A. Hallouzi-Choho v Bestuur van de Sociale Verzekeringsbank.
Date: 1996-10-03
19 The Court has consistently held (see Kziber, paragraphs 15 to 22, and Case C-58/93 Yousfi v Belgian State [1994] ECR I-1353, paragraph 16) that Article 41(1) of the Agreement, which lays down in clear, precise and unconditional terms a prohibition of discrimination, based on nationality, against workers of Moroccan nationality and the members of their families living with them in the field of social security, contains a clear and precise obligation which is not subject, in its implementation or effects, to the adoption of any subsequent measure in respect of any question other than the matters mentioned in paragraphs 2, 3 and 4 of that article. In those judgments, the Court added that the object of the Agreement, which is to promote overall cooperation between the contracting parties, in particular in the field of labour, confirms that the principle of non-discrimination enshrined in Article 41(1) is capable of governing the legal situation of individuals.
20 The Court concluded (see Kziber, paragraph 23, and Yousfi, paragraph 17) that the provision was of direct effect, so that persons to whom it applied were entitled to rely on it before national courts.
The scope of Article 41(1) of the Agreement
22 With regard, first, to the persons covered by Article 41(1) of the Agreement, it should be observed that the provision applies primarily to workers of Moroccan nationality, which encompasses, according to consistent case-law (see Kziber, paragraph 27, and Yousfi, paragraph 21), both active workers and those who have left the labour market after reaching the qualifying age for an old-age pension.
25 With regard, secondly, to the term "social security" used in that provision, it is clear from paragraph 25 of the Kziber judgment and paragraph 24 of the Yousfi judgment that it must have the same meaning as the identical term used in Regulation No 1408/71.
30 In that regard, it is sufficient to note that the persons covered by Article 41(1) of the Agreement are not the same as those covered by Article 2 of Regulation No 1408/71, so that the case-law distinguishing between the derived rights and the personal rights of members of migrant workers' families in the context of Regulation No 1408/71, which case-law has, moreover, recently been clarified by the judgment in Case C-308/93 Bestuur van de Sociale Verzekeringsbank v Cabanis-Issarte [1996] ECR I-0000, cannot be applied in the context of the Agreement, as is clear from the Kziber judgment (see, by way of analogy, Case C-103/94 Krid v CNAVTS [1995] ECR I-719, paragraph 39, with regard to 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 approved on behalf of the Community by Council Regulation (EEC) No 2210/78 of 26 September 1978 (OJ 1978 L 263, p. 1) which is identical to the wording of Article 41(1) of the EEC-Morocco Cooperation Agreement).
35 However, 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 employed means that the persons referred to by that provision must be treated as if they were nationals of the Member States concerned.
36 Accordingly, that principle requires that, in awarding social security benefits, the competent authorities of the Member State concerned must treat persons covered by Article 41(1) of the Agreement in the same way as nationals of that State, so that the national legislation at issue cannot impose upon those persons more or stricter conditions than those applicable to nationals of that Member State.
44 Even if factual evidence of the financial consequences alleged by the French Government were provided, the interpretation of Article 41(1) of the Agreement could not reasonably have given rise to uncertainty, bearing in mind the consistent case-law since the judgment in Kziber.