Provisional text
JUDGMENT OF THE COURT (First Chamber)
5 March 2026 (*)
( Reference for a preliminary ruling – Directive 2011/98/EU – Rights for third-country workers who hold a single permit – Article 12 – Right to equal treatment – Third-country national – Residence permit for family reasons – Social security – Regulation (EC) No 883/2004 – Coordination of social security systems – Article 3 – Concept of ‘branches of social security’ – Article 70 – Special non-contributory cash benefits – Social allowance for the elderly living in indigence – Conditions for granting – Exclusion of third-country nationals who do not hold an
EU residence
permit for long-term residents )
In Case C‑151/24 [Luevi], (i)
REQUEST for a preliminary ruling under Article 267 TFEU from the Corte costituzionale (Constitutional Court, Italy), made by decision of 27 February 2024, received at the Court on 27 February 2024, in the proceedings
Istituto nazionale della previdenza sociale (INPS)
v
V.M.,
THE COURT (First Chamber),
composed of F. Biltgen, President of the Chamber, T. von Danwitz, Vice-President of the Court, acting as judge of the First Chamber, I. Ziemele (Rapporteur), A. Kumin and S. Gervasoni, Judges,
Advocate General: J. Richard de la Tour,
Registrar: C. Di Bella, Administrator,
having regard to the written procedure and further to the hearing on 7 May 2025,
after considering the observations submitted on behalf of:
–        the Istituto nazionale della previdenza sociale (INPS), by P. Ciacci, M. Massa, C. Pulli and M. Sferrazza, avvocati,
–        V.M., by A. Guariso and R. Randellini, avvocati,
–        the Italian Government, by S. Fiorentino and G. Palmieri, acting as Agents, and by P. Gentili, avvocato dello Stato,
–        the European Commission, by J. Hottiaux, B.-R. Killmann and E. Montaguti, acting as Agents,
after hearing the Opinion of the Advocate General at the sitting on 10 July 2025,
gives the following
Judgment
1        This request for a preliminary ruling concerns the interpretation of 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 (OJ 2011 L 343, p. 1).
2        The request has been made in proceedings between V.M., an Albanian national residing in Italy, and the Istituto nazionale della previdenza sociale (National Social Security Institute (INPS), Italy) concerning the latter’s refusal to grant her a cash benefit reserved for persons aged 65 and over (since 1 January 2019, aged 67 and over) who are experiencing economic hardship.
Legal context
European Union law
Directive 2011/98
3        Recitals 2, 19, 20, 24 and 26 of Directive 2011/98 state:
‘(2)      The European Council, at its special meeting in Tampere on 15 and 16 October 1999, acknowledged the need for harmonisation of national law governing the conditions for admission and residence of third-country nationals. In this context, it stated in particular that the European Union should ensure fair treatment of third-country nationals who are legally residing in the territory of the Member States and that a more vigorous integration policy should aim to grant them rights and obligations comparable to those of citizens of the Union. …
…
(19)      In the absence of horizontal Union legislation, the rights of third-country nationals vary, depending on the Member State in which they work and on their nationality. With a view to developing further a coherent immigration policy and narrowing the rights gap between citizens of the Union and third-country nationals legally working in a Member State and complementing the existing immigration acquis, a set of rights should be laid down in order, in particular, to specify the fields in which equal treatment between a Member State’s own nationals and such third-country nationals who are not yet long-term residents is provided. Such provisions are intended to establish a minimum level playing field within the Union, to recognise that such third-country nationals contribute to the Union economy through their work and tax payments and to serve as a safeguard to reduce unfair competition between a Member State’s own nationals and third-country nationals resulting from the possible exploitation of the latter. A third-country worker in this Directive should be defined, without prejudice to the interpretation of the concept of employment relationship in other provisions of Union law, as a third-country national who has been admitted to the territory of a Member State, who is legally residing and who is allowed, in the context of a paid relationship, to work there in accordance with national law or practice.
(20)      All third-country nationals who are legally residing and working in Member States should enjoy at least a common set of rights based on equal treatment with the nationals of their respective host Member State, irrespective of the initial purpose of or basis for admission. The right to equal treatment in the fields specified by this Directive should be granted not only to those third-country nationals who have been admitted to a Member State to work but also to those who have been admitted for other purposes and have been given access to the labour market of that Member State in accordance with other provisions of Union or national law, 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 [(OJ 2003 L 251, p. 12)] …
…
(24)      Third-country workers should enjoy equal treatment as regards social security. Branches of social security are 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)]. The provisions on equal treatment concerning social security in this Directive should also apply to workers admitted to a Member State directly from a third country. Nevertheless, this Directive should not confer on third-country workers more rights than those already provided in existing Union law in the field of social security for third-country nationals who are in cross-border situations. 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.
…
(26)      Union law does not limit the power of the Member States to organise their social security schemes. In the absence of harmonisation at Union level, it is for each Member State to lay down the conditions under which social security benefits are granted, as well as the amount of such benefits and the period for which they are granted. However, when exercising that power, Member States should comply with Union law.’
4        Article 1 of Directive 2011/98, entitled ‘Subject matter’, provides:
‘1.      This Directive lays down:
…
(b)      a common set of rights to third-country workers legally residing in a Member State, irrespective of the purposes for which they were initially admitted to the territory of that Member State, based on equal treatment with nationals of that Member State.
…’
5        Under Article 2 of that directive, entitled ‘Definitions’:
‘For the purposes of this Directive, the following definitions apply:
(a)      “third-country national” means a person who is not a citizen of the Union within the meaning of Article 20(1) TFEU;
(b)      “third-country worker” means a third-country national who has been admitted to the territory of a Member State and who is legally residing and is allowed to work in the context of a paid relationship in that Member State in accordance with national law or practice;
(c)      “single permit” means a residence permit issued by the authorities of a Member State allowing a third-country national to reside legally in its territory for the purpose of work;
…’
6        Article 3 of that directive, entitled ‘Scope’, provides, in paragraph 1 thereof:
‘1.      This Directive shall apply to:
(a)      third-country nationals who apply to reside in a Member State for the purpose of work;
(b)      third-country nationals who have been admitted to a Member State for purposes other than work in accordance with Union or national law, who are allowed to work and who hold a residence permit in accordance with [Council] Regulation (EC) No 1030/2002 [of 13 June 2002 laying down a uniform format for residence permits for third-country nationals (OJ 2002 L 157, p. 1)]; and
(c)      third-country nationals who have been admitted to a Member State for the purpose of work in accordance with Union or national law.’
7        Article 12 of that directive, entitled ‘Right to equal treatment’, is worded as follows:
‘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 [No 883/2004];
…
2.      Member States may restrict equal treatment:
…
(b)      by limiting the rights conferred on third-country workers under point (e) of paragraph 1, but shall not restrict such rights for third-country workers who are in employment or who have been employed for a minimum period of six months and who are registered as unemployed.
In addition, Member States may decide that point (e) of paragraph 1 with regard to family benefits shall not apply to third-country nationals who have been authorised to work in the territory of a Member State for a period not exceeding six months, to third-country nationals who have been admitted for the purpose of study, or to third-country nationals who are allowed to work on the basis of a visa[;]
…
3.      The right to equal treatment laid down in paragraph 1 shall be without prejudice to the right of the Member State to withdraw or to refuse to renew the residence permit issued under this Directive, the residence permit issued for purposes other than work, or any other authorisation to work in a Member State.
…’
Regulation No 883/2004
8        Recital 1 of Regulation No 883/2004, as amended by Regulation (EC) No 988/2009 of the European Parliament and of the Council of 16 September 2009 (OJ 2009 L 284, p. 43) (‘Regulation No 883/2004’) states:
‘The rules for coordination of national social security systems fall within the framework of free movement of persons and should contribute towards improving their standard of living and conditions of employment.’
9        Article 3 of that regulation provides:
‘1.      This Regulation shall apply to all legislation concerning the following branches of social security:
(a)      sickness benefits;
(b)      maternity and equivalent paternity benefits;
(c)      invalidity benefits;
(d)      old-age benefits;
(e)      survivors’ benefits;
(f)      benefits in respect of accidents at work and occupational diseases;
(g)      death grants;
(h)      unemployment benefits;
(i)      pre-retirement benefits;
(j)      family benefits.
…
3.      This Regulation shall also apply to the special non-contributory cash benefits covered by Article 70.
…
5.      This Regulation shall not apply to:
(a)      social and medical assistance …
…’
10      Under Article 7 of that regulation:
‘Unless otherwise provided for by this Regulation, cash benefits payable under the legislation of one or more Member States or under this Regulation shall not be subject to any reduction, amendment, suspension, withdrawal or confiscation on account of the fact that the beneficiary or the members of his/her family reside in a Member State other than that in which the institution responsible for providing benefits is situated.’
11      Chapter 9 of Title III of Regulation No 883/2004, entitled ‘Special non-contributory cash benefits’, contains Article 70, which provides:
‘1.      This Article shall apply to special non-contributory cash benefits which are provided under legislation which, because of its personal scope, objectives and/or conditions for entitlement, has characteristics both of the social security legislation referred to in Article 3(1) and of social assistance.
2.      For the purposes of this Chapter, “special non-contributory cash benefits” means those which:
(a)      are intended to provide either:
(i)      supplementary, substitute or ancillary cover against the risks covered by the branches of social security referred to in Article 3(1), and which guarantee the persons concerned a minimum subsistence income having regard to the economic and social situation in the Member State concerned;
or
(ii)      solely specific protection for the disabled, closely linked to the said person’s social environment in the Member State concerned,
and
(b)      where the financing exclusively derives from compulsory taxation intended to cover general public expenditure and the conditions for providing and for calculating the benefits are not dependent on any contribution in respect of the beneficiary. However, benefits provided to supplement a contributory benefit shall not be considered to be contributory benefits for this reason alone,
and
(c)      are listed in Annex X.
3.      Article 7 and the other Chapters of this Title shall not apply to the benefits referred to in paragraph 2 of this Article.
4.      The benefits referred to in paragraph 2 shall be provided exclusively in the Member State in which the persons concerned reside, in accordance with its legislation. Such benefits shall be provided by and at the expense of the institution of the place of residence.’
12      As regards Italy, point (g) of Annex X to Regulation No 883/2004 refers to the social allowance provided for by legge n. 335 – Riforma del sistema pensionistico obbligatorio e complementare (Law No 335 reforming the compulsory and supplementary pension scheme) of 8 August 1995 (GURI No 190 of 16 August 1995, Ordinary Supplement No 101; ‘Law No 335/1995’) as a special non-contributory cash benefit.
Directive 2004/38/EC
13      Article 24 of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77, and corrigendum OJ 2004 L 229, p. 35) provides:
‘1.      Subject to such specific provisions as are expressly provided for in the Treaty and secondary law, all Union citizens residing on the basis of this Directive in the territory of the host Member State shall enjoy equal treatment with the nationals of that Member State within the scope of the Treaty. The benefit of this right shall be extended to family members who are not nationals of a Member State and who have the right of residence or permanent residence.
2.      By way of derogation from paragraph 1, the host Member State shall not be obliged to confer entitlement to social assistance during the first three months of residence or, where appropriate, the longer period provided for in Article 14(4)(b), nor shall it be obliged, prior to acquisition of the right of permanent residence, to grant maintenance aid for studies, including vocational training, consisting in student grants or student loans to persons other than workers, self-employed persons, persons who retain such status and members of their families.’
Italian law
Law No 335/1995
14      Article 3(6) of Law No 335/1995 provides that, instead of the social pension and its increases, Italian citizens residing in Italy who have reached 65 years of age (since 1 January 2019, 67 years) and who fulfil the income conditions laid down in that paragraph are to receive a social allowance. If the person concerned has his or her own income, that allowance is to be granted, in principle, at a reduced rate up to the amount of the net annual amount laid down by law. Subsequent increases in income beyond the maximum limit will result in the social allowance being suspended.
Law No 388/2000
15      Article 80 of legge n. 388 – Disposizioni per la formazione del bilancio annuale e pluriennale dello Stato (legge finanziaria 2001) (Law No 388 laying down provisions for drawing up the annual and multiannual budget of the State (Finance Law 2001)) of 23 December 2000 (GURI No 302 of 29 December 2000, Ordinary Supplement No 219; ‘Law No 388/2000’) provides, in paragraph 19 thereof, that social allowances and economic benefits constituting individual rights are to be granted, under the conditions laid down by law, to Italian nationals residing in Italy, to whom third-country nationals holding long-term residence permits are to be treated as equivalent.
Decree-Law No 112 of 25 June 2008
16      Under Article 20(10) of decreto-legge n. 112 – Disposizioni urgenti per lo sviluppo economico, la semplificazione, la competitività, la stabilizzazione della finanza pubblica e la perequazione tributaria (Decree-Law No 112 laying down urgent measures for economic development, simplification, competitiveness, stabilisation of public finances and fiscal balance) of 25 June 2008 (GURI No 147 of 25 June 2008, Ordinary Supplement No 152), converted into law, with amendments, by Law No 133/2008, the person applying, if he or she is a third-country national, must, in order to receive the social allowance referred to in paragraph 14 above, hold an EU residence permit for long-term residents and have resided legally and continuously for at least 10 years on national territory.
The dispute in the main proceedings and the question referred for a preliminary ruling
17      V.M. is an Albanian national who entered Italian territory for the purposes of family reunification in 2006. Since she held, on that basis, a residence permit granted for family reasons, of two years’ duration, which also authorises her to work in Italy, the INPS refused to grant the social allowance provided for in Article 3(6) of Law No 335/1995 on the ground that she did not have an EU residence permit for long-term residents, as provided for in Article 80(19) of Law No 388/2000.
18      After her action against the INPS’s refusal decision was dismissed at first instance, V.M. brought an appeal before the Corte d’appello di Firenze (Court of Appeal, Florence, Italy), which upheld her appeal.
19      The INPS brought an appeal before the Corte suprema di cassazione (Supreme Court of Cassation, Italy). That court, having doubts as to the constitutionality of Article 80(19) of Law No 388/2000, made a reference for a preliminary ruling on questions of constitutionality to the Corte costituzionale (Constitutional Court, Italy), which is the referring court, by order of 8 March 2023.
20      The referring court notes that the social allowance provided for in Article 3(6) of Law No 335/1995 has the characteristics of a special non-contributory cash benefit, that is to say:
–        it is a cash benefit granted, on request, to persons aged 65 and over (since 1 January 2019, aged 67 and over) experiencing economic hardship, in so far as they have no income or receive an income below the threshold set annually by law laying down the maximum amount of that allowance;
–        that benefit is ‘purely for assistance’, in that it is intended exclusively to deal with the state of need resulting from the indigence in which persons lacking adequate economic resources find themselves, who, by reason of their age, have reduced working capacity, and the benefit is granted irrespective of the status of the recipient as a worker, past or present; and
–        the benefit is financed by compulsory taxation intended to cover general public expenditure.
21      That court states, in addition, that entitlement to the benefit is granted not only to Italian citizens residing in Italian territory, but also, under Article 80(19) of Law No 388/2000, to third-country nationals who hold an EU residence permit for long-term residents.
22      The referring court states that, in its judgment No 50 of 15 March 2019, it ruled that it was within the legislature’s discretion to grant a cash benefit to an indigent third-country national only if his or her integration into society had made him or her deserving of receiving the same assistance as that granted to an Italian citizen. In those circumstances, that court concluded that the requirement laid down in Article 80(19) of Law No 388/2000, under which entitlement to the social allowance at issue in the main proceedings is subject, as regards third-country nationals, to possession of an EU residence permit for long-term residents, was neither discriminatory nor manifestly unreasonable.
23      That said, the referring court is uncertain whether the requirement laid down in Article 80(19) of Law No 388/2000 is contrary to the rule of equal treatment in the field of social security laid down in Article 12(1)(e) of Directive 2011/98.
24      For the purposes of examining whether that requirement is compatible with the Constitution, that court states that it is for it to determine whether the social allowance provided for in Article 3(6) of Law No 335/1995 is included among the social security benefits for which third-country nationals holding a residence permit issued for the purpose of employment or, at the very least, allowing them to work, enjoy equal treatment under Article 12(1)(e) of Directive 2011/98.
25      In that regard, that court notes that, in order to determine the scope of the latter provision, the EU legislature made a reference to the branches of social security referred to in Article 3(1) of Regulation No 883/2004.
26      The referring court considers that the social allowance at issue in the main proceedings constitutes a special non-contributory cash benefit, within the meaning of Article 70 of that regulation, which does not strictly fall within the concept of ‘branches of social security’ referred to in Article 3(1) of that regulation.
27      First, Article 12(1)(e) of Directive 2011/98 sets out the benefits for which the rule of equal treatment must be satisfied on the basis of their connection with one of those branches, as defined in Article 3(1) of Regulation No 883/2004.
28      Second, Article 12(1)(e), read in conjunction with Article 3(1) of Directive 2011/98, applies only to third-country nationals working or having worked in Italy.
29      Third, although Article 3(3) of Regulation No 883/2004 makes that regulation applicable to special non-contributory cash benefits, it cannot be concluded that such an extension would also apply as regards the scope of Article 12(1)(e) of Directive 2011/98. Special non-contributory cash benefits cover the risks referred to in Article 3(1) of Regulation No 883/2004 only on a supplementary,
substitute or ancillary basis and not directly.
30      Fourth, referring to the judgments of 11 November 2014, Dano C‑333/13 (EU:C:2014:2358), and of 15 September 2015, Alimanovic, C‑67/14 (EU:C:2015:597), the referring court points out that, according to the Court of Justice, the rule of equal treatment does not preclude the authorities of the host Member State from refusing to grant special non-contributory cash benefits to nationals of other Member States who do not have the status of a worker. However, Member States cannot be obliged to apply to third-country nationals less stringent rules than those applicable to citizens of the European Union.
31      In those circumstances the Corte costituzionale (Constitutional Court) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:
‘Is Article 12(1)(e) of Directive [2011/98], giving specific expression to the protection of the entitlement to social security benefits provided for in Article 34(1) and (2) of the Charter of Fundamental Rights of the European Union [(“the Charter”)], to be interpreted as meaning that it covers assistance such as the social allowance under Article 3(6) of [Law No 335/1995], and does EU law therefore preclude national legislation which fails to extend to foreign nationals holding a single permit as referred to in that directive the assistance already granted to foreign nationals on condition that they hold [the EU residence permit for long-term residents]?’
Consideration of the question referred
32      By its question, the referring court asks, in essence, whether Article 12(1)(e) of Directive 2011/98, read in the light of Article 34(1) and (2) of the Charter, must be interpreted as meaning that it applies to a special non-contributory cash benefit within the meaning of Article 70 of Regulation No 883/2004 and, therefore, that it precludes national legislation which makes the grant of such a benefit to the third-country nationals referred to in Article 3(1)(b) and (c) of that directive, in the form of a social allowance intended for persons aged 65 and over (since 1 January 2019, aged 67 and over) who are experiencing economic hardship and have limited capacity to work due to their age, subject to the condition that they hold
an EU residence permit for long-term residents.
33      Under Article 12(1)(e) of Directive 2011/98, the third-country workers referred to in Article 3(1)(b) and (c) of that directive are to enjoy equal treatment with nationals of the Member State where they reside with regard to branches of social security, as defined in Regulation No 883/2004. Those provisions must be read in the light of Article 34(1) and (2) of the Charter, concerning social security benefits.
34      In so far as, under Article 80(19) of Law No 388/2000, the grant of the social allowance provided for in Article 3(6) of Law No 335/1995 is subject only to a residence condition as regards Italian nationals, whereas Article 80(19) makes the grant of that allowance to third-country nationals subject to the condition that they hold an EU residence permit for long-term residents, it is necessary to determine whether the rule of equal treatment laid down in Article 12(1)(e) of that directive applies to a person such as the respondent in the main proceedings and to a benefit in the form of that allowance, with the result that its grant cannot be made subject to such a condition of long-term residence.
The personal scope of Directive 2011/98
35      According to case-law, Article 12(1) of Directive 2011/98 applies both to third-country nationals who have been admitted to a Member State for the purpose of work in accordance with EU or national law and to third-country nationals who have been admitted to a Member State for purposes other than work in accordance with EU or national law, who are entitled to work and who hold a residence permit in accordance with Regulation No 1030/2002 (judgment of 2 September 2021, INPS (Childbirth and maternity allowances for holders of single permits), C‑350/20, EU:C:2021:659, paragraph 48).
36      Thus, the wording of that provision in no way requires that, in order to benefit from the equal treatment provided for therein, the third-country national concerned must actually have worked in the host Member State.
37      That finding is borne out, first, by recital 2 of Directive 2011/98, according to which that directive seeks to ‘ensure fair treatment of third-country nationals who are legally residing in the territory of the Member States’, without, however, specifying that they should carry out or have actually carried out work there.
38      Second, recital 20 of that directive states that equal treatment of those third-country nationals with nationals of the host Member State must be guaranteed irrespective of the initial purpose of or basis for admission to that Member State. Among the beneficiaries of that equal treatment, that recital mentions the family members of a third-country worker admitted to a Member State on the basis of the right to family reunification and who are authorised to work there.
39      In the present case, it is apparent from the order for reference that V.M. resides in Italy for the purposes of family reunification and that she holds a residence permit granted for family reasons, of two years’ duration, which also authorises her to work in that Member State.
40      Therefore, a person in a situation such as that of the respondent in the main proceedings falls within the personal scope of Article 12(1)(e) of Directive 2011/98.
Material scope of Article 12(1)(e) of Directive 2011/98
41      In order to answer the question referred, which consists of determining whether a social benefit such as the social allowance at issue in the main proceedings falls within the material scope of Article 12(1)(e) of Directive 2011/98, it is necessary to interpret that provision by taking into account not only its wording but also its context and the objectives pursued by the legislation of which it forms part (see, to that effect, judgment of 4 October 2024, Lindenapotheke, C‑21/23, EU:C:2024:846, paragraph 52 and the case-law cited).
42      It follows from the wording of Article 12(1)(e) of Directive 2011/98 that the scope of that provision is determined by a reference to ‘branches of social security, as defined in [Regulation No 883/2004]’.
43      In that regard, it is apparent from the case-law that, in accordance with recital 24 of that directive, for the purposes of eligibility for the equal treatment provided for in that provision, it is necessary that the benefit at issue constitute a benefit falling within one of the branches of social security listed in Article 3(1) of Regulation No 883/2004 (see, to that effect, judgment of 2 September 2021, INPS (Childbirth and maternity allowances for holders of single permits), C‑350/20, EU:C:2021:659, paragraph 51).
44      Article 3 of Regulation No 883/2004, entitled ‘Matters covered’, states, in paragraph 1 thereof, that that regulation is to apply to all legislation concerning the following branches of social security: sickness benefits; maternity and equivalent paternity benefits; invalidity benefits; old-age benefits; survivors’ benefits; benefits in respect of accidents at work and occupational diseases; death grants; unemployment benefits; pre-retirement benefits; and family benefits.
45      Article 3(3) of Regulation No 883/2004 ‘also’ applies to the special non-contributory cash benefits covered by Article 70 of that regulation.
46      In those circumstances, it is necessary to determine whether the social allowance at issue in the main proceedings is a benefit falling within one of the branches of social security listed in Article 3(1) of Regulation No 883/2004 or whether it is a special non-contributory cash benefit within the meaning of Article 70 of that regulation.
47      In the first place, the Court has held that a benefit may be regarded as a ‘social security benefit’ for the purposes of Article 3(1) of Regulation No 883/2004 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 that provision (judgment of 28 October 2021, ASGI and Others, C‑462/20, EU:C:2021:894, paragraph 25 and the case-law cited).
48      As regards, in particular, the old-age benefits referred to in Article 3(1)(d) of Regulation No 883/2004, those benefits are intended to safeguard the means of subsistence of persons who, when they reach a certain age, leave their employment and are no longer required to hold themselves available for work at the employment office (judgment of 16 September 2015, Commission v Slovakia, C‑361/13, EU:C:2015:601, paragraph 55 and the case-law cited).
49      Furthermore, the Court has held that an allowance paid as a supplementary allowance granted exclusively to beneficiaries of a retirement and/or survival pension, financed by the same resources that are used to finance those pensions and which is linked to the retirement pension by providing the recipients with means of subsistence ensuring that they may take a holiday, may be classified, in particular, as ‘old-age benefits’ within the meaning of Article 3(1)(d) of Regulation No 883/2004 (judgment of 16 September 2015, Commission v Slovakia, C‑361/13, EU:C:2015:601, paragraph 56 and the case-law cited).
50      In the present case, it is apparent from the order for reference that the social allowance provided for in Article 3(6) of Law No 335/1995 is not paid exclusively to recipients of an old-age pension, but is intended to deal with the state of need resulting from the indigence in which persons lacking adequate economic resources find themselves, who, on account of their age, have reduced working capacity. Consequently, such a social allowance does not constitute a social security benefit within the meaning of the case-law cited in paragraph 47 above. In that regard, it should be noted that such an allowance also does not fall within the scope of paragraphs 1 and 2 of Article 34 of the Charter, which concern social security benefits.
51      Moreover, the scheme of Regulation No 883/2004 shows that the concept of a ‘social security benefit’ and that of a ‘special non-contributory benefit’ are mutually exclusive and that a benefit which satisfies the conditions for a social security benefit cannot be analysed as being a special non-contributory benefit and vice versa (see, by analogy, judgment of 21 February 2006, Hosse, C‑286/03, EU:C:2006:125, paragraph 36).
52      In the second place, under Article 70(2) of Regulation No 883/2004, a ‘special non-contributory cash benefit’ is a benefit which, first of all, is intended to provide either supplementary, substitute or ancillary cover against the risks covered by the branches of social security referred to in Article 3(1) of that regulation, and to guarantee the persons concerned a minimum subsistence income having regard to the economic and social situation in the Member State concerned. In order to be classified as a ‘special non-contributory cash benefit’, the benefit concerned must then be financed exclusively by compulsory taxation intended to cover general public expenditure, and the conditions for providing and for calculating the benefits must not be dependent on any contribution in respect of the beneficiary. Moreover, if a benefit is provided to supplement a contributory benefit, it must not be considered as being a contributory benefit for that reason alone. Lastly, the benefit concerned must be included in Annex X to that regulation.
53      In the present case, the referring court considers that the social allowance at issue in the main proceedings falls within the concept of a ‘special non-contributory cash benefit’ within the meaning of Article 70(2) of Regulation No 883/2004. That allowance is, in fact, intended to guarantee subsistence costs for persons who cannot cover those costs themselves and is financed on a non-contributory basis by tax revenue. Since that allowance is also mentioned in Annex X to that regulation, it therefore satisfies the conditions laid down in Article 70(2).
54      Furthermore, it should be added that such an allowance is also covered by the concept of ‘social assistance’ within the meaning of Article 70(1) of that regulation, that concept referring to all assistance schemes established by the public authorities, whether at national, regional or local level, to which recourse may be had by a person who does not have resources sufficient to meet his or her own basic needs and those of his or her family and who by reason of that fact may, during his or her period of residence, become a burden on the public finances of the host Member State which could have consequences for the overall level of assistance which may be granted by that State (see, by analogy, judgment of 15 September 2015, Alimanovic, C‑67/14, EU:C:2015:597, paragraph 44 and the case-law cited).
55      In those circumstances, the referring court was entitled to classify the social allowance provided for in Article 3(6) of Law No 335/1995 as a ‘special non-contributory cash benefit’ within the meaning of Article 70 of Regulation No 883/2004.
56      Since Article 3(3) of Regulation No 883/2004 provides that that regulation applies ‘also’ to that type of benefit, it is necessary to examine whether those benefits nevertheless fall within the scope of Article 12(1)(e) of Directive 2011/98, which refers exclusively to ‘branches of social security’.
57      First, under Article 12(1)(e) of Directive 2011/98, that provision refers, specifically, for the definition of its scope, to ‘branches of social security, as defined’ by Regulation No 883/2004.
58      However, although, according to the wording of Article 3(3) of that regulation, it applies ‘also’ to special non-contributory cash benefits, it should be noted that that provision determines exclusively the scope of that regulation, without prejudice to the definition of the scope of Directive 2011/98, as is apparent from the actual wording of Article 12(1)(e) thereof.
59      Second, as regards the systematic interpretation of Article 12(1)(e) of Directive 2011/98, it must be pointed out that social security benefits and special non-contributory cash benefits are subject to different regimes under the provisions of Regulation No 883/2004.
60      To begin with, as regards the residence condition for the grant of those benefits, whereas Article 7 of that regulation provides for the exportability of social security benefits, which must be provided, under certain conditions, by a Member State, including where their recipient does not reside in its territory, Article 70(4) of that regulation states that special non-contributory cash benefits are to be granted exclusively in the Member State in which the persons concerned reside, in accordance with its legislation.
61      Next, such a difference in regime is based on the distinct characteristics inherent to those two types of benefit.
62      Thus, while the financing of social security benefits depends on contributions paid by workers and employers, special non-contributory cash benefits are financed exclusively by compulsory taxation intended to cover general public expenditure.
63      Furthermore, as is apparent from the case-law cited in paragraph 47 above, 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 relates to one of the risks expressly listed in Article 3(1) of Regulation No 883/2004.
64      On the contrary, special non-contributory cash benefits are granted, irrespective of any period of work completed by their recipients, in accordance with the legislation of the Member State in which they reside, as Article 70(4) of that regulation provides.
65      As the Advocate General observed, in essence, in points 55 and 56 of his Opinion, by limiting the personal scope of the right to equal treatment laid down in Article 12(1) of Directive 2011/98, the EU legislature expressly chose not to extend that right to benefits which cannot be classified as ‘social security benefits’ within the meaning of Article 3 of Regulation No 883/2004. The different characteristics, set out in paragraphs 62 to 64 above, of those two types of benefit justify the fact that, although social security benefits fall within the scope of Article 12(1)(e) of Directive 2011/98, that is not the case with special non-contributory cash benefits.
66      The Member States are therefore not required, as regards those special benefits, to comply with the rule of equal treatment laid down by that provision and may, consequently, decide to make the grant of such benefits to third-country nationals subject to the satisfaction of a criterion that is different from that applicable to their nationals, such as the criterion for integration, compliance with which is evidenced by the possession of an EU residence permit for long-term residents.
67      Lastly, such an interpretation ensures consistency between the various statuses granted to third-country nationals, as they result from EU law, depending on their level of integration in the host Member State.
68      The long-term resident status provided for by 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) corresponds to the highest level of integration for third-country nationals and justifies them being guaranteed equal treatment with nationals of the host Member State, as regards, in particular, social security, social assistance and social protection (judgment of 29 July 2024, CU and ND (Social assistance – Indirect discrimination), C‑112/22 and C‑223/22, EU:C:2024:636, paragraph 46).
69      In order for due account to be taken of the criterion of duration of residence and the resulting consequences as regards the level of integration of third-country nationals, Article 12(1)(e) of Directive 2011/98 cannot preclude Member States from making the grant of a special non-contributory cash benefit, which, as has been pointed out in paragraph 54 above, also has the character of a social assistance benefit, subject to a condition as to the duration of residence.
70      Third, the interpretation adopted in paragraph 66 above is consistent with the objectives pursued by Directive 2011/98.
71      It should be recalled that, as is apparent from recital 19 of that directive, it is intended to establish a minimum level playing field within the European Union, by specifying the fields in which equal treatment is to be provided between nationals of a Member State and third-country nationals.
72      As the Advocate General observed, in essence, in point 68 of his Opinion, the EU legislature expressly and exhaustively specified the fields in which the rule of equal treatment laid down in Article 12(1)(e) of Directive 2011/98 was to apply.
73      Furthermore, according to recital 2 of that directive, ‘the European Union should ensure fair treatment of third-country nationals who are legally residing in the territory of the Member States and … a more vigorous integration policy should aim to grant them rights and obligations comparable to those of citizens of the Union’.
74      Having regard to the objective of approximating the rights and obligations of third-country nationals with those of EU citizens, it should be noted that, as regards the latter, Article 24(2) of Directive 2004/38 allows Member States to make entitlement to social assistance subject to the condition that those citizens have a right of permanent residence in their territory, acquired following a continuous period of five years’ residence in that territory.
75      So far as concerns access to that type of benefit, an
EU citizen can claim equal treatment with nationals of the host Member State only if his or her residence in the territory of that Member State complies with the conditions of Directive 2004/38 (judgment of 15 July 2021, The Department for Communities in Northern Ireland, C‑709/20, EU:C:2021:602, paragraph 75 and the case-law cited).
76      In those circumstances, an application of the rule of equal treatment laid down in Article 12(1)(e) of Directive 2011/98, which would lead to the removal of the requirement relating to the length of residence of third-country nationals provided for by the legislation of a Member State for the purposes of the grant of a special non-contributory cash benefit which is also in the nature of a social assistance benefit, would have the effect of granting those nationals more favourable treatment than that granted to EU citizens.
77      Such a consequence would go beyond the objective set out in recital 2 of Directive 2011/98, which is to grant third-country nationals rights and obligations comparable to those of EU citizens.
78      In the light of the foregoing considerations, the answer to the question referred is that Article 12(1)(e) of Directive 2011/98 must be interpreted as meaning that it does not apply to a special non-contributory cash benefit within the meaning of Article 70 of Regulation No 883/2004 and, therefore, that it does not preclude national legislation which makes the grant of such a benefit to the third-country nationals referred to in Article 3(1)(b) and (c) of that directive, in the form of a social allowance intended for persons aged 65 and over (since 1 January 2019, aged 67 and over) who are experiencing economic hardship and have limited capacity to work due to their age, subject to the condition that they
hold
an EU residence permit for long-term residents.
Costs
79      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 (First 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
must be interpreted as meaning that it does not apply to a special non-contributory cash benefit within the meaning of Article 70 of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems, as amended by Regulation (EC) No 988/2009 of the European Parliament and of the Council of 16 September 2009, and, therefore, that it does not preclude national legislation which makes the grant of such a benefit to the third-country nationals referred to in Article 3(1)(b) and (c) of that directive, in the form of a social allowance intended for persons aged 65 and over (since 1 January 2019, aged 67 and over) who are experiencing economic hardship and have limited capacity to work due to their age, subject to the condition that they hold an EU residence permit for long-term residents.
[Signatures]
*      Language of the case: Italian.
i      The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings.