Istituto nazionale della previdenza sociale v VR.
Date: 2020-11-25
It must be recalled that EU law does not detract from the Member States’ power to organise their social security systems. 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 must comply with European Union law (see, to that effect, judgment 5 October 2010, Elchinov, C‑173/09, EU:C:2010:581, paragraph 40).
Thus, Directive 2003/109 provides for a right to equal treatment, which is the general rule, and lists the derogations from that right which the Member States may establish, which is to be interpreted strictly. Therefore, those derogations can be relied on only if the authorities in the Member State concerned responsible for the implementation of that directive have stated clearly that they intended to rely on them (see, to that effect, judgment of 24 April 2012, Kamberaj, C‑571/10, EU:C:2012:233, paragraphs 86 and 87, and of 21 June 2017, Martinez Silva, C‑449/16, EU:C:2017:485, paragraph 29).
Second, as regards recital 4 of Directive 2003/109, it must be recalled, first of all, that the preamble to an EU act has no binding legal force and cannot be relied on as a ground either for derogating from the actual provisions of the act in question or for interpreting those provisions in a manner that is clearly contrary to their wording (see, to that effect, judgments of 19 November 1998, Nilsson and Others, C‑162/97, EU:C:1998:554, paragraph 54, and of 19 December 2019, Puppinck and Others v Commission, C‑418/18 P, EU:C:2019:1113, paragraph 76).
Since the INPS and the Italian Government submit that the exclusion of long-term residents whose family members are not resident in the territory of the Member State concerned is consistent with the objective of integration pursued by Directive 2003/109 on the ground that integration implies presence in that territory, it must be observed that it is apparent from recitals 2, 4, 6 and 12 to that directive that its objective is the integration of third-country nationals who are settled lawfully and on a long-term basis in the Member States and, for that purpose, to bring the rights of those nationals closer to those enjoyed by EU citizens, inter alia, by establishing equal treatment with the latter in a wide range of economic and social fields. Thus, long-term resident status enables the person benefiting from it to enjoy equal treatment in the fields covered by Article 11 of Directive 2003/109, under the conditions laid down in that article (judgment of 14 March 2019, Y. Z and Others (Fraud with regard to family reunification), C‑557/17, EU:C:2019:203, paragraph 63).
Similarly, as is clear from settled case-law, potential difficulties in checking the situation of the beneficiaries in the light of the conditions for the grant of the family unit allowance where family members are not residing in the territory of the Member State concerned, relied on by the INPS and the Italian Government, cannot justify that difference in treatment (see, by analogy, judgment of  26 May 2016, Kohll and  Kohll-Schlesser, C‑300/15, EU:C:2016:361, paragraph 59  and the case-law cited).