Article 34 - Social security and social assistance
Key facts of the case:
Reference for a preliminary ruling – Status of third-country nationals who are long-term residents – Directive 2003/109/EC – Article 11(1)(d) – Equal treatment – Social security, social assistance and social protection measures – Residency condition of 10 years, the final 2 years of which must be consecutive – Indirect discrimination
Outcome of the case:
On those grounds, the Court (Grand Chamber) hereby rules:
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, read in the light of Article 34 of the Charter of Fundamental Rights of the European Union,
must be interpreted as precluding legislation of a Member State which makes access for third-country nationals who are long-term residents to a social security, social assistance or social protection measure conditional on the requirement, which also applies to nationals of that Member State, of having resided in that Member State for at least 10 years, the final 2 years of which must be consecutive, and which provides for a criminal penalty for any false declaration regarding that residency condition.
32. Nevertheless, as observed in paragraph 23 of the present judgment, in its replies to the Court’s request for clarifications, the referring court stated that the persons in question in the main proceedings are third-country nationals who are long-term residents in Italy. In addition, in Case C‑112/22, it confirmed that the provision the interpretation of which is useful for the main proceedings is Article 11(1)(d) of Directive 2003/109. It is that provision, read in the light of Article 34 of the Charter – not Articles 18 and 45 TFEU, Article 7(2) of Regulation No 492/2011 or Article 29 of Directive 2011/95, also mentioned in the questions referred – which is applicable to that category of persons. Those provisions must therefore be disregarded, as they are unconnected to the disputes in the main proceedings.
33. In the light of the foregoing, the Court considers that, by its questions, which it is appropriate to consider together, the referring court is asking, in essence, whether Article 11(1)(d) of Directive 2003/109, read in the light of Article 34 of the Charter, must be interpreted as precluding legislation of a Member State which makes access for third-country nationals who are long-term residents to a social security, social assistance or social protection measure conditional on the requirement, which also applies to nationals of that Member State, of having resided in that Member State for at least 10 years, the final 2 years of which must be consecutive, and which provides for a criminal penalty for any false declaration regarding that residency condition.
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36. In addition, Article 51(1) of the Charter provides that the Charter’s provisions are addressed to the Member States when they are implementing EU law. Similarly, it is clear from recital 3 of Directive 2003/109 that that directive respects fundamental rights and observes the principles recognised in particular by the Charter.
37. Consequently, when determining the social security, social assistance and social protection measures defined by their national law and subject to the principle of equal treatment laid down in Article 11(1)(d) of Directive 2003/109, the Member States must comply with the rights and observe the principles provided for under the Charter, including those laid down in Article 34 thereof. Under Article 34(3) of the Charter, in order to combat social exclusion and poverty, the European Union – and thus the Member States when they are implementing EU law – ‘recognises and respects the right to social and housing assistance so as to ensure a decent existence for all those who lack sufficient resources, in accordance with the rules laid down by Union law and national laws and practices’ (judgment of 24 April 2012, Kamberaj, C‑571/10, EU:C:2012:233, paragraph 80).
38. Given that both Article 34 of the Charter and Article 11(1)(d) of Directive 2003/109 refer to national law, it is for the referring court to determine whether the ‘basic income’ in question in the main proceedings constitutes a social benefit covered by the directive (see, to that effect, judgments of 24 April 2012, Kamberaj, C‑571/10, EU:C:2012:233, paragraph 81, and of 28 October 2021, ASGI and Others, C‑462/20, EU:C:2021:894, paragraph 32).
41. In the present cases, the Court must therefore base its reasoning on the premiss that the ‘basic income’ in question in the main proceedings is a measure covered by Article 11(1)(d) of Directive 2003/109, read in the light of Article 34 of the Charter.
47. Third, as to whether the condition of having resided in Italy for a minimum period of 10 years, the final 2 years of which must be consecutive, required under Article 2(1)(a)(2) of Decree-Law No 4/2019, in order to be able to access ‘basic income’ is compatible with Article 11(1)(d) of Directive 2003/109, read in the light of Article 34 of the Charter, the referring court emphasises that that residency condition applies identically to third-country nationals who are long-term residents and to Italian nationals. However, that court observes, in essence, that that condition places third-country nationals who are long-term residents at a disadvantage as compared with Italian nationals who reside in Italy and have not left the territory of that Member State in order to reside abroad for an extended period of time.
61. Having regard to all the foregoing considerations, the answer to the questions referred is that Article 11(1)(d) of Directive 2003/109, read in the light of Article 34 of the Charter, must be interpreted as precluding legislation of a Member State which makes access for third-country nationals who are long-term residents to a social security, social assistance or social protection measure conditional on the requirement, which also applies to nationals of that Member State, of having resided in that Member State for at least 10 years, the final 2 years of which must be consecutive, and which provides for a criminal penalty for any false declaration regarding that residency condition.
