Council of State (“Conseil d’État”), Groupe d’information et de soutien des immigrés and Fédération des associations pour la promotion et l’insertion par le logement, 11 April 2012, No. 322326
Constitution of France
If the Constitutional Council, at the request of the President of the Republic, the Prime Minister, the President of one or the other assembly or by sixty deputies or sixty senators, has declared that an international commitment contains a clause contrary to the Constitution, authorization to ratify or approve the international commitment in question may be given only after amendment of the Constitution.
Duly ratified or approved treaties or agreements shall, upon publication, prevail over acts of Parliament, subject, in regard to each agreement or treaty, to its application by the other party.
Direct resolution of a dispute on the basis of international law
Migrant workers/ Enforceable right to housing/ Invocability of international treaties/ Direct resolution of a dispute on the basis of international law
The Groupe d’information et de soutien des immigrés [Immigrant information and support group] and the Fédération des associations pour la promotion et l’insertion par le logement [Federation of Associations for Advancement and Inclusion by Housing] had submitted an application seeking the annulment, for abuse of power, of Decree No. 2008-908 of 8 September 2008 on the conditions of permanent residence of persons entitled to claim decent and independent housing. This Decree amended the building and housing code by establishing in particular the conditions of permanent residence for foreign nationals other than holders of a resident card or title granting equivalent rights, and other than persons covered by Article R. 300‑1 of the above-mentioned code to give rise to an enforceable right to housing.
The Council of State noted that “the State guarantees the right to decent and independent housing (…) to any person legally entitled to reside in French territory in conditions of permanence defined by a Council of State decree and who cannot take advantage thereof by their own means or remain there”. It also pointed out that the contested Decree laid down a list of five categories of residence title allowing their holders to seek an enforceable right to housing on the dual condition of a period for prior residence of two years in national territory and at least two renewals of the respective title, and that the list did not include temporary resident cards bearing the words ‘student’ or ‘employee on assignment’, or the ‘skills and talents’ resident permits”.
The parties noted that in so doing the Decree infringed Article 6 of ILO Convention No. 97 on migration for employment.
Having established the invocability of treaties introduced into the domestic legal system pursuant to Article 55 of the Constitution in support of an application seeking the annulment of an administrative measure, provided they create rights which individuals may rely on directly, the Council of State analysed the compatibility of the Decree with Convention No. 97 and noted that:
“Article 6(1) of International Labour Organization Convention No. 97 of 1 July 1949 on migration for employment, regularly ratified, (…) stipulates that: “Each Member for which this Convention is in force undertakes to apply, without discrimination in respect of nationality, race, religion or sex, to immigrants lawfully within its territory, treatment no less favourable than that which it applies to its own nationals in respect of the following matters: (…) / iii) housing (…) / d) legal proceedings relating to the matters referred to in this Convention; that Article 11 of the Convention defines ‘migrant for employment’ as a person who migrates from one country to another with a view to being employed otherwise than on his own account; that the commitment to apply to migrants for employment a treatment which is no less favourable than that applied to nationals in respect of the right to housing and access to legal proceedings enabling that right to be asserted shall not be interpreted merely as governing relations between States and, since it does not require the adoption of any supplementary measure to produce effects, is sufficient in itself”.
In light of the foregoing, the Council of State ruled that:
“the above-mentioned stipulations can effectively be pleaded in respect of the contested Decree; the latter is not compatible with these stipulations since on the one hand it subjects the enforceable right to housing of certain migrant workers within the meaning of this Convention to a condition of prior residence of two years in national territory which does not apply to national citizens, and on the other since it excludes from its scope residence titles which might be attributable to persons who may have the status of migrant for employment within the meaning of that Convention, such as temporary workers or employees on assignment”.
The Council of State therefore annulled the contested provision of the Decree on the grounds that it is unlawful since it contravenes ILO Convention No. 97.