Article 34 - Social security and social assistance
Key facts of the case:
Request for a preliminary ruling from the Corte costituzionale. Reference for a preliminary ruling – Directive 2011/98/EU – Rights for third-country workers who hold single permits – Article 12 – Right to equal treatment – Social security – Regulation (EC) No 883/2004 – Coordination of social security systems – Article 3 – Maternity and paternity benefits – Family benefits – Legislation of a Member State excluding third-country nationals holding a single permit from entitlement to a childbirth allowance and a maternity allowance.
Outcome of the case:
On those grounds, the Court (Grand Chamber) hereby rules:
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 must be interpreted as precluding national legislation which excludes the third-country nationals referred to in Article 3(1)(b) and (c) of that directive from entitlement to a childbirth allowance and a maternity allowance provided for by that legislation.
1) This request for a preliminary ruling concerns the interpretation of Article 34 of the Charter of Fundamental Rights of the European Union (‘the Charter’), of Article 3(1)(b) and (j) 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 (OJ 2004 L 166, p. 1, and corrigendum OJ 2004 L 200, p. 1), and 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 (OJ 2011 L 343, p. 1).
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20) The Corte suprema di cassazione (Supreme Court of Cassation, Italy), which was called upon to rule on the appeals on points of law brought against decisions of several courts of appeal, held that the childbirth allowance regime infringed several provisions of the Italian Constitution, read in conjunction with Articles 20, 21, 24, 33 and 34 of the Charter, and referred questions on the constitutionality of Article 1(125) of Law No 190/2014 to the Corte costituzionale (Constitutional Court, Italy), in so far as that provision makes the grant of the childbirth allowance to third-country nationals subject to the condition that they have long-term resident status.
23) In support of its request for a preliminary ruling, the referring court states, inter alia, that it has jurisdiction to rule on the possible incompatibility of national provisions with the rights and principles enshrined in the Charter. It states that, when a question as to constitutionality is referred to it for a preliminary ruling concerning those rights and principles, it cannot refrain from ascertaining whether the provision at issue infringes both constitutional rights and principles and those enshrined in the Charter, the guarantees provided for by the Italian Constitution being supplemented by the guarantees enshrined in the Charter. As a national court or tribunal within the meaning of Article 267 TFEU, it makes a reference to the Court of Justice for a preliminary ruling in all cases where that is necessary in order to clarify the meaning and effects of the provisions of the Charter and it may, at the end of that assessment, declare the provision at issue unconstitutional, thus removing it from the national legal order with erga omnes effects.
24) The referring court considers that the constitutional rights and principles mentioned by the Corte suprema di cassazione (Supreme Court of Cassation) and those enshrined in the Charter, supplemented by secondary legislation, are inextricably linked, complement each other and are harmonised with one another, and that the prohibition on arbitrary discrimination and the protection of motherhood and children guaranteed by the Italian Constitution must be interpreted in the light of the binding indications given by EU law.
28) Furthermore, the referring court asks whether the maternity allowance must be included in the benefits guaranteed in Article 34 of the Charter, in the light of the secondary legislation which seeks to provide a common set of rights based on equal treatment with the nationals of the host member State for all third-country nationals who are legally residing and working in a Member State.
29) In those circumstances, the Corte costituzionale (Constitutional Court) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:
‘Is Article 34 of the [Charter] to be interpreted as applying to childbirth and maternity allowances under Article 3(1)(b) and (j) of Regulation [No 883/2004], referred to in Article 12(1)(e) of Directive [2011/98], and is EU law therefore to be interpreted as precluding national legislation which fails to extend the abovementioned benefits, which are already granted to foreign nationals holding a long-term resident’s EU residence permit, to foreign nationals who hold a single permit under that directive?’
43) The referring court has asked the Court of Justice about the interpretation of Article 34 of the Charter in order to ascertain whether the childbirth allowance and the maternity allowance fall within the scope of that article and whether Article 12(1)(e) of Directive 2011/98 precludes national legislation which excludes third-country nationals who hold a single permit, within the meaning of Article 2(c) of that directive, from entitlement to those allowances.
44) It should be noted that, under Article 34(1) of the Charter, the European Union recognises and respects the entitlement to social security benefits and social services providing protection in cases such as maternity, illness, industrial accidents, dependency or old age, and in the case of loss of employment, in accordance with the rules laid down by EU law and national laws and practices. In addition, under Article 34(2) of the Charter, everyone residing and moving legally within the European Union is entitled to social security benefits and social advantages in accordance with EU law and national laws and practices.
45) Furthermore, Article 12(1)(e) of Directive 2011/98, which, as stated in recital 31 thereof, respects the fundamental rights and observes the principles recognised by the Charter, provides that third-country workers as referred to in points (b) and (c) of Article 3(1) of that directive are to enjoy equal treatment with nationals of the Member State where they reside with regard to branches of social security, as defined in Regulation No 883/2004.
46) Therefore, by that reference to Regulation No 883/2004, it must be held that Article 12(1)(e) of Directive 2011/98 gives specific expression to the entitlement to social security benefits provided for in Article 34(1) and (2) of the Charter.
47) It is apparent from the Court’s case-law that, where they adopt measures which come within the scope of application of a directive which gives specific expression to a fundamental right provided for by the Charter, the Member States must comply with that directive (see, to that effect, judgment of 11 November 2014, Schmitzer, C‑530/13, EU:C:2014:2359, paragraph 23 and the case-law cited). It follows that the question referred must be examined in the light of Directive 2011/98. The scope of Article 12(1)(e) of that directive is determined by Regulation No 883/2004.
