Zoulika Krid v Caisse nationale d'assurance vieillesse des travailleurs salariés (CNAVTS).
Date: 1995-04-05
21 It is settled case-law (see the judgments in Case C-18/90 Office National de l' Emploi v Kziber [1991] ECR I-199, 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 Cooperation Agreement between the European Economic Community and the Kingdom of Morocco, signed in 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), 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 Cooperation Agreement 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.
22 The Court concluded (see the judgments in Kziber, cited above, paragraph 23 and Yousfi, cited above, paragraph 17) that that provision was capable of being applied directly.
23 Article 39(1) of the Cooperation Agreement between the EEC and Algeria is drafted in the same terms as Article 41(1) of the Cooperation Agreement between the EEC and Morocco, and the two agreements pursue the same object.
24 Accordingly, the direct effect which Article 39(1) of the Agreement must be recognized as having entails that persons to whom that provision applies are entitled to rely on it in proceedings before national courts.
The scope of Article 39(1) of the Agreement
26 With regard, first, to the persons covered by Article 39(1) of the Agreement, it should be noted that the provision applies first and foremost to workers of Algerian nationality, a concept to be understood in the broad sense. In accordance with the case-law on the identical provision in the Cooperation Agreement between the EEC and Morocco (see Kziber, cited above, paragraph 27, and Yousfi, cited above, paragraph 21), which is consequently applicable by analogy in this case, the term "workers" must be understood as encompassing 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 the materialization of one of the risks conferring entitlement to allowances under other social security branches.
32 With regard, secondly, to the term "social security" used in Article 39(1) of the Agreement, it is clear by analogy with the judgments in Kziber, paragraph 25, and Yousfi, paragraph 24, that it must be deemed to bear the same meaning as the identical term used in Regulation No 1408/71.
33 Even though, prior to its amendment by Regulation No 1247/92, Regulation No 1408/71 did not specifically mention amongst the social security branches to which it applies benefits of the same kind as the supplementary allowance from the FNS, the Court had nevertheless consistently held (see, in particular, Joined Cases 379/85, 380/85 and 381/85 and 93/86 CRAM Rhône-Alpes v Giletti and Others [1987] ECR 955 and C-236/88 Commission v France [1990] ECR I-3163) that the allowance fell within the matters covered by Regulation No 1408/71 by virtue of Article 4(1) thereof.
34 The Court considered (see, in particular, Giletti and Others, cited above, paragraph 10) that national legislation of the kind concerning the supplementary allowances paid by the FNS in fact fulfils a dual function in so far as, in the first place, it guarantees a minimum means of subsistence to persons in need and, in the second place, it provides additional income for the recipients of social security benefits which are inadequate.
35 The Court concluded (see Giletti and Others, cited above, paragraph 11) that, in so far as such legislation confers a right to supplementary benefits designed to increase the amount of pensions paid by way of social security, without any assessment of individual needs or circumstances, which is a characteristic of assistance, it comes within the social security system within the meaning of Regulation No 1408/71. The Court added that the fact that a single law may also provide for advantages which can be classified as assistance cannot alter, for the purposes of Community law, the intrinsic social security character of a benefit linked to an invalidity, old-age or survivor' s pension to which it is an automatic supplement.
37 Since, in line with the Kziber and Yousfi judgments cited above, the term "social security" used in Article 39(1) of the Agreement cannot be given a definition different from that which it is recognized as having in the context of Regulation No 1408/71, a benefit of the same kind as the supplementary allowance from the FNS comes within the field of social security within the meaning of that provision.
39 In that regard, it is sufficient to note that Article 39(1) of the Agreement merely lays down the principle that Algerian migrant workers and any members of their families living with them are to be free from any discrimination based on nationality in relation to nationals of the Member States in which they are employed. Since the persons covered by that provision of the Agreement are not the same as those covered by Article 2 of Regulation No 1408/71, 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 cannot be applied in the context of the Agreement, as is clear from the Kziber judgment.