origins of the majority of the inhabitants of those areas, but is based exclusively on objective factors unrelated to any discrimination based on ethnic origin (see, to that effect, the judgment in CHEZ Razpredelenie Bulgaria, paragraph 85 and the case-law cited).
129 In the light of the foregoing, it must be held that Article 2(2)(a) of Directive 2000/43 must be interpreted as meaning that national legislation laying down an obligation to adopt development plans designed to reduce the percentage of public family housing units in residential areas characterised, inter alia, by the fact that, during the last five years, the proportion of ‘immigrants from non-Western countries and their descendants’ residing in those areas has exceeded 50%, constitutes direct discrimination, within the meaning of that provision, in so far as it is established that the adoption of that national legislation is based on the ethnic origin of the majority of the inhabitants of those residential areas and that the effect of that national legislation is that all the inhabitants of those areas are treated less favourably than the inhabitants of comparable residential areas in which, however, the proportion of ‘immigrants from non-Western countries and their descendants’ has not exceeded 50%.
130 If the referring court concludes that the national legislation at issue in the main proceedings does not constitute direct discrimination within the meaning of Article 2(2)(a) of Directive 2000/43, it will still have to examine whether that legislation may constitute indirect discrimination within the meaning of Article 2(2)(b) of that directive.
131 Under Article 2(2)(b) of Directive 2000/43, indirect discrimination is to be taken to occur where an apparently neutral provision, criterion or practice would put persons of a racial or ethnic origin at a particular disadvantage compared with other persons, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.
132 As regards, in the first place, the existence of an ‘apparently neutral’ provision, criterion or practice, the Court has held that that condition implies that the provision, criterion or practice at issue must be worded or applied, ostensibly, in a neutral manner, that is to say, having regard to factors different from and not equivalent to the protected characteristic (see, to that effect, the judgment in CHEZ Razpredelenie Bulgaria, paragraphs 93 and 109).
133 In the second place, it should be borne in mind that if it is apparent that a measure which gives rise to a difference in treatment leading to less favourable treatment has been introduced for reasons relating to racial or ethnic origin, that measure must be classified as direct discrimination within the meaning of Article 2(2)(a) of Directive 2000/43. By contrast, indirect discrimination on the grounds of racial or ethnic origin does not require the measure at issue to be based on reasons of that type. Indeed, in order for a measure to come within the scope of Article 2(2)(b) of that directive, it is sufficient that, even if it uses neutral criteria not based on the protected characteristic, it is likely to disadvantage in particular persons possessing that characteristic (see, to that effect, the judgment in CHEZ Razpredelenie Bulgaria, paragraphs 95 and 96 and the case-law cited).
134 In the third place, as regards the condition laid down in Article 2(2)(b) of Directive 2000/43, according to which the measure concerned must be liable to put persons of a racial or ethnic origin at a ‘particular disadvantage’ compared with other persons, the Court has held that that condition must be understood as meaning that it is particularly persons of a given ethnic origin who, as a result of the provision, criterion or practice in question, are at a disadvantage (the judgment in CHEZ Razpredelenie Bulgaria, paragraph 100, and judgment of 15 November 2018, Maniero, C‑457/17, EU:C:2018:912, paragraph 47).
135 That said, the provision, criterion or practice in question need not necessarily result in people of a single particular ethnic origin being placed at a disadvantage.
136 As the Institute for Human Rights and the European Commission pointed out in their written observations, while several language versions of Article 2(2)(b) of Directive 2000/43 contain a term corresponding to the Danish term ‘bestemt’ (‘given’ or ‘determined’), other language versions of that provision do not contain such a term, but merely refer to ‘ethnic origin’ or ‘ethnicity’, without further clarification.
137 Thus, an interpretation of that provision to the effect that indirect discrimination may be found only where an apparently neutral provision, criterion or practice puts a single ethnic group at a particular disadvantage, to the exclusion of provisions, criteria or practices entailing disadvantages for several ethnic groups, is not supported by the wording used in several language versions of that provision.
138 In that respect, in accordance with settled case-law, the wording used in one language version of a provision of EU law cannot serve as the sole basis for the interpretation of that provision or be given priority over the other language versions in that regard. The need for uniform application and, therefore, for uniform interpretation of an EU measure precludes one version of the text being considered in isolation, but requires that the measure be interpreted by reference to the general scheme and purpose of the rules of which it forms part (judgments of 25 March 2010, Helmut Müller, C‑451/08, EU:C:2010:168, paragraph 38, and of 8 May 2025, Pielatak, C‑410/23, EU:C:2025:325, paragraph 58).
139 An interpretation such as that referred to in paragraph 137 of the present judgment would be difficult to reconcile with the objectives of Directive 2000/43, as referred to in paragraph 77 of the present judgment.
140 In that regard, it should be borne in mind that, for the reasons set out in paragraphs 102 and 103 of the present judgment, the scope of that directive cannot be limited to combating discrimination against a single ethnic group.
141 Lastly, it should be noted that, as stated in recital 15 of that directive, the law or practices of the Member States may provide for the existence of indirect discrimination to be established by any means, including on the basis of statistical evidence.
142 In that regard, it is for the national court to assess to what extent the statistical evidence adduced before it is valid and whether it can be taken into account, that is to say, whether, for example, it illustrates purely fortuitous or short-term phenomena, and whether it is sufficiently significant (see, to that effect, judgment of 24 September 2020, YS (Occupational pensions of managerial staff), C‑223/19, EU:C:2020:753, paragraph 51 and the case-law cited).
143 If, following the examination which it is required to carry out, the referring court concludes that the provision and the general criterion at issue in the main proceedings put persons of certain ethnic groups at a particular disadvantage, within the meaning of Article 2(2)(b) of Directive 2000/43, it will have to examine whether that provision and that general criterion are objectively justified by a legitimate aim and whether the means of achieving that aim are appropriate and necessary.
144 In that regard, in accordance with the Court’s settled case-law, the principle of proportionality calls for verification that the national measures, first, are appropriate for attaining the objective of general interest pursued, second, are limited to what is strictly necessary, in the sense that that objective could not reasonably be achieved in an equally effective manner by other means less prejudicial to the rights and freedoms guaranteed to the persons concerned, and, third, are not disproportionate to that objective, which implies, in particular, a balancing of the importance of the objective and the seriousness of the interference with those rights and freedoms (judgment of 5 December 2023, Nordic Info, C‑128/22, EU:C:2023:951, paragraph 77 and the case-law cited).
145 In order to determine whether a restriction complies with that principle of proportionality, it is for the Member State wishing to rely on an objective capable of justifying a restriction of a fundamental freedom or right to provide the national court with all the evidence of such a kind as to enable it to be satisfied that the measure concerned does indeed meet the requirements deriving from that principle of proportionality. The reasons which may be invoked by that Member State by way of justification must be accompanied by an analysis of the appropriateness and necessity of that measure for attaining that objective and specific evidence substantiating its arguments (judgment of 10 July 2025, INTERZERO and Others, C‑254/23, EU:C:2025:569, paragraph 101 and the case-law cited).
146 Furthermore, it must be borne in mind that the concept of objective justification, for the purposes of Article 2(2)(b) of Directive 2000/43, must be interpreted strictly (the judgment in CHEZ Razpredelenie Bulgaria, paragraph 112).
147 In the present case, as regards, in the first place, the objectives pursued by the Law on Public Housing, it should be noted that, according to the Danish Government, Paragraphs 61a and 168a of that law are intended to resolve the problems associated with the formation of ‘parallel societies’ which have arisen in the Danish public housing system and to ensure successful integration.
148 That government thus relies on reasons relating to social cohesion and the integration of third-country nationals in the context of that system, as well as reasons relating to social housing policy and the financing of that policy.
149 As regards, first, the objective of social cohesion and integration, the Court has already held that the objective of ensuring the successful integration of third-country nationals may - having regard to the importance accorded, in the context of EU law, to integration measures, as is apparent from Article 79(4) TFEU - constitute an overriding reason in the public interest, since the integration of those nationals is a key factor in promoting economic and social cohesion, a fundamental objective of the European Union stated in the FEU Treaty (see, by analogy, judgments of 12 April 2016, Genc, C‑561/14, EU:C:2016:247, paragraphs 55 and 56, and of 22 December 2022, Udlændingenævnet (Language test for foreign nationals), C‑279/21, EU:C:2022:1019, paragraphs 37 and 38).
150 Given the importance of that fundamental objective of the European Union, Member States enjoy, in principle, broad discretion as regards the adoption of measures to ensure social cohesion and integration, including urban development measures.
151 It is important, however, to point out that, as follows from paragraph 108 of the present judgment, the concept of ‘immigrants from non-Western countries and their descendants’ also covers persons who are nationals of a Member State, including the Kingdom of Denmark. Consequently, in so far as it applies to nationals of Member States, the national legislation at issue in the main proceedings cannot be justified by that objective.
152 Second, as regards the objective relating to the pursuit, in the context of a public housing system, of requirements relating to housing policy, the Court has also held that requirements related to public housing policy in a Member State and to the financing of that policy can constitute overriding reasons in the public interest (judgment of 1 October 2009, Woningstichting Sint Servatius, C‑567/07, EU:C:2009:593, paragraph 30). That is also the case as regards requirements promoting access to housing for persons who are vulnerable or have a low income (judgment of 27 February 2025, AEON NEPREMIČNINE and Others, C‑674/23, EU:C:2025:113, paragraph 55).
153 It is true that, in the context of their housing policy, the Member States also enjoy, in principle, broad discretion.
154 However, in the present case, the national legislation at issue in the main proceedings, by imposing an obligation to adopt development plans designed to reduce the percentage of public family housing units in transformation areas, appears to be aimed at resolving not problems relating to the financing of public housing, but rather socioeconomic problems relating to social cohesion and integration in those areas. Consequently, having regard to the overriding reasons in the public interest relied on by the Danish Government, referred to in paragraph 147 of the present judgment, the housing policy objective must be regarded as forming part of the wider context of the objective relating to social cohesion and integration.
155 Moreover, since the development plans in question may lead to the loss of housing, they do not appear to be justified by the objective of promoting access to housing for certain categories of persons.
156 Third, even though the legislation at issue in the main proceedings may, in principle, be regarded as coming within an area in which the Member States enjoy broad discretion, the fact remains that the Member States must comply with the prohibition of all discrimination based on racial or ethnic origin, enshrined in Article 21 of the Charter and given specific expression by Directive 2000/43.
157 In that regard, it is apparent from recitals 9, 12 and 13 of Directive 2000/43 (i) that discrimination based on racial or ethnic origin may undermine the achievement of the objectives of the FEU Treaty, in particular the attainment of a high level of employment and of social protection, the raising of the standard of living and quality of life, economic and social cohesion and solidarity, and may also undermine the objective of developing the European Union as an area of freedom, security and justice, and (ii) that the prohibition of any discrimination of that type which the directive imposes as regards the areas covered by it is intended, in particular, to ensure the development of democratic and tolerant societies which allow the participation of all persons irrespective of racial or ethnic origin (the judgment in CHEZ Razpredelenie Bulgaria, paragraph 74).
158 As regards, in the second place, the question whether the legislation at issue in the main proceedings complies with the principle of proportionality, it is necessary to examine, first, whether the measures which it lays down are appropriate for attaining the overriding objective in the public interest pursued by that legislation.
159 In that regard, the adoption of development plans intended to resolve socioeconomic problems particularly affecting certain residential areas may be regarded, in principle, as an appropriate measure for attaining the objective of promoting social cohesion and integration.
160 That being said, as the Advocate General observed, in essence, in points 167 and 168 of her Opinion, the referring court will have to establish whether the Danish Government has provided it with evidence demonstrating that the specific measure aimed at reducing the percentage of public family housing units in transformation areas is actually capable of achieving that objective.
161 As regards the appropriateness of a measure for ensuring the attainment of an overriding objective in the public interest, it is settled case-law that legislation is appropriate for ensuring that the objective pursued is attained only if the measures it lays down genuinely reflect a concern to attain it and if they are implemented in a consistent and systematic manner (see, to that effect, judgments of 28 November 2023, Commune d’Ans, C‑148/22, EU:C:2023:924, paragraph 37 and the case-law cited, and of 21 March 2024, Landeshauptstadt Wiesbaden, C‑61/22, EU:C:2024:251, paragraph 94 and the case-law cited).
162 In the present case, it must be stated that, in vulnerable residential areas, characterised by the existence of socioeconomic problems which are at least similar to those existing in transformation areas, the Law on Public Housing does not require the adoption of development plans such as those at issue in the main proceedings. It follows that, in vulnerable residential areas, such problems are, where appropriate, addressed by other means designed to ensure social cohesion.
163 It is therefore for the referring court to determine whether, in laying down the obligation to adopt such plans, that law pursues the objective of promoting social cohesion in a consistent and systematic manner, even though that obligation applies only to transformation areas, where the proportion of ‘immigrants from non-Western countries and their descendants’ exceeds 50%, to the exclusion of vulnerable residential areas, where that proportion is less than 50%.
164 If the referring court nevertheless concludes that the national legislation at issue in the main proceedings is appropriate for ensuring the achievement of the objective of social cohesion and integration, it would then fall to that court to verify, second, in order to determine whether such a measure is necessary to achieve that objective, whether, as several parties and interested persons who submitted written observations have argued, that objective can be achieved just as effectively by other means that are less restrictive of the rights and freedoms guaranteed to the persons concerned.
165 Even if no other equally effective measure can be identified, the referring court will still have to examine whether that legislation is proportionate stricto sensu. That court should therefore ascertain whether the disadvantages caused by that legislation are disproportionate to the objectives pursued and whether that legislation unduly prejudices the legitimate interests of the residents of transformation areas (see, to that effect, the judgment in CHEZ Razpredelenie Bulgaria, paragraph 123 and the case-law cited).
166 In that respect, it must be borne in mind, as stated in paragraph 121 of the present judgment, that the right to respect for the home is a fundamental right guaranteed in Article 7 of the Charter.
167 Recital 4 of Directive 2000/43 states, moreover, that it is important, in the context of access to and provision of goods and services, namely, as is apparent from paragraphs 63 and 66 of the present judgment, in the area concerned by the present case, to respect the protection of private and family life, that is to say, of the fundamental right which includes protection of the home of a person and his or her family (see, to that effect, judgment of 24 June 2025, GR REAL, C‑351/23, EU:C:2025:474, paragraph 93).
168 However, it must be pointed out that objectives of general interest, such as social cohesion and integration, may not be pursued by a national measure without having regard to the fact that they must be reconciled with the fundamental rights and principles affected by that measure, as set out in the Treaties and the Charter, by properly balancing those objectives of general interest against the rights and principles at issue, in order to ensure that the disadvantages caused by that measure are not disproportionate to the objectives pursued. Thus, the question whether a limitation of the rights guaranteed in Article 7 of the Charter may be justified must be assessed by measuring the seriousness of the interference which such a limitation entails and by verifying that the importance of the objectives of general interest pursued by that limitation is proportionate to that seriousness (see, to that effect, judgment of 10 July 2025, INTERZERO and Others, C‑254/23, EU:C:2025:569, paragraph 109 and the case-law cited).
169 In that regard, it should be borne in mind that, by laying down the obligation to adopt development plans for transformation areas, the Law on Public Housing appears to entail, for the residents of those areas, an aggravated risk of early termination of their leases and, consequently, of loss of their homes.
170 As is apparent from paragraphs 121 and 122 of the present judgment, the loss of one’s home is a most extreme form of interference with the right to respect for the home, within the meaning of Article 7 of the Charter, and places the person concerned and his or her family in a particularly vulnerable position.
171 It is also apparent from the case-law of the European Court of Human Rights relating to Article 8 ECHR, paragraph 1 of which provides for rights equivalent to those guaranteed by Article 7 of the Charter, first of all, that, although, in spheres involving the application of social or economic policies, including as regards housing, the national authorities have considerable latitude, the discretion thus left to those authorities will tend to be narrower where the right at stake is crucial to the individual’s effective enjoyment of fundamental or ‘intimate’ rights. This is the case in particular for Article 8 rights, which are rights of central importance to the individual’s identity, self-determination, physical and moral integrity, maintenance of relationships with others and a settled and secure place in the community (ECtHR, 17 October 2013, Winterstein and Others v. France, CE:ECHR:2013:1017JUD002701307, § 148).
172 Next, any person at risk of being a victim of the extreme interference with the right to respect for the home constituted by the loss of one’s home should, in principle, be able to have the proportionality of such a measure determined by an independent tribunal in the light of the relevant principles under Article 8 of that convention. When considering whether an eviction measure is proportionate, the following considerations should be taken into account in particular. If the home was lawfully established, that factor would weigh against the legitimacy of requiring the individual to move. Conversely, if the establishment of the home was unlawful, the position of the individual concerned would be less strong. If no alternative accommodation is available, the interference is more serious than where such accommodation is available. The evaluation of the suitability of alternative accommodation will involve a consideration of, inter alia, the particular needs of the person concerned (see, to that effect, ECtHR, 17 October 2013, Winterstein and Others v. France, CE:ECHR:2013:1017JUD002701307, § 148).
173 Lastly, the fact that the persons concerned belong to an underprivileged social group, as well as their resulting needs, must be taken into account in the proportionality assessment that the national authorities are under a duty to undertake (ECtHR, 17 October 2013, Winterstein and Others v. France, CE:ECHR:2013:1017JUD002701307, § 160).
174 In the present case, the fact that, under the Danish public housing system, the national authorities undertake to rehouse persons whose lease has been terminated early may be one of the factors which the referring court should take into account, among others, when examining the proportionality of the national legislation at issue in the main proceedings. That factor may indeed have the effect of mitigating the seriousness of the infringement of the right to respect for the home that results from such early termination, provided that undertaking is effective and the replacement accommodation is appropriate having regard to the particular needs of those persons and their families. However, account must be taken of the fact that some of those persons and families have resided legally and for many years in the family home which they are losing.
175 In the light of the foregoing, it must be held that Article 2(2)(b) of Directive 2000/43 must be interpreted as meaning that national legislation laying down an obligation to adopt development plans designed to reduce the percentage of public family housing in residential areas characterised, inter alia, by the fact that, during the last five years, the proportion of ‘immigrants from non-Western countries and their descendants’ residing in those areas has exceeded 50%, constitutes indirect discrimination within the meaning of that provision, in so far as it is established, first, that that national legislation, although ostensibly formulated or applied in a neutral manner, that is to say, having regard to factors other than that of ethnic origin, has the effect of placing persons belonging to certain ethnic groups at a particular disadvantage and, second, that that national legislation does not, for the purpose of attaining the overriding objective in the public interest which it pursues, comply with the principle of proportionality.
176 In those circumstances, the answer to the questions referred is that Article 2(2)(a) and (b) of Directive 2000/43 must be interpreted as meaning that national legislation laying down an obligation to adopt development plans designed to reduce the percentage of public family housing units in residential areas that are characterised, inter alia, by the fact that, during the last five years, the proportion of ‘immigrants from non-Western countries and their descendants’ residing in those areas has exceeded 50%: - constitutes direct discrimination, within the meaning of Article 2(2)(a), in so far as it is established that the adoption of that national legislation is based on the ethnic origin of the majority of the inhabitants of those residential areas and that the effect of that national legislation is that all the inhabitants of those areas are treated less favourably than the inhabitants of residential areas that are comparable, but in which the proportion of ‘immigrants from non-Western countries and their descendants’ has not exceeded 50%; - constitutes indirect discrimination within the meaning of Article 2(2)(b), in so far as it is established, first, that that national legislation, although ostensibly formulated or applied in a neutral manner, that is to say, having regard to factors other than that of ethnic origin, has the effect of placing persons belonging to certain ethnic groups at a particular disadvantage and, second, that that national legislation does not, for the purpose of attaining the overriding objective in the public interest which it pursues, comply with the principle of proportionality.
177 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.