ORDER NO. 29
YEAR 2024
Commentary on the decision of
Francesca Mauri
on behalf of the Constitutional Observatory
ITALIAN REPUBLIC
IN THE NAME OF THE ITALIAN PEOPLE
THE CONSTITUTIONAL COURT
composed of:
President: Augusto Antonio BARBERA;
Justices: Franco MODUGNO, Giulio PROSPERETTI, Giovanni AMOROSO, Francesco VIGANÒ, Luca ANTONINI, Stefano PETITTI, Angelo BUSCEMA, Emanuela NAVARRETTA, Maria Rosaria SAN GIORGIO, Filippo PATRONI GRIFFI, Marco D’ALBERTI, Giovanni PITRUZZELLA, Antonella SCIARRONE ALIBRANDI,
has issued the following
ORDER
in the proceedings concerning the constitutional legitimacy of Article 80, paragraph 19, of Law No. 388 of 23 December 2000, containing «Provisions for the formation of the annual and multi-year budget of the State (Financial Law 2001)», initiated by the Court of Cassation, Labour Section, in the proceedings between the National Social Security Institute (INPS) and V. M., by order of 8 March 2023, registered under no. 82 of the 2023 Register of Orders and published in the Official Gazette of the Republic no. 26, first special series, of the year 2023.
Having seen the deeds of constitution of INPS and V. M.;
Having heard the Judge Rapporteur Maria Rosaria San Giorgio at the public hearing of 10 January 2024;
Having heard the lawyers Patrizia Ciacci for INPS and Alberto Guariso for V. M.;
Resolved in the council chamber of 24 January 2024.
Considered in law
1.– This Court must rule on the compatibility of Article 80, paragraph 19, of Law No. 388 of 2000 with Articles 3, 11, 38, first paragraph, and 117, first paragraph, of the Constitution, the latter in relation to Article 34 of the Charter of Fundamental Rights of the European Union (hereinafter "CFREU”) and Article 12, paragraph 1, letter e), of Directive (EU) 2011/98, relating to a single application procedure for a single permit allowing third-country nationals to reside and work in the territory of a Member State and to a common set of rights for third-country workers residing legally in a Member State.
The questions were raised by the Court of Cassation, Labour Section, seized of the appeal brought by INPS for the cassation of the judgment of the Court of Appeal of Florence, with which, amending the judgment of first instance, the application for recognition of social allowance advanced by V. M., an Albanian citizen holding a residence permit for family reasons but without a long-term residence permit, had been upheld.
1.1.– In support of the complaints of constitutional illegitimacy, the judge a quo has invoked both constitutional and Union law provisions, considering, firstly, that the provision under scrutiny conflicts with the principle of equal treatment in social security enshrined in Article 12, paragraph 1, letter e), of Directive 2011/98/EU, which «gives concrete expression to the right of access to social security benefits under Article 34, paragraphs 1 and 2, of the Charter» (Court of Justice of the EU, in case C-350/20, O.D. and others).
In line with what was stated by the Court of Justice in the judgment now cited, the referring College underlines that, pursuant to Article 3 of the aforementioned directive, said principle operates in favour of both third-country nationals who have been admitted to a Member State for work purposes and non-EU citizens who, like the private party in the main proceedings, hold a residence permit for purposes other than work but which allows them to work.
In the referring court's view, the rule under scrutiny would infringe, at the same time, Article 3 of the Constitution, insofar as the principle of equal treatment in social security, as outlined by the aforementioned sources of primary and derived Union law and by the case law of the Court of Justice, intersects the constitutional principle of equality and «supports and illuminates its axiological content, in order to promote a broader and more effective integration of third-country nationals» (judgment of this Court no. 54 of 2022 is cited).
The Court of Cassation, finally, considers that the rule under scrutiny is in contrast with Article 38, first paragraph, of the Constitution, given the «close correlation existing between it and Article 34 CFREU», which, as stated by the Court of Justice of the European Union (judgment of 24 April 2012, in case C-571/10, Kamberaj), in recognizing the right to social assistance and housing assistance, aims to guarantee a dignified existence to all those who do not have sufficient resources.
2.– Having stated the above, it must, first of all, be reiterated that, in the event that the ordinary judge raises a question of constitutional legitimacy which also involves the rules of the Charter of Fundamental Rights of the European Union, this Court cannot refrain from providing an answer with the instruments that are its own and that the direct effect of the rules of primary and derived law invoked by the judge a quo (judgment no. 67 of 2022, as well as Court of Justice of the EU, in case C-350/20, O.D. and others) does not render the present questions inadmissible, insofar as they present the conflict between a provision of national law and the rights of the Charter which «largely intersect with the principles and rights guaranteed by the Italian Constitution itself» (judgment no. 149 of 2022).
3.– The doubts of constitutional legitimacy raised primarily involve the interpretative issue of whether or not the social allowance ex Article 3, paragraph 6, of Law No. 335 of 1995 can be classified among the social security benefits with respect to which third-country nationals holding a residence permit for work purposes or which, in any case, allows them to work, benefit from equal treatment ex Article 12, paragraph 1, letter e), of Directive 2011/98/EU.
This question requires a preliminary answer from the perspective of European law and, since it has not yet been the subject of specific pronouncements by the Court of Justice, which has the function of interpreting Union law in such a way as to ensure its uniform application in all Member States, it is considered necessary to consult, by means of the preliminary ruling, the Court itself so that it may clarify, with respect to the internal law institution that is relevant in the case at hand, the scope and effects of the Union rules adopted as an intermediate parameter in the present incident of constitutionality.
4.– Within a framework of constructive and loyal cooperation between the different guarantee systems (judgment no. 269 of 2017; orders no. 216 and no. 217 of 2021, no. 182 of 2020 and no. 117 of 2019), this Court considers it appropriate to illustrate, first of all, the salient features of the applicable national regulations.
5.– The social allowance in question is a cash benefit that INPS pays, upon application, to persons over the age of sixty-five (from 1 January 2019, over the age of sixty-seven) who are in difficult economic conditions, as they are without income or receive it in an amount lower than the threshold established annually by law in the maximum amount of the same allowance in question.
This benefit is granted regardless of whether the beneficiary has been a worker, and has a «merely welfare» nature (judgment no. 137 of 2021).
The social allowance aims, in fact, exclusively to address the state of need, deriving from indigence, in which subjects without adequate economic resources find themselves and who, due to old age, see their working energies decline.
It therefore differs both from welfare benefits which – like the attendance allowance – are intended to assist the need determined by the serious disability or non-self-sufficiency of the entitled party (judgments no. 137 of 2021, no. 12 of 2019 and no. 400 of 1999), and from support measures which – such as the repealed citizenship income and the inclusion income – are motivated by further aims, such as job reintegration and social inclusion (judgments no. 34 and no. 19 of 2022, no. 137 and no. 126 of 2021).
5.1.– Different from the institution under scrutiny is the social allowance that operates as a replacement benefit for disability benefits already in enjoyment. In this latter case, which does not concern the case in question, once the disabled or incapacitated person already entitled to a civil disability benefit has reached the aforementioned age limit, the disability pension and the disability allowance are automatically replaced by the social allowance, on which the welfare function of protection in the event of the adverse event of disability is projected.
5.2.– Pursuant to Article 3, paragraph 6, of Law No. 335 of 1995, the applicant for the benefit in question must have Italian citizenship and residence in Italy. Italian citizens resident in Italy are equated with those of a Member State of the European Union and, according to the provisions of Article 80, paragraph 19, of Law No. 388 of 2000, under scrutiny, the citizens of third countries holding a residence permit, this title, replaced by the EU residence permit for long-term residents, referred to in Article 9 of Legislative Decree No. 286 of 25 July 1998 (Consolidated Text of the provisions concerning the regulation of immigration and rules on the condition of foreigners), as replaced by Article 1, paragraph 1, letter a), of Legislative Decree No. 3 of 8 January 2007 (Implementation of Directive 2003/109/EC relating to the status of third-country nationals who are long-term residents).
5.2.1.– The long-term residence permit is granted if a series of prerequisites exist that attest to the stability of the interested party's presence on the territory, and its regime «is placed in the logic of a reasonable prospect of integration of the recipient into the host community» (judgment no. 34 of 2022). More precisely, according to Article 9, paragraphs 1 and 2-bis, of Legislative Decree No. 286 of 1998, the issue of this residence permit is conditional on the existence of the following requirements: a) «possession, for at least five years, of a valid residence permit»; b) «availability of an income not lower than the annual amount of the social allowance»; c) «suitable accommodation»; d) «passing, by the applicant, of a test of knowledge of the Italian language». The permit is for an indefinite period (Article 9, paragraph 2, Immigration Consolidated Text) and the loss of the aforementioned requirements (i.e., of income and suitable accommodation) is not among the grounds for its revocation.
5.3.– For the purposes of the recognition of the social allowance, it is finally necessary, pursuant to Article 20, paragraph 10, of Decree Law No. 112 of 2008, as converted, that the interested party has legally resided, continuously, for at least ten years in the national territory.
This requirement concerns all those entitled, including non-EU citizens, and, for the latter, concurs with that of holding a long-term residence permit (ex aliis, Court of Cassation, Civil Section, Labour Section, judgment of 13 March 2023, no. 7229).
5.4.– This Court has already repeatedly ruled on the conformity of Article 80, paragraph 19, of Law No. 388 of 2000, insofar as it subordinates access to certain benefits to the possession of the (former) residence permit, both to Articles 3 and 38 of the Constitution, and to Article 14 of the ECHR.
5.4.1.– With reference to the aforementioned constitutional provisions, and with specific regard to the social allowance in question, the judgment no. 50 of 2019 of this Court considered the assumption of the EU residence permit for long-term residents as a prerequisite for enjoying this economic benefit to be neither discriminatory nor manifestly unreasonable.
The ruling highlighted that the Constitution requires the preservation of equality in access to social assistance between Italian and Community citizens, on the one hand, and non-EU citizens, on the other, only with regard to services and benefits that, in the satisfaction of «a primary need of the individual that does not tolerate a distinction related to territorial roots», reflect the enjoyment of the inviolable rights of the person. In this case, the benefit is not so much a component of social assistance (which Article 38, first paragraph, of the Constitution reserves for the «citizen»), but rather a necessary instrument for guaranteeing an inviolable right of the person (Article 2 of the Constitution).
In the aforementioned judgment no. 50 of 2019, it was also stated that, given the limited resources available, beyond the inviolable boundary just indicated, it is within the discretion of the legislator to graduate with restrictive criteria, and even to exclude, the access of the non-EU citizen to further benefits. For them «where it is citizenship itself, Italian or Community, that presupposes and justifies the provision of the benefit to members of the community, on the other hand, the legislator may well require further requirements from the non-Community citizen, not manifestly unreasonable, that prove their stable and active integration».
These benefits «become the corollary of the stable integration of the foreigner in Italy, in the sense that the Republic, with them, recognises and enhances their contribution to the progress of society, thanks to their participation in its life over an appreciable period of time». In fact, the holding of the EU permit for long-term residents presupposes, unlike mere legal residence in Italy, the production of income, the availability of accommodation and knowledge of the Italian language, which constitute «not unreasonable indices of such participation».
In judgment no. 50 of 2019, it was therefore concluded that it is «within the discretion of the legislator to recognise an economic benefit only to the foreigner, indigent and without a pension, whose stable integration into the community has made them worthy of the same subsidy granted to the Italian citizen».
5.5.– The aforementioned ruling converges with the more general and constant affirmation of constitutional case law according to which the legislator may legitimately circumscribe the pool of beneficiaries of social benefits due to the limited resources allocated to their funding, provided that it respects European obligations, which require, among other things, equal treatment between Italian and European citizens and citizens of third countries who are long-term residents, and the principle of reasonableness. This is always on condition that the distinction does not translate «into the exclusion of non-citizens from the enjoyment of fundamental rights pertaining to the “primary needs” of the person, which are undifferentiated and cannot be postponed, which are instead recognized to citizens» (judgment no. 166 of 2018; in the same sense, ex aliis, judgments no. 54 of 2022 and no. 222 of 2013).
6.– As for the provisions of European Union law relevant in the present proceedings, without prejudice to the exclusive competence of the Court of Justice to provide a uniform interpretation thereof, in the spirit of collaboration that characterises the relations between the Courts, the following arguments are put forward.
6.1.– Directive 2011/98/EU pursues the objective of «ensuring the fair treatment of third-country nationals who reside legally in the territory of Member States», from the perspective of «a more incisive integration policy» (recital 2), and of «reducing the disparity of rights between Union citizens and third-country nationals who work legally in a Member State» (recital 19).
The directive has, in fact, intended to attribute a «common set of rights, based on equal treatment with the citizens of the host Member State, regardless of the initial purpose or reason for admission» (recital 20), to citizens from third countries who already «contribute to the Union's economy with their work and their tax payments» (recital 19), specifying that the right to equal treatment in the sectors specified therein «should be recognised not only to third-country nationals who have been admitted to a Member State for work purposes, but also to those who have been admitted for other reasons and who have obtained access to the labour market of that Member State in accordance with other provisions of Union or national law» (recital 20).
6.2.– In line with these programmatic guidelines, Article 12, paragraph 1, of the directive in question recognizes the right to equal treatment in social security both to «third-country nationals who have been admitted to a Member State for work purposes in accordance with Union or national law» (Article 3, paragraph 1, letter c), and to «third-country nationals who have been admitted to a Member State for purposes other than work in accordance with Union or national law, who are allowed to work and who are in possession of a residence permit within the meaning of Regulation (EC) No 1030/2002» (Article 3, paragraph 1, letter b).
The attainment of one of the aforementioned residence permits is not, however, sufficient for the foreigner to benefit from the same social security regime granted to the citizens of the Member State that hosts him, it also being required that in that State he carries out or has carried out work activity.
Article 12, paragraph 1, refers, in fact, expressly to «third-country workers referred to in Article 3, paragraph 1, letters b and c)» and, precisely by reason of this condition, grants them the right to equal treatment in relation to a series of areas of discipline pertaining to the most significant moments of the employment relationship, among which is also that of social protection.
6.3.– Consistently, from the objective point of view, the guarantee of equal treatment referred to in paragraph 1, letter e), of the same Article 12 operates with regard to «the branches of social security as defined in Regulation (EC) No 883/2004», i.e. in relation to the disciplinary areas, indicated in Article 3, paragraph 1, of said regulation, corresponding to a series of risks connected, also indirectly, to the employment relationship.
6.3.1.– It is worth remembering that this last provision is placed in a source of derived law that is explicitly aimed at achieving the objective, now stated in Article 48 TFEU, of promoting the mobility of the workforce in the common market through the improvement of the standard of living and working conditions of people who move in the territory of the Union for work purposes.
Regulation (EC) No. 883/2004 lays down, in fact, coordination rules – and not harmonisation (Court of Justice of the European Union, judgment of 25 November 2020, in case C-303/19, INPS) – of national social security regimes, aimed at ensuring, in compliance with the characteristics of each legislation (recital 4), that the citizens of Member States, stateless persons and refugees and their family members and survivors – as well as the citizens of third countries themselves, to whom, as will be better explained later, the legislation in question has been made applicable –, who move within the territory of the Union for work, benefit from the same social advantages reserved for the citizen workers of the host Member States.
6.4.– This being stated, the «branches of social security» referred to in Article 12, paragraph 1, letter e), of Directive 2011/98/EU are listed in Article 3, paragraph 1, of the aforementioned regulation and define the «[s]cope ratione materiae» (as the heading of Article 3 itself reads) of the discipline for the coordination of national laws. These are, in particular, the «branches of social security relating to: a) sickness benefits; b) maternity and equivalent paternity benefits; c) invalidity benefits; d) old-age benefits; e) survivor's benefits; f) benefits in respect of accidents at work and occupational diseases; g) death grants; h) unemployment benefits; i) pre-retirement benefits; j) family benefits».
6.5.– The same Article 3, in paragraph 3, specifies that Regulation (EC) No. 883/2004 «shall also apply to special non-contributory cash benefits referred to in Article 70», while, in paragraph 5, it excludes from its scope of operation, among other things, social and medical assistance.
The aforementioned Article 70, in paragraph 1, identifies the «special non-contributory cash benefits», also called "mixed" or "hybrid", as those benefits «provided for by legislation which, due to its scope of application ratione personae, its objectives and/or the conditions of admissibility, has characteristics of both social security legislation referred to in Article 3, paragraph 1, and that relating to social assistance».
And again Article 70, in paragraph 2, clarifies that the benefits in question are those «a) intended to provide: i) coverage in a complementary, supplementary or accessory manner of the risks corresponding to the branches of social security referred to in Article 3, paragraph 1, and to guarantee, to the persons concerned, a minimum subsistence income in relation to the economic and social context of the Member State concerned; or ii) only the specific protection of the disabled, closely linked to the social context of the aforementioned subject in the Member State concerned; and b) for which the financing derives exclusively from mandatory taxation intended to cover general public expenditure and the conditions for the granting and for the calculation of the benefit do not depend on any contribution from the beneficiary. However, benefits granted in addition to the contributory benefit shall not be considered contributory benefits for this reason alone; and c) are listed in Annex X».
7.– Having stated the above, the Italian social allowance, here under scrutiny, appearing in the aforementioned Annex X, is expressly included among the special non-contributory cash benefits.
The referring judge assumes that, since Regulation (EC) No. 883/2004, in Article 3, paragraph 3, provides that these benefits fall within its scope of operation, and Article 12, paragraph 1, letter e), of Directive 2011/98/EU, in delimiting the scope of application of the principle of equal treatment, refers to the branches of social security defined by the aforementioned regulation, also special non-contributory cash benefits – and, among them, the social allowance – would benefit from this guarantee.
In this regard, the following is observed.
The reference made by Article 12, paragraph 1, letter e), to the branches of social security defined by Regulation (EC) No. 883/2004 does not seem to allow an automatic extension of the principle of equal treatment to all social benefits falling within the domain of the regulatory source, this being precluded by both the textual wording of the referring rule and the systematic reconstruction of the cited discipline.
7.1.– First of all, Article 12, paragraph 1, letter e), of the directive in question, in identifying the benefits protected by the prohibition of discrimination, does not refer to all benefits that can be included within the scope of application of Regulation (EC) No. 883/2004, but more precisely to the benefits related to the «branches of social security» defined by it, to be identified with the specific areas of social security identified by Article 3, paragraph 1, of the same regulation, mentioned above.
Furthermore, as already highlighted, the same Article 12, paragraph 1, grants the right to equal treatment to third-country citizens indicated in Article 3, paragraph 1, letters b) and c), identifying them as «workers», where the special benefits ex Article 70 of the aforementioned regulation, with respect to the citizens of the State where the debtor institution is located, do not necessarily presuppose a connection, direct or indirect, with an employment relationship and therefore with a contributory relationship.
7.2.– It must also be noted that, within the framework of the coordination rules laid down by Regulation (EC) No. 883/2004, "mixed" benefits exhibit autonomous structural and functional characteristics with respect to social security benefits aimed at dealing with the events indicated in paragraph 1 of Article 3 of the same regulation.
Unlike these, special non-contributory benefits provide coverage of the aforementioned risks not directly, but «in a complementary, supplementary or accessory manner», intended to «guarantee, to the persons concerned, a minimum subsistence income in relation to the economic and social context of the Member State concerned».
It must then be considered that, among the benefits in question, Article 70, paragraph 2, letter a), ii), of the same regulation also significantly includes those that offer «only the specific protection of the disabled, closely linked to the social context of the aforementioned subject in the Member State concerned».
Finally, the benefits in question are financed exclusively through general taxation intended to cover general public expenditure, and the conditions for granting and calculating the amount due do not depend on any contribution from the beneficiary.
7.2.1.– The Court of Justice of the European Union has, in this regard, affirmed that the special non-contributory cash benefit is characterised by a purpose different from that of social security benefits, having to constitute «a substitution or integration of a welfare benefit and having the characteristics of social aid justified by economic and social reasons and decided by regulations that fix objective criteria» (Court of Justice, judgment of 29 April 2004, in case C-160/02, Skalka, point 25). It has an «assistance nature, especially because the concession of the envisaged benefit does not depend on the completion of periods of work activity, registration or insurance contributions, but it nevertheless approaches the social welfare sector in other respects» (Court of Justice of the European Communities, judgment of 20 June 1991, in case C-356/89, Newton, point 13).
7.3.– Precisely because of the indicated characteristics, Regulation (EC) No. 883/2004 reserves for "mixed" benefits (requested by the foreigner to the host Member State) a partially different regime with respect to that, based on equal treatment (Article 4), laid down for social security benefits referred to in the previous Article 3, paragraph 1.
To them, in fact, the aforementioned Article 70, in paragraph 3, provides that the principle of portability does not apply, which, instead, the previous Article 7 puts in place to protect social security benefits.
As a result of this derogation, Article 70, paragraph 4, clarifies, in fact, that "mixed" benefits «are provided exclusively in the Member State in which the persons concerned reside and under its legislation […] by the institution of the place of residence and are borne by it».
The European legislator has thus intended