Italy - Court of Appeal of Milan, Decision No. 1626/2018, RG. No. 344/2018, 22 October 2018
Keywords:
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Access to the labour market
Description
Per Art 26 QD: Member States must authorise beneficiaries of international protection status to engage in employed or self-employed activities subject to rules generally applicable to the profession and to the public service immediately after the status has been granted. In the case of refugee status, Member States must ensure activities such as employment-related education opportunities for adults, vocational training and practical workplace experience are offered under equivalent conditions as nationals. In the case of subsidiary protection the same may be offered under conditions to be decided by the Member States. Per Art. 11 RCD: "Member States shall determine a period of time, starting from the date on which an application for asylum was lodged, during which an applicant shall not have access to the labour market. If a decision at first instance has not been taken within one year of the presentation of an application for asylum and this delay cannot be attributed to the applicant, Member States shall decide the conditions for granting access to the labour market for the applicant." |
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Accommodation centre
Description
Any place used for the collective housing of asylum seekers. |
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More favourable provisions
Description
Many of the instruments of the EU asylum acquis currently set out only minimum standards. “It is in the very nature of minimum standards that Member States should have the power to introduce or maintain more favourable provisions”. According to Article 5 of the Asylum Procedures Directive: “Member States may introduce or maintain more favourable standards on procedures for granting and withdrawing refugee status, insofar as those standards are compatible with this Directive.” Similarly, according to Article 4 of the Reception Conditions Directive: “Member States may introduce or retain more favourable provisions in the field of reception conditions for asylum seekers and other close relatives of the applicant who are present in the same Member State when they are dependent on him or for humanitarian reasons insofar as these provisions are compatible with this Directive.” |
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Health (right to)
Description
Member States shall ensure that applicants receive the necessary health care which shall include, at least, emergency care and essential treatment of illness. Member States shall also ensure that beneficiaries of refugee or subsidiary protection status have access to health care under the same eligibility conditions as nationals of the Member State that has granted such statuses. |
Headnote:
Foreign asylum seekers without employment have a right to be exempted from the payment of health care contributions under Art. 8(16) of Law No. 537/1993, irrespective of whether they are seeking a job for the first time or have worked in the past. The entitlement to this benefit depends solely on the condition of “non-employment” under Art. 19(1), (2) and (7) of Legislative Decree 150/2015 and to the declaration by the non-employed individual of their availability to work. Denying this benefit to jobless asylum seekers amounts to discrimination.
Facts:
The applicant is a Senegalese national with a residence permit; he is seeking job for the first time and has a formal declaration of immediate availability to work. He applied for exemption from the E02 medical ticket, provided by Article 8(16) of Law No 537/1993, which exempts from the health care contribution only people who are unemployed. However, the request was not accepted, as according to the Agency for Health Protection of the Metropolitan City of Milan, the right to exemption is granted only to those who have ceased working and not to those who are seeking a first job, such as the applicant.
Therefore, the applicant brought an action before the Tribunal of Milan, demanding his exemption pursuant to Art. 19(1) and (7) of Legislative Decree No. 150/2015 or, alternatively, under Art. 17 (4) of Directive 2013/33/EU; he also requested reimbursement of the amount paid. The Tribunal of First Instance upheld a literal interpretation of Art. 8(16) of Law No. 537/1993: regardless of the person’s citizenship, the position of a first-time jobseeker does not fall within the category of unemployed people. On these grounds, the Tribunal dismisses the action.
The applicant appealed against the decision. His complaint is based on the fact that the Tribunal ignored the legislative amendments to Law No. 537/1993; in particular, he argues that there has been an infringement of Article 19(1) and (7) of Legislative Decree No. 150/2015. The applicant also alleges a violation of the obligations arising for asylum seekers from EU Directive 2013/33. Finally, he again requests the reimbursement of the amount paid.
Decision & reasoning:
Pursuant to Art. 17(4) of Directive 2013/33/EU, Member States may require applicants to cover or contribute to the cost of the material reception conditions and of the health care, if the applicants have sufficient resources. However, Italy has decided not to make use of this derogation and the implementing law (Legislative Decree No. 142/2015) does not contain any provision that obliges asylum seekers to contribute to the costs of health care. Therefore, the right of exemption arises directly from the application of European Union legislation which, as it is sufficiently detailed and unconditional, must prevail over any other incoherent national law.
The Court then focuses on the notion of unemployed person and on its interpretation in the light of the amendments introduced by Legislative Decree No. 150/2015.Pursuant to Art. 19(1) of Legislative Decree No. 150/2015, unemployed persons are those who declare their immediate availability for work. This decree overcomes the distinction between unemployed persons and first-time jobseekers, putting them on an equal footing. Since the applicant is jobless and has made the declaration of immediate availability for work, he falls within the category of unemployed according to Article 19(1) of Legislative Decree No 150/2015. The Court thus granted him the right to exemption under Article 8(16) of Law No. 537/1993.
The Court also stated that the recognition of the right to exemption from contributions does not depend on the distinction between “unemployed” and “jobless”, on the basis of Article 19(7) of Legislative Decree No 150/2015. Pursuant to this provision, when law requires unemployment as the condition to grant social benefits, this category is to be understood as referring solely to the condition of non-employment.
Outcome:
Appeal partially upheld.
Subsequent proceedings:
The judgment was never appealed before the Supreme Court and is now final.
Observations/comments:
This case summary was written by Alessandra Alosi, Ruggero Leotta, Stefano Scalora and Alessia Sgroi, members of the Legal Clinic of the University of Catania.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Legislative Decree No. 142/2015 |
| Law No. 537/1993 |
| Legislative Decree No. 150/2015 |
| Legislative Decree No. 181/2000 |
| Ministry of Labour Circular No. 5090 of 4 April 2016 |
Other sources:
Domestic case law cited
Court of Cassation ord. No. 25246 of 16 October 2008
Court of Cassation, judgement No. 11799/2017 of 12 May 2017
Tribunal of Rome, Labour Section, judgement of 13 June 2018
Tribunal of Brescia, Order of 30 July 2018