European Court of Human Rights

Information Note on the Court’s case-law No. 173

Dhahbi v. Italy - 17120/09

Judgment 8.4.2014 [Section II]

Article 6

Civil proceedings

Article 6-1

Access to court

Refusal to grant welfare benefits to foreign nationals: violation

Article 14

Discrimination

Facts – At the material time the applicant was a Tunisian national who had entered Italy on a lawful residence and work permit. In 2001 he applied for a family allowance, explaining that even though he did not hold Italian nationality, as required by the relevant legislation, he was entitled to the allowance under the association agreement between the European Union (EU) and Tunisia. Following the rejection of his application, the applicant lodged an appeal. He sought a preliminary ruling from the Court of Justice of the European Union (CJEU) on whether, under the Euro-Mediterranean Agreement, a Tunisian worker could be refused the family allowance in question. His appeals to the court of appeal and Court of Cassation were dismissed.

Law – Article 6 § 1: National courts whose decisions were not amenable to appeal under domestic law were required to provide reasons based on the exceptions laid down in the case-law of the CJEU for their refusal to refer a preliminary question to that court on the interpretation of EU law. They should therefore set out their reasons for considering that the question was not relevant, or that the provision of EU law in question had already been interpreted by the CJEU, or that the correct application of EU law was so obvious as to leave no room for reasonable doubt.

Since no appeal lay against its decisions under domestic law, the Court of Cassation was required to give reasons for its refusal to refer the preliminary question. However, it had not referred to the applicant’s request for a preliminary ruling or to its reasons for considering that the question raised should not be referred to the CJEU. Therefore, the reasons given in the judgment at issue shed no light on whether this question was considered as irrelevant or as relating to a clear provision or to one which had already been interpreted by the CJEU, or had simply been ignored. Moreover, the reasoning of the Court of Cassation did not refer to the CJEU’s case-law. This finding was sufficient to conclude that there had been a violation of Article 6 § 1 of the Convention.

Conclusion: violation (unanimity).

Article 14 taken in conjunction with Article 8: There was no doubt that the applicant had been treated differently from EU workers who, like him, had large families. Unlike such workers, he had not been entitled to the family allowance in question. Moreover, the refusal to grant him this allowance had been exclusively based on his nationality, because it had not been alleged that the applicant did not fulfil the other legal conditions for entitlement to the social welfare benefit in question. Manifestly, therefore, owing to a personal characteristic, he had received worse treatment than other individuals in a similar situation. As to whether, at the material time, there had been an objective and reasonable justification for such treatment, the applicant had held a lawful residence and work permit for Italy and was insured with the National Institute of Social Security, to which he had been paying contributions in the same way and on the same basis as EU workers. His residence in Italian territory had not therefore been only for a short-term stay or in breach of immigration legislation, and he consequently did not belong to the category of individuals who generally failed to contribute to the funding of public services and about whom a State could have legitimate reasons for restricting recourse to expensive public services – such as the national insurance, public allowance and healthcare programmes. As to the “budgetary reasons” advanced by the Government, even though protecting the State’s budgetary interests was a legitimate aim of the impugned difference in treatment this aim could not in itself justify the said difference. Regarding the reasonable balance of proportionality that had to be struck between the above-mentioned legitimate aim and the means employed, nationality was the only distinguishing criterion used. The Court reiterated that only very weighty considerations could induce it to regard a difference in treatment exclusively based on nationality as compatible with the Convention. Under these circumstances, notwithstanding the national authorities’ wide margin of appreciation in the social security field, the argument advanced by the Government was insufficient to establish a reasonable balance of proportionality making the impugned difference of treatment compatible with the requirements of Article 14 of the Convention.

Conclusion: violation (unanimously).

Article 41: EUR 10,000 in respect of non-pecuniary damage; EUR 9,416.05 in respect of pecuniary damage.

(See also Vergauwen v. Belgium (dec.), 4832/04, 10 April 2012; and Fawsie v. Greece, 40080/07, and Saidoun v. Greece, 40083/07, judgments of 28 October 2010 summarised in Information Note 134)

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This summary by the Registry does not bind the Court.

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