Op-Ed: “Migrants’ Social Rights in the Dialogue between the CJEU and the Italian Constitutional Court: Long Live Article 267 TFEU!” by Daniele Gallo
In its Grand Chamber judgment in O.D. and Others v Istituto nazionale della previdenza sociale (INPS) (C-350/20), issued on 2 September 2021, the Court of Justice has recognised the rights of third-country nationals who hold single permits to receive a childbirth allowance and a maternity allowance as provided for by the Italian legislation.
The concerned third-country nationals are (i) those who have been admitted to a Member State for purposes other than work in accordance with EU or national law, who are allowed to work and who hold a residence permit in accordance with Regulation 1030/2002, and (ii) those who have been admitted to a Member State for the purpose of work in accordance with EU or national law ex Article 3(1)(b) and (c) of Directive 2011/98.
The judgment marks a great contribution to a better understanding of the scope of application of EU secondary law on access to social security benefits. It also offers an innovative conception of the preliminary ruling mechanism when the request stems from Member States’ constitutional courts, rather than from ordinary judges, as far as the flexibility implied in the admissibility test is concerned. On the other hand, the Court of Justice’s engagement with Article 34 of the Charter is rather too minimalistic and disappointing.
Background to the case
The ruling originates from a request for a preliminary ruling made by the Italian Constitutional Court (Corte Costituzionale or Consulta) concerning the interpretation of Article 34 of the Charter of Fundamental Rights of the EU, read in the light of Article 12(1)(e) of Directive 2011/98 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, as well as of Article 3(1)(b) and (j) of Regulation 883/2004 on the coordination of social security systems.
The request was made in proceedings between, on one hand, O.D., R.I.H.V., B.O., F.G., M.K.F.B., E.S., N.P. and S.E.A. (third-country nationals who are holders of single permits obtained pursuant to the Italian legislation transposing Directive 2011/98) and, on the other hand, the Istituto Nazionale della Previdenza Sociale (INPS) (the Italian National Social Welfare Institution), regarding the refusal to grant them entitlement to childbirth and maternity allowances.
The refusal was based on the fact that, contrary to the requirements laid down by Law No 190/2014 and Legislative Decree No 151/2001, those persons do not have long-term resident status.
The third-country nationals concerned challenged that refusal before the Italian courts. In the framework of such proceedings, the Supreme Court of Cassation (Corte Suprema di Cassazione), holding that the childbirth and maternity allowance regime infringes, inter alia, several provisions of the Italian Constitution, referred questions on constitutionality concerning Law No 190/2014 and Legislative Decree No 151/2001 to the Italian Constitutional Court, in so far as those provisions make the grant of the allowance to third-country nationals subject to the condition that they have long-term resident status.
Considering that the prohibition of arbitrary discrimination and the protection of motherhood and children, guaranteed by the Italian Constitution, must be interpreted in the light of EU law, the Corte Costituzionale asked the Court of Justice to clarify the scope of the right to social benefits enshrined in Article 34 of the Charter, and of the right to equal treatment in the field of social security conferred upon third-country workers by Article 12(1)(e) of Directive 2011/98.
Implications for judicial dialogue and the admissibility test
Three aspects of the ruling deserve close attention.
The judgment of the Court of Justice in C-350/20 is noteworthy, first of all, because it shows the importance and effet utile of the dialogue, ex Article 267 TFEU, between the Court of Justice and the constitutional courts of Member States, first and foremost when dual preliminarity arises in the context of fundamental rights, that is, in respect of the Italian legal order, when questions addressed to the Italian Constitutional Court by ordinary judges raise issues of compatibility with both the Constitution and EU law. Indeed, the reference by the Constitutional Court was characterised by its cooperative tone and pitch towards the Court of Justice. More in particular, since the rights and principles stemming from the Italian legal order at stake were regarded as being profoundly interconnected with the Charter, supplemented by secondary legislation, considering that the Italian Republic did not expressly exercise the option of introducing the derogations provided for by Directive 2011/98 (Article 12(2)(b)), the Consulta deemed it necessary, before ruling on the matter of constitutionality raised by the Supreme Court of Cassation (paragraph 25 of the ruling), to ask the Court of Justice about the interpretation of the interrelated and relevant provisions of EU law. As a matter of fact, since the Consulta was not certain about the direct effect of either Article 34 of the Charter and Article 12(1)(e) of Directive 2011/98/EU, or the scope of application of the relevant EU provisions, it chose to refer the matter to the Court of Justice. This way, the Italian Constitutional Court aimed at assessing, by virtue of the preliminary ruling procedure, whether in the case at issue there was a conflict between national law and the EU legal order and, if so, disapplication was required.
The answer given by the Court of Justice is straightforward: both Law No 190/2014 and Legislative Decree No 151/2001 violate EU law. Furthermore, even if the Court of Justice’s President did not autonomously assign the case to the Grand Chamber (since it was Italy, in accordance with the third paragraph of Article 16 of the CJEU Statute, to make such request), a sign of the constitutional relevance attributed to the case by the Court of Justice can be found in the decision to consider admissible the reference also with regard to the question posed by the referring court concerning the maternity allowance, although the facts in the main proceedings date from before the deadline for the implementation of Directive 2011/98 as provided for in Article 16(1) thereof, namely 25 December 2013. In this connection, the Court of Justice recalls that it is solely for the national court to determine ‘both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court’ (paragraph 38). Subsequently, it declares that the questions on the interpretation of EU law referred by a national court ‘enjoy a presumption of relevance’ (paragraph 39). Lastly, the Court of Justice, while reaffirming the principle that a directive cannot be relied on by individuals ‘in respect of facts prior to its transposition in order to have disapplied pre-existing national provisions which would be contrary to that directive’ (paragraph 40), observes that the referring court itself is not the court called upon to rule directly in the disputes in the main proceedings. Instead, it clarifies that the referring court is ‘a constitutional court to which a question of pure law has been referred, independent of the facts raised before the court adjudicating on the substance of the case’ (paragraph 40), whose rulings have erga omnes effect for all Italian courts.
By putting forward such reasoning, the Court of Justice seems to make an important and innovative move in creating a distinction, for the purposes of Article 267 TFEU and in view of the admissibility test, between referring courts, depending on the status of the jurisdiction, that is whether it is an ordinary or a constitutional judge.
The minor role for Article 34 of the Charter
Secondly, the Court of Justice, by focusing on Article 12(1)(e) of Directive 2011/98 and on Article 3(1)(b) and (j) of Regulation 883/2004, shifts the attention from Article 34 of the Charter to secondary law. Indeed, the Charter, albeit being at the core of the request for a preliminary ruling (as demonstrated above all by the centrality granted to it in the question submitted to the Court of Justice: see paragraph 7 of the order for reference), is left at the periphery in the entire reasoning of the Court of Justice (paragraphs 43-47 of the judgment). After all, the Court of Justice, in order to assess whether EU law shall be interpreted as precluding national legislation failing to extend the childbirth and maternity allowances to foreign nationals who hold a single permit under Directive 2011/98 (and not exclusively to those who hold a long-term resident’s EU residence permit), did venture deeply into the analysis of secondary law, rather than delving into the content and scope of Article 34 of the Charter. This provision is mentioned only whereby the Court of Justice points out that Article 12(1)(e) of Directive 2011/98, by stating that third-country workers as referred to in Article 3(1)(b)(c) must enjoy ‘equal treatment with nationals of the Member State where they reside’ with regard to ‘branches of social security, as defined in Regulation 883/2004’, ‘gives specific expression to the entitlement to social security benefits provided for in Article 34(1) and (2) of the Charter’ (paragraph 46 of the judgment).
Why such indifference toward Article 34 TFEU notwithstanding the assistance rendered by the referring court? Probably because Directive 2011/98 and Regulation 883/2004 were considered to be sufficiently detailed for being applied, in domestic proceedings, by national judges and for safeguarding third country nationals who hold single permits. In other words, they act as a direct expression of Article 34 TFEU. Furthermore, as the case at stake involves vertical rather than horizontal/inter-private relationships, Directive 2011/98 can come into play: there is thus no need for a joint application with the Charter, as occurred in previous case law (see, amongst many others, UB, C-447/18).
The scope of childbirth and maternity allowance rights
Thirdly, the ruling must be welcomed with respect to the scope of EU relevant secondary law, when the access to social rights by third-country nationals holding a single residence permit is at stake.
Concerning the childbirth allowance, the Court of Justice notes that it is granted automatically to households satisfying certain objective criteria, without any discretionary assessment of the applicant’s personal needs, and is aimed at supporting the maintenance of a newly-born or adopted child. Therefore, that allowance is a family benefit within the meaning of Article 3(1)(j) of Regulation 883/2004 (paragraph 60 of the judgment).
Similarly, regarding the maternity allowance, the Court of Justice observes that it is granted on the basis only of the economic situation of the household, by virtue of objective criteria, irrespective of the family’s personal circumstances, and on the condition that any maternity benefit is present in connection with employment, self-employment or professional practice. From this it flows that the allowance is a maternity benefit within the meaning of Article 3(1)(b) of Regulation 883/2004 (paragraph 62 of the judgment).
Since Regulation 883/2004 is referred to in Directive 2011/98 and Italy has not availed itself of the option of restricting equal treatment offered by the Directive to the Member States, the Court of Justice concludes that the childbirth and maternity allowances fall within the branches of social security in respect of which the third-country nationals set out in Article 3(1)(b) and (c) of Directive 2011/98 enjoy the right to equal treatment.
The judgment of the Court of Justice in C-350/20 confirms the importance of the dialogue between the Court of Justice and national constitutional courts in the framework of Article 267 TFEU. The ruling clarifies once for all that the Italian legislation is not compatible with EU law, as had been maintained by the European Commission since the launch of infringement procedure No 2019/2100 (see the updates on the infringement proceeding launched in the infringement decisions’ register), as well as by many public interest associations across Europe (see, for example, ASGI) and by several commentators (Gallo and Nato, Giubboni, Lazzerini, Passalacqua). Furthermore, the impact of the judgment will not be restricted to childbirth and maternity allowances. Indeed, the exclusion, in Italy, of third-country nationals holding a single residence permit from the access to other social benefits, such as the nursery school allowance (the so-called bonus asilo nido enshrined in Article 1(355) of Law No 232/2016), no longer seems legitimate in the wake of the Grand Chamber’s ruling.
In conclusion, the judgment marks an important contribution regarding the scope of application of EU secondary law on access to social security benefits. It also offers a pioneering conception of the admissibility test tied to the preliminary ruling mechanism when the request stems from Member States’ constitutional courts: the need for an erga omnes authoritative interpretation of EU law prevails over the recognition of a bold connection with the specific case brought to the attention of the Court of Justice, as shown by the circumstance that the facts in the main proceedings date from before the deadline for the implementation of Directive 2011/98 as far as the access to maternity allowance is concerned.
The ‘only’, albeit significant, downside, is the Court of Justice’s minimalistic engagement with Article 34 TFEU. The Court could have elaborated much more on the effet utile of such provision, as well as of its internal effect, as the referring court would have wished. It did not do so, conveying, therefore, the idea that the Charter shall perform a decisive function only when is employed in private relationships, along with directives, in order to circumvent the well-known prohibition of their horizontality, that is, in situations different from those at stake in the Court’s judgment.
But again, as previously noted, the ruling does represent a great development in the fostering of migrants’ rights across Europe. Hence, long live Article 267 TFEU and the judicial cooperation between the CJEU and domestic constitutional courts when issues of EU constitutional law and fundamental rights’ protection are under scrutiny!
Daniele Gallo is Jean Monnet Chair, Full Professor of EU Law at the Luiss Law Department (Rome) and member of the ENGAGE.EU Steering Committee. He is the author of Public Services and EU Competition Law. The Social Market Economy in Action (Routledge, 2021, forthcoming) and is currently working on a book on Direct Effect and the Nature of EU Law (OUP, due in 2023).