Official Journal of the European Union

EN

C series

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C/2024/6927

25.11.2024

(Case C-630/24)

(C/2024/6927)

Language of the case: Italian

Parties

Applicant: European Commission (represented by: D. Recchia, B.-R. Killmann, Agents)

Defendant: Italian Republic

Form of order sought

The Commission claims that the Court should:

—declare that, by having introduced a residence requirement in Legislative Decree No 230 of 29 December 2021 on the single and universal allowance for dependent children, the Italian Republic has failed to fulfil its obligations under Article 45 TFEU, Articles 4, 7 and 67 of Regulation No 883/2004 (1) and Article 7(2) of Regulation No 492/2011; (2)

—order the Italian Republic to pay the costs.

Pleas in law and main arguments

On 26 September 2024, the Commission sought a declaration from the Court of Justice that, by having introduced a residence requirement in Legislative Decree No 230 of 29 December 2021 on the single and universal allowance for dependent children (‘the single allowance’), the Italian Republic has failed to fulfil its obligations under Article 45 TFEU, Articles 4, 7 and 67 of Regulation No 883/2004 and Article 7(2) of Regulation No 492/2011.

The single allowance constitutes a family benefit within the meaning of Article 3(1)(j) of Regulation 883/2004, read in conjunction with Article 1(z) of that regulation. The single allowance also constitutes a social advantage within the meaning of Article 7(2) of Regulation No 492/2011. Since it falls within the scope of the abovementioned regulations, the single allowance must be able to exported within the European Union for the purposes of Articles 7 and 67 of Regulation No 883/2004, and must be able to be granted in a non-discriminatory manner, for the purposes of Article 4 of Regulation No 883/2004 and Article 7(2) of Regulation No 492/2011, since both give concrete expression to the principle of equal treatment referred to in Article 45 TFEU concerning the freedom of movement for persons, in respect of conditions of employment.

The grant of the single allowance in Italy is, however, subject to the condition of residence in Italy. Such a condition of residence prevents the benefit of the single allowance from being exported by those having income in Italy but not resident there, or not resident in Italy for at least two years (or, alternatively, not having an employment contract of at least a six-monthly duration) or by those – although resident in Italy within the meaning of subparagraphs (c) and (d) of Article 3(1) of Legislative Decree No 230/2021 – whose children are not resident in Italy. Such a condition of residence also represents indirect discrimination on grounds of nationality, in particular as regards social advantages, and is permissible only if it is justified by the pursuit of a legitimate objective, and is appropriate and proportionate to the objective being pursued, circumstances which, however, the Italian authorities – which have the burden of proving that those circumstances exist – have not demonstrated.

(1) 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).

(2) Regulation (EU) No 492/2011 of the European Parliament and of the Council of 5 April 2011 on freedom of movement for workers within the Union (OJ 2011 L 141, p. 1).

ELI: http://data.europa.eu/eli/C/2024/6927/oj

ISSN 1977-091X (electronic edition)

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