CELEX: 62005CJ0346
Reference for a preliminary ruling
Article 39 EC and Articles 3 and 67 of Regulation (EEC) No 1408/71
Grant of unemployment benefit subject to the completion of a period of employment in the competent Member State

This reference for a preliminary ruling concerns the interpretation of Article 39(2) EC and Articles 3(1) and 67(2) and (3)
of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons,
to self-employed persons and to members of their families moving within the Community, as amended and updated by Council Regulation
(EC) No 118/97 of 2 December 1996 (OJ 1997 L 28, p. 1) (‘Regulation No 1408/71’).
The reference was made in proceedings between Mrs Chateignier and the Office national de l’emploi (National Employment Office)
(‘the ONEM’) concerning the latter’s refusal to grant her unemployment benefit on the ground that she had failed to fulfil
the requirement of completing at least one day’s employment in Belgium, where she was living on the date when she claimed
that benefit.

Legal context

Community legislation
Article 3(1) of Regulation No 1408/71 provides:
‘Subject to the special provisions of this Regulation, persons resident in the territory of one of the Member States to whom
this Regulation applies shall be subject to the same obligations and enjoy the same benefits under the legislation of any
Member State as the nationals of the State.’
Under Article 67(2) and (3) of Regulation No 1408/71:
‘2.      The competent institution of a Member State whose legislation makes the acquisition, retention or recovery of the right to
benefits subject to the completion of periods of employment shall take into account, to the extent necessary, periods of insurance
or employment completed as an employed person under the legislation of any other Member State, as though they were periods
of employment completed under the legislation which it administers.
3.      Except in the cases referred to in Article 71(1)(a)(ii) and (b)(ii), application of the provisions of paragraphs 1 and 2 shall
be subject to the condition that the person concerned should have completed lastly:
–        in the case of paragraph 1, periods of insurance,
–        in the case of paragraph 2, periods of employment,
in accordance with the provisions of the legislation under which the benefits are claimed.’

National legislation
The national legislation in force at the time when the ONEM refused to grant Mrs Chateignier unemployment benefit was the
Royal Decree of 25 November 1991 regulating unemployment (
Moniteur Belge
, 31 December 1991, p. 29888) (‘the Royal Decree’).
Article 37(2) of the Royal Decree is worded as follows:
‘Work carried out abroad shall be taken into account [for the purposes of eligibility for unemployment benefits] if, were
the employment in Belgium, it would give rise to social security deductions, including those for unemployment.’
The third subparagraph of Article 43(1) of the Royal Decree provides:
‘Articles 35, 36, 37(2) and 38(2) shall apply only in so far as provided in an international convention. Articles 35 and 36
shall also apply, however, to nationals of the countries specified in the Law of 13 December 1976 approving bilateral agreements
on employment of foreign workers in Belgium.’
The constitutionality of Article 43 was challenged before the Cour de cassation (Court of Cassation) (Belgium), which, by
judgment of 25 March 2002, held that that provision was not applicable.

The main proceedings and the question referred for a preliminary ruling
Mrs Chateignier, a French national, married a Belgian national on 8 October 1994 and went to live in Belgium.
On 17 October 1994 Mrs Chateignier filled in an application for unemployment benefit in which she stated that she was a French
national. The following day she submitted a second application and this time stated that she had acquired Belgian nationality
as a result of her marriage. It is that latter document which, together with its annexes, was sent to the appropriate regional
office on 9 December 1994. By decision of 1 February 1995, that office accepted the applicant’s claim for unemployment benefit
with effect from the date of the application.
On 2 October 1995, after moving house, Mrs Chateignier submitted a further document to the competent institution stating that
she still had French nationality. An investigation was therefore initiated, which led to the finding that she had retained
her French nationality.
By decision of 15 December 1995, the ONEM withdrew Mrs Chateignier’s entitlement to unemployment benefit with effect from
18 December 1995 on the ground that, on account of her nationality and the fact that she had not completed a day’s work in
Belgium, she could not claim such benefit. According to the national court, since application of Article 43 of the Royal Decree
was precluded in the case before it by the abovementioned judgment of the Court of Cassation of 25 March 2002, the ONEM relied
on Article 67(3) of Regulation No 1408/71 alone in order to require the completion of a period of employment
On 21 December 1995, after completing one day’s work in Belgium, Mrs Chateignier submitted a fresh claim for unemployment
benefit. The ONEM decision of 15 December 1995 was accordingly annulled and her right to that benefit was recognised with
effect from 21 December 1995, the date of her fresh claim.
In addition, by decision of 10 May 1996, the ONEM stated that at the date of her first claim Mrs Chateignier did not fulfil
the conditions for entitlement to that benefit and, accordingly, that payments wrongly made during the period from 11 October
1994 to 10 December 1995 were to be recovered.
As that decision was upheld at first instance by judgment of the Tribunal du travail de Namur (Labour Court, Namur) (Belgium),
Mrs Chateignier brought an appeal before the referring court.
It was in those circumstances that the Cour du travail de Liège (Higher Labour Court, Liège) decided to stay the proceedings
and to refer the following question to the Court of Justice for a preliminary ruling:
‘Do Article 39(2) EC and Article 3(1) of Regulation No 1408/71, which guarantee equal treatment for workers of the Member
States and free movement of persons (including workers), permit Article 67(3) of Regulation No 1408/71 to be interpreted as
imposing an obligation on a worker who is a national of a Member State to complete a period of employment giving the right
to unemployment benefits in the State of residence even where the internal law of that State does not impose such an obligation
in the case of a foreign worker, whether he is from a Member State or not?’

The question

The admissibility of the question
As a preliminary point, the ONEM objects that the reference for a preliminary ruling is inadmissible on the basis of four
arguments. Firstly, the Court does not have jurisdiction to determine whether Belgian law is compatible with Community law.
Secondly, in a reference for a preliminary ruling on the interpretation of a provision of secondary Community legislation,
the Court cannot adjudicate on the provision’s validity. Thirdly, Community law is not applicable to the situation taken by
the national court as a point of comparison, namely that of nationals of States which are not members of the European Union.
Fourthly, the ONEM maintains that the assumption on which the reference for a preliminary ruling is based, namely that a body
of rules exists which is more favourable to non-Community nationals than Member State nationals, is incorrect.
Whilst the Court has consistently held that, in the context of the application of Article 234 EC, it has no jurisdiction to
decide whether a national provision is compatible with Community law, it may, none the less, extract from the wording of the
questions formulated by the national court, and having regard to the facts stated by the latter, those elements which concern
the interpretation of Community law, for the purpose of enabling that court to resolve the legal problems before it (see Joined
Cases C-330/90 and C-331/90
López Brea and Hidalgo Palacios
[1992] ECR I-323, paragraph 5, and Case C-224/01
Köbler
[2003] ECR I-10239, paragraph 60).
Moreover, it is also settled case-law that it is for the Court alone, where questions may be formulated inappropriately or
go beyond the ambit of its powers under Article 234 EC, to extract from all the information provided by the national court,
and in particular from the grounds of the order for reference, the elements of Community law requiring interpretation – or,
as the case may be, an assessment of validity – having regard to the subject-matter of the dispute (see Case 83/78
Pigs Marketing Board
[1978] ECR 2347, paragraph 26, and Case C-107/98
Teckal
[1999] ECR I-8121, paragraph 34).
It is apparent from the order for reference that the ONEM’s decision of 15 December 1995 to withdraw Mrs Chateignier’s entitlement
to unemployment benefit is based on the simple fact that she informed the institution responsible for payment of that benefit
that, contrary to what she had stated in her initial benefit application, she did not have Belgian nationality but had retained
her French nationality.
In those circumstances, it is clear from the very wording of the order for reference that the principle of equal treatment
may be affected by a situation such as that in the main proceedings and, accordingly, the situation is of such a nature as
to fall within the Court’s jurisdiction in proceedings under Article 234 EC.
Lastly, with regard to the ONEM’s argument that the question referred is based on an incorrect assumption, it is to be noted
that, where there are actual or apparent differences in analysis between the administrative or judicial authorities of a Member
State regarding the proper construction of national legislation, particularly in respect of its exact scope, it is not for
the Court to rule on which interpretation is in accordance, or most in accordance, with Community law. On the other hand,
the Court is required to interpret Community law in the light of the factual and legal situation as described by the referring
court, in order to provide that court with such guidance as will assist it in resolving the dispute before it (see Case C-108/96
Mac Quen and Others
[2001] ECR I-837, paragraph 18).
It follows from the foregoing that the reference for a preliminary ruling is admissible.

Substance
Even though, formally, the national court has confined its reference to interpretation of Articles 3(1) and 67(2) and (3)
of Regulation No 1408/71, comparing the situation of the applicant in the main proceedings with that of non-Community workers,
that does not prevent the Court from providing the national court with all those elements for the interpretation of Community
law which may be of assistance in adjudicating on the case pending before it, whether or not that court has specifically referred
to them in its questions (see, in particular, Case C-241/89
SARPP
[1990] ECR I-4695, paragraph 8, and Case C-456/02
Trojani
[2004] ECR I-7573, paragraph 38).
The element of Community law requiring interpretation in the main proceedings is the principle of equal treatment for Community
workers since it is clear from the order for reference that, as far as grant of unemployment benefit is concerned, a national
of a Member State other than the Kingdom of Belgium and a Belgian national are not treated in the same way even though they
are in similar situations.
Since, according to the order for reference, for Belgian nationals ‘who work abroad the period of paid employment there is
treated as employment which gives rise in Belgium to social security deductions, including in respect of unemployment insurance,
while for [Community nationals from Member States other than the Kingdom of Belgium] any work carried out abroad will be excluded
except where it falls within the framework of specific measures for European Union nationals’, it is necessary to consider
whether, in the light of the principle of equal treatment for Community workers, such an outcome is consistent with Community
law.
It is apparent from the order for reference that, at the date when Mrs Chateignier submitted her first application, she was
a French national and held a residence permit as a national of a Member State of the European Community.
Moreover, it was implicit in that claim that the applicant was registered as a person seeking work. It is also accepted that
the benefits at issue in the main proceeding are unemployment benefits within the meaning of Articles 67 to 71 of Regulation
No 1408/71.
It follows that Mrs Chateignier, as a national of a Member State seeking employment in another Member State, falls within
the scope of Article 39 EC and therefore enjoys the right to equal treatment under Article 39(2) EC. In the field of social
security, such a right is specifically laid down, inter alia, in Article 3(1) of Regulation No 1408/71.
With regard to the scope of that right, the Court has previously ruled that provisions such as Article 39 EC are intended
to eliminate all measures which, in the field of freedom of movement of workers, treat a national of another Member State
more severely or place him in a situation less advantageous, from a legal or factual point of view, than that of one of the
Member State’s own nationals in the same circumstances (see Case 251/83
Haug-Adrion
[1984] ECR 4277, paragraph 14).
In the main proceedings, there can be no doubt that the manner in which the ONEM applies the rules contained in Regulation
No 1408/71 entails a difference in treatment between Belgian nationals and nationals of other Member States.
A difference in treatment of that kind can be justified only if it is based on objective considerations that are independent
of the nationality of the persons concerned and proportionate to the legitimate aim of the national provisions (Case C-237/94
O’Flynn
[1996] ECR I-2617, paragraph 19, and Case C-138/02
Collins
[2004] ECR I-2703, paragraph 66).
In the case in point, neither the ONEM nor the Belgian Government has referred in the observations it submitted to the Court
to any factors which would justify a derogation from the principle of equal treatment in accordance with the conditions set
out in the above paragraph.
Admittedly, the wording of Article 67(2) and (3) of Regulation No 1408/71 permits Member States to make the acquisition, retention
or recovery of the right to unemployment benefits subject to the completion of periods of employment in accordance with provisions
of the legislation under which the benefits are claimed.
Nevertheless, neither the file which the national court sent to the Court of Justice nor the observations submitted by the
Belgian Government indicates that the national legislation requires such periods of employment to have been completed in the
case of Belgian workers who have completed periods of employment under the legislation of another Member State.
In view of the foregoing, the answer to the question referred must be that Article 39(2) EC and Article 3(1) of Regulation
No 1408/71 are to be interpreted as precluding national legislation under which the competent institution of the Member State
of residence denies unemployment benefits to a national of another Member State on the ground that, on the date when the benefit
claim was submitted, the person concerned had not completed a specified period of employment in that Member State of residence,
whereas there is no such requirement for nationals of that Member State.

Costs
Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court,
the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs
of those parties, are not recoverable.
On those grounds, the Court (Fifth Chamber) hereby rules:
Article 39(2) EC and Article 3(1) of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security
schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended
and updated by Council Regulation (EC) No 118/97 of 2 December 1996, are to be interpreted as precluding national legislation
under which the competent institution of the Member State of residence denies unemployment benefits to a national of another
Member State on the ground that, on the date when the benefit claim was submitted, the person concerned had not completed
a specified period of employment in that Member State of residence, whereas there is no such requirement for nationals of
that Member State.
[Signatures]
*
Language of the case: French.