Opinion of Advocate General Pikamäe delivered on 25 January 2024

A. European Union law

3. Articles 4 to 7 and 9 to 11 of Directive 2003/109 and Article 34 of the Charter of Fundamental Rights of the European Union (‘the Charter’) are relevant to the present cases.

B. Italian law

4. Article 2 of decreto-legge n. 4 ‘Disposizioni urgenti in materia di reddito di cittadinanza e di pensioni’ (Decree-Law No 4 containing urgent provisions on basic income and pensions) of 28 January 2019 (GURI No 23 of 28 January 2019), converted into law by legge n. 26 ‘Conversione in legge, con modificazioni, del decreto-legge 28 gennaio 2019, n. 4, recante disposizioni urgenti in materia di reddito di cittadinanza e di pensioni’ (Law No 26, converting into law, after amendments, Decree-Law No 4 of 28 January 2019 containing urgent provisions on basic income and pensions) of 28 March 2019 (GURI No 75 of 29 March 2019) (‘Decree-Law No 4/2019’), entitled ‘Beneficiaries’, provides in paragraph 1:

‘[Basic income] shall be granted to households that, as at the time the application is made and throughout the period for which the benefit is paid, satisfy the following conditions cumulatively:

1. with regard to the conditions relating to nationality, permanent residence or residence, the person claiming the benefit must cumulatively:

   1. hold Italian nationality or that of a Member State of the European Union, or [be a] family member thereof, as defined in Article 2(1)(b), of decreto legislativo 6 febbraio 2007, n. 30 (Legislative Decree No 30 of 6 February 2007), who has the right of residence or permanent residence, or [be] a third-country national holding an EU long-term residence permit;

   2. have been resident in Italy for at least 10 years, the final two of which, as at the time the application is made and throughout the period for which the benefit is paid, must be consecutive.

…’

5. Article 7 of that decree-law, headed ‘Penalties’, stipulates in paragraph 1:

‘Save where the act constitutes a more serious criminal offence, any person who, for the purpose of obtaining unduly the benefit referred to in Article 3, makes or uses declarations or documents which are false or certify matters which are untrue, or fails to supply the information required, shall be liable to a term of imprisonment of two to six years.’

A. Legal framework for analysis

13. At its General Meeting of 2 May 2023, the Court decided, pursuant to Article 101 of the Rules of Procedure of the Court of Justice, to send a request for clarification to the referring court, asking the latter to confirm the legal status of the persons charged with criminal offences in the main proceedings and to specify which act of EU law it considered applicable to those persons, as well as the specific provisions whose interpretation it considered necessary in order to resolve the disputes before it.

14. In its replies to that request, submitted to the Court on 9 June 2023 in Case C‑223/22 and on 13 June 2023 in Case C‑112/22, the referring court stated that the persons concerned are both third-country nationals with the status of long-term residents in Italy. In the reply given in Case C‑112/22, the referring court confirmed that it sought an interpretation of Article 11(1)(d) of Directive 2003/109, which it considered to be of use in resolving the dispute before it. By contrast, in the reply given in Case C‑223/22, the referring court reiterated the need to interpret all the provisions mentioned in the questions referred to the Court for a preliminary ruling.

15. In the light of that clarification, the legal analysis will be structured as follows. First, I will set out my views on the objections raised by the parties concerned as to the jurisdiction of the Court and the admissibility of the reference for a preliminary ruling (Subsections B and C). Next, I will examine, inter alia, the question of the compatibility of the condition of residence stipulated by the relevant Italian legislation with Directive 2003/109 (Subsection D).

B. Jurisdiction of the Court

16. According to the information in the case file, basic income, as provided for by Decree-Law No 4/2019, consists of household income support of up to EUR 6 000, plus additional income support for families living in rented accommodation, capped at EUR 3 360 per year. Basic income is paid continuously over a period not more than 18 months, although that period may be renewed.

17. Access to basic income is subject to a declaration by the adult members of the household that they are available for work and will follow a personalised support programme towards employment and social inclusion. The programme may entail community service, retraining, further education and other activities defined by the relevant authorities for the purpose of social inclusion and integration into the labour market. The support programme is formalised by an employment agreement which essentially requires the person to actively seek work and accept suitable job offers, or a social inclusion agreement signed by the local services responsible for combating poverty.

18. In its written observations, the Italian Government challenged the jurisdiction of the Court to answer the questions raised on the ground that the national legislation on basic income fell within the exclusive jurisdiction of the Member States. According to the Italian Government, basic income is not a social assistance or social protection measure, the aim of which is to provide the persons concerned with a certain level of income. Rather, it is a complex measure which has the broader aim of combating social exclusion. Since EU law does not apply to the disputes in the main proceedings, the Italian Government contends that the Court should decline jurisdiction in the present case.

19. On that basis, the Italian Government challenges the characterisation of basic income given by the referring court. That challenge is based, in essence, on judgment No 19/2022 of the Corte costituzionale (Constitutional Court, Italy) of 10 January 2022.

20. In the case giving rise to that judgment, the Corte costituzionale (Constitutional Court) was called upon to rule on the constitutionality of Article 2(1)(a)(1) of Decree-Law No 4/2019, which requires, among the various eligibility criteria for basic income, third-country nationals to hold a long-term EU residence permit. Specifically, the court was asked whether, since basic income is intended to cover basic human needs, limiting the type of beneficiary was consistent with the principle of equal treatment enshrined in Article 3 of the Italian Constitution.

21. In its judgment, the Corte costituzionale (Constitutional Court) recalled its previous finding that ‘the rules on basic income define a workplace integration programme that is more than just financial support’, and that basic income ‘cannot be regarded purely as social assistance, given that it is accompanied by a training and integration programme involving specific obligations that must be complied with in order to remain on the programme’.

22. The Corte costituzionale (Constitutional Court) also held that, ‘although it resembles an anti-poverty measure, basic income is not a social assistance benefit designed to meet the primary needs of the individual: instead it has different and more structured objectives of active employment policy and social integration’. That court thus found the question of constitutionality referred to it to be unfounded.

23. The finding of the Corte costituzionale (Constitutional Court) finding as to the nature of basic income does not seem to substantiate the view that Article 11(1)(d) of Directive 2003/109 does not apply, and thus that the Court of Justice lacks jurisdiction to hear the questions referred for a preliminary ruling.

24. That provision refers to national law for a definition of the concepts of ‘social security’, ‘social assistance’ and ‘social protection’. The Court has previously held that that reference implies that it is for the referring court to determine whether a national measure constitutes a benefit that falls within one of the categories referred to in that article.⁽³⁾ That latter finding is simply a specific expression of the general rule, which is based on the need for a clear separation of functions between the national courts and the Court in the context of the reference for a preliminary ruling, according to which the Court does not have jurisdiction to interpret national law, it being solely for the referring court to determine the exact scope of national laws, regulations or administrative provisions.⁽⁴⁾ In the present case, the referring court has clearly indicated that basic income falls into one of the three categories set out in Article 11(1)(d) of Directive 2003/109, such that the applicability of that article cannot be called into question.

25. Admittedly, to provide an answer that may be of use to the national court, the Court, in accordance with settled case-law, may provide guidance based on the documents relating to the main proceedings and on the written and oral observations which have been submitted to it, including elements that the national court must take into account in order to give judgment in that case.⁽⁵⁾ However, the case-law only authorises the Court to include in its answer elements of national law capable of serving the abovementioned purpose, without interpreting that law.

26. The Court is only empowered to rule on the interpretation of EU law in the light of the factual and legal situation as described by the referring court, and cannot call that situation into question or determine its accuracy in the light of the judgment of a national court, even a supreme court.

27. In view of the foregoing, the referring court’s characterisation of the measure at issue should be followed, and basic income should thus be treated as a benefit falling within the concept of ‘social assistance’, as provided for in Article 11(1)(d) of Directive 2003/109. Since that directive therefore applies to the present case, the Court must, in my view, declare that it has jurisdiction to hear the requests for a preliminary ruling.

C. Admissibility

28. The Italian Government and the Commission submitted, in their written observations, that the requests for a preliminary ruling are inadmissible under Article 94 of the Rules of Procedure.

29. Both parties argued that the orders for reference are incomplete as regards the status of the persons remanded before the referring court in the criminal case in the main proceedings. The referring court explains, in the grounds for the answers it proposes to the questions referred for a preliminary ruling, that the condition of residence at issue in the main proceedings gives rise to discrimination, to the detriment of third-country nationals who are long-term residents, nationals and citizens of the Union, and third-country nationals who are beneficiaries of international protection, whereas the questions referred concern acts relating to all such categories of persons. However, the categories of legal status are mutually exclusive and cannot be held cumulatively by the persons concerned in the present cases.

30. In that regard, it must be recalled that according to settled case-law, under Article 94 of the Rules of Procedure, the referring court should provide at the very least some explanation of the reasons for the choice of the provisions of EU law which it seeks to have interpreted and of the link which it establishes between those provisions and the national legislation applicable to the proceedings pending before it.⁽⁶⁾

31. In the present case, in the light of the answers provided by the referring court to the Court’s request for clarification, it must be concluded that the questions referred for a preliminary ruling are admissible in so far as they concern the interpretation of Directive 2003/109.⁽⁷⁾

D. Substance

32. By its questions, the referring court asks, in essence, whether Article 11(1)(d) of Directive 2003/109 must be interpreted as precluding national legislation which makes the access of long-term resident third-country nationals to a social assistance measure subject to a condition of residence in the Member State concerned for a minimum period of 10 years, the final two of which must be consecutive, and which provides for a criminal penalty in the event of a false declaration of that condition.

33. First, some clarification is needed in order to define the legal regime of the provision of secondary law that the Court is asked to interpret.

34. It is clear from recitals 2, 4, 6 and 12 of Directive 2003/109 – a key instrument in the EU’s legal framework for legal migration – 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, bringing the rights of those third-country 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.⁽⁸⁾

35. Directive 2003/109 determines the terms for granting and withdrawing long-term resident status and the rights pertaining thereto, along with the terms of residence in other Member States for third-country nationals enjoying that status. Such a status corresponds to the highest level of integration for a third-country national unless they acquire the nationality of the host Member State.

36. It is appropriate, to state which provisions of the directive are relevant in the present case.

37. Article 4(1) of that directive provides that Member States are to grant long-term resident status to third-country nationals who have resided legally and continuously within its territory for five years immediately prior to the submission of the relevant application. Article 5 sets out the conditions for acquiring that status. Under paragraph 1(a) and (b) of that article, third-country nationals must prove that they have adequate resources and sickness insurance to avoid becoming a burden for the Member State.⁽⁹⁾ The first subparagraph of Article 6(1) provides that the status in question may be refused on grounds of public policy or public security. Article 7 establishes procedural rules governing the examination of the application for that status, and Article 9 governs the conditions for withdrawal or loss of that status.

38. As I pointed out above, long-term resident status, once acquired, means, inter alia, that third-country nationals enjoy equal treatment with nationals of the host Member State, in addition to enhanced protection against expulsion.

39. In accordance with Article 11(1) of Directive 2003/109, such equal treatment concerns the areas listed therein, in particular social security, social assistance and social protection (point (d)) as defined by national law, subject to the derogations that Member States may establish under paragraphs 2, 3 and 4 thereof.

40. Since the measure at issue in the present case falls, in the opinion of the referring court, within one of those areas under national law, basic income is covered by Article 11(1)(d) of Directive 2003/109.

41. The need to ensure equal treatment thus applies in the present case.

42. Before examining whether equal treatment has been respected, I should point out that the case-law of the Court on the interpretation of Article 7(2) of Regulation No 492/2011 is not applicable by analogy in the present case owing to the different nature of the rights of free movement and the rights of third-country nationals who are long-term residents.

43. The former rights are conferred on nationals of the Member States by the Treaty. The idea behind that case-law is that Article 7(2) of Regulation No 492/2011 ‘is the particular expression, in the specific area of the grant of social advantages, of the principle of equal treatment enshrined in Article 45(2) TFEU, and must be accorded the same interpretation as that provision’.⁽¹⁰⁾ Consequently, when the question arises of equal treatment between workers who are nationals of a Member State and national workers as regards social and tax advantages, it must be determined whether the difference in treatment resulting from a national measure pursues a legitimate objective and is consistent with the principle of proportionality.

44. The latter rights stem from Directive 2003/109 as an instrument of secondary legislation. In effect, in the judgments in which it ruled on the interpretation of Article 11(1)(d) thereof, the Court did not consider that provision to be a ‘particular expression’ of an article of the Treaty.⁽¹¹⁾

45. Since the EU legislature, in Directive 2003/109, has already exhaustively provided for the situations in which Member States may derogate from equal treatment between third-country nationals holding long-term resident status and nationals,⁽¹²⁾ a difference in treatment between those two categories of nationals who are in a comparable situation is, in itself, an infringement of Article 11(1)(d) thereof.

46. Accordingly, the case-law on freedom of movement for workers may, in my view, only serve to ascertain the existence of a difference in treatment between third-country nationals who are long-term residents compared with nationals of the host Member State and the comparability of their situations.

47. In the present case, in view of the comparability of the situations of those two categories of nationals, the Italian Government has stated that basic income is a particularly complex measure from an administrative point of view, since when it is implemented, it is necessary to adhere to specific agreements for each household and continually monitor their implementation, as well as pay considerable sums out of public funds. It is for that reason that, in the opinion of the Italian Government, the national legislature has duly limited eligibility for that benefit to nationals with strong and permanent roots both in the Italian labour market and in Italian society more generally.

48. Assuming that the Italian Government thus seeks to evoke the administrative and economic difficulties, it must be considered that those difficulties are not good reasons for third-country nationals not being regarded as in a comparable situation to nationals of the host Member State with the same economic need, when, having complied both with the procedure and the conditions provided for under Directive 2003/109, they have acquired the status of long-term residents conferred by that directive.⁽¹³⁾ I would add that, in a more recent judgment, the Court decided that those two categories of nationals cannot be regarded as being in a different situation because of their respective links with the host Member State, such a justification being contrary to the view taken by the EU legislature that long-term resident status gives rise to the right to equal treatment with nationals under Article 11(1) of Directive 2003/109.⁽¹⁴⁾

49. As for the question of whether the condition at issue in the main proceedings leads to a difference in treatment between those categories of nationals, it seems to me that the answer must be in the affirmative.

50. Admittedly, that condition is required of all those who claim basic income, regardless of whether they are nationals or third-country nationals who are long-term residents. Nevertheless, it is important to note that nothing in Article 11(1) of Directive 2003/109 suggests that the equal treatment referred to therein only prohibits overt discrimination based on the nationality of the person concerned (direct discrimination). On the contrary, it extends to all covert forms of discrimination which, by applying other distinguishing criteria, ultimately have the same effect (indirect discrimination).

51. It is clear from the case-law of the Court that any distinction based on residence, such as that established in the present case by the condition at issue in the main proceedings, is liable to operate mainly to the advantage of nationals, as non-residents are in the majority of cases foreign nationals.⁽¹⁵⁾ The same applies to a distinction based on the duration of residence when the treatment of nationals is compared with that of third-country nationals who have acquired long-term resident status after residing legally for five years in the territory of the Member State concerned.

52. At the hearing, the Italian Government argued that third-country nationals who are long-term residents are properly integrated into Italian society as long as they enjoy the same rights as Italian nationals (except for political rights), have a minimum income and housing, and are sufficiently proficient in the Italian language. Thus, the ability of those nationals to satisfy the condition at issue in the main proceedings is, according to the Italian Government, substantially similar to that of Italian nationals. However, I do not see how that argument is capable of invalidating the finding made in the previous point of this Opinion.

53. The referring court points out that the condition of residence at issue in the main proceedings is also likely to affect Italian nationals who return to Italy after having resided in another Member State. However, it seems to me that that circumstance is equally incapable of calling into question the conclusion we have reached. In that regard, it is important to note that the Court has already ruled that in order for a measure to be treated as being indirectly discriminatory, it is not necessary for it to have the effect of placing at an advantage all the nationals of the State in question or of placing at a disadvantage only nationals of other Member States to the exclusion of nationals of the State in question.⁽¹⁶⁾

54. Lastly, the Court will have to address the question of compliance with Directive 2003/109 of a national provision, such as Article 7(1) of Decree-Law No 4/2019, providing for a custodial sentence of two to six years in the event of a false declaration relating to the condition at issue in the main proceedings, as provided for in Article 2(1)(a)(2) of that decree.

55. The legal rules regarding such a penalty are not laid down in Directive 2003/109 and are thus governed by national law. However, that does not mean that those rules comply with the directive in question.

56. It should be recalled that the condition at issue in the main proceedings is a material element of the criminal offence, the characterisation of which leads to the penalty in question being imposed.

57. It follows that, if the Court were to decide, as I propose, that that condition is contrary to EU law, in particular Article 11(1)(d) of Directive 2003/109, the national court would be required to disapply both Article 2(1)(a)(2) and Article 7(1) of Decree-Law No 4/2019.

58. As the referring court points out, in substance, the non-application of the national provision establishing that condition has the effect of removing the material element of the offence from the declaration of the person remanded before the criminal court and, consequently, the criminal offence as a whole. More specifically, the inapplicability of the provision setting out that condition makes the content of the false declaration irrelevant under Article 7(1) of Decree-Law No 4/2019.

59. Accordingly, the criminal penalty provided for in the event of a false declaration relating to the condition at issue in the main proceedings is also contrary to EU law.⁽¹⁷⁾

60. In view of those considerations, I propose that the Court answer the questions put by the referring court as follows: that Article 11(1)(d) of Directive 2003/109 must be interpreted as precluding national legislation which makes the access to a national social assistance measure subject to a condition of residence in the Member State concerned for a minimum period of 10 years, the final two of which must be consecutive, and which provides for a criminal penalty in the event of false declaration of that condition.