Order No. 29 of 2024

Pres. Augusto Antonio Barbera, red. Maria Rosaria San Giorgio

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In this case, the Constitutional Court considered the compatibility of Article 80(19) of Law No 388 of 23 December 2000 with Articles 3, 11, 38(1) and 117(1) of the Constitution, in relation to Article 34 of the Charter of Fundamental Rights of the European Union and Article 12(1)(e) of Directive 2011/98/EU, specifically regarding the rights of third-country nationals residing and working in EU Member States. The questions were raised by the Labour Division of the Court of Cassation after an appeal by the National Institute of Social Security (INPS) against a ruling of the Florence Court of Appeal that entitles V.M., an Albanian citizen with a residence permit for family reasons but lacking a long-term residence permit, to receive social security benefit in Italy. The referring court considered arguments invoking both constitutional principles and EU law, notably asserting that the provision in question conflicts with the principle of equal treatment in social assistance, as enshrined in Directive 2011/98/EU and emphasising that this principle applies to both third-country nationals admitted to a Member State for work purposes and those holding residence permits for other reasons but allowing them to work. The court also holds that the challenged provision breaches Article 3 of the Constitution, as the principle of equal treatment in social security intersects with the constitutional principle of equality and effectively fosters a wider integration of third-country nationals. Furthermore, it considers the disputed provision to be incompatible with Article 38(1) of the Constitution, which is closely aligned with Article 34 of the EU Charter, both of which seek to ensure a dignified existence through social assistance and housing rights for those lacking sufficient resources. The benefit in question is cash assistance provided by INPS to individuals over sixtyseven who are financially disadvantaged. This assistance is granted upon request to those with little or no income. The social security benefit provided by INPS is purely welfare-oriented, aimed at addressing the financial needs of individuals in poverty, particularly the elderly who face challenges in working. This benefit is distinct from other welfare schemes, such as attendance allowance for severe disabilities and support measures like basic income and inclusion income, which serve broader purposes like labour market reintegration and social inclusion. According to Article 3(6) of Law No 335/995, only Italian and EU citizens residing in Italy can apply for the benefit in question. However, under the provisions of Article 80(19) of Law No 388/2000, third-country nationals holding a residence permit, now replaced by the EU long-term residence permit, are also eligible. Long-term residence permits are granted based on stable residence and integration. Lastly, in accordance with Article 20(10) of Decree Law No 112/2008, as converted by parliament, for applicants to be entitled to social security benefits they must have been legally and continuously resident in the country for at least ten years. Among the EU legislation transposed into Italian law, Directive 2011/98/EU aims to ensure fair treatment for legally residing third-country nationals in Member States and promote a stronger integration policy, while also narrowing the rights gap between EU citizens and third-country nationals legally working in a Member State. The Court notes that third-country nationals covered by Article 12(1)(e) of Directive 2011/98/EU may receive equivalent treatment to the citizens of their host country 2 but only as workers and specifically in relation to benefits listed in Article 3(1) of Regulation (EC) No 883/2004. However, eligibility for special benefits under Article 70 of the same regulation, including the social security benefit in question, requires compliance with both the coordination framework’s conditions and the host State’s legislation. The question concerning constitutionality centres therefore on whether the social security benefit as defined in Article 3(6) of Law No 335/1995 falls within the scope of social security benefits eligible for equal treatment under Article 12(1)(e) of Directive 2011/98/EU. As this matter has not been clarified by the ECJ, the Constitutional Court deems it necessary to refer the question of whether Article 12(1)(e) Directive 2011/98/EU should be considered to encompass provisions such as the social security benefit outlined in Article 3(6) of Law No 335/1995. Additionally, it questions whether EU law precludes national legislation that does not extend such a benefit to foreigners holding the single permit referred to in the same Directive, to which foreigners are already entitled provided that they hold a long-term EU residence permit.

Judgment No. 15 of 2024

Pres. Barbera, red. Patroni Griffi

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In this case the Court heard a direct application by Friuli-Venezia Giulia Region against the central State seeking an order that the State in general, and specifically a regional court acting on its behalf, had no power to direct the Region to amend a regional regulation that had resulted in discrimination against non-EU citizens in relation to housing support, and also to impose sanctions on the Region in the event that this direction was not complied with. It argued specifically that a direction of this nature could only be issued following a ruling by the Constitutional Court that the regulation was unconstitutional. The Court held that a regional court does indeed have the power to direct a regional government to amend discriminatory regional regulations, as otherwise those regulations would continue to apply, and victims of discrimination would have to seek relief through judicial action each time the regulations were applied. However, the Court accepted the Region’s argument that this power should fall into abeyance where the regional regulations concerned essentially restated regional legislation. Otherwise, the Region would be obliged to adopt regulatory provisions that were expressly at odds with regional legislation, which remained in force. In parallel, a regional court made a referral order to the Constitutional Court questioning the constitutionality of overarching regional legislation that was essentially restated within the regional regulation objected to by the Region. The referring court held that it was unable to direct the Region to amend the regional regulation as the regional regulation reflected the provisions of a regional law, which the regional court had no power to amend. The Court noted that the fact that the legislation could be disapplied insofar as inconsistent with EU law did not constitute a full remedy as it would not remove the discrimination from the legal order, and there was hence a risk of discrimination recurring in the event that a future court did not consider any EU law to have been violated. Moreover, disapplication would not enable the courts to adopt a plan for ending the discrimination. Constitutional review was necessary in order to achieve the removal of the incompatible legislation from the legal order, with effects erga omnes. As such, the examination of compatibility with EU law and constitutional review are not juxtaposed, mutually exclusive remedies, but rather complementary to each other.