Opinion of Mr Advocate General Jacobs delivered on 13 November 1997. - Henia Babahenini v Belgian State. - Reference for a preliminary ruling: Tribunal du travail de Charleroi - Belgium. - EEC-Algeria Cooperation Agreement - Article 39(1) - Principle of non-discrimination in the field of social security - Direct effect - Scope - Disability allowance. - Case C-113/97.



European Court reports 1998 Page I-00183



Opinion of the Advocate-General

1 In this case, referred by the Tribunal du Travail (Labour Court, Charleroi), the Court has been asked whether a Member State may refuse to pay to the wife of an Algerian worker, both of whom are resident in that State, a social security benefit payable to that State's own nationals.

2 The entitlement to social security benefits of Algerian workers and their families resident in the Community is governed by 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 (`the Agreement'). (1)

3 The object of the Agreement is to promote overall cooperation between the Contracting Parties with a view to helping to strengthen relations between them and to contributing to the economic and social development of Algeria. (2)

4 Article 39(1) provides that, subject to the following paragraphs of Article 39, none of which is relevant to the present case, workers of Algerian 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 State in which they are employed.

5 Mrs Babahenini, an Algerian national born on 12 July 1944, lives in Belgium with her husband, also an Algerian national, and their children. She has not worked in Belgium; her husband, however, is in receipt of a Belgian retirement pension and thus presumably worked in Belgium. Mrs Babahenini's application for Belgian disabled person's allowance was refused on the ground that she did not meet the nationality requirement laid down by the relevant Belgian law. (3) Article 4 of that law requires recipients of the disabled person's allowance to be genuinely resident in Belgium and to be of Belgian nationality, or fall within the scope of Regulation (EEC) No 1408/71, (4) or have the status of a stateless person or refugee, or have been entitled up to the age of 21 to a family allowance at the increased rate for disability. Mrs Babahenini appealed against the refusal to the Tribunal du Travail, Charleroi, which referred the following question to the Court for a preliminary ruling:

`In the light of Article 39 of the Cooperation Agreement between the European Economic Community and the People's Democratic Republic of Algeria, approved by Regulation (EEC) No 2210/78, may a Member State refuse to grant disablement benefit (in this case that provided for by the Belgian Law of 27 February 1987) to a disabled person of Algerian nationality who has not herself worked in Belgium, where that person resides in Belgium with her spouse, an Algerian national in receipt of a Belgian retirement pension?'

6 Written observations were submitted by the Belgian Government and the Commission. There was no hearing.

7 There is already a body of decisions of the Court on the meaning and scope of Article 39(1) of the Agreement and of the identically worded provision (5) of the Cooperation Agreement between the European Economic Community and the Kingdom of Morocco. (6) That case-law, which I reviewed in my Opinion in Djabali, (7) establishes the following principles.

8 First, the term `worker' encompasses former worker, (8) so that Mr Babahenini, who is in receipt of a Belgian retirement pension, may be presumed to fall within the personal scope of Article 39(1).

9 Secondly, the term `social security' cannot receive a definition different from that indicated in the context of Regulation No 1408/71. (9) Since the matters covered by Regulation No 1408/71 expressly include the Belgian disabled person's allowance, (10) that allowance is within the material scope of Article 39(1).

10 Thirdly, Article 39(1) has direct effect so that persons to whom it applies are entitled to rely on it in proceedings before national courts. (11)

11 To my mind, it follows incontrovertibly from those propositions that Mrs Babahenini is entitled to the disabled person's allowance if, as appears to be the case, a Belgian national in her position would be so entitled. (It may be noted that the condition of residence in Belgium is a valid condition for payment of this type of benefit. (12)) She is a member of the family of, and lives with, a former worker of Algerian nationality and accordingly is entitled by virtue of Article 39(1) to enjoy, in the field of social security, treatment free from any discrimination based on nationality in relation to nationals of the Member State in which her husband was employed.

12 The Commission's observations are in similar vein. The Belgian Government, however, takes a different view (its conclusion that the question referred should be answered in the negative is plainly an inadvertent error). It refers to the distinction established by the Court in Kermaschek (13) between derived rights and rights in person in the context of the rights of members of a worker's family to claim certain benefits covered by Regulation No 1408/71 and submits that the disabled person's allowance can only be claimed in one's own right and hence that Mrs Babahenini cannot claim it by virtue of her husband's status. As the Commission points out, however, the Court has refused to apply that distinction to claims based on Article 39(1) of the Agreement; (14) in any event, the Court in Cabanis-Issarte (15) restricted the rule established in Kermaschek to certain narrowly defined circumstances which do not encompass the facts of the present case.

Conclusion

13 I accordingly conclude that Article 39 of the Cooperation Agreement between the European Economic Community and the People's Democratic Republic of Algeria precludes a Member State from refusing on the ground of nationality to grant disabled person's allowance to a disabled person of Algerian nationality who has not herself worked in Belgium, where that person resides in Belgium with her spouse, an Algerian national who formerly worked in Belgium.

(1) - Council Regulation (EEC) No 2210/78 of 26 September 1978 concerning the conclusion of the Cooperation Agreement between the European Economic Community and the People's Democratic Republic of Algeria, OJ 1978 L 263, p. 1.

(2) - Article 1.

(3) - Law of 27 February 1987 on disability allowances.

(4) - Council Regulation (EEC) No 1408/71 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. The latest consolidated version is published as Part I of Annex A to Council Regulation (EC) No 118/97 of 2 December 1996, OJ 1997 L 28, p. 1.

(5) - Article 41(1).

(6) - Signed at Rabat on 27 April 1976 and approved on behalf of the Community by Council Regulation (EEC) No 2211/78 of 26 September 1978, OJ 1978 L 264, p. 1.

(7) - Case C-314/96 Djabali v Caisse d'Allocations Familiales de l'Essonne, Opinion delivered on 15 May 1997.

(8) - Case C-18/90 Kziber [1991] ECR I-199, paragraph 27 of the judgment.

(9) - Case C-58/93 Yousfi [1994] ECR I-1353, paragraph 28 of the judgment.

(10) - See Articles 4(2)(a) and 10a and Annex IIa.

(11) - Case C-103/94 Krid v CNAVTS [1995] ECR I-719, paragraph 24 of the judgment.

(12) - Article 10a of Regulation No 1408/71.

(13) - Case 40/76 Kermaschek v Bundesanstalt für Arbeit [1976] ECR 1669.

(14) - Krid, cited in note 11, paragraph 39 of the judgment.

(15) - Case C-308/93 Bestuur van de Sociale Verzekeringsbank v Cabanis-Issarte [1996] ECR I-2097.