Commission of the European Communities v Kingdom of Belgium.
Date: 1996-09-12
20 In that connection, it must be borne in mind that a provision of national law must be regarded as indirectly discriminatory if it is intrinsically liable to affect migrant workers more than national workers and if there is a consequent risk that it will place the former at a particular disadvantage. It is not necessary to find that the provision in question does in practice affect a substantially higher proportion of migrant workers. It is sufficient that it is liable to have such an effect (see, in particular and most recently, Case C-237/94 O' Flynn v Adjudication Officer [1996] ECR I-0000, paragraphs 20 and 21).
The complaint concerning grant of the tideover allowance
25 Next, it need merely be borne in mind that, in its later judgment in Deak, the Court held that Regulation No 1408/71 could not be relied on to claim the Belgian tideover allowance (paragraphs 16 and 27), but that that allowance constituted a social advantage within the meaning of Article 7(2) of Regulation No 1612/68.
27 Finally, regarding the fact that the contested condition applies without distinction, according to settled case-law the requirement of equal treatment laid down both in Article 48 of the Treaty and in Article 7 of Regulation No 1612/68 prohibits not only overt discrimination by reason of nationality but also all covert forms of discrimination which, by the application of other distinguishing criteria, lead in fact to the same result (see in particular Case 152/73 Sotgiu v Deutsche Bundespost [1974] ECR 153, paragraph 11; Case C-27/91 URSSAF v Le Manoir [1991] ECR I-5531, paragraph 10; Commission v Luxembourg, cited above, paragraph 9; Case C-419/92 Scholz v Opera Universitaria di Cagliari and Cinza Porcedda [1994] ECR I-505, paragraph 7, and, very recently, O' Flynn, cited above, paragraph 17).
28 Thus, among others, conditions applied without distinction which may be more easily fulfilled by national workers than migrant workers are prohibited. For example, in Commission v Luxembourg, cited above, the Court considered, in paragraph 10, that such a prohibition applied to a requirement that a mother be resident within the territory of the Grand Duchy for a year before the birth of a child, such a condition being in practice more easily fulfilled by a Luxembourg national than by a national of another Member State.
39 It follows that the special programmes in question, which, in view of their special features, are linked to unemployment, fall outside the field of access to employment in the strict sense, as provided for in Title I of Regulation No 1612/68, in particular Article 3(1) on which the Commission relies.
40 The application of Community law on freedom of movement for workers in relation to national rules concerning unemployment insurance requires that a person invoking that freedom must have already participated in the employment market by exercising an effective and genuine occupational activity, which has conferred on him the status of a worker within the Community meaning of that term (see in particular, with regard to a study grant, Case 197/86 Brown v Secretary of State for Scotland [1988] ECR 3205, paragraph 21; regarding the grant of public financial assistance, Case C-357/89 Raulin v Minister van Onderwijs en Wetenschappen [1992] ECR I-1027, paragraph 10). By definition, that is not the case where young people are seeking their first employment.