CELEX: 62005CJ0346
Language: en
Date: 2006-11-09
Title: Judgment of the Court (Fifth Chamber) of 9 November 2006.#Monique Chateignier v Office national de l'emploi (ONEM).#Reference for a preliminary ruling: Cour du travail de Liège - Belgium.#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.#Case C-346/05.

Case C-346/05
      Monique Chateignier
      v
      Office national de l’emploi (ONEM)
      (Reference for a preliminary ruling from the Cour du travail de Liège)
      (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)
      Summary of the Judgment
      Social security for migrant workers – Equal treatment 
      (Art. 39(2) EC; Art. 3(1) of Council Regulation No 1408/71)
      The principle of equal treatment as laid down in Article 39(2) EC and Article 3(1) of Regulation No 1408/71 precludes 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.
      
      (see paras 29, 36, operative part)
JUDGMENT OF THE COURT (Fifth Chamber)
      9 November 2006 (*)
      
      (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)
      In Case C‑346/05,
      REFERENCE for a preliminary ruling under Article 234 EC from the Cour du travail de Liège (Belgium), made by decision of 6
         September 2005, received at the Court on 22 September 2005, in the proceedings
      
      Monique Chateignier
      v
      Office national de l’emploi (ONEM),
      THE COURT (Fifth Chamber),
      composed of J. Klučka, President of the Seventh Chamber, acting for the President of the Fifth Chamber, R. Silva de Lapuerta
         (Rapporteur) and J. Makarczyk, Judges,
      
      Advocate General: C. Stix-Hackl,
      Registrar: R. Grass,
      having regard to the written procedure,
      after considering the observations submitted on behalf of:
      –        the Office national de l’emploi (ONEM), by R. Joly, avocat,
      –        the Belgian Government, by M. Wimmer, acting as Agent,
      –        the Italian Government, by I.M. Braguglia, acting as Agent, and by G. Aiello, avvocato dello Stato,
      –        the Commission of the European Communities, by V. Kreuschitz and J.-P. Keppenne, acting as Agents,
      having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,
      gives the following
      Judgment
      1        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’).
      
      2        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
      3        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.’
      
      4        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
      5        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’).
      
      6        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.’
      
      7        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.’ 
      
      8        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
      9        Mrs Chateignier, a French national, married a Belgian national on 8 October 1994 and went to live in Belgium. 
      
      10      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. 
      
      11      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. 
      
      12      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
      
      13      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.
      
      14      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. 
      
      15      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.
      
      16      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 
      17      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. 
      
      18      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).
      
      19      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).
      
      20      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. 
      
      21      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. 
      
      22      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). 
      
      23      It follows from the foregoing that the reference for a preliminary ruling is admissible. 
      
       Substance
      24      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).
      
      25      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. 
      
      26      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. 
      
      27      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. 
      
      28      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.
      
      29      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. 
      
      30      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).
      
      31      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. 
      
      32      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).
      
      33      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. 
      
      34      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. 
      
      35      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.
      
      36      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
      37      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.