CJEU - ASGI and Others v Presidency of the Council of Ministers and Ministry of Economy and Finance, Case C-462/20, 28/10/2021

Facts:

Associazione per gli Studi Giuridici sull’Immigrazione (ASGI) submitted a request to the Department for Family Policies of the Office of the President of the Council of Ministers to disapply Italian legislation concerning the ‘family card’. Explained briefly, the ‘family card’ gave families access to discounts or price reductions when purchasing goods and services. ASGI asserted that the legislation excluded the possibility of third-country nationals, who have a status protected by EU law, to gain access to that card.

ASGI’s request remained unanswered, prompting them to bring an action before the District Court. They submitted that the family card legislation was contrary to:

-        Article 11(1)(d) 2003/109, since family card comes within the meaning of ‘social security’, ‘social assistance’ and ‘social protection’ referred to within the provision

-        Article 12(1)(e) read in conjunction with Article 1(z) and 3(1)(f) of Regulation No. 883/2004, since family card comes within the concept of ‘family benefits’ referred to in that regulation, and  

-        Article 14(1)(e) 2009/50 read in conjunction with the same provisions of Regulation No. 883/2004 and Article 29 2011/95, since family card comes within the concept of ‘social welfare’ referred to within the provision

Moreover, ASGI asserted that, if the Courts were to consider that issuing a family card constituted a ‘service’ within the meaning of Article 11(1)(f) 2003/109, Article 12(1)(g) 2011/96 and Article 14(1)(g) 2009/50, that would be incompatible with EU law.

Notably, the defence claimed that ASGI’s action should be dismissed as ‘family card’ does not fall within the interpretation of any EU directives or regulations relied on by ASGI.  

The Court contended that the outcome of the dispute depends on the interpretation of the directives and regulations, and referred the following questions to the Court of Justice for a preliminary ruling:

1.      Does Article 11(1)(d) or (f) of Directive 2003/109 preclude national legislation, which prohibits third-country nationals, who are long-term residents, access to a document which confers entitlement to discounts on supplies of goods and services (the family card legislation)

2.      Does Article 12(1)(e) of Directive 2011/98, in conjunction with Article 1(z) and Article 3(1) (j) of Regulation No 883/2004, or Article 12(1)(g) of Directive 2011/98 preclude the family card legislation

3.      Does Article 14(1)(e) of Directive 2009/50, in conjunction with Article 1(z) and Article 3(1)(j) of Regulation No 883/2004, or Article 14(1)(g) of Directive 2009/50 preclude the family card legislation

4.      Does Article 29 of Directive 2011/95 preclude the family card legislation

Decision & reasoning:

Question 1: Article 11(1)(d) of Directive 2003/109

The Court noted that Article 11(1)(d) provides for equal treatment of long-term residents and nationals as regards social security, social assistance and social protection ‘as defined by national law’. As such, reference to national law must occur to determine whether a given social benefit comes within the scope of Directive 2003/109.

Consequently, it is not for the Court to interpret the meaning of those terms, so long as the Member State does not undermine the effectiveness of that directive when applying their interpretation of the principle of equal treatment provided for in that provision [paras. 30-31].

In the present case, the Court found that the exclusion of third-country nationals with long- term resident status from eligibility for the family card does not undermine the effectiveness of the directive as regards equal treatment in the field of social security, social assistance, and social protection.

Therefore, Article 11(1)(d) of Directive 2003/109 does not preclude the family card legislation

Question 2&3: Article 12(1)(e) of Directive 2011/98 and Article 14(1)(e) of Directive 2009/50

The Court clarified that the benefits referred to in Article 12(1)(e) of Directive 2011/98 and Article 14(1)(e) of Directive 2009/50 are those belonging to the various branches of social security defined by Regulation No 883/2004.

Following this, the Court explained that the distinction between benefits coming within the scope of Regulation No 883/2004 and those which fall outside that scope is not determined by whether it is classified as a social security benefit in national legislation. Instead, it is based on the constituent elements of each benefit and an analysis of the purpose and the conditions for its grant [para. 24].

As such, the Court held that for a benefit to be regarded as a social security benefit it must:

-        Relate to one of the branches defined by Regulation No 883/2004,

-        Be granted automatically to families who meet an objective criterion relating to their size, income, and capital resources, without any individual and discretionary assessment of their personal needs [para 25 – 26].

As to whether a particular benefit comes within the ‘family benefits’ referred to in Article 3(1)(j) of Regulation No 883/2004, the Court clarified that ‘family benefits’ refers to a public contribution to a family’s budget to alleviate the financial burdens involved in the maintenance of children. Since the family cards do not do this, but instead give access to discounts or price reductions, they do not come within the scope of Regulation No 883/2004. [para 28.]

It follows that Article 12(1)(e) of Directive 2011/98 and Article 14(1)(e) of Directive 2009/50 must be interpreted as not precluding the family card legislation.

Question 4: Article 29 of Directive 2011/95

Article 29 requires that the level of social benefits paid to beneficiaries of international protection are the same as that offered to nationals of that Member State

As per the case-law relating Article 20, social assistance is to be understood as referring to all assistance schemes established by the public authorities, to which support is offered to an individual who does not have sufficient resources to meet their own basic needs and the needs of their family. 

As such, the Court concluded that it is for the referring court to determine whether, in the light of that definition, the family card constitutes ‘social assistance’ for the purposes of Article 29 of Directive 2011/95. Once this has been established, it can be determined whether Article 29 od Directive 2011/95 precludes national legislation.

Article 11(1)(f) 2003/109, Article 12(1)(g) 2009/50, Article 14(1)(g) Directive 2003/109

The Court found that the exclusion of third-country nationals from eligibility for the family card constitutes unequal treatment contrary to Article 11(1)(f) of Directive 2003/109, Article 12(1)(g) of Directive 2011/98 and Article 14(1)(g) of Directive 2009/50. This is because it discriminates third country nationals from Italian nations [para 38.] As such, Article 11(1)(f) of Directive 2003/109, Article 12(1)(g) of Directive 2011/98 and Article 14(1)(g) of Directive 2009/50 must be interpreted as precluding such legislation.

Outcome:

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, and Article 14(1)(e) of 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, must be interpreted as not precluding legislation of a Member State which excludes third-country nationals covered by those directives from eligibility for a card granted to families allowing access to discounts or price reductions when purchasing goods and services supplied by public or private entities which have entered into an agreement with the government of that Member State.

 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, must be interpreted as not precluding such legislation either, in so far as such a card does not come, according to the national legislation of that Member State, within the concepts of ‘social security’, ‘social assistance’ or ‘social protection’.

 Article 29 of Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted, must be interpreted as precluding such legislation if that card comes within an assistance scheme established by the public authorities to which recourse may be had by an individual who does not have resources sufficient to meet his or her own basic needs and those of his or her family.

 Article 11(1)(f) of Directive 2003/109, Article 12(1)(g) of Directive 2011/98 and Article 14(1)(g) of Directive 2009/50 must be interpreted as precluding such legislation.

Other sources:

Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents, Article 11.

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, Article 14.

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, Article 12.

Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems, Articles 1, 3.