The Italian Constitutional Court recently ruled on the constitutionality of Article 1, paragraph 125, of Law No. 190 of 23 December 2014 (2015 Stability Law), and Article 74 of Legislative Decree No. 151 of 26 March 2001 (Consolidated text of legislative provisions on the protection and support of maternity and paternity, pursuant to Article 15 of Law No. 53 of 8 March 2000), answering to the questions promoted by the Court of Cassation, Labour Section, by orders of 17 June 2019.

 

The Court had adopted an order of preliminary referral (Ord. No. 182 of 30 July 2020) to the Court of Justice of the European Union, asking about the EU compatibility of the Italian legislation that excludes from certain benefits (“child and maternity allowance”) non-EU foreigners who do not hold an EU long-term residence permit.

Following the pronouncement of the judges in Luxembourg, who found the incompatibility of the Italian legislation with Article 34 of the Charter of Fundamental Rights of the EU - which provides for the right to social security benefits - and with Article 12(1)(e) of Directive 2011/98/EU on equal treatment between nationals of third countries and nationals of Member States, the Constitutional Court decided that the rules under consideration were unlawful.

 

In fact, the Constitutional Court, stating that it is its task "to ensure a systemic, non-fragmented protection of the rights safeguarded by the Constitution, also in synergy with the Charter of Nice, and to assess the balance implemented by the legislature, with a view to maximizing the expansion of the guarantees", establishes that the legislation examined infringes the right to equal treatment in access to social security benefits, protected by Article 34 of the Charter in conjunction with Article 12 of Directive 2011/98 EU, which recognized a set of rights for third-country nationals admitted to the State for employment or other purposes, who are allowed to work.

Furthermore, the Court affirms that the principle of equal treatment is linked "to the principles enshrined in Articles 3 and 31 of the Constitution and corroborates and illuminates their axiological content, with a view to promoting a broader and more effective integration of third-country nationals". From this perspective, the protection of motherhood and childhood referred to in Article 31 of the Constitution "does not tolerate arbitrary and unreasonable distinctions".

 

According to the Court, the correlation between the requirement of an EU residence permit for long-term residents, subject to the possession of strict income requirements, and the recognition of benefits that implement the protection of motherhood and childhood, aimed at coping with the state of need related to the birth of a child or its reception in the adoptive family, is, therefore, not to be considered reasonable.

 

(Comment by Nadia Spadaro)