—Mikhail Galperin, Professor of International Law, National Research University Higher School of Economics
On 12 May 2026, the European Court of Human Rights (ECtHR) delivered a judgment that should have caused a small earthquake. It didn’t. One possible explanation is that the judgment was issued only in French. No offence to our francophone colleagues — but a quiet constitutional revolution delivered in Molière’s language nowadays may take a few extra weeks to echo across the Channel and the Atlantic.
For those expecting a lengthy commentary on the ECtHR case, a small disappointment awaits. The Strasbourg Court actually devoted only nine paragraphs to the analysis of Article 6 § 1 of the European Convention on Human Rights (the Convention or ECHR) — §§ 69 to 77 of Eisenauer and Others v. France (app. no. 47090/22, 12 May 2026). One might say the revolution fits on a single page. But brevity, as Eisenauer shows, can still be devastating.
The Burdov legacy
For the nations that joined the Council of Europe after the fall of the Berlin Wall, the ECtHR offered something their domestic legal systems had rarely provided: genuinely enforceable judicial decisions. The landmark judgments in Burdov v. Russia (2002) and then in Burdov v. Russia (No. 2) (2009) articulated a simple and powerful rule: a state cannot cite lack of funds as an excuse for not honoring a debt established by a court decision.
The principle was reinforced in Yuriy Nikolayevich Ivanov v. Ukraine (2009) and Olaru and Others v. Moldova (2009), confirming that the obligation was one of result, not merely of effort. The problem of systemic non-enforcement was, of course, not limited to post-Soviet states — Hornsby v. Greece (1997) had already grappled with delayed enforcement. The Court later extended the logic to non‑pecuniary obligations in Gerasimov and Others v. Russia (2014). The message was clear: the right to enforcement is the final, indispensable stage of the trial.
It appears, however, that this era of strong judicial accountability may be coming to an end. And the first sign has come not from Eastern Europe, but from the Court’s own home — France.
The Eisenauer outcome
France is not only the home of the judges of the ECtHR, but also of thousands of people inadequately housed. The applicants in Eisenauer were eligible for priority housing under the French “DALO” scheme. Domestic courts ordered the responsible French prefects to rehouse them. Yet, years after those court orders, none of the applicants has been offered a home.
The Strasbourg Court began, as one would expect, by recalling its classical position: the right to enforcement of final and binding judicial decisions forms an integral part of the “trial” under Article 6 § 1 of the Convention, and an unreasonably long delay may amount to a violation (Eisenauer, §§ 66-67). It acknowledged that the domestic legal framework imposed an obligation of result regarding the actual housing of eligible persons. It observed that the Government had failed to demonstrate that the sole existing enforcement mechanism — an action for the payment of a penalty — was effective (Eisenauer, § 59). The Court also noted that the prefects had not even appealed the domestic orders. And it recognized that, as of June 2025, the applicants had still not been housed, with delays ranging from almost three years to eight years (Eisenauer, § 70).
One would expect the conclusion to follow inexorably: a violation of Article 6 § 1. Yet the judgment takes an abrupt turn.
Despite all of the above, the Court found no violation. Why? Because, in its view, the case concerned “a social and economic policy in respect of which the national authorities enjoy a wide margin of appreciation,” and ordering full enforcement “would lead the Court to interfere with the domestic system … contrary to the principle of subsidiarity” (Eisenauer, §§ 76-77). The unreasonable length of the delay was, apparently, outweighed by the scale of the housing crisis and the need to respect the state’s policy choices.
France did not deny its failure. It explained that housing policy operates under severe financial constraints (Eisenauer, §§ 71, 73). The ECtHR — well aware of its own Tchokontio Happi v. France (2015), where it had found a violation of Article 6 after a shorter delay — nonetheless concluded: no violation. In Tchokontio Happi, the Court had stated that the Government could not rely on a lack of resources to explain why the applicant had still not been re‑housed over three and a half years after the judgment. Why the result is different in Eisenauer is a question the majority did not directly answer.
From corrective to distributive justice
The majority engaged in a subtle but important reframing. It treated the dispute not as a failure to correct a wrong done to specific individuals (corrective justice), but as a question of allocating a scarce public good — housing — among many claimants (distributive justice). Strikingly, the Court entirely ignored the applicants’ complaint under Article 8 of the Convention, which concerns the substance of the right to respect for one’s home, rather than its enforcement. Judge Serghides, in his dissenting opinion, warned that when a complaint is examined exclusively through the lens of another provision, “the normative substance specific to the omitted provision risks remaining unarticulated and unexamined”. He added that the majority concluded there was no violation of Article 6 § 1 based solely on the margin of appreciation in economic and social policy — but what does a wide margin in social policy have to do with the judicial guarantee of a fair trial?
The dissenting judge, perhaps unwittingly, put his finger on the fundamental constitutional shift: the Court is now treating the right to enforcement as part of the state’s distributive apparatus, not as a stand-alone procedural guarantee.
Distributive justice, in this context, asks “who gets what” and evaluates outcomes over groups rather than focusing on bilateral correction, an approach supported by housing studies literature. The joint dissenting opinion of Judges Serghides and Zünd also noted the complexity: “Due to this combination of civil, social, and moral elements, the enforcement of judgments ordering rehousing requires more than ordinary enforcement mechanisms. It necessitates coordinated action among judicial authorities, administrative bodies, and social services.” This is precisely the language of distributive justice — but the dissenters still concluded that the obligation was one of result and that a violation should have been found. The majority, however, took the distributive logic to its natural conclusion: the state is not a bilateral debtor but a manager of scarcity, and the court is not a guarantor of individual rights but a supervisor of a reasonable process.
The two dissenting judges also pointed out that enforcement is the final stage of the trial – as Burdov declared; without it, the rest is meaningless. But the majority tried to substitute an obligation of result (“you must rehouse”) with an obligation of process (“we will consider your claim within a system of competing priorities”).
This is not simply a limitation of the right to enforcement. It is a redefinition of its content. The creditor no longer has an unqualified right to performance. She has a right to have her claim processed — and for the state to decide, within its margin of appreciation, whether and when to perform.
The procedural black hole
There is a further purely procedural dimension that risks being overlooked. If enforcement is now a matter of distributive justice, who and when bears the burden of proving that performance is impossible? The prefects did not appeal. The state simply remained silent and then, years later, invoked systemic constraints before the Strasbourg Court. But how were the applicants supposed to know that the state could not perform? It is natural that the risk of non‑performance should lie on the party that knows of the impossibility and fails to raise it in the initial proceedings — the debtor, not the creditor. Yet the Eisenauer majority implicitly shifted that burden: the applicants were left with an unenforceable judgment, while the state’s silence was retroactively rewarded.
The quiet rise of fiscal constitutionalism
Eisenauer fits a broader trend. As scholars have noted, courts in many European countries have elevated budgetary constraints to constitutional imperatives, sometimes limiting the effects of their own rulings to avoid fiscal disruption.
One might ask: why didn’t the Court simply examine the complaint under Article 8 of the Convention, as Judge Serghides urged? Had it done so, it could have openly performed the transition from corrective to distributive justice on the terrain of substantive rights, where the margin of appreciation is at home, rather than contort “procedural” Article 6. By silently dropping Article 8 and deciding the case under Article 6 alone, the Court achieved the result without having to articulate the normative shift. It was a quiet operation — and all the more significant for it.
The majority left itself an escape route: the peculiar French mechanism of the enforceable right to housing is, in the Court’s words, unique. Perhaps the judgment is meant to be confined to that single system. But this is a fragile limitation. The judgment’s deeper logic — scarcity, margin of appreciation, subsidiarity — is not tethered to the particularities of French law. It is a universal solvent, ready to dissolve enforcement obligations wherever resources are tight.
How far does this go?
The Eisenauer judgment raises a question the majority left open: is this immunity limited to the state as a debtor, and only in the context of housing? Or does it signal a broader constitutional transformation of the enforcement right — one that benefits private debtors as well?
On a narrow reading, the privilege is reserved for the state as a distributor of scarce social goods. But the deeper logic of Eisenauer is not about who the debtor is — it is about scarcity. And scarcity is not unique to the state. If a court can accept a delay by the public authority, why not accept the same delay by a company or an individual? The formal distinction between public and private begins to erode once enforcement is reframed as a process of distributing limited assets rather than a binary obligation of result.
Conclusion
So the question is not whether Eisenauer will be cited again. It will. The question is whether its reasoning will be confined to the state‑as‑distributor or extended to private debtors in distress. The judgment itself offers no answer. But the direction is clear: from corrective to distributive justice, from absolute obligation to relative process, from creditor’s guarantee to debtor’s grace.
Yet let us not overstate the case — at least not yet. This is a quiet constitutional revolution, not a loud one. Eisenauer signals the beginning of a turn away from Burdov, not its completion. The majority did not overrule Burdov; it simply ignored its logic while formally citing it. The coming decade will decide whether it swings far enough to let private debtors through, or whether the Court finds a way to pull it shut again. For now, the message is subtle but unmistakable: the right to enforcement is no longer a guarantee of a result; it is a right to a process — and to be told, with reference to the margin of appreciation, that your judgment will be enforced when there is enough money, or enough political will, left over after more pressing claims.
Is that still the rule of law? The majority in Eisenauer thought so. The dissenters did not. But one thing is certain: the Strasbourg Court has set in motion a constitutional change that will not easily be reversed.
Suggested citation: Mikhail Galperin, A Quiet Constitutional Revolution: How Eisenauer v. France May Turn the ECHR Article 6 Enforcement into Distributive Justice, Int’l J. Const. L. Blog, Jul. 15, 2026, at: http://www.iconnectblog.com/a-quiet-constitutional-revolution-how-eisenauer-v-france-may-turn-the-echr-article-6-enforcement-into-distributive-justice/