61990C0018
OPINION OF MR ADVOCATE GENERAL
VAN GERVEN
delivered on 6 December 1990 (
*1
)
Mr President,
Members of the Court,
1.
The Cour du travail (Labour Court), Liège, is seeking from the Court a preliminary ruling on the following question :
‘May a Member State refuse to grant, on the grounds of nationality, a social advantage within the meaning of Article 7(2) of Regulation No 1612/68 to the dependent children of a worker who is a national of a non-member country (Morocco), with which the European Economic Community has concluded a cooperation agreement containing, in the field of social security, a clause providing for the equal treatment of migrant workers from that country employed in the Community and of members of their family living with them?’
1. Background
2.
Bahia Kziber, of Moroccan nationality, lives with her parents in Belgium. Her father, also a Moroccan national, was a wage-earner in Belgium and is now a pensioned mineworker. After completing her studies in Belgium Kziber submitted an application for the grant of allocations d'attente (special unemployment allowance for young workers who have completed certain vocational studies or apprenticeships) under Article 124 of the Royal Decree of 20 December 1963 on employment and unemployment. (
1
) That provision accords, as part of a system of unemployment allowances, the right to an allocation d'attente to young workers who, on completion of their studies or apprenticeship, fail to find employment.
The Office national de l'emploi (hereinafter referred to as ‘Onem’) took the view that while Kziber satisfied all the requirements under Article 124 her Moroccan nationality precluded her from being granted the allowance in question. That decision was annulled by the Tribunal du travail (Labour Tribunal), Liège, by judgment of 3 December 1984. The court making a reference for a preliminary ruling, the Cour du travail (Labour Court), Liège, is called upon to determine the appeal brought by Onem against that judgment.
Kziber is asking the Cour du travail to uphold the judgment of 3 December 1984. She bases her case on Article 41 of the Cooperation Agreement concluded in 1978 between the European Economic Community and the Kingdom of Morocco (
2
) (hereinafter referred to as ‘the Agreement’) which reads as follows:
‘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.’
3.
The Cour du travail considers that the article just cited has direct effect. However, it wonders whether that article forms a sufficient basis for Kziber's claim for an allocation d'attente. As stated in the decision making the reference, Kziber cannot be regarded as a ‘worker’ within the meaning of that provision, since she has never, after her studies, been in genuine and effective employment. Nor, moreover, can she claim the benefit of the allowance in her capacity as a member of the family of a worker, because Article 41 of the Agreement accords her only ‘derived rights’, whereas the allocation d'attente in question is a benefit available to young persons in search of employment by virtue of their personal situation. (
3
)
The national court goes on to mention the judgment of 1985 in the Deak case. (
4
) In that judgment the Court ruled that allowances such as those provided for by Article 124 of the Royal Decree of 20 December 1963 must be regarded as a ‘social advantage’ within the meaning of Article 7 of Regulation No 1612/68 (
5
) which must be granted, to the members of the family, irrespective of their nationality, of a worker who is himself a national of one of the Member States. (
6
) The national court now wishes to know whether the interpretation given in Deak also applies to a member of the family of a worker who is a national of a non-member country with which the European Community has concluded a Cooperation Agreement. More specifically, it wishes to know whether the above-cited equal-treatment clause in the Cooperation Agreement between the European Community and Morocco is to be construed as meaning that workers of Moroccan nationality and the members of their families living with them are entitled to claim a ‘social advantage’ within the meaning of Article 7(2) of Regulation No 1612/68.
2. The object of the question referred to the Court
4.
As may be seen from the foregoing, the Court is requested to rule on the interpretation of a provision of the Agreement. In other words, the dispute is not concerned with the interpretation of Regulation No 1612/68 (
7
) any more than it is with the interpretation of Regulation No 1408/71 on the application of social security schemes to employed persons, to self-employed and to members of their families moving within the Community. (
8
) Neither of the two regulations applies to a person in Kziber's situation (that is to say a person in search of employment who is of Moroccan nationality and is a member of the family of a Moroccan national). Regulation No 1408/71 applies, according to Article 2 thereof, to workers who are nationals of one of the Member States and to members of their families, irrespective of their nationality. Regulation No 1612/68 applies only to workers who are nationals of a Member State. These regulations are thus of no direct relevance for the purpose of determining Kziber's legal situation, since there is nothing to show that she is a member of the family of the worker/national of a Member State. In other words, Kziber's rights in the main proceedings must be determined exclusively on the basis of the Agreement.
5.
Let me first define more closely the scope of the examination which the Court is called upon to undertake. As we have seen earlier (section 3), the national court proceeds on the basis, firstly, that Article 41 of the Agreement has direct effect and, secondly, that Kziber cannot claim the allowance in question either as a ‘worker’ or as a ‘member of the family’ of a worker. The first premise is contested in the observations submitted by the Commission, the French Government and Onem. The second premise is contested in the observations submitted by Kziber and the Commission. Strictly speaking, the question referred to the Court for a preliminary ruling is concerned solely with the right to a ‘social advantage’ within the meaning of Article 7(2) of Regulation No 1612/68 available to the children of a worker who is a national of a non-member country (here Morocco) with which the Community has concluded an agreement. Since, however, as I have pointed out above, Kziber cannot directly derive rights from Regulation No 1612/68 (any more than she can from Regulation No 1408/71), the question referred to the Court is concerned in substance with the interpretation of the Agreement, and in particular with the direct effect and scope of Article 41 thereof.
For the purposes of the Court's power to give an interpretation, the narrow formulation of the question referred to it for a preliminary ruling cannot constitute an obstacle. The Agreement, concluded in accordance with Article 238 of the Treaty, clearly constitutes, as regards the Community, an act of one of its institutions within the meaning of Article 177(b) of the Treaty. The provisions of such an agreement form, from the moment of its entry into force, an integral part the Community legal order. (
9
) As such, the Court must ensure that they are applied uniformly in the Community in order to prevent their effects from differing according to the interpretation given to them in the various Member States. (
10
) My analysis must and may thus in fact concern the interpretation of the Agreement, and more particularly the direct effect, the scope and interpretation of the provisions of Article 41.
6.
Finally I would point out that my examination is concerned solely with Article 41 and, in conjunction with that article, Article 42 of the Agreement. Article 41 contains a prohibition of discrimination ‘in the field of social security’. In its observations the Commission also gives consideration to Article 40 of the Agreement which lays down a non-discrimination rule ‘as regards working conditions or remuneration’. However, I agree with its conclusion that an allocation d'attente such as that at issue in the main proceedings is to be regarded not as a working condition or as a component of remuneration but in reality as a benefit in the field of social security.
3. The question of direct effect
7.
The rule consistently applied in the case-law of the Court is as follows:
‘A provision in an agreement concluded by the Community with non-member countries must be regarded as being directly applicable when, regard being had to its wording and the purpose and nature of the agreement itself, the provision contains a clear and precise obligation which is not subject, in its implementation or effects, to the adoption of any subsequent measure.’ (
11
)
It is therefore necessary to take account of the purpose and nature of the Agreement considered together and also of the terms of the relevant provision of the Agreement in order to determine whether the provision under consideration contains a clear and precise obligation.
3.1. Nature and purpose of the Agreement
8.
The Court has already examined these matters in connection with a provision of a free-trade agreement concluded between the Community and the Portuguese Republic, which was at the time still a member of EFTA, (
12
) in connection with association agreements with African States and Madagascar, (
13
) associated with the Community, and in connection with association agreements with Greece, (
14
) which at the material time was not yet a Member State, and with Turkey. (
15
) In doing so, the Court came on each occasion to the conclusion, notwithstanding the appreciable differences between the agreements examined, that the nature and purpose of the agreements did not preclude any one or other of their provisions from producing direct effects. With regard to GATT, the Court arrived at a different conclusion. In that case it took account of the great flexibility of the provisions of the General Agreement in particular those concerning possibilities of derogation, measures which could be taken in the event of exceptional difficulties and the settlement of disputes between the Contracting Parties. (
16
)
When it looks to the nature and purpose of an international agreement the Court considers whether that agreement does more than merely impose reciprocal obligations on the signatory States, in other words whether the agreement is of such a nature as or is intended to govern the legal situation of individuals. It emerges from the relevant decisions of the Court that an agreement does not necessarily have to be ‘long term’ (in other words directed towards integration into the Community) for its provisions to be of direct effect. It is true that in its judgment in Van Gend and Loos (
17
) the Court stressed that it was inherent in the ratio of a common market that its rules should be addressed directly to nationals of the Community. That does not mean however that agreements of a more limited scope may not contain such rules. (
18
)
9.
Let us then consider the purpose and nature of the Agreement at issue in the main proceedings. The purpose of that Agreement is to promote overall cooperation between the Community and Morocco with a view to contributing to the economic and social development of Morocco and helping to strengthen relations between the parties. (
19
)‘To this end’, Article 1 of the Agreement continues, ‘provisions and measures will be adopted and implemented in the field of economic, technical and financial cooperation, and in the trade and social fields’. So far as its content is concerned the Agreement governs three areas: economic, technical and financial cooperation (Title I), trade cooperation (Title II) and cooperation in the field of labour (Title III). In my opinion neither the purpose nor the nature of this Agreement preclude the direct effect of its provisions, any more than the purpose and the nature of various agreements of differing scope which have already been the subject of decisions of the Court (see section 8 above) preclude, according to the Court, the direct effect of their provisions.
In its judgment in Bresciani (
20
) the Court came to this conclusion notwithstanding its finding that the Convention (Yaounde I) had not been concluded in order to ensure equality in the obligations of the Community and the associated States but rather to promote the development of those States. In its judgment in Kup/erberg (
21
) the Court allowed the possibility of a free-trade agreement having direct effect, notwithstanding the existence of a special institutional framework for consultations and negotiations between the parties and of safeguard clauses which, it is true, could fall to be applied only in special circumstances. And although in Demirel (
22
) the Court refused to recognize the direct effect of two provisions of the association agreement with Turkey because of their programmatic character, it in no way denied that certain (other) provisions of that agreement might have direct effect. In Pabst & Richarz (
23
) direct effect was moreover accorded to certain provisions of an association agreement with Greece which displayed a great similarity to the association agreement with Turkey. (
24
)
The Agreement with Morocco which falls for the Court's consideration today is far less characterized by inequality in the matter of obligations, particularly in the social sphere, than the association agreement at issue in the Bresciani judgment, has a similar institutional framework and certainly does not contain safeguard clauses broader than those in the agreement in question in Kupferberg (see the following section) and it does not have the ‘programmatic character’ of the agreement examined in Demirel. This latter remark applies in particular as regards the provisions of Title II of the Agreement (which requires, in respect of a certain number of products originating in Morocco, the abolition of quantitative barriers and of customs duties or measures having equivalent effect) and of Title III (which is intended to ensure equality of treatment between Moroccan workers and Community workers). Those provisions not infrequently contain detailed rules which are plainly designed to govern the legal situation of individuals.
10.
The fact that the Agreement provides for a special institutional framework (namely the setting-up of a ‘Cooperation Council’), (
25
) that it permits the parties, in certain circumstances, to take unilateral measures (
26
) and also provides, for the settlement of disputes between the Contracting Parties, a procedure which does not require the parties or even the possibility to submit such a dispute to the Court (
27
) is not, as may be seen from the case-law of the Court cited above, such as to exclude in principle the direct application of an agreement. (
28
) It is true that in the context of GATT the Court held that the settlement of disputes provided for in that agreement and the possibilities of adopting safeguard measures which it offered constituted an obstacle to the direct effect of its provisions. (
29
) Unlike GATT, the Agreement now under consideration offers much more restricted possibilities for adopting safeguard measures and it also provides for a compulsory settlement (by way of arbitration) of disputes. From both points of view it even contains stricter provisions than did the agreement with Portugal which was examined in Kiipferberg. (
30
) (
31
) As regards that agreement the Court held in Kupferberg:
‘The mere fact that the Contracting Parties have established a special institutional framework for consultation and negotiations inter se in relation to the implementation of the agreement is not in itself sufficient to exclude all judicial application of that agreement. The fact that a court of one of the parties applies to a specific case before it a provision of the agreement involving an unconditional and precise obligation and therefore not requiring any prior intervention on the part of the joint committee does not adversely affect the powers that the agreement confers on that committee’ (paragraph 20).
‘As regards the safeguard clauses which enable the parties to derogate from certain provisions of the agreement it should be observed that they apply only in specific circumstances and as a general rule after consideration within the joint committee in the presence of both parties. Apart from specific situations which may involve their application, the existence of such clauses, which, moreover, do not affect the provisions prohibiting tax discrimination, is not sufficient in itself to affect the direct applicability which may attach to certain stipulations in the agreement’ (paragraph 21).
Those considerations apply with equal, and even more, force with respect to the Agreement with Morocco which is before the Court today.
3.2. The terms of the relevant provisions of the Agreement
11.
Once it is accepted that the nature and purpose of the Agreement do not preclude the direct application of its provisions, it must next be ascertained whether the terms of paragraph 1 of Article 41 of the Agreement are such that they express a sufficiently precise obligation for whose implementation or effect no further act is necessary. I consider it useful to cite in extenso the text of Articles 40, 41 and 42:
‘Article 40
The treatment accorded by each Member State to workers of Moroccan nationality employed in its territory shall be free from any discrimination based on nationality, as regards working conditions or remuneration, in relation to its own nationals.
Morocco shall accord the same treatment to workers who are nationals of a Member State and employed in its territory.
Article 41
1.   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.
2.   All periods of insurance, employment or residence completed by such workers in the various Member States shall be added together for the purpose of pensions and annuities in respect of old age, invalidity and death and also for that of medical care for the workers and for members of their families resident in the Community.
3.   The workers in question shall receive family allowances for members of their families who are resident in the Community.
4.   The workers in question shall be able to transfer freely to Morocco, at the rates applied by virtue of the law of the debtor Member States or States, any pensions or annuities in respect of old age, death, industrial accident or occupational disease, or of invalidity resulting from industrial accident or occupational disease.
5.   Morocco shall accord to workers who are nationals of a Member State and employed in its territory, and to the members of their families, treatment similar to that specified in paragraphs 1, 3 and 4.
Article 42
1.   Before the end of the first year following entry into force of this Agreement, the Cooperation Council shall adopt provisions to implement the principles set out in Article 41.
2.   The Cooperation Council shall adopt detailed rules for administrative cooperation providing the necessary management and control guarantees for the application of the provisions referred to in paragraph 1.’
The terms of paragraph 1 of Article 41 are clear and precise: in the field of social security all discrimination on the basis of nationality is prohibited. These terms are identical to those used in the first paragraph of Article 40 which prohibits all discrimination based on nationality with respect of working conditions and remuneration, a provision which the Commission, too, accepts has direct effect. The fact that the prohibition of discrimination laid down in Article 41 is ‘Subject to the provisions of the following paragraphs ... ’ in no way detracts from the clear nature of the prohibition. The provisions contained in the other paragraphs of Article 41 qualify or clarify the non-discrimination rule without diminishing the clarity or precision of the rule laid down in paragraph 1.
12.
The argument put forward by the Commission, the French Government and Onem in order to deny direct effect to Article 41 is based on the fact that the first paragraph of Article 42 empowers the Cooperation Council to adopt provisions implementing Article 41 (and not Article 40). In their view the ‘principles’ set out in Article 41 cannot be attributed direct effect without intervention on the part of the Cooperation Council. That argument does not convince me. It may admittedly be inferred from the wording of the Agreement that compliance with the prohibition of discrimination laid down in Article 41 must be facilitated by action on the part of the Cooperation Council, but not that it always requires such action. (
32
) In other words: Articles 41 and 42, read together, deny all direct effect to those provisions of Article 41 which demand an implementing measure in order to render the obligations which they contain ‘clear and precise’. (
33
) That might be the case, for example, as regards measures designed to ensure the implementation of the principle stated in paragraph 2 of Article 41 (aggregation of insurance periods). However, the case before the national court concerns a situation which can be judged directly on the basis of the first paragraph of Article 41 of the Agreement: (
34
) it is established that Kziber satisfies all the conditions for the grant of the allowance and that that allowance was refused to her solely on the ground that she is of Moroccan nationality. In such a case the application of the principle of non-discrimination does not (according to the terms of Article 42) have to be ‘guaranteed’ by the implementing procedures adopted by the Cooperation Council, since the effect of that principle already is assured by a clear prohibition of discrimination which can be applied directly by the national court.
13.
There is a further reason for which Article 42 cannot stand in the way of the direct application of clear and precise provisions of Article 41, namely that the time-limit laid down in the first paragraph of Article 42 within which the detailed implementing rules were to be adopted by the Cooperation Council expired on 1 November 1979. (
35
) In that regard I would recall that the Court did not hesitate to accord direct effect to a number of provisions of the Treaty (such as Articles 52 and 59 of the EEC Treaty), notwithstanding the fact that ‘measures for implementing’ those provisions are envisaged by other articles of the Treaty. (
36
) In making this comparison I do not claim that there is a perfect parallelism between the theory of the direct effect of provisions of Community law and that the direct effect of provisions of agreements concluded with non-member countries. But the comparison is still valid in my opinion in so far as in the present case it is contended that a clear and precise provision does not have direct effect for the sole reason that another provision envisages the adoption of detailed implementing rules.
4. The scope and interpretation of Article 41 of the Agreement
14.
Given that the direct effect of Article 41 of the Agreement is established in a case such as the present one, it is still necessary to give an answer to various questions relating to the field of application (in other words, the scope) and the interpretation of this provision. So far as its scope is concerned, it must be ascertained whether an allowance such as the one in point in the main proceedings, an allowance which, as I have said, constitutes a component of a system of unemployment allowances, may be regarded as coming within the field of application of Article 41(1) which refers in general terms to rules ‘in the field of social security’. So far as interpretation is concerned it must be verified whether Kziber is to be regarded as a ‘worker’ or as a ‘member of the family’ living with a worker of Moroccan nationality. The expressions concerned in each case correspond (or at least show a certain similarity) to expressions used in the Treaties or in secondary Community legislation. According to the case-law of the Court, the provisions of international agreements must however be interpreted in conformity with the terms of the agreement and in the light of the objective pursued by it and the interpretation which the Court has given to similar rules or expressions found in the Treaties or in secondary Community law cannot be transposed by simple analogy to an international agreement: it must first be found that the text and the scope of the Agreement do not preclude such transposition. (
37
)
4.1. The scope of Article 41
15.
Let us first look at the significance of the expression ‘social security’ which is decisive for the scope of the prohibition of discrimination laid down in Article 41(1) of the Agreement. At the hearing the representative of the French Government maintained that unemployment allowances (and thus also, as a special form of these, the allocations d'attente) are not designated by that expression. In support of that submission two reasons were given: firstly, the fact that paragraph 2 of Article 41, which deals with the aggregation of insurance or employment periods in various branches of social security, does not provide for such aggregation in the case of the right to unemployment allowances; secondly, the fact that there is no unemployment insurance in Morocco.
It is true that, as regards Community migrant workers, unemployment allowances clearly fall within the broad concept of ‘social security’, as may be seen from Article 4 of Regulation No 1408/71. However the two factors indicated by the French Government do lead one to wonder whether the concept of ‘social security’ in Article 41 of the Agreement has the same broad scope. Firstly, Article 41(2) provides for an aggregation regime in respect of all the branches of social security for which Regulation No 1408/71 also provides such a regime, to the exclusion of the branch of unemployment. This fact may be interpreted in two ways. Either it means that as regards unemployment allowances Moroccan workers are in fact entitled in principle to non-discriminatory treatment but that they do not come into consideration for the purposes of the aggregation of insurance periods. Or it means that unemployment allowances are absolutely excluded from the sphere of application of Article 41. This latter conclusion is further supported by the fact that paragraph 4 of Article 41 lays down a specific rule as regards the free transfer of sums of money to Morocco with respect to all the traditional branches of social security, but excepting the branch of unemployment.
Assuming that there is in fact no unemployment insurance in Morocco (second argument of the French Government) then this fact points to the same conclusion, having regard also to the fact that Article 41(5) provides that Morocco is to accord treatment similar to that specified in paragraph 1 (namely the prohibition of discrimination) and in paragraphs 3 and 4. This concern to achieve reciprocity in the application of provisions, coupled with the absence of specific rules concerning unemployment allowances, may amount to an indication that it was not intended to bring within the scope of application of Article 41 unemployment allowances which do exist in the Member States but not in Morocco.
There is therefore justification for some doubt but I do not consider it necessary to decide this question. It will be seen later on that, even assuming that Article 41 also refers to unemployment allowances, the prohibition of discrimination laid down in Article 41(1) does not confer upon a person such as Kziber the right to claim the allocation d'attente which is in question in the main proceedings.
4.2. The concepts of ‘member of the family of a worker’ and of ‘worker’ in Article 41
16.
The question which I shall now consider is whether a person like Kziber is to be regarded as a member of the family of a worker of Moroccan nationality living with him within the meaning of Article 41(1) of the Agreement.
The German Government disputes this, pointing out that it emerges from the decision making the reference to the Court that Kziber's father is a pensioner and that he can therefore not be regarded as a ‘worker of Moroccan nationality’ who is ‘employed’ in one of the Member States of the Community within the meaning of that provision, so that Kziber herself is not a member of the family living with such a worker. This assertion amounts to claiming that a person in receipt of a pension is no longer a worker and cannot claim the benefit of the non-discrimination rule established by the Agreement, something which, in my opinion, cannot have been the intention of the Contracting Parties: a significant part of the ‘field of social security’ to which Article 41 applies deals with the rights of pensioned workers. That is apparent in particular from Article 41(4) which entitles ‘workers’ of Moroccan nationality to transfer all sorts of pensions and annuities to Morocco. I therefore consider that Article 41 cannot be interpreted in the sense that persons of Moroccan nationality who have worked in the Community and have subsequently been receiving a retirement pension are excluded from the scope of Article 41.
17.
Another question is whether a member of the family of a Moroccan worker may, by virtue of the equal-treatment rule laid down in Article 41 can claim the benefit of the allocation d'attente in point in the main proceedings (always assuming that unemployment allowances fall within the scope of Article 41). In that connection the national court is of the opinion that such persons can only claim ‘derived rights’, in other words rights which they can claim in their capacity as members of the family of a Moroccan worker. The Belgian allowance, thinks the national court on the basis of the case-law of the Court of Justice, is not a ‘derived right’ but a right enjoyed by the young person in search of employment ‘by virtue of his personal situation’.
18.
The concept ‘derived right’ appeared in the case-law of the Court on the occasion of the interpretation given by the Court to the scope ratione personae of Regulation No 1408/71. Articles 2 and 3 of that regulation lay down a rule of equal treatment in favour of migrant workers who are nationals of one of the Member States ‘and for members of their family’. (
38
) In its judgment in Kermaschek delivered in 1976 (
39
) the Court decided that that regulation applied to two clearly distinct categories: workers on the one hand, members of their family on the other. Whereas persons belonging to the first category may claim the rights to benefit envisaged by Regulation No 1408/71 as ‘rights of their own’, members of their family can only claim ‘derived rights’, that is to say rights acquired through their status as a member of the family of a worker. From this it was concluded that the members of the family (irrespective of their nationality) of migrant workers who are nationals of a Member State are entitled only to the benefits provided by the national legislation of the Member State for the members of the family, as such, of migrant workers. (
40
)
The judgment in Kermaschek was confirmed in the judgment in Deak delivered in 1985, (
41
) this time specifically with reference to the allocation d'attente provided for by the Belgian legislation for young seekers of employment. In its judgment in Deak the Court took the view that this allowance constituted a benefit available to young persons in search of employment by reason of their personal situation and not by virtue of their status as members of the family of a worker; in other words, the right was a personal one which the members of the family of a migrant worker may not, as a result, claim on the basis of Regulation No 1408/71. (
42
)
It seems to me that the interpretation given in Kermaschek, confirmed in Deak and applied in that judgment to the allowance in point, must also apply with respect to Article 41 of the Agreement. Having regard to the purpose and scope of the Agreement and the terms of Article 41, which is intended to ensure equality of treatment, it cannot be accepted that this provision accords to members of the family of a Moroccan worker rights more extensive (that is to say, not merely derived rights but also rights of their own) than those which Regulation No 1408/71, which is intended to ensure freedom of movement for workers within the Community, accords to members of the family of a worker who is a Community national. For that reason a member of the family of a Moroccan worker cannot, on the basis of Article 41 of the Agreement, claim the allocation d'attente in question.
19.
In Deak the Court however also considered whether, in the light of Article 7(2) of Regulation No 1612/68, (
43
) the allowance concerned could be refused to children (irrespective of their nationality) of workers who are nationals of a Member State. The Court answered that question in the negative on the ground that Article 7(2) requires that workers from other Member States must be guaranteed all social advantages which are apt to ‘facilitate the mobility of such workers within the Community’. (
44
) If the benefit of the allocation d'attente in favour of young seekers of employment were not guaranteed to children of a migrant worker in the Member State in which he settled and found work, that worker would then be ‘induced not to remain in [that] Member State’. (
45
)
For workers of Moroccan nationality, however, there exists no provision such as Article 7(2) of Regulation No 1612/68. Must it nevertheless be accepted, by virtue of the general prohibition of discrimination laid down in Article 41 of the Agreement, that the children of these workers may, too, claim ‘social advantages’, including the allocations d'attente in favour of young seekers of employment? I think not. It emerges clearly from the grounds of the judgment in Deak that the decision of the Court was inspired by considerations concerning freedom of movement for workers within the Community. The Agreement, however, is not intended to facilitate the access of Moroccan workers to the employment market of the Community (and vice versa) any more than it is intended to facilitate the migration of those persons within the Community; its object is solely to ensure equal treatment for workers already admitted to the labour market. In view of the purpose and nature of this Agreement Article 41 thereof can certainly not be given the same interpretation as that given by the Court in Deak to Article 7(2) of Regulation No 1612/68.
Applied to the situation in point in the main proceedings, this means that a person such as Kziber cannot, on the basis of the prohibition of discrimination laid down in Article 41 of the Agreement, claim an allocation d'attente for young persons in search of employment, even though that allowance constitutes a social advantage within the meaning of Article 7 of Regulation No 1612/68.
20.
There remains the question whether Kziber is to be regarded as a ‘worker’ within the meaning of Article 41 of the Agreement and whether in that capacity she may claim to be granted the allowance concerned.
Here, too, the rule is that the term ‘worker’ must be interpreted in the light of the purpose of the Agreement and in conformity with the terms of the provision in question. It seems to me that the broad interpretation which the Court has given to the term ‘worker’ within the meaning of Article 48 of the EEC Treaty cannot be transposed by way of analogy to the concept ‘worker’ in Article 41 of the Agreement.
In the case-law concerning Article 48 of the Treaty the term ‘worker’ is broadly interpreted because it defines the sphere of application of one of the fundamental freedoms of the Community. (
46
) However, the Agreement at present under consideration pursues different objectives from those of the EEC Treaty. As has been pointed out earlier, its object is not to facilitate access of persons of Moroccan nationality to the labour market of the Community, or to encourage the migration of those persons within the Community. It is solely intended to ensure non-discriminatory treatment for persons of Moroccan nationality who are (or have been) pursuing an occupation in the territory of a Member State and for the members of their families living with them. The fact that, as appears to be the case so far as Kziber is concerned, someone was registered for a certain time with the employment agencies of a Member State, but without ever having been engaged in a genuine and effective occupation within the framework of an employment relationship, is not sufficient for that person to be regarded as a ‘worker’ within the meaning of Article 41 of the Agreement.
5. Conclusion
21.
On the basis of the foregoing considerations I propose that the Court give the following reply to the question referred to it by the Cour du travail, Liège:
‘Article 41(1) of the Cooperation Agreement between the European Economic Community and the Kingdom of Morocco does not preclude a Member State from refusing to grant the allocation d'attente provided for by its legislation in favour of young seekers of employment to a member of the family of a worker of Moroccan nationality residing with that worker on the ground that the seeker of employment is of Moroccan nationality.’
(
*1
)	Original language: Dutch.
(
1
)	Moniteur beige of 18. 1. 1964, p. 506.
(
2
)	This Cooperation Agreement was approved on behalf of the Community by Council Regulation (EEC) No 2211/78 of 26 September 1978 (OJ L 264, p. 1). It entered into force on 1 November 1978.
(
3
)	See the beginning of p. 7 of the decision making the reference.
(
4
)	Judgment in Case 94/84 Onem Deak [1985] ECR 1873
(
5
)	Regulation of the Council of 15 October 1968 on freedom of movement for workers within the Community (OJ English Special Edition 1968 (II), p. 475). Paragraph 2 of Article 7 provides that a worker who is a national of a Member State is to enjoy on the territory of the other Member States, the same social and tax advantages as national workers.
(
6
)	See paragraphs 20 to 24. As to this interpretation, see also section 19 infra
(
7
)	Cited in footnote 5 supra.
(
8
)	As amended and updated by Council Regulation No 2001/83 of 2 June 1983 (OJ L 230, p. 6)
(
9
)	See judgment in Case 12/86 Demirel v Stadt Schwäbisch Gmünd [1987] ECR 3719, with reference to the judgment in Case 181/73 Haegeman [1974] ECR 449, and judgment in Case 30/88 Greece v Commission [1989] ECR 3711, paragraph 12.
(
10
)	Judgment in Case 192/89 Sevince v Staatssecretaris van Justitie [1990] ECR I-3461, with reference to the judgments in Case 104/81 Kupferberg [1982] ECR 3641 and in Joined Cases 267/81, 268/81 and 269/81 SPI and SAMI [1983] ECR 801.
(
11
)	Judgment in Demirel, cited in footnote 9 supra, paragraph 14
(
12
)	See judgment in Kupferberg, footnote 10 supra.
(
13
)	See judgment in Case 87/75 Bresctani [1976] ECR 129
(
14
)	See judgment in Case 17/81 Pabst 6 Rieharz [1982] ECR 1331
(
15
)	See judgment in Demirel, footnote 9 supra, and judgment in Sevince, footnote 10 supra
(
16
)	See judgment in Joined Cases 21 to 24/72 International Fruit Company [1972] ECR 1219, paragraphs 19 to 27, as affirmed in the judgment in Case 9/73 Schluter [1973] ECR 1135, judgment in Case 266/81 STOT [1983] ECR 731 and judgment in Joined Cases 267/81, 268/81 and 269/81 SPI and SAMI [1983] ECR 801
(
17
)	Judgment in Case 26/62 [1963] ECR 3.
(
18
)	Sec the case-law cited in footnotes 12 to 15 supra and the Opinion of Mr Advocate-General Darmon in Sevince (supra, footnote 10) delivered at the sitting on 15 May 1990 [1990] ECR I-3473, sections 27 and 28.
(
19
)	See Article 1 of and the second paragraph of the preamble to the Agreement.
(
20
)	Cited in footnote 13 supra.
(
21
)	Cited in footnote 10 supra.
(
22
)	Cited in footnote 9 supra.
(
23
)	Cited in footnote 14 supra.
(
24
)	See, in this connection, the Opinion of Mr Advocate General Darmon in Sevince, cited above in footnote 18 supra, sections 22 to 29.
(
25
)	See Articles 44 to 48 of the Agreement.
(
26
)	See Articles 51 and 53 of the Agreement.
(
27
)	See Article 52 of the Agreement which entrusts the settlement of disputes between the parties, if they cannot be resolved by the Cooperation Council, exclusively to an ad hoc court of arbitration.
(
28
)	This follows, for example, as regards the provisions relating to the settlement of disputes, from the judgment in Bresciani relating to the Yaoundé Conventions. Those conventions provide that disputes relating to their interpretation and application, if they cannot be settled by the Association Council, are to be settled by a court of arbitration set up by those conventions (see Article 51 of the 1963 Convention and Anicie 53 of the 1969 Convention). Those rules are similar to those contained in Article 52 of the Cooperation Agreement with Morocco. Moreover, the fact that, by reason of the mixed character of an agreement, no compulsory or optional jurisdiction is conferred on the Court of Justice does not diminish the Court's jurisdiction when it comes to interpreting the Agreement in the context of problems of interpretation raised within the Community: for provisions expressly to that effect see Anicie 5 of the Internal Agreement 80/1154/EEC on the measures and procedures required for implementation of the Second ACP-EEC Convention of Lome (OJ L 347, p. 206) and Anicie 6 of Internal Agreement 86/127/EEC on the measures and procedures required for implementation of the Third ACP-EEC Convention (OJ L 86, p 221).
(
29
)	See judgment in International Fruit Company, cited in footnote 16 supra
(
30
)	Cited in footnote 10 supra.
(
31
)	Compare Articles 51 and 53 of the Agreement with Morocco and the possibility of adopting unilateral measures or safeguard measures contained in Ameles 25 to 31 of the Agreement with Portugal, and also Anicie 52 of the Agreement with Morocco and the conciliation procedure laid down in Anicie 30 of the Agreement with Portugal. The Agreement with Morocco contains, with respect to safeguard measures, rules which are every bit as strictly defined and, with respect to the settlement of disputes, even more binding.
(
32
)	Compare paragraph 20 of the judgment in Kupferberg, cited above (section 10) in which the Court accepted the direct effect of a provision ‘involving an unconditional and precise obligation and therefore not requiring any prior intervention [on the part of the joint committee established by the agreement with Portugal]’ (my emphasis).
(
33
)	Moreover in the judgment in Sevince (cited in footnote 10 supra), the Court stated that the provisions of an international agreement may even have a direct effect where other provisions (in that case, at the national level) must be adopted in order to ensure their application. In paragraph 22 the Court stated in that respect: ‘Those provisions merely clarify the obligation of the Member States to take such administrative measures as may be necessary for the implementation of those provisions, without empowering the Member States to make conditional or restrict the application of the precise and unconditional right.. ’
(
34
)	Whatever may be the scope of the provision in question: for further details see sections 14 to 20 of this Opinion.
(
35
)	The Agreement did in fact enter into force on 1 November 1978 (see footnote 2 supra).
(
36
)	See, for example, the judgment in Case 2/74 Reyners [1974] ECR 631.
(
37
)	See the judgment in Case 270/80 Polydor [1982] ECR 329 and the judgment in Kupferberg, cited in footnote 10 supra, paragraphs 29 to 31.
(
38
)	See Aarticle 3(1) in conjunction with Article 2(1) of Regulation No 1408/71.
(
39
)	Judgme. in Case 40/76 [1976] ECR 1669.
(
40
)	See paragraphs 7 to 9.
(
41
)	Already cited n footnote 4 supra.
(
42
)	Sec paragraph 15.
(
43
)	Cited in footnote 5 supra.
(
44
)	See paragraph 21.
(
45
)	See paragraph 23.
(
46
)	See judgment in Case 344/87 Bettray [1989] ECR 1621, paragraph 11, with reference to the judgment in Case 66/85 Lawrie-Blum[1986] ECR 2121.