Housing Fitness - Expanding the European Frontlines?

Peter Orji*


Fitness for habitation in any housing tenure is essentially one provided for by local laws; not typically international nor regional. Among European Union member nations concerted efforts continue to be made to deal with poverty and social exclusion as a challenge common to these States. Housing, and indeed, the adequacy of housing remains instrumental in attaining these objectives of the Union. This paper examines some leeway to bringing housing fitness regime, as an aspect of adequate housing, under European regional regulations with a view to defining a continental policy on housing standards.

1. Introduction

The conditions under which a building is held, often described as the tenure, have a direct correlation with the manner in which the fitness and general standards of the property is maintained. Generally, housing fitness could be regulated by private contracts, and or public law - criminal and environmental laws. Contractual forms of regulation seem to be suited to the private rental market. This is in the often implied and or express terms that houses will be fit for occupation - in tenancy contracts or local legislations. [1] Criminal sanctions may as well be used to compel compliance with statutorily set standards in the private sector. [2]  And on a macro-scale, Environmental Law is also a regulatory tool through a "property's limits on rights to use the environment." [3] Quite clearly all of these methods of regulation are appropriate to control by local and national laws. This paper explores further whether there are extra-national and continental legal mechanisms involved in the goal of maintaining housing standards, and the efficacy of such controls in the European Union.

2. The Place of Housing in European Social Policy Discourse

The structure of the European Union and constitution has been in an almost constant state of change. The accession of more states has increased the size of the Union to 28 countries - Bulgaria and Romania becoming members in 2007, and Croatia in 2013. [4] With the Union's increased responsibility to a greater number of nations and citizens, came a greater scope for the exercise of its powers. The Union's shared values - democracy and respect for human rights - inevitably become those of the acceding members; so is the latitude for the enforcement and monitoring of these values. More people now come under the set common objectives of the Union, and for more nation states is the need to share good practice, and regulate activities that might cause barrier to trade, free movement of people, and goods and services. There are yet potentials for future surge in the size of the Union. [5]

The distribution of responsibilities between the Union and its members is key to the pursuit and implementation of the objectives of the European Union. The Union is expected to act only within the limits of the competences conferred upon it by the Member States. Competences not conferred upon the Union remain with the Member States. And in areas which do not fall within its exclusive competence, the Union acts only if the objectives of the proposed action cannot be sufficiently achieved by the Member States, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level. The content and form of the Union's action shall not exceed what is necessary to achieve the objectives of the Treaties. [6] Thus, it is further provided in Article 4 of the Treaty on European Union [7] that "competences not conferred upon the Union in the Treaties remain with the Member States".

The Union is not traditionally empowered in housing; hence there are no comprehensive or specific European housing policies. [8] It has been suggested that this is because the land, on which a house is built, is immovable and permanently sited in one or another of the Member States. This might seem a fitting justification why housing, real property and matters that relate to property ownership are excluded from the Union's competence. [9] It has also been argued that the exclusion is because landed property does not play a significant role in the achievement of a single market: unlike persons, capital, goods and services - objects whose free movement the Union wishes to guarantee. [10] Conversely, there are similarly strong reasons to the contrary, hereunder, why housing may be properly within the Union's interest for law-making purposes.

The emphasis on the economic and the social development of the Union as a whole has become stronger in its social dialogue; more so in the advancement of its aims and policy goals lately. [11] Hence the single market in goods and services is become a basis for including housing questions in the discourse. The Kok Report on the growth of economies and jobs in the EU referred to housing outcomes as indicative of environmental sustainability: spreading eco-innovations and building leadership in eco-industry. This Report also approached housing as a way of integrating financial services, suggesting that transaction costs on housing were too high in most Member States. It recommended that more flexible housing markets would encourage labour mobility and the development and efficiency of the financial services sector by empowering home-buyers and supporting more consumer spending. [12] More overtly, in Libert v Gouvernement Flamand [13] the European Court of Justice (ECJ) stepped into the arena of the allocation of housing to the local population, and opened up a potential clash between free movement and local social housing structures. [14] The court held that the condition that there exists a "sufficient connection" between the prospective buyer of immovable property and the target commune constitutes an unjustified restriction on fundamental freedoms. The ECJ found that the Flemish Decree provides for a prior authorisation procedure to determine whether there is a sufficient connection between the prospective buyer or tenant of immovable property and the target community in question. Such a procedure, the ECJ says, amounts to prohibiting certain persons from purchasing or leasing land or the buildings thereon. The ECJ therefore found that those provisions constitute restrictions on the fundamental freedoms - free movement of persons and goods within the Union. [15] Even then, this European decision and the rhetoric in the Kok Report tangential to housing are inconclusive, but suggestive, of an established European housing policy.

There is an obvious absence of an extensive housing strategy in Europe. This is evidenced when barely a decade ago in an Opinion of the Committee of the Regions - the EU Social Investment Package called on the EU to consider the possibility, in agreement with the Member States, of setting out a European social housing framework. The background was to ensure consistency with Fundamental Rights and between EU policies which impact housing. [16]  Times have changed but not the strategy of the Union. Although today there are European directives and regulations that cover such areas as construction and construction products; health and safety; and a lot more that are central to housing, the gestation period for a European housing policy yet goes on. [17]

3. Extending Established Housing Rights

Besides the conscripting of housing as a tool for stamping out poverty and social exclusion at the regional level, human rights have become a veritable ground for planting novel claims with lightly established basis. The European Court of Human Rights interprets the European Human Rights Convention in the light of the evolving social conceptions common to the constituents of Europe. This is chiefly by a process of analogy, it is suggested, to keep the Convention up to date and cause it to respond to the rights that are required in a modern democracy. [18] This method of application seems to transform the Convention into a template for many aspects of domestic legal order.  Examples are in the expansion of the scope of Article 8 of the Convention. This provision was originally devised as a protection against the surveillance state in the hands of totalitarian governments. [19]   But it has been extended to cover the legal status of various aspects of life like criminal sentencing, abortion, homosexuality, assisted suicide, child abduction, and not least, landlord and tenant relationship. [20] Consequently the provisions of the Convention are a possible fitting response to a plethora of issues in housing, and the consequent rights and standards thereon.

This method of interpretation and extrapolation, however, attracts criticisms for posing as a cover for judicial activism or complementarily, being too "dynamic and purposive". [21] The danger then is that the Convention might be used in the hands of judges to usurp the role of national and European law makers. In housing and real property related rights, there is a respite because housing rights are widely accepted as an integral part of human rights generally. The rights are guaranteed by many international and regional laws. Significant development in housing rights has taken place through the growing dialogue arising from international and regional laws. Adequate housing was recognized as part of the right to an adequate standard of living in the 1948 Universal Declaration of Human Rights [22] and in the 1966 International Covenant on Economic, Social and Cultural Rights. [23] Provisions for the protection of housing rights are also found in various European legal instruments.  Although the European Charter [24] does not contain a specific right to housing, Art. 34(3) includes the right to housing assistance to ensure a decent existence for all those who lack sufficient resources.

Standards of housing are now considerations in the jurisprudence of rights to housing. The "adequacy" requirement in various housing rights laws seems the most obvious in demanding more than the protection of basic housing rights. The rhetoric of the International Covenant on Economic, Social and Cultural Rights, and the Universal Declaration of Human Rights seeks to protect adequate housing, or housing of a certain minimum standard. As an indicator of this protected right, in the Universal Declaration's right to housing, it must be more than four walls. Adequacy of housing means that the housing is habitable, guarantees physical safety or provides adequate space, as well as protection against the cold, damp, heat, rain, wind, other threats to health and structural hazards. [25] In a similar vein, the European Committee of Social Rights has held that to ensure that the dignity of the sheltered persons is respected, shelters must meet health, safety and hygiene standards and, in particular, be equipped with basic amenities such as access to water and heating and sufficient lighting. [26]

The European Charter also offers some inroad into government actions in housing. Its Articles 16 and 31 - the right of the family to social, legal and economic protection, and the right to housing, respectively, have been considered as giving basis for enhanced rights to housing. It has been held that there is a violation of Art.16 of the Charter on the grounds that a significant number of Roma families continue to live in conditions that fail to meet minimum standards. [27] In Médecins du Monde-International v France [28] the European Committee of Social Rights held that too-limited access to housing of an adequate standard and degrading housing conditions amounted to a violation of this Charter. Similarly, in European Federation of National Organisations Working with the Homeless (FEANTSA) v France [29] the Committee of Ministers held that there was a violation of Art.31(1) of the Charter on the grounds of insufficient progress as regards the eradication of substandard housing and lack of proper amenities of a large number of households. Clearly these rulings establish that beyond the availability of housing there still is the further requirement for such provision to be as adequate as beyond set minimum conditions.

4. The Contest of Influence in Housing Standards

The expansion of the scope of legislation and policy of the Union has become a problem for national governments of Member States. In most European states are both the eurosceptics and the europhiles [30] between whom there is the divide on the benefits of the Union compared to the loss of some elements of national sovereignty. Apparently, the Union's original character at start was highly limited, both in size and areas of interest. At the core of the Union were areas like trade and services, the movement of factors of production, the production of and trade in agricultural commodities, exchange rates and monetary policy, foreign aid and trade-related environmental, consumer and competition policies. [31] Then it was clear that taxation and others like the setting of fiscal priorities, social welfare provision, defence and police powers, education as well as cultural policies, non-economic civil litigation, direct cultural promotion and regulation, the funding of civilian infrastructure, and most other regulatory policies unrelated to cross-border economic activity were purposefully left out of the purview. [32] Although the Union is not seen as a super state that might engage in a takeover of the Member States, the claim that the policies of the Union merely regulate only cross-border economic activities seems outmoded. [33] It has been suggested, however, that a novel legal and political order is emerging which is capable of resisting reversion to the old sovereign state and foreshowing a new order. [34] Thus, many European Union policies have had significant effects on security and policing issues, on cultural matters, such as education and social integration. [35] And the scope appears to be broadening to areas that were rather strictly exclusively reserved to Member States.

The principle of subsidiarity [36] sets the scene for the expectation that the Union would aspire to remain that remote from regulating the affairs of individual citizens. This principle, that decisions should be taken at the lowest feasible tier of government, and as closely as possible to EU citizens, is guided by the need to facilitate the objectives of the proposed action at any level of governance. Harmonizing subsidiarity is proportionality - that measures implemented by the EU law should be appropriate for attaining the legitimate objectives, and must not go beyond what is necessary to achieve those objectives. The joint application of these two principles leaves a fair area of opinions as to what is necessary and or better achieved by being undertaken by the Union rather than the Members. It is an authentic area for questioning the action of the EU as excessively proactive or the states' as eluding its responsibility to the citizenry. Quite remarkably, the converse, that the Union is evading its responsibility, or the states too active in keeping its powers, is rarely an issue of concern. [37]

Proportionality was designed to safeguard liberal values. This principle would protect private rights against excessive public interference. [38] While the proportionality test is more beneficial to the Union, it is for the Member States "the toughest and few states have succeeded in upholding their controls" and thus "the test most likely to be failed". [39] It is the use of proportionality that gets the criticism for being stereotyped to expand the influence of the EU. The Treaty of Lisbon limited the discretionary powers of the EU within the framework of subsidiarity by clearly delineating its scope to actions in which the objectives cannot be sufficiently achieved by the Member States, but can rather, by reason of the scale or effects of the proposed action. On the other hand, proportionality entitles the Union to take interest in a matter and exercise powers in the belief that it is necessary to so do. [40] Therefore, in this context one must ask whether this principle of proportionality gives the EU a veritable basis for stretching its evolving housing policies to the concerns of housing as being adequate, consequently the questions of fitness and standards in housing?

5. Europeanisation of Housing Standards

The situation and regulation of housing standards are essentially local and or national, to be dealt with by the government of Member States. They flow from administrative options and are formed by social convention with influence from political debates. [41] While there are core features that all houses fit for habitation may have, different countries may have various ways of regulating criteria in their housing policy.

In England for example, two approaches control housing conditions in the rented sector - the landlords' contractual obligations, [42] and the powers of local authorities. [43] In Germany housing conditions are also controlled by both legislation and contractual arrangements between parties. There is a general legislative principle of liability to let a house or flat in the private or public sector fit for residential purposes and to maintain the premises in that state during the tenancy. [44]   A German landlord who fails to see to it that the house or let premises are free from latent or patent faults at the time of letting faces the sanction of a court-ordered rent reduction or damages. Similarly, in France, the law imposes a duty to hand over residential premises to the tenant in a state and condition fit for habitation and to maintain them in that state. [45] The parties may agree as to the work that the tenant will perform and "the manner of their allocation on rent". In a report by Member States on their National Action Plans against poverty and social exclusion, the prominent measures for dealing with housing standards were demolition of indecent housing and housing estates [46] in combination with rehousing of inhabitants in better quality accommodation. [47]

With respect to housing for low-income sections of the population, the circumstances are less favourable because the market is performing less satisfactorily in most Member States. The declining supply of reasonably priced houses at the lower end of the housing market tends to push a rising number of households without adequate purchasing power into the residual segment of the market where substandard housing is rife. Caroline Hunter has well stated the pervasive nature of housing need and supply, that a world in which tenants feel they have a choice to take or leave properties because there is a plethora of suitable properties, (in terms of both standard and price) on the market, is of the neo-liberal market economists. [48] Housing quality in this residual segment is low and often lacking basic provisions. The thrust of initiatives by Member States in their National Action Plans is aimed at overcoming the deficiencies in their national housing markets in order to assure those in lower-income sections of the population access to decent and affordable housing, guaranteeing quality and value for money. This is another potential route into housing regulation for the Union - to twitch the market in favour of social balance, which should have cross border consequences. Notwithstanding, the objective of achieving a common front against poverty and social exclusion is well met by a proportionate Union's interest.

Finally, the just concluded Housing Standards Review Consultation [49] in some parts of the United Kingdom (England and Wales), bears out the direction of travel in interests and policy formulation. The objectives of the review include amending the Building Act 1984 [50] to enable Building Regulations to set requirements at a level above the basic minimum in the Building Regulations 2010. These are requirements in access and water efficiency in building. [51] Even in the substance of the consultation, there is an inclination to be guarded by European standards - for example, in sustainability, it is of interest that the provision of energy efficient white goods was now a European requirement. [52] There will also be similar impact on local laws by various European regulations on materials for building. [53]

The European Technical Standards Directive [54] imposes an obligation upon each Member State to inform the Commission, and every other Member State, of technical regulations and technical standards in draft, before they are adopted in national law. In compliance with this Directive the Housing Standards Review will be notified to the European Union. [55] Once notified, the measure to be taken enters a 3 month standstill period, enabling other Member States and the Commission to raise concerns whether the proposed measure is a potential barrier to trade. This process enables the Commission and the Member States to determine the proportionality of the measure with regard to its anticipated effects on public health and protection of the consumer and the environment. It goes without saying that this is a margin for influence and could get much larger because of the possibilities of a decision one way or the other by the Union or other Member States.

An expansion of the scope of the European Union influence in housing is consequently more likely than it has ever been. Whether it benefits the Union or Member states in the way housing is controlled is yet to be seen. But it is argued that the shift from the core essence of the Union on this score gives one a ground for concern on the emergence of yet another layer of regulation in an area that is multi-regulated.

6. Conclusion

The common objectives of the EU in dealing with poverty and social exclusion across and within all Member States underline much of European policy. There is a sense of inevitability in the continued existence of disparity in the social and economic conditions of the peoples of the various Member States. This will be a continuing challenge for the EU. In response the Union will continue to seek out ways of facing this challenge. In housing standards the Union might just have begun to creep in to make further additions.

The Europeanisation of housing standards [56] seems a distant but realistic prospect. Regardless of foresight on the part of the European Court of Human Rights, it is the direction in which the European outlook is going on other basis. No Member State or scholars have yet questioned this approach to housing standards. On that note it will be one more area that will not take much ado to be annexed.


On the 23rd of June, 2016 the United Kingdom had a referendum to determine their continued membership of the European Union. The outcome of the referendum was that the United Kingdom should leave the European Union. The legal outcomes envisaged in this paper might be significantly impacted upon by the consequent Brexit [57] referendum negotiations. No one can be sure at the moment of the kind of arrangement and the consequent legal framework that will be in place. [58] Attempts to forecast these are, at best, conjectures. But it is safe to say that whatever it becomes, the relationship the United Kingdom will have with the European Union shall be different from what it is at the time of writing. And the regulation of housing fitness will, almost certainly, stand or fall with such other areas of law as will be affected by the outcomes.

*Senior Lecturer in Law, University of Brighton

[1] See for example, Pawlowski, M., "Fitness for residential purpose? A consumer approach to disrepair" Landlord & Tenant Review, 2014, 18(3), 79-81 which discusses the UK Landlord and Tenant Act 1985 (c.70) s.8; the Belgian Rent Act (Huurwet) of 1991 on basic requirements with regard to safety, health and habitability for rental properties.

[2] Elsinga, Marja, et al, Beleid voor de private huursector: een vergelijking van zes landen [ Policies for the private rental sector in six countries], (2007), Brussel, Ministerie van de Vlaamse Gemeenschap, Departement RWO-Woonbeleid; cited in Haffner, Marietta EA, ed. Bridging the gap between social and market rented housing in six European countries ?. Vol. 33. IOS press, 2009, at 91; The Housing Act 2004 is a model from the UK, based on a risk model of health.

[3] Hirokawa, Keith H. "Contextualizing the Roots of Environmental Law." Reviews in American History 38.1 (2010): 153-159, at 154.

[4] The Stabilisation and Association Process, which is a progressive partnership with a view to eventual membership of the EU, still continues to work with Albania, the former Yugoslav Republic of Macedonia, Iceland, Montenegro, Serbia, Turkey, Bosnia and Herzegovina, and Kosovo. See Elbasani, A. (Ed.), European integration and transformation in the Western Balkans: Europeanization or business as usual? Routledge, 2013. See also Syrpis, P., "The Treaty of Lisbon: much ado...but about what?" Industrial Law Journal, 2008, 37(3), 219.

[5] See "Building our common future: Policy challenges and budgetary means of the enlarged Union 2007-2013" Communication from the Commission to the Council and the European Parliament. COM (2004) 101 final/2, 26 February 2004.

[6] Article 3(b)(2) and (3) of the Treaty of Lisbon, 2007/C 306/01.

[7] Consolidated Versions of the Treaty on European Union and the Treaty on the Functioning of the European Union, 2010/C 83/01.

[8] The Treaty of Rome 1957, the Single European Act 1987, and the Maastricht Treaty 1993 which established the European Union do not make any direct reference to housing.

[9] Art. 295 of the EC (Treaty Establishing the European Community) [2002] OJ C325 33; Sparkes, P., European land law, Hart Publishing, 2007, at 96; Harris, J., "The proposed EU regulation on succession and wills: prospects and challenges" Trust Law International, 2008, 22(4), 181, 204 - 205.

[10] Gardner, A., "European Community law and real property" International Company and Commercial Law Review, 1993, 4(7), 250-254.

[11] Kenna P. and Dovile Gailiute, "Growing coordination in housing rights jurisprudence in Europe?" European Human Rights Law Review, 2013, 6, 606-614; Sajo, A., "Social rights: a wide agenda" European Constitutional Law Review, 2005, 1(1), 38-43; and for a work on the some of the earliest stages of the dialogue, see Chapman, M. and Alan Murie, "Housing and the European Union" Housing Studies, (1996): 307-318.

[12] Kok, W., Facing the challenge: the Lisbon strategy for growth and employment, Report of the High Level Group chaired by Wim Kok, 2004, 26.

[13] (C-197/11) [2013] 3 C.M.L.R. 35 (ECJ (1st Chamber)).

[14] See Reynold S. "Housing policy as a restriction of free movement and States' discretion programmes of social." Common Law Review, 52, 259-280, 2015.

[15] EU: Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, Paragraph 2 of the Preamble.

[16] Official Journal C 356, 05/12/2013 p. 60. See Doling, J., "A European housing policy?" International Journal of Housing Policy 6.3 (2006): 335-349 for a fuller discussion of European housing policy by "stealth".

[17] Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts; Directive 2002/95/EC of the European Parliament and of the Council of 27 January 2003 on the restriction of the use of certain hazardous substances in electrical and electronic equipment (applies to electric light bulbs, and luminaires in households); Directive 2008/50/EC of the European Parliament and of the Council of 21 May 2008 on ambient air quality and cleaner air for Europe.

[18] Lord Sumption, "the Limits of Law" 27th Sultan Azlan Shah Lecture, Kuala Lumpur, 20 November, 2013; Rachel Murray and Elizabeth Mottershaw, "National responses to human rights judgments: the need for government co-ordination and implementation" European Human Rights Law Review, 2012, 6, 639-653, for problems that might arise from contest of influence between national courts and the European Court of Human Rights.

[19] Moravcsik, A., "In Defense of the "Democratic Deficit": Reassessing Legitimacy in the European Union" JCMS, Vol. 40, No. 4, pp. 603-24; Danny N., "Original intent and the European Convention on Human Rights" Public Law, 2005, Spr, 152-172; Loveland, I., "The impact of the Human Rights Act on security of tenure in public housing" Public Law, 2004, Aut., 594-611.

[20] Harrow LBC v Qazi [2003] UKHL 43 - possession proceedings; Marckx v Belgium (A/31) (1979-80) 2 E.H.R.R. 330 - property right of "family members"; similarly in Pla v Andorra (69498/01) (2006) 42 E.H.R.R. 25; Foxley v United Kingdom (33274/96) (2001) 31 E.H.R.R. 25 - mail redirection.

[21] Sir Nicolas Bratza's "a dynamic and evolutive approach" in "Living instrument or dead letter - the future of the European Convention on Human Rights" European Human Rights Law Review, 2014, 2, 116, 119. See Tyrer v United Kingdom (1979-80) 2 E.H.R.R. 1 for the description of the European Human Rights Convention as a "living instrument", to which Sir Bratza responds.

[22] Article 25, Universal Declaration of Human Rights, adopted and proclaimed by General Assembly resolution 217 A (III) of 10 December 1948

[23] Article 11, UN General Assembly, International Covenant on Economic, Social and Cultural Rights, 16 December 1966, United Nations, Treaty Series, vol. 993.

[24] 1996 European Social Charter (revised). The original European Social Charter of 1961, Art.16 addresses housing in the context of securing the right of families to social, legal and economic protection. See Kenna P. and Dovile Gailiute, "Growing coordination in housing rights jurisprudence in Europe?" (2013), 606.

[25] Office of the United Nations High Commissioner for Human Rights, The Right to Adequate Housing, Fact Sheet No. 21/Rev.1.

[26] European Roma and Travellers Forum v France , (complaint No.64/2011), Unreported.

[27] International Centre for the Legal Protection of Human Rights (INTERIGHTS) v Greece (2011) 53 E.H.R.R. SE4

[28] (2013) 56 E.H.R.R. SE18.

[29] (2008) 47 E.H.R.R. SE15

[30] Terms which share the common feature of defining what side of the euro-expansion argument one stands. See Usherwood, S. and Startin, N., "Euroscepticism as a Persistent Phenomenon" Journal of Common Market Studies, Volume 51. Number 1. pp. 1-16; Brendan Kelly, "Law Lords v New Labour: Did the Highest Court Frustrate the Government's Attempts to Control Immigration?" (2011) 25 Journal of Immigration, Asylum and Nationality Law 146-167.

[31] A. Moravcsik, "Is there a "Democratic Deficit" in World Politics? A Framework for Analysis" (2004) 39 Government and Opposition 336, 390.

[32] Compare Danny. N., "Can justice dethrone democracy in the European Union? A reply to Jürgen Neyer" Journal of Common Market Studies 50.3 (2012): 508-522; and Neyer, J., "Who's Afraid of Justice? A Rejoinder to Danny Nicol" Journal of Common Market Studies 50.3 (2012): 523-529.

[33] Halberstam, D., "The bride of Messina: constitutionalism and democracy in Europe" European Law Review, 2005, 30(6), 775-801.

[34] See Walker, Neil. "European constitutionalism and European integration." Public Law 2 (1996): 266-290; J. H. H. Weiler, "The Transformation of Europe" (1991) 100 Yale Law Review 2403-2483.

[35] Walsh, A., "Oireachtas scrutiny of EU legislation: still a work in progress after 40 years" Irish Jurist 2013, 50, 138-165

[36] Article 3(b)(2) and (3) of the Treaty of Lisbon, 2007/C 306/01.

[37] There may however be a similar kind of imbalance between the organs of the EU or the EU itself and global bodies - Antoniadis, A., "The European Union and WTO law: a nexus of reactive, coactive, and proactive approaches" World Trade Review 2007, 6(1), 45-87; Alston P. and Colin Gillespie, "Global human rights monitoring, new technologies, and the politics of information" European Journal of International Law, 2012, 23(4), 1089-1123.

[38] On the origin of the concept, see J. Schwarze, European Administrative Law (London 2006), 678-9; Robert Schütze, "Subsidiarity after Lisbon: Reinforcing the Safeguards of Federalism?" The Cambridge Law Journal, 68 [2009], pp 525-536.

[39] Sparkes, P. European Land Law, Hart Publishing, 2007, 86 and 65 respectively.

[40] See the Protocol (No 2) on the application of the principles of subsidiarity and proportionality (Lisbon, 13 December 2007).

[41] Quick v Taff Ely BC [1986] Q.B. 809; London Borough of Southwark and Another v Mills [2001] 1 A.C. 1 - Lord Hoffmann classed housing as one regulated by "democratically determined priorities" in a complaint over inadequate sound insulation of flats.

[42] It has been argued however that these covenants are increasingly ineffective - the tenant's relative standing is so weak that the covenants fail to provide protection. Private sector tenants could suffer "retaliatory eviction"for what landlords may consider undue insistence with maintain standards - Department for Communities and Local Government, Review of Property Conditions in the Private Rented Sector , 2014, https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/283979/Review_of_Property_Conditions_in_the_Private_Rented_Sector__2_.pdf , accessed on 23 October, 2014.

[43] The Housing Health and Safety Rating System in Part 1 of the Housing Act 2004, c. 34.

[44] Bundesgezetzbuch, Arts 535 and 536 (Gebrauchsuberlassungspflicht and Gebrauchsunterhaltungspflicht respectively). See Smith, P. F., "Disrepair and unfitness revisited" Conveyancer and Property Lawyer 2003 Mar/Apr, 112-125, for help with these provisions.

[45] Loi n° 89-462 du 6 juillet 1989 - Article 6.

[46] Like barracks and bidonvilles in Belgium, Spain and Portugal.

[47] Communication from the Commission to the Council, the European Parliament, the Economic and Social Committee and the Committee of the Regions - Draft Joint Report on Social Inclusion [COM/2001/0565 final]. This marks a significant advance in the process of developing common indicators to measure poverty and social exclusion across and within all Member States.

[48] Hunter, C., "The private rented sector in England: how to appear to do something while doing nothing" Journal of Housing Law 2014, 17(1), 1, 2.

[49] Department for Communities and Local Government, Housing Standards Review, (March, 2014).

[50] c. 55.

[51] Department for Communities and Local Government, Housing Standards Review Technical Consultation, London, 2014.

[52] Ibid., 93.

[53] For example - Commission Implementing Regulation (EU) No 1062/2013 of 30 October 2013 on the format of the European Technical Assessment for construction products; Commission Delegated Regulation (EU) No 364/2016 of 1 July 2015 on the classification of the reaction to fire performance of construction products.

[54] 98/34/EC

[55] Department for Communities and Local Government, Housing Standards Review Technical Consultation, London, 2014, pg 7, para.16.

[56] An analogy borrowed from Sparkes P., European Land Law Hart Publishing, 2007, 96, where he envisaged the "Europeanisation of property law".

[57] A term which has now become synonymous with both the referendum and the vote to leave. See Dictionaries, Collins, and Jeremy Butterfield, Collins English Dictionary and Grammar, HarperCollins UK, (2016).

[58] "Brexit: some legal, constitutional and financial unknowns - Briefing Paper" House of Commons Library, Official Publication - UK, at http://researchbriefings.files.parliament.uk/documents/CBP-7761/CBP-7761.pdf accessed on 19 November, 2016; see also R. (on the application of Miller) v Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin).