Foreign children excluded from the canteen in Lodi: the opinion of Alberto Nico, Legal Expert of TIA Formazione

As part of the “Migration” section, we interviewed the lawyer Alberto Nico, Legal Expert at TIA Formazione about a recent news episode that has caused a heated debate throughout Italy: the restrictions on the right of access to the canteen and schoolbus to foreign children attending schools in the Municipality of Lodi.                                          

alberto-nico
Alberto Nico, Legal Expert of TIA Formazione

Could you explain how it was possible to get to the exclusion of foreign children from the school canteen and if the behavior of the administration is legitimate?

What happened in the municipality of Lodi is extremely serious, not only because of the obvious discrimination against citizens of countries outside the European Union, but also and above all because the victims of these acts are children, a circumstance which makes the behaviour adopted particularly reprehensible.

The municipality of Lodi, currently led by the Lega Nord, has in fact discriminated against foreign children enrolled in municipal schools, effectively restricting access to canteens and school buses through an instrumental and forced interpretation of legal rules, for purely political purposes.

In order to understand how it has been possible to put in place certain behaviors, you can not help but retrace the legal reasoning behind the affair.

In particular, the Municipality of Lodi, with the resolution of the City Council n. 28 of October 4, 2017, has amended Articles. 8 and 17 of the regulation for access to social benefits facilitated. Article. 8 of the regulation, according to which access to services is by submitting an application to the municipality and that this application may be accompanied by “self-certification, in accordance with current legislation“, were inserted paragraphs 4, 5 and 6.

In particular, paragraph 5 states:

  1. […] nationals of States not belonging to the European Union must produce – even in the event of the absence of income or registered immovable or movable property – the certificate issued by the competent authority of the external State – accompanied by an Italian translation legalised by the Italian consular authority attesting to its conformity – carried out in accordance with the provisions of Article 3 of Presidential Decree No 445/2000 and Article 2 of Presidential Decree No 394/1999 and subsequent amendments in additions in force over time. The composition of the applicant’s family must also be proven in the same way“;

In essence, therefore, the Municipality of Lodi requires non-EU families to present, for the purposes of ISEE certification (the indicator that allows to verify the state of need of the family unit), also the certificates issued by the Administration of the State of origin concerning all data that, for Italian citizens, are subject to self-certification. The result obtained in this way is that of effectively preventing non-EU citizens from accessing the preferential rates for local services. As a result, non-EU schoolchildren are now removed from their home country in comparison with other Italian schoolmates or EU citizens.

The amendment to the Lodi municipal regulation almost blindly reproduces Article 3(2), (3) and (4) of Presidential Decree No 445 of 2000. Consequently, it would appear that the municipality has simply implemented the state law.

The problem lies in strict application, which results in a requirement that is often impossible and therefore discriminatory. In fact, for many immigrants it is difficult to obtain income certification in their country of origin, especially it is difficult to obtain it in time to access the discount of the canteen fee and school bus.

Moreover, the regulatory framework in this area is not limited to the provisions of Presidential Decree no. 445 of 2000.

In fact, it must be remembered that Article 2, paragraph 5, of Legislative Decree No. 289 of 25 July 1998, currently in force, provides that “a foreigner shall be granted equal treatment with the citizen in relation to the judicial protection of rights and legitimate interests, in relations with the public administration and in access to public services, within the limits and in the manner provided for by law”.

Confirmation of the above principle can be found not only in the international conventions (also referred to in the regulations), but also in the constitutional sources or in the common rules of behavioural decency with regard to minors, also in the European law to which, without any doubt, the Municipality must adhere.

Article 11 of Directive 2003/109/EC (“Council Directive on the status of third-country nationals who are long-term residents”) states that “long-term residents (i.e. “third-country nationals with long-term resident status”) shall enjoy the same treatment as nationals as regards: […] social benefits, social assistance and social protection in accordance with national legislation”.

Even more relevant, then, for the specific issue under consideration is art. 10 of the Decree of the President of the Council of Ministers of 5 December 2013, no. 159, which provides that “The applicant shall submit a single declaration in lieu of the family unit referred to in Article 3, in accordance with the consolidated text of laws and regulations on administrative documentation, referred to in Decree of the President of the Republic of 28 December 2000, no. 445, and subsequent amendments, concerning the information necessary for the determination of the ISEE. The DSU shall be valid from the moment of its presentation until 15 January of the following year“.

In the light of the above, the Lodi municipal regulations are seriously unlawful.

It is also essential to analyse the interpretation given by the various courts in relation to the above mentioned rules.

Worthy of mention is the judgment of the Court of Brescia, Sez. lav., 4 February 2016, no. 167/2016. In that judgment, after having given account of Article 2(5) of Legislative Decree No 286 of 1998 and Article 11 of the abovementioned Decree No 2003/109/EC, the Court stated that Article 3 of Presidential Decree No 167/2016 of 4 February 2016 was not applicable. 445 of 2000 does not apply ‘in so far as it makes it subordinate for nationals of States not belonging to the European Union alone to be able to use the substitute declarations referred to in Articles 46 and 47 only in respect of States and facts which can be certified or certified by Italian public bodies, unlike Italian and European Union citizens.

The Judge specified that this conclusion is supported by the fact that the Decree of the President of the Council of Ministers No. 159 of 2013, for the purposes of the application of the ISEE, “does not provide for any distinction of treatment between Italian and foreign nationals in this respect, allowing all without distinction the possibility to carry out self-certification by means of the single substitute declaration of their income and assets also with reference to foreign income and assets“.

The judgments of the Court of Milan, Labour Section, 9 October 2017, no. 2385/2017, and of the Court of Appeal of Brescia, Labour Section, are consistent on this point, 13 December 2016, no. 204/2016, which states that “for the limited and specific purposes of use of the ISEE“, self-certification is “permitted also with reference to property and income located abroad“, on the basis of a regime derogating from the rules of “common” law as per art. 3 of Presidential Decree no. 445 of 2000.

The same principle is also found in the recent judgment of the Court of Cassation number 8617 of 22 February 2018, in which the Court, dealing with the right to free legal aid, stated that the foreigner has the right in the case of urgent services (such as this one of the canteen) to self-certify foreign income after submitting the request to the foreign authority to avoid a prejudice given by the response time.

Therefore, the application of the rules made by the Municipality of Lodi, as discriminatory, appears unconstitutional for violation of the right to study (art. 34 “The school is open to all”) and equality (art.3) as well as of the national and European legislation above.

Schools are the main environment for a correct and full cultural and social integration among future citizens, which is of the utmost need if we really want to counteract the wave of racism that has spread in Europe for some years, and the response of the institutions must be even harder and more decisive when it comes to protecting children.

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Francesca Garreffa