Italy - Court of Appeal of Milan, Decision No. 1626/2018, RG. No. 344/2018, 22 October 2018
Country of Decision:
Country of Applicant:
Date of Decision:
15-10-2018
Court Name:
Court of Appeal of Milan - Labour Section
Keywords:
Relevant Legislative Provisions:
European Union Law > EN - Recast Reception Conditions Directive, Directive 2013/33/EU of 26 June 2013 > Article 17
European Union Law > EN - Recast Reception Conditions Directive, Directive 2013/33/EU of 26 June 2013 > Article 19
European Union Law > EN - Recast Reception Conditions Directive, Directive 2013/33/EU of 26 June 2013 > Article 19
National / Other Legislative Provisions:
Law No. 537/1993
Legislative Decree No. 150/2015
Legislative Decree No. 181/2000
Legislative Decree No. 142/2015
Ministry of Labour Circular No. 5090 of 4 April 2016
Legislative Decree No. 150/2015
Legislative Decree No. 181/2000
Legislative Decree No. 142/2015
Ministry of Labour Circular No. 5090 of 4 April 2016
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Headnote:
Foreign asylum seekers without employment have a right to be exempted from the payment of health care contributions under Art. 8(16) of Law No. 537/1993, irrespective of whether they are seeking a job for the first time or have worked in the past. The entitlement to this benefit depends solely on the condition of “non-employment” under Art. 19(1), (2) and (7) of Legislative Decree 150/2015 and to the declaration by the non-employed individual of their availability to work. Denying this benefit to jobless asylum seekers amounts to discrimination.
Facts:
The applicant is a Senegalese national with a residence permit; he is seeking job for the first time and has a formal declaration of immediate availability to work. He applied for exemption from the E02 medical ticket, provided by Article 8(16) of Law No 537/1993, which exempts from the health care contribution only people who are unemployed. However, the request was not accepted, as according to the Agency for Health Protection of the Metropolitan City of Milan, the right to exemption is granted only to those who have ceased working and not to those who are seeking a first job, such as the applicant.
Therefore, the applicant brought an action before the Tribunal of Milan, demanding his exemption pursuant to Art. 19(1) and (7) of Legislative Decree No. 150/2015 or, alternatively, under Art. 17 (4) of Directive 2013/33/EU; he also requested reimbursement of the amount paid. The Tribunal of First Instance upheld a literal interpretation of Art. 8(16) of Law No. 537/1993: regardless of the person’s citizenship, the position of a first-time jobseeker does not fall within the category of unemployed people. On these grounds, the Tribunal dismisses the action.
The applicant appealed against the decision. His complaint is based on the fact that the Tribunal ignored the legislative amendments to Law No. 537/1993; in particular, he argues that there has been an infringement of Article 19(1) and (7) of Legislative Decree No. 150/2015. The applicant also alleges a violation of the obligations arising for asylum seekers from EU Directive 2013/33. Finally, he again requests the reimbursement of the amount paid.
Decision & Reasoning:
Pursuant to Art. 17(4) of Directive 2013/33/EU, Member States may require applicants to cover or contribute to the cost of the material reception conditions and of the health care, if the applicants have sufficient resources. However, Italy has decided not to make use of this derogation and the implementing law (Legislative Decree No. 142/2015) does not contain any provision that obliges asylum seekers to contribute to the costs of health care. Therefore, the right of exemption arises directly from the application of European Union legislation which, as it is sufficiently detailed and unconditional, must prevail over any other incoherent national law.
The Court then focuses on the notion of unemployed person and on its interpretation in the light of the amendments introduced by Legislative Decree No. 150/2015.Pursuant to Art. 19(1) of Legislative Decree No. 150/2015, unemployed persons are those who declare their immediate availability for work. This decree overcomes the distinction between unemployed persons and first-time jobseekers, putting them on an equal footing. Since the applicant is jobless and has made the declaration of immediate availability for work, he falls within the category of unemployed according to Article 19(1) of Legislative Decree No 150/2015. The Court thus granted him the right to exemption under Article 8(16) of Law No. 537/1993.
The Court also stated that the recognition of the right to exemption from contributions does not depend on the distinction between “unemployed” and “jobless”, on the basis of Article 19(7) of Legislative Decree No 150/2015. Pursuant to this provision, when law requires unemployment as the condition to grant social benefits, this category is to be understood as referring solely to the condition of non-employment.
Outcome:
Appeal partially upheld.
Subsequent Proceedings :
The judgment was never appealed before the Supreme Court and is now final.
Observations/Comments:
This case summary was written by Alessandra Alosi, Ruggero Leotta, Stefano Scalora and Alessia Sgroi, members of the Legal Clinic of the University of Catania.
Other sources cited:
Domestic case law cited
Court of Cassation ord. No. 25246 of 16 October 2008
Court of Cassation, judgement No. 11799/2017 of 12 May 2017
Tribunal of Rome, Labour Section, judgement of 13 June 2018
Tribunal of Brescia, Order of 30 July 2018
