Court of Justice of the European Communities (including Court of First Instance Decisions)

Provisional text

OPINION OF ADVOCATE GENERAL

TANCHEV

delivered on 11 June 2020(1)

Case C‑302/19

Istituto Nazionale della Previdenza Sociale

v

WS

(Request for a preliminary ruling from the Corte suprema di cassazione (Supreme Court of Cassation, Italy))

(Reference for a preliminary ruling — Directive 2011/98/EU — Rights of third-country nationals who hold single permits — Article 12 — Right to equal treatment with regard to social security — National legislation which excludes the non-resident family members of third-country nationals for the purposes of determining entitlement to a family benefit)

I.      Introduction

1.        By its request for a preliminary ruling, the Corte suprema di cassazione (Supreme Court of Cassation, Italy) seeks guidance from the Court of Justice on the interpretation of Article 12(1)(e) of Directive 2011/98/EU of the European Parliament and of the Council of 13 December 2011 on a single application procedure for a single permit for third-country nationals to reside and work in the territory of a Member State and on a common set of rights for third-country workers legally residing in a Member State. (2)

2.        Article 12(1)(e) of Directive 2011/98 grants third-country nationals who hold single permits the right to equal treatment with nationals of the host Member State with regard to social security. The main issue arising in the present case concerns whether that article precludes national legislation which, unlike the provisions laid down for nationals of the host Member State, excludes the family members of third-country nationals who do not reside in that State for the purposes of determining entitlement to a family benefit.

3.        Consequently, the present case provides the Court with the opportunity to develop its case-law on the right to equal treatment for holders of single permits under Article 12 of Directive 2011/98, in light of the judgment of 21 June 2017, Martinez Silva (C‑449/16, EU:C:2017:485).

4.        The present case is being heard by the Court in parallel with another case, Istituto Nazionale della Previdenza Sociale (Family benefits for long-term residents) (C‑303/19) in which my Opinion is being delivered today. In that case, the referring court raises a similar question relating to the interpretation of Article 11(1)(d) of Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents, (3) namely, whether the same exclusion applicable to third-country nationals whose family members do not reside in the host Member State is consistent with the right to equal treatment granted to long-term residents under that directive.

5.        Fundamentally, these two cases raise novel issues relating to the application of equal treatment for third-country nationals under EU law and the relationship between Directives 2003/109 and 2011/98 in that regard. They also have potential implications for other directives containing provisions on equal treatment for third-country nationals within the EU legal migration framework. (4)

II.    Legal framework

A.      EU law

6.        Recitals 20 and 24 of Directive 2011/98 state:

‘(20)      All third-country nationals who are legally residing and working in Member States should enjoy at least a common set of rights based on equal treatment with the nationals of their respective host Member State, irrespective of the initial purpose of or basis for admission. The right to equal treatment in the fields specified by this Directive should be granted not only to those third-country nationals who have been admitted to a Member State to work but also to those who have been admitted for other purposes and have been given access to the labour market of that Member State in accordance with other provisions of Union or national law, including family members of a third-country worker who are admitted to the Member State in accordance with Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification ((5)); […].

(24)      Third-country workers should enjoy equal treatment as regards social security. Branches of social security are defined in Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems ((6)). The provisions on equal treatment concerning social security in this Directive should also apply to workers admitted to a Member State directly from a third country. Nevertheless, this Directive should not confer on third-country workers more rights than those already provided in existing Union law in the field of social security for third-country nationals who are in cross-border situations. This Directive, furthermore, should not grant rights in relation to situations which lie outside the scope of Union law, such as in relation to family members residing in a third country. This Directive should grant rights only in relation to family members who join third-country workers to reside in a Member State on the basis of family reunification or family members who already reside legally in that Member State.’

7.        Article 12 of Directive 2011/98, titled ‘Right to equal treatment’, provides:

‘1.      Third-country workers as referred to in points (b) and (c) of Article 3(1) shall enjoy equal treatment with nationals of the Member State where they reside with regard to: […]

(e)      branches of social security, as defined in Regulation (EC) No 883/2004; […]

2.      Member States may restrict equal treatment: […]

(b)      by limiting the rights conferred on third-country workers under point (e) of paragraph 1, but shall not restrict such rights for third-country workers who are in employment or who have been employed for a minimum period of six months and who are registered as unemployed.

In addition, Member States may decide that point (e) of paragraph 1 with regard to family benefits shall not apply to third-country nationals who have been authorised to work in the territory of a Member State for a period not exceeding six months, to third-country nationals who have been admitted for the purpose of study, or to third-country nationals who are allowed to work on the basis of a visa.’

B.      Italian law

8.        Article 2 of Decreto legge 13 marzo 1988, n. 69, Norme in materia previdenziale, per il miglioramento delle gestioni degli enti portuali ed altre disposizioni urgenti (Decree-Law No 69 of 13 March 1988, Provisions governing social security, for the improvement of the management of port bodies and other urgent provisions), which was converted with modifications into Law No 153 of 13 May 1988 (‘Law No 153/1988’) (GURI No 143 of 20 June 1988), introduced the assegno per il nucleo familiare (‘family unit allowance’). That article provides:

‘1.      For employees and beneficiaries of pensions and financial welfare benefits resulting from employment …, family allowances, supplementary family allowances and all other family benefits of whatever description … shall be replaced, under the conditions laid down in this article, by the family unit allowance.

2.      The allowance shall be payable at different rates based on the number of family members and the income of the family unit, according to the table attached to this decree. The income levels stated in that table shall be increased … for family units that include individuals who, because of disability or mental or physical impairment, are completely and permanently unable to hold down a paying job, or, if minors, experience persistent difficulties in performing the tasks and functions consistent with their age. Those income levels shall be increased … if the individuals described in paragraph 1 are widows and widowers, divorced, legally separated or unmarried. With effect from 1 July 1994, where the family unit described in paragraph 6 includes two or more children, the monthly amount of the allowance payable shall be increased … for each child, excluding the first.

[…]

6.      The family unit shall be made up of the spouses, excluding those legally and effectively separated, and children and equivalents … aged less than 18 years or regardless of age where, because of disability or mental or physical impairment, they are completely and permanently unable to hold down a paying job. […]

6-bis.       A family unit as described in paragraph 6 shall not include spouses and children and equivalents of foreign nationals who are not resident in the territory of the Republic, except where the State of which that foreign national is a citizen is subject to reciprocity with Italian citizens or where an international convention on family allowances has been concluded. The States to which the principle of reciprocity applies shall be determined by the Minister of Labour and Social Security, following consultation with the Minister of Foreign Affairs. […]’

9.        Directive 2011/98 was transposed into Italian law by Decreto legislativo 4 marzo 2014, n. 40, Attuazione della direttiva 2011/98/UE relativa a una procedura unica di domanda per il rilascio di un permesso unico che consente ai cittadini di Paesi terzi di soggiornare e lavorare nel territorio di uno Stato membro e a un insieme comune di diritti per i lavoratori di Paesi terzi che soggiornano regolarmente in uno Stato membro (Legislative Decree No 40 of 4 March 2014 on the transposition of Directive 2011/98/EU, ‘Legislative Decree No 40/2014’) (GURI No 68 of 22 March 2014).

III. Facts, procedure and question referred

10.      According to the order for reference, WS is a third-country national who has held a permit to carry out paid employment in Italy from 9 December 2011, and a single work permit from 28 December 2015 under Legislative Decree No 40/2014 transposing Directive 2011/98. From January to June 2014 and then from July 2014 to June 2016, WS’s wife and two children resided in the third country of origin (Sri Lanka). (7)

11.      For those periods of time, the Istituto Nazionale della Previdenza Sociale (the National Social Security Institute, Italy; ‘the INPS’) refused to pay WS the family unit allowance on the grounds that, for third-country nationals, Article 2(6-bis) of Law No 153/1988 excludes family members not resident in Italy from calculation of that allowance.

12.      WS brought an action challenging the INPS’s decision before the Tribunale Giudice del Lavoro di Alessandria (Labour Court of Alexandria, Italy). In support of his action, he alleged that Article 2(6‑bis) of Law No 153/1988 was incompatible with his right to equal treatment under Article 12 of Directive 2011/98, in so far as that legislation treats third-country nationals less favourably than nationals of the host Member State. That court dismissed his action.

13.      WS lodged an appeal against that decision before the Corte d’appello di Torino (Turin Court of Appeal, Italy). That court upheld WS’s action, ruling on the basis of Article 12 of Directive 2011/98 that Article 2(6-bis) of Law No 153/1988 is discriminatory and disapplied it.

14.      The INPS appealed in cassation to have the appeal judgment set aside, raising a single plea in law based on the misapplication of Article 12 of Directive 2011/98 and Legislative Decree No 40/2014.

15.      The referring court has indicated that the family unit allowance is a financial supplement which is available in particular to all persons working in Italy, provided that they belong to a family unit whose income does not exceed a certain threshold. The amount of that allowance is calculated according to the number of family unit members, the number of children and the income of the family unit. For employees, the payment is made by the employer at the same time as the salary payment, on the basis of a percentage rate applied to the employee’s gross pay, and the INPS then makes a final adjustment between the amounts paid by the employer and the social security contributions it owes. The referring court considered that, notwithstanding its case-law defining the nature of the family unit allowance as related to social security and social assistance, that allowance falls within the scope of Article 12(1)(e) of Directive 2011/98.

16.      The referring court observed, inter alia, that the members of the family unit are of essential importance in the allowance scheme and regarded as beneficiaries in substance of the allowance. It therefore wondered whether Article 12(1)(e) of Directive 2011/98 precludes national legislation, such as Article 2(6-bis) of Law No 153/1988, under which the family members of third-country nationals, and not those of Italian nationals, are excluded from the family unit when their residence is not in Italy and there are no conditions of reciprocity with their country of citizenship, having regard to recitals 20 and 24 of that directive which refer to family members residing in the Member State.

17.      It was in those circumstances that the Corte suprema di cassazione (Court of Cassation) decided to stay the main proceedings, and to refer the following question to the Court of Justice for a preliminary ruling:

‘Should Article 12(1)(e) of Directive 2011/98/EU of the European Parliament and of the Council of 13 December 2011 and the principle of equal treatment for holders of single permits to reside and work and national citizens be interpreted to the effect that they preclude national legislation under which, unlike the provisions laid down for nationals of the Member State, the family members of a worker with a single permit from a third country are excluded when determining the members of the family unit, for the purpose of calculating the family unit allowance, where those family members live in the third country of origin?’

18.      Written observations were submitted to the Court by the INPS, WS, the Italian Government and the European Commission. Those parties also took part in the hearing held on 27 February 2020.

IV.    Summary of the observations of the parties

19.      The INPS submits that the answer to the question referred should be in the negative. It argues that, with regard to third countries, it is difficult to check the existence of other family benefits paid abroad to the same family members and changes in the family situation which might affect the right to receive the family unit allowance. Thus, in its view, the exclusion of family members not resident in Italy in Article 2(6-bis) of Law No 153/1988 — which applies only to nationals of third countries which have not concluded with Italy an international agreement covering family benefits or which reserve reciprocal treatment for Italian nationals, and does not apply to Italian nationals or EU nationals — is proportionate and reasonable, since it is intended to prevent that allowance from deviating from its function of effective support for the household. That legislation also distinguishes situations which are objectively different from one another, given that a national of a Member State enjoys a permanent and original relationship with that State, whereas a third-country national enjoys an acquired and generally temporary relationship with the Member State.

20.      The INPS contends that Article 2(6-bis) of Law No 153/1988 is consistent with Article 12 of Directive 2011/98. According to the INPS, it follows from Article 3(1) and recitals 8, 19, 20, 24 and 26 of that directive that it is not sufficient that the third-country worker resides in Italy, since the family members are the recipients of the family unit allowance and thus they must reside in the national territory. It also points out that the family unit allowance differs from the benefit giving rise to the judgment in Martinez Silva, (8) particularly since that allowance derives from an employment relationship, is financed by compulsory contributions payable by employers and workers, and refers to the members of the family unit in a precise manner. As it emphasised at the hearing, Article 2(6-bis) of Law No 153/1988 does not affect a third-country national’s right to the allowance, but only the amount, and is consistent with the objective of Directive 2011/98 to promote the integration of third-country nationals in the Member States.

21.      WS submits that Article 12(1)(e) of Directive 2011/98 and the principle of equal treatment preclude national legislation such as that at issue. According to WS, under Article 2 of Law No 153/1988, persons working in Italy, to whom the system of remuneration and contributions under Italian law applies, are subject, as regards the family unit allowance, to different treatment based on nationality: third-country workers, unlike Italian workers, cannot include in their family unit the family members residing abroad for the purposes of entitlement to that allowance and calculation of its amount. Since Italy takes into account for its nationals family members residing abroad, it must do the same for third-country nationals under Article 12 of Directive 2011/98. A different solution runs counter to the objectives of equality and social cohesion expressed in recital 19 of that directive.

22.      WS asserts that recital 20 of Directive 2011/98 is not pertinent to the present case, since its function is to extend the right of equal treatment to certain addressees and not to limit that right. Nor is recital 24 of that directive applicable, since the family unit allowance is granted exclusively to the worker, and family members have no right to it. WS points out that the residence of the third-country worker’s family members is not mentioned in Article 12(2)(b) of Directive 2011/98, which sets out the restrictions on equal treatment with regard to social security, and the wording of recital 24 of that directive does not cover cases in which family members residing abroad constitute an element in the determination of benefits granted to the third-country worker residing in the host Member State. WS surmises that if the EU legislature intended to limit equal treatment in that way, it would have done so expressly and not referred to that point merely in a recital.

23.      As WS emphasised at the hearing, Article 2(6-bis) of Law No 153/1988 affects a third-country national’s right to the allowance, and not merely the amount, if all the family members reside abroad. In WS’s view, there is also no inconsistency with Directive 2003/109, since equal treatment for long-term residents under that directive is broader than that for single permit holders under Directive 2011/98, thereby including social security, social assistance and social protection, with no specific restrictions for family benefits, so there is no change to the overall treatment given to these categories of third-country nationals under the two directives. WS adds that the controls for allowances in relation to family members residing abroad is separate from equal treatment and, in any event, would not change according to whether the situation concerned the non-resident family members of Italian nationals or those of third-country nationals residing in Italy.

24.      The Italian Government contends that Article 12(1)(e) of Directive 2011/98 and the principle of equal treatment do not preclude national legislation such as that at issue. It indicates that the family unit allowance is financed by the employer’s compulsory insurance contributions and is therefore part of social security. It submits that the reasons for the exclusion of non-resident family members of third-country nationals lies in the nature of that allowance, its purpose and the conditions necessary for granting it, along with the aim to prevent abusive practices, such as forum shopping, in the social security field.

25.      According to the Italian Government, that exclusion is not contrary to Directive 2011/98. It asserts that Article 12(1)(e) of that directive, which covers the family unit allowance, grants equal treatment only to third-country workers defined therein. Thus, that article does not confer on family members a right to equal treatment with regard to schemes of which they are direct beneficiaries, as in the case of the family unit allowance. That interpretation is supported, in its view, by recitals 24 and 26 of Directive 2011/98, along with Article 1 of Regulation No 1231/2010 of the European Parliament and of the Council of 24 November 2010 extending Regulation (EC) No 883/2004 and Regulation (EC) No 987/2009 to nationals of third countries who are not already covered by these Regulations solely on the ground of their nationality, (9) which states in particular that that regulation also applies to family members ‘provided that they are legally resident in the territory of a Member State’. (10)

26.      The Italian Government points out that, with regard to the right to equal treatment for long-term residents, who have a ‘more privileged status’ than single permit holders according to recital 8 of Directive 2011/98, Article 11(2) of Directive 2003/109 allows Member States to restrict that right where the residence of the long-term resident ‘or that of family members for whom he/she claims benefits’ lies within their territory. It therefore considers that an interpretation of Article 12 of Directive 2011/98 as granting benefits to family members of single permit holders under less strict conditions than those applicable to family members of long-term residents is illogical. There is also no contradiction, in its view, with the judgment in Martinez Silva, (11) since that judgment concerned a different kind of benefit and the claimant’s entire household resided in the host Member State. As it emphasised at the hearing, Article 2(6-bis) of Law No 153/1988 affects the amount and not the right to the allowance, and is in line with the objective of Directive 2011/98 to encourage the integration of third-country nationals in the Member States.

27.      The Commission submits that Article 12(1)(e) of Directive 2011/98 precludes national legislation such as that at issue. It observes that the family unit allowance is a family benefit within the meaning of Regulation No 883/2004 for the purposes of that article, and that WS falls within the personal scope of that article, as he is a third-country national covered by Article 3(1)(c) of Directive 2011/98. It points out that Article 12 of Directive 2011/98 does not restrict equal treatment with regard to social security according to the residence of the third-country worker’s family members. Nor does WS fall within the derogations that a Member State may establish under Article 12(2)(b) of that directive, provided that State stated clearly that it intended to rely on them, (12) which is not the case here. As illustrated by Article 12(2)(c) of Directive 2011/98 concerning tax benefits, when the EU legislature intends to restrict equal treatment based on the residence of the third-country national’s family members, it does so expressly.

28.      The Commission argues that recital 24 of Directive 2011/98 does not limit the application of equal treatment, but rather makes clear that that directive does not in itself grant rights in situations where there are no harmonised rules in EU law. As equal treatment under Directive 2011/98 depends on the rights recognised in national legislation for nationals of the host Member State, where such legislation provides, as with Article 2 of Law No 153/1988, for the grant of family benefits in favour of family members of those nationals residing abroad, such benefits must, pursuant to Article 12(1)(e) of Directive 2011/98, also be granted in favour of family members of third-country workers in the same situation. As it emphasised at the hearing, arguments based on recital 20 of Directive 2011/98 and Article 1 of Regulation No 1231/2010 are unfounded, since they concern cases where autonomous rights are granted to family members, and there is no inconsistency between the proposed interpretation of Article 12(1)(e) of Directive 2011/98 and Article 11(2) of Directive 2003/109 concerning long-term residents, since those provisions address different legal situations.

V.      Analysis

29.      By its question, the referring court asks the Court, essentially, to rule whether the principle of equal treatment for holders of single permits enshrined in Article 12(1)(e) of Directive 2011/98 with regard to social security must be interpreted as precluding national legislation, such as Article 2(6-bis) of Law No 153/1988, which excludes the family members of a third-country national holding a single permit, but not those of a national of the host Member State, where they do not reside in that State for the purposes of determining that third-country national’s entitlement to a family benefit.

30.      As is apparent from the order for reference, the question referred in the present case arises from the fact that, as seen in point 8 of this Opinion, under Article 2 of Law No 153/1988, the family unit on the basis of which the allowance is determined is composed of all persons who have a particular family relationship with a worker in Italy, irrespective of whether the family members reside in Italy or elsewhere in the world. However, under Article 2(6-bis) of that law, for persons who work in Italy and are nationals of third countries, the family unit is composed of only those family members who reside in Italy, and not those who reside abroad (unless there is reciprocal treatment or a specific agreement). (13)

31.      I observe that the question raised in the present case has not yet been considered by the Court. With a view to answering that question, it is first necessary to provide some preliminary observations concerning Directive 2011/98 and the EU legal migration framework, along with the judgment of 21 June 2017, Martinez Silva (14) (Section A). I will then turn to the interpretation of Article 12(1)(e) of Directive 2011/98, explaining why, in my view, national legislation such as that at issue is not in conformity with that provision (Section B).

A.      Preliminary observations

1.      Directive 2011/98 and the EU legal migration framework

32.      It should be borne in mind that Directive 2011/98 is a key legal instrument within the so-called EU legal migration framework, which is part of the EU’s common immigration policy in the Area of Freedom, Security and Justice. (15) The EU legal migration framework comprises a set of directives which generally regulate the conditions for entry and residence of categories of third-country nationals and their rights following admission in the Member States. (16) Equal treatment provisions are an important element of those directives, and promote one of the main objectives of EU immigration policy, which, as stated in recital 2 of Directive 2011/98, is to ensure the fair treatment of third-country nationals residing legally in the Member States. (17)

33.      In that context, as compared to directives covering specific types of third-country workers, (18) Directive 2011/98 establishes a common framework of rights for third-country nationals in lawful employment and already admitted in a Member State. (19) It has two main objectives. The first is to facilitate the procedure for third-country nationals to be admitted for work in a Member State by introducing a single application procedure for a single permit (a combined work and residence permit). The second is to guarantee a set of common rights for third-country workers based on equal treatment with nationals of the host Member State. (20)

34.      To that end, Article 12(1) of Directive 2011/98 establishes that third-country workers as defined in Article 3(1)(b) and (c) of that directive enjoy equal treatment with nationals of the host Member State in specified fields, including social security benefits under point (e), subject to the derogations which Member States may establish under Article 12(2) of that directive. This means in substance that, under Article 12 of Directive 2011/98, Member States must ensure that third-country nationals holding single permits are in principle treated the same way as nationals of the host Member State in a comparable situation with regard to the grant of such benefits.

2.      The judgment of 21 June 2017, Martinez Silva

35.      It should also be pointed out that the judgment of 21 June 2017, Martinez Silva (21) is pertinent to the present case, even if the Court addressed different questions in that judgment. It was based on a reference for a preliminary ruling submitted by an Italian appellate court, and presented the first occasion for the Court to interpret Article 12 of Directive 2011/98.

36.      In that judgment, (22) the Court ruled that Article 12 of Directive 2011/98 precludes national legislation excluding third-country nationals holding single permits from receiving a family benefit granted to nationals of the host Member State for households with at least three minor children and whose income is below a certain threshold. In particular, the Court found, in light of case-law concerning Regulation No 883/2004 along with its predecessor, Regulation No 1408/71, (23) that the benefit at issue was a social security benefit included among the family benefits referred to in Article 3 of Regulation No 883/2004, and thus fell within the scope of Article 12(1)(e) of Directive 2011/98. (24)

37.      The Court also held, by analogy with case-law on Directive 2003/109 concerning long-term residents, (25) that Directive 2011/98 grants third-country nationals who hold single permits a right to equal treatment which is the general rule, and lists the derogations from that right which Member States have the option of establishing, provided that they have stated clearly that they intended to rely on them. As Italy had not demonstrated any such intention, the national legislation limiting the grant of the benefit at issue, which was adopted before Directive 2011/98 was transposed into national law, could not be regarded as introducing restrictions on equal treatment which Member States may establish under that directive. (26)

38.      Consequently, it follows from the judgment in Martinez Silva that, in circumstances where national legislation creates a difference in treatment between third-country nationals holding single permits and nationals of the host Member State with regard to the grant of a family benefit and no derogations may be applied, the right to equal treatment conferred on those third-country nationals under Article 12(1)(e) of Directive 2011/98 must be respected. That judgment therefore lends support to the view that national legislation such as that at issue is contrary to Article 12(1)(e) of Directive 2011/98. I will return to that judgment later in my analysis (see points 42 and 46 of this Opinion).

B.      Interpretation of Article 12(1)(e) of Directive 2011/98

1.      General considerations

39.      It should be noted at the outset that, as indicated in recital 26 of Directive 2011/98, in the absence of harmonisation at EU level, it is for each Member State to lay down the conditions under which social security benefits are granted, as well as the amount of such benefits and the period for which they are granted. However, when exercising that power, Member States must comply with EU law.

40.      It follows that Directive 2011/98 does not prevent a Member State from, for example, excluding from the grant of family benefits those workers whose family members reside in third countries, or excluding those family members from the basis of the calculation of the amount of such benefits. However, Article 12(1)(e) of that directive does require the Member States to ensure that third-country nationals who hold single permits enjoy equal treatment with nationals of the host Member State regarding social security. Thus, in so far as legislation of the host Member State (in casu Italy) grants a family benefit to its nationals irrespective of the place where their family members reside, the same treatment must in principle be given to third-country nationals who hold single permits in a comparable situation under that provision. Consequently, it seems to me that the exclusion of non-resident family members of such third-country nationals under the national legislation at issue is not consistent with that provision for the following reasons.

41.      First, it is common ground that a third-country worker such as WS falls within the personal scope of Article 12(1)(e) of Directive 2011/98 and is therefore entitled to equal treatment under that provision. As indicated by the order for reference, WS holds a single permit within the meaning of Article 2(c) of Directive 2011/98 and qualifies as a third-country worker who has been admitted to a Member State for the purpose of work in accordance with EU or national law as referred to in Article 3(1)(c) of Directive 2011/98.

42.      Second, it is apparent that, as indicated by the referring court along with the Italian Government, the family unit allowance qualifies as a social security benefit included among the family benefits referred to in Article 3 of Regulation No 883/2004, (27) and therefore falls within the scope of Article 12(1)(e) of Directive 2011/98. Indeed, in the judgment in Bettaccini, (28) the Court has considered this to be the case in the context of Regulation No 1408/71. In any event, following from the judgment in Martinez Silva, (29) the family unit allowance may be considered to satisfy the criteria of a family benefit under Regulation No 883/2004 for the purposes of Article 12(1)(e) of Directive 2011/98, given that it is a cash benefit which is granted without any individual and discretionary assessment of the claimant’s personal needs based on a legally defined situation, and is intended to meet family expenses.

43.      Third, there is no question that, under the national legislation at issue, third-country nationals holding single permits are subject to less favourable treatment than nationals of the host Member State with regard to entitlement to the family unit allowance which is prohibited by Article 12(1)(e) of Directive 2011/98. It is apparent that Article 2(6-bis) of Law No 153/1988 introduces a different scheme for third-country nationals (unless there is reciprocal treatment or a specific agreement) from the general scheme which applies to Italian nationals to whom the allowance is payable irrespective of the residence of the family members. Under that legislation, third-country nationals, unlike Italian nationals, cannot include family members who are not resident in Italy in the composition of the family unit for the purposes of determining entitlement to that allowance. This has the effect of reducing the amount of the allowance that the third-country national can receive, or eliminating the payment of that allowance altogether, depending on the number of family members resident in Italy, as compared to the allowance given to nationals of the host Member State whose family members are taken into account even if they are not resident in Italy.

44.      Therefore, contrary to the observations of the INPS and the Italian Government, and as indicated by WS, such national legislation should be considered to affect a third-country national’s right to the family unit allowance and not merely the amount, since that legislation effectively deprives those nationals of their right to that allowance for the relevant periods of time when all their family members are not resident in Italy, as illustrated by the circumstances of the present case.

45.      It should be added that, in so far as the INPS denies the existence of discrimination on the grounds that the situation of third-country nationals holding single permits and nationals of the host Member State are different due to their respective links to that State, such an argument cannot be accepted, given that the EU legislature has granted the right to equal treatment to such third-country nationals under Article 12 of Directive 2011/98. The same can be said for arguments advanced by the INPS and the Italian Government relating to the difficulties of controlling allowances, preventing abusive practices in social security and preserving the function of the family unit allowance, since, as indicated by WS, those issues may be the same with regard to family members of Italian nationals residing abroad, and Directive 2011/98 imposes equal treatment.

46.      Fourth, there is no dispute that the derogations to equal treatment with regard to social security and in particular family benefits in Article 12(2)(b) of Directive 2011/98 do not apply to the situation in the main proceedings and, in any event, no information has been put before the Court that Italy stated that it intended to rely on them, in accordance with the judgment in Martinez Silva. (30) As seen in point 7 of this Opinion, those derogations are linked to the employment status and length of stay of the third-country worker in the host Member State, and do not mention the possibility for a Member State to restrict equal treatment based on the residence of that worker’s family members.

47.      Consequently, on the basis of the foregoing considerations, there are strong indications that the question referred should be answered in the affirmative. However, in view of certain factors noted by the referring court and certain arguments advanced by the INPS and the Italian Government, the present case raises complex issues as to how Article 12(1)(e) of Directive 2011/98 must be interpreted in relation to national legislation in these circumstances. The complexities of the present case arise in particular from the nature of the benefit at issue and the fact that certain provisions of Directive 2011/98 could be interpreted as excluding family members of third-country nationals residing outside the host Member State from the scope of that directive.

2.      Additional considerations in light of the situation in the main proceedings

48.      I should state at the outset that I am in agreement with WS and the Commission that the equal treatment provisions of Article 12 of Directive 2011/98 apply to national legislation such as that at issue.

49.      First, I am not persuaded by the arguments advanced by the INPS and the Italian Government in substance that Article 12(1)(e) of Directive 2011/98 excludes the family unit allowance, since that article covers only third-country nationals holding single permits and not their family members who are the beneficiaries of that allowance.

50.      It should be recalled that, as indicated by the referring court as well as the INPS, WS and the Italian Government, the family unit allowance is available to all persons working in Italy, provided that they belong to a family unit whose income does not exceed a specified threshold. Moreover, it is paid by the employer and financed under a contribution-based scheme. It should therefore be considered that the right to that allowance is linked to the situation of the third-country worker who holds a single permit and falls within Article 12(1)(e) of Directive 2011/98.

51.      I acknowledge that, as indicated by the referring court, the INPS and the Italian Government, the family members of the third-country worker are beneficiaries of the family unit allowance. Indeed, generally speaking, the nature of a family benefit is to benefit the family. (31) However, according to the information which has been put before the Court, while the family members are a prerequisite for that allowance and benefit from it, the right to that allowance is one which is in principle granted to the third-country worker who holds a single permit and not to his family members. On that basis, such a worker is entitled to equal treatment with regard to the conditions imposed on nationals of the host Member State for entitlement to that allowance under Article 12(1)(e) of Directive 2011/98.

52.      Second, it seems to me that recital 20 of Directive 2011/98 is inapposite to the present case. As can be seen in point 6 of this Opinion, recital 20 of Directive 2011/98 states in particular that the right to equal treatment should be granted not only to third-country nationals admitted to a Member State to work, but also to those persons who have been admitted for other purposes and given access to the labour market of that Member State, including, inter alia, family members of a third-country worker who are admitted to the Member State through family reunification under Directive 2003/86.

53.      Consequently, recital 20 of Directive 2011/98 indicates that family members of third-country workers who are allowed to work and hold a resident permit are covered by the equal treatment provisions under Directive 2011/98 by virtue of Article 3(1)(b) of that directive. Thus, different from the present case, that recital pertains to a situation in which family members of a third-country worker holding a single permit benefit directly and in their own name from the right to equal treatment under Article 12 of Directive 2011/98. (32)

54.      Third, in my view, recital 24 of Directive 2011/98 does not support an interpretation of Article 12 of that directive which limits the application of the right to equal treatment granted to third-country workers in the circumstances of the present case. As can be seen in point 6 of this Opinion, that recital states in particular that Directive 2011/98 ‘should not grant rights in relation to situations which lie outside the scope of Union law, such as in relation to family members residing in a third country. This Directive should grant rights only in relation to family members who join third-country workers to reside in a Member State on the basis of family reunification or family members who already reside legally in that Member State.’

55.      It should be noted that the abovementioned wording of recital 24 of Directive 2011/98 is not reflected in the provisions of that directive, and minimal guidance as to its meaning can be drawn from the legislative history of that directive. (33) Still, as indicated by the Commission, it appears that, by virtue of such wording, that recital serves to clarify that Directive 2011/98 does not itself grant rights to third-country nationals holding single permits in situations where there are no harmonised rules in EU law. Thus, it seems to me that recital 24 of Directive 2011/98 may be interpreted as meaning that Member States are not required on the basis of that directive to grant family benefits for family members who do not reside in the host Member State. (34) However, there is nothing to suggest in that recital that Member States are exempted from their obligation to ensure equal treatment for third-country nationals who hold single permits under Article 12 of Directive 2011/98 with regard to the entitlement of such benefits based on the conditions set out in the national legislation for nationals of the host Member State. (35)

56.      In particular, this interpretation is supported by the fact that, as mentioned in point 46 of this Opinion, Article 12(2)(b) of Directive 2011/98 does not refer to the residence of the family members of third-country workers among the derogations which Member States may establish on the right to equal treatment with regard to social security and in particular family benefits. Moreover, Article 12(2)(c) of that directive, which provides for a derogation to equal treatment with regard to tax benefits, refers to the residence of the family members of the third-country worker in the host Member State. It would therefore be illogical if family members residing abroad were considered to be excluded from the equal treatment provisions under Article 12 of Directive 2011/98.

57.      This interpretation also appears to be consistent with the context of Directive 2011/98. In that regard, it should be pointed out that other directives within the EU legal migration framework contain recitals with certain wording similar to recital 24 of Directive 2011/98, indicating that the directive concerned does not grant rights in relation to situations outside the scope of EU law such as that of family members residing in a third country, (36) and which at the same time underline the application of the right to equal treatment in the field of social security to the persons falling within their scope. (37) Some directives also provide specific derogations to equal treatment relating to family benefits which are linked to the length of stay of the relevant category of third-country national in the host Member State, (38) with no mention of the place of residence of that national’s family members.

58.      Fourth, I am equally unpersuaded by arguments advanced by the INPS and the Italian Government based on Regulation No 1231/2010. As recognised by the Court, (39) Regulation No 1231/2010 extends the personal scope of the EU rules on the coordination of social security systems under Regulations No 883/2004 and No 987/2009 to third-country nationals who are not already covered by those regulations solely on the ground of their nationality. Under Article 1 of Regulation No 1231/2010, those regulations apply to those third-country nationals as well as to their family members and survivors, provided that they are legally resident in the territory of a Member State and are in a situation which is not confined in all respects within a single Member State. That regulation thereby aims to confer on those nationals as far as possible the same rights as EU nationals enjoy under Regulation No 883/2004. (40)

59.      Consequently, as indicated by WS and the Commission, Regulation No 1231/2010 covers situations in which family members are granted rights based on their family relationship with those third-country nationals and their residence in the EU. By virtue of the extension of the equal treatment provision of Article 4 of Regulation No 883/2004 to such third-country nationals, Regulation No 1231/2010 renders inapplicable derogations to equal treatment with regard to social security in EU legal migration directives including Directive 2011/98, (41) which explains the reference to that regulation in recital 25 of that directive. Thus, as pointed out by the Commission, Regulation No 1231/2010 does not permit Member States to grant family benefits to their nationals whose family members reside abroad and to deny such benefits to mobile third-country nationals in the same situation. On that basis, I fail to see how Regulation No 1231/2010 should aid the interpretation of Article 12(1)(e) of Directive 2011/98 advanced by the INPS and the Italian Government in the present case.

60.      Fifth, there does not seem to me to be any apparent inconsistency with Directive 2003/109. It should be noted that recital 8 of Directive 2011/98, read in conjunction with Article 3(2)(i) thereof, indicates that long-term residents are not covered by that directive ‘given their more privileged status and their specific type of residence permit’. Thus, those provisions are concerned with the scope of Directive 2011/98, and not specifically with equal treatment. In any event, the interpretation of Article 12(1)(e) of Directive 2011/98, which I propose in the present case, does not privilege single permit holders over long-term residents, but rather ensures equal treatment between third-country nationals and nationals of the host Member State regarding entitlement to a family benefit under that directive, as I also propose in my Opinion in C‑303/19 with respect to the interpretation of Article 11(1)(d) of Directive 2003/109.

61.      It should be further noted that, as identified in the Commission’s recent evaluation of the EU legal migration directives, (42) there are different rules and specific restrictions on equal treatment contained in each directive which largely reflect differentiation between the categories of third-country nationals covered and their lengths of stay, along with the legislative history of the directive concerned. Thus, it seems to me that while the overall treatment granted to long-term residents may generally be regarded as privileged as compared to single permit holders, as illustrated by the fact that there is no specific derogation for family benefits and equal treatment extends to social security, social assistance and social protection as defined by national law under Article 11 of Directive 2003/109, the specific application of equal treatment regarding social security for long-term residents as compared to single permit holders depends on the particular situation. (43)

62.      Finally, I am unconvinced by arguments of the INPS and the Italian Government that national legislation such as that at issue is consistent with the objective of Directive 2011/98 to encourage the integration of third-country nationals in the Member States. As recognised in recital 2 of that directive, that objective is achieved by ensuring equal treatment for third-country nationals holding single permits, which, as noted in point 33 of this Opinion, is one of the main objectives of Directive 2011/98.

63.      It should also be pointed out that, as is apparent from recital 19 of Directive 2011/98, the equal treatment provisions in that directive are intended to establish a minimum level playing field within the EU and to recognise that third-country nationals contribute to the EU economy through their work and tax payments, and that those nationals should therefore be treated in a manner comparable to that of Member State nationals, with a view to reducing unfair competition between the two. Accordingly, having regard to the circumstances of the present case where the third-country national holding a single permit is in a comparable situation to a national of the host Member State and in particular has made contributions through his work to that State, it seems to me to be entirely consistent with the objectives of integration and equal treatment pursued by Directive 2011/98 that that national enjoy equal treatment with regard to entitlement to the family unit allowance under Article 12(1)(e) of that directive.

64.      In light of all of the foregoing considerations, I take the view that national legislation such as that at issue which excludes family members of third-country nationals holding single permits, but not those of nationals of the host Member State, where they do not reside in that State for the purposes of determining entitlement to a family benefit is not in conformity with Article 12(1)(e) of Directive 2011/98.

VI.    Conclusion

65.      I therefore propose that the Court answer the question referred by the Corte suprema di cassazione (Supreme Court of Cassation, Italy) as follows:

Article 12(1)(e) of Directive 2011/98/EU of the European Parliament and of the Council of 13 December 2011 on a single application procedure for a single permit for third-country nationals to reside and work in the territory of a Member State and on a common set of rights for third-country workers legally residing in a Member State should be interpreted as precluding legislation of a Member State, such as that at issue in the main proceedings, under which, unlike the provisions laid down for nationals of the Member State, the family members of a worker with a single permit from a third country are excluded when determining the members of the family unit, for the purpose of calculating the family unit allowance, when those family members do not reside in the territory of that Member State.

1      Original language: English.

2      OJ 2011 L 343, p. 1.

3      OJ 2004 L 16, p. 44.

4      See, in particular, Directive (EU) 2016/801 of the European Parliament and of the Council of 11 May 2016 on the conditions of entry and residence of third-country nationals for the purposes of research, studies, training, voluntary service, pupil exchange schemes or educational projects and au pairing (recast) (OJ 2016 L 132, p. 21), Article 22, which refers to the equal treatment provisions in Article 12 of Directive 2011/98. See further point 32 of this Opinion.

5      OJ 2003 L 251, p. 12.

6      OJ 2004 L 166, p. 1.

7      According to WS’s observations and those of the Italian Government, WS’s wife and two children were not resident in Italy between January 2014 and June 2015, and after that period, they moved to Italy where they legally reside. As these matters fall within the referring court’s jurisdiction, I will not consider them further.

8      Judgment of 21 June 2017 (C‑449/16, EU:C:2017:485).

9      OJ 2010 L 344, p. 1.

10      The Italian Government refers in that regard to the judgment of 24 January 2019, Balandin and Others (C‑477/17, EU:C:2019:60).

11      Judgment of 21 June 2017 (C‑449/16, EU:C:2017:485).

12      The Commission refers in that regard to the judgment of 21 June 2017, Martinez Silva (C‑449/16, EU:C:2017:485).

13      It should be noted that, as indicated by WS, while the referring court mentions the third country of origin in the question referred, it is apparent from the national legislation at issue that that question equally arises if the family members reside in other countries outside Italy.

14      (C‑449/16, EU:C:2017:485).

15      See Title V, Chapter 2 TFEU, in particular Article 79 TFEU.

16      For an overview, see, for example, Commission Staff Working Document, Fitness Check on EU Legislation on legal migration, SWD(2019) 1055 final, 29 March 2019 (‘Commission Fitness Check’). As indicated therein, the EU legal migration framework includes the following directives: (1) Directive 2003/86 on family reunification; (2) Directive 2003/109 on long-term residents; (3) Council Directive 2009/50/EC of 25 May 2009 on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment (OJ 2009 L 155, p. 17); (4) Directive 2011/98 on single permits; (5) Directive 2014/36/EU of the European Parliament and of the Council of 26 February 2014 on the conditions of entry and stay of third-country nationals for the purpose of employment as seasonal workers (OJ 2014 L 94, p. 375); (6) Directive 2014/66/EU of the European Parliament and of the Council of 15 May 2014 on the conditions of entry and residence of third-country nationals in the framework of an intra-corporate transfer (OJ 2014 L 157, p. 1); and (7) Directive 2016/801 concerning, inter alia, students and researchers, which repealed and replaced Council Directive 2004/114/EC of 13 December 2004 on the conditions of admission of third-country nationals for the purposes of studies, pupil exchange, unremunerated training or voluntary service (OJ 2004 L 375, p. 12) and Council Directive 2005/71/EC of 12 October 2005 on a specific procedure for admitting third-country nationals for the purposes of scientific research (OJ 2005 L 289, p. 15).

17      See Article 79(1) TFEU; see also Article 67(2) TFEU.

18      See footnote 16 of this Opinion.

19      See Commission Fitness Check, cited in footnote 16 of this Opinion, p. 26.

20      See Directive 2011/98, in particular Article 1 and recital 30; see also Report from the Commission to the European Parliament and the Council on Directive 2011/98, COM(2019) 160 final, 29 March 2019, p. 1. For a detailed discussion, see, for example, Friðriksdóttir, B., What Happened to Equality? The Construction of the Right to Equal Treatment of Third-Country Nationals in European Union Law on Labour Migration, Brill Nijhoff, 2017, pp. 193-226; Iglesias Sanchez, S., ‘Single Permit Directive 2011/98/EU’, in Hailbronner, K. and Thym, D. (eds.), EU Immigration and Asylum Law — A Commentary, 2nd edition, C.H. Beck/Hart/Nomos, 2016, pp. 880-927.

21      (C‑449/16, EU:C:2017:485).

22      See judgment of 21 June 2017, Martinez Silva (C‑449/16, EU:C:2017:485, paragraphs 9, 30 and 31).

23      Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community (OJ, English Special Edition, Series I 1971(II), p. 416).

24      See judgment of 21 June 2017, Martinez Silva (C‑449/16, EU:C:2017:485, paragraphs 20 to 25).

25      See judgment of 21 June 2017, Martinez Silva (C‑449/16, EU:C:2017:485, paragraph 29 (referring, by analogy, to the judgment of 24 April 2012, Kamberaj (C‑571/10, EU:C:2012:233, paragraphs 86 and 87)).

26      See judgment of 21 June 2017, Martinez Silva (C‑449/16, EU:C:2017:485, paragraph 30).

27      See, in that regard, Declaration of the Italian Republic pursuant to Article 9 of Regulation No 883/2004, which classifies the family unit allowance in Law No 153/1988 as a family benefit under Article 3 of that regulation, available at https://ec.europa.eu/social/main.jsp?catId=868&intPageId=2285&langId=en, p. 5.

28      See judgment of 22 September 1994 (C‑301/93, EU:C:1994:341, in particular paragraphs 6, 18 and 19); see also Opinion of Advocate General Jacobs in Bettaccini (C‑301/93, EU:C:1994:139, points 16 and 17).

29      See judgment of 21 June 2017 (EU:C:2017:485, paragraphs 20 to 23). In the context of Regulation No 883/2004, see also, for example, judgment of 2 April 2020, FV and GW (Enfant du conjoint d’un travailleur frontalier) (C‑802/18, EU:C:2020:269, paragraphs 35 to 38).

30      See judgment of 21 June 2017  (EU:C:2017:485, paragraph 29).

31      See, in that regard, Strban, G., ‘Family Benefits in the EU: Is It Still Possible to Coordinate Them?’ (2016) 23 Maastricht Journal of European and Comparative Law 775, 782-783.

32      See also, in that regard, Directive 2011/98, recital 21.

33      I note in particular that the last sentence of recital 24 of Directive 2011/98 appears to have been added relatively late in the decision-making process, and no specific explanation for its insertion is publicly available. See, in that regard, Doc 15657/10, 12 November 2010, pp. 17 and 18; Doc 8130/11, 29 March 2011, p. 8; Doc 11527/11, 10 June 2011, pp. 15 and 16. See also footnote 36 of this Opinion.

34      See, to that effect, Verschueren, H., ‘Employment and social security rights of third-country nationals under the EU labour migration directives’ (2018) 20 European Journal of Social Security 100, 107.

35      In that regard, as the Court has repeatedly held, the preamble to an EU measure has no binding legal force and cannot be relied on as a ground either for derogating from the actual provisions of that measure or for interpreting those provisions in a manner that is clearly contrary to their wording. See, for example, judgment of 19 December 2019, Puppinck and Others v Commission (C‑418/18 P, EU:C:2019:1113, paragraph 76).

36      In the EU legal migration context, such wording originated with Directive 2005/71, recital 16. It appears to have been based on an Austrian proposal, indicating that that directive ‘cannot open rights in relation to situations which lie outside the scope of Community legislation like for example family members residing in a third state’. See, for example, Doc 10243/04, 22 June 2004, p. 12, footnote 1.

37      See, in particular, Directive 2014/36, recital 46; Directive 2016/801, recital 55.

38      See, in that regard, Directive 2014/36, Article 23(2)(i) and recital 46; Directive 2014/66, Article 18(3) and recital 38; Directive 2016/801, Article 22(2)(b) and recital 56.

39      See judgment of 24 January 2019, Balandin and Others (C‑477/17, EU:C:2019:60, in particular paragraphs 24 and 25).

40      See, in that regard, Opinion of Advocate General Wahl in Balandin and Others (C‑477/17, EU:C:2018:783, points 42 to 57, in particular point 46).

41      See, in that regard, Commission Fitness Check, cited in footnote 16 of this Opinion, in particular Annex 5, pp. 108 to 110; Cornelissen, R., ‘Regulation 1231/2010 on the inclusion of third-country nationals in EU social security coordination: Reach, limits and challenges’ (2018) 20 European Journal of Social Security 86, 91-93.

42      See Commission Fitness Check, cited in footnote 16 of this Opinion, in particular pp. 41 and 42.

43      See, in that regard, Verschueren, cited in footnote 34 of this Opinion, p. 108.

© European Union
The source of this judgment is the Europa web site. The information on this site is subject to a information found here: Important legal notice. This electronic version is not authentic and is subject to amendment.