Passalacqua, post-doctoral researcher in EU law,
In Italy, if you are a multimillionaire and
you just had a baby, the State gives you 960 euros.
However, if you are, say, the non-EU domestic employee of such a millionaire
and you also just had a baby, the State gives you zero.
How is this possible? Thanks to Italian
legislation that for 20 years has discriminated systematically against foreign
families. No wonder, these families are also poorer
compared to Italian ones: 25%
of them were in absolute poverty in 2020, against 6% of Italian ones.
In July 2020, the issue of discriminatory
criteria for access to family benefits arrived before the ECJ, thanks to a
reference by the Italian Constitutional Court (ICC), currently pending (O.D. and others, C-350/20).
This is the fourth time that the ECJ is asked
to assess Italian discriminatory criteria to access family benefits (after Martinez
Silva, VR, and WS).
But this time, the ECJ is called to interpret a new legal parameter: Art.
34.2 of the Charter of Fundamental Rights of the EU (the Charter). Can this
be a game-changer?
The relevance of Art. 34.2 of the Charter has
been questioned by commentators: admittedly, secondary norms are sufficient to
declare the Italian law incompatible with EU law. Yet, it is argued that the
ECJ should not miss this opportunity to clarify that migrants’ equal access to
benefits is a fundamental right in the EU, providing guidance both to the Italian
top Court and to the lawmaker.
dispute before the ICC and the preliminary question
The facts of the case are rather simple.
O.D. and seven other TCNs applied for family benefits, either assegno di maternità or bonus bebè, alias maternity and childbirth
The maternity allowance exists since 2001
and is granted to low-income women that do not receive a job-related maternity
allowance. Instead, the childbirth allowance was introduced in 2014 to support
families with a newborn. This was originally granted only to low-income families,
but a 2019 amendment made all families eligible; still, the amount of the allowance
varies according to their income (from 960 to 1920 euros p/y).
The Italian National Institute for Social
Security (INPS) refused to grant O.D. and others the maternity and childbirth
allowances because only Italian nationals, EU citizens, and TCN long-term
residents are eligible under Italian law. Instead, the applicants are single
permit holders: legally residing TCN workers whose status is regulated by the Single
Permit Directive 2011/98/EU.
O.D and others challenged such refusal on
the grounds that it entailed discrimination and was contrary to EU law. Indeed,
Art. 12 of the Single Permit Directive imposes to Member States to grant
single-permit holders equal treatment with nationals in several areas,
including “branches of social security, as defined in Regulation (EC) No
883/2004”. They argued that the two allowances must be considered as social
security and that they are equally entitled to them.
The applicants, supported by ASGI - a pro-migrant
association, won all the proceedings against INPS before first and
second-instance courts, until they reached the Italian Supreme Court. This
decided to refer their cases to the ICC for a constitutionality assessment,
which, in turn, decided to make a preliminary reference to the ECJ, under the
consideration that this is an area “marked by the growing influence of EU law”.
The preliminary reference asks whether the
childbirth and maternity allowances can be considered as branches of social
security under Regulation 883/2004 so that they would fall in the scope of
application of Art.12 Directive 2011/98 and Art. 34.2 of the Charter, which
grants equal treatment to any legally resident person in matters of social
security and social advantage.
I will tackle these issues in order.
the maternity and childbirth allowances to be considered as social security
under Regulation 883/2004?
Arguably, EU law and case law leave little
space for interpretation on this question. The ECJ has consistently held that
to understand whether a benefit falls within the scope of Regulation 883/2004 we
need to look at its “constituent elements”, i.e. “its purpose and the
conditions for its grant, and not on whether it is classified as a social
security benefit by national legislation” (UB C-447/18, at 22).
First, the benefit’s purpose must be
related to one of the risks listed in Art. 3 of Regulation 883/2004, among
which appear “maternity and equivalent paternity benefits” and “family
benefits”, defined as “all benefits in kind or in cash intended to meet family
expenses” (Art. 1).
Second, the benefit must be granted
automatically on the basis of objective criteria, without any individual or
discretionary evaluation of personal needs (Martinez
Silva, at 22).
Both maternity and childbirth allowances
are granted on the basis of objective criteria (i.e. income and the birth of a
new child) and give economic support to families. They perfectly match the ECJ definition
of social security, and this is why all first and second-instance Italian
courts upheld the applicants’ view and granted them equal access to the
allowances as required by Art. 12 of the Single Permit Directive.
INPS and the Italian government, however,
advanced an exception in respect to the childbirth allowance. They argued that
its goal is to incentivizing birthrate, rather than meeting family expenses;
this would be confirmed by the fact that (from 2019) the childbirth allowance
is a universal benefit, granted to all families and not only to low-income
But this point too had already been
addressed by the ECJ, in the case law on free movement of workers. In Reina,
the Court assessed whether a German measure (“childbirth loan”) could be
legitimately reserved to German nationals on the grounds that it was aimed “to
make up the relative deficit in births among the German population in relation
to the foreign population”.
Unsurprisingly, this chauvinistic argument
did not convince the ECJ. The Court stated that the sole fact that a social
measure pursues a demographic aim is not enough to exclude it from the scope of
application of EU law and that social security and advantages must be granted
equally to EU migrants (Reina at par
v. Greece, C-185/96, at 34). Ironically enough, in the case of Reina the
discriminated family was of Italian nationality.
34.2 of the Charter: a hollow hope or an added value?
As mentioned, the Italian Constitutional
Court’s decision to invoke Art. 34.2 of the Charter was met with skepticism by
commentators, who deemed it superfluous and of questionable relevance (Giubboni,
2021). This is because, as previously shown, secondary law is sufficient to
declare unlawful the exclusion of single permit holders from the beneficiaries
of the two allowances. So, does the Charter lack any added value?
Upon a closer look, the answer is no. Art.
34.2 of the Charter states:
residing and moving legally within the European Union is entitled to social
security benefits and social advantages in accordance with Union law and
national laws and practices.
This provision does present at least three
important advantages. First, it refers to both social security and social
advantages, while Art. 12 of the Single Permit Directive refers only to social
security. Second, it grants equal treatment to all migrants residing legally, without
making distinctions based on status. Third, it confers to the migrants’ right
to equality a fundamental status in the EU.
The concreteness of the first two
advantages is tempered by their limited scope of application (the Charter
applies to Member States only when they implement EU law) and by their being
subject to limitations under EU and national law. Instead, the third advantage,
abstract as it is, is more significant.
In a context where even the European Social
Charter grants migrants only limited access to social benefits (see Art. 19), the broad scope of Art. 34.2
sounds revolutionary. This confirms that, despite the (often valid) criticisms against
the restrictive EU migration policy, fighting discrimination against migrants
is a hallmark of the EU.
Indeed, the ECJ has fought discrimination
against (EU and TCN) migrants for decades, pioneering the idea that equality is
a necessary precondition for inclusion and integration (Kamberaj,
The case of O.D. and Others offers the ECJ the opportunity to clarify the
fundamental nature of the principle of equal access to benefits for TCN
migrants, which so far has been relegated to an ‘ordinary legislative function’
2020, at 121). This would pursue not only a rhetorical function, but it
would provide guidance amidst a very confusing “polycentric” adjudication
practice (Kilpatrick, 2014).
Especially in Italy, national courts have suffered
from a lack of uniform interpretation when adjudicating migrants’ equal
treatment (also because of the ‘dual preliminarity’ controversy, Lazzerini
2020). And the ICC denounced this situation in its reference: “The sheer
number of pending disputes is testament to the serious uncertainty concerning
the meaning to be ascribed to EU law.”
Moreover, Italian norms in many parts
contain discriminatory provisions against migrants, and a current proposal to
reform family benefits features again discriminatory
selection criteria, despite a pending Commission infringement on the
The ECJ evaded its obligation to interpret
Art. 34.2 once (in the case of UB, C-447/18). This time, it should
state clearly that migrants’ equal access to benefits is a fundamental
principle of the Union, sending a powerful message to the Italian
Constitutional Court and the Italian lawmaker.
The preliminary reference in the case of O.D. and Others speaks of an alarming
phenomenon. In Italy, TCN families in need have been denied equal access to
social benefits for decades, and the childbirth allowance reached a low point
in this respect: it is universally granted to all but to TCN migrants.
Against this background, the preliminary
reference in the case of O.D. and Others
offers an important opportunity. The ECJ has a long tradition of fighting
discrimination and constitutionalizing equality. In the case of O.D. and Others, its ruling can acquire erga omnes effect thanks to the
follow-up ICC judgment.
The EU Court should not miss this
opportunity for stating out and loud that equality is a fundamental principle
of the EU also when it comes to TCN migrants, which cannot be disposed of by
the erratic will of the government of the day.
Barnard & Peers: chapter 26
JHA4: chapter I:6
Photo Credit: Guiseppe Milo, via Wikimedia