FREEDOM OF MOVEMENT

De Cuyper v Office national de l'emploi (Case C-406/04)

ECJ: President V Skouris; Presidents of Chamber P Jann, CWA Timmermans, A Rosas and J Malenovský; Judges N Colneric, S von Bahr, JN Cunha Rodrigues, R Silva de Lapuerta, G Arestis, A Borg Barthet, M Ileši and J Klucka; Advocate General LA Geelhoed: 18 July 2006

The claimant, a Belgian national who had declared that he was unemployed and living in Belgium, was in receipt of Belgian unemployment benefit, in relation to which, as a person over the age of 50, he was exempt from the requirement of proving that he was available for work. When it was discovered during a routine inquiry by inspectors that he was in fact resident in France, the benefit was stopped and a demand made for repayment of benefit already paid, on the basis of a Belgian Law whereby eligibility for, inter alia, unemployment benefit was conditional on habitual and actual residence in Belgium.

In the claimant's proceedings contesting the defendant authority's decision, a preliminary ruling was sought from the Court of Justice of the European Communities on whether a condition of residence such as that in issue amounted to a fetter on the claimant's right as a citizen of the European Union to move and reside freely within the Community under article 18 EC.

The Court of Justice held:
While national legislation such as that at issue constituted a restriction on the article 18 freedoms, since it placed certain of the member state's nationals at a disadvantage simply because they had exercised their right to move and reside elsewhere, it was justifiable if it was based on objective considerations of public interest that were independent of the nationality of the person concerned and was proportionate. A residence requirement such as that in question was based on such a public interest consideration, as it reflected the need to monitor the applicant's employment and family situation, and it had not been shown that less restrictive monitoring measures would be effective. Accordingly, a residence clause such as that applied in the case was not precluded by article 18 EC.