The Constitutional Court has recently filled a grave legislative gap which, for over twenty-six years, hindered a category of foreign nationals from exercising fundamental rights guaranteed by the Italian Constitution. Indeed, in Order No.97 of June 5, 2026, the Court provided a constitutionally oriented interpretation of the contested Article 34 paragraphs 1 and 3, of Legislative Decree No.286 of 1998 (the so-called Consolidated Act on Immigration – TUI). The ruling guarantees compulsory and free enrolment in the National Health Service (SSN) even to foreign nationals who, already holding a residence permit for work or family reasons, are subsequently granted a residence permit for elective residence following the award of a civil disability pension.

The case arose from an appeal lodged with the labour division of the Court of Milan by two non-EU citizens against the Lombardy Region, in which they complained that the requirement to pay €2,000 for voluntary enrolment in the National Health Service (SSN) was discriminatory. The judge noted that the legislator had in fact provided for compulsory and free enrolment in the National Health Service only for a number of specific categories of foreign nationals, excluding those who are recipients of a civil disability pension. This legislative omission would violate Article 3 of the Constitution on the grounds of unreasonable discriminatory treatment, both in relation to other foreign nationals who are equally indigent and in relation to Italian citizens with disabilities. For the same reason, this omission would violate Articles 32 and 117(1) of the Constitution, and would be contrary to Article 13 of the European Social Charter and Articles 4 and 25 of the Convention on the Rights of Persons with Disabilities. The Court of Milan therefore requested that the provision be declared unconstitutional.

In its ruling, whilst declaring the questions of constitutional legitimacy to be unfounded, the Court specified that if the only possible interpretation of Article 34, paragraphs 1 and 3, were the one presented by the referring judge, there would be no doubts as to the violations of Articles 3, 32, 117.1  of the Constitution. This relies on consolidated constitutional case-law, which places persons with severely incapacitating disabilities at the crossroads of “a complex of values that drew upon the fundamental inspiring motives of the constitutional framework”. In addition, the safeguarding of these people’s rights finds “constitutional basis in the guarantee of human dignity and the fundamental right to health[...]”. 

However, in line with a systematic interpretation of the legal system , the Court clarified that the omission should not be read as a deliberate exclusion by the legislator. In fact, the elective residence permit and its conversion mechanism did not exist at the time of the adoption of the contested provision.

Order No. 97/2026 finally provides constitutional certainty regarding the right of foreign nationals with disabilities who hold an elective residence permit to register with the National Health Service free of charge. The Court’s interpretative ruling thus puts an end to nearly three decades of obstacles to the exercise of foreign nationals’ constitutional rights.