Yamina SAHEB
Author
The Affordable Housing Act, proposed by the European Commission, is presented as Europe's answer to a housing crisis that now reaches deep into the middle class.
I naively assumed the Act would address under-occupation, long-term vacancy, second homes and the accumulation of residential property beyond what any household needs; that it would seek to make already-built housing available to those who need it. It does none of these things.
The Act does not limit how many dwellings a person may own, nor does it require owners to demonstrate any residential need for acquiring or retaining them. What it regulates instead is the conduct of public authorities.
Articles 6 to 13 set out what a municipality must establish before it may act: documented harm over at least three preceding years; proof that no less restrictive measure would be equally effective; automatic expiry after five years; publication of the supporting evidence; and judicial review at every stage.
In practice, the Act requires public authorities to justify protecting housing while never requiring owners to justify withholding it. The question it asks is not why a dwelling stands empty, is occupied only a few weeks a year, or is held primarily as a financial asset. The question it asks is why a municipality wants to keep it a home.
At that point, the Act ceases to be merely technical and becomes constitutional.
Under Article 12, a local measure expires after five years and, where the required conditions are no longer deemed to exist, the authority "shall withdraw" it. A decision adopted by elected representatives can therefore be terminated by operation of Union law rather than democratic choice. The three-year evidence requirement excludes precisely the cases where early intervention is most effective: a sudden tourism boom, for example, or a wave of investor purchases in a small housing market.
The burden of assembling evidence, publishing it and defending it in court is one that Paris or Amsterdam can bear. A coastal town of forty thousand inhabitants may struggle to do so. The right to act is formally equal but practically rationed by administrative capacity.
Then there is the threshold.
A municipality may act only if its price-to-income ratio reaches eight, a single figure that determines which communities across Europe are eligible to protect their housing stock. Article 6(5) empowers the Commission to alter that threshold by delegated act. Parliament and Council may object; they may not amend. The scope of local democratic authority over housing becomes, in effect, a parameter set by the European executive.
The Commission's response is that none of this is new. Cities are already constrained by the Treaty freedoms and by the jurisprudence of the Court of Justice. The Act simply codifies those constraints, removes an existing notification requirement and offers a defensible methodology in place of uncertainty. That argument is not without merit, which helps explain why many mayors welcomed the proposal.
But codification is never neutral. It determines which justifications count and which solutions remain visible. This Act recognises restrictions on demand while leaving the mobilisation of empty and underused housing largely outside the assessment. Legal certainty for cities is not the same thing as democratic authority for cities. Nor is this a drafting failure.
The Act rests on Article 114 TFEU, the internal market clause, because that is the only constitutional doorway available. Through that doorway, housing enters Union law primarily as a potential restriction on the free movement of services and capital. And restrictions must be justified. They must be proportionate. They must be temporary.
Meanwhile, housing as an asset, and the appreciation of its value, benefits from the protection afforded by Article 63 TFEU on the free movement of capital, which housing legislation cannot fundamentally challenge. The expression "an open market economy with free competition" appears repeatedly in the treaties as a constitutional principle. No equivalent formula establishes a social floor beneath which no one should fall, or a planetary ceiling beyond which economic activity should not go.
Housing is not unique.
The same asymmetry appears wherever Europe confronts the realities of a finite world.
Cities must justify limits on short-term rentals. Governments must justify restrictions on airport expansion. Member States must justify interventions designed to reduce material or energy consumption. The burden of proof consistently falls on those seeking to remain within ecological limits rather than on the activities that push beyond them.
What the Affordable Housing Act ultimately reveals is something larger than a housing problem.
It reveals a constitutional settlement designed for an era in which Europe's central challenge was the integration of markets and the expansion of production and consumption. Today's challenges are different. They concern the fair distribution of resources, the protection of ecological systems and the provision of essential services for all within planetary boundaries. Yet, the treaties continue to grant constitutional priority to the logic of expansion.
The housing crisis is therefore not merely a policy failure. It is evidence of a constitutional model reaching the limits of its historical usefulness.
The objection is familiar: housing is a national competence, and subsidiarity must be respected. But the real question is not who decides. It is whether Europeans are currently allowed to decide at all.
If a city wishes to prioritise residents over investors, should it have to justify itself as an exception to the market? If Europeans conclude that avoiding embodied emissions matters more than continuously rising property values, should that decision be constitutionally available? Today, the treaties answer these questions before democratic debate even begins. Certain economic freedoms enjoy constitutional protection. Housing does not. Nor, for that matter, do planetary boundaries.
The Affordable Housing Act begins with a simple question: how can Europeans afford a home? In doing so, it unintentionally raises a much larger one: what is the European Union for?
If the answer remains competition and the expansion of markets, housing crises will become harder to resolve and ecological overshoot harder to avoid. But if the answer is wellbeing, justice and stewardship of a shared world; if the Union begins from the premise that everyone should have enough for a good life and that no economic freedom should override that objective, then treaty change is no longer an institutional luxury. It becomes the next chapter of European integration.
The Affordable Housing Act starts from the premise that a city must justify protecting homes. Perhaps it is time to ask the opposite question.
Why should a city have to prove that people need homes, while no one has to prove why homes should be treated as assets?
A Union that asks cities to justify housing people may eventually have to justify itself.