The Court of Justice of the EU ruled on Monday 29 July (case. C-112/22 and C-223/22 ND) that access by third country nationals who are long-term residents to a social security, social assistance or social protection measure “may not be made subject to the condition of having resided for at least 10 years in a Member State”, the last two of which continuously.
The case concerns two third country nationals who are long-term residents of Italy and who are accused of committing a criminal offence in 2020 after applying for a ‘citizenship income’.
They allegedly falsely certified that they met the conditions and received €3,414.40 and €3,186.66 respectively.
The Naples court asked whether this residence condition complied with the directive on third country nationals who are long-term residents.
In its judgment, the Court emphasised that the system introduced by Directive 2003/109 makes the acquisition of long-term resident status subject to a specific procedure and, in addition, to the obligation to fulfil certain conditions, including the requirement of five years' lawful and uninterrupted residence in the national territory.
The Court therefore considers that a residence requirement of 10 years, the last two of which must be continuous, is contrary to Directive 2003/109.
Article 11 of Directive 2003/109 exhaustively sets out the situations in which Member States may derogate, in terms of residence, from equal treatment of third country nationals who are long-term residents and nationals. Thus, apart from these situations, a difference in treatment between these two categories of nationals is in itself an infringement of the directive.
“A difference in treatment between third country nationals who are long-term residents and nationals of the Member State concerned cannot be justified by the fact that they are in a different situation on account of their respective links with that Member State”.
The period of legal and uninterrupted residence of five years provided for by the Directive in order to obtain long-term resident status, which testifies to the “putting-down of roots of the person in the country”, must therefore be considered sufficient for such a person to be entitled to equal treatment with nationals.
Penal sanctions are also incompatible with the Directive, as they are imposed to ensure compliance with an obligation that is itself incompatible with the Directive.
Link to the judgment: https://aeur.eu/f/d5k (Original version in French by Solenn Paulic)