With this order, the Court of Cassation raised once again the question of the constitutional legitimacy of Article 80.19 of law No. 388 of 2000 (which, for other aspects, was already decided by the Constitutional Court in its judgment No. 40 of 2013). In this case, the question of legitimacy concerned the fact that, under Article 80.19, the granting to a foreigner legally staying in Italy of a pension and other benefits that are recognized in Italy to blind persons, requires that he/she has a residence permit. For the Court this requirement results in an unreasonable discrimination, contrary not only to Article 14 of the ECHR, Article 1 of the Additional Protocol and the Charter of Fundamental Rights of the EU, but also to the protection of the right to health and other social rights in accordance with the Italian Constitution. Remembering the established jurisprudence of the Constitutional Court as regards the application of the ECHR into the domestic legal order, the Court of Cassation further noted that it was impossible to interpret Article 80.19 in such a manner as to put it in line with the provisions of the ECHR; on the other hand, the Italian courts may not refuse to apply the national norms that are in conflict with the provisions of ECHR, because the latter have not direct effects into the domestic legal order; as a consequence, the Court of cassation had the obligation of deferring the question to the Constitutional Court.
Decision of the Constitutional Court No. 40 of 11 March 2013