Role of higher courts in securing fundamental rights

Judicial Interaction Techniques; Role of national higher courts; Use of the Preliminary Reference Procedure

Corte Constituzionale

Constitutional Court

54/2022

11 January 2022

IT:COST:2022:54

National follow-up of the CJEU decision in C-350/20.

No reference to ECtHR jurisprudence.

Judicial review for the constitutionality of Article 1(125) of Italian Law 190/2014, also called 2015 Budget Law, and the Article 74 of Italian Legislative Decree 151/2001 concerning the protection and support of maternity and paternity.
The Constitutional Court refers a preliminary request to the CJEU on the interpretation of Article 34 of the CFREU, of Article 3(1)(b) and (j) of Regulation 883/2004 and of the Article 12(1)(e) of Directive 2011/98/EU and then follow-up and declares the question of constitutionality founded.

Possibility for third-country nationals legally residing and working in Italy and holding a single work permit to benefit from a childbirth allowance and a maternity allowance.

The Constitutional Court requested the CJEU to review the case under the expedited procedure because this question is subject to extensive debate before the Italian courts, which could give rise to numerous references for a preliminary ruling before the CJEU and to divergent interpretation between, on the one hand, the administrative authorities responsible for granting the allowances at issue and, on the other hand, the Italian courts. The President of the Court refused the request finding that such reasons were not enough to establish the exceptional urgency necessary to justify an expedited procedure.

No interim relief asked

Articles 3, 31 and 117(1) of the Italian Constitution; Article 1(125) of the Law 190/2014; Articles 22, 70 and 74 of the Legislative Decree 151/2001; Article 15 of the Law 53/2000; Articles 9, 41 and 41(1-bis) of the Legislative Decree 286/1998; Article 3(1)(a)(2) of the Law 46/2021; Legislative Decree 230/2021; Article 19 of the Legislative Decree 150/2015; Article 3 of the Law 238/2021; Law 160/2019.

The Constitutional Court is seized of a question concerning the constitutionality of the Article 1(125) of the Italian Law 190/2014 and of the Article 74 of the Legislative Decree 151/2001. Those questions were raised by the Supreme Court of Cassation, seized by the National Social Welfare Institution (Istituto Nazionale della Previdenza Sociale – INPS)  seeking to overturn court of appeal judgments holding that a refusal to grant the childbirth allowance to those not holding a long-term resident’s EU residence permit was discriminatory. The matter concerned third country nationals, lawfully resident in Italy and only holding a single work permit provided for by Legislative Decree 40/2014 transposing Directive 2011/98, who filed applications for the childbirth allowance, which was rejected by the INPS due to the fact that they did not hold a long-term residence permit. The refusal was challenged on the grounds of discrimination, following which the merits courts accepted the claimants’ objections, directly applying the principle of equal treatment enshrined, with regard to social security, in  Directive 2011/98/EU. INPS appealed the decisions of several courts of appeal on points of law before the Court of Cassation, which referred questions on the constitutionality of Article 1(125) of Law No 190/2014 to the Constitutional Court. The Court of Cassation argues that, in requiring that foreign nationals must hold a long-term residence permit, the legislation governing the childbirth allowance violates the principles of equality and reasonableness enshrined in Article 3 of the Italian Constitution, as well as the Article 31 of the Constitution about the protection of the family and of the maternity, and finally the Article 117(1) of the Constitution, in relation to Articles 20,21,24,33 and 34 of the CFREU, concerning the principle of equality and the prohibition on discrimination, right of the child, the right of the family and the right to access social security benefits. The Constitutional Court decided to stay the proceeding and refer a question for preliminary ruling to the Court of Justice in order to it clarify the interpretation of the Article 34 of the CFREU.

In order 182/2020, the Constitutional Court noted that the questions referred by the Supreme Court of Cassation on the constitutionality of the Article 1(125) of the Italian Law 190/2014 and of the Article 74 of the Legislative Decree 151/2001 in respect to Articles 3, 31 and 117(1) of the Italian Constitution also involved the interpretation of the Article 34 of the CFREU, concerning the right for person lawfully resident in a EU-member State to access social security benefits. Consequently, the Constitutional Court asked  the CJEU if the childbirth and maternity allowances concerned fall within the scope of the Article 12 of the Directive 2011/98/EU, which gives concrete form to Article 34 CFREU, and therefore if EU law is to be interpreted as precluding national legislation which fails to extend these benefits, which are  already granted to foreign nationals holding a long-term resident’s EU residence permit, to foreign nationals who hold only a work permit.
The Constitutional Court recalled that, in responding to that preliminary ruling, the CJEU considered that a Member Stat cannot exclude third-country nationals, holding the single permit provided for by the Article 12 of the Directive 2011/98/EU, from entitlement to a childbirth allowance and a maternity allowance provided for by the legislation. In the present case, the Constitutional Court was thus called  to draw conclusions from the answers of the CJEU  and to assess whether the balance struck by the legislator is consistent with the Constitution.
The Consistiutial Court also noted that, although the Italian legal framework was substantially amended since the preliminary ruling of the CJEU, these amendments couldn not be applied to the current case and should therefore not be taken into account.
The Constitutional Court declared the Article 1(125) of the Italian Law 190/2014 and of the Article 74 of the Legislative Decree 151/2001 are unconstitutional. First, the Constitutional Court outlined the salient features of the childbirth allowance and the maternity allowance. The main aim is to encourage the birth rate and to contribute to the costs of supporting it. These allocations are currently delivered every month, since the month of birth or adoption, for each child born or adopted after the 1rst January 2018, but the condition for foreigner for access to these benefits is to hold a long-term resident’s EU residence permit. At this point the Constitutional Court stressed that, according to the CJEU, this situation falls within the scope of the Directive 2011/98/EU which ensures the fair treatment of third-country nationals who are legally residing in the territory of the Member States. Its aim is to “narrowing the rights gap between citizens of the Union and third-country nationals legally working in a Member State” (recital 19 of the Directive mentioned in the judgment). The constitutional Court retraced the reasoning of the CJEU in its judgment of the 2 September 2021 concerning the people and the benefits falling within the scope of the Directive and concerning the protection granted by the Article 34 of the Charter. On the basis of the judgment of the CJEU, the Constitutional Court concluded to the unconstitutionality of the challenged provisions by reason of contrast with Article 117 of the Constitution. The Court stressed that it is entrusted with the task of ensuring protection to the rights protected by the Constitution, in synergy with the CFREU.  
Second, the Constitutional Court, while maintaining  that it is within the legislator’s discretion to identify the recipients of social security benefits, taking into account the limit of available resources, stressed that such a choice is subject to the principle of reasonableness. In the case at issue, in refusing  allowances to those who do not hold a long-term residence permit, the legislator refuses adequate protection to those workers who are in the greatest need, because they don’t have the income requirement for this permit. Consequently, the Constitutional Court declared this condition is discriminatory and, thus, in contrast with Articles 3 and 31 of the Constitution.

In order 182/2020, the Constitutional Court invoked the Articles 20, 21, 24, 33 and 34 of the CFREU because the Articles 3, 31 and 117 of the Constitution concerned reflect these articles of the Charter. These articles of the Charter refer to the equality of rights, the children's rights, the protection of the family life and the right of access to social security benefits. The Constitutional Court mentioned several times the rights protected by the Constitution must be interpreted in synergy with the protection guaranteed by the Charter. Thus, the Charter serves as a tool for interpreting the rights guaranteed by the Italian Constitution. In the end, the Constitutional Court found that the questions raised by the Court of Cassation are well-founded, with reference to Articles 3, 31 and 117(1) of the Constitution, the latter in relation to Article 34 of the Charter, as enshrined in EU secondary law.

The Constitutional Court does not mention the ECHR.

Preliminary ruling, in a spirit of cooperation.

In both the order and the judgment of the Constitutional Court only engages with an assessment of the order of the Supreme Court of Cassation and of the judgment of Milan and Brescia Courts of Appeal which were at the origin of the constitutionality review. In the judgement 54/2022 the constitutional Court also mentionned its previous judgment 141/2014 concerning the qualification of allocations.

The Constitutional Court applied the answer of the preliminary ruling in C-350/20. It described the analysis of the CJEU in detail. The analysis of the constitutionality of the challenged provisions is based on the CJEU judgment. Indeed, the Constitutional Court decided to interpret the rights granted by the Constitution in the light of those enshrined in the Charter. Consequently, there is no divergence between the protection of fundamental rights granted by the Constitutional Court and the protection of the CJEU. The Constitutionnal Court  adopts in its entirety the point of view of the CJEU in its judgment C-350/20. In this case, the solution adopted involed a broader protection of fundemental rights.
The Constitutional Court also mentioned Cases C-449/16 and C-302/19 concerning the implementation of the Directive 2011/98/EU, and Cases C-571/10 about the right to social and housing assistance. These mentions was only used to support the reasoning.

The scope likely pursued by the Constitutional Court when using judicial interaction techniques was to solve a conflict of norms involving fundamental rights enshrined in the EU Charter. It declared two Articles unconstitutional on the basis of an interpretation of the Constitution in the light of the Charter.

The interactions between courts triggered changes to the legislative framework because two articles was declared unconstitutional on the basis of an interpretation of the Constitution in the light of the Charter and of the reference for the preliminary ruling.

The outcome achieved by the national judge is consistent with the decision of the CJEU because the Constitutional Court drew the conclusions from the reference for the preliminary ruling.

The national court quotes case law of the CJEU. See points 9.1, 9.2 and 12.1.

No reference to soft law.

No reference to national case law on fundamental rights.

The court that issued the preliminary reference is a last instance court

The court that issued the preliminary reference is a last instance court

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Questions for constitutionality of the Court of Cassation  (Orders n. 175, 178, 180, 181, 182, 188, 189 and 190 of 2019); Order for preliminary ruling of the Italian Constitutional Court of 2020 n 182; Judgment of the Court of Cassation, labour division,  n. 9305 of 2023.

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