Judgment;Abstract — ECLI:EU:C:2024:636
Date: 2024-07-29
Language of the case: Italian
Court formation: Grand Chamber
Subject matter: Asylum policy;Free movement of workers;Anti-discrimination;Area of freedom, security and justice;Fundamental rights;Non-discrimination on grounds of nationality;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Italy

Anonymised version 
Translation C-112/22 – 1 
Case C-112/22 
Request for a preliminary ruling 
Date lodged: 
17 February 2022 
Referring court: 
Tribunale di Napoli (Italy) 
Date of the decision to refer: 
16 February 2022 
Defendant: 
CU 
  
… 
TRIBUNALE DI NAPOLI (District Court, Naples) 
SEZIONE DEL GIUDICE PER LE INDAGINI PRELIMINARI (Chamber 
of the judge responsible for preliminary investigations) 
UFFICIO IX (Office IX) 
The judge conducting the preliminary hearing, … 
… [procedure] 
WHEREAS 
… [procedure] 
Accused: CU … [details of the accused person and legal representative] 
Victim: Ministry of Economy and Finance … . [legal representative] 
EN 
REQUEST FOR A PRELIMINARY RULING OF 16. 2. 2022 – CASE C-112/22 
 
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1. MAIN PROCEEDINGS 
(Having regard to Article 94 of the Rules of Procedure and the first paragraph of 
Point 22 of the Recommendations) 
1. Charge 
Offence provided for in and punishable under Article 7(1) of Decreto-legge 28 
gennaio 2019 n. 4, convertito con modificazioni dalla legge 28 marzo 2019 n. 
26, (Decree-Law No 4 of 28 January 2019, converted into law and amended by 
Law No 26 of 28 March 2019), for having, by claiming basic income by an 
application signed on 27 August 2020, falsely certified that the condition relating 
to ten years’ residence in Italy at the time of the application was satisfied, in 
particular by having as a first residence that of 29 March 2012 in Naples, …, thus 
unduly acquiring sums totalling EUR 3 414.40. 
… 
2. Succinct presentation of the proceedings 
* By request for indictment filed on 1 December 2021, the Office of the Public 
Prosecutor at the District Court, Naples, …, requested that the accused be 
committed for trial on the following charge. 
The judge conducting the preliminary hearing set the preliminary hearing for 
8 February 2022. 
… [procedure] 
At today’s hearing, … [procedure] the judge referred the matter to the Court of 
Justice for a preliminary ruling on interpretation. 
2. NATIONAL LAW 
(Having regard to Article 94 of the Rules of Procedure and the second paragraph 
of Point 22 of the Recommendations) 
1 Provisions of national law relied on 
Article 7(1) of Decreto-legge 28 gennaio 2019 n. 4, convertito con 
modificazioni dalla legge 28 marzo 2019 n. 26, (Decree-Law No 4 of 
28 January 2019, converted into law and amended by Law No 26 of 28 March 
2019) 
Article 7 (penalties) stipulates in paragraph 1: Save where the act constitutes a 
more serious criminal offence, any person who, for the purpose of obtaining 
unduly the benefit referred to in Article 3, makes or uses declarations or 
documents which are false or certify matters which are untrue, or fails to supply 
CU 
 
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the information required, shall be liable to a term of imprisonment of two to six 
years. 
The scope of the rule of criminal law must be analysed in close conjunction with 
Article 2(1)(a) of that Decree-Law. 
Article 2 (beneficiaries) provides, in paragraph 1: Basic income shall be granted 
to households who, at the time the application is made and throughout the period 
for which the benefit is paid, satisfy the following conditions cumulatively: (a) 
with regard to the conditions relating to nationality, permanent residence or 
residence, the person claiming the benefit must cumulatively: (1) hold Italian 
nationality or that of a country forming part of the European Union, or be a 
family member thereof, as defined in Article 2(1) (b) of Legislative Decree No 30 
of 6 February 2007, who has the right of residence or permanent residence, or is 
a third-country national holding a long-term resident’s EU residence permit; (2) 
be resident in Italy for at least ten years, the final two of which, as at the time 
the application is made and throughout the period for which the benefit is paid, 
must be consecutive. 
Those provisions, read in conjunction, cover the criminal act imputed to the 
accused who, on 27 August 2020, claimed basic income, certifying that the 
condition relating to residence in Italy for ten years at the time of the application 
had been satisfied, whilst she had registered her first residence on 29 March 2012. 
Nor can it be argued that the actual nature of the residence was not investigated 
(and thus the possibility that she was already resident before that date even though 
it is not apparent from the population registers) because … CU states that she 
arrived in Italy in February 2012 … 
2 Relevant national case-law 
The offence of making a false declaration of ten year’s residence is not the subject 
of a maxim of any judgments of the Corte di Cassazione (Court of Cassation) and 
no precedents relevant to the decision have been found in the case-law on the 
substance. 
The precedents in the case-law of the Corte di Cassazione and the Corte 
Costituzionale respectively (a) on the interpretation of the condition relating to 
intent to obtain the benefit, which must attach to a false declaration within the 
meaning of Article 7 of Decree-Law 4/2019, (b) on the declared 
unconstitutionality of the regional law of the Region of Lombardy in so far as it 
made access to public housing subject to residence of over five years, and (c) on 
the deemed constitutionality of Article 2(1)(a) of Decree-Law 4/2019, in so far as 
it excludes from the beneficiaries holders of a single work permit and residence 
permit for at least one year, are set out below. 
(a) Corte di Cassazione, Third Chamber, Judgment No 44366 of 
15 September 2021 … 
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False statements of facts set out in a self-declaration to obtain ‘basic income’ or 
failures, even partial, to supply information required, where it is instrumental in 
obtaining a benefit to which there would otherwise be no entitlement, fall within 
the offence referred to in Article 7 of Decree-Law No 4 of 28 January 2019, 
converted into law and amended by Law No 26 of 28 March 2019. (In its grounds, 
the Corte di Cassazione clarified that by the expression ‘for the purpose of 
obtaining the benefit unduly’, it intended to characterise, in specific terms, the 
danger arising from the false or incomplete nature of declarations, by limiting the 
relevance thereof solely to cases where the intent of the agent was to obtain, 
though them, an undue benefit). 
(b) Corte Costituzionale, judgment No 44 of 28 January 2020 
In so far as it lays down the condition relating to residence (or employment) of 
more than five years in the region as a condition for access to public housing, 
Article 22(1)(b) of Lombardy Regional Law No 16 of 2016 is contrary both to the 
principles of equality and reasonableness laid down in the first paragraph of 
Article 3 of the Constitution, in that it gives rise to unreasonable unequal 
treatment to the detriment of those who, whether Italian nationals or foreign 
nationals, do not satisfy it, and the principle of substantive equality laid down in 
the second paragraph of Article 3 of the Constitution, in that that condition is 
contrary to the social function of public housing. 
(c) Corte Costituzionale, judgment No 19 of 25 January 2022 
In so far as they exclude from basic income holders of a single work permit 
provided for in Article 5(8)(1) of Legislative Decree No 286/1998, or a residence 
permit for a least one year provided for in Article 41 of Legislative Decree 
No 286/1998 or a residence permit of at least one year provided for in Article 4 of 
Legislative Decree No 286/1998, the issues relating to the constitutionality of 
Article 2(1)(a)(1) of Decree-Law No 4 of 2019 (on urgent measures concerning 
basic income and pensions), converted into law and amended by Law No 26 of 
2019, are unfounded. The basic income is not a simple measure to fight poverty 
but pursues different and more complex objectives of active labour policy and 
social integration. Since its time frame is not short, the entitlement to reside 
permanently in Italy is not a condition unrelated to the raison d'être of the benefit 
provided for. 
3. PROVISIONS OF EUROPEAN UNION LAW 
(Having regard to Article 94 of the Rules of Procedure and Point 23 of the 
Recommendations) 
Article 18 of the Treaty on the Functioning of the European Union 
Article 45 on the Treaty on the Functioning of the European Union 
CU 
 
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Article 7(2) of EU Regulation 492/11 
Article 11(1)(d) of EU Directive 2003/109 
Article 29 of EU Directive 2011/95 
Article 34 of the Charter of Fundamental Rights of the European Union 
Articles 30 and 31 of the Social Charter of the Council of Europe 
4. SUCCINCT PRESENTATION OF THE GROUNDS FOR THE 
REFERENCE FOR A PRELIMNARY RULING 
(Having regard to Article 94 of the Rules of Procedure and the third paragraph of 
Point 22 of the Recommendations) 
REFERENCE FOR INTERPRETATION: 
There is doubt as to whether the national legislation providing for residence for 
ten years (the final two of which must be consecutive) in order to have access to a 
welfare measure such as basic income, which is intended to ensure a minimum 
level of subsistence, is contrary to the principles laid down in Community law in 
the abovementioned rules in that it provides for different treatment for third-
country nationals, even those having a long-term residence permit, compared to 
that accorded to nationals residing in national territory. 
That is because the benefit made up of the basic income falls within one of the 
three categories referred to in Article 11(1)(d) of Directive 2003/109 (social 
security, social assistance and social protection as defined by national law). 
Furthermore, paragraph 4 of that article is not applicable as it does not appear that 
the Italian State, when it adopted the legislation on basic income, set out its 
intention to limit equal treatment in respect of social assistance and social 
protection to core benefits. In any event, however, that exclusion would not have 
applied since Article 1 of the Decree-Law No 4 of 2019 stipulates, in the final 
sentence of paragraph 1, that basic income constitutes an essential level of benefits 
within the limits of available resources. 
In addition, in the preliminary ruling proceedings brought by the Tribunale di 
Bolzano (District Court, Bolzano), the Court of Justice held, in its judgment of 
24 April 2012 (Case C-571/10), that the legislation of the Autonomous Province 
of Bolzano on housing benefit, was, in so far as it provided for less favourable 
treatment for long-term resident foreign nationals not belonging to the European 
Union, contrary to Community law (in particular to Article 1(1)(d) of Directive 
2003/109, which provides for equal treatment in respect of social security, social 
assistance and social protection). 
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The Court of Justice has also included among the social advantages which must be 
granted also to workers of other Member States under Article 7(2) of Regulation 
492/[2]0[1]1 on freedom of movement for workers the Belgian ‘minimex’, a 
social assistance benefit similar to the Italian basic income (judgments in Cases 
249/83 and 122/84). 
On the other hand, there is no ruling by the Court of Justice on the rule relevant 
rule in the proceedings before this court. 
The interpretation of European Union law is relevant for the purposes of the 
decision since disapplication of the provision requiring ten years’ residence for 
access to basic income, on the ground that it is contrary to EU law, would mean 
that the assumption that the declaration of the accused is criminally relevant 
would cease to exist. The inapplicability of the rule concerning the obligation to 
declare ten year’s residence would make the untrue content of the declaration 
irrelevant for the purposes of the rule of criminal law laid down in Article 7(1) of 
Legislative Decree No 4/2019. It could be regarded as a case of abolitio criminis, 
with application of the principle of retroactivity favourable to the rule of criminal 
law. 
Therefore, the ruling of this court could be converted from a sentence of two to six 
years’ imprisonment (for having received approximately EUR 3 000 in benefit) to 
an acquittal on the ground that the act is not a criminal offence. 
The answer to the question of interpretation is particularly is particularly relevant 
since, as stated above, the accused admitted to having entered Italy less than ten 
years before applying for the benefit and thus this court is prevented from putting 
forward arguments concerning the actual nature of the residence. 
5. ESSENTIAL ARGUMENTS OF THE PARTIES IN THE MAIN 
PROCEEDINGS 
(Having regard to Article 94 of the Rules of Procedure and Point 23 of the 
Recommendations) 
The parties, …, support the initiative of this court to refer the following questions 
to the Court of Justice for a preliminary ruling since they consider that there is 
well-founded doubt as to whether the provisions of national law at issue in the 
proceedings are contrary to the provisions of Community law referred to. 
6. POINT OF VIEW OF THE REFERRING COURT 
(Having regard to Article 94 of the Rules of Procedure and Point 24 of the 
Recommendations) 
CU 
 
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The provision relating to ten years’ residence (the final two of which must be 
consecutive) is detrimental to non-EU nationals who enjoy specific protection 
under EU law, such as long-term residents, who can acquire a permanent right of 
residence in an EU State after residing for five years in a host Member State, such 
as Italy (EU Directive 2003/109, Article 4). The same applies to Italians who 
return to Italy after a period of residence in another EU State (judgment in Case 
C-370/90). Also discriminated against are holders of refugee status, whom the EU 
States are required, under Article 29 of EU Directive 2011/95, to grant the 
necessary social assistance under the same conditions as nationals of the EU State 
concerned. 
However, it does not appear that a similar limitation is laid down in respect of any 
of the similar social assistance measures introduced in other European countries. 
In an explanatory circular of 14 April 2020, the Ministry of Labour even deemed 
it necessary to express its view to request the population registry services to ask 
the beneficiaries of basic income to demonstrate the existence of ten-year’s 
residence (and two years’ consecutive residence) which is actual, or can be proved 
just in fact, contrary to the public registers, pointing out, however, that 
establishment of residence by population register alone can itself be a source of 
manipulation. The circular even recalls judgment No 44 of the Corte 
Costituzionale of 2020, stating that the Consulta (Council) set very strict limits on 
the possibility of making access to core subsidies or support subject to satisfaction 
of overly stringent residence conditions. 
7. REFERRAL OF THE QUESTIONS TO THE COURT OF JUSTICE FOR 
A PRELIMINARY RULING 
(Having regard to Article 94 of the Rules of Procedure and Point 26 of the 
Recommendations) 
On those grounds, the Tribunale di Napoli, having regard to Article 267 TFEU, 
rules as follows: 
the following questions are referred to the Court of Justice of the European Union 
for a preliminary ruling:  
(1) Does European Union law, and in particular Article 18 of the Treaty 
on European Union, Article 45 of the Treaty on European Union, 
Article 7(2) of EU Regulation 492/11, Article 11(1)(d) of EU Directive 
2003/109, Article 29 of EU Directive 2011/95, Article 34 of the 
Charter of Fundamental Rights of the European Union and Articles 30 
and 31 of the Social Charter of the Council of Europe, preclude 
national legislation such as that contained in Article 7(1) of Decree-
Law No 4 of 28 January 2019, converted into law and amended by 
Law No 26 of 28 March 2019, read in conjunction with 
Article 7(2)(1)(a) thereof, in so far as it makes access to basic income 
REQUEST FOR A PRELIMINARY RULING OF 16. 2. 2022 – CASE C-112/22 
 
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subject to the condition relating to residence in Italy for at least ten 
years (the final two of which, as at the time the application is made and 
for the entire duration of the benefit, must be consecutive), thus 
affording treatment to Italian nationals, EU nationals with a right of 
residence or permanent residence, or non-EU long-term residents who 
have been resident for less than ten years or for ten years, the final two 
of which were not consecutive, which is less favourable than that 
accorded to the same categories who have been resident for ten years, 
the final two of which were consecutive? 
If the answer to the previous question is in the affirmative: 
(2) Does European Union law, and in particular Article 18 of the Treaty 
on European Union, Article 45 of the Treaty on European Union, 
Article 7(2) of EU Regulation 492/11, Article 11(1)(d) of EU Directive 
2003/109, Article 29 of EU Directive 2011/95, Article 34 of the 
Charter of Fundamental Rights of the European Union and Articles 30 
and 31 of the Social Charter of the Council of Europe, preclude 
national legislation such as that contained in Article 7(1) of Decree-
Law No 4 of 28 January 2019, converted into law and amended by 
Law No 26 of 28 March 2019, read in conjunction with 
Article 7(2)(1)(a) thereof, in so far as it affords different treatment to 
long-term residents, who can acquire a permanent right of residence in 
an EU State after residing for five years in the host Member State, and 
long-term residents who have been resident for ten years, the final two 
of which were consecutive? 
(3) Does European Union law, and in particular Article 18 of the Treaty 
on European Union, Article 45 of the Treaty on European Union, 
Article 7(2) of EU Regulation 492/11, Article 11(1)(d) of EU Directive 
2003/109 and Article 29 of EU Directive 2011/95, preclude national 
legislation such as that contained in Article 7(1) of Decree-Law No 4 
of 28 January 2019, read in conjunction with Article 7(2)(1)(a) thereof, 
which requires Italian nationals, EU nationals and non-EU nationals to 
be resident for ten years (the final two of which must be consecutive) 
in order to access basic income benefit? 
(4) Does European Union law, and in particular Article 18 of the Treaty 
on European Union, Article 45 of the Treaty on European Union, 
Article 7(2) of EU Regulation 492/11, Article 11(1)(d) of EU Directive 
2003/109, Article 29 of EU Directive 2011/95, Article 34 of the 
Charter of Fundamental Rights of the European Union and Articles 30 
and 31 of the Social Charter of the Council of Europe, preclude 
national legislation such as that contained in Article 7(1) of Decree-
Law No 4 of 28 January 2019, read in conjunction with 
Article 7(2)(1)(a) thereof, in so far as it, for the purposes of obtaining 
basic income benefit, requires Italian nationals, EU nationals and non-
CU 
 
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EU nationals to declare that they have resided in Italy for ten years, the 
final two of which must be consecutive, subjecting false declaration to 
severe consequences of criminal relevance? 
CONCLUDING REMARKS 
ON THOSE GROUNDS 
Stays proceedings pending a ruling of the Court of Justice … [procedure] 
… [instructions to the registry for forwarding the present order to the Court of 
Justice] 
… [indication of the details of the court and the parties] 
Naples, 16 February 2022 … 
… [signatures]