OPINION OF ADVOCATE GENERAL
TANCHEV
delivered on 11 June 2020(1)
Case C‑303/19
Istituto Nazionale della Previdenza Sociale
v
VR
(Request for a preliminary ruling from the Corte suprema di cassazione (Supreme Court of Cassation, Italy))
(Reference for a preliminary ruling — Directive 2003/109/EC — Rights of third-country nationals who are long-term residents — Article 11 — Right to equal treatment with regard to social security, social assistance and social protection — Derogation — 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 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. (2)
2. Article 11(1)(d) of Directive 2003/109 grants third-country nationals who are long-term residents the right to equal treatment with nationals of the host Member State with regard to social security, social assistance and social protection as defined by national law. 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. The Court is also called upon to decide whether the derogations from equal treatment which Member States have the option to establish under Article 11(2) and (4) of Directive 2003/109 may be applied in the circumstances of the present case.
3. Consequently, the present case provides the Court with the opportunity to develop its case-law on the right to equal treatment for long-term residents under Article 11 of Directive 2003/109, in light of the judgment of 24 April 2012, Kamberaj (C‑571/10, EU:C:2012:233).
4. The present case is being heard by the Court in parallel with another case, Istituto Nazionale della Previdenza Sociale (Family benefits for holders of single permits) (C‑302/19) in which my Opinion is being delivered today. In that case, the referring court raises a similar question regarding 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, (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 holders of single permits 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 interaction between Directives 2003/109 and 2011/98 in that regard. The similarity of the issues arising in these two cases will therefore allow me to refer, on certain points, to the arguments set out in my Opinion in that parallel case in order to avoid repetition.
II. Legal framework
A. EU law
6. Article 2 of Directive 2003/109, titled ‘Definitions’, states:
‘For the purposes of this Directive: […]
(e) “family members” means the third-country nationals who reside in the Member State concerned in accordance with Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification ((4)); […].’
7. Article 11 of Directive 2003/109, titled ‘Equal treatment’, states:
‘1. Long-term residents shall enjoy equal treatment with nationals as regards: […]
(d) social security, social assistance and social protection as defined by national law; […]
2. With respect to the provisions of paragraph 1, points (b), (d), (e), (f) and (g), the Member State concerned may restrict equal treatment to cases where the registered or usual place of residence of the long-term resident, or that of family members for whom he/she claims benefits, lies within the territory of the Member State concerned.
[…]
4. Member States may limit equal treatment in respect of social assistance and social protection to core benefits.’
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 2003/109 was transposed into national law by Decreto legislativo 8 gennaio 2007, n. 3, Attuazione della direttiva 2003/109/CE relativa allo status di cittadini di Paesi terzi soggiornanti di lungo periodo (Legislative Decree No 3 of 8 January 2007 on the transposition of Directive 2003/109/EC) (GURI No 24 of 30 January 2007). That decree incorporates the provisions of that directive into the provisions of Decreto legislativo 25 luglio 1998, n. 286, Testo unico delle disposizioni concernenti la disciplina dell’immigrazione e norme sulla condizione dello straniero (Legislative Decree No 286 of 25 July 1998, Consolidated text of the provisions governing immigration and the status of aliens, ‘Legislative Decree No 286/1998’) (Ordinary Supplement to GURI No 191 of 18 August 1998).
10. Article 9(1) of Legislative Decree No 286/1998 provides:
‘A foreign national who, for at least five years, has held a valid residence permit, who shows that he has an income of not less than the annual amount of the social benefits and, where the application relates to members of his family, a sufficient income … and appropriate accommodation satisfying the minimum conditions laid down by the relevant provisions of national law, may apply to the Questore [Chief of Police] for a long‑term resident’s E[U] residence permit for himself and his family members […].’
11. Article 9(12) of Legislative Decree No 286/1998 provides:
‘In addition to the provisions laid down with respect to foreign nationals lawfully residing in Italy, the holder of a long-term E[U] residence permit may: […]
(c) be entitled to social assistance and social security benefits and to those relating to subsidies for health, education and social matters, and those relating to access to goods and services made available to the public, including access to the procedure for obtaining accommodation managed by the public authorities, unless otherwise provided and on condition that it is shown that the foreign national actually resides in national territory […].’
III. Facts, procedure and question referred
12. According to the order for reference, VR is a third-country national employed in Italy. He holds a long-term residence permit under Legislative Decree No 286/1998 transposing Directive 2003/109. For the period between September 2011 and April 2014, VR’s wife and five children left Italy and returned to the third country of origin (Pakistan).
13. For that period of time, the Istituto Nazionale della Previdenza Sociale (the National Social Security Institute, Italy; ‘the INPS’) refused to pay VR 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.
14. VR brought an action against the INPS and his employer before the Tribunale Giudice del Lavoro di Brescia (Labour Court of Brescia, Italy), complaining that the INPS’s refusal to pay him the family unit allowance was discriminatory. That court ruled in favour of VR, finding that Article 2(6-bis) of Law No 153/1988 was contrary to Article 11 of Directive 2003/109, in so far as that legislation treats long-term residents less favourably than nationals of the host Member State.
15. The INPS lodged an appeal against that decision before the Corte d’appello di Brescia (Brescia Court of Appeal, Italy). That court upheld that decision.
16. The INPS appealed in cassation to have the appeal judgment set aside.
17. The referring court has indicated that the family unit allowance is a financial supplement which is available in particular to all persons who work 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 11(1)(d) of Directive 2003/109.
18. 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 11(1)(d) of Directive 2003/109 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, taking into account that recital 4 and Article 2(e) of Directive 2003/109, respectively, state that the objective of that directive is the integration of third-country nationals who are long-term residents in the Member States and define family members as ‘third-country nationals who reside in the Member State concerned’.
19. 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 11(1)(d) of Council Directive 2003/109/EC of 25 November 2003 and the principle of equal treatment for long-term residents 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 who is a long-term resident and a citizen of a third country are excluded when determining the members of the family unit, for the purpose of calculating the family unit allowance, where those individuals live in the third country of origin?’
20. Written observations were submitted to the Court by the INPS, VR, 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
21. The INPS submits that the answer to the question referred should be in the negative. It contends 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 provided 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.
22. The INPS considers that Article 2(6-bis) of Law No 153/1988 is consistent with Article 11(1)(d) and (2), read in conjunction with Article 2(e), of Directive 2003/109. According to the INPS, it is not sufficient that the long-term resident resides in Italy, since the family members are the recipients of the family unit allowance and thus they must reside in the national territory. As it emphasised at the hearing, family members who do not reside in the host Member State do not fall within the scope of Article 11(1)(d) of Directive 2003/109, as they are excluded from the definition of family members set out in Article 2(e) of that directive, and it is possible to restrict benefits to family members residing in the host Member State under Article 11(2) of that directive.
23. The INPS asserts that the compatibility of Article 2(6-bis) of Law No 153/1988 with Article 11 of Directive 2003/109 is not affected by the fact that the family unit allowance has a social assistance function. In its view, that allowance cannot be classified as a core benefit within the meaning of Article 11(4) of that directive, read in conjunction with recital 13 thereof, since that allowance is financed by contributions payable by employers and workers, and is not intended to alleviate situations of need which are remedied by core benefits. (5) It also submits that Article 2(6-bis) of Law No 153/1988 does not derogate from equal treatment, since it does not call into question the right to the allowance, but only the amount, and is consistent with the objective of Directive 2003/109 to promote the integration of third-country nationals in the Member States.
24. VR submits that Article 11(1)(d) and (2) of Directive 2003/109 preclude national legislation such as that at issue. According to VR, 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 purpose 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 11 of Directive 2003/109. A different solution runs counter to the objectives of equality and social cohesion expressed in recital 4 of that directive.
25. VR considers that the definition of family members in Article 2(e) of Directive 2003/109 is not relevant to the present case, and cannot be used to interpret Article 11(2) of that directive, since it would render that article devoid of substance. VR argues that, based on the Court’s case-law, (6) a provision such as Article 9(12) of Legislative Decree No 286/1998 which preserves in general terms (‘unless otherwise provided’) legislation predating Directive 2003/109 does not qualify as a derogation under Article 11(2) of that directive, since there is no express indication of the provisions being derogated from. As VR emphasised at the hearing, Article 11(2) of Directive 2003/109 does not apply to the family unit allowance, since the right to that allowance is not specific to a family member for whom benefits may be claimed within the meaning of that provision. VR 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.
26. The Italian Government submits that Article 11(1)(d), read in conjunction with Article 11(2), of Directive 2003/109 and the principle of equal treatment do not preclude legislation such as that at issue. It considers that, in light of the judgment in Martinez Silva, (7) the family unit allowance falls within the category of social security, and not social assistance or social protection, under Article 11(1)(d) of Directive 2003/109. It argues that, based on the definition of family members in Article 2(e) of Directive 2003/109, account must be taken of family members of a long-term resident for entitlement to social security benefits only if they reside with him in the host Member State. It asserts that the exclusion of non-resident family members in Article 2(6-bis) of Law No 153/1988 is justified in order to prevent abusive practices, such as forum shopping, in the social security field. That legislation is also proportionate, in its view, since it affects the amount and not the right to the allowance, and is consistent with Directive 2003/109’s objective of the integration of long-term residents in the Member States, as expressed in recital 4 of that directive.
27. As the Italian Government emphasised at the hearing, Article 11(2) of Directive 2003/109 does not apply to the family unit allowance, since that allowance accrues to the long-term resident who is entitled to it, unlike benefits which accrue to family members through their linkage to that resident, such as disability or maternity benefits. It is therefore irrelevant whether Italy has stated clearly that it intended to rely on the derogation in Article 11(2) of Directive 2003/109. Moreover, in its view, the judgment in Kamberaj (8) is not pertinent to the present case, since the Court established that an express declaration to derogate is required for Article 11(4) of Directive 2003/109, whereas there is no need for such a declaration under Article 11(2) of that directive. It also makes no sense to speak of derogation in relation to Article 2(6-bis) of Law No 153/1988, since that legislation existed fifteen years before Directive 2003/109 was adopted, so there is no obligation on the part of Italy to make an express declaration to derogate, and Italy did not insert any derogation in Legislative Decree No 286/1998 transposing that directive.
28. The Commission proposes to reply to the question referred that, in the absence of a clear expression of the Member State’s intention to rely on the derogation in Article 11(2) of Directive 2003/109, Article 11(1)(d) of that directive should be interpreted as precluding national legislation such as that at issue. It submits that, based on the Court’s case-law, (9) Italy has not stated clearly its intention to rely on the derogation provided in Article 11(2) of Directive 2003/109. It points out that Article 9(12) of Legislative Decree No 286/1998 does not mention the residence of the family members of the long-term resident, and the wording ‘unless otherwise provided’ in that provision cannot be regarded as an express declaration to derogate.
29. The Commission emphasised at the hearing the importance attached to a Member State’s express declaration to derogate, especially for reasons of transparency in relation to the subjects to which such a derogation applies and for carrying out its role as guardian of the Treaties. Moreover, in its view, Article 2(e) of Directive 2003/109 serves only to define what is meant by family members of the long-term resident where the provisions of that directive use that term, and does not exclude from the scope of Article 11 of that directive family members who do not reside with the long-term resident in the host Member State, since otherwise the derogation in Article 11(2) of Directive 2003/109 would be rendered superfluous.
V. Analysis
30. By its question, the referring court asks the Court, essentially, to rule whether the principle of equal treatment for long-term residents enshrined in Article 11(1)(d) of Directive 2003/109, with regard to social security, social assistance and social protection as defined by national law, 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 who is a long-term resident, 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.
31. 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 family unit allowance is determined is composed of all persons who have a particular family relationship with a worker in Italy, irrespective of whether those 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). (10)
32. 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 2003/109 and the EU legal migration framework, along with the judgment of 24 April 2012, Kamberaj (11) (Section A). I will then turn to the interpretation of Article 11(1)(d) of Directive 2003/109 (Section B). Finally, I will address the possible application of the derogations to equal treatment in Article 11(2) and (4) of Directive 2003/109 (Section C).
33. On the basis of that analysis, I have reached the conclusion that Article 11(1)(d) of Directive 2003/109 precludes national legislation such as at that issue in the main proceedings.
A. Preliminary observations
1. Directive 2003/109 and the EU legal migration framework
34. It should be borne in mind that Directive 2003/109 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. (12) 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. (13) Equal treatment provisions are an important element of those directives, and promote one of the main objectives of EU immigration policy, which is to ensure the fair treatment of third-country nationals residing legally in the Member States. (14)
35. In that context, Directive 2003/109 determines the terms for granting and withdrawing long-term resident status and the rights pertaining thereto, along with the terms of residence in other Member States for third-country nationals enjoying that status. (15) In effect, that directive establishes for third-country nationals who have been legally resident within the EU for at least five years a specific legal status based on EU law, namely long-term resident status, (16) which constitutes the highest stage that a third-country national can reach short of nationality of the host Member State. (17)
36. As the Court has recognised, the principal objective of Directive 2003/109, as is apparent from recitals 4, 6 and 12 of that directive, is the integration of third-country nationals who are settled on a long-term basis in the Member States. (18) Similarly, as is clear from recital 2 of Directive 2003/109, that directive seeks, by granting the status of long-term resident to such third-country nationals, to approximate the legal status of third-country nationals to that of Member States’ nationals. (19) For that purpose, Directive 2003/109 establishes equal treatment between those third-country nationals and Member State nationals in a wide range of economic and social fields. (20)
37. To that end, Article 11(1) of Directive 2003/109 provides that long-term residents enjoy equal treatment with nationals of the host Member State in specified fields, including social security, social assistance and social protection benefits as defined by national law under point (d), subject to the derogations which Member States may establish under Article 11(2), (3) and (4) of that directive. This means in substance that, under Article 11 of Directive 2003/109, Member States must ensure that third-country nationals who are long-term residents 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 24 April 2012, Kamberaj
38. It should also be pointed out that the judgment of 24 April 2012, Kamberaj (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 court, and presented the first occasion for the Court to interpret Article 11 of Directive 2003/109.
39. In that judgment, (22) the Court held that Article 11(1)(d) of Directive 2003/109 precludes national legislation which provided for different treatment between long-term residents and nationals of the host Member State with regard to the grant of a housing benefit, in so far as that benefit fell within that provision and the derogation in Article 11(4) of that directive did not apply. In particular, the Court ruled that, despite the reference to national law in Article 11(1)(d) of Directive 2003/109, Member States cannot undermine the effectiveness of that directive, and must take account of its integration objective along with the Charter of Fundamental Rights of the European Union (‘Charter’), and in particular Article 34 thereof concerning social security and social assistance, when determining the measures subject to equal treatment under that provision. (23)
40. The Court further held that, since the right to equal treatment for long-term residents in Article 11(1) of Directive 2003/109 is the general rule, the derogation in Article 11(4) of that directive relating to social assistance and social protection must be interpreted strictly, and applied only if Member States have stated clearly that they intended to rely on it. (24) In that connection, the Court underlined that Article 11(4) of Directive 2003/109 does not make it possible to derogate from equal treatment with regard to social security benefits as defined by national law. It also clarified that the notion of core benefits under that provision pertains to social assistance and social protection benefits granted by the public authorities which enable individuals to meet their basic needs, and that if the benefit at issue fulfils the purpose set out in Article 34 of the Charter, it cannot be considered under EU law as not being part of core benefits. (25)
41. Consequently, it follows from the judgment in Kamberaj that, in circumstances where national legislation creates a difference in treatment between third-country nationals who are long-term residents and nationals of the host Member State with regard to the grant of benefits falling within the scope of Article 11(1)(d) of Directive 2003/109 and no derogations may be applied, the right to equal treatment conferred on those third-country nationals under that provision must be respected. That judgment therefore lends support to the view that national legislation such as that at issue is contrary to Article 11(1)(d) of Directive 2003/109. I will return to that judgment later in my analysis (see points 45, 64, 67 and 68 of this Opinion).
B. Interpretation of Article 11(1)(d) of Directive 2003/109
1. General considerations
42. It should be noted at the outset that, as I observed in points 39 and 40 of my Opinion in C‑302/19 with regard to Directive 2011/98, Directive 2003/109 does not harmonise the legislation of the Member States in the fields of social security, social assistance and social protection, and it is in principle for each Member State to lay down the conditions concerning, inter alia, entitlement to benefits in those fields.
43. It follows that Directive 2003/109 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 11(1)(d) of that directive does require the Member States to ensure that third-country nationals who are long-term residents enjoy equal treatment with nationals of the host Member State regarding social security, social assistance and social protection as defined by national law. 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 are long-term residents 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.
44. First, it is common ground that a long-term resident such as VR falls within the personal scope of Article 11(1)(d) of Directive 2003/109 and is therefore entitled to equal treatment under that provision. As indicated by the order for reference, VR is a third-country national employed in Italy and holds a long-term resident permit pursuant to Italian legislation transposing Directive 2003/109.
45. Second, there is little doubt that, as indicated by the referring court, the family unit allowance falls within the scope of Article 11(1)(d) of Directive 2003/109, referring to social security, social assistance and social protection as defined by national law. According to the observations of the INPS and the Italian Government, that allowance falls within the category of social security, and not social assistance or social protection, under that provision. On the basis of the judgment in Kamberaj, (26) this is a matter for the referring court to determine. Nonetheless, I would point out that, as detailed in point 42 of my Opinion in C‑302/19, that allowance qualifies as a social security benefit included among the family benefits referred to in Article 3 of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems, (27) for the purposes of Article 12(1)(e) of Directive 2011/98.
46. Third, there is no question that, under the national legislation at issue, third-country nationals who are long-term residents 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 11(1)(d) of Directive 2003/109. 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.
47. Therefore, contrary to the observations of the INPS and the Italian Government, and as indicated by VR, 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.
48. 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 who are long-term residents 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 11 of Directive 2003/109. 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 VR, those issues may be the same with regard to family members of Italian nationals residing abroad, and Directive 2003/109 imposes equal treatment.
49. Consequently, on the basis of the foregoing considerations, there are strong indications that the question referred should be answered in the affirmative (in so far as the derogations in Article 11(2) and (4) of Directive 2003/109 do not apply, as discussed in points 63 to 68 of this Opinion). 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 11(1)(d) of Directive 2003/109 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 2003/109 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
50. I should state at the outset that I am in agreement with VR and the Commission that the equal treatment provisions of Article 11 of Directive 2003/109 apply to national legislation such as that at issue.
51. First, I am not persuaded by arguments put forward by the INPS that it is not sufficient for the purposes of Directive 2003/109 that the long-term resident resides in the host Member State, since the family members are the recipients of the family unit allowance and thus they must reside in that State.
52. Similar to the position which I advanced in points 50 and 51 of my Opinion in C‑302/19, it should be recalled that, as indicated by the referring court as well as the INPS, VR 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 is a long-term resident and falls within Article 11(1)(d) of Directive 2003/109.
53. I acknowledge that, as indicated by the referring court along with the INPS and the Italian Government, the family members of the long-term resident are beneficiaries of the family unit allowance. Indeed, generally speaking, the nature of a family benefit is to benefit the family. (28) 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 is a long-term resident 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 11(1)(d) of Directive 2003/109.
54. Second, it seems to me that the definition of family members in Article 2(e) of Directive 2003/109 does not exclude family members who do not reside with the long-term resident in the host Member State from the scope of Article 11 of that directive. As can be seen in point 6 of this Opinion, that provision defines family members for the purposes of that directive as ‘the third-country nationals who reside in the Member State concerned in accordance with [Directive 2003/86] on the right to family reunification’. The definition of family members under Article 2(e) of Directive 2003/109 is used in a specific way in that directive, and mainly relates to residence in the second Member State on the basis of Article 16 of that directive, (29) as is apparent from recital 20 thereof. (30) Thus, as indicated by the Commission, while Article 2(e) of Directive 2003/109 defines what is meant by family members where the provisions of that directive use that term, there is nothing to suggest that it limits the right to equal treatment for long-term residents under Article 11 of that directive in the circumstances of the present case.
55. In particular, this approach is consistent with Article 11(2) of Directive 2003/109, under which a Member State may restrict equal treatment, in particular as regards social security, social assistance and social protection, to cases where the registered or usual place of residence of family members for whom benefits are claimed is in its territory. It would be illogical, in my view, that Article 11(2) of Directive 2003/109 provides for such a derogation if the family members who do not reside in the territory of the Member State concerned are not in any event family members within the meaning of Article 2(e) of that directive.
56. This approach is also consonant with the legislative history of Directive 2003/109. In particular, it is apparent from certain institutional documents that the definition of family members in that directive was initially tied to specific persons residing in the host Member State in line with what would become Directive 2003/86 on family reunification. (31) That definition was eventually shortened to what is contained in Article 2(e) of Directive 2003/109. (32) Yet, there is no indication in those documents that that definition was intended to impact the right to equal treatment for long-term residents under that directive. Indeed, despite the fact that the grant of benefits to persons abroad was discussed during the decision-making process, (33) and there was a proposal for a derogation to equal treatment where a Member State grants rights to its own nationals residing outside its territory, (34) no such provisions were taken up in Directive 2003/109 as adopted.
57. Furthermore, having regard to the context of Directive 2003/109, it should be pointed out that, in the definition of family members contained in other directives within the EU legal migration framework, no specific reference is made to their residence in the Member State concerned, and that term means third-country nationals as defined,(35) or referred to, (36) in Article 4(1) of Directive 2003/86 which lists the persons for whom the Member States must authorise family reunification, including the third-country national’s spouse and minor children.
58. Finally, I am unconvinced by arguments advanced by the INPS and the Italian Government that national legislation such as that at issue is consistent with Directive 2003/109’s objective of the integration of third-country nationals who are long-term residents in the Member States. As noted in point 36 of this Opinion, the Court has attached importance to the fact that Directive 2003/109’s integration objective is carried out by ensuring equal treatment for third-country nationals who are long-term residents under Article 11 of that directive. Accordingly, in the circumstances of the present case where such a third-country national is in a comparable situation to a national of the host Member State, it seems to me to be entirely consistent with the objectives of integration and equal treatment pursued by Directive 2003/109 that that national enjoy equal treatment with regard to entitlement to the family unit allowance under Article 11(1)(d) of that directive.
C. Possible application of Article 11(2) and (4) of Directive 2003/109
59. It should be recalled that, as seen in point 7 of this Opinion, Article 11(2) of Directive 2003/109 provides that, with regard to certain fields specified in Article 11(1) of that directive, including social security, social assistance and social protection as defined by national law under point (d), a Member State ‘may restrict equal treatment to cases where the registered or usual place of residence of the long-term resident, or that of family members for whom he/she claims benefits, lies within the territory of the Member State concerned.’
60. In that regard, it should be noted that Article 11(2) of Directive 2003/109 sets out a horizontal derogation to equal treatment across several fields, which is not found in other directives in the EU legal migration framework. (37) As indicated in the literature, that provision is intended to prevent the export of benefits in areas covered by Article 11 of Directive 2003/109, including family benefits, for long-term residents and family members living abroad. (38) For the purposes of the application of Article 11(2) of Directive 2003/109, the circumstances of the present case draw attention to two main aspects.
61. First, it should be observed that, having regard to the wording of Article 11(2) of Directive 2003/109, it is not clear whether that provision covers family benefits, such as the family unit allowance, which is paid to the worker for the benefit of the whole family, or whether it refers only to benefits claimed on account of a particular circumstance concerning one or more family members, as VR and the Italian Government contend. Nor does the legislative history of Directive 2003/109 appear to offer much guidance in that regard. (39)
62. I am inclined to the view that the derogation in Article 11(2) of Directive 2003/109 applies to social allowances which benefit the long-term resident as well as those which benefit his or her family members. In particular, this is because Article 11(2) of Directive 2003/109 refers to ‘the provisions of paragraph 1, poin[t]…(d)’ without any reservation, which means that if an allowance falls within the scope of Article 11(1)(d) of that directive, it should also fall within the scope of Article 11(2) thereof. On that basis, it should be considered that that derogation covers a family benefit such as the family unit allowance.
63. Second, it must be considered whether Italy is justified in limiting equal treatment under Article 11(1)(d) of Directive 2003/109 by applying the derogation in Article 11(2) of that directive.
64. It should be pointed out that, contrary to the arguments advanced by the Italian Government, it seems to flow clearly from the Court’s case-law that the derogation in Article 11(2) of Directive 2003/109 may be relied on by a Member State only if that State has stated clearly that it intended to do so. As noted in points 39 and 40 of this Opinion, while the judgment in Kamberaj (40) addressed the derogation in Article 11(4) of Directive 2003/109, which was at issue in those proceedings, there is nothing to suggest that the Court’s findings in that regard were restricted to that provision, and cannot be applied to Article 11(2) of Directive 2003/109, especially seeing as it also constitutes a derogation from the general rule of equal treatment under Article 11(1) of Directive 2003/109. Moreover, as noted in point 37 of my Opinion in C‑302/19, the Court relied on its findings in Kamberaj to establish in the judgment in Martinez Silva (41) that, just like Directive 2003/109, the derogations from equal treatment in Directive 2011/98 may be relied on by Member States provided that they have stated clearly that they intended to rely on them.
65. In the present case, it is apparent from the information before the Court that, as confirmed by the Italian Government at the hearing (see point 27 of this Opinion), Italy has not stated that it intended to rely on the derogation in Article 11(2) of Directive 2003/109. Thus, the provisions on the family unit allowance laid down in Article 2(6-bis) of Law No 153/1988, which were adopted many years before Directive 2003/109 was transposed into national law by Legislative Decree No 286/1998, cannot be regarded as introducing restrictions on equal treatment which Member States have the option of establishing under Article 11(2) of that directive.
66. In addition, as seen in point 11 of this Opinion, Article 9(12) of Legislative Decree No 286/1998 is limited to making access to social assistance and social security benefits for a long-term resident conditional on his actual residence in the national territory and ‘unless otherwise provided’. That provision does not refer to the place of residence of that resident’s family members, and the wording ‘unless otherwise provided’ cannot, in my view, be regarded as a clear expression of a Member State’s intention to derogate, given that that wording does not specify the provisions being derogated from. In those circumstances, it should be considered that Italy cannot rely on Article 11(2) of Directive 2003/109 in the circumstances of the present case.
67. Similar conclusions may be drawn, in my view, with regard to the possible application of the derogation in Article 11(4) of Directive 2003/109 in this case. In particular, it should be noted that, as the Court established in the judgment in Kamberaj (42) (see point 40 of this Opinion), that derogation allows Member States to limit equal treatment in respect of social assistance and social protection to core benefits, which are benefits granted by the public authorities enabling individuals to meet their basic needs. However, that derogation does not apply to social security benefits as defined by national law.
68. Consequently, it follows from the judgment in Kamberaj that, in so far as the referring court would consider the family unit allowance to be a social assistance or social protection benefit and not part of core benefits within the meaning of Article 11(4) of Directive 2003/109, Article 11(1)(d) of that directive would still preclude the national legislation at issue, since it is apparent from the information before the Court that Italy has not stated that it intended to rely on that derogation (see point 27 of this Opinion).
69. 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 who are long-term residents, 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 11(1)(d) of Directive 2003/109.
VI. Conclusion
70. I therefore propose that the Court answer the question referred by the Corte suprema di cassazione (Supreme Court of Cassation, Italy) as follows:
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 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 who is a long-term resident and a citizen of 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.