Virginia Passalacqua, post-doctoral researcher in EU law, Utrecht University
Italy presents a paradoxical situation: while offering substantial financial aid to wealthy families upon the birth of a child, the nation provides no support to non-EU domestic workers employed by those same families when they have children. This disparity highlights the systemic discrimination embedded in Italian legislation over the past two decades, disproportionately impacting foreign families who experience significantly higher poverty rates compared to their Italian counterparts.
In July 2020, this discriminatory approach regarding family benefits was brought before the European Court of Justice (ECJ) due to a referral from the Italian Constitutional Court (ICC). This case, currently under review, marks the fourth instance where the ECJ has been asked to evaluate Italy’s practices concerning access to family benefits. However, this particular case introduces a new legal dimension: Article 34.2 of the Charter of Fundamental Rights of the EU. This article raises the question of whether it holds the potential to be a turning point in addressing this issue.
The importance of Article 34.2 has been debated among legal experts. While some argue that existing laws are sufficient to challenge the Italian legislation, others contend that the ECJ should utilize this opportunity to establish migrants’ equal access to benefits as a fundamental right within the EU. This clarification would offer crucial guidance for both the Italian Constitutional Court and lawmakers.
The Dispute Before the ICC and the Preliminary Question
The case revolves around O.D. and seven other third-country nationals (TCNs) who were denied access to family benefits, specifically the maternity allowance (assegno di maternità) and the childbirth allowance (bonus bebè). These allowances are designed to provide financial assistance to families with newborns.
The Italian National Institute for Social Security (INPS) rejected their applications because Italian law restricts eligibility for these benefits to Italian citizens, EU citizens, and long-term TCN residents. O.D. and the other applicants, holding single permits that grant legal residency and work authorization, argued that this denial constitutes discrimination and violates EU law. They maintain that these allowances qualify as social security benefits, to which they are equally entitled under Article 12 of the Single Permit Directive.
Despite their success in lower courts, the case reached the Italian Supreme Court, which then referred it to the ICC for a constitutional review. Recognizing the significant influence of EU law in this matter, the ICC decided to request a preliminary ruling from the ECJ. The central question presented is whether the Italian childbirth and maternity allowances should be categorized as branches of social security under Regulation 883/2004. If so, they would fall under the purview of Article 12 of the Single Permit Directive and Article 34.2 of the Charter, ensuring equal treatment for all legal residents in matters of social security and social advantages.
Are the maternity and childbirth allowances to be considered as social security under Regulation 883/2004?
EU law and previous rulings from the ECJ provide a clear framework for determining whether a benefit falls under the definition of social security as outlined in Regulation 883/2004. The court consistently emphasizes the importance of evaluating the fundamental purpose and conditions of the benefit rather than relying solely on national classifications.
Both maternity and childbirth allowances meet the established criteria. They are granted based on objective factors (income and childbirth) and provide financial support to families. Despite lower courts affirming this interpretation, INPS and the Italian government presented an argument regarding the childbirth allowance, suggesting its purpose is to encourage birth rates, not solely to address family expenses. They highlighted its universal availability to all families, regardless of income, as evidence.
However, the ECJ addressed a similar argument in the Reina case, where it rejected the notion that demographic objectives could justify discriminatory access to social benefits for EU migrants.
Art. 34.2 of the Charter: a hollow hope or an added value?
The ICC’s decision to invoke Article 34.2 of the Charter has sparked debate, with some viewing it as redundant given existing legal avenues. However, a closer examination reveals its potential significance.
This provision presents three key advantages. Firstly, it encompasses both social security and social advantages, unlike the Single Permit Directive, which only refers to social security. Secondly, it advocates for equal treatment of all legal migrants, regardless of their residency status. Thirdly, and most importantly, it elevates migrants’ right to equality by recognizing it as a fundamental right within the EU.
While subject to limitations and interpretations, the broad scope of Article 34.2 is noteworthy, especially when compared to the limited provisions for migrants’ access to social benefits outlined in the European Social Charter. It underscores the EU’s commitment to combating discrimination against migrants.
The case of O.D. and Others presents a crucial opportunity for the ECJ to solidify the fundamental nature of equal access to benefits for TCN migrants. A clear statement from the court would offer much-needed guidance to national courts, which have grappled with inconsistencies in interpreting and applying equal treatment principles for migrants.
Conclusion
The preliminary reference in the case of O.D. and Others exposes a concerning pattern of discrimination faced by TCN families in Italy who are denied equal access to social benefits, including the universally available childbirth allowance. This case presents a pivotal moment for the ECJ to reiterate its commitment to equality and non-discrimination, principles deeply rooted in its history.
Given its potential for broader impact, the ECJ’s decision holds the power to send a strong message to both the Italian Constitutional Court and lawmakers, emphasizing that equality within the EU, particularly for TCN migrants, is not subject to the whims of changing political landscapes.
Barnard & Peers: chapter 26
JHA4: chapter I:6
Photo Credit: Guiseppe Milo, via Wikimedia Commons