Zoubir Yousfi v Belgian State.
Date: 1994-04-20
16 In that connection the Court has already held in its Kziber judgment, cited above, that Article 41(1) of the Cooperation 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. 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.
17 The Court deduced therefrom (paragraph 23) that it followed from the terms of Article 41(1), as well as from the purpose and nature of the Agreement of which that article formed part, that that provision was capable of being applied directly.
18 Since the Government of the Federal Republic of Germany had expressly requested the Court to reconsider that case-law, it should be emphasized, as the Advocate General pointed out at paragraphs 6 and 7 of his Opinion, that the observations submitted in the context of this case have provided no new factor which might induce the Court to go back on the position which it adopted in the Kziber judgment cited above.
19 The direct effect which Article 41(1) of the Agreement must be recognized as having entails that persons to whom that provision applies are entitled to rely on it before national courts.
The scope of Article 41(1) of the Agreement
20 In order to determine the scope of the principle of non-discrimination laid down in Article 41(1) of the Cooperation Agreement, it is necessary to examine on the one hand whether a person such as the claimant in the main proceedings is a worker covered by that provision and whether a disability allowance such as that at issue in the main proceedings comes within the field of social security within the meaning of that provision.
21 With regard, first, to the concept of worker in Article 41(1) of the Cooperation Agreement, it is clear from paragraph 27 of the Kziber judgment, cited above, that it 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 the materialization of one of the risks conferring entitlement to allowances under other social security branches.
22 Paragraphs 2 and 4 of Article 41 of the Cooperation Agreement expressly refer, in connection with aggregation and the possibility of transferring benefits to Morocco, to schemes such as pensions or annuities in respect of old-age or invalidity benefits paid in the event of an industrial accident.
23 The term "worker" used in Article 41(1) of the Cooperation Agreement therefore covers a Moroccan national such as the claimant before the national court who is incapable of working following an industrial accident suffered by him in the Member State in which he has been living for more than five years and who applies for a disability allowance.
24 With regard, secondly, to the term "social security" used in Article 41(1) of the Cooperation Agreement, it is clear from paragraph 25 of the Kziber judgment, cited above, that it must be deemed to be analogous with the identical term used in Regulation No 1408/71.
25 Even if, prior to its amendment by Council Regulation (EEC) No 1247/92 of 30 April 1992 (Official Journal 1992 L 136, p. 1), Regulation No 1408/71 did not specifically mention amongst the social security branches to which it applies benefits for handicapped persons, the Court has nevertheless consistently held that disability benefits fall within the substantive scope of Regulation No 1408/71 by virtue of Article 4(1)(b) which expressly refers to "invalidity benefits" (see judgments in Case 187/73 Callemeyn [1974] ECR 553, paragraph 15 and, most recently, in Case C-310/91 Schmid [1993] ECR I-3011, paragraph 10).
26 In fact, the Court has held (see in particular judgment in Case C-356/89 Newton [1991] ECR I-3017, paragraph 14) that national legislation concerning disability allowances has in fact a two-fold function, seeking, on the one hand, to ensure a minimum level of income for handicapped persons who are entirely outside the social security system and, on the other, to provide supplementary income for recipients of social security benefits who suffer permanent incapacity for work.
27 The Court inferred therefrom (see paragraph 15 of the Newton judgment) that in the case of an employed or self-employed person who by reason of his previous occupational activity is already covered by the social security system of the State whose legislation is invoked, that legislation must be deemed to fall within the field of social security within the meaning of Article 51 of the Treaty and the legislation adopted in implementation of that provision, although in the case of other categories of beneficiaries it may be deemed not to.
28 Since, in line with the Kziber judgment cited above the term "social security" mentioned in Article 41(1) of the Cooperation Agreement cannot receive a definition different to that indicated in the context of Regulation No 1408/71, disability allowances such as those at issue in the main proceedings come within the purview of social security within the meaning of that article of the Cooperation Agreement.