Nour Eddline El-Yassini v Secretary of State for Home Department.
Date: 1999-03-02
17 In order to determine whether a body making a reference is a court or tribunal for the purposes of that provision, which is a question governed by Community law alone, the Court takes into account a number of factors, such as whether the body concerned is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent (see, in particular, Case 61/65 Vaassen (née Göbbels) [1966] ECR 261 and Case C-54/96 Dorsch Consult v Bundesbaugesellschaft Berlin [1997] ECR I-4961, paragraph 23).
24 In order properly to answer the question as reformulated, it is necessary first to examine whether the first paragraph of Article 40 of the EEC-Morocco Agreement may be relied upon by an individual before a national court and then, if so, to determine the scope of the principle of non-discrimination laid down by that provision.
The direct effect of the first paragraph of Article 40 of the EEC-Morocco Agreement
25 The Court has consistently held that a provision of an agreement concluded by the Community with third countries must be regarded as being directly effective when, having regard 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 (see, in particular, Case 12/86 Demirel v Stadt Schwäbisch Gmünd [1987] ECR 3719, paragraph 14, Case C-18/90 ONEM v Kziber [1991] ECR I-199, paragraph 15, and Case C-162/96 Racke v Hauptzollamt Mainz [1998] ECR I-3655, paragraph 31).
27 That provision prohibits, in clear, precise and unconditional terms, discrimination based on nationality against migrant Moroccan workers employed in the territory of the host Member State as regards working conditions or remuneration.
30 Moreover, the fact that the EEC-Morocco Agreement is intended essentially to promote the economic development of the Kingdom of Morocco and that, to that end, it confines itself to establishing a form of cooperation between the Contracting Parties which is not aimed at securing that country's association with, or future accession to, the Community does not preclude the Community from acknowledging the direct effect of certain of its provisions (Kziber, cited above, paragraph 21).
31 That conclusion applies in particular to Article 40 of the EEC-Morocco Agreement, which forms part of Title III relating to cooperation in the field of labour, which, far from being purely programmatic in nature, establishes, in the field of working conditions and remuneration, a clear and unconditional principle the nature of which is sufficiently practical that it can be applied by national courts and is therefore capable of directly governing the legal situation of individuals (Kziber, paragraph 22).
45 Even as regards the application of the fundamental right of persons to move freely within the Community, it is clear from case-law that the reservation contained, in particular, in Article 48(3) of the EC Treaty allows Member States to adopt, with respect to nationals of other Member States, on the grounds of public policy, public security or public health, measures which they cannot apply to their own nationals, inasmuch as under international law they may not expel them from the national territory or deny them entry to it (see, to that effect, Case 41/74 Van Duyn v Home Office [1974] ECR 1337, paragraphs 22 and 23; Joined Cases 115/81 and 116/81 Adoui and Cornuaille v Belgian State [1982] ECR 1665, paragraph 7; Joined Cases C-65/95 and C-111/95 Shingara and Radiom [1997] ECR I-3343, paragraph 28; Case C-171/96 Pereira Roque [1998] ECR I-4607, paragraphs 37 and 38; and Case C-348/96 Calfa [1999] ECR I-11, paragraph 20).  The situation must therefore be just the same as far as an agreement concluded between the Community and a third country, such as the EEC-Morocco Agreement, is concerned.
47 Next, as regards the question whether, as Mr El-Yassini claims, the Court's case-law concerning the rules governing the EEC-Turkey association should be applied, by analogy, to the present case, it must be noted that, according to settled case-law, an international treaty is to be interpreted not solely by reference to the terms in which it is worded but also in the light of its objectives. Article 31 of the Vienna Convention of 23 May 1969 on the Law of Treaties provides in that respect that a treaty is to be interpreted in good faith in accordance with the ordinary meaning to be given to its terms in their context and in the light of its object and purpose (see, to that effect, Opinion 1/91 [1991] ECR I-6079, paragraph 14, and Case C-312/91 Metalsa [1993] ECR I-3751, paragraph 12).
53 Given that framework, the Court has consistently held that a Turkish worker who fulfils the criteria laid down in Article 6(1) of Decision No 1/80 may claim an extension of his residence permit in the host Member State in order to remain in lawful gainful employment in that State (see, in particular, Kus, paragraph 36; Case C-36/96 Günaydin v Freistaat Bayern [1997] ECR I-5143, paragraph 55; Case C-98/96 Ertanir v Land Hessen [1997] ECR I-5179, paragraph 62; and Case C-1/97 Birden v Stadtgemeinde Bremen [1998] I-7747, paragraph 69).
The EEC-Morocco Agreement
62 In those circumstances, it must be concluded that, as Community law stands at present, a Member State is not in principle prohibited from refusing to extend the residence permit of a Moroccan national whom it has previously authorised to enter its territory and to take up gainful employment there, where the initial reason for the grant of his leave to stay no longer exists by the time that his residence permit expires.
63 The fact that the adoption of such a measure by the competent national authorities will oblige the person concerned to terminate his employment relationship in the host Member State before the contractual term agreed with his employer comes to an end will not, as a general rule, affect that conclusion.
64 However, the situation would be different if the national court were to find that the host Member State had granted the Moroccan migrant worker specific rights in relation to employment which were more extensive than the rights of residence conferred on him by that State.