Office national de l’emploi

(Reference for a preliminary ruling from the Cour du travail de Liège)

(Job-seekers ― European citizenship ― Principle of non-discrimination ― Article 39 EC –– Tideover allowances for young people seeking their first employment ­― Grant conditional on completion of secondary education in the Member State concerned)

Opinion of Advocate General Ruiz-Jarabo Colomer delivered on 9 June 2005

Judgment of the Court (First Chamber), 15 September 2005

Summary of the Judgment

Freedom of movement for persons — Workers — Equal treatment — Tideover allowances for young people seeking their first employment — Grant conditional on completion of secondary education in the Member State concerned — Not permissible — Justification – None

(Art. 39 EC)

It is contrary to Article 39 EC for a Member State to refuse to grant a tideover allowance to a national of another Member State seeking his first employment who is not the dependent child of a migrant worker residing in the Member State granting the allowance, on the sole ground that he completed his secondary education in another Member State.

Inasmuch as it links the grant of the allowance to the requirement that the applicant has obtained the required diploma in that Member State, this condition is likely to be met more easily by national citizens and therefore risks placing nationals of other Member States at a disadvantage.

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. In this regard, while 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, a single condition concerning the place where the diploma of completion of secondary education was obtained is too general and exclusive in nature and goes beyond what is necessary to attain the objective pursued.

(see paras 28-31, 38, operative part)

15 September 2005 (*)

(Job-seekers – European citizenship – Principle of non-discrimination – Article 39 EC – Tideover allowances for young people seeking their first employment – Grant conditional on completion of secondary education in the Member State concerned)

In Case C-258/04,

REFERENCE for a preliminary ruling under Article 234 EC from the Cour du travail de Liège (Belgium), made by decision of 7 June 2004, received at the Court on 17 June 2004, in the proceedings

Office national de l’emploi

Ioannis Ioannidis,

THE COURT (First Chamber),

composed of P. Jann, President of the Chamber, N. Colneric, J.N. Cunha Rodrigues (Rapporteur), M. Ilešič and E. Levits Judges,

Advocate General: D. Ruiz-Jarabo Colomer,

Registrar: R. Grass,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– the Office national de l’emploi, by Y. Denoiseux and G. Lewalle, avocats,

– the Belgian Government, by Y. Denoiseux and G. Lewalle, avocats,

– the Greek Government, by S. Bodina, Z. Chatzipavlou and M. Apessos, acting as Agents,

– the Commission of the European Communities, by M. Condou and D. Martin, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 9 June 2005,

gives the following

1 The reference for a preliminary ruling concerns the interpretation of Articles 12 EC, 17 EC and 18 EC.

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

Directive 2011/92

3 Recitals 7 to 9 of Directive 2011/92 state:

‘(7) Development consent for public and private projects which are likely to have significant effects on the environment should be granted only after an assessment of the likely significant environmental effects of those projects has been carried out. …

(8) Projects belonging to certain types have significant effects on the environment and those projects should, as a rule, be subject to a systematic assessment.

ECLI:EU:C:2025:140

(9) Projects of other types may not have significant effects on the environment in every case and those projects should be assessed where the Member States consider that they are likely to have significant effects on the environment.’

Article 2(1) of that directive provides:

‘Member States shall adopt all measures necessary to ensure that, before development consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects on the environment. Those projects are defined in Article 4.’

Under Article 3(1) of that directive:

‘The environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each individual case, the direct and indirect significant effects of a project on the following factors:

…

(b) biodiversity, with particular attention to species and habitats protected under [Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7), as amended by Council Directive 2013/17/EU of 13 May 2013 (OJ 2013 L 158, p. 193) (“Directive 92/43”)] and Directive 2009/147/EC [of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (OJ 2010 L 20, p. 7)];

…’

Article 4 of Directive 2011/92 provides:

‘1. Subject to Article 2(4), projects listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10.

(a) a case-by-case examination;

(b) thresholds or criteria set by the Member State.

Member States may decide to apply both procedures referred to in points (a) and (b).

Where a case-by-case examination is carried out or thresholds or criteria are set for the purpose of paragraph 2, the relevant selection criteria set out in Annex III shall be taken into account. Member States may set thresholds or criteria to determine when projects need not undergo either the determination under paragraphs 4 and 5 or an environmental impact assessment, and/or thresholds or criteria to determine when projects shall in any case be made subject to an environmental impact assessment without undergoing a determination set out under paragraphs 4 and 5.

Where Member States decide to require a determination for projects listed in Annex II, the developer shall provide information on the characteristics of the project and its likely significant effects on the environment. The detailed list of information to be provided is specified in Annex IIA. The developer shall take into account, where relevant, the available results of other relevant assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The developer may also provide a description of any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

The competent authority shall make its determination, on the basis of the information provided by the developer in accordance with paragraph 4 taking into account, where relevant, the results of preliminary verifications or assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The determination shall made available to the public and:

(a) where it is decided that an environmental impact assessment is required, state the main reasons for requiring such assessment with reference to the relevant criteria listed in Annex III; or

(b) where it is decided that an environmental impact assessment is not required, state the main reasons for not requiring such assessment with reference to the relevant criteria listed in Annex III, and, where proposed by the developer, state any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

Member States shall ensure that the competent authority makes its determination as soon as possible and within a period of time not exceeding 90 days from the date on which the developer has submitted all the information required pursuant to paragraph 4. In exceptional cases, for instance relating to the nature, complexity, location or size of the project, the competent authority may extend that deadline to make its determination; in that event, the competent authority shall inform the developer in writing of the reasons justifying the extension and of the date when its determination is expected.’

Annex II.A of that directive contains the list of ‘information to be provided by the developer on the projects listed in Annex II’. That list reads as follows:

‘1. A description of the project, including in particular:

(a) a description of the physical characteristics of the whole project and, where relevant, of demolition works;

(b) a description of the location of the project, with particular regard to the environmental sensitivity of geographical areas likely to be affected.

(a) the expected residues and emissions and the production of waste, where relevant;

(b) the use of natural resources, in particular soil, land, water and biodiversity.

Annex III to that directive sets out the ‘criteria to determine whether the projects listed in Annex II should be subject to an environmental impact assessment’.

Directive 2014/52

Recitals 11 and 29 of Directive 2014/52 state:

‘(11) The measures taken to avoid, prevent, reduce and, if possible, offset significant adverse effects on the environment, in particular on species and habitats protected under [Directive 92/43] and Directive 2009/147 …, should contribute to avoiding any deterioration in the quality of the environment and any net loss of biodiversity, in accordance with the [European] Union’s commitments in the context of the [United Nations Convention on Biological Diversity, signed in Rio de Janeiro on 5 June 1992,] and the objectives and actions of the Union Biodiversity Strategy up to 2020 laid down in the [Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions] of 3 May 2011 entitled ‘Our life insurance, our natural capital: an EU biodiversity strategy to 2020’ [(COM(2011) 244 final)]

…

(29) When determining whether significant effects on the environment are likely to be caused by a project, the competent authorities should identify the most relevant criteria to be considered and should take into account information that could be available following other assessments required by Union legislation in order to apply the screening procedure effectively and transparently. In this regard, it is appropriate to specify the content of the screening determination, in particular where no environmental impact assessment is required. Moreover, taking into account unsolicited comments that might have been received from other sources, such as members of the public or public authorities, even though no formal consultation is required at the screening stage, constitutes good administrative practice.’

Directive 92/43

Article 6(3) of Directive 92/43 provides:

‘Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.’

Article 12(1) of that directive provides:

‘Member States shall take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV(a) in their natural range, prohibiting:

(a) all forms of deliberate capture or killing of specimens of these species in the wild;

(b) deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration;

(c) deliberate destruction or taking of eggs from the wild;

(d) deterioration or destruction of breeding sites or resting places.’

Point (a) of Annex IV to that directive mentions ‘all species’ of bats belonging to the suborder of ‘microchiroptera’.

Irish law

must be interpreted as meaning that where, in the context of a screening procedure carried out under that provision, a third party has provided the competent authority with objective evidence as regards the potential significant effects of that project on the environment, in particular on a species protected under Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, as amended by Council Directive 2013/17/EU of 13 May 2013, that authority must ask the developer to provide it with additional information and take that information into account before deciding whether or not an environmental impact assessment is necessary for that project. However, where, despite the observations submitted to that authority by a third party, the competent authority is able to rule out, on the basis of objective evidence, the possibility that the project in question is likely to have significant effects on the environment, that authority may decide that an environmental impact assessment is not necessary, without being required to ask the developer to provide it with additional information.

Gratsias

Passer

Smulders

Delivered in open court in Luxembourg on 6 March 2025.

Registrar

President of the Chamber

ECLI:EU:C:2025:140

20It 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 <i>SARPP</i> [1990] ECR I-4695, paragraph 8, and Case C-456/02 <i>Trojani</i> [2004] ECR I-7573, paragraph 38).

21In 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.

22The 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 <i>Collins</i> [2004] ECR I-2703, paragraph 63).

23It 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 <i>D’Hoop</i> [2002] ECR I-6191, paragraph 38).

24It is also common ground that, on the date of lodging the application for the allowance, Mr Ioannidis was a national of a Member State who, having completed his education, was seeking employment in another Member State.

25In 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.

26According 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 <i>Sotgiu</i> [1974] ECR 153, paragraph 11, and Case C-209/03 <i>Bidar</i> [2005] ECR I-0000, paragraph 51).

27The national legislation at issue in the main proceedings introduces a difference in treatment between citizens who have completed their secondary education in Belgium and those who have completed it in another Member State with only the former having a right to a tideover allowance.

28That 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.

29Such 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 <i>O’Flynn</i> [1996] ECR I-2617, paragraph 19, and <i>Collins</i>, paragraph 66).

30As 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 (<i>D’Hoop</i>, paragraph 38).

31However, 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 (<i>D’Hoop</i>, paragraph 39).

32Moreover, it is apparent from heading 2(h) of the first subparagraph of Article 36(1) of the Royal Decree that a job-seeker who has not completed his secondary education in Belgium nevertheless has a right to a tideover allowance if he has pursued education or training of the same level and equivalent thereto in another Member State and if he is the dependent child of migrant workers for the purposes of Article 39 EC who are residing in Belgium.

33The fact that Mr Ioannidis’ parents are not migrant workers residing in Belgium cannot in any event provide a reason for refusing to grant the allowance applied for. That condition cannot be justified by the wish to ensure that there is a real link between the applicant and the geographic employment market concerned. Admittedly it is based on an element which can be considered as representative of a real and effective degree of connection. However, it is not inconceivable that a person, like Mr Ioannidis, who, after completing secondary education in a Member State, pursues higher education in another Member State and obtains a diploma there, may be in a position to establish a real link with the employment market of that State, even if he is not the dependent child of migrant workers residing in that State. Therefore, such a condition also goes beyond what is necessary to attain the objective pursued.

34It must be added that the tideover allowance constitutes a social advantage within the meaning of Article 7(2) of Regulation No 1612/68 (<i>D’Hoop</i>, paragraph 17).

35According 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 <i>Cristini</i> [1975] ECR 1085, paragraph 19, Case 94/84 <i>Deak</i> [1985] ECR 1873, paragraph 22, and Case C-337/97 <i>Meeusen</i> [1999] ECR I-3289, paragraph 22).

36It follows that dependent children of migrant workers who are residing in Belgium derive their right to a tideover allowance from Article 7(2) of Regulation No 1612/68 regardless of whether in that situation there is a real link with the geographic employment market concerned.

37Having regard to the aforementioned considerations, it is not necessary to rule on the interpretation of Articles 12 EC, 17 EC and 18 EC.

38Therefore, the answer to the question referred to the Court must be that it is contrary to Article 39 EC for a Member State to refuse to grant a tideover allowance to a national of another Member State seeking his first employment who is not the dependent child of a migrant worker residing in the Member State granting the allowance, on the sole ground that he completed his secondary education in another Member State.

Costs

39Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. The costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (First Chamber) hereby rules:

It is contrary to Article 39 EC for a Member State to refuse to grant a tideover allowance to a national of another Member State seeking his first employment, who is not the dependent child of a migrant worker residing in the Member State granting the allowance, on the sole ground that he completed his secondary education in another Member State.

[Signatures]

*

Language of the case: French.