Office national de l'emploi v Ioannis Ioannidis.
Date: 2005-09-15
2. This reference has been made in the course of proceedings between Mr Ioannidis and the Office national de l’emploi (National Employment Office, hereinafter ‘ONEM’) regarding the latter’s decision to refuse to grant the respondent the tideover allowance provided for under Belgian law.
Law
Community law
20. It should be noted at the outset that the fact that the national court has formulated the question referred for a preliminary ruling with reference to certain provisions of Community law does not preclude the Court from providing to the national court all the elements of interpretation which may be of assistance in adjudicating on the case pending before it, whether or not that court has 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).
21.  In this case, it must be borne in mind that nationals of a Member State seeking employment in another Member State fall within the scope of Article 39 EC and therefore enjoy the right to equal treatment laid down in paragraph 2 of that provision.
22. The Court has already held that, in view of the establishment of citizenship of the Union and the interpretation of the right to equal treatment enjoyed by citizens of the Union, it is no longer possible to exclude from the scope of Article 39(2) EC a benefit of a financial nature intended to facilitate access to employment in the labour market of a Member State (Case C-138/02 Collins  [2004] ECR I-2703, paragraph 63).
23. It is common ground that the tideover allowances provided for by the national legislation at issue in the main proceedings are social benefits, the aim of which is to facilitate, for young people, the transition from education to the employment market (Case C-224/98 D’Hoop  [2002] ECR I-6191, paragraph 38).
25. In those circumstances the defendant is justified in relying on Article 39 EC to claim that he cannot be discriminated against on the basis of nationality as far as the grant of a tideover allowance is concerned.
26. According to settled case-law, the principle of equal treatment prohibits not only overt discrimination based on nationality but also all covert forms of discrimination which, by applying other distinguishing criteria, lead in fact to the same result (see, inter alia, Case 152/73 Sotgiu  [1974] ECR 153, paragraph 11, and Case C-209/03 Bidar  [2005] ECR I-0000, paragraph 51).
28. That condition could place, above all, nationals of other Member States at a disadvantage. Inasmuch as it links the grant of that allowance to the requirement that the applicant has obtained the required diploma in Belgium, that condition can be met more easily by Belgian nationals.
29. Such a difference in treatment can be justified only if it is based on objective considerations which are independent of the nationality of the persons concerned and proportionate to the aim legitimately pursued by the national law (Case C-237/94 O’Flynn  [1996] ECR I-2617, paragraph 19, and Collins , paragraph 66).
30. As the Court has already held, it is legitimate for the national legislature to wish to ensure that there is a real link between the applicant for that allowance and the geographic employment market concerned ( D’Hoop , paragraph 38).
31. However, a single condition concerning the place where the diploma of completion of secondary education was obtained is too general and exclusive in nature.  It unduly favours an element which is not necessarily representative of the real and effective degree of connection between the applicant for the tideover allowance and the geographic employment market, to the exclusion of all other representative elements. It therefore goes beyond what is necessary to attain the objective pursued ( D’Hoop , paragraph 39).
34. It must be added that the tideover allowance constitutes a social advantage within the meaning of Article 7(2) of Regulation No 1612/68 ( D’Hoop , paragraph 17).
35. According to settled case-law, the principle of equal treatment laid down in Article 7 of Regulation No 1612/68, which extends to all the advantages which, whether or not linked to a contract of employment, are generally granted to national workers primarily because of their objective status as workers or by virtue of the mere fact of their residence on the national territory, is also intended to prevent discrimination to the detriment of descendants dependent on the worker (see, in particular, Case 32/75 Cristini  [1975] ECR 1085, paragraph 19, Case 94/84 Deak  [1985] ECR 1873, paragraph 22, and Case C-337/97 Meeusen  [1999] ECR I-3289, paragraph 22).