CASE OF DHAHBI v. ITALY
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Violation of Article 14+8 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8 - Right to respect for private and family life;Article 8-1 - Respect for family life);Pecuniary and non-pecuniary damage - award
Egidijus Kūris;Guido Raimondi;Helen Keller;Nebojša Vučinić;Paul Lemmens;Peer Lorenzen
5. The applicant was born in 1960 and lives in Marsala (Trapani). 6. The applicant, who subsequently acquired Italian nationality, was at the relevant time a Tunisian national who had entered Italy on the basis of a lawful residence and work permit. He was employed by company A. and insured with the National Social Security Agency (Istituto Nazionale della Previdenza Sociale – “the INPS”). His family was made up of his wife and their four minor children. His income for the year 1999 totalled 30,655,000 Italian lira (ITL – approximately 15,832 euros (EUR)). 7. On 24 May 2001 the applicant lodged an application with the Marsala District Court, acting as an employment tribunal, seeking payment of the family allowance (assegno per nucleo familiare) provided for by section 65 of Law no. 448 of 1998. Under the terms of that provision, the allowance in question was paid by the INPS to families made up of Italian nationals living in Italy with at least three minor children, whose annual income was below the amounts set out in the table appended to Legislative Decree no. 109 of 31 March 1998 (in this instance, the amount applicable to families with five members, namely ITL 36 million (approximately EUR 18,592)). 8. The applicant submitted that even though he did not have Italian nationality as required by Law no. 448 of 1998, the allowance was nevertheless due to him under the association agreement between the European Union and Tunisia – known as the Euro-Mediterranean Agreement – which had been ratified by Italy (Law no. 35 of 3 February 1997). Article 65 of the Agreement provides as follows: “1. Subject to the provisions of the following paragraphs, workers of Tunisian nationality and any members of their families living with them shall enjoy, in the field of social security, treatment free from any discrimination based on nationality relative to nationals of the Member States in which they are employed. The concept of social security shall cover the branches of social security dealing with sickness and maternity benefits, invalidity, old-age and survivors’ benefits, industrial accident and occupational disease benefits and death, unemployment and family benefits. These provisions shall not, however, cause the other coordination rules provided for in Community legislation based on Article 51 of the EC Treaty to apply, except under the conditions set out in Article 67 of this Agreement. 2. All periods of insurance, employment or residence completed by such workers in the various Member States shall be added together for the purpose of pensions and annuities in respect of old age, invalidity and survivors’ benefits and family, sickness and maternity benefits and also for that of medical care for the workers and for members of their families resident in the Community. 3. The workers in question shall receive family allowances for members of their families who are resident in the Community. 4. The workers in question shall be able to transfer freely to Tunisia, at the rates applied by virtue of the legislation of the debtor Member State or States, any pensions or annuities in respect of old age, survivor status, industrial accident or occupational disease, or of invalidity resulting from industrial accident or occupational disease, except in the case of special non-contributory benefits. 5. Tunisia shall accord to workers who are nationals of a Member State and employed in its territory, and to the members of their families, treatment similar to that specified in paragraphs 1, 3 and 4.” 9. In a judgment of 10 April 2002 the Marsala District Court rejected the applicant’s application. 10. The applicant appealed. He requested, among other things, that a question be referred to the Court of Justice of the European Union (“the CJEU”) for a preliminary ruling as to whether, under Article 65 of the EuroMediterranean Agreement, a Tunisian worker could be refused the family allowance provided for by section 65 of Law no. 448 of 1998. 11. In a judgment of 21 October 2004 the Palermo Court of Appeal dismissed the applicant’s appeal. It observed that, as the allowance in question was based solely on the income and family situation of the recipients, it fell within the sphere of social assistance (assistenza sociale). The allowance had initially been intended only for Italian citizens and had subsequently been extended to all European Union nationals. However, the Euro-Mediterranean Agreement related only to social-security benefits (prestazioni previdenziali) and was therefore not applicable to the family allowance provided for by section 65 of Law no. 448 of 1998. 12. The applicant lodged an appeal on points of law, reiterating his request for a preliminary ruling to be sought from the CJEU. 13. In a judgment of 15 April 2008 which was deposited with the registry on 29 September 2008, the Court of Cassation dismissed the appeal. 14. In its reasons, the Court of Cassation observed first of all that Article 64(1) and (2) of the Euro-Mediterranean Agreement provided, inter alia, as follows: “1. The treatment accorded by each Member State to workers of Tunisian nationality employed in its territory shall be free from any discrimination based on nationality, as regards working conditions, remuneration and dismissal, relative to its own nationals. 2. All Tunisian workers allowed to undertake paid employment in the territory of a Member State on a temporary basis shall be covered by the provisions of paragraph 1 with regard to working conditions and remuneration.” 15. Noting that the text in question referred explicitly to employment relationships and the elements that comprised them, the Court of Cassation inferred from this that it applied only to social-security benefits and not to social-assistance benefits of the kind claimed by the applicant, to which Tunisian citizens resident in Italy were not entitled. According to the Court of Cassation, this interpretation was confirmed by Article 65(1) and (2) of the Euro-Mediterranean Agreement, which referred in particular to “sickness and maternity benefits, invalidity, old-age and survivors’ benefits, industrial accident and occupational disease benefits and death, unemployment and family benefits”. The Court of Cassation stressed that its interpretation was not based solely on the reference in the text to “social security” (previdenza sociale) but, as indicated by the CJEU, on the elements comprising each benefit. 16. This judgment was served on the applicant on 2 October 2008.