Judgement No. 67 of 2022
Giuliano AMATO, President Silvana SCIARRA, Author of the Judgment
In this case, the Court considered two referral orders from the labor division of the Supreme Court of Cassation, asking it to strike down, on constitutional grounds, a social security provision. The provision stipulated that the family unit allowance, a social security benefit the Italian Republic extended to its own citizens and legal residents of Italy, did not apply to third-country nationals legally residing and working in Italy, when the members of the family unit did not reside in Italy. The Supreme Court of Cassation had already referred the question to the Court of Justice of the European Union with a reference for a preliminary ruling. The Court of Justice had ruled on this reference for a preliminary ruling by holding that the provision violated EU law and the principle of equality of treatment, and that, given that the Italian authorities had not invoked one of the specific derogations available for the principle of equality, the benefit must be extended to legal residents of Italy whose families reside outside the Republic on equal terms. Having received this answer, the Supreme Court of Cassation referred the case to the Constitutional Court, on the assumption that it could not disapply the provision, given that EU law did not provide a complete framework to fill the gap that would be left by the disapplied provision. The Constitutional Court disagreed with this assumption. The Court held the questions as to constitutionality to be inadmissible as irrelevant, ruling that the Supreme Court of Cassation was, indeed, able to simply disapply the provision, leaving in place the domestic provisions governing the family unit allowance, which would no longer be withheld from third-country nationals residing and working legally in Italy, when members of the family units reside temporarily abroad.
Judgement No. 54 of 2022
Giuliano AMATO, President Silvana SCIARRA, Author of the Judgment
In this case the Court considered a referral from the Supreme Court of
Cassation questioning the constitutionality of the rule stipulating that the eligibility of third-country nationals for the childbirth allowance and the maternity allowance is conditional upon the holding of a long-term resident’s EU residence permit, and not for instance on the holding of a residence and work permit for at least one year.
Since the challenge also revolved around the interpretation of number of provisions of EU law whose meaning was disputed, the Court decided to lodge a reference for a preliminary ruling to the Court of Justice of the European Union. The outcome of those proceedings was a ruling that the allowances in question fell within the scope of the EU notion of social security benefit and were thus subject to the principle of equal treatment as regards third-country nationals.
Resuming the proceedings before it, the Court held that there was no reasonable correlation between the prerequisite of a long-term residence permit and eligibility for benefits designed to safeguard maternity and infancy and address the state of need that arises after the birth or adoption of a child. It ruled that the challenged provisions infringed Articles 3, 31 and 117 of the Constitution because they established, solely for third-country nationals, a system that is irrationally more cumbersome, reaching beyond the albeit legitimate goal of granting welfare benefits only to those with a valid residence permit and who are just occasionally in the country, whilst denying adequate protection precisely to those who are in the greatest need.