C-424/98

OPINION OF MR RUIZ-JARABO — CASE C-424/98

OPINION OF ADVOCATE GENERAL RUIZ-JARABO C O L O M E R delivered on 16 November 1999 *

1. The Commission has brought an action 3. Directive 90/366 was annulled by the before the Court of Justice for a declaration Court of Justice because it had been that the Italian Republic has failed to fulfil adopted by the Council on an improper its obligations. To be specific, the Commis- legal basis. 5However, in its judgment the sion alleges that the Member State excee- Court decided that it was appropriate to ded its authority when it came to transpose maintain for the time being all the effects of into its national law Directive 90/364/EEC the annulled directive until such time as the on the right of residence 1 (hereinafter Council replaced it with a new directive 'Directive 90/364'), Directive 90/365/ adopted on the proper legal basis. The new EEC 2 on the right of residence for workers directive was adopted on 29 October 1993 who have ceased their occupational activity and the period prescribed for the Member (hereinafter 'Directive 90/365') and Direc- States to adjust their national law expired tive 93/96/EEC on the right of residence for on 31 December that year. students 3(hereinafter 'Directive 93/96').

4. The three 1990 Directives were trans- 2. Directive 90/364 and Directive 90/365, posed into Italian law by Legislative Decree and also Directive 90/366/EEC on the right No 470 of 26 November 1992 concerning of residence for students 4 (hereinafter the implementation of Directives 90/364, 'Directive 90/366'), were adopted by the 90/365 and 90/366 on the right of residence Council in order to extend to all Commu- for Community nationals, for employees nity nationals the right to reside in a and self-employed persons who have ceased Member State other than their own, pro- their occupational activity, and for stu- vided that they did not become a burden on dents. 6 the public finances of the host State. The period prescribed for the Member States to transpose these rules into their national law expired on 30 June 1992.

II — Proceedings before the Court of 5. In accordance with the provisions of Justice Article 169 of the EC Treaty (now Arti- cle 226 EC) the Commission put its point of view to the Italian authorities in a letter it sent to them on 13 June 1995 inviting 8. As the Commission received no subse- them to submit their observations within quent information about the stage reached two months. in the adoption of those rules, nor any text making the appropriate amendments to the national law, it concluded that the Italian Republic had not adopted the necessary provisions for correctly transposing the 6. The Italian Government replied through three directives into national law and that, its Permanent Representation, on 6 Decem- if it had done so, it had not communicated ber 1995, with two notes from the Ministry the text to the Commission, as it was under of Labour and Social Security, prepared by a duty to do. It therefore brought an action the Department of Social Security and before the Court of Justice on 25 Novem- Welfare and by the Department of Employ- ber 1998 for a declaration that that Mem- ment. After examining the notes, the Com- ber State had failed to fulfil its obligations. mission considered that the reply was inadequate and, on 11 November 1996, sent a reasoned opinion to the Italian Republic. 9. The Italian Republic filed its defence to the application on 25 March 1999. The Commission waived its right to supplement its application by a reply. In accordance 7. Italy's Permanent Representation with the provisions of Article 44a of its informed the Commission, in a letter dated Rules of Procedure, the Court, with the 13 December 1996, that Article 1(6) of the express consent of the parties, decided that

11. The Commission puts forward three pleas in support of its action for failure to fulfil obligations, because it considers that Family members who are dependent on a there are three areas in which Italian law is beneficiary of Directive 90/365 are granted not compatible with the provisions of the the right of residence if the beneficiary can Directives which recognise the right of prove that he has, for each of them, an residence for Community nationals in the income of not less than that minimum territory of the Member States. These three salary. On the other hand, the right of pleas, which I shall analyse separately, residence for family members of a bene- relate to the resources of the members of ficiary of Directive 90/364 is conditional on the family of the beneficiaries of Directive his having, for each of them, an income

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equivalent to that minimum salary plus one some income, whereas the beneficiaries of third of the amount again. 7 The result is Directive 90/365 must be in receipt of an that, as far the right of residence for family invalidity or early retirement pension, or members is concerned, the beneficiaries of old age benefit or a pension in respect of an Directive 90/364 are required to have industrial accident or disease. Both the resources one third higher than those which income, in the first situation, and the the beneficiaries of Directive 90/365 must pension or benefit in the second, must be have. of an amount sufficient to prevent them becoming a burden on the social security system of the host State during their period of residence.

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16. I think that the Commission is right to Italian public health service certificate. A state that Italy should have imposed the beneficiary of Directive 90/365 is required same conditions regarding income in to submit a consular certificate confirming respect of the family members of the that he is in receipt of a pension or benefit beneficiaries of the two directives. Accord- or other income, and indicating the ingly, by keeping in force a law which amount, whereas a beneficiary of Directive requires family members of beneficiaries of 90/364 and members of his family who are Directive 90/364 to have resources one dependent on him are required to submit a third greater than family members of copy, certified by the Consulate, of the beneficiaries of Directive 90/365, Italy has documents issued in the State of origin or failed to fulfil its obligations under Direc- provenance which show that the required tive 90/364. income exists and, if such income is obtained in Italy, the supporting documents issued by the competent authorities.

17. For the reasons I have given, I think that the Commission's first plea is well founded. Furthermore, and in general, for those family members who are dependent on him, the person who has the right of residence must submit an official document issued by the competent authority of the Member State of origin or provenance confirming that they are members of his B. The second plea: the condition relating family and dependent on him. to the documents which must be submitted by the beneficiaries of Directive 90/364 and 90/365

beneficiaries of the Directives to obtain Republic adds that it has signed adminis- those precise documents and that the trative agreements intended to facilitate the Italian authorities could ascertain, by other, spontaneous exchange of information with equally valid means, that the applicants seven of the States in the Union. It con- satisfy the conditions necessary to be cludes that it docs not share the doubt granted the right of residence. expressed by the Commission as to whether or not there is, in the other Member States, a public authority which can certify, in such circumstances, the amount of taxable income received by the person applying for a residence permit. 20. The Italian Republic states, in its defence, that, if the person applying for the residence permit is a worker who has ceased his occupational activity, he will be in receipt of a pension or benefit or other equivalent income. The bilateral double taxation agreements concluded between Italy and the other States in the Union It ends its defense to the application by provide that pensions received by persons pointing out, in relation to the documents formally employed in the private sector are accepted to prove relationship or depen- subject to tax in the State in which the dency, that Decree No 403 of the President taxpayer resides and the State which pays of the R e p u b l i c w a s p u b l i s h e d on them must not, in principle, deduct tax. 24 November 1998 in the Official Journal Therefore, the organisation which pays the of the Italian Republic (GURI No 275); pension or benefit in the State of origin or Article 5 of the Decree simplifies the rules provenance will, without great difficulty, be governing administrative documents and able to issue a certificate confirming the confers the same treatment on Union amount of the income received by the nationals as on Italian nationals. person in question.

However, when regulating this matter, they must take into account the wide variety of legal systems which coexist in the Union and the great many different situations 23. In the light of that objective I share the which may arise in practice and, above opinion of the Commission that the Italian all, make use of the advantages offered by Republic has exceeded its authority in the other provisions of Community law avail- exercise of its discretion by requiring that able to them, such as — as well as the all the documents to be submitted by communication channels established by persons applying for residence permits in Directive 77/799, to which Italy has refer- Italy and to whom Directive 90/364 and red — the opportunities presented by Directive 90/365 apply, are issued by public Regulations (EEC) No 1408/71 and authorities and certified by consular autho- 574/72, 9 when it comes to providing rities, without agreeing to the submission of evidence, by means of certificates issued evidence which the applicant could obtain by the national social security institutions with less difficulty Italy's assertion that, at the request of the applicants, of the since the end of 1998, for the purposes of welfare cover provided by a specific social proving relationship or dependency, it has security scheme and the amounts of the applied the same treatment to Union pensions and benefits they pay out. nationals as to Italian nationals, cannot be accepted, because it has adduced no evi- dence of this and because there is no record that the Commission has been informed of that amendment.

C. The third plea: the condition relating to national of a Member State who has been the income of students and members of accepted to attend a vocational training their family and the proof of it (Directive course in another Member State, the Mem- 93/96) ber States shall recognise the right of residence for any student who is a national of a Member State and who does not enjoy that right under other provisions of Com- 25. Article 5b, which was added to Presi- munity law, and for the student's spouse dential Decree No 1656 by Legislative and their dependent children, where the Decree No 470, recognises the right of student assures the relevant national residence in Italian territory for students authority, by means of a declaration or by who are nationals of a Member State and such alternative means as the student may have an income of not less than the choose that are at least equivalent, that he minimum amount under the Italian com- has sufficient resources to avoid becoming pulsory social security scheme. The mem- a burden on the social assistance system of bers of his family are acknowledged to the host Member State during their period enjoy the same right provided that the of residence, provided that the student is student has an overall income, for each of enrolled in a recognised educational estab- them, of that minimum amount. lishment for the principal purpose of fol- lowing a vocational training course there and that he is covered by sickness insurance in respect of all risks in the host Member State.' In order to be granted a residence permit, the student is required to make an ad hoc declaration, stating the amount of his income, before the competent public authority, or to submit copies of evidential 27. I notice that in this text, in order to documents issued by the authorities of obtain a residence permit, the beneficiaries another Member State and certified by the of Directive 93/96, unlike the beneficiaries consular authorities. For family members of Directives 90/364 and 90/365, are not who are his dependents, he must present required to have sufficient resources, nor to copies of documents, issued in the State of be in receipt of a minimum income, nor to origin or provenance and certified by the provide documentary evidence of their consular authorities, confirming the exis- means. tence of the income or, in the case of income obtained in Italy, copies of docu- ments issued by the relevant institutions.

permit to one year, renewable annually, so 29. For the reasons I have explained, I that they have greater capacity to intervene agree with the Commission that, by requir- in the event that the applicant becomes ing students who are nationals of other dependent on the social assistance system. Member States to guarantee to the Italian Thirdly, if a student is short of money, he is a u t h o r i t i e s t h a t they h a v e financial better placed than the beneficiaries of the resources of a certain level for themselves, other Directives to supplement his income their spouse and dependent children, by not by doing small temporary or part-time jobs, establishing clearly that it is enough for the even though it may be impossible to prove, student to declare that he has financial in advance, that he will find himself in that resources and that he does not have to position. submit documentary proof, and by not allowing the student to guarantee, by making a declaration, that he has sufficient resources to avoid his spouse and depen- dent children becoming a burden on the social assistance system, the Italian Repub- lic has failed to fulfil its obligations under Directive 93/96. I also note that Directive 93/96 substan- tially reduces the number of family mem- bers to whom the right of residence may extend. In fact, whereas the family mem- bers entitled to settle with a beneficiary of Directives 90/364 and 90/365 in the terri- tory of the Member State include the 30. The third plea of the application, to spouse and dependent children and any which the Italian Republic has offered no dependent ascendant relatives of the person defence, is, therefore, also well founded. entitled to right of residence and of his spouse, only a spouse and dependent chil- dren may settle with a student.

— by imposing on the beneficiaries of Directive 90/364 the obligation to have, for the members of their family, resources one third higher in amount than the resources which the beneficiaries of Directive 90/365 are required to have for the members of their family;

— by limiting the methods of proof which may be submitted with the application for the residence permit and providing that documents must- be issued or certified by the authorities of another Member State, and

— by requiring students who are nationals of other Member States to guarantee to the Italian authorities that they have resources of a certain level for themselves, their spouse and dependent children, by not

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establishing clearly that it is enough for the student to declare that he has financial resources and that he does not have to submit documentary proof, and by not allowing the student to guarantee, by making a declaration, that he has sufficient resources to avoid his spouse and dependent children becoming a burden on the social assistance system.