CELEX: 61995CJ0126
EEC-Morocco Cooperation Agreement
Article 41(1)
Principle of non-discrimination in matters of social security
Direct effect
Spouse of a Moroccan migrant worker
Special procedures for applying the Netherlands legislation on general old-age insurance

Grounds
1 By order of 9 December 1994, received at the Court on 13 April 1995, the Centrale Raad van Beroep referred to the Court for a preliminary ruling under Article 177 of the EC Treaty a question on the interpretation of Article 41(1) of the Cooperation Agreement between the European Economic Community and the Kingdom of Morocco, signed in Rabat on 27 April 1976 and concluded on behalf of the Community by Council Regulation (EEC) No 2211/78 of 26 September 1978 (OJ 1978 L 264, p. 1, "the Agreement").
2 That question was raised in proceedings between Mrs Hallouzi-Choho, a Moroccan national, and the Bestuur van de Sociale Verzekeringsbank (Board of the Social Insurance Bank, hereafter "the SVB"), Amsterdam, concerning a refusal to grant certain old-age benefits.
3 It is apparent from the documents before the Court that Mrs Hallouzi-Choho is the spouse of a Moroccan pensioner. She resides in the Netherlands with her spouse where the latter was employed and receives an old-age pension under Netherlands legislation. She has never pursued a professional or trade activity within the Community herself.
4 On 1 July 1991, when Mrs Hallouzi-Choho reached the age of 65 years, she was awarded an old-age pension under Netherlands legislation.
5 In the Netherlands, the Algemene Ouderdomswet (General Law on Old-Age Insurance, "the AOW") established a system of old-age pensions to which are affiliated all persons resident within the territory of that State and all persons who are liable to Netherlands tax on income arising from gainful employment pursued in the Netherlands. Insurance under the AOW involves the payment of contributions.
6 The amount of the old-age pension depends on the number of years of insurance completed between the recipient' s 15th and 65th birthdays. The full pension thus corresponds to a period of insurance of 50 years. Where the period of insurance is less than 50 years, the amount is reduced by 2% per non-insured year.
7 Since the AOW did not enter into force until 1 January 1957, no one could have claimed a pension at the full rate until the year 2007. In order to remedy that situation, Articles 55 and 56 of the AOW provide for transitional arrangements under which years between the recipient' s 15th birthday and 1 January 1957 may be treated as years of insurance under the AOW provided that the recipient has resided in the Netherlands between his or her 59th and 65th birthdays, continues to reside in the Netherlands thereafter and has Netherlands nationality.
8 The latter condition, however, is not applicable to persons covered by Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended and updated by Council Regulation (EEC) No 2001/83 of 2 June 1983 (OJ 1983 L 230, p. 6, "Regulation No 1408/71"), to workers who are nationals of a Member State of the European Economic Area and to nationals of countries with which the Kingdom of the Netherlands has concluded a bilateral social security agreement which includes arrangements for treating nationals of those States as Netherlands nationals. The Royal Decree of 15 November 1985, as subsequently amended, provides for the treatment of foreigners as Netherlands nationals during their period of residence in the Netherlands if they have resided there for a period of 15 years, with or without interruptions, after their 20th birthday, provided that they have resided there without interruption during the five years immediately preceding their 65th birthday.
9 The SVB refused to take account, for the purposes of calculating Mrs Hallouzi-Choho' s pension, of the notional period of insurance between her 15th birthday and 1 January 1957, on the ground that she did not satisfy the Netherlands nationality requirement and did not fulfil the conditions which would enable her to be treated as a Netherlands national by virtue of the provisions of the Royal Decree of 15 November 1985.
10 Accordingly, the SVB refused Mrs Hallouzi-Choho transitional benefits under the AOW and applied to her old-age pension a reduction of 78%, taking account, in order to calculate her pension, of only the 11 years during which she had resided in the Netherlands before her 65th birthday.
11 It is not disputed that Mrs Hallouzi-Choho fulfils all the requirements, save that of Netherlands nationality, for entitlement to the benefit of the transitional arrangements laid down in Articles 55 and 56 of the AOW.
12 Mrs Hallouzi-Choho brought an action challenging the SVB' s refusal to allow her the benefit of the transitional arrangements under the AOW. The case is currently pending before the Centrale Raad van Beroep.
13 Mrs Hallouzi-Choho claimed before that court that, according to the judgment in Case C-18/90 Onem v Kziber [1991] ECR I-199, Article 41(1) of the Agreement precludes the authorities of a Member State from relying on the Moroccan nationality of the claimant as a ground for withholding social security benefits such as those resulting from the transitional arrangements under the AOW. She should therefore be treated in the same manner as a Netherlands national and be granted those benefits.
14 The SVB contended that she was not entitled to benefit from the transitional arrangements because she did not satisfy the requirement of Netherlands nationality and did not fulfil the conditions enabling her to be treated as a Netherlands national. The Court has acknowledged the special nature of the AOW' s transitional arrangements, consisting in the fact that the periods prior to 1 January 1957, in respect of which an old-age pension is granted by virtue of Articles 55 and 56 of the AOW, are not actual periods of insurance since the beneficiary does not have to pay any contributions and mere residence in the Netherlands is sufficient for insurance purposes (see, in particular, Case C-293/88 Winter-Lutzins v Bestuur van de Sociale Verzekeringsbank [1990] ECR I-1623).
15 The Centrale Raad van Beroep pointed out that in that judgment the Court acknowledged that Point 2 of the part entitled "Netherlands" in Annex VI to Regulation No 1408/71 lays down special provisions for applying to the transitional arrangements of the AOW the rule contained in Article 10 thereof concerning the waiving of residence clauses and that such provisions are justified by the fact that Article 10 cannot be applied without restriction to a general old-age insurance scheme which makes residence in the Netherlands the sole criterion for insurance. The national court observed, however, that the Agreement contained no provision comparable to that in Annex VI and did not provide that the rules laid down in that annex must be applied by analogy.
16 The Centrale Raad van Beroep considered that the dispute thus raised questions on the interpretation of Community law and referred the following question to the Court of Justice for a preliminary ruling:
"Is Article 41(1) of the Cooperation Agreement between the EC and Morocco to be interpreted as precluding the requirement of Netherlands nationality as a condition of eligibility for transitional benefits under the Netherlands Algemene Ouderdomswet in the case of the spouse (a member of the family within the meaning of Article 41(1) of the Agreement) of a Moroccan worker?"
17 In order to reply to that question, it should first of all be observed that Article 41(1), which forms part of Title III, on cooperation in the field of labour, provides that
"subject to the provisions of the following paragraphs, workers of Moroccan nationality and any members of their families living with them shall enjoy, in the field of social security, treatment free from any discrimination based on nationality in relation to nationals of the Member States in which they are employed".
18 The subsequent paragraphs in that article concern the aggregation of periods of insurance, employment or residence completed in the various Member States, the benefit of family allowances for family members resident in the Community and the transfer to Morocco of pensions or annuities in respect of old age, death, industrial accident, occupational disease, and invalidity.
Direct effect of Article 41(1) of the Agreement
19 The Court has consistently held (see Kziber, paragraphs 15 to 22, and Case C-58/93 Yousfi v Belgian State [1994] ECR I-1353, paragraph 16) that Article 41(1) of the Agreement, which lays down in clear, precise and unconditional terms a prohibition of discrimination, based on nationality, against workers of Moroccan nationality and the members of their families living with them in the field of social security, contains a clear and precise obligation which is not subject, in its implementation or effects, to the adoption of any subsequent measure in respect of any question other than the matters mentioned in paragraphs 2, 3 and 4 of that article. In those judgments, the Court added that the object of the Agreement, which is to promote overall cooperation between the contracting parties, in particular in the field of labour, confirms that the principle of non-discrimination enshrined in Article 41(1) is capable of governing the legal situation of individuals.
20 The Court concluded (see Kziber, paragraph 23, and Yousfi, paragraph 17) that the provision was of direct effect, so that persons to whom it applied were entitled to rely on it before national courts.
The scope of Article 41(1) of the Agreement
21 In order to determine the scope of the principle of non-discrimination laid down in Article 41(1) of the Cooperation Agreement, it is necessary to consider whether a person such as the claimant in the main proceedings falls within the category of persons covered by that article and whether benefits such as the transitional benefits under the AOW at issue in the main proceedings come within the field of social security within the meaning of that provision.
22 With regard, first, to the persons covered by Article 41(1) of the Agreement, it should be observed that the provision applies primarily to workers of Moroccan nationality, which encompasses, according to consistent case-law (see Kziber, paragraph 27, and Yousfi, paragraph 21), both active workers and those who have left the labour market after reaching the qualifying age for an old-age pension.
23 Furthermore, Article 41(1) of the Agreement also applies to the members of those workers' families living with them in the Member State in which they are or have been employed.
24 In those circumstances, a person such as the claimant in the main proceedings, as the spouse of a Moroccan migrant worker living with him in the Member State in which that worker receives an old-age pension after having pursued there a professional or trade activity, is covered by Article 41(1) of the Agreement.
25 With regard, secondly, to the term "social security" used in that provision, it is clear from paragraph 25 of the Kziber judgment and paragraph 24 of the Yousfi judgment that it must have the same meaning as the identical term used in Regulation No 1408/71.
26 Article 4(1) of Regulation No 1408/71, which lists the various social security branches to which it applies, expressly refers to "old-age benefits" at subparagraph (c).
27 It follows that benefits such as the transitional benefits under the AOW, which are additional to the old-age pension paid to the recipient, fall within the scope of Regulation No 1408/71 and, therefore, of Article 41(1) of the Agreement.
28 In those circumstances, it follows from the principle of freedom from any discrimination based on nationality in the field of social security, embodied in Article 41(1) of the Agreement, that the spouse of a Moroccan migrant worker, who lives in the Member State in which the worker was employed and who satisfies all the conditions, save that of nationality, for receipt in that country of a benefit such as the transitional benefits under the AOW for persons resident in the Member State in question, cannot be denied that benefit on grounds of nationality.
29 The SVB has raised the objection, however, that a Moroccan national who is the spouse of a Moroccan migrant worker but who has never been a worker herself may not rely on Article 41(1) of the Agreement in order to claim benefits such as the transitional benefits under the AOW, because the latter is intended by the relevant national legislation to be a personal right and not a derived right acquired through the claimant' s status as a member of the family of a migrant worker.
30 In that regard, it is sufficient to note that the persons covered by Article 41(1) of the Agreement are not the same as those covered by Article 2 of Regulation No 1408/71, so that the case-law distinguishing between the derived rights and the personal rights of members of migrant workers' families in the context of Regulation No 1408/71, which case-law has, moreover, recently been clarified by the judgment in Case C-308/93 Bestuur van de Sociale Verzekeringsbank v Cabanis-Issarte [1996] ECR I-0000, cannot be applied in the context of the Agreement, as is clear from the Kziber judgment (see, by way of analogy, Case C-103/94 Krid v CNAVTS [1995] ECR I-719, paragraph 39, with regard to Article 39(1) of the Cooperation Agreement between the European Economic Community and the People' s Democratic Republic of Algeria, signed in Algiers on 26 April 1976 and approved on behalf of the Community by Council Regulation (EEC) No 2210/78 of 26 September 1978 (OJ 1978 L 263, p. 1) which is identical to the wording of Article 41(1) of the EEC-Morocco Cooperation Agreement).
31 Moreover, the SVB and the Netherlands and French Governments have emphasized the special nature of the transitional arrangements under the AOW, recognized by the Court in the Winter-Lutzins judgment, cited above, and consisting in the fact that the periods to be taken into account prior to 1 January 1957 do not depend on whether contributions have been paid but solely on residence in the Netherlands. In those circumstances, it is proper to restrict the number of recipients of the transitional benefits under the AOW to persons having a sufficiently close link with the Netherlands, which may be expressed by way of either the requirement of Netherlands nationality or the residence requirements. To that end, they maintain, the Court should at the very least declare applicable by analogy the rules in Point 2 of the part entitled "Netherlands" in Annex VI to Regulation No 1408/71, which enables an exception to be made to the rule contained in Article 10 thereof concerning the waiving of residence clauses in order to take account of the special nature of the AOW. Pursuant to that annex, a person such as the claimant in the main proceedings would thus be entitled to transitional benefits under the AOW only for the periods during which she has, between her 15th birthday and 1 January 1957, either resided in the Netherlands or pursued an activity as an employed person there, provided that that person resided for six years within the territory of one or several Member States after reaching the age of 59 years.
32 That view cannot be accepted either.
33 In this regard, it should be noted first that, in a case such as the one pending before the national court, the refusal to grant social security benefits is based on the fact that the claimant does not have the nationality of the Member State in question nor can she be treated, under national law, as a national of that State.
34 Next, a person such as the claimant in the main proceedings satisfies all the conditions imposed by the legislation of the Member State in question for entitlement to the disputed benefits save the requirement of having the nationality of that Member State.
35 However, the principle laid down in Article 41(1) of the Agreement, of freedom from any discrimination based on nationality in the field of social security against Moroccan migrant workers and members of their family living with them in relation to nationals of the Member States in which they are employed means that the persons referred to by that provision must be treated as if they were nationals of the Member States concerned.
36 Accordingly, that principle requires that, in awarding social security benefits, the competent authorities of the Member State concerned must treat persons covered by Article 41(1) of the Agreement in the same way as nationals of that State, so that the national legislation at issue cannot impose upon those persons more or stricter conditions than those applicable to nationals of that Member State.
37 It is therefore contrary to that principle to apply to persons referred to in that provision not only the requirement that they have the nationality of the Member State concerned, which nationals thereof necessarily fulfil, but also conditions such as that requiring a certain period of residence in the Member State, where that period is greater than that required of nationals, or the pursuit of a professional or trade activity in the Member State in question, a condition which nationals are not required to fulfil.
38 The fact, emphasized by SVB and the Netherlands Government, that Mrs Hallouzi-Choho could be treated as a Netherlands national on the basis of the Royal Decree of 15 November 1985 and thus receive the transitional benefits under the AOW from February 1996, provided that she continues to reside in the Netherlands, is irrelevant on the same ground.
39 That legislation lays down an additional residence condition which is not applicable to nationals of the Member State concerned and is thus incompatible with the principle of non-discrimination based on nationality laid down in the Agreement.
40 In view of all the foregoing considerations, the reply to the question put by the Centrale Raad van Beroep must be that Article 41(1) of the Agreement is to be interpreted as precluding a Member State from refusing, on the ground that the person concerned is of Moroccan nationality, to grant benefits such as the transitional benefits established by the AOW, which are provided for by its legislation in the case of nationals who satisfy certain residence conditions in that State, to the spouse of a Moroccan worker who fulfils such residence conditions.
Temporal effect of the judgment
41 At the hearing, the French Government requested the Court to limit the temporal effects of the present judgment in the event that it should rule that the principle of non-discrimination enshrined in Article 41(1) of the Agreement is to be interpreted as meaning that the members of the family of a Moroccan worker living with him may be entitled to benefits such as the transitional benefits under the AOW. It justified that request on the basis of the serious consequences that such a judgment would entail for the social security schemes of the Member States.
42 It should be observed that the Court may limit the temporal effect of an interpretation given by way of preliminary ruling only if overriding considerations of legal certainty so justify.
43 In the present case that condition is not fulfilled.
44 Even if factual evidence of the financial consequences alleged by the French Government were provided, the interpretation of Article 41(1) of the Agreement could not reasonably have given rise to uncertainty, bearing in mind the consistent case-law since the judgment in Kziber.
45 There are therefore no grounds for limiting the temporal effects of this judgment.
Decision on costs
Costs
46 The costs incurred by the Netherlands and French Governments and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main action, a step in the proceedings pending before the national court, the decision on costs is a matter for that court.
Operative part
On those grounds,
THE COURT (Sixth Chamber),
in answer to the question referred to it by the Centrale Raad van Beroep, by order of 9 December 1994, hereby rules:
Article 41(1) of the Cooperation Agreement between the European Economic Community and the Kingdom of Morocco, signed in Rabat on 27 April 1976 and concluded on behalf of the Community by Council Regulation (EEC) No 2211/78 of 26 September 1978, is to be interpreted as precluding a Member State from refusing, on the ground that the person concerned is of Moroccan nationality, to grant benefits such as the transitional benefits established by the AOW, which are provided for by its legislation in the case of nationals who satisfy certain residence conditions in that State, to the spouse of a Moroccan worker who fulfils such residence conditions.