Hassan Fahmi and M. Esmoris Cerdeiro-Pinedo Amado v Bestuur van de Sociale Verzekeringsbank.
Date: 2001-03-20
25 The Member States are free to organise their social security systems, in particular by determining the conditions for entitlement to benefits, provided that they do not infringe Community law when exercising that power (see, in particular, Case 1/78 Kenny [1978] ECR 1489, paragraph 16; Case 110/79 Coonan [1980] ECR 1445, paragraph 12; and Case C-120/95 Decker [1998] ECR I-1831, paragraphs 21 to 23).
28 As regards, moreover, the fact that the national court may not have jurisdiction to make a determination concerning the WSF, or the fact that the action pending before it was brought on the basis of the AKW alone, and the doubts expressed in relation to those facts by the Commission and the Netherlands Government respectively, it should be borne in mind that, in accordance with settled case-law, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court (see, inter alia, Case C-302/98 Sehrer [2000] ECR I-4585, paragraph 20).
29 In the cases before the national court, it is by no means obvious that, in so far as it concerns the WSF rather than the AKW, the interpretation of Community law sought by that court bears no relation to the purpose or facts of the main action or is likely to have no effect on the outcome of the proceedings, so that there is no need to reject the requests made by the national court (see, in that regard, inter alia, Case C-355/97 Beck and Bergdorf [1999] ECR I-4977, paragraph 22, and Case C-448/98 Guimont [2000] ECR I-10663, paragraph 22).
33 In order to answer the question as thus reformulated, it should be noted, first, that the Court has previously held that Article 77 of Regulation No 1408/71 gives a person entitled to a pension or a benefit payable under the legislation of a single Member State, residing in the territory of another Member State, entitlement only to family allowances, to the exclusion of other family benefits (Case 313/86 Lenoir [1988] ECR 5391, paragraphs 10 and 11).
34 Second, it should be emphasised that the specific purpose of Article 77 is to define the conditions in which a person in receipt of a pension may claim a dependent child's allowance from a Member State under whose legislation he receives a pension and that that provision expressly restricts its scope to family allowances. In those circumstances, neither the rule prohibiting discrimination on the basis of nationality laid down in Article 3(1) of Regulation No 1408/71 nor any other provision of that regulation can be interpreted as meaning that it enables the recipient of a pension who resides outside the territory of the paying Member State to obtain from that Member State dependent child allowances other than family allowances.
42 In that regard, the Court has held that, once the employment relationship has ended, the person concerned as a rule loses his status of worker within the meaning of Article 48 of the Treaty, although that status may produce certain effects after the relationship has ended (see Case C-85/96 Martínez Sala [1998] ECR I-2691, paragraph 32).
45 On the other hand, it is common ground that Article 7(2) of Regulation No 1612/68, which prohibits any discrimination between national workers and migrant workers in the granting of social advantages, is prima facie applicable since the study finance introduced by the WSF does indeed constitute such a social advantage (see Case C-3/90 Bernini [1992] ECR I-1071, paragraph 23, and Case C-337/97 Meeusen [1999] ECR I-3289). To that extent, the question must be taken to refer to Article 7(2) and not to Article 7(1) of Regulation No 1612/68.
56 It should be noted, first of all, that it is clear from the case-law of the Court that the purpose of the Cooperation Agreement is to consolidate the position of Moroccan workers and members of their families living with them in the host Member State as regards social security (Case C-179/98 Mesbah [1999] ECR I-7955, paragraph 36) and that, with specific regard to family allowances, the prohibition of discrimination laid down in Article 41(1) of the Agreement is guaranteed only within the limits of the conditions laid down in Article 41(3) (Case C-18/90 Kziber [1991] ECR I-199, paragraph 18).