Opinion of the Advocate General — ECLI:EU:C:2023:769
Date: 2023-10-12
Language of the case: Dutch
Subject matter: Association Agreement;External relations;Social security for migrant workers
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary  C-549/22 – 1 
Case C-549/22 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
18 August 2022 
Referring court:  
Centrale Raad van Beroep (Netherlands) 
Date of the decision to refer:  
15 August 2022 
Applicant:  
X 
Defendant:  
Raad van bestuur van de Sociale verzekeringsbank 
  
Subject matter of the main proceedings 
The main proceedings concern a dispute between X and the Raad van bestuur van 
de Sociale verzekeringsbank (Board of Management of the Social Insurance Bank; 
‘the Svb’) on the reduction of X’s survivors’ benefit. 
Subject matter and legal basis of the request for a preliminary ruling 
This request pursuant to Article 267 TFEU concerns the direct effect, personal 
scope and interpretation of Article 68(4) of the Euro-Mediterranean Agreement 
establishing an Association between the European Community and its Member 
States, of the one part, and the People’s Democratic Republic of Algeria, of the 
other part (‘the Association Agreement’). More specifically, it concerns the 
question whether that provision precludes a reduction in a survivors’ benefit 
granted by the Netherlands by reason of the fact that the beneficiary resides in 
Algeria. 
EN 
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Questions referred for a preliminary ruling 
1. Must Article 68(4) of the Association Agreement be interpreted as applying 
to a survivor of a deceased worker who resides in Algeria and who wishes to 
export her survivors’ benefit to Algeria? 
If so, 
2. Must Article 68(4) of the Association Agreement, having regard to its 
wording and to its purpose and nature, be interpreted as having direct effect, so 
that persons to whom that provision applies are entitled to rely on it directly 
before the Member States’ courts to have rules of national law which are contrary 
to it disapplied?  
If so, 
3. Must Article 68(4) of the Association Agreement be interpreted as 
precluding the application of the country-of-residence principle, as referred to in 
Article 17(3) of the Algemene nabestaandenwet (General Law on Survivors), 
which results in a restriction on the export of the survivors’ benefit to Algeria?  
Provisions of EU law relied on 
Article 1(68) and (70) of the Association Agreement, Articles 2 and 4 of the 
Proposal for a Council Decision on the position to be taken by the Community 
within the Association Council created by the Association Agreement with regard 
to the adoption of provisions on the co-ordination of the social security systems 1 
(‘Proposal for a Decision of the Association Council’), and Article 70(3) of 
Regulation (EG) No 883/2004. 
Provisions of national law relied on 
Wet Woonlandbeginsel in de sociale zekerheid (Law on the Country-of-Residence 
Principle in Social Security) and Article 17(3) of the Algemene nabestaandenwet 
(General Law on Survivors; [‘the ANW’]). 
Succinct presentation of the facts and procedure in the main proceedings 
1 On 1 July 2012, the Wet Woonlandbeginsel in de sociale zekerheid (‘the Wwsz’) 
entered into force in the Netherlands. This law aims to limit the export of benefits 
to countries outside the EU by introducing the so-called country-of-residence 
principle. To the extent that export to those countries takes place, Netherlands 
benefits related to the Netherlands minimum wage or intended to cover certain 
 
1 COM(2007) 790 final of 12 December 2007. 
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expenses, and which are provided outside the Netherlands, must be adjusted to 
local standards.  
2 With the entry into force of the Wwsz, Article 17(3) of the Algemene 
nabestaandenwet, among other things, was amended. Pursuant to this amendment, 
beneficiaries who do not reside in the Netherlands, in a Member State of the EU, 
in another state that is a party to the Agreement on the European Economic Area 
(EEA) or in Switzerland, are paid a benefit amounting to a percentage of the 
amount of survivors’ benefit applicable in the Netherlands. For Algeria, that 
percentage was set at 60% before 2013 and at 40% as of 2016.  
3 Since 1 January 1999, X, as a survivor of her late husband who was employed and 
insured in the Netherlands, has been entitled to a survivors’ benefit. As of 
1 January 2000, that benefit was exported to Algeria, where she resides. As of 
1 January 2013, the country-of-residence principle has been applied, as a result of 
which her survivors’ benefit has been considerably reduced. According to the 
settled case-law of the Centrale Raad van Beroep (Higher Social Security Court; 
‘the CRvB’), the reduction of a benefit on the basis of the country-of-residence 
principle must be regarded as a restriction on the export of that benefit. The issue 
in dispute between the parties is whether Article 68(4) of the Association 
Agreement precludes that restriction.  
The essential arguments of the parties in the main proceedings 
4 X has submitted that, because of the reduction in her benefit, she is no longer able 
to support herself. 
5 The Svb takes the position that Article 68(4) of the Association Agreement does 
not preclude the application of the country-of-residence principle to X’s survivors’ 
benefit. According to the Svb, this is not a provision with direct effect 
encompassing an obligation to export. The Svb points out that it follows from 
Article 70 of the Association Agreement that Article 68 contains a framework for 
a decision to be taken by the Association Council, which has not yet been 
established. According to the Svb, the wording of Article 68(4) of the Association 
Agreement does not demonstrate a clear and precisely defined obligation to export 
benefits. The provision does not lay down an explicit obligation for institutions 
and, according to the Svb, the terminology used is aimed at removing currency 
restrictions. The nature and purpose of the Agreement do not lead to a different 
conclusion. The Court of Justice has not explicitly ruled on the possible direct 
effect and meaning of Article 68(4). According to the Svb, the Court has 
implicitly rejected the direct effect of a similar provision in the Association 
Agreement with Morocco in the judgment in Kziber. 2 Finally, according to the 
Svb, the personal scope of this provision is not clear. It doubts whether survivors 
who are not (or have not been) employees themselves can rely on this provision. 
 
2 Judgment of 31 January 1991, Kziber, C-18/90, EU:C:1991:36. 
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Succinct presentation of the reasoning in the request for a preliminary ruling 
6 The CRvB observes that the interpretation of Article 68(4) of the Association 
Agreement is not only relevant to the benefits that are exported by the Netherlands 
to Algeria, but also to the export of benefits to other countries with which the EU 
has concluded an Association Agreement and in which a similar provision is 
included. The policy of the Netherlands Government to make the export of 
benefits outside the EU subject to agreements on the enforcement of the 
lawfulness thereof, and to adjust the amount of certain benefits to the standard of 
living in the country of residence concerned, may not be compatible with such 
provisions. In that regard, the Svb referred in particular to the General Convention 
on Social Security between the Kingdom of the Netherlands and the Kingdom of 
Morocco, in which the country-of-residence principle was also introduced.  
Personal scope of Article 68(4) of the Association Agreement 
7 The question is, first, whether X, as a survivor who is not herself a worker within 
the meaning of the Association Agreement, falls within the scope of Article 68(4) 
of that Agreement.  
8 Article 68(4) of the Association Agreement states that workers may freely transfer 
survivors’ pensions to Algeria. Unlike Article 68(1) and (3), Article 68(4) refers 
only to workers and not also to family members, whether or not they are living 
with them within the EU. Nor does it refer to survivors. It is therefore not entirely 
clear whether this provision means that only workers, including beneficiaries of 
pensions, can freely transfer their pensions and annuities acquired in the Member 
States, or whether it also covers the survivors’ pension to which survivors are 
entitled as a result of the death of those workers.  
9 If recipients of benefits who are survivors also fall under this provision, the 
question arises whether it is only intended that recipients of benefits who live in 
the Netherlands may freely transfer the benefit amounts to Algeria, or whether 
recipients of benefits who live in Algeria may also rely on this provision. The 
CRvB is of the opinion that the latter interpretation is supported by the fact that 
Article 68(4) of the Association Agreement makes an exception for the free 
transfer of special non-contributory benefits. This exception appears to be based 
on Article 70(3) of Regulation No 883/2004, which provides that Article 7 of that 
regulation, which governs the export of benefits, does not apply to special non-
contributory benefits. Such benefits are granted under Article 70(4) of that 
regulation exclusively by the Member State in which the person concerned 
resides, in accordance with the legislation of that Member State. The exception 
provided for in Article 68(4) of the Association Agreement is useful only if the 
main rule does indeed apply to beneficiaries residing outside the Member State 
responsible for payment.  
10 Clarification of the intention of that provision can also be sought in the Proposal 
for a Decision of the Association Council. According to Article 2 of that Decision, 
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it applies to workers who are nationals of Algeria […] and their survivors. Under 
Article 4 of that Decision, survivors’ benefits may not be subject to any reduction, 
modification, suspension, withdrawal or confiscation by reason of the fact that the 
beneficiary resides in Algeria. However, that Decision has not yet been adopted. 
11 A broad interpretation of the personal scope of Article 68(4) of the Association 
Agreement is also supported by the fact that it could be regarded as contrary to the 
purpose and the spirit of that Agreement to deny appropriate protection to the 
surviving family members and to the survivors of Algerian workers who are or 
were subject to the legislation of a Member State at the time of their employment.  
12 If the appellant in her situation falls within the scope of Article 68(4) of the 
Association Agreement, the following questions must be answered. 
Direct effect of Article 68(4) of the Association Agreement 
13 According to the settled case-law of the Court of Justice, a provision of an 
agreement concluded by the EU with third States must be considered to have 
direct effect when, having regard to its wording and to the purpose and nature of 
the agreement, it contains a clear and precise obligation which does not require 
any further measures for its implementation and effect.  
14 The implementation and effect of Article 68 of the Association Agreement appear 
to require further measures. This article contains a number of general principles, 
the precise material content of which is to be determined by a decision of the 
Association Council on the basis of Article 70(1). Thereafter, effective 
implementation requires rules for cooperation between the States concerned in the 
fields of management and control. These rules will be included in a decision based 
on Article 70(2). Seen in this light, Article 70 of the Association Agreement 
seems to preclude Article 68 having direct effect.  
15 However, the fact that the implementation of Article 68 requires the adoption of 
more detailed substantive and administrative rules does not mean that no part of 
that provision is capable of having direct effect. The Court has attributed direct 
effect to the prohibition of discrimination in the field of social security in the 
previous Cooperation Agreements between the EEA and Morocco and Algeria 
respectively, as well as to similar provisions in the Euro-Mediterranean 
Association Agreement with Morocco, although those provisions also envisaged 
the need for further decisions to be taken (in particular, the judgments and orders 
of the Court in the Kziber, 3 Krid, 4 Echouikh 5 and El Youssfi 6 cases). The Court 
 
3 See footnote 1. 
4 Judgment of 5 April 1995, Krid, C-103/94, EU:C:1995:97. 
5 Order of 13 June 2006, Echouikh, C-336/05, EU:C:2006:394. 
6 Order of 17 April 2007, El Youssfi, C-276/06, EU:C:2007:215. 
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considered it important in that regard that the object of the Cooperation 
Agreement, namely to promote overall cooperation between the contracting 
parties, confirms that the principle of non-discrimination enshrined in paragraph 1 
is capable of directly governing the legal situation of individuals. 
16 It can furthermore be inferred from the case-law of the Court that a provision such 
as Article 68(2) of the Association Agreement, which relates to the aggregation of 
periods of insurance, of employment or of residence, does not lend itself to direct 
effect. According to the Court, further coordination measures are needed to enable 
the obligation laid down in such a provision to be applied in practice because of 
possible problems of a technical nature (Taflan-Met 7 and Sürül 8 judgments).  
17 According to the CRvB, the Court has not yet explicitly ruled on the question of 
whether Article 68(4) of the Association Agreement – or similar provisions in the 
earlier Cooperation Agreements with Algeria or Morocco or in Association 
Agreements with other countries – have direct effect. However, an indication can 
possibly be read into paragraph 21 of the Krid judgment that paragraphs 2, 3 and 4 
of Article 68 of the Association Agreement are subject, in their implementation or 
effects, to the adoption of a subsequent measure.  
18 The wording of Article 68(4) of the Association Agreement points primarily to the 
removal of currency restrictions and there may be (some) doubt as to whether the 
provision includes an obligation on administrative bodies to export benefits to 
persons resident in Algeria and, if so, whether the provision precludes the 
application of the country-of-residence principle. However, the fact that a 
provision of an Association Agreement requires further interpretation by the Court 
of Justice does not preclude that provision, once further interpreted, from 
constituting a sufficiently clear and precise obligation and thus to lend itself to 
direct effect.  
19 The purpose of the Association Agreement is, inter alia, to promote cooperation 
between the Contracting Parties in the economic, social, cultural and financial 
fields, thus establishing closer relations between the EU and the third country 
concerned. 9 Therefore, the purpose and nature of the Association Agreement does 
not preclude Article 68(4) thereof having direct effect.  
20 In so far as Article 68(4) also contains an obligation for the administrative 
authorities to export benefits to persons resident in Algeria, it cannot be 
automatically said that the implementation of such an obligation requires no 
further measure. Article 70(2) provides that rules are to be adopted for 
administrative cooperation providing the necessary management and monitoring 
guarantees. Without such guarantees, the lawfulness of the benefits to be exported 
 
7 Judgment of 10 September 1996, Taflan-Met and Others, C-277/94, EU:C:1996:315. 
8 Judgment of 4 May 1999, Sürül, C-262/96, EU:C:1999:228. 
9 Opinion of Advocate General La Pergola in Sürül, C-262/96, EU:C:1998:55. 
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cannot be guaranteed or can be guaranteed to a significantly lesser extent. For that 
reason, it could be assumed that a citizen cannot rely directly on Article 68(4) of 
the Association Agreement.  
21 On the other hand, the Court has held in the Akdas 10 judgment that an individual 
can rely before a national court on the export provision of Article 6(1) of Decision 
No 3/80 of the EEC-Turkey Association Council 11 without further implementing 
measures being required. However, this judgment does not concern a provision 
involving a matter of principle, but a provision which, in clear, precise and 
unconditional terms, prohibits the reduction, modification, suspension, withdrawal 
or confiscation of the benefits referred to in that article by reason of the fact that 
the beneficiary resides in Turkey or in another Member State. Moreover, the 
Akdas judgment relates to a different legal context to the situation at issue in this 
case. It follows from the El-Yassini 12 judgment, which concerns the EEC-
Morocco Agreement, that there are substantial differences between not only the 
wording but also the object and purpose of the rules governing the EEC-Turkey 
Association and the EEC-Morocco Agreement. It follows that the Court’s case-
law on the rules governing the EEC-Turkey Association cannot be applied by 
analogy to the EEC-Morocco Agreement. The same may be true of the 
Association Agreement with Algeria. Incidentally, the El-Yassini judgment 
concerned the refusal to extend the right of residence of a Moroccan worker and 
not the export of benefits. Furthermore, the Akdas judgment does not concern the 
interpretation of a provision in the Association Agreement with Turkey, but the 
interpretation of a provision of Decision 3/80, which was adopted on the basis of 
Article 39 of the Additional Protocol to the Association Agreement and which, as 
the Court ruled in the Taflan-Met judgment, had already entered into force. The 
CRvB is therefore uncertain whether the line of reasoning set out in the Akdas 
judgment also applies to Article 68(4) of the Association Agreement.  
22 In view of the foregoing considerations, the CRvB will refer to the Court the 
question of whether Algerian workers or their survivors can rely directly on 
Article 68(4) of the Association Agreement.  
Scope of Article 68(4) of the Association Agreement 
23 According to the CRvB, Article 68(4) of the Association Agreement, which 
provides for the free transfer of certain benefits to Algeria at a regular rate, also 
includes an obligation to export benefits to persons residing in Algeria, but it has 
not yet been established that this provision also precludes a reduction of the 
benefit on the basis of the country-of-residence principle.  
 
10 Judgment of 26 May 2011, Akdas and Others, C-485/07, EU:C:2011:346. 
11 Decision of the Association Council of 19 September 1980 on the application of the social 
security schemes of the Member States of the European Communities to Turkish Workers and 
members of their families. 
12 Judgment of 2 March 1999, Eddline El-Yassini, C-416/96, EU:C:1999:107, paragraph 61. 
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24 On that point too, the Proposal for a Decision of the Association Council referred 
to in paragraph 10 may be relevant. Article 4 of the proposed Decision provides 
that certain benefits will not be subject to any reduction, modification, suspension, 
withdrawal or confiscation by reason of the fact that the beneficiary is resident in 
Algeria. With regard to a similar provision in Decision 3/80 of the EEC-Turkey 
Association Council, the Court held in Akdas that this rule lays down the 
prohibition of any restriction on the export of rights acquired by the Turkish 
nationals concerned under the legislation of a Member State and that it sets down 
the principle of prohibition of residence clauses. Although the Decision referred to 
in paragraph 10 has not (yet) been adopted, it may provide guidance on the 
interpretation of Article 68(4) of the Association Agreement. A corresponding 
interpretation to that in the Akdas judgment would then appear to be indicated.