Judgment;Summary — ECLI:EU:C:2021:894
Date: 2021-10-28
Language of the case: Italian
Court formation: Tenth Chamber
Subject matter: Asylum policy;Social security for migrant workers;Area of freedom, security and justice
Procedure: Reference for a preliminary ruling
Origin: Italy

Translation C-462/20 – 1 
Case C-462/20 
Request for a preliminary ruling 
Date lodged:  
25 September 2020 
Referring court:  
Tribunale di Milano (Italy) 
Date of the decision to refer:  
14 September 2020 
Applicants:  
Associazione per gli Studi Giuridici sull’Immigrazione (ASGI) 
Avvocati per niente onlus (APN) 
Associazione NAGA ‒ Organizzazione di volontariato per 
l’Assistenza Socio-Sanitaria e per i Diritti di Cittadini Stranieri, 
Rom e Sinti 
Defendants:  
Presidenza del Consiglio dei Ministri – Dipartimento per le 
politiche della famiglia 
Ministero dell’Economia e delle Finanze 
  
TRIBUNALE DI MILANO ‒ Sezione Lavoro 
(DISTRICT COURT, MILAN – Employment Division) 
[…] 
In the proceedings between: 
̶ ASGI ‒ Associazione per gli Studi Giuridici sull’Immigrazione 
̶ APN ‒ Avvocati per niente onlus 
EN 
REQUEST FOR A PRELIMINARY RULING OF 14. 9. 2020 – CASE C-462/20 
 
2  
̶ ASSOCIAZIONE NAGA ‒ Organizzazione di volontariato per l’Assistenza 
Socio-Sanitaria e per i Diritti di Cittadini Stranieri, Rom e Sinti 
[…] 
applicants 
v 
̶ Presidenza del Consiglio dei Ministri ‒ Dipartimento per le politiche della 
famiglia  
̶ Ministero dell’economia e delle finanze 
both represented by the Avvocatura dello Stato (State Legal Service), […] 
defendants 
[…] 
WHEREAS 
1 – National law and the facts of the case 
Article 1(391) of Law No 208/2015, as amended by Law No 145/2018, 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 at home. A family card shall be issued to 
families upon request, in accordance with the criteria and rules laid down by 
decree of the Presidente del Consiglio dei ministri (President of the Council of 
Ministers) or of the Ministro per la famiglia e le disabilità (Minister for Families 
and Disability), acting together with the Ministro dell’economia e delle finanze 
(Minister for the Economy and Finance), which shall be issued within three 
months of the entry into force of the present provision. The family 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 scheme. 
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 scheme for promotional and advertising purposes.’ 
The abovementioned provision was implemented by government regulation […] 
of 27 June 2019. That regulation provides that applicants are to receive the ‘family 
card’ from the Dipartimento per le politiche della famiglia della Presidenza del 
Consiglio dei Ministri (Department for Family Policies of the Office of the 
President of the Council of Ministers) on completing an application in due form. 
Applications are made via a website and applicants must declare that they fulfil 
the statutory requirements, in particular, that they are Italian nationals or nationals 
ASGI AND OTHERS 
 
3 
of [OR. 2] a Member State of the European Union legally residing in Italy. The 
website has recently gone live […] The Avvocatura dello Stato (State Legal 
Service) has confirmed that the website is managed by Sogei s.p.a., an in-house 
company entirely controlled by the Ministero dell’economia (Ministry of the 
Economy). 
Public and private-sector suppliers of goods and services (traders, for example) 
may join the scheme 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 ‘family card’ holders a 
discount of at least 5% off the normal price on certain goods and services which 
they select themselves. The names of participating suppliers are published on the 
abovementioned website. 
Article 90a of Legislative Decree No 18/2020, inserted by Conversion Law 
No 27/2020, provides: ‘For 2020, the family card referred to in Article 1(391) of 
Law No 208 of 28 December 2015 shall be available to families having at least 
one dependent child.’ Article 90a was adopted along with a number of other 
measures to counter the economic and social effects of the Covid-19 pandemic. It 
reduced the requirements regarding dependent children but left unchanged the 
other characteristics of the ‘family card’, in particular, the requirements relating to 
the applicant’s nationality. In any event, the parties have confirmed that, as a 
matter of fact, third-country nationals are not currently permitted to apply for a 
‘family card’. 
On 31 March 2020, ASGI, along with two other associations that are not 
applicants in this case, sent a letter to the Department for Family Policies of the 
Office of the President of the Council of Ministers. In that letter, it complained 
that the rules governing the ‘family card’, as described above, discriminate, on 
grounds of nationality or ethnicity, against third-country nationals and infringe 
Article 11 of Directive 2003/109/EC, Article 24 of Directive 2004/38/EC, 
Article 29 of Directive 2011/95/EU and Article 12 of Directive 2011/98/EU. 
ASGI accordingly requested that the law instituting the ‘family card’ be 
disapplied in so far as it precluded the card from being issued to third-country 
nationals in the legal positions protected by the said directives. 
ASGI also requests that Article 90a of Legislative Decree No 18/2020 be 
interpreted as removing all requirements other than that of having at least one 
dependent child. 
That letter remained unanswered. Therefore, the applicant associations issued 
before this court special proceedings relating to discrimination disputes. 
2 ‒ The claims of the applicant associations 
The applicant associations allege that the national rules governing the ‘family 
card’ are inconsistent with the following provisions of EU law in that they 
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preclude the card from being issued to certain categories of third-country 
nationals: 
I. Article 11(1)(d) of Directive 2003/109/EC, in that, in the applicants’ opinion, the 
‘family card’ comes within the scope of the concepts of ‘social security, social 
assistance and social protection’ contemplated by that provision. In addition, the 
Italian State has not expressly exercised its right to derogate under Article 11(4) of 
the directive. It therefore follows that the exclusion from entitlement to the 
‘family card’ of third-country nationals who are long-term residents is unlawful. 
II. Article 12(1)(e) of Directive 2011/98/EU, in conjunction with Article 1(z) and 
Article 3[(1)](j) of Regulation (EC) No 883/2004, in that, in the applicants’ 
opinion, the ‘family card’ is a ‘family benefit’ within the meaning of Regulation 
(EC) No 883/2004. As regards family benefits, there is a right of equal treatment 
as between nationals of the Member State and third-country nationals, as referred 
to in Article 3(1)(b) and (c) of Directive 2011/98/EU. The manner in which the 
benefit is funded is irrelevant in this regard: according to the applicants, it falls 
within the scope of the independent EU law concept of ‘social security’. It 
therefore follows that the exclusion from entitlement to the ‘family card’ of third-
country nationals who are holders of a single permit as provided for by Directive 
2011/98/EU is unlawful. 
[OR. 3] 
III. Article 14(1)(e) of Directive 2009/50/EC, in conjunction with Article 1(z) and 
Article 3[(1)](j) of Regulation (EC) No 883/2004, to be understood as being 
referred to by virtue of Article 90 thereof, which replaced the previous references 
to Regulation (EEC) No 1408/71. This is for the same reasons, and has the same 
consequences as outlined in point II above, in so far as concerns third-country 
nationals holding an ‘EU Blue Card’. The reference, in the application, to 
Directive 2000/50/EC must be taken to be a typographical error, immediately 
identifiable as such because of the mention of ‘highly qualified foreigners’. 
IV. Article 24(1) of Directive 2004/38/EC, in that, in the applicants’ opinion, the 
benefit in question falls within the scope of ‘social security’, which in turn falls 
within the sphere of application of the Treaties. It follows that the exclusion of 
third-country nationals who are family members falling within the scope of 
Directive 2004/38/EC is unlawful. 
V. Article 29 of Directive 2011/95/EU, in that, in the applicants’ opinion, the ‘family 
card’ falls within the scope of the concept of ‘social assistance’ referred to therein. 
The applicants state that Italy has not exercised its option to limit equal treatment 
to core benefits, as provided for in Article 29(2) of Directive 2011/95/EU. Indeed, 
Article 27(1) of Legislative Decree No 251/2007 provides that: ‘Holders of 
refugee status and those granted subsidiary protection status shall be entitled to 
the same treatment as Italian nationals in so far as concerns social assistance and 
health assistance.’ The wording of that provision was not amended by Legislative 
ASGI AND OTHERS 
 
5 
Decree No 18/2014, which transposed Directive 2011/95/EU. It follows that the 
exclusion from entitlement to the ‘family card’ of third-country nationals 
benefiting from international protection is unlawful. 
At the hearing, the legal representative of the applicant associations submitted that 
the inconsistencies with EU law described in points I, II and III above would also 
occur if the issue of a ‘family card’ were to be regarded as a ‘service’ within the 
meaning of Article 11(1)(f) of Directive 2003/109/EC, Article 12(g) of Directive 
2011/98/EU and Article 14(1)(g) of Directive 2009/50/EC. 
The applicants submit that all the directives mentioned, in so far as is relevant to 
the present case, contain rules that are clear, precise and unequivocal and that 
those rules are therefore directly applicable in national law. 
The applicants therefore request this court to disapply the national legislation in 
question to the extent that is excludes from the benefit referred to as a ‘family 
card’ the abovementioned categories of third-country nationals. They accordingly 
ask the court to order the defendant authorities to amend the government 
regulation issued by Decree of 27 June 2019 and to permit such individuals to 
obtain a ‘family card’. 
3. The defence of the State Legal Service 
The State legal Service […] [procedural matters] has expressed its view on the 
merits of the applicants’ claims. 
In so far as concerns the amendment made by Legislative Decree No 18/2020, the 
defendant authorities submit that it relates only to the number of family members 
and of dependent children required in order to qualify for a ‘family card’. No 
change was made with regard to the nationality requirements. 
As regards the inconsistencies with EU law alleged by the applicants, the State 
Legal Service makes the arguments that are summarised as follows: 
I. Regarding the inconsistency with Directive 2003/109/EC, the State Legal Service 
argues that the ‘family card’ does not fall within the concept of ‘social assistance 
and social protection’. In its view, it is a ‘measure to provide support to families’, 
‘a measure to reduce the cost of services to families’. Nonetheless, it does not take 
into account the recipients’ income. Nor are they benefits paid for [OR. 4] by the 
State, since the discounts are offered by the suppliers of goods and services which 
have joined the scheme. 
II For similar reasons, the State Legal Service disputes any inconsistency with 
Directive 2011/98/EU. It is not a ‘family benefit’ because no contribution from 
public funds is used to help with the cost of bringing up children. That view is 
confirmed by the fact that the European Commission has already initiated 
infringement proceedings (No 2100/2019) for Italy’s failure to transpose Directive 
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2011/[9]8/EU with regard to the entitlement to social security benefits of third-
country workers who are long-term residents. The Commission did not include the 
‘family card’ among the social security benefits from which third-country workers 
were unlawfully excluded. 
III. The State Legal Service argues that the national legislation is not inconsistent with 
Directive 2009/50/EC for the same reasons as are set out in point II above. 
IV. According to the State Legal Service, the reference to Article 24 of Directive 
2004/38/EC is irrelevant, since, if one of the parents is a national of an EU 
Member State, that parent will be able to obtain a ‘family card’ for the benefit of 
all other family members, regardless of their nationality. 
V. The State Legal Service also argues that there is no inconsistency with Article 29 
of Directive 2011/95/EU. For the reasons given in points I and II above, the 
‘family card’ is not a ‘social assistance’ benefit. Moreover, according to the State 
Legal Service, Article 29 of Directive 2011/95/EU does not contain directly 
applicable provisions, since it is not sufficiently precise. 
[…] 
[other purely internal matters] For those reasons, the State Legal Service requests 
that the applicants’ claims be dismissed. 
4. The need to make a reference for a preliminary ruling 
There is a dispute between the parties regarding the interpretation of EU law and 
this court therefore considers it appropriate to refer to the Court of Justice a 
number of questions regarding the issues of interpretation raised by the applicants. 
Indeed, the resolution of the dispute is directly dependent on the answers to these 
questions. 
As a preliminary point, this court endorses the interpretation suggested by the 
State Legal Service regarding the temporary legislative amendment made by 
Article 90a of Legislative Decree No 18/2020. The legislature clearly intended to 
extend, for 2020, the range of recipients of the ‘family card’ to include families 
with at least one dependent child, without altering the remainder of the rules in 
Article 1(391) of Law No 208/2015, to which express reference is made. The 
different interpretation suggested by the applicants is at odds with the literal 
wording and the purpose of the provisions in question. Moreover, if the latter 
interpretation were to be upheld, the action would become inadmissible because 
there would be no locus standi to challenge discrimination that is not current but 
future and merely potential. 
The issues of interpretation between the parties substantially concern the question 
of whether or not the ‘family card’ falls within the scope of the concepts of ‘social 
security’, ‘social assistance’, ‘social protection’, ‘access to goods and services’ or 
ASGI AND OTHERS 
 
7 
‘family benefits’ contemplated by the abovementioned directives and by 
Regulation (EC) No 883/2004. 
The present case is special in that the reduction in earnings resulting from the 
discounts offered to families holding a ‘family card’ is borne by the suppliers of 
the goods and services, whether public or private, which have decided to enter 
into the agreement with the Department for Family Policies of the Office of the 
President of the Council of Ministers. The latter authority, however, is under a 
duty, the cost of which is for State budget, to process applications, issue ‘family 
cards’ and publish the names of the public and private entities that have entered 
into the agreement. All this takes place via a website that is managed by an in-
house company controlled by the Ministry of the Economy. […] 
The argument raised by the State Legal Service regarding the issue (see 2.IV 
above) raised by the applicants in relation to Article 24(1) of Directive (EC) 
2004/38 is well founded. A national of an EU Member State lawfully residing in 
Italy will be able to obtain a ‘family card’ for the benefit of all family members. In 
such a case, the third-country national would not be excluded from the issue of a 
‘family card’ as a family member of an EU national with a right of residence. No 
question should therefore be referred regarding this point. 
[…] [internal procedural matters] 
The legal issues raised by the applicants and disputed by the State Legal Service 
should be resolved by the application of independent interpretation of EU law. For 
that reason, there being a significant interpretative disagreement between the 
parties, it appears appropriate to refer to the Court of Justice of the European 
Union the questions of interpretation set out in the operative part. 
FOR THOSE REASONS 
A) Refers to the Court of Justice of the European Union the following questions 
of interpretation for a preliminary ruling: 
1. Does Article 11(1)(d) or (f) of Directive 2003/109/EC preclude 
national legislation such as that under consideration here, 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/EU, in conjunction with 
Article 1(z) and Article 3[(1)](j) of Regulation (EC) No 883/2004, or 
Article 12(1)(g) of Directive 2011/98/EU preclude national legislation 
such as that under consideration here, which provides for the issue by 
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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/EU, 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/EC, in conjunction with 
Article 1(z) and Article 3[(1)](j) of Regulation (EC) No 883/2004, or 
Article 14(1)(g) of Directive 2009/50/EC, preclude national legislation 
such as that under consideration here, 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/EC, 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/EU preclude national legislation 
such as that under consideration here, which provides for the issue by 
the government of a Member State to nationals of that [OR. 6] 
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? 
[…] [standard wording] 
Milan, 14 September 2020 
[…]