ASGI and Others (Status of third-country nationals who are long-term residents - EU Blue Card - Judgment) [2021] EUECJ C-462/20 (28 October 2021)

Judgment This request for a preliminary ruling concerns the interpretation of (i) Article 11(1)(d) and (f) of Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents (OJ 2004 L 16, p. 44), (ii) Article 12(1)(e) and (g) 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 (OJ 2011 L 343, p. 1), (iii) Article 14(1)(e) of Council Directive 2009/50/EC of 25 May 2009 on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment (OJ 2009 L 155, p. 17), and (iv) Article 29 of Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (OJ 2011 L 337, p. 9). The request has been made in the context of proceedings between the Associazione per gli Studi Giuridici sull’Immigrazione (ASGI), Avvocati per niente onlus (APN) and the Associazione NAGA – Organizzazione di volontariato per l’Assistenza Socio-Sanitaria e per i Diritti di Cittadini Stranieri, Rom e Sinti, on the one hand, and the Presidenza del Consiglio dei Ministri – Dipartimento per le politiche della famiglia (Presidency of the Council of Ministers – Department for Family Policies, Italy) and the Ministero dell’Economia e delle Finanze (Ministry of Economy and Finance, Italy), on the other, concerning the exclusion of third-country nationals from eligibility for a card granted to families giving access to discounts or price reductions when purchasing goods and services (‘the family card’). Legal context EU law Directive 2003/109 Article 11 of Directive 2003/109, entitled ‘Equal treatment’, provides: ‘1. Long-term residents shall enjoy equal treatment with nationals as regards: … (d) social security, social assistance and social protection as defined by national law; … (f) access to goods and services and the supply of goods and services made available to the public and to procedures for obtaining housing; … 2. With respect to the provisions of paragraph 1, points (b), (d), (e), (f) and (g), the Member State concerned may restrict equal treatment to cases where the registered or usual place of residence of the long-term resident, or that of family members for whom he/she claims benefits, lies within the territory of the Member State concerned. …’ Directive 2009/50 Article 14 of Directive 2009/50, entitled ‘Equal treatment’, states, in paragraph 1 thereof: ‘EU Blue Card holders shall enjoy equal treatment with nationals of the Member State issuing the Blue Card, as regards: … (e) provisions in national law regarding the branches of social security as defined in Regulation (EEC) No 1408/71 [of the Council of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community (OJ, English Special Edition 1971 (II), p. 416)]. The special provisions in the Annex to [Council] Regulation (EC) No 859/2003 [of 14 May 2003 extending the provisions of Regulation (EEC) No 1408/71 and Regulation (EEC) No 574/72 to nationals of third countries who are not already covered by those provisions solely on the ground of their nationality (OJ 2003 L 124, p. 1)] shall apply accordingly; … (g) access to goods and services and the supply of goods and services made available to the public, including procedures for obtaining housing, as well as information and counselling services afforded by employment offices; …’ Directive 2011/95 Article 29 of Directive 2011/95, entitled ‘Social welfare’, states, in paragraph 1 thereof: ‘Member States shall ensure that beneficiaries of international protection receive, in the Member State that has granted such protection, the necessary social assistance as provided to nationals of that Member State.’ Directive 2011/98 Article 12 of Directive 2011/98, entitled ‘Right to equal treatment’, provides: ‘1. Third-country workers as referred to in points (b) and (c) of Article 3(1) shall enjoy equal treatment with nationals of the Member State where they reside with regard to: … (e) branches of social security, as defined in Regulation (EC) No 883/2004 [of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems (OJ 2004 L 166, p. 1, and corrigendum OJ 2004 L 200, p. 1)]; … (g) access to goods and services and the supply of goods and services made available to the public including procedures for obtaining housing as provided by national law, without prejudice to the freedom of contract in accordance with Union and national law; … 2. Member States may restrict equal treatment: … (d) under point (g) of paragraph 1 by: (i) limiting its application to those third-country workers who are in employment; …’ Regulation No 883/2004 Article 1 of Regulation No 883/2004, entitled ‘Definitions’, states: ‘For the purposes of this Regulation: … (z) “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.’ Article 3 of that regulation, entitled ‘Matters covered’, provides, in paragraph 1 thereof: ‘This Regulation shall apply to all legislation concerning the following branches of social security: … (j) family benefits.’ Italian law Article 1(391) of the legge n. 208/2015 – Disposizioni per la formazione del bilancio annuale e pluriennale dello Stato (legge di stabilità 2016) (Law No 208/2015 laying down measures for the drawing up of the annual and multiannual State budget (Stability Law 2016)) of 28 December 2015 (Ordinary Supplement to GURI No 302 of 30 December 2015), in the version applicable to the facts in the main proceedings, provides: ‘A family card shall be introduced with effect from 2016; the family card is for families whose members are Italian nationals or nationals of other countries of the European Union legally residing in Italy and having at least three children of not more than 26 years of age living in the same household. The card shall be issued to families upon request, in accordance with the criteria and rules laid down by decree of the President of the Council of Ministers or of the Minister for Families and Disability, acting together with the Minister for Economy and Finance, which shall be adopted within three months of the entry into force of the present provision. The card entitles the holder to discounts on the purchase of goods and services and to price reductions offered by public bodies and private entities participating in the initiative. Participating bodies and entities offering discounts or reductions greater than those normally offered on the market shall be entitled to refer to their participation in the initiative for promotional and advertising purposes.’ Article 1(391) of that law was implemented by the decreto della Presidenza del Consiglio dei Ministri – Dipartimento per le politiche della famiglia – Rilascio della Carta della famiglia (Decree of the President of the Council of Ministers – Department for Family Policies – Issuing of the family card) of 27 June 2019 (GURI No 203 of 30 August 2019). That decree provides that interested persons are to be issued with the family card by the Department for Family Policies of the Office of the President of the Council of Ministers upon making an application. Applications must be made via a website and applicants must declare that they fulfil the statutory requirements, in particular, that they are Italian nationals or nationals of a Member State of the European Union legally residing in Italy. Public- and private-sector suppliers of goods and services (for instance, traders) may join the initiative voluntarily. To that end, they may enter into an agreement with the Department for Family Policies of the Office of the President of the Council of Ministers. They must undertake to guarantee cardholders a discount of at least 5% off the retail price offered to the general public on certain goods or services which they select themselves. The names of participating suppliers are published on the website. Article 90a of the decreto-legge n. 18/2020 – Misure di potenziamento del Servizio sanitario nazionale e di sostegno economico per famiglie, lavoratori e imprese connesse all’emergenza epidemiologica da COVID-19 (Decree-Law No 18/2020 on measures to strengthen the National Health Service and provide economic assistance to families, workers and undertakings in connection with the COVID-19 health crisis) of 17 March 2020 (GURI No 70 of 17 March 2020), introduced by the legge di conversione n. 27/2020 (Conversion Law No 27/2020) of 24 April 2020 (Ordinary Supplement to GURI No 110 of 29 April 2020), amended, for 2020, the number of dependent children required so as to be eligible for the family card, reducing that number to one. The dispute in the main proceedings and the questions referred for a preliminary ruling By letter of 31 March 2020, ASGI, along with two other associations which are not applicants in the main proceedings, asked the Department for Family Policies of the Office of the President of the Council of Ministers to disapply the legislation concerning the family card in so far as it excludes third-country nationals with a status protected by EU law from eligibility for that card. As that request remained unanswered, the applicants brought an action before the Tribunale di Milano (District Court, Milan, Italy), the referring court, by means of a special procedure applicable to discrimination disputes, seeking that that legislation be disapplied to that extent and an amendment of that legislation be ordered. Before that court, the applicants submit inter alia that the legislation at issue in the main proceedings is contrary to Article 11(1)(d) of Directive 2003/109, since the family card comes, in their view, within the concepts of ‘social security’, ‘social assistance’ and ‘social protection’ referred to in that provision. In their view, that legislation is also contrary to Article 12(1)(e) of Directive 2011/98, read in conjunction with Article 1(z) and Article 3(1)(j) of Regulation No 883/2004, since the family card comes within the concept of ‘family benefits’ referred to in that regulation. Lastly, they state that that legislation is contrary to Article 14(1)(e) of Directive 2009/50, read in conjunction with the same provisions of Regulation No 883/2004 and with Article 29 of Directive 2011/95, because the family card comes within the concept of ‘social welfare’ referred to in that provision. Furthermore, the applicants claim that the legislation at issue in the main proceedings would also be incompatible with EU law if it were to be considered that the issuing of the family card constitutes a service within the meaning of Article 11(1)(f) of Directive 2003/109, Article 12(1)(g) of Directive 2011/98 and Article 14(1)(g) of Directive 2009/50. The defendants in the main proceedings contend that the action should be dismissed, claiming, as regards Directive 2003/109, that the family card does not come within the concepts of ‘social assistance’ or ‘social protection’, but constitutes a measure to support families and to reduce the costs of family services. They submit, in that regard, that the grant of that card does not depend on the income of the beneficiaries and that it is not financed by the public authorities, since the discounts are granted by the suppliers of the goods and services which are subject to the agreement. For similar reasons, they submit that the legislation at issue in the main proceedings is not contrary to Directive 2011/98, since the family card cannot be regarded as a family benefit; nor is it, in their view, contrary to Directive 2009/50 or Directive 2011/95. The referring court states that the outcome of the dispute in the main proceedings depends primarily on whether the family card comes within one of the concepts of ‘social security’, ‘social assistance’, ‘social protection’, ‘social welfare’, ‘access to goods and services’ or ‘family benefits’, referred to in the directives relied on and in Regulation No 883/2004. It states that, while the profit losses linked to the discounts enjoyed by families who hold a family card are still borne by suppliers of the goods and services, whether public or private, which decide to enter into an agreement with the Department for Family Policies of the Office of the President of the Council of Ministers, that department, whose operation is financed from the State budget, processes the applications for the grant of family cards, issues those cards and publishes the names of the public or private entities that have entered into such an agreement. That court states that the questions of law raised by the parties should be decided by giving an autonomous interpretation of EU law. In those circumstances, the Tribunale di Milano (District Court, Milan) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Does Article 11(1)(d) or (f) of [Directive 2003/109] preclude national legislation such as that under consideration [in the main proceedings], which provides for the issue by the government of a Member State to nationals of that Member State or of other Member States of the European Union, but not to third-country nationals who are long-term residents, of a document which confers entitlement to discounts on supplies of goods and services by public and private entities that have entered into an agreement with the government of the Member State in question? (2) Does Article 12(1)(e) of [Directive 2011/98], in conjunction with Article 1(z) and Article 3[(1)](j) of [Regulation No 883/2004], or Article 12(1)(g) of [Directive 2011/98] preclude national legislation such as that under consideration [in the main proceedings], which provides for the issue by the government of a Member State to nationals of that Member State or of other Member States of the European Union, but not to third-country nationals as referred to in Article 3(1)(b) and (c) of [Directive 2011/98], of a document which confers entitlement to discounts on supplies of goods and services by public and private entities that have entered into an agreement with the government of the Member State in question? (3) Does Article 14(1)(e) of [Directive 2009/50], in conjunction with Article 1(z) and Article 3[(1)](j) of [Regulation No 883/2004], or Article 14(1)(g) of [Directive 2009/50], preclude national legislation such as that under consideration [in the main proceedings], which provides for the issue by the government of a Member State to nationals of that Member State or of other Member States of the European Union, but not to third-country nationals holding an “EU Blue Card” within the meaning of [Directive 2009/50], of a document which confers entitlement to discounts on supplies of goods and services by public and private entities that have entered into an agreement with the government of the Member State in question? (4) Does Article 29 of [Directive 2011/95] preclude national legislation such as that under consideration [in the main proceedings], which provides for the issue by the government of a Member State to nationals of that Member State or of other Member States of the European Union, but not to third-country nationals benefiting from international protection, of a document which confers entitlement to discounts on supplies of goods and services by public and private entities that have entered into an agreement with the government of the Member State in question?’ Consideration of the questions referred By its four questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 11(1)(d) or Article 11(1)(f) of Directive 2003/109, Article 12(1)(e) or Article 12(1)(g) of Directive 2011/98, Article 14(1)(e) or Article 14(1)(g) of Directive 2009/50, and Article 29 of Directive 2011/95, must be interpreted as precluding legislation of a Member State which excludes third-country nationals covered by those directives from eligibility for a family card giving access to discounts or price reductions when purchasing goods and services supplied by public or private entities which have entered into an agreement with the government of that Member State. In order to determine, in the first place, whether that exclusion is contrary to the principle of equal treatment as regards the benefits covered by those directives, it must be examined whether the family card comes within one of those benefits. To that end, it must be noted, first of all, that the benefits referred to in Article 12(1)(e) of Directive 2011/98 and Article 14(1)(e) of Directive 2009/50 are those belonging to the various branches of social security as defined by EU law, namely by Regulation No 883/2004. According to the settled case-law of the Court, the distinction between benefits coming within the scope of Regulation No 883/2004 and those which fall outside that scope is based essentially on the constituent elements of each benefit, in particular its purpose and the conditions for its grant, and not on whether it is classified as a social security benefit by national legislation (judgments of 21 June 2017, Martinez Silva , C‑449/16, EU:C:2017:485, paragraph 20 and the case-law cited, and of 2 April 2020, Caisse pour l’avenir des enfants (Child of the spouse of a frontier worker) , C‑802/18, EU:C:2020:269 , paragraph 35 and the case-law cited). The Court has repeatedly held that a benefit may be regarded as a social security benefit in so far as it is granted, without any individual and discretionary assessment of personal needs, to recipients on the basis of a legally defined position and provided that it relates to one of the risks expressly listed in Article 3(1) of Regulation No 883/2004 (judgments of 21 June 2017, Martinez Silva , C‑449/16, EU:C:2017:485, paragraph 20 and the case-law cited, and of 2 April 2020, Caisse pour l’avenir des enfants (Child of the spouse of a frontier worker) , C‑802/18, EU:C:2020:269 , paragraph 36 and the case-law cited). Thus, benefits that are granted automatically to families meeting objective criteria relating in particular to their size, income and capital resources, without any individual and discretionary assessment of personal needs, and that are intended to meet family expenses, must be regarded as social security benefits (judgments of 21 June 2017, Martinez Silva , C‑449/16, EU:C:2017:485, paragraph 22 and the case-law cited, and of 2 April 2020, Caisse pour l’avenir des enfants (Child of the spouse of a frontier worker) , C‑802/18, EU:C:2020:269 , paragraph 37). As to whether a particular benefit comes within 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. Family benefits are thus intended to provide social assistance for workers with dependent families in the form of a contribution by society towards their expenses. In that regard, 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, judgments of 24 October 2013, Lachheb , C‑177/12, EU:C:2013:689 , paragraphs 34 and 35 and the case-law cited; of 21 June 2017, Martinez Silva , C‑449/16, EU:C:2017:485, paragraph 23 and the case-law cited; and of 2 April 2020, Caisse pour l’avenir des enfants (Child of the spouse of a frontier worker) , C‑802/18, EU:C:2020:269 , paragraph 38). Although, as the applicants submit, the family card is intended for families and has been classified by the Italian legislature as a ‘measure to support large families’, and the issue of that card, the conclusion of agreements with the suppliers of the goods or services concerned and the publication of their names are ensured and financed by the State, it appears that the purpose of that card is to give access to discounts or price reductions granted by those suppliers, which bear the cost thereof and whose participation in that initiative for families is voluntary. Therefore, as the Italian Government and the European Commission submit, the family card is not a benefit which is a public contribution in the form of a contribution by society towards family expenses and does not consequently come within the scope of Regulation No 883/2004. It follows that Article 12(1)(e) of Directive 2011/98 and Article 14(1)(e) of Directive 2009/50 must be interpreted as not precluding legislation such as that at issue in the main proceedings. Next, unlike Directives 2011/98 and 2009/50, Directive 2003/109 refers to national law in order to determine whether a given social benefit comes within those which it covers, since Article 11(1)(d) of that directive provides for equal treatment of long-term residents and nationals as regards social security, social assistance and social protection ‘as defined by national law’. In that regard, it must be noted that, when the EU legislature has made an express reference to national law, as in Article 11(1)(d) of Directive 2003/109, it is not for the Court to give the terms concerned an autonomous and uniform definition under EU law. However, the absence of such an autonomous and uniform definition under EU law of the concepts of ‘social security’, ‘social assistance’ and ‘social protection’ for the purposes of that directive and the reference to national law do not mean that the Member States may undermine the effectiveness of that directive when applying the principle of equal treatment provided for in that provision (see, to that effect, judgment of 24 April 2012, Kamberaj , C‑571/10, EU:C:2012:233 , paragraphs 77 and 78). In the present case, it does not however appear that the exclusion of third-country nationals with long-term resident status, under Directive 2003/109, from eligibility for the family card would be liable to undermine the effectiveness of that directive as regards equal treatment in the field of social security, social assistance and social protection. Therefore, in so far as that card does not, according to Italian legislation, come within the concepts of ‘social security’, ‘social assistance’ or ‘social protection’, which is for the referring court to ascertain, Article 11(1)(d) of Directive 2003/109 does not preclude legislation such as that at issue in the main proceedings. As regards Directive 2011/95, Article 29 thereof provides that Member States are to ensure that beneficiaries of international protection receive, in the Member State that has granted such protection, the necessary social assistance as provided to nationals of that Member State. Thus, that directive requires that the level of social benefits paid to beneficiaries of international protection by the Member State which granted that protection be the same as that offered to nationals of that Member State (see, to that effect, judgment of 21 November 2018, Ayubi , C‑713/17, EU:C:2018:929 , paragraph 25). While Directive 2011/95 does not provide any details as to the benefits which the beneficiaries of social assistance must receive under Article 29 thereof, it is apparent from settled case-law that the concept of ‘social assistance’ refers to all assistance schemes established by the public authorities, whether at national, regional or local level, to which recourse may be had by an individual who does not have resources sufficient to meet his or her own basic needs and those of his or her family (see, by analogy, judgments of 11 November 2014, Dano , C‑333/13, EU:C:2014:2358 , paragraph 63, and of 15 September 2015, Alimanovic , C‑67/14, EU:C:2015:597 , paragraph 44). In the present case, it is for the referring court to determine whether, in the light of that definition, the family card constitutes social assistance for the purposes of Article 29 of Directive 2011/95. As regards, in the second place, the determination of whether the exclusion of third-country nationals covered by Directives 2003/109, 2011/98 and 2009/50 from eligibility for the family card is contrary to the principle of equal treatment provided for in Article 11(1)(f) of Directive 2003/109, Article 12(1)(g) of Directive 2011/98 and Article 14(1)(g) of Directive 2009/50, it must be held that those provisions provide for equal treatment of third-country nationals covered by those directives with nationals of the host Member State as regards access to goods and services and the supply of goods and services offered to the public. It is apparent from the information provided by the referring court that the purpose of the family card is to allow access to goods and services and the supply of goods and services offered to the public accompanied by a discount or a price reduction. Therefore, the exclusion of third-country nationals covered by those directives from eligibility for the family card, in so far as it deprives them of access to those goods and services and their supply on the same conditions as those enjoyed by Italian nationals, constitutes unequal treatment contrary to Article 11(1)(f) of Directive 2003/109, Article 12(1)(g) of Directive 2011/98 and Article 14(1)(g) of Directive 2009/50. It should be noted in that regard that it is not apparent from the documents in the case file or, in particular, from the written observations submitted by the Italian Government that that government has stated clearly that it intended to rely on the derogations referred to in Article 11(2) of Directive 2003/109 and Article 12(2)(d)(i) of Directive 2011/98 (see, to that effect, judgment of 21 June 2017, Martinez Silva , C‑449/16, EU:C:2017:485, paragraph 29 and the case-law cited). In the light of all the foregoing considerations, the answer to the questions referred is that: – Article 12(1)(e) of Directive 2011/98 and Article 14(1)(e) of Directive 2009/50 must be interpreted as not precluding legislation of a Member State which excludes third-country nationals covered by those directives from eligibility for a card granted to families giving access to discounts or price reductions when purchasing goods and services supplied by public or private entities which have entered into an agreement with the government of that Member State; – Article 11(1)(d) of Directive 2003/109 must be interpreted as not precluding such legislation either, in so far as such a card does not come, according to the national legislation of that Member State, within the concepts of ‘social security’, ‘social assistance’ or ‘social protection’; – Article 29 of Directive 2011/95 must be interpreted as precluding such legislation if that card comes within an assistance scheme established by the public authorities to which recourse may be had by an individual who does not have resources sufficient to meet his or her own basic needs and those of his or her family; and – Article 11(1)(f) of Directive 2003/109, Article 12(1)(g) of Directive 2011/98 and Article 14(1)(g) of Directive 2009/50 must be interpreted as precluding such legislation. Costs Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable. On those grounds, the Court (Tenth Chamber) hereby rules: Article 12(1)(e) 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, and Article 14(1)(e) of Council Directive 2009/50/EC of 25 May 2009 on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment, must be interpreted as not precluding legislation of a Member State which excludes third-country nationals covered by those directives from eligibility for a card granted to families allowing access to discounts or price reductions when purchasing goods and services supplied by public or private entities which have entered into an agreement with the government of that Member State. Article 11(1)(d) of Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents, must be interpreted as not precluding such legislation either, in so far as such a card does not come, according to the national legislation of that Member State, within the concepts of ‘social security’, ‘social assistance’ or ‘social protection’. Article 29 of Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted, must be interpreted as precluding such legislation if that card comes within an assistance scheme established by the public authorities to which recourse may be had by an individual who does not have resources sufficient to meet his or her own basic needs and those of his or her family. Article 11(1)(f) of Directive 2003/109, Article 12(1)(g) of Directive 2011/98 and Article 14(1)(g) of Directive 2009/50 must be interpreted as precluding such legislation. [Signatures] * Language of the case: Italian. © European Union The source of this judgment is the Europa web site. 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