Istituto nazionale della previdenza sociale v WS.
Date: 2020-11-25
As recital 26 of Directive 2011/98 states, that European Union law does not detract from the power of the Member States to organise their social security systems. In the absence of harmonisation at European Union level, it is for the legislation of each Member State to determine the conditions for the grant of social security benefits. The fact nevertheless remains that, 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).
Article 12(1)(e) of that directive, in conjunction with Article 3(1)(c) of Directive thereof, requires Member States to ensure equal treatment with regard to the branches of social security set out in Regulation No 883/2004 to third-country nationals who have been admitted to a Member State for the purpose of work in accordance with EU or national law. That is the case of a third-country national holding a single permit within the meaning of Article 2(c) of Directive 2011/98, since under that provision that permit allows such a national to reside lawfully in the territory of the Member State which has issued it, in order to work there (see, to that effect, judgment of  21 June 2017, Martinez Silva, C‑449/16, EU:C:2017:485, paragraph 27).
However, by virtue of the first subparagraph of Article 12(2)(b) of Directive 2011/98, Member States may limit the rights conferred on third-country workers by Article 12(1)(e) of that directive, except for those who are in employment or who have been employed for a minimum period of six months and are registered as unemployed. In addition, under the second subparagraph of Article 12(2)(b) thereof, Member States may decide that Article 12(1)(e) of the directive relating to family benefits is not to 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 to that territory for the purpose of study, or to third-country nationals who are allowed to work there on the basis of a visa (judgment of  21 June 2017, Martinez Silva, C‑449/16, EU:C:2017:485, paragraph 28).
Thus, like  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), Directive 2011/98 provides, for certain third-country nationals,  a right to equal treatment, which is the general rule, and lists the derogations from that right which the Member States have the option of establishing. Those derogations can therefore 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 (judgment of  21 June 2017, Martinez Silva, C‑449/16, EU:C:2017:485, paragraph 29).
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).
As regards the case in the main proceedings, it should be noted, first of all, that the national court itself states that the family unit allowance is specifically a type of social security benefit which falls within the scope of Article 12(1)(e) of Directive 2011/98. According to the information  provided by that court, it is a cash benefit granted without any individual and discretionary assessment of the applicant’s personal needs, on the basis of a legally defined situation, which is intended to meet family expenses.  Such a benefit constitutes a social security benefit, falling within the scope of the family benefits referred to in Article 3(1)(j) of Regulation No 883/2004 (see, to that effect, judgment of 21 June 2017, Martinez Silva, C‑449/16, EU:C:2017:485, paragraphs 20 to 25).
Similarly, it follows from settled case-law that any difficulties in checking the situation of beneficiaries with regard to the conditions for granting the family unit allowance when the members of the family do not reside in the territory of the Member State concerned, relied on by the INPS and the Italian Government, cannot justify a difference in treatment (see, by analogy, judgment 26 May 2016, Kohll and Kohll-Schlesser, C‑300/15, EU:C:2016:361, paragraph 59  and the case-law cited).