Kerly Del Rosario Martinez Silva v Istituto nazionale della previdenza sociale (INPS) and Comune di Genova.
Date: 2017-06-21
20


It should be recalled that, as the Court has repeatedly held in the context of Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community (OJ, English Special Edition 1971(II), p. 416) that the distinction between benefits excluded from the scope of Regulation No 883/2004 and those which fall within its scope is based essentially on the constituent elements of the particular benefit, in particular its purposes and the conditions on which it is granted, and not on whether a benefit is classified as a social security benefit by national legislation (see, to that effect, inter alia, judgments of 16 July 1992, Hughes, C‑78/91, EU:C:1992:331, paragraph 14; of 20 January 2005, Noteboom, C‑101/04, EU:C:2005:51, paragraph 24; and of 24 October 2013, Lachheb, C‑177/12, EU:C:2013:689, paragraph 28). A benefit may be regarded as a social security benefit if it is granted to recipients, without any individual and discretionary assessment of personal needs, on the basis of a legally defined position and concerns one of the risks expressly listed in Article 3(1) of Regulation No 883/2004 (see, to that effect, inter alia, judgments of 16 July 1992, Hughes, C‑78/91, EU:C:1992:331, paragraph 15; of 15 March 2001, Offermanns, C‑85/99, EU:C:2001:166, paragraph 28; and of 19 September 2013, Hliddal and Bornand, C‑216/12 and C‑217/12, EU:C:2013:568, paragraph 48).
21


The Court has explained that the method by which a benefit is financed, in particular the fact that its grant is not subject to any contribution requirement, is immaterial for its classification as a social security benefit (see, to that effect, judgments of 16 July 1992, Hughes, C‑78/91, EU:C:1992:331, paragraph 21; of 15 March 2001, Offermanns, C‑85/99, EU:C:2001:166, paragraph 46; and of 24 October 2013, Lachheb, C‑177/12, EU:C:2013:689, paragraph 32).
22


Moreover, the fact that a benefit is granted or refused by reference to income and the number of children does not mean that its grant is dependent on an individual assessment of the claimant’s personal needs, which is a characteristic feature of social assistance, in so far as the criteria applied are objective, legally defined criteria which, if met, confer entitlement to the benefit, the competent authority having no power to take account of other personal circumstances (see, to that effect, judgment of 16 July 1992, Hughes, C‑78/91, EU:C:1992:331, paragraph 17). Benefits that are granted automatically to families meeting objective criteria relating in particular to their size, income and capital resources, without any individual and discretionary assessment of personal needs, and are intended to meet family expenses must thus be regarded as social security benefits (judgment of 14 June 2016, Commission v United Kingdom, C‑308/14, EU:C:2016:436, paragraph 60).
23


As to whether a particular benefit is among the family benefits referred to in Article 3(1)(j) of Regulation No 883/2004, it must be noted that, in accordance with Article 1(z) of that regulation, the term ‘family benefit’ means all benefits in kind or in cash intended to meet family expenses, excluding advances of maintenance payments and special childbirth and adoption allowances mentioned in Annex I to the regulation. The Court has held that the phrase ‘to meet family expenses’ is to be interpreted as referring in particular to a public contribution to a family’s budget to alleviate the financial burdens involved in the maintenance of children (see, to that effect, judgment of 19 September 2013, Hliddal and Bornand, C‑216/12 and C‑217/12, EU:C:2013:568, paragraph 55 and the case-law cited).
24


As regards the benefit at issue in the main proceedings, it appears from the documents before the Court, first, that ANF is paid to recipients who apply for it where the conditions relating to the number of minor children and to income laid down in Article 65 of Law No 448/1998 are satisfied. The benefit is consequently granted without any individual and discretionary assessment of the claimant’s personal needs, on the basis of a legally defined situation. Secondly, ANF consists in a sum of money paid to those recipients each year in order to meet family expenses. It is therefore a cash benefit intended, by means of a public contribution to a family’s budget, to alleviate the financial burdens involved in the maintenance of children.
25


It follows from all the above considerations that a benefit such as ANF is a social security benefit included among the family benefits referred to in Article 3(1)(j) of Regulation No 883/2004.
27


It is apparent from Article 12(1)(e) read in conjunction with Article 3(1)(c) of Directive 2011/98 that the equal treatment provided for in the former provision must be enjoyed in particular by 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 that directive, 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.
28


However, by virtue of the first indent 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 indent of Article 12(2)(b) of the directive, 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.
29


Thus, like Directive 2003/109, 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 (see, by analogy, judgment of 24 April 2012, Kamberaj, C‑571/10, EU:C:2012:233, paragraphs 86 and 87).