1. Introduction
In a current Grand Chamber judgment, handed down on 29 July 2024, the ECJ made an necessary clarification of the appropriate to equal therapy of third-country nationwide long-term residents within the Member States. Lengthy-term resident third-country nationals, who’re usually excluded from the appropriate to non-discrimination on the idea of nationality beneath Article 18 TFEU, however get pleasure from equal therapy with nationals relating to entry to social safety, social help, and social safety beneath Article 11(1)(d) Directive 2003/109 (often known as the “Lengthy-Time period Residence Directive”). In Joined Instances C-112/22 and C-223/22 CU and ND, the Courtroom has strengthened that proper by confirming that it protects in opposition to each direct and oblique types of discrimination. It held that imposing a residence situation on the entry to the nationwide primary earnings is a type of illegal oblique discrimination. The judgment depends on the Courtroom’s standing case regulation on comparable questions beforehand raised within the discipline of free motion and Union citizenship regulation. In its consequence, the judgment thus represents a step nearer to the purpose expressed within the 1999 Tampere Conclusions and recital 2 to the preamble of Directive 2003/109 to create rights “as are as close to as doable to these loved by residents of the European Union”.
2. Information
At challenge within the preliminary reference earlier than the Grand Chamber, was the Italian decreto-legge n. 4 “Disposizioni urgenti in materia di reddito di cittadinanza e pensioni”, as amended by Decree-Regulation 4/2019which gives for entry to primary earnings. Beneficiaries of the essential earnings – Italian nationals, EU residents, and long-term resident third-country nationals alike – had been required to fulfil a residence situation: they will need to have been resident in Italy for not less than ten years, with the final two years being consecutive (Article 2(1)).
CU and ND had been the 2 defendants within the prison proceedings that the Tribunale di Napoli referred to the Courtroom of Justice. That they had been accused of falsely declaring in 2020 that they fulfilled the residence situations to obtain the essential earnings. Each had been long-term resident third-country nationals in Italy, having resided there since 2012 and 2013 respectively. The referring court docket puzzled whether or not this residence situation put third-country nationals with the long-term resident standing at an obstacle and thus was incompatible with Article 11(1)(d) Directive 2003/109 and Article 34 CFREU. It additional requested whether or not the situation may also be deemed appropriate with the provisions associated to EU residents (i.e., Articles 18 and 45 TFEU and Article 7(2) Regulation No 492/2011). Lastly, it requested whether or not the prison sanctions relevant to anybody who falsely declares their compliance with the residence situation are appropriate with EU regulation.
3. Judgment
While the referred questions concern totally different classes of individuals who’re doubtlessly put at an obstacle by the Italian regulation, the Courtroom of Justice reformulated and narrowed down the questions. It held that it will solely contemplate the compatibility of the Italian regulation with Article 11(1)(d) Directive 2003/109, learn in mild of Article 34 CFREU. This was as a result of the defendants within the proceedings earlier than the referring court docket had been third-country nationals with a long-term residence standing in Italy (paras 30-33). The problem of EU residents resident in Italy was thus left apart within the judgment.
The Courtroom confirmed that the Italian residence situation of ten years is an illegal type of oblique discrimination which breaches EU regulation (para. 59). Moreover, the Italian prison penalties for a false declaration of compliance with such nationwide residence situations are additionally incompatible with EU regulation (para. 60).
In its judgment, the Courtroom highlighted the importance of the long-term residence standing as one which “corresponds to the very best degree of integration for third-country nationals and justifies them being assured equal therapy with nationals” (para. 46). The Courtroom established that Article 11 prohibits each direct and oblique types of discrimination which “in the end have the identical impact” (para 48). It held that the residence situation impacts primarily non-nationals and thus constitutes oblique discrimination (para. 52). The Courtroom rejected the justification introduced ahead by the Italian Authorities, offering that the essential earnings is made conditional on the participation in a particular help programme which “includes a technique of social {and professional} integration” (see para. 54). The Courtroom discovered that Article 11 comprises an exhaustive checklist of two derogations from the appropriate to equal therapy: (1) the place the applicant doesn’t have their registered or standard place of residence within the Member State, and (2) for advantages that aren’t core advantages (see Article 11(2) and (4)). Every other derogation is due to this fact “in itself” incompatible with Article 11(1)(d) (para. 55). Moreover, the Courtroom defined that the situations {that a} third-country nationwide should fulfil beneath the Directive to acquire the long-term resident standing – authorized and steady residence of 5 years in a Member State displaying adequate sources and medical insurance – already demonstrates a adequate degree of integration to get pleasure from equal entry to social advantages (paras 44 and 57). Member States might not unilaterally change these situations – i.e., by extending the residence requirement from 5 to 10 years as within the current case (para. 58).
4. Remark
The Courtroom’s judgment is a vital affirmation of the appropriate to equal therapy of long-term resident third-country nationals. It’s impressed by its earlier case regulation on free motion and Union citizenship. There, it has discovered that residence situations, although not explicitly disadvantaging non-nationals, nonetheless predominantly exclude them, as such situations could be extra simply happy by nationals (see e.g. C-237/94 O’Flynn, para. 18). That is fairly just because, because the Courtroom has beforehand defined, nationals as a rule reside of their Member State, whereas non-nationals extra typically reside exterior of that Member State (see C‑73/08 Bressol and Others, para. 45). In paragraph 51 of the current judgment, the Courtroom expressly cites C-20/12 Giersch and Others (commented on beforehand right here), a case on the appropriate to equal entry to scholar advantages for youngsters of frontier employees, to search out within the current case that it doesn’t matter {that a} residence situation may additionally apply and negatively have an effect on sure nationals who’ve returned to the Member State after residing overseas (para. 51). CU and ND can thus be learn, on this regard, as a transparent try of an approximation of the long-term residence standing to the standing of Union citizenship.
However this inspirational connection, the Courtroom’s evaluation of the justification introduced ahead by Italy highlights the self-standing nature of EU migration regulation devices. As a substitute of making use of its case regulation on oblique discrimination of EU residents and their members of the family mutatis mutandis to long-term residents, the Courtroom targeted completely on the wording of the Lengthy-Time period Residence Directive to substantiate that the instrument comprises an exhaustive checklist of derogations that can not be prolonged. On the one hand, this speaks to what has been termed an “administrative mindset” within the Courtroom’s interpretation of EU migration regulation, i.e. an interpretation that focuses totally on the wording and construction of the instrument at hand. However, it marks the departure from comparable case regulation within the discipline of free motion.
As a reminder: the Courtroom of Justice usually makes a distinction in free motion regulation between the justifications accessible in circumstances of direct and oblique discrimination. The Courtroom is stricter in circumstances of direct discrimination, the place Member States can solely depend on the specific derogations listed in related major and/or secondary regulation (see e.g. C‑411/20 Familienkasse Niedersachsen-Bremen, para. 68). In circumstances of oblique discrimination, the Member State may additionally invoke different goal justifications (or necessary necessities) which adjust to the precept of proportionality (see e.g. C‑308/14 Fee v United Kingdom, paras 79-80). Within the current case CU and ND, the Courtroom appears to take the previous strategy regardless of establishing that the Italian regulation is not directly discriminatory. In step with the discovering of Advocate Normal Pikamäe in his Opinion (right here, para. 45), the Courtroom said that “Article 11(2) of Directive 2003/109 gives an exhaustive checklist of conditions by which Member States might derogate … Accordingly, exterior these conditions, a distinction in therapy … is, in itself, an infringement of Article 11(1)(d)” (para. 55).
By adopting an interpretation that’s carefully targeted on the wording of the Directive, the Courtroom was capable of forego an evaluation of proportionality. Though, arguably, its evaluation in paragraph 57, has an analogous impact: the Courtroom in the end explains that extending the residence situation from 5 to 10 years goes past what is critical, because the EU legislator has already decided that 5 years of prior residence present that an individual “has put down roots within the nation”. Doctrinally, nonetheless, it is very important spotlight that, following the Courtroom’s interpretation on this case, any length aside from the legislatively decided five-year interval would fail to fulfill the necessities of EU regulation and that any try of the Member States to seek advice from the precept of proportionality on this regard should be rejected.
The Courtroom’s reasoning on this case equally allowed it to dispel the argument that the state of affairs of nationals and long-term residents can be incomparable, as these classes of people would differ of their respective hyperlinks with the Member State. As Advocate Normal Pikamäe had clarified (right here, para. 48, close to C‑303/19 INPS, para. 34), this may negate the very premise upon which the equal therapy ensures within the Lengthy-Time period Residence Directive are based mostly. In adopting the Directive, and the equal therapy ensures contained therein, the EU legislature took the view that the state of affairs of Member State nationals and long-term residents ought to, by definition, be thought-about comparable for the aim of assessing whether or not the latter could also be discriminated in opposition to.
Lastly, the Courtroom’s judgment addresses the query how far Member States might depend on prison regulation devices to sanction people who falsely declare entitlements derived from EU regulation. One ought to keep in mind that, in casu, the defendants in the primary continuing had been confronted with a extreme custodial sentence. Whereas this challenge of enforcement principally falls into the sphere of Member States’ procedural autonomy, the Courtroom used this judgment to remind Italian authorities of the “settled case-law” that prison sanctions can’t be imposed the place they stand accused of getting violated a nationwide rule that itself doesn’t adjust to EU regulation (para. 60, citing C-368/20 Landespolizeidirektion Steiermark, para. 97).
5. Conclusion
In conclusion, this judgment represents a welcome growth that successfully places a halt to a coverage that disenfranchised long-term residents by successfully stripping them of an equal therapy assure, and imposing heavy prison sanctions on them for making an attempt to depend on EU regulation to this finish. The judgment illustrates that the Courtroom of Justice typically attracts inspiration from its case regulation on free motion of EU citizenship. On this case, this inspirational hyperlink allowed the judges in Luxembourg to substantiate that the equal therapy ensures within the Lengthy-Time period Residence Directive additionally cowl oblique discrimination. On the identical time, the judgment can be illustrative of the bounds of this inspirational hyperlink. By adopting an interpretation that carefully probes the wording and construction of the Directive, the Courtroom departs from its case regulation within the context of free motion and EU citizenship. Not like not directly discriminatory measures within the latter context, the Courtroom refutes the notion that not directly discriminatory measures could also be justified secure in these constellations as spelled out within the Lengthy-Time period Residence Directive.
