Gérald De Cuyper v Office national de l'emploi.
Date: 2006-07-18
22. As far as concerns social security benefits the Court has, on several occasions, discussed the factors to be taken into consideration for the purposes of ascertaining the legal nature of such benefits. Thus, the Court has stated that a benefit may be regarded as a social security benefit in so far as it is granted, without any individual and discretionary assessment of personal needs, to recipients on the basis of a legally defined position and provided that it concerns one of the risks expressly listed in Article 4(1) of Regulation No 1408/71 (see, inter alia , Case 249/83 Hoeckx [1985] ECR 973, paragraphs 12 to 14, and Case C-78/91 Hughes [1992] ECR I-4839, paragraph 15).
23. In the case in the main proceedings, as regards whether the benefit is granted without any individual and discretionary assessment of personal needs, it must be pointed out that grant of the allowance at issue is subject to conditions which are exhaustively listed in Article 44 et seq .  of the Royal Decree of 25 November 1991, the competent authorities having no discretion with regard to that grant. Admittedly, the level of the allowance can vary according to the personal circumstances of the unemployed person. However, apart from the fact that that aspect concerns the procedure for calculating the allowance, this is an objective and legally defined criterion which gives entitlement to the benefit without the competent authority being able to take other personal circumstances into consideration. The grant of the allowance therefore does not depend on an individual assessment of the claimant’s personal needs, which is a characteristic feature of social assistance (see Case C-66/92 Acciardi  [1993] ECR I-4567, paragraph 15).
25. The Court has already held that, in order to be categorised as social security benefits, benefits must be regarded, irrespective of the characteristics peculiar to different national legal systems, as being of the same kind when their purpose and object as well as the basis on which they are calculated and the conditions for granting them are identical. On the other hand, characteristics which are purely formal must not be considered relevant criteria for the classification of the benefits (see, to that effect, Case 171/82 Valentini  [1983] ECR 2157, paragraph 13).
27. As regards its purpose, that allowance is aimed at enabling the workers concerned to provide for themselves following an involuntary loss of employment when they still have the capacity for work. In order to distinguish between different categories of social security benefits, ‘the risk covered’ by each benefit must also be taken into consideration. Thus an unemployment benefit covers the risk associated with the loss of revenue suffered by a worker following the loss of his employment although he is still able to work. A benefit granted if that risk materialises, namely loss of employment, and which is no longer payable if that situation ceases to exist as a result of the claimant’s engaging in paid employment must be regarded as constituting an unemployment benefit.
30. Moreover, the allowance at issue in the main proceedings is an allowance which is subject to the Belgian statutory unemployment benefits scheme. The fact that an unemployed person in a situation such as that of Mr De Cuyper is exempt from the requirement to register as a job-seeker and consequently from the requirement of being available for work in no way affects the fundamental characteristics of the allowance as set out in paragraphs 27 and 28 of this judgment.
34. It must thus be concluded that a benefit such as that received by Mr De Cuyper, the grant of which is not of a discretionary nature and which is intended to cover the risk linked to involuntary loss of employment where the worker retains his capacity for work, must be regarded as an unemployment allowance that falls within the scope of Regulation No 1408/71 even if, under a national provision, the recipient is exempt from registering as a job-seeker.
Article 18 EC
36. According to that wording, the right to reside within the territory of the Member States which is conferred directly on every citizen of the Union by Article 18 EC is not unconditional. It is conferred subject to the limitations and conditions laid down by the Treaty and by the measures adopted to give it effect (Case C-456/02 Trojani  [2004] ECR I-7573, paragraphs 31 and 32).
37. To that effect it is necessary first of all to examine Regulation No 1408/71. According to Article 10 thereof, unless the regulation provides otherwise, ‘invalidity, old-age or survivors’ cash benefits, pensions for accidents at work or occupational diseases and death grants acquired under the legislation of one or more Member States shall not be subject to any reduction, modification, suspension, withdrawal or confiscation by reason of the fact that the recipient resides in the territory of a Member State other than that in which the institution responsible for payment is situated’. The list in that article does not include unemployment benefits. It follows that that provision does not preclude the legislation of a Member State from making entitlement to an unemployment allowance conditional on residence in the territory of that State.
38. In that regard, Regulation No 1408/71 provides for only two situations in which the competent Member State is required to allow recipients of an unemployment allowance to reside in the territory of another Member State while retaining their entitlement to it. Firstly, there is the situation provided for in Article 69 of the regulation, allowing unemployed persons who go to a Member State other than the competent State ‘in order to seek employment there’ to retain their entitlement to unemployment benefit. Secondly, there is the situation referred to in Article 71 of that regulation, relating to unemployed persons who, during their last employment, were residing in the territory of a Member State other than the competent State. It is clear from the order for reference that a situation such as that of Mr De Cuyper is not covered by either of those articles.
39. It is established that national legislation such as that in this case which places at a disadvantage certain of its nationals simply because they have exercised their freedom to move and to reside in another Member State is a restriction on the freedoms conferred by Article 18 EC on every citizen of the Union (see, to that effect, Case C-224/98 D’Hoop [2002] ECR I-6191, paragraph 31, and Case C‑224/02 Pusa  [2004] ECR I-5763, paragraph 19).
40. Such a restriction can be justified, with regard to Community law, only if it is based on objective considerations of public interest independent of the nationality of the persons concerned and proportionate to the legitimate objective of the national provisions.
41. In the present case, the enactment of a residence clause reflects the need to monitor the employment and family situation of unemployed persons. That clause allows ONEM inspectors to check whether the situation of a recipient of the unemployment allowance has undergone changes which may have an effect on the benefit granted. That justification is accordingly based on objective considerations of public interest independent of the nationality of the persons concerned.
42. A measure is proportionate when, while appropriate for securing the attainment of the objective pursued, it does not go beyond what is necessary in order to attain it.