Case C‑112/22

CU

(Request for a preliminary ruling from the Tribunale di Napoli (Italy))

Judgment of the Court (Grand Chamber) of 29 July 2024

(Reference for a preliminary ruling – Status of third-country nationals who are long-term residents – Directive 2003/109/EC – Article 11(1)(d) – Equal treatment – Social security, social assistance and social protection measures – Residency condition of 10 years, the final 2 years of which must be consecutive – Indirect discrimination)

Border controls, asylum and immigration – Immigration policy – Status of third-country nationals who are long-term residents – Directive 2003/109 – Right to equal treatment as regards social security, social assistance and social protection – National legislation which makes the grant of a social benefit conditional on a residence requirement of at least 10 years, the final 2 years of which must be consecutive, and which provides for a criminal penalty in the event of false declaration – Not permissible

(Charter of Fundamental Rights of the European Union, Art. 34; Council Directive 2003/109, recitals 6 and 12 and Arts 4(1) and 11(1)(d) and (2))

(see paragraphs 35, 38, 46, 50-52, 55-61, operative part)

Résumé

The Court of Justice, to which the Tribunale di Napoli (District Court, Naples, Italy) referred a request for a preliminary ruling, rules on the principle of equal treatment between third-country nationals who are long-term residents and nationals laid down in Article 11 of Directive 2003/109 ( 1 ) and, more specifically, on whether access to a social security, social assistance or social protection measure within the meaning of Article 11(1)(d) may be made subject to the condition of having resided in the Member State concerned for at least 10 years, the final 2 years of which must be uninterrupted.

In 2020, CU and ND, third-country nationals who are long-term residents in Italy, applied for ‘basic income’, a social benefit intended to ensure a minimum level of subsistence. They were subsequently prosecuted for having falsely declared, in their applications, that they satisfied the eligibility criteria for that benefit, including the condition of having resided in Italy for a minimum period of 10 years, the final 2 years of which must be consecutive.

In those circumstances, the District Court, Naples, was uncertain as to whether that condition for granting the benefit, which also applies to Italian nationals, was consistent with EU law. That court considers that that requirement establishes less favourable treatment of third-country nationals, including those who hold long-term residence permits, compared to that accorded to nationals.

Findings of the Court

The Court begins by recalling that, where a provision of EU law, such as Article 11(1)(d) of Directive 2003/109, makes an express reference to national law, it is not for the Court to give the terms concerned an autonomous and uniform definition under EU law. However, the absence of such autonomous and uniform definitions under EU law of the concepts of ‘social security’, ‘social assistance’ and ‘social protection’ and the reference to national law, in that provision, relating to those concepts do not mean that the Member States may undermine the effectiveness of Directive 2003/109 when applying the principle of equal treatment provided for in that provision. In addition, when determining the social security, social assistance and social protection measures defined by their national law, the Member States must comply with the rights and observe the principles provided for by the Charter of Fundamental Rights of the European Union (‘the Charter’), including those laid down in Article 34 thereof.

Given that both Article 34 of the Charter and Article 11(1)(d) of Directive 2003/109 refer to national law, it is for the referring court to determine whether the ‘basic income’ in question in the main proceedings constitutes a social benefit covered by the directive.

The Court goes on to emphasise that the system put in place by Directive 2003/109 makes acquisition of long-term resident status conferred by that directive subject to a specific procedure and, in addition, to fulfilment of certain conditions, including a condition of legal and continuous residence of five years in national territory. In so far as that status corresponds to the highest level of integration for third-country nationals, it justifies them being guaranteed equal treatment with nationals of the host Member State, as regards, in particular, social security, social assistance and social protection.

Next, regarding the residency condition at issue in the main proceedings, the Court considers that a residency condition of 10 years, the final 2 years of which must be consecutive, is contrary to Article 11(1)(d) of Directive 2003/109.

In the first place, the difference in treatment between third-country nationals who are long-term residents and nationals, which results from national legislation laying down such a residency condition, constitutes indirect discrimination. That condition affects primarily non-nationals, including third-country nationals, but also the interests of Italian nationals who return to Italy after a period of residence in another Member State. That being said, a measure may be regarded as indirectly discriminatory without there being any need for it to have the effect of placing all nationals at an advantage or placing only third-country nationals who are long-term residents at a disadvantage, but not nationals of the State in question.

In the second place, such discrimination is, in principle, prohibited, unless it is justified objectively.

However, Article 11(2) of Directive 2003/109 provides an exhaustive list of the situations in which Member States may derogate, as regards residence, from equal treatment between third-country nationals who are long-term residents and nationals. Accordingly, outside those situations, a difference in treatment between those two categories of nationals is, in itself, an infringement of Article 11(1)(d) of that directive.

In particular, a difference in treatment between third-country nationals who are long-term residents and nationals of the Member State concerned cannot be justified by the fact that they are in a different situation on account of their respective links with that Member State.

The five-year legal and continuous residence period provided for by Directive 2003/109 in order to obtain long-term resident status shows that the person has ‘put down roots in the country’. Accordingly, it must be regarded as sufficient for that person to be entitled, after acquiring long-term resident status, to equal treatment compared with nationals, in particular as regards social security, social assistance and social protection, in accordance with Article 11(1)(d) of that directive.

As a result, a Member State cannot extend unilaterally the required period of residence for such a long-term resident to enjoy the right guaranteed by that provision.

Last, regarding the criminal penalty provided for by national legislation in the event of a false declaration regarding the conditions for accessing the social benefit in question, the Court recalls that a national penalty mechanism is not compatible with the provisions of Directive 2003/109 where it is imposed in order to ensure compliance with an obligation which itself does not comply with those provisions. Having regard to the foregoing, the Court rules that Article 11(1)(d) of Directive 2003/109, read in the light of Article 34 of the Charter, precludes legislation of a Member State which makes access for third-country nationals who are long-term residents to a social security, social assistance or social protection measure conditional on the requirement, which also applies to nationals of that Member State, of having resided in that Member State for at least 10 years, the final 2 years of which must be consecutive, and which provides for a criminal penalty for any false declaration regarding that residency condition.

( 1 ) Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents (OJ 2004 L 16, p. 44).