In its judgment of 2 September 2021 (case C-350/20, O.D. and others v. INPS), the Court of Justice, ruling on the reference for a preliminary ruling made by the Italian Constitutional Court by order no. 182 of 30 July 2020, has affirmed the incompatibility between the Italian legislation on childbirth and maternity allowances (the so-called baby bonus) and Directive 2011/98/EU of the European Parliament and of the Council.

By not allowing foreign nationals in possession of a single work permit to receive those benefits, the national legislation infringes the right to equal treatment laid down in Article 12 of that directive.

 

In particular, the Court states that the childbirth allowance is granted automatically to families meeting objective criteria defined by law, irrespective of any individual and discretionary assessment of the personal needs of the applicant. It is therefore a cash benefit intended, by means of a public contribution to the family budget, to alleviate the burdens arising from the maintenance of a newborn (or adopted) child.

 

As regards maternity allowance, it is made clear that it is granted on the basis of the resources of the household of which the mother is a member, on the basis of an objective and legally predefined criterion, namely the indicator of the economic situation (ISE), without the competent authority being able to take account of other personal circumstances.

 

The Court concludes that the two allowances, therefore, fall within the areas of social security for which third-country nationals enjoy the right to equal treatment, a right which Italy has not restricted, despite the option given to the Member States by the directive.

For those reasons, the Court considers that the national legislation which excludes those third-country nationals from the benefit of those allowances does not comply with Article 12 of Directive 2011/98/EU of the European Parliament and of the Council.

 

(Comment by Alessandro Cupri)