Marie-Nathalie D'Hoop v Office national de l'emploi.
Date: 2002-07-11
17 As a preliminary point, it should be recalled that the Court has already held that the tideover allowance provided for young people seeking their first employment constitutes a social advantage within the meaning of Article 7(2) of Regulation No 1612/68 (Case 94/84 Deak [1985] ECR 1873, paragraph 27, and Commission v Belgium, cited above, paragraph 25).
18 However, the Court has consistently held that 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 with regard to the grant of tideover allowances Commission v Belgium, cited above, paragraph 40). By definition, that is not the case where young people are seeking their first employment (Commission v Belgium, cited above, paragraph 40).
24 It is important to note that the main proceedings do not concern the recognition of Community law rights allegedly acquired before the entry into force of the provisions on citizenship of the Union, but relate to an allegation of current discriminatory treatment of a citizen of the Union.
25 The provisions on citizenship of the Union are applicable as soon as they enter into force. Therefore they must be applied to the present effects of situations arising previously (see, to that effect, Case C-195/98 sterreichischer Gewerkschaftsbund [2000] ECR I-10497, paragraphs 54 and 55, and Case C-290/00 Duchon [2002] ECR I-0000, paragraphs 43 and 44).
27 Article 8 of the Treaty confers the status of citizen of the Union on every person holding the nationality of a Member State.  Since she possesses the nationality of a Member State, Ms D'Hoop enjoys that status.
28 Union citizenship is destined to be the fundamental status of nationals of the Member States, enabling those who find themselves in the same situation to enjoy within the scope ratione materiae of the Treaty the same treatment in law irrespective of their nationality, subject to such exceptions as are expressly provided for (Case C-184/99 Grzelczyk [2001] ECR I-6193, paragraph 31).
29 The situations falling within the scope of Community law include those involving the exercise of the fundamental freedoms guaranteed by the Treaty, in particular those involving the freedom to move and reside within the territory of the Member States, as conferred by Article 8a of the EC Treaty (now, after amendment, Article 18 EC) (Case C-274/96 Bickel and Franz [1998] ECR I-7637, paragraphs 15 and 16, and Grzelczyk, paragraph 33).
30 In that a citizen of the Union must be granted in all Member States the same treatment in law as that accorded to the nationals of those Member States who find themselves in the same situation, it would be incompatible with the right of freedom of movement were a citizen, in the Member State of which he is a national, to receive treatment less favourable than he would enjoy if he had not availed himself of the opportunities offered by the Treaty in relation to freedom of movement.
31 Those opportunities could not be fully effective if a national of a Member State could be deterred from availing himself of them by obstacles raised on his return to his country of origin by legislation penalising the fact that he has used them (see, to that effect, Case C-370/90 Singh [1992] ECR I-4265, paragraph 23).
32 That consideration is particularly important in the field of education. The objectives set for the activities of the Community include, in Article 3(p) of the EC Treaty (now, after amendment, Article 3(1)(q) EC), a contribution to education and training of quality. That contribution must, according to the second indent of Article 126(2) of the EC Treaty (now the second indent of Article 149(2) EC) be aimed, inter alia, at encouraging mobility of students and teachers.
33 In situations such as that in the main proceedings, national legislation introduces a difference in treatment between Belgian nationals who have had all their secondary education in Belgium and those who, having availed themselves of their freedom to move, have obtained their diploma of completion of secondary education in another Member State.
34 By linking the grant of tideover allowances to the condition of having obtained the required diploma in Belgium, the national legislation thus places at a disadvantage certain of its nationals simply because they have exercised their freedom to move in order to pursue education in another Member State.
35 Such inequality of treatment is contrary to the principles which underpin the status of citizen of the Union, that is, the guarantee of the same treatment in law in the exercise of the citizen's freedom to move.
36 The condition at issue could be justified only if it were based on objective considerations independent of the nationality of the persons concerned and were proportionate to the legitimate aim of the national provisions (Bickel and Franz, paragraph 27).
38 The tideover allowance provided for by Belgian legislation, which gives its recipients access to special employment programmes, aims to facilitate for young people the transition from education to the employment market.  In such a context 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.
39 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.