EU Court: Illegal to exclude foreign nationals from family assistance


Judgment of the Court (Grand Chamber) of 2 September 2021


The Court of Justice of the European Union declared illegitimate the exclusion of foreign nationals without a long-term permit from the baby bonus, established in 2015, and the maternity allowance for unemployed mothers.


As regards the childbirth allowance, the Court notes that it is granted automatically to families meeting certain objective criteria defined by law, without any individual and discretionary assessment of the personal needs of the applicant. It is a cash benefit intended, in particular, by way of a public contribution to the family budget, to relieve the burden of maintaining a newborn or adopted child. The Court concludes from this that this allowance constitutes a family benefit within the meaning of Article 3(1)(j) of Regulation No 883/2004.


The Court concludes that the childbirth allowance and the maternity allowance fall within the branches of social security in respect of which third-country nationals referred to in Article 3(1)(b) and (c) of Directive 2011/98 benefit from the right to equal treatment laid down by that directive. According to the Court, that exclusion is contrary to Article 34 of the Charter of Fundamental Rights of the European Union and to Directive 2011/98, which recognises the right to social security for all foreign nationals with a residence permit.The Court concludes that the childbirth allowance and the maternity allowance fall within the areas of social security in respect of which third-country nationals referred to in Article 3(1)(b) and (c) of Directive 2011/98 benefit from the right to equal treatment laid down by that directive. According to the Court, that exclusion is contrary to Article 34 of the Charter of Fundamental Rights of the European Union and to Directive 2011/98, which recognises the right to social security for all foreigners with a residence permit, even a short one, provided that it allows them to work.


Prof. Avv. Paolo Iafrate


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