Opinion of the Advocate General — ECLI:EU:C:2002:141
Date: 2002-03-06
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC;Free movement of workers
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary of the Judgment 
1. Officials — Conditions of Employment of Other Servants — Legal nature — 
Regulation — Obligations of Member States — Observance of the complementary 
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SUMMARY — CASE C-92/02 
nature of the Community system of unemployment benefits — Entitlement of former 
member of the temporary staff to Community unemployment benefits — Application 
of a national rule against the overlapping of benefits 
(Art. 249, second para., EC; Conditions of Employment of Other Servants, Art. 28a(1), 
second subpara.; Council Regulation No 259/68) 
2. Freedom of movement for persons — Workers — Equal treatment — Variations 
among Member States arising from differences between national social security 
legislation — Whether permissible — Conditions — Person carrying on an activity 
as a post-graduate student — Person deemed to be a trainee fellowship student who is 
not entitled to any rights under the national system of unemployment benefits — 
Whether permissible 
(Art. 39(2) EC; Council Regulation No 1612/68, Art. 7(4)) 
1. By virtue of the second paragraph of 
Article 249 EC, the Conditions of 
Employment of Other Servants of the 
European Communities, laid down by 
Regulation No 259/68, have general 
application, are binding in their enti­
rety and are directly applicable in all 
Member States. It follows that, in 
addition to having effects within the 
Community administration, they are 
also binding on Member States in so far 
as their cooperation is necessary in 
order to give effect to those measures. 
According to the second subparagraph 
of Article 28a(l) of the Conditions of 
Employment of Other Servants, where 
a former member of the temporary 
staff is entitled to unemployment bene­
fits under a national scheme, the 
amount of those benefits will be 
deducted from the allowance paid 
under the Community system. This 
provision therefore means that the 
relationship between the Community 
system of unemployment benefits and 
the systems of the Member States is a 
complementary one. Therefore, that 
complementary relationship cannot be 
disregarded in the application of a 
national system of unemployment 
benefits and, specifically, of a rule 
against the overlapping of benefits 
under that system, to a former member 
of the temporary staff who resides in 
that Member State and is entitled to 
unemployment benefits paid under the 
Conditions of Employment of Other 
Servants. 
(see paras 32-35, operative part 1) 
2. Community law does not detract from 
the power of the Member States to 
organise their social security systems. 
In the absence of harmonisation at 
Community level, it is for the legis­
lation of each Member State to deter­
mine both the conditions concerning 
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KRISTIANSEN 
the right or duty to be insured with a 
social security scheme and the con­
ditions for entitlement to benefits. 
Nevertheless, the Member States must 
comply with Community law when 
exercising that power. 
In this respect, while prohibiting each 
Member State, within the scope of the 
Treaty, from applying its national law 
in a manner which produces a different 
result depending on the nationality of 
the persons concerned, the principle of 
non-discrimination, which is laid down 
in both Article 39(2) EC and Article 7 
of Regulation No 1612/68 on freedom 
of movement for workers within the 
Community, does not apply to any 
variations in treatment which there 
may be among the Member States, 
and which arise from differences 
between national laws, so long as these 
variations affect in the same way those 
to whom the laws apply, according to 
objective criteria and without regard to 
their nationality. 
Therefore, in particular, the principle 
of non-discrimination laid down by 
Article 7(4) of Regulation No 1612/68 
does not preclude a person carrying on 
an activity as a post-graduate student, 
like that performed under a contract 
intended to enhance the professional 
qualifications of young workers, who 
receives no salary but does receive a 
monthly amount to cover travel and 
subsistence costs and who is respon­
sible for payment of social security 
contributions and taxes, from being 
deemed, in a Member State, to be a 
trainee fellowship student who is not 
entitled to any rights under the national 
system of unemployment benefits, even 
though in other Member States a 
person carrying on similar activities is 
deemed to be carrying on an occupa­
tional activity and is entitled to benefits 
under the unemployment benefits sys­
tem. 
(see paras 37-38, 40, operative part 2) 
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