Déborah Prete v Office national de l’emploi.
Date: 2012-10-25
18. In that regard, it should be observed at the outset that it is settled case-law that Article 12 EC, which lays down a general prohibition of all discrimination on grounds of nationality, applies independently only to situations governed by EU law for which the Treaty lays down no specific rules of non-discrimination (see, inter alia, Case 305/87 Commission v Greece  [1989] ECR 1461, paragraph 13; Case C-336/96 Gilly [1998] ECR I-2793, paragraph 37; Case C-100/01 Oteiza Olazabal [2002] ECR I-10981, paragraph 25; and Case C-240/10 Schulz-Delzers and Schulz [2011] ECR I-8531, paragraph 29).
19. In relation to the freedom of movement for workers, the principle of non-discrimination was implemented by Article 39 EC as well as by secondary legislation, inter alia Council Regulation (EEC) No 1612/68 of 15 October 1968 on freedom of movement for workers within the Community (OJ, English Special Edition 1968 (II), p. 475) (see, inter alia, Commission v Greece , paragraph 12; Gilly , paragraph 38; Case C-138/02 Collins  [2004] ECR I-2703, paragraph 55; and Schulz-Delzers and Schulz , paragraph 29 and case-law cited).
20. In relation to Article 18 EC, which sets out generally the right of every citizen of the Union to move and reside freely within the territory of the Member States, it is also settled case-law that this provision finds specific expression in Article 39 EC in relation to freedom of movement for workers (see, inter alia, Oteiza Olazabal , paragraph 26; Case C-287/05 Hendrix [2007] ECR I-6909, paragraph 61; and Schulz-Delzers and Schulz , paragraph 30).
On the applicability of Article 39 EC
22. Article 39(3) EC confers on the nationals of Member States inter alia the right to move freely within the territory of other Member States and the right to stay for the purpose of seeking employment. Thus, 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 (see inter alia Collins , paragraphs 56 and 57).
23. In this connection, the Court has held that, in order to determine the scope of the right to equal treatment for persons seeking employment, this principle should be interpreted in the light of other provisions of EU law, in particular Article 12 EC (see Collins , paragraph 60).
25. The Court has stated in this respect that in view of the establishment of citizenship of the Union and the interpretation in the case-law of the right to equal treatment enjoyed by citizens of the Union, it was no longer possible to exclude from the scope of Article  39(2) EC – which expresses the fundamental principle of equal treatment, guaranteed by Article 12 EC – a benefit of a financial nature intended to facilitate access to employment in the labour market of a Member State (see Collins , paragraph 63, and Case C-258/04 Ioannidis  [2005] ECR I-8275, paragraph 22).
26. It is undisputed that the tideover allowance provided for by the national legislation at issue in the main proceedings is a social benefit, the aim of which is to facilitate, for young people, the transition from education to the labour market (see, inter alia, D’Hoop , paragraph 38, and Ioannidis , paragraph 23).
28. In those circumstances Ms Prete is justified in relying on Article 39 EC to claim that she cannot be discriminated against on the basis of nationality as far as the grant of a tideover allowance is concerned (see, to this effect, Ioannidis , paragraph 25).
On the existence of a difference in treatment
29. According to settled case-law, the equal treatment rule laid down in Article 39 EC prohibits not only overt discrimination on grounds of nationality but also all covert forms of discrimination which, by the application of other criteria of differentiation, lead in fact to the same result (see, in particular, Ioannidis , paragraph 26 and case-law cited).
31. A condition relating to the obligation to have studied in an educational establishment of the host Member State can by its very nature more easily be met by nationals of that Member State and therefore may well place nationals of other Member States, above all, at a disadvantage (see, by analogy, Ioannidis , paragraph 28).
On the justification of a difference in treatment
32. It follows from the case-law that a difference in treatment such as that identified previously can be justified only if it is based on objective considerations independent of the nationality of the persons concerned and proportionate to the legitimate aim of the national provision (see, inter alia, D’Hoop , paragraph 36; Collins , paragraph 66; and Ioannidis , paragraph 29).
33. In this respect, and in relation to allowances such as those at issue in the main proceedings, the purpose of which is to facilitate the transition from education to the labour market for young people, the Court has held that it was 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 (see, inter alia, D’Hoop , paragraph 38; Collins,  paragraphs 67 and 69; and Ioannidis , paragraph 30).
34. As to the requirement of proportionality, it should be noted that the Court has already held that a single condition concerning the place where the diploma of completion of secondary education was obtained, such as that at point 2(a) of the first subparagraph of Article 36(1) of the Royal Decree, is too general and exclusive in nature in that 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 concluded that the said condition went beyond what is necessary to attain the aim pursued (see D’Hoop , paragraph 39, and Ioannidis , paragraph 31).
42. Under the division of jurisdiction provided for in Article 267 TFEU, it is in principle the task of the national court to ensure that the principle of proportionality is duly observed (see, inter alia, Case C-476/99 Lommers [2002] ECR I-2891, paragraph 40). In that context it is thus for the national courts to establish whether the specific circumstances of a case show that there is a real link with the relevant labour market (see, to this effect, Joined Cases C-22/08 and C-23/08 Vatsouras and Koupatantze [2009] ECR I-4585, paragraph 41).
43. None the less, according to the Court’s case-law, the Court may provide the national court with an interpretation of EU law on all such points as may enable that court to assess the compatibility of a national measure with EU law for the purposes of the decision in the case before it. In the present case, the national court has also raised a number of specific queries which should be answered (see, to this effect, inter alia, Lommers , paragraph 40).
45. In this respect, it is appropriate first of all to reject the line of argument of the Belgian Government according to which a person such as Ms Prete, in particular if she resides close to the border with the Member State in which she has completed her studies, is more likely to enter the labour market of that State, with which she has a connection. Firstly, it must be stated that the knowledge acquired by a student in the course of his higher education does not in general assign him to a particular geographical employment market (see, to this effect, Case C-209/03 Bidar  [2005] ECR I-2119, paragraph 58). Secondly, it must be noted that the circumstances thus put forward by the Belgian Government to justify the possible existence of a link between the claimant and the French labour market are not, in any event, such as to prevent such a link with the Belgian labour market being formed in the circumstances at issue in the main proceedings.
46. Furthermore, in relation to the latter point, the Court has held that the existence of a real link with the labour market of a Member State can be determined, in particular, by establishing that the person concerned has, for a reasonable period, in fact genuinely sought work in the Member State in question (see Collins , paragraph 70, and Vatsouras and Koupatantze , paragraph 39).
47. The Court has also acknowledged that residence within a Member State was also capable of ensuring a real connection with the labour market of the host Member State, whilst additionally making clear that if compliance with the requirement of a connection demands a period of residence, the period must not exceed what is necessary in order for the national authorities to be able to satisfy themselves that the person concerned is genuinely seeking work in the employment market of the host Member State ( Collins , paragraph 72).
50. In addition, matters which can be inferred from the family circumstances of a claimant for tideover allowance are capable of demonstrating the existence of a real link between the applicant and the host Member State (see, to this effect, Case C-503/09 Stewart [2011] ECR I-6497, paragraph 100). The existence of close ties, in particular of a personal nature, with the host Member State where the claimant has, following her marriage with a national of that Member state, settled and now habitually resides are such as to contribute to the appearance of a lasting connection between the claimant and the Member State in which she has newly established herself, including with the labour market of the latter (see, to this effect, Case 236/87 Bergemann [1988] ECR 5125, paragraphs 20 to 22).