Case C‑449/16

Kerly Del Rosario Martinez Silva

v

Istituto nazionale della previdenza sociale (INPS)
and
Comune di Genova

(Request for a preliminary ruling from the Corte d’appello di Genova)

(Reference for a preliminary ruling — Social security — Regulation (EC) No 883/2004 — Article 3 — Family benefits — Directive 2011/98/EU — Article 12 — Right to equal treatment — Third-country nationals holding single permits)

Summary — Judgment of the Court (Seventh Chamber), 21 June 2017

1. Social security—Migrant workers—EU rules—Scope ratione materiae—Benefits included and benefits excluded—Distinguishing criteria

   (European Parliament and Council Directive 883/2004, Art. 3(1))

2. Social security—Family allowances—Definition—Benefit for households having at least three minor children—Included

   (European Parliament and Council Directive 883/2004, Arts 1(z) and 3(1)(j))

3. Border controls, asylum and immigration—Immigration policy—Single application procedure for a single permit for third-country nationals to reside and work in the territory of a Member State—Directive 2011/98—Right to equal treatment—National legislation refusing the holder of a single permit a benefit for households having at least three minor children—Not permissible

   (European Parliament and Council Directive 2011/98, Arts 2(c), 3(c) and 12; Council Directive 2003/109)

1.  See the text of the decision.

   (see paras 20-22)

2.  As to whether a particular benefit is among the family benefits referred to in Article 3(1)(j) of Regulation No 883/2004, it must be noted that, in accordance with Article 1(z) of that regulation, the term ‘family benefit’ means all benefits in kind or in cash intended to meet family expenses, excluding advances of maintenance payments and special childbirth and adoption allowances mentioned in Annex I to the regulation. The Court has held that the phrase ‘to meet family expenses’ is to be interpreted as referring in particular to a public contribution to a family’s budget to alleviate the financial burdens involved in the maintenance of children (see, to that effect, judgment of 19 September 2013, Hliddal and Bornand, C‑216/12 and C‑217/12, EU:C:2013:568, paragraph 55 and the case-law cited).

   As regards the benefit at issue in the main proceedings, it appears from the documents before the Court, first, that ANF is paid to recipients who apply for it where the conditions relating to the number of minor children and to income laid down in Article 65 of Law No 448/1998 are satisfied. The benefit is consequently granted without any individual and discretionary assessment of the claimant’s personal needs, on the basis of a legally defined situation. Secondly, ANF consists in a sum of money paid to those recipients each year in order to meet family expenses. It is therefore a cash benefit intended, by means of a public contribution to a family’s budget, to alleviate the financial burdens involved in the maintenance of children.

   It follows from all the above considerations that a benefit such as ANF is a social security benefit included among the family benefits referred to in Article 3(1)(j) of Regulation No 883/2004.

   (see paras 23-25)

3.  Article 12 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 must be interpreted as precluding national legislation, such as that at issue in the main proceedings, under which a third-country national holding a single permit within the meaning of Article 2(c) of that directive cannot receive a benefit such as the benefit for households having at least three minor children established by Legge n. 448 — Misure di finanza pubblica per la stabilizzazione e lo sviluppo (Law No 448 on public finance measures for stabilisation and development) of 23 December 1998.

   It is apparent from Article 12(1)(e) read in conjunction with Article 3(1)(c) of Directive 2011/98 that the equal treatment provided for in the former provision must be enjoyed in particular by third-country nationals who have been admitted to a Member State for the purpose of work in accordance with EU or national law. That is the case of a third-country national holding a single permit within the meaning of Article 2(c) of that directive, since under that provision that permit allows such a national to reside lawfully in the territory of the Member State which has issued it, in order to work there.

   However, by virtue of the first indent of Article 12(2)(b) of Directive 2011/98, Member States may limit the rights conferred on third country workers by Article 12(1)(e) of that directive, except for those who are in employment or who have been employed for a minimum period of six months and are registered as unemployed. In addition, under the second indent of Article 12(2)(b) of the directive, Member States may decide that Article 12(1)(e) of the directive relating to family benefits is not to apply to third-country nationals who have been authorised to work in the territory of a Member State for a period not exceeding six months, to third-country nationals who have been admitted to that territory for the purpose of study, or to third-country nationals who are allowed to work there on the basis of a visa.

   Thus, like Directive 2003/109, Directive 2011/98 provides for certain third-country nationals a right to equal treatment, which is the general rule, and lists the derogations from that right which the Member States have the option of establishing. Those derogations can therefore be relied on only if the authorities in the Member State concerned responsible for the implementation of that directive have stated clearly that they intended to rely on them (see, by analogy, judgment of 24 April 2012, Kamberaj, C‑571/10, EU:C:2012:233, paragraphs 86 and 87).

   (see paras 27-29, 32, operative part)