Opinion of the Advocate General — ECLI:EU:C:2025:849
Date: 2025-10-30
Language of the case: Italian

Summary C-747/22 – 1 
Case C-747/22 
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:  
7 December 2022 
Referring court:  
Tribunale ordinario di Bergamo (Italy) 
Date of the decision to refer:  
15 November 2022 
Applicant:  
KH 
Defendant:  
Istituto nazionale della previdenza sociale (INPS) 
  
Subject matter of the main proceedings 
Action brought by KH (‘the applicant’) seeking a declaration that the conduct of 
the Istituto nazionale della previdenza sociale (National Institute for Social 
Security, ‘INPS’), which issued an order on 13 October 2021 withdrawing the 
applicant’s Reddito di Cittadinanza (basic income) on the grounds that he did not 
meet the criterion of 10 years’ prior residency in Italy, was discriminatory. 
Subject matter and legal basis of the request 
Interpretation of Articles 29 and 26 of Directive 2011/95, in order to establish 
whether these articles preclude national provisions under which an anti-poverty 
employment and social support benefit can be granted only to those who, in 
addition to having lived in the Member State in question continuously for at least 
2 years upon applying for the benefit, have resided in that Member State for at 
least 10 years in total. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-747/22 
 
2  
Question referred for a preliminary ruling 
‘Are Articles 29 and 26 [of] Directive 2011/95 to be interpreted as precluding a 
national provision such as that contained in Article 2(1)(a) [of] Decree-Law 
No 4/2019, which provides for a requirement of 10 years’ residency in Italy, in 
addition to the condition of 2 years of continuous residency prior to application, in 
order to access an anti-poverty benefit supporting access to employment and 
social integration, such as the “basic income”’? 
Provisions of European Union law cited 
Article 267 TFEU 
Article 21 of the Charter of Fundamental Rights of the European Union  
Directive 2000/43/EC, Article 2 
Directive 2000/78/EC, Article 2 
Directive 2006/54/EC, Article 2 
Directive 2011/95 EU, Articles 29 and 26 
European Union case-law relied on 
Judgments of the Court of Justice in cases C-249/83, C-122/84, C-326/90, 
C-111/91, C-90/97, C-299/01, C-388/01, C-406/04, C-192/05, C-11/06 and 
C-12/06, C-503/09, C-542/09, C-379/11, C-523/11 and C-585/11, C-220/12, 
C-359/13, C-713/17, C-443/14 and C-444/14, C-462/20. 
Provisions of international law relied on 
Article 14 of the ECHR. This article prohibits discrimination on any grounds. 
Provisions of national law relied on 
Decreto legislativo 30 marzo 2001, n. 165, ‘Norme generali sull’ordinamento del 
lavoro alle dipendenze delle amministrazioni pubbliche’ (Legislative Decree 
No 165 of 30 March 2001, ‘General rules concerning the organisation of 
employment in public administrations’), Article 38. Pursuant to this article, 
persons granted international protection have the same opportunities regarding 
access to public sector jobs as Italian citizens, irrespective of how many years they 
have resided in Italy. 
Decreto legislativo 25 luglio 1998, n. 286, ‘Testo unico delle disposizioni 
concernenti la disciplina dell’immigrazione e norme sulla condizione dello 
INPS 
 
3 
straniero’ (Legislative Decree No 286 of 25 July 1998, ‘Consolidated text of 
provisions governing immigration and the status of aliens’), Article 43. This 
article prohibits acts of discrimination, in particular for reasons relating to 
nationality. 
Decreto legislativo 19 novembre 2007, n. 251, ‘Attuazione della direttiva 
2004/83/CE recante norme minime sull’attribuzione, a cittadini di Paesi terzi o 
apolidi, della qualifica del rifugiato o di persona altrimenti bisognosa di 
protezione internazionale, nonché norme minime sul contenuto della protezione 
riconosciuta’ (Legislative Decree No 251 of 19 November 2007, ‘Implementation 
of Directive 2004/83/EC on minimum standards for the qualification and status of 
third country nationals or stateless persons as refugees or as persons who 
otherwise need international protection and the content of the protection granted), 
Articles 23 and 27. Pursuant to Article 23, persons holding subsidiary protection 
status are permitted to work. Article 27 provides that persons holding refugee 
status and persons holding subsidiary protection status have the right to be treated 
in the same way as Italian citizens in matters relating to health and social care. 
Decreto legislativo 1 settembre 2011, n. 150, ‘Disposizioni complementari al 
codice di procedura civile in materia di riduzione e semplificazione dei 
procedimenti civili di cognizione, ai sensi dell'articolo 54 della legge 18 giugno 
2009, n. 69’ (Legislative Decree No 150 of 1 September 2011, ‘Supplementary 
provisions to the Code of Civil Procedure concerning the reduction and 
simplification of civil proceedings within the meaning of Article 54 of Law No 69 
of 18 June 2009’), Article 28. This article sets out a special form of procedure 
against discriminatory conduct. 
Decreto legislativo 15 settembre 2017, n. 147, ‘Disposizioni per l’introduzione di 
una misura nazionale di contrasto alla povertà’ (Legislative Decree No 147 of 
15 September 2017, ‘Provisions for introducing a national initiative to combat 
poverty’), Articles 6 and 7. 
Decreto-legge 28 gennaio 2019, n. 4, convertito con modificazioni dalla Legge 28 
marzo 2019, n. 26, ‘Disposizioni urgenti in materia di reddito di cittadinanza e di 
pensioni’ (Decree-Law No 4 of 28 January 2019, enacted, with amendments, by 
Law No 26 of 28 March 2019 ‘Urgent provisions regarding basic income and 
pensions’), Articles 1, 2, 4 and 7. Article 1 identifies the purpose of the Reddito di 
Cittadinanza (basic income, ‘RdC’), namely guaranteeing the right to 
employment, combating poverty, inequality and social exclusion, and promoting 
the right to information, education, training and culture. Article 2 sets out the 
cumulative requirements for accessing RdC, which include (1) possessing Italian 
or EU citizenship or, for citizens of third countries, possessing a long-term 
resident’s EU residence permit and (2) residency in Italy for at least 10 years, 
which must additionally have been continuous for the 2 years preceding the 
submission of the application for RdC. In that regard, the referring court specifies 
that, in relation to RdC applicant status, the INPS also included the category of 
foreign nationals possessing a residence permit for international protection on its 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-747/22 
 
4  
website and on the RdC application form, even though these individuals are not 
mentioned in Decree-Law No 4/2019. According to Article 4, receipt of RdC is 
conditional on signing an ‘Employment Pact and a Social Inclusion Pact’, in 
which the recipient commits to following a personalised pathway to social 
integration and employment. Article 7, concerning sanctions relating to RdC, 
provides that if declarations and information used as a basis for an RdC 
application are found to be untrue, the RdC is to be immediately withdrawn with 
retroactive effect. 
National case-law relied on 
Judgments of the Corte Costituzionale (Constitutional Court, Italy) Nos 44/2020 
and 19/2022 
Succinct presentation of the facts and procedure in the main proceedings 
1 The applicant, who arrived in Italy in 2011, has a residence permit for persons 
granted subsidiary protection. As stated without dispute on his residence 
certificates for the period 2013-2022, he has been living in the Province of 
Bergamo, where he got married in 2019. In 2020, his daughters were born in Italy. 
He initially received RdC because he had incorrectly claimed to have met the 
requirement of 10 years’ non-continuous residency. 
2 Following checks, the INPS revoked the applicant’s RdC, by letter of 13 October 
2021, on the grounds that he did not meet the requirement of having resided in 
Italy for a total of 10 years. 
3 The applicant thus brought a special appeal before the referring court claiming 
discrimination within the meaning of Article 28 of Legislative Decree 
No 150/2011 and seeking, specifically, that the conduct of the INPS in revoking 
his RdC be recognised as discriminatory and that the applicant’s right to receive 
this benefit be established. 
The essential arguments of the parties in the main proceedings 
4 The applicant claims that the requirement of 10 years’ residency for receipt of 
RdC provided for in Article 2 of Decree-Law No 4/2019 conflicts with Articles 29 
and 26 of Directive 2011/95/EU, which provide that beneficiaries of international 
protection are to be afforded equal treatment with national citizens in matters 
relating to social welfare and access to employment. This requirement thus 
constitutes indirect discrimination on the basis of nationality. 
5 The defendant maintains that it lacks capacity to be sued in as much as verifying 
the residency requirement in question is the responsibility of the Municipalities. In 
addition, the INPS argues that the applicant’s claim is unfounded on the grounds 
INPS 
 
5 
that Italian legislation provides for benefits other than RdC to support those in 
serious and emergency situations, such as the Reddito di Emergenza (emergency 
income), for which the only prerequisite is being resident in Italy on the date of 
applying to receive the benefit. 
6 According to the defendant, RdC does not come within the concept of ‘social 
welfare’ as referred to in Articles 29 and 26 of Directive 2011/95, as the 
Constitutional Court has established that this benefit does not have a social 
welfare function but pursues different objectives relating to employment and 
social policy. 
7 Next, the INPS challenges the applicant’s argument that the requirement of 
10 years’ residency constitutes indirect discrimination against foreign nationals. In 
this regard, in the defendant’s view, discrimination can be ruled out because the 
aforementioned requirement applies to Italian nationals as well as foreign citizens. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
8 As regards the relevance of the question referred, the referring court notes that if 
the Court of Justice declares that the requirement of 10 years’ residency in Italy 
provided for in Article 2 of Decree-Law No 4/2019 is not compatible with 
Articles 29 and 26 of Directive No 2011/95, pursuant to such a ruling that 
requirement would be eliminated or reduced as of the date of its introduction. As a 
result, the applicant would be entitled to receive RdC. It is undisputed that the 
applicant meets the other requirements stipulated for access to RdC. 
9 In the view of the referring court, RdC comes within the scope of ‘social welfare’ 
measures as referred to in Article 29 of Directive 2011/95. The referring court 
recalls that Article 29 provides that beneficiaries of international protection are to 
receive exactly the same social assistance as is provided to nationals of Member 
States. This equal treatment is confirmed in Italian law by Legislative Decree 
No 251/2007. 
10 Moreover, the referring court notes that the RdC guidelines also mention job 
integration ‘counselling services’ as referred to in Article 26 of Directive 2011/95. 
That article states that beneficiaries of international protection are to be offered 
opportunities to access employment under conditions equivalent to those afforded 
to nationals of the Member States. 
11 As regards the applicant’s argument relating to indirect discrimination, first, the 
referring court points out that, pursuant to Article 2 of Directives 2000/43, 
2000/78 and 2006/54, indirect discrimination refers to a situation where an 
apparently neutral criterion would put persons belonging to a specific group at a 
particular disadvantage compared with other persons; secondly, the referring court 
specifies that, in the present case, Articles 26 and 29 of Directive 2011/95 impose 
a requirement that holders of international protection and citizens of Member 
States be treated equally. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-747/22 
 
6  
12 According to the referring court, while it is true that 10 years’ residency, including 
non-continuous residency, is a condition that must be met by all applicants for 
RdC, it is nevertheless more difficult for foreign nationals to meet these 
requirements compared to Italian citizens. Applicants for international protection 
are persons who come from a country of origin where they were at real risk of 
suffering serious harm, and who have therefore lived at least part of their life 
abroad. By contrast, Italian citizens are, in the majority of cases, born and resident 
in Italy. 
13 The referring court points out that Directives 2000/43, 2000/78 and 2006/54 
exclude indirect discrimination where disparity of treatment is justified by a 
legitimate aim and the means of achieving that aim are appropriate and necessary. 
According to the referring court, the aim of the residency requirement is to 
guarantee that foreign nationals have set down roots in Italy, or in any case 
possess a genuine link with the territory in which the benefit is granted. 
14 In this regard, as pointed out by the referring court, since the aim of the RdC is to 
promote integration and inclusion in social and work environments, the purpose of 
this measure cannot also be a prerequisite for the granting thereof. 
15 In addition, as emphasised by the referring court, it is evident from the case-law of 
the Italian Constitutional Court that an individual having resided in a certain 
territory for a number of years does not provide any guarantee that they will 
continue to live there in future. The referring court adds that, in the case of RdC, 
the beneficiary’s permanent residency in Italy is ensured by the granting process 
itself, in that, according to Article 2 of Decree-Law No 4/2019, in order to receive 
RdC, the beneficiary must reside permanently in Italian territory for the entire 
period of receipt of the benefit. 
16 The referring court points out, next, that, in the light of the case-law of the Court 
of Justice, the requirement in question is disproportionate, in that it is excessive. 
In that regard, as noted by the referring court, the Court of Justice has stated that, 
among long-term residents in a national territory, the number of citizens is 
definitely greater than the number of foreign nationals and thus, as a consequence, 
a criterion based on long-term residency might constitute indirect discrimination 
between citizens and foreign nationals. 
17 According to the case-law of the Court of Justice, while it is true that restrictions 
based on residency may constitute indirect discrimination, this may be justified if 
it is based on objective considerations of public interest independent of the 
nationality of the persons concerned and if it is proportionate to the legitimate 
objective pursued. 
18 It follows from the case-law of the Court that a measure is proportionate if, while 
appropriate for securing the attainment of the objective pursued, it does not go 
beyond what is necessary in order to attain that objective. In that regard, in the 
view of the referring court, the Court has emphasised the requirement of 
INPS 
 
7 
demonstrating a real degree of integration, arguing that a requirement based solely 
on residency risks excluding from the benefit in question those who, despite not 
meeting that condition, have nevertheless developed genuine links in terms of 
integration with the Member State in question. 
19 In the light of the case-law of the Court of Justice, the residency requirement is 
too exclusive because it prioritises residency alone and fails to consider all other 
possible links. In the present case, the national provision in question does not 
consider other, more significant links to Italy that the RdC applicant may be able 
to demonstrate, such as entry on the population register, a fixed rental contract, 
previous working relationships or training courses. 
20 As regards the links to Italy of those granted international protection, like the 
applicant, the referring court points out that, according to national legislation, they 
have the same opportunities regarding access to public sector jobs as Italian 
citizens, irrespective of how many years they have resided in Italy. Moreover, the 
date on which the international protection holder’s stay in Italy began was not 
dictated by any general preference of the latter, but by an urgent need for 
protection. Lastly, the national legislation relating to subsidiary protection 
guarantees the permanent residency of beneficiaries of this protection in Italy, as it 
is only withdrawn under exceptional circumstances.