Opinion of the Advocate General — ECLI:EU:C:2020:452
Date: 2020-06-11
Language of the case: Italian
Subject matter: Social security for migrant workers;Area of freedom, security and justice
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary C-302/19 — 1 
Case C-302/19 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
11 April 2019 
Referring court:  
Corte suprema di cassazione (Supreme Court of Cassation, Italy) 
Date of the decision to refer:  
5 February 2019 
Appellant:  
Istituto Nazionale della Previdenza Sociale 
Respondent and cross-appellant:  
WS 
  
Subject of the action in the main proceedings 
Appeal in cassation seeking to set aside an appeal judgment establishing that a law 
is discriminatory on the basis of nationality where that law does not include in the 
family unit, for the purposes of calculating the family unit allowance, the family 
members of a third-country national with a single permit to reside and work under 
Directive 2011/98/EU who live in that third country, while it does include the 
non-resident family members of a national of the Member State. 
Subject-matter and legal basis of the reference 
Interpretation of Article 12(1)(e) of Directive 2011/98/EU and of the principle of 
equal treatment under Article 267 TFEU. 
Question referred 
Should Article 12(1)(e) of Directive 2011/98/EU of the European Parliament and 
of the Council of 13 December 2011 and the principle of equal treatment for 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-302/19 
 
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holders of single permits to reside and work and national citizens be interpreted to 
the effect that they preclude national legislation under which, unlike the 
provisions laid down for nationals of the Member State, the family members of a 
worker with a single permit from a third country are excluded when determining 
the members of the family unit, for the purpose of calculating the family unit 
allowance, where those family members live in the third country of origin? 
Provisions of EU law and case-law relied on 
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): Article 12(1)(e), under which third-country workers shall 
enjoy equal treatment with nationals of the Member State in which they live with 
regard to, inter alia, the branches of social security defined in Regulation (EC) 
No 883/2004, and recitals 2, 19, 20, 24 and 26  
Judgment of the Court of Justice of 21 June 2017, Martinez Silva (C-449/16, 
EU:C:2017:485)  
Provisions of national law relied on 
Decreto legge 13 marzo 1988, n. 69, ‘Norme in materia previdenziale, per il 
miglioramento delle gestioni degli enti portuali ed altre disposizioni urgenti’ 
(Decree-Law No 69 of 13 March 1988, ‘Provisions governing social security, for 
improvement of the management of port bodies and other urgent provisions’), 
converted into Law No 153 of 13 May 1988) (GURI No 143 of 20 June 1988), 
Article 2(1): ‘For employees and beneficiaries of pensions and financial welfare 
benefits resulting from employment …, Government employees …, from the 
current pay period as at 1 January 1988, family allowances … shall be replaced by 
the family unit allowance, where the conditions laid down in this article are met. 
2. The allowance shall be payable at different rates based on the number of family 
members and the income of the family unit, according to the table attached to this 
decree. The income levels stated in that table shall be increased … for family units 
that include individuals who, because of disability or mental or physical 
impairment, are completely and permanently unable to hold down a paying job, 
or, if minors, experience persistent difficulties in performing the tasks and 
functions consistent with their age. Those income levels shall be increased … if 
the individuals described in paragraph 1 are widows or widowers, divorced, 
legally separated or unmarried. With effect from 1 July 1994, where the family 
unit described in paragraph 6 includes two or more children, the monthly amount 
of the allowance payable shall be increased … for each child, excluding the first 
… 6. The family unit shall be made up of the spouses, excluding those legally and 
effectively separated, and children and equivalents … aged less than 18 years or 
regardless of age where, because of disability or mental or physical impairment, 
ISTITUTO NAZIONALE DELLA PREVIDENZA SOCIALE 
 
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they are completely and permanently unable to hold down a paying job … 6-bis. 
A family unit as described in paragraph 6 shall not include spouses and children 
and equivalents of foreign nationals that are not resident in the territory of the 
Republic, except where the State of which that foreign national is a citizen is 
subject to reciprocity with Italian citizens or where an international convention on 
family allowances has been concluded. The States to which the principle of 
reciprocity applies shall be determined by the Minister of Labour and Social 
Security, following consultation with the Minister of Foreign Affairs … 8-bis. 
Only one allowance may be granted for a given family unit. With regard to the 
members of the family unit to whom the allowance is paid, that allowance is not 
compatible with any other benefit or family allowance to which they may be 
entitled. 9. The  income of the family unit shall be made up of the amount of total 
income, subject to personal income tax, earned by the members of the family unit 
in the calendar year before 1 July of each year and shall apply for payment of the 
allowance up to 30 June of the following year. … Income of any nature shall also 
be counted as income … if more than … Income shall not include severance 
indemnities, howsoever named, and advance payments of such indemnities, or the 
allowance described in this article …’ 
Decreto legislativo 4 marzo 2014, n. 40, ‘Attuazione della direttiva 2011/98/UE 
…’ (Legislative Decree No 40 of 4 March 2014, ‘Implementation of Directive 
2011/98/EU …’) (OJ No 68 of 22 March 2014) 
Succinct presentation of the facts and the main proceedings 
1 Mr WS, a Sri Lankan national, held a permit to carry out paid employment from 
9 December 2011 and a single work permit from 28 December 2015 under 
Legislative Decree No 40/2014. From January to June 2014 and then from July 
2014 to June 2016, his family (wife and two children) left Italy to return to their 
country of origin (Sri Lanka). In relation to these periods of time, Mr WS was 
refused the family unit allowance by the Istituto Nazionale della Previdenza 
Sociale (the Italian social security agency, ‘the INPS’) on the basis that, for 
foreign nationals, Article 2(6-bis) of Decree-Law No 69/88 excludes the spouse 
and children of a worker who are not resident in Italy from calculation of the 
allowance. 
2 While the Tribunale di Alessandria (Court of Alessandria, Italy) rejected Mr WS’s 
legal action against that refusal decision, the Corte d’appello di Torino (Turin 
Court of Appeal, Italy) held, on the basis of Article 12 of Directive 2011/98/EU, 
which has not yet been transposed into Italian law but is directly applicable, that 
Article 2(6-bis) was discriminatory and disapplied it. 
3 The INPS has appealed in cassation to have the appeal judgment set aside. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-302/19 
 
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The essential arguments of the appellant in the main proceedings 
4 According to the INPS, contrary to what the court held in the judgment under 
appeal, Directive 2011/98/EU should also be interpreted on the basis of recitals 8, 
19, 20, 24 and 26, which point to the different position of holders of single permits 
to live and work as compared to holders of residence permits under Directive 
2003/109/EC, the absence of common European legislation in the countries of the 
EU in relation to those rights for which third-country nationals are guaranteed 
equal treatment, the aim of not granting rights in relation to situations which lie 
outside the scope of Union law, such as in relation to family members residing in 
a third country, and the discretion granted to each Member State to limit the 
conditions under which social security benefits are granted to third-country 
nationals, as well as the amount of such benefits and the period for which they are 
granted. The family unit allowance at issue in this case is welfare-related and not 
assistance-related, unlike the benefit that the Court of Justice held to be applicable 
to foreign nationals in the Martinez Silva case. 
Succinct presentation of the reasons for the request for a preliminary ruling 
5 The family unit allowance provided for under Article 2 of Decree-Law 
No 69/1988 is a financial supplement payable to all employees, pensioners or 
recipients of social security benefits resulting from employment, provided that 
their family unit earns income below a certain threshold.  
6 The amount of that allowance, which is payable by the INPS, is quantified 
according to the number of family unit members, the number of children and the 
income of the family unit. The contribution is paid by the employer with the 
remuneration payment, on the basis of a percentage rate applied to the employee’s 
gross remuneration. The INPS then makes a final adjustment between the amounts 
paid by the employer and the social security contributions it owes. 
7 The Italian case-law has defined the nature of the allowance at times as welfare-
related, because it is a supplement, to either pension or remuneration, tied to the 
recipient’s job and funded by the contributions paid by all employers, in order to 
guarantee sufficient income for families that generally lack such an income, and at 
other times as assistance-related, given that both the amount of the allowance and 
the income taken as the parameter for its payment are higher for those families 
who deserve greater protection because they include members with disabilities or 
minors experiencing difficulties.  
However, that distinction does not seem relevant to the referring court, which, in 
any case, takes the view that this is a measure falling within the scope of 
Article 12(1)(e) of Directive 2011/98/EU. 
8 Since the law attributes essential importance to the members of the family unit in 
the structure of the allowance and identifies them as the substantial beneficiaries 
of the financial benefit that the recipient of the remuneration or pension is entitled 
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to receive, there are some doubts on its interpretation that justify the request for a 
preliminary ruling: whether the family members of a foreign national, and not 
those of an Italian national, can be excluded from a family unit when their actual 
place of residence can no longer be said to be in Italy and there are no conditions 
of reciprocity with their country of citizenship, also considering the objectives set 
out in recital 20 of Directive 2011/98/EU: ‘… The right to equal treatment in the 
fields specified by this Directive should be granted … including family members 
of a third-country worker who are admitted to the Member State in accordance 
with Council Directive 2003/86/EC of 22 September 2003 on the right to family 
reunification’ and in recital 24: ‘Third-country workers should enjoy equal 
treatment as regards social security … This Directive, furthermore, should not 
grant rights in relation to situations which lie outside the scope of Union law, such 
as in relation to family members residing in a third country. This Directive should 
grant rights only in relation to family members who join third-country workers to 
reside in a Member State on the basis of family reunification or family members 
who already reside legally in that Member State.’ 
9 The Court of Justice has so far only ruled on cases in which the recipients of the 
rights to social protection claimed and their entire family unit resided permanently 
in the Member State or were transferred from one Member State to another. The 
question referred is therefore unprecedented.