CELEX: 62002CO0023
Language: en
Date: 2003-02-12 00:00:00
Title: Order of the Court (Second Chamber) of 12 February 2003. # Office national de l'emploi v Mohamed Alami. # Reference for a preliminary ruling: Cour de cassation - Belgium. # Article 104(3) of the Rules of Procedure - EEC-Morocco Cooperation Agreement - Article 41 - Principle of non-discrimination in the field of social security - Scope - Unemployment benefit. # Case C-23/02.

Case C-23/02 Office national de l'emploivMohamed Alami(Reference for a preliminary ruling from the Belgian Cour de cassation)
         
            «(Article 104(3) of the Rules of Procedure – EEC-Morocco Cooperation Agreement – Article 41 – Principle of non-discrimination in the field of social security – Scope – Unemployment benefit)»
            
               
                  Order of the Court (Second Chamber), 12 February 2003  
                     
               I - 0000 
               
            
                   
               
               
            
            Summary of the Order
         
         
                  
                  International agreements – EEC-Morocco Cooperation Agreement – Moroccan workers employed in a Member State – Social security – Equal treatment – Refusal to grant to an unemployed Moroccan worker, on account of the lack of an international agreement providing that account
                     is to be taken of work carried out in another Member State, a seniority supplement intended to increase unemployment benefit – Not permissible
                  (EEC-Morocco Cooperation Agreement, Art. 41(1))On its proper construction, Article 41(1) of the Cooperation Agreement between the EEC and Morocco precludes a host Member
         State from refusing to grant a worker of Moroccan nationality resident in its territory the benefit of a seniority supplement
         increasing the basic amount of unemployment benefit on the sole ground that there is no international agreement providing
         that account is to be taken of work carried out by that worker in another Member State, even though no such condition is imposed
         on workers who are nationals of that host Member State.Article 41(1), which has direct effect enabling the persons to whom it applies to rely on it in proceedings before national
         courts, lays down the principle of freedom from any discrimination based on nationality in the field of social security against
         Moroccan migrant workers and members of their family living with them in relation to nationals of the Member States in which
         they are or have been employed. That principle requires that persons falling within the scope of that article of the Agreement
         may claim social security benefits under the same conditions as nationals of the host Member State without its being possible
         for the legislation of that Member State to impose upon those persons more or stricter conditions than those applicable to
         its nationals. Accordingly, the imposition on persons covered by Article 41(1) not only of the requirement that they must
         be nationals of the Member State concerned but also of any other condition which is not required in respect of nationals,
         such as a condition, laid down in national legislation on seniority supplements increasing the basic amount of unemployment
         benefit, which makes the taking into account of work carried out abroad subject to the existence of an international agreement
         only in respect of foreign or stateless workers, must be regarded as incompatible with that principle.see paras 22, 30-33, 41, operative part
      

      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
            
            ORDER OF THE COURT (Second Chamber)12 February 2003  (1)
            
            
         
         
            
         
            ((Article 104(3) of the Rules of Procedure – EEC-Morocco Cooperation Agreement – Article 41 – Principle of non-discrimination in the field of social security – Scope – Unemployment benefit))
            
         In Case C-23/02, 
         REFERENCE to the Court under Article 234 EC by the Belgian Cour de cassation for a preliminary ruling in the proceedings pending
         before that court between
         
         
         
          Office national de l'emploi 
         
         
         and
         
          Mohamed Alami, 
         
         
         on the interpretation 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 approved on behalf of the Community by Council Regulation (EEC) No 2211/78 of
         26 September 1978 (OJ 1978 L 264, p. 1),
         
         
         
         
         THE COURT (Second Chamber),
         
         composed of: R. Schintgen (Rapporteur), President of the Chamber, V. Skouris and N. Colneric, Judges, 
         
         Advocate General: S. Alber, Registrar: R. Grass, the national court having been informed that the Court intends to give its decision by way of a reasoned
         order in accordance with Article 104(3) of the Rules of Procedure, the persons referred to in Article 20 of the EC Statute
         of the Court of Justice having been invited to submit any observations which they might wish to make in this regard, 
         
         after hearing the Advocate General, makes the following 
         
         
         Order
         1
            
         By order of 6 November 2000, received at the Court on 31 January 2002, the Belgian Cour de cassation (Court of Cassation)
         referred to the Court for a preliminary ruling under Article 234 EC a question concerning the interpretation 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 approved on behalf of the Community by Council Regulation (EEC) No 2211/78 of 26 September 1978 (OJ 1978 L 264, p. 1,
          
         the Agreement). 
         
         
         2
            
         That question was raised in proceedings between the Belgian Office national de l'emploi (National Employment Office,  
         ONEM) and Mr Alami, a Moroccan national, concerning the refusal to grant the latter an unemployment benefit. 
         
            
               Legal framework
            The Agreement
         
         
         3
            
         Article 41 of the Agreement, which is part of Title III of that agreement concerning cooperation in the field of labour, provides:
         
         
         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 State 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. 
         ...
         National law
         
         
         4
            
         In Belgium, under Article 126 of the Royal Decree of 25 November 1991 laying down rules in respect of unemployment (
          Moniteur belge  of 31 December 1991, p. 29888,  
         the Royal Decree), the basic daily amount of unemployment benefit referred to in Article 114 of that decree is to be increased by the addition
         of a supplement for seniority, provided that the unemployed person satisfies certain conditions. 
         
         
         5
            
         Thus, the person seeking the supplement must,  
          inter alia : 
         
         
         ─
            be wholly unemployed; 
         
         
         
         ─
            have reached the age of 50 by the last day of the relevant month; and 
         
         
         
         ─
            demonstrate 20 years' occupational experience as an employee within the meaning of Article 114(4) of the Royal Decree. 
         
         
         
         
         6
            
         Article 70(1) of the Ministerial Decree of 26 November 1991 governing the modes of application of the rules in respect of
         unemployment (
          Moniteur belge  of 25 January 1992, p. 1593) provides: For the purposes of Article 114(4) of the Royal Decree, occupational experience as an employee means:
         
         1.
          the work days referred to in Article 37 of the Royal Decree ... ; 
         
         
         2.
          the equivalent days referred to in Article 38 of the Royal Decree, save for days of full unemployment ...
         . 
         
         
         7
            
         Articles 37 and 38 of the Royal Decree are to be found under Title II of that decree, entitled  
         Unemployment Benefit, Chapter II, which deals with  
         Conditions of admissibility, Section 1 concerning  
         Training, subsection 3, entitled  
         Working days and equivalent days.
         
         
         8
            
         Article 37(2) of the Royal Decree provides: Work carried out abroad shall be taken into account if it was carried out in employment which, in Belgium, would give rise
         to social security deductions, including those for unemployment.
         
         
         9
            
         Article 38(2) of the Royal Decree provides: The days during which the worker was unable to perform his or her work abroad in consequence of a situation referred to in
         paragraph 1 shall be taken into account in so far as they are regarded as equivalent days in Belgium.
         
         
         10
            
         Article 43(1), which forms Section 3, entitled  
         Foreign and Stateless Workers, of Chapter II of Title II of the Royal Decree, provides,  
          inter alia : Articles ... 37(2) and 38(2) shall only apply within the limits of an international agreement ...
         The main proceedings and the question referred for a preliminary ruling
         
         11
            
         It is apparent from the case-file in the main proceedings that Mr Alami is a Moroccan migrant worker resident in Belgium where
         he receives unemployment benefit. 
         
         
         12
            
         Being over 50 years old, Mr Alami requested payment of the seniority supplement provided for in Article 126 of the Royal Decree.
         
         
         
         13
            
         By decision of 12 October 1993, ONEM refused that request on the ground that Mr Alami was unable to demonstrate 20 years'
         occupational experience as an employee within the meaning of Article 114(4) of the Royal Decree, as required by Article 126
         of that decree. He had not worked for that length of time in Belgium and his work experience in France ─ likewise as an employee
         ─ could not be taken into account in the absence of a relevant international agreement, which is a condition expressly required
         by Article 43(1) of that decree. 
         
         
         14
            
         Mr Alami brought an appeal against that decision before the Tribunal de travail (Labour Court), Liège, Belgium. 
         
         
         15
            
         However, that court, which raised of its own motion the question of the application of the Agreement, dismissed Mr Alami's
         appeal. In its judgment of 25 May 1998, it held that the aggregation of periods of insurance or employment in relation to
         unemployment, which is not provided for in Article 41(2) of the Agreement, is not required by the principle of non-discrimination
         in the field of social security laid down in Article 41(1) either. 
         
         
         16
            
         Mr Alami then brought the matter before the Cour du travail (Higher Labour Court), Liège, Belgium, which, by judgment of 19
         November 1999, reversed the judgment at first instance and ruled that, in a case such as that in the main proceedings, where
         a worker relies on work carried out in another Member State for the purpose of obtaining the seniority supplement in Belgium,
         that benefit may be granted only on the basis of Article 41(1) of the Agreement, as interpreted by the Court in Case C-18/90
          
          Kziber  [1991] ECR I-199. It found that, while Article 41(2) of the Agreement does not provide for the aggregation of periods of
         insurance or employment completed in various Member States in relation to unemployment benefit, the prohibition of discrimination
         in the field of social security laid down in Article 41(1) is, in the present case, sufficient to enable Mr Alami's employment
         in another Member State to be taken into account for the purpose of granting the seniority supplement under the same conditions
         as those applicable to workers who are nationals of the host Member State, irrespective of the existence of an international
         agreement in that regard. 
         
         
         17
            
         In support of its application for review of that judgment, ONEM submits essentially that, under Article 43(1) of the Royal
         Decree, the seniority supplement may be granted to a foreign worker only if that right is conferred on him by an international
         agreement. That is not the case as regards the Agreement since Article 41(2) does not provide for the aggregation of periods
         completed in other Member States in relation to unemployment benefit. Since Article 41(1) states that it applies only  
         subject to the provisions of the following paragraphs and since that reservation means that the prohibition of discrimination which is the subject of paragraph 1 applies only
         within the limits of the conditions laid down in paragraph 2 et seq. of that article, the rule that Moroccan workers employed
         in the territory of a Member State are to be treated in the same way as workers who are nationals of that State is not applicable
         to unemployment benefit, Consequently, the judgment of the Cour du travail, Liège, is inconsistent with Article 41 of the
         Agreement. 
         
         
         18
            
         The Cour de cassation therefore decided to stay proceedings and refer the following question to the Court for a preliminary
         ruling: Does the Agreement ... preclude a Member State from taking account only of work periods as an employee completed on its territory
         by workers of Moroccan nationality for the purposes of determining whether they are entitled to benefit from a supplement
         for seniority increasing the basic amount of their unemployment benefit?
         The question referred for a preliminary ruling
         
         19
            
         By that question, the national court asks essentially whether, on its proper construction, Article 41(1) of the Agreement
         precludes a host Member State from refusing to grant a worker of Moroccan nationality resident in its territory the benefit
         of a seniority supplement increasing the basic amount of unemployment benefit on the sole ground that there is no international
         agreement providing that account is to be taken of work carried out in another Member State, even though no such condition
         is imposed on workers who are nationals of that host Member State. 
         
         
         20
            
         Since it considered that the answer to that question may be clearly deduced from its existing case-law, the Court, in accordance
         with Article 104(3) of the Rules of Procedure, informed the national court that it intended to give its decision by reasoned
         order and invited the persons referred to in Article 20 of the EC Statute of the Court of Justice to submit any observations
         which they might wish to make in that regard. 
         
         
         21
            
         Only the United Kingdom Government and the Commission submitted observations within the time allowed. They approve the Court's
         intention to give its decision by reasoned order. 
         
         
         22
            
         In order to answer the question referred, it should first be observed that the Court has consistently held that Article 41(1)
         of the Agreement has direct effect, with the result that persons to whom that provision applies are entitled to rely on it
         in proceedings before the national courts (see  
          Kziber , cited above, paragraphs 15 to 23; Case C-58/93  
          Yousfi [1994] ECR I-1353, paragraphs 16 to 19; and Case C-126/95  
          Hallouzi-Choho [1996] ECR I-4807, paragraphs 19 and 20; and, by analogy, Case C-103/94  
          Krid [1995] ECR I-719, paragraphs 21 to 24; and Case C-113/97  
          Babahenini  [1998] ECR I-183, paragraphs 17 to 18, dealing with Article 39(1) of the Cooperation Agreement between the European Economic
         Community and the People's Democratic Republic of Algeria, signed in Algiers on 26 April 1976 and concluded on behalf of the
         Community by Council Regulation (EEC) No 2210/78 of 26 September 1978 (OJ 1978 L 263, p. 1), an article drafted in the same
         terms as Article 41(1) of the Agreement). 
         
         
         23
            
         Second, with respect to the scope of Article 41(1) of the Agreement, the Court has repeatedly held (
          Kziber , paragraph 25,  
          Yousfi , cited above, paragraph 24, and  
          Hallouzi-Choho , cited above, paragraph 25, and, by analogy,  
          Krid , cited above, paragraph 32, and  
          Babahenini , cited above, paragraph 26), first of all, that the term  
         social security contained in that provision must be deemed to bear the same meaning as the identical term used in 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, as amended and updated by Council Regulation (EEC) No 2001/83 of
         2 June 1983 (OJ 1983 L 230, p. 6,  
         Regulation No 1408/71). 
         
         
         24
            
         Article 4(1) of Regulation No 1408/71 lists, among the branches of social security falling within the scope of that regulation,
         unemployment benefits, of which the seniority supplement at issue in the main proceedings merely constitutes a subsidiary
         element (see, to that effect,  
          Kziber , paragraph 25). 
         
         
         25
            
         The fact that Article 41(2) of the Agreement, unlike Regulation No 1408/71, does not mention unemployment benefits among the
         schemes to which the aggregation of insurance or employment periods applies cannot result in the exclusion from the concept
         of social security, within the meaning of the Agreement, of those unemployment benefits, which are traditionally regarded
         as a branch of social security (see, to that effect,  
          Kziber , paragraph 26). 
         
         
         26
            
         Consequently, benefits such as the supplement at issue in the main proceedings fall within the scope of Article 41(1) of the
         Agreement. 
         
         
         27
            
         Next, the Court has also held that the concept of  
         worker in Article 41(1) of the Agreement encompasses both active workers and those who have left the labour market after reaching
         the age required for receipt of an old-age pension or after becoming the victims of one of the risks creating entitlement
         to allowances falling under other branches of social security (see,  
          inter alia ,  
          Kziber , paragraph 27). 
         
         
         28
            
         It is undisputed that Mr Alami is a Moroccan national who last worked in Belgium where he is now resident and where he receives
         unemployment benefit after having lost his job. 
         
         
         29
            
         Such a worker is therefore among those covered by Article 41(1) of the Agreement. 
         
         
         30
            
         Finally, it is also settled case-law that the principle, laid down in Article 41(1) of the Agreement, of freedom from any
         discrimination based on nationality in the field of social security against Moroccan migrant workers and members of their
         family living with them in relation to nationals of the Member States in which they are or have been employed means that the
         persons referred to by that provision must be treated as if they were nationals of the Member States concerned (see,  
          inter alia ,  
          Hallouzi-Choho , paragraph 35). 
         
         
         31
            
         That principle therefore requires that persons falling within the scope of that article of the Agreement may claim social
         security benefits under the same conditions as nationals of the host Member State without its being possible for the legislation
         of that Member State to impose upon those persons more or stricter conditions than those applicable to its nationals (see,
          
          inter alia ,  
          Hallouzi-Choho , paragraph 36, and, by analogy,  
          Babahenini , paragraph 29, and Case C-262/96  
          Sürül  [1999] ECR I-2685, paragraph 97). 
         
         
         32
            
         Accordingly, the imposition on persons covered by that provision not only of the requirement that they must be nationals of
         the Member State concerned but also of any other condition which is not required in respect of nationals must be regarded
         as incompatible with that principle (see  
          Hallouzi-Choho , paragraph 37, and, by analogy,  
          Babahenini , paragraph 30). 
         
         
         33
            
         In the present case, it is apparent that the national legislation on the seniority supplement at issue in the main proceedings
         makes the taking into account of work carried out abroad subject to the existence of an international agreement only in respect
         of  
         foreign or stateless workers, since that requirement does not apply to workers with Belgian nationality who have been employed in a Member State other
         than the Kingdom of Belgium. 
         
         
         34
            
         Such national legislation is therefore incompatible with the principle of freedom from discrimination laid down in Article
         41(1) of the Agreement, which precludes a Member State from refusing to grant a Moroccan national entitlement to a benefit
         such as the seniority supplement increasing the basic amount of unemployment benefit, provided for by the national legislation
         for unemployed persons over the age of 50 who are able to demonstrate a period of 20 years as an employee, if that benefit
         may be granted to a national in the same situation. 
         
         
         35
            
         However, ONEM submits that, in paragraph 18 of the  
          Kziber  judgment, the Court held that the fact that Article 41(1) of the Agreement states that the prohibition of discrimination
         laid down by it applies only subject to the following paragraphs means that, as regards the aggregation of periods of insurance,
         employment or residence, the grant of family benefits and the transfer to Morocco of pensions and annuities, that prohibition
         of discrimination is guaranteed only within the limits of the conditions laid down in paragraphs 2, 3 and 4 of that article.
         The limits within which the aggregation may be applied are laid down in Article 41(2), according to which the aggregation
         of periods of insurance, employment or residence is permissible only for pensions, annuities and medical care; that article
         does not, on the other hand, provide for aggregation in relation to unemployment benefits. ONEM concludes that the Agreement
         does not extend the prohibition of discrimination of Moroccan workers to those benefits. 
         
         
         36
            
         That argument cannot be upheld. 
         
         
         37
            
         First, paragraph 18 of the  
          Kziber  judgment, on which ONEM bases its argument, appears in the part of the judgment dealing with the direct effect of Article
         41(1) of the Agreement and the Court expressly stated, in the same paragraph of the judgment, that the reservation laid down
         in that article may not be interpreted as divesting the prohibition of discrimination of its unconditional character in respect
         of any question which arises in the field of social security other than those which are the subject of paragraphs 2, 3 and
         4 of that article. 
         
         
         38
            
         As is clear from paragraphs 33 and 34 of the present order, the case in the main proceedings is not concerned with technical
         problems relating to the aggregation of the periods of work carried out in different Member States but solely with the application
         of the principle of freedom from discrimination on grounds of nationality, laid down in Article 41(1) of the Agreement, for
         the purpose of enabling Mr Alami to obtain, in the host Member State and under its legislation, entitlement to a social security
         benefit under the same conditions as those laid down for the nationals of that Member State (see, by analogy,  
          Sürül , cited above, paragraph 55). That principle merely requires that persons falling within the scope of the Agreement be treated
         in the same way as nationals of the host Member State. 
         
         
         39
            
         Moreover, not only is the interpretation advocated by ONEM inconsistent with the findings in paragraphs 25 and 26 of the present
         order ─ findings derived directly from paragraph 26 of the  
          Kziber  judgment, according to which unemployment benefits fall within the scope of Article 41(1) of the Agreement ─ but it would
         also deprive that article of a substantial part of its effectiveness. 
         
         
         40
            
         Finally, the case which gave rise to the judgment in  
          Kziber  is in all respects comparable to the one pending before the Cour de cassation. Thus, in both cases, unemployment benefits
         are at issue and the relevant Belgian legislation provides that foreign and stateless workers are entitled to those benefits
         only within the limits of an international agreement, even though that condition does not apply to nationals. It follows that
         the answer given by the Court in  
          Kziber  must be applied by analogy to the case in the main proceedings. 
         
         
         41
            
         In light of the above considerations, the answer to the question referred must be that, on its proper construction, Article
         41(1) of the Agreement precludes a host Member State from refusing to grant a worker of Moroccan nationality resident in its
         territory the benefit of a seniority supplement increasing the basic amount of their unemployment benefit on the sole ground
         that there is no international agreement providing that account must be taken of work carried out by that worker in another
         Member State, even though no such condition is imposed on workers who are nationals of that host Member State. 
         
         Costs
         42
            
         The costs incurred by the United Kingdom Government and by the Commission, which have submitted observations to the Court,
         are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending
         before the national court, the decision on costs is a matter for that court. 
         
         On those grounds, 
         
         
         
            
            THE COURT (Second Chamber),
         
         
         in answer to the question referred to it by the Cour de cassation, by order of 6 November 2000, hereby rules:
         On its proper construction, Article 41(1) of the Cooperation Agreement between the European Economic Community and the Kingdom
            of Morocco 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 precludes a host Member State from refusing to grant a worker of Moroccan nationality resident in its
            territory the benefit of a seniority supplement increasing the basic amount of unemployment benefit on the sole ground that
            there is no international agreement providing that account is to be taken of work carried out by that worker in another Member
            State, even though no such condition is imposed on workers who are nationals of that host Member State.Luxembourg, 12 February 2003. 
         
         
         
                  R. Grass 
               
               
                  R. Schintgen  
               
            
         
         
         
                  Registrar
               
               
                  President of the Second Chamber
               
            
      
      
          1 –
            
             Language of the case: French.