61990J0018
REPORT FOR THE HEARING
in Case C- 18/90 (
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)
I — Facts and procedure
1.
The Cooperation Agreement between the European Economic Community and the Kingdom of Morocco (hereinafter referred to as ‘the Agreement’) was signed on 27 April 1976 at Rabat by the Kingdom of Morocco, on the one hand, and the Member States of the EEC and the Community, on the other hand, and concluded, on behalf of the Community, by Council Regulation No 2211/78 of 26 September 1978 (Official Journal L 264, p. 1).
2.
The objective of the Agreement, as stated in Article 1 thereof, is
‘to promote overall cooperation between the Contracting Parties with a view to contributing to the economic and social development of Morocco and helping to strengthen relations between the Parties. To this end provisions and measures will be adopted and implemented in the field of economic, technical and financial cooperation, and in the trade and social fields.’
3.
Article 40, which appears in Title HI of the Agreement relating to cooperation in the field of labour, provides:
‘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.
...’.
4.
Article 41(1) provides:
‘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.’
5.
Articles 44 and 45, which appear in Title IV relating to general and final provisions, provides for the establishment of a Cooperation Council composed, on the one hand, of members of the Council of the European Communities and members of the Commission of the European Communities and, on the other hand, of members of the Government of the Kingdom of Morocco. For the purpose of achieving the objectives set by the Agreement and in the cases provided by the Agreement, this Council is vested with decision-making powers. The decisions taken are binding on the Contracting Parties who are required to adopt measures necessary for their implementation.
6.
Article 42(1) provides:
‘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.’
7.
Notwithstanding the proposals for a decision submitted by the delegation of the Community no decision has been adopted by the Cooperation Council in the field of social security.
8.
In Belgium the Royal Decree of 20 December 1963 relating to employment and unemployment (Moniteur belge of 18.1.1964, p. 506) provides, in Article 124, for the grant of unemployment allowances, under certain conditions, for the benefit of young workers who have completed either vocational studies or an apprenticeship. As regards foreign and stateless workers, Article 125 of the Royal Decree provides that they are not to be entitled to unemployment allowances except within the limits of an international convention.
9.
Bahia Kziber, of Moroccan nationality, the daughter of a Moroccan national, who is now a pensioner in Belgium where he had worked as a wage-earner, was refused by the Office national de l'emploi (hereinafter referred to as ‘Onem’) entitlement to the unemployment allowances on the ground of her nationality.
10.
Ms Kziber brought an action against that decision of refusal before the labour courts. Whereas before the Tribunal du travail (Labour Tribunal) she relied on the general social security Convention between Belgium and Morocco, before the Cour du travail (Labour Court) she relied on the provisions of Anicie 41(1) of the Agreement.
11.
Since it considered that the dispute involved an interpretation of the Agreement, the Cour du travail, Liège, by judgment of 16 January 1990, stayed the proceedings until the Court of Justice had given 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?’
12.
In the grounds of the judgment making the reference the Cour du travail, Liège, states that the Agreement forms part of the Community legal order and that the non-discrimination clause contained in Article 41(1) is by its very nature perfectly capable of producing direct effects. According to the Cour du travail Miss Kziber cannot claim the status of worker employed in the territory of one of the States of the Community within the meaning of Article 41(1) of the Agreement; similarly, the Court of Justice had held in its judgment in Case 94/84 Deak [1985] ECR 1881 that the Belgian allocation d'attente (special unemployment allowance for young workers who have completed certain vocational studies or apprenticeships) did not constitute a derived right on which the holder could rely in his capacity as a descendant of a migrant worker; the Court of Justice did however hold that the allocation d'attente constituted a social advantage within the meaning of Article 7(2) of Regulation No 1612/68 of the Council on freedom of movement for workers within the Community, establishing the principle of equal treatment in the matter of social advantages as between national workers and workers who are national to the Member State (Official Journal, English Special Edition 1968 (II), p. 475). The question before the Cour du travail was whether the benefit of that provision was reserved exclusively to the dependent children of a worker who is a national of a Member State or whether it might also be accorded to the child of a worker who is a national of a non-member country with which the European Economic Community had concluded a cooperation agreement, on the basis of a non-discrimination clause of the type contained in Article 41(1) of the Agreement.
13.
The order of the Cour du travail, Liège, was registered at the Registry of the Court of Justice on 22 January 1990.
14.
In accordance with Article 20 of the Protocol on the Statute of the Court of Justice of the EEC written observations were submitted on 1 April 1990 by the Commission, represented by its Legal Adviser, Jean-Claude Séché, acting as Agent, on 3 April 1990 by Bahia Kziber, appellant in the main proceedings, represented by Michèle Baiwir and René Jamar, trade union representatives, on 6 and 9 April 1990 by Onem, respondent in the main proceedings, represented by C. Derwael, of the Brussels Bar, on 17 April 1990 by the Federal Republic of Germany, represented by Ernst Roder arid Joachim Karl, officials of the Federal Ministry of Economic Affairs, and on 8 April by the French Republic, represented by Philippe Pouzoulet, Deputy Director, and Claude Chavance, Attaché Principal, in the Legal Affairs Directorate of the Ministry for Foreign Affairs.
15.
Upon hearing the Report of the Judge-Rapporteur and the views of the Advocate General the Court decided to open the oral procedure without any preliminary enquiry.
II — Written observations submitted to the Court
1.
According to Bahia Kziber Article 41(1), which embodies the principle of non-discrimination, is sufficiently precise and specific to be directly applicable, notwithstanding the absence of provisions adopted, pursuant to Article 42, by the Cooperation Council.
In considering whether she has the status of a worker, it is necessary to go beyond the strict interpretation of that concept. It is not solely an unemployed person in receipt of unemployment allowances after a certain period of employment who must be considered as a worker but also a person registered as a person in search of employment and entitled under Belgian legislation to unemployment allowances.
Even if the Court were not to accept this assimilation, Miss Kziber must be entitled to rely on the non-discrimination rule in her capacity as a member of the family of a worker. In its judgment in Deak (cited above) the Court held that the allocation d'attente constituted a social advantage within the meaning of Regulation No 1612/68. It accepted that a worker who is a national of a Member State may pursuant to Article 7(2) of Regulation No 1612/68, which provides for equality of treatment in the matter of social advantages, claim the grant of the allocation d'attente to his child, even if the latter is not a national of a Member State.
Article 41(1) of the Agreement provides a guarantee of non-discrimination between Moroccan workers and workers of the Member States ‘in the field’ of social security. This formulation would appear to be wider than the non-discrimination in relation to the worker's rights to social security benefits by virtue of their own situation. In these circumstances Moroccan workers may, by virtue of Article 41(1) of the Agreement, rely on Article 7 of Regulation No 1612/68 which, according to the Court, prohibits nationality clauses affecting the children of workers who are nationals of a Member State, even if the child does not possess the nationality of a Member State, at least in so far as it concerns social security rights and not ‘social advantages’ in the broad sense.
Miss Kziber therefore proposes that the question should be answered as follows:
‘By virtue of Article 41(1) of the Cooperation Agreement the Member States may not set up as against Moroccan nationals nationality requirements laid down by national legislation for the grant of unemployment insurance benefits. In the alternative, Moroccan workers may, by virtue of Article 41(1) of the Cooperation Agreement, claim for their children the benefit of Article 7 of Regulation No 1612/68 with a view to the grant of unemployment insurance benefits.’
2.
Onem points out that in its judgment in Leak the Court held that the Belgian allocation d'attente was a right granted to young persons in search of employment on the basis of their own situation and not a right derived from their situation as a member of the family of a worker. The fact that the Court held that the principle of equal treatment laid down in Article 7 of Regulation No 1612/68 applied to the grant of the allocation d'attente to children of workers who are nationals of the Member State may be explained in the light of the purpose of the EEC Treaty which is, in the perspective of freedom of movement, to ensure the best possible social conditions for workers who are nationals of the Member States. The application of Article 7(2) should not be extended to workers who are nationals of a non-member country even if that country has concluded with the Community a cooperation agreement. Moreover, the agreement in question is manifestly of a limited scope and does not grant allocations d'attente to children of Moroccan workers on the basis of their own situation.
Furthermore, in the absence of provisions adopted by the Cooperation Council pursuant to Article 42 of the Agreement, the principle of non-discrimination laid down in Article 41(1) of that Agreement cannot apply-Even supposing — even if it were at all possible — that Article 41(1) applies, the person concerned does not have the status of worker within the meaning of that provision.
3.
The Government of the Federal Republic of Germany considers that the question submitted by the Cour du travail, Liège, should be answered in the affirmative.
Article 7(2) of Regulation No 1612/68 lays down the principle of equal treatment in the matter of social advantages only for the benefit of workers who are nationals of a Member State. Unlike the case decided by the Court in its judgment in Deak, the appellant in the main proceedings is not the descendant of a Community migrant worker.
Article 41(1) is not applicable in this case because the person concerned does not have the status of worker. Nor may she claim entitlement to rights as a member of the family of a worker, since her father is in retirement. Articles 40(1) and 41(1) provide for equality of treatment only for the benefit of Moroccan workers employed in the territory of a Member State. In these circumstances, the appellant's father himself could not claim the rights under the Agreement.
Even supposing that the father could rely on Article 41(1) of the Agreement, the right to equal treatment for the purposes of benefiting from a social advantage within the meaning of Article 7(2) of Regulation No 1612/68 is precluded. That regulation was adopted on the basis of Article 48 et seq. of the EEC Treaty and is intended to guarantee a right of free movement for Community workers, an objective which is different from that of the Agreement. In these circumstances the question whether the allocation d'attente qualifies as a social advantage may be left undetermined.
4.
The Government of the French Republic states at the outset that the appellant in the main proceedings may not, under Community law, claim entitlement, on the basis of her own nationality and that of her father, either a right to social security benefits on the basis of her own situation or a derived right to such benefit.
The Agreement, which is the sole instrument on which the appellant in the main proceedings can rely, lays down, in Article 40, a reciprocal principle of non-discrimination, reiterated in Article 41(1) for the benefit of workers of Moroccan nationality, a principle whose implementation, however, is a matter, according to Article 42, for the Cooperation Council.
In its judgment in Case 12/86 Demirel [1987] ECR 3719 the Court clearly stated that, for a provision of an agreement concluded by the Community with non-member countries to be capable of being directly applicable, it must, regard being had to its wording and to the purpose and nature of the agreement, contain a clear and precise obligation which is not subject, in its implementation or effects, to the adoption of any subsequent measure. In the present case the general principle laid down in Article 41 requires implementation by the Cooperation Council. Notwithstanding proposals to that end from the Community delegation, no implementing decision has been adopted by the Cooperation Council.
The French Government observes moreover that the unemployment allowances at issue in the main proceedings do not rank amongst the benefits listed in Article 41 of the Agreement. While the Court did classify such allowances as a social advantage within the meaning of Article 7(2) of Regulation No 1612/68, that classification applies only to the persons who benefit under the regulation and who do not include workers who are nationals of non-member countries.
In the case of Moroccan workers such a classification for the purposes of Article 41 of the Agreement could only result from a formal measure adopted by the Cooperation Council.
The Government of the French Republic therefore considers that the question should be answered as follows:
‘The provisions of Article 41 of the Cooperation Agreement between the European Economic Community and the Kingdom of Morocco signed at Rabat on 27 April 1976 and concluded on behalf of the Community by Council Regulation of 26 September 1978 do not constitute rules of Community law which are directly applicable in the internal legal order of the Member States. As a result, the child of a Moroccan national who is employed or in receipt of a pension in a Member State may not, on the basis of Community law, claim the benefit of an unemployment allowance. In any event, it is for the Cooperation Council, by virtue of the powers conferred on it by Article 42 of the Agreement, to determine whether the grant of such an allowance to the children of Moroccan workers residing in a Member State comes within the field of application of Article 41 of that Agreement.’
5.
The Commission points out that in its judgment in Deak the Court held that the Belgian allocation d'attente in question constituted a social advantage within the meaning of Article 7(2) of Regulation No 1612/68 which must be accorded to a migrant worker who is a national of a Member State, irrespective of the nationality of his child.
As regards the question of the direct effect of the provision included in an agreement concluded by the Community with a non-member country, the Commission recalls the criteria laid down by the Court in its case-law and, in particular and most recently, in its judgment in Demirel.
The object of the Agreement is to promote overall cooperation between the Contracting Parties with the view to contributing to the economic and social development of Morocco and helping to strengthen relations between the Parties. Article 51(1) of the Agreement which provides that the Contracting Parties are to take any general or specific measures required to fulfil their obligations under the Agreement merely underlines the binding character of the Agreement without prejudging the question of the direct effect which might come to be attached to certain of its provisions.
Such direct effect must be accorded to Article 40 of the Agreement which prohibits all discrimination as regards working conditions or remuneration. These are sufficiently precise concepts and no further measure is required for the application, in regard to them, of the principle of non-discrimination. The concepts of working conditions and remuneration does not include however the allocation d'attente at issue in the main proceedings. Article 40 cannot be construed as covering social advantages within the meaning of Article 7(2) of Regulation No 1612/68, a provision which applies only to Community nationals. Even if the Agreement mentions social advantages, that concept would not have the same scope as that accorded to it in Regulation No 1612/68 in view of the particular purposes of the EEC Treaty in the matter of freedom of movement. Finally, Article 40 refers exclusively to workers and not to the members of their families.
The allocation d'attente does however constitute a social security benefit within the meaning of Article 41(1) of the Agreement which, unlike Article 40, expressly mentions the members of the family. These provisions may not however be regarded as having direct effect. The application of the principles laid down in Article 41 is made subject, by virtue of Article 42, to action on the part of the Cooperation Council. The Community's delegation within the Cooperation Council has been unable to obtain the agreement of Morocco for the purpose of adopting implementing decisions.
The Commission therefore proposes that the question should be answered as follows:
‘The provisions of Article 41 of the Cooperation Agreement between the European Economic Community and the Kingdom of Morocco signed at Rabat on 27 April 1976 and concluded on behalf of the European Economic Community by Council Regulation No 2211/78 of 26 September 1978 do not constitute rules of Community law which are directly applicable in the internal legal orders of the Member States.’
F. A. Schockweiler
Judge-Rapporteur
(
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)	Language of the case: French.