1 By preliminary determination of 20 December 1996, received at the Court on 31 December 1996, the Immigration Adjudicator referred to the Court for a preliminary ruling under Article 177 of the EC Treaty three questions on the interpretation of the first paragraph of Article 40 of the Cooperation Agreement between the European Economic Community and the Kingdom of Morocco, signed in Rabat on 27 April 1976 and concluded on behalf of the Community by Council Regulation (EEC) No 2211/78 of 26 September 1978 (OJ 1978 L 264, p. 1, hereinafter `the EEC-Morocco Agreement').
2 Those questions have been raised in proceedings between Mr El-Yassini, a Moroccan national, and the Secretary of State for the Home Department concerning the refusal to extend his leave to remain in the United Kingdom.
3 According to the national file, on 1 January 1989 Mr El-Yassini was given leave to enter the United Kingdom as a visitor, with a restriction prohibiting his taking employment.
4 On 10 October 1990 he married a British national.
5 By reason of that marriage he obtained, on 12 March 1991, leave to remain in the United Kingdom. In accordance with standard immigration practice in that Member State, that leave was valid for an initial period of 12 months, and the restriction on employment was removed.
6 Since then, Mr El-Yassini has been in gainful employment. It is not claimed that his employment is unlawful or that it has been unlawful at any time since March 1991.
7 The couple subsequently separated. The Immigration Adjudicator found that the case involved no marriage of convenience or sham arrangement intended to enable Mr El-Yassini to obtain leave to remain in the United Kingdom.
8 On 5 March and 24 August 1992 Mr El-Yassini applied for an extension of his leave to remain in the United Kingdom, relying in particular on the first paragraph of Article 40 of the EEC-Morocco Agreement.
9 Article 40, which appears in Title III relating to cooperation in the field of labour, provides: `The treatment accorded by each Member State to workers of Moroccan nationality employed in its territory shall be free from any discrimination based on nationality, as regards working conditions or remuneration, in relation to its own nationals. Morocco shall accord the same treatment to workers who are nationals of a Member State and employed in its territory.'
10 Mr El-Yassini's applications were refused by the Secretary of State for the Home Department, on the ground inter alia that the words `as regards working conditions or remuneration' in the first paragraph of Article 40 of the EEC-Morocco Agreement do not relate to a Moroccan worker's right of residence in the host Member State and cannot therefore be construed as conferring on such a worker the right to continue working in that State after his residence permit has expired.
11 Mr El-Yassini then appealed against that decision to the Immigration Adjudicator. He maintained that the first paragraph of Article 40 of the EEC-Morocco Agreement must be interpreted as giving a migrant Moroccan worker the right to reside in the host Member State for so long as he lawfully remains in his employment.
12 In his decision making the reference, the Immigration Adjudicator points out that Mr El-Yassini does not contend that the first paragraph of Article 40 of the EEC-Morocco Agreement confers on Moroccan nationals rights identical to those granted by Community law to nationals of the Member States. Nor is he seeking to rely on Article 40 in order to be able to enter a Member State or to move from one employment to another there.
13 The Immigration Adjudicator adds that he considers Mr El-Yassini to be a man of good character who at all material times has been, and remains pending the outcome of the proceedings, in lawful employment.
14 However, the Immigration Adjudicator is uncertain whether the term `working conditions' in the first paragraph of Article 40 of the EEC-Morocco Agreement can be construed broadly, by analogy with the Court's case-law concerning, first, the scope of the same term appearing in Article 48(2) of the EC Treaty and in Article 7(1) of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community (OJ, English Special Edition 1968 (II), p. 475) and, second, the interpretation of Article 6(1) of Decision No 1/80 of 19 September 1980 on the development of the Association, adopted by the Council of Association established by the Association Agreement between the European Economic Community and Turkey as concluded, approved and confirmed on behalf of the Community by Council Decision 64/732/EEC of 23 December 1963 (Journal Officiel 1964, 217, p. 3685, hereinafter `the EEC-Turkey Agreement'). According to that interpretation, there is a link between the right of a national of the third country concerned to continue in employment in the host Member State and the right of that person to reside there, without which the right to work would be wholly ineffective (see, in particular, Case C-237/91 Kus v Landeshauptstadt Wiesbaden [1992] ECR I-6781).
15 Taking the view that an interpretation of the first paragraph of Article 40 of the EEC-Morocco Agreement was therefore necessary in order to determine the case, the Immigration Adjudicator stayed proceedings and referred the following questions to the Court: `(1) In a case of a Moroccan national who is lawfully resident in a Member State and who is lawfully employed in that Member State, does the term "working conditions" in Article 40 of the EEC-Morocco Cooperation Agreement include security of such employment for the duration of the employment as freely determined between the employer and the employee (i.e. length of employment) and the benefits arising from such security, such as a career structure providing the possibility of promotion, vocational training and pay and retirement pensions commensurate to the seniority of the Applicant, applying mutatis mutandis the reasoning used by the European Court of Justice in inter alia Case C-272/92 Spotti v Freistaat Bayern [1993] ECR I-5185 and Case 225/85 Commission v Italy [1987] ECR 2625? (2) If so, does the fact that the length of the Applicant's employment is subject to a de facto time-limit by the operation of the United Kingdom immigration laws and in the instant case is being terminated by the Respondent's decision not to extend the Applicant's leave to remain in the United Kingdom constitute discrimination in relation to such "working conditions" on grounds of nationality where the Respondent could not impose such a de facto time-limit and/or forced termination of employment upon its own nationals? (3) If the answer to questions (1) and (2) is in the affirmative, does Article 40 of the EEC-Morocco Cooperation Agreement require the Member State to grant the Moroccan worker leave to remain for the duration of his lawful employment?' Admissibility
16 Before replying to the questions referred, it is necessary to consider whether the Immigration Adjudicator is to be regarded as a court or tribunal within the meaning of Article 177 of the Treaty.
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).
18 In that regard, it should be first noted that the office of Immigration Adjudicator was established by the Immigration Act 1971.
19 That statute confers on the Immigration Adjudicator jurisdiction to hear and determine disputes concerning the rights of foreigners to enter and remain on the territory of the United Kingdom.
20 Further, Immigration Adjudicators constitute a permanent organ. Their determinations are to be made in accordance with the law, pursuant to the Immigration Act 1971 and in compliance with the rules of procedure laid down by the Immigration Appeals (Procedure) Rules 1984. As the Advocate General states in point 20 of his Opinion, that procedure is inter partes in nature. Immigration Adjudicators are required to give reasons for their determinations, which are binding and may, in certain circumstances, be appealed against to the Immigration Appeal Tribunal.
21 Lastly, Immigration Adjudicators are appointed by the Lord Chancellor for a renewable ten-year or one-year term, depending on whether they sit on a full-time or part-time basis. During their period of office, they enjoy the same guarantees of independence as judges.
22 It follows that the Immigration Adjudicator must be regarded as a court or tribunal within the meaning of Article 177 of the Treaty, so that the questions referred for a preliminary ruling are admissible. The questions referred
23 By his three questions, which are to be considered together, the Immigration Adjudicator is asking essentially whether the first paragraph of Article 40 of the EEC-Morocco Agreement is to be interpreted as precluding a host Member State from refusing to extend the residence permit of a Moroccan national whom it has authorised to enter its territory and to take up gainful employment there, for the entire period during which he has that 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.
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).
26 In order to determine whether the first paragraph of Article 40 of the EEC-Morocco Agreement meets those criteria, it is necessary first to examine its wording.
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.
28 Furthermore, the conclusion that that principle of non-discrimination is capable of directly governing the situation of individuals is not contradicted by examination of the purpose and nature of the agreement of which Article 40 forms part.
29 As is apparent from Article 1, the object of the EEC-Morocco Agreement is to promote overall cooperation between the Contracting Parties with a view to contributing to the economic and social development of the Kingdom of Morocco and helping to strengthen relations between those parties, particularly in the field of labour.
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).
32 Since the first paragraph of Article 40 of the EEC-Morocco Agreement must consequently be accepted as having direct effect, individuals to whom that provision applies are entitled to rely on it before the national courts. The scope of the first paragraph of Article 40 of the EEC-Morocco Agreement
33 Mr El-Yassini argues essentially that the host Member State may refuse to extend his residence permit only on legitimate grounds of public policy, public security or public health. The United Kingdom Government's view that Member States are at liberty to expel a Moroccan migrant worker at any time, despite having authorised him to enter their territory and to take up gainful employment there, would render illusory the rights laid down in the first paragraph of Article 40 of the EEC-Morocco Agreement, since it would allow the Member State concerned, in its absolute discretion and inter alia for purely economic reasons, to bring the migrant worker's employment to an end, even though that person had done nothing wrong.
34 According to Mr El-Yassini, to apply domestic immigration law in that way to a national of a third country which is linked to the Community by a cooperation agreement is ipso facto discriminatory, since that law is incapable of operating against a national of the Member State concerned; its application is therefore prohibited by the first paragraph of Article 40 of the EEC-Morocco Agreement, by reason of the consequences which it necessarily entails for the employment of the person concerned.
35 Mr El-Yassini states that he is not claiming entitlement to be treated in the same way as a national of a Member State but seeks the application, by analogy, of the Court's case-law concerning the rules governing the association between the EEC and Turkey, according to which the employment rights of migrant workers entail recognition of a right of residence for the person concerned, and enjoyment of those rights does not depend on the reason for which the right of entry, the right to work and the right of residence were initially granted (see, in particular, Kus, cited above, paragraphs 21 to 23 and 29). He infers from this that a Moroccan national who has been granted leave to engage in employment in a Member State may claim the right to reside there throughout the term of that employment.
36 The German and United Kingdom Governments maintain, on the other hand, that the aim of a cooperation agreement such as the EEC-Morocco Agreement is more limited than that of the rules governing the association between the EEC and Turkey, so that the Court's case-law concerning those rules cannot be applied by analogy to a Moroccan migrant worker such as Mr El-Yassini.
37 Those Governments further submit that the prohibition of discrimination on grounds of nationality laid down in the first paragraph of Article 40 of the EEC-Morocco Agreement applies only to the employment relationship of a Moroccan national in the host Member State. Consequently, each Member State retains the power to regulate both the entry and the residence in its territory of persons from Morocco; and, in particular, the detailed rules governing the presence of such persons in the Member State of employment fall within the ambit of the laws of that Member State alone.
38 In those circumstances, the first paragraph of Article 40 of the EEC-Morocco Agreement confers on a Moroccan national the right to equal treatment as regards working conditions and remuneration only for as long as the person concerned is authorised to reside in the host Member State. That provision cannot, however, be construed as granting a Moroccan migrant worker, even one who has been duly authorised to work in a Member State, the right to demand that his residence permit be extended for the purposes of continuing that employment relationship regardless of that Member State's national legislation implementing that State's immigration policy.
39 For the same reasons, the French Government considers that the application to a Moroccan worker, such as Mr El-Yassini, of the rules of the host Member State governing the entry and residence of foreigners cannot, as a general rule, constitute discrimination on grounds of nationality as regards working conditions within the meaning of the first paragraph of Article 40 of the EEC-Morocco Agreement.
40 However, the French Government observes that the Member State concerned may not exercise that power to grant and revoke the residence permit of a Moroccan national in such a way as to affect, without proper reason, the right to engage in employment which that State has granted to the person concerned.
41 The Commission states that it is certainly arguable that, once a Moroccan national has been granted leave to enter a Member State and engage in employment there, he must be recognised as having a right to reside in that State throughout the term of his employment contract, and that he cannot therefore be expelled solely on the ground that the reason for which his right of residence was initially granted no longer exists.
42 It may be objected, however, that that argument is tenable only in the precise context of the rules governing the association between the EEC and Turkey, the aim of which is more ambitious than the EEC-Morocco Agreement, and pursuant to which the Association Council has expressly provided for Turkish workers to be granted progressively more extensive rights as their lawful employment in a Member State continues.
43 According to the Commission, it follows that a Moroccan worker such as Mr El-Yassini cannot claim to have been discriminated against as regards working conditions, contrary to the prohibition contained in the first paragraph of Article 40 of the EEC-Morocco Agreement, merely because, by application of the immigration rules of the host Member State, he is refused an extension of his residence permit and is consequently obliged to terminate the employment in which he had been authorised to engage in the Member State in question.
44 In determining the scope of the first paragraph of Article 40 of the EEC-Morocco Agreement, it must be remembered first of all that this provision lays down the principle that all discrimination based on nationality between Moroccan migrant workers employed in the territory of a Member State and nationals of that State as regards working conditions and remuneration is to be prohibited.
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.
46 Consequently, contrary to the argument advanced by Mr El-Yassini, the principle of equal treatment as regards working conditions and remuneration laid down in the first paragraph of Article 40 of the EEC-Morocco Agreement cannot ipso facto have the effect of prohibiting the authorities of the host Member State from refusing to extend the residence permit of a Moroccan migrant worker employed on its territory, even though such a measure could not, by its very nature, be taken against a national of the Member State 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).
48 Consequently, in order to determine whether case-law concerning the rules governing the EEC-Turkey Agreement must also apply in relation to the EEC-Morocco Agreement, it is necessary to consider those agreements in the light of both their object and their context. The EEC-Turkey Agreement
49 As regards, first, the EEC-Turkey Agreement, it must be observed that, according to Article 2(1) thereof, its aim is to promote the continuous and balanced strengthening of trade and economic relations between the Contracting Parties, and that Article 28 of the agreement provides: `As soon as the operation of this Agreement has advanced far enough to justify envisaging full acceptance by Turkey of the obligations arising out of the Treaty establishing the Community, the Contracting Parties shall examine the possibility of the accession of Turkey to the Community.'
50 Article 12 of the EEC-Turkey Agreement provides: `The Contracting Parties agree to be guided by Articles 48, 49 and 50 of the Treaty establishing the Community for the purposes of progressively securing freedom of movement for workers between them.'
51 To that end, Article 36 of the Additional Protocol signed in Brussels on 23 November 1970 and concluded, approved and confirmed on behalf of the Community by Council Regulation (EEC) No 2760/72 of 19 December 1972 (Journal Officiel 1972 L 293, p. 1) lays down the timetable for the progressive attainment of freedom of movement for workers between Member States of the Community and the Republic of Turkey and provides that the Council of Association is to decide on the rules necessary to that end. The Additional Protocol further provides, in Article 37: `As regards conditions of work and remuneration, the rules which each Member State applies to workers of Turkish nationality employed in the Community shall not discriminate on grounds of nationality between such workers and workers who are nationals of other Member States of the Community.'
52 On 19 September 1980, the Council of Association established by the EEC-Turkey Agreement adopted, on the basis of that agreement and of the Additional Protocol, in particular Article 36 thereof, Decision No 1/80, Article 6(1) of which, contained in Section 1 (`Questions relating to employment and the free movement of workers') of Chapter II (`Social provisions'), is worded as follows: `1. Subject to Article 7 on free access to employment for members of his family, a Turkish worker duly registered as belonging to the labour force of a Member State: - shall be entitled in that Member State, after one year's legal employment, to the renewal of his permit to work for the same employer, if a job is available; - shall be entitled in that Member State, after three years of legal employment and subject to the priority to be given to workers of the Member States of the Community, to respond to another offer of employment, with an employer of his choice, made under normal conditions and registered with the employment services of that State, for the same occupation; - shall enjoy free access in that Member State to any paid employment of his choice, after four years of legal employment.'
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
54 As regards, second, the EEC-Morocco Agreement, it must be recalled that, as already stated in paragraph 29 of this judgment, the object of this agreement is to promote overall cooperation between the Contracting Parties with a view to contributing to the economic and social development of the Kingdom of Morocco and helping to strengthen relations between them.
55 To that end, Article 1 of the EEC-Morocco Agreement stipulates that provisions and measures are to be adopted and implemented in the field of economic, technical and financial cooperation, and in the trade and social fields.
56 So far as concerns, in particular, cooperation in the field of labour, as provided for in Title III of the EEC-Morocco Agreement, Article 40 prohibits any discrimination based on nationality, as regards working conditions or remuneration, in the treatment accorded by a Member State to Moroccan nationals employed in its territory, in relation to its own nationals.
57 It follows from that comparison between the EEC-Morocco Agreement and the EEC-Turkey Agreement that the first of those agreements, unlike the second, does not provide for any examination by the Contracting Parties, in due course, of the possibility for the third country concerned to accede to the Community.
58 Furthermore, the EEC-Morocco Agreement, unlike the EEC-Turkey Agreement, is not intended progressively to secure freedom of movement for workers.
59 Moreover, the Cooperation Council established by the EEC-Morocco Agreement has not adopted any decision containing a provision analogous to Article 6(1) of Decision No 1/80 of the EEC-Turkey Council of Association, which, with a view to securing freedom of movement in the future, grants Turkish migrant workers, according to the length of time they have been in authorised gainful employment, specific rights intended to integrate them progressively into the labour force of the host Member State.
60 It should also be noted that the case-law which Mr El-Yassini invokes by analogy relates specifically to Article 6(1) of Decision No 1/80 and not to Article 37 of the Additional Protocol, which lays down an equal treatment rule comparable to that contained in Article 40 of the EEC-Morocco Agreement.
61 So, it follows from the substantial differences between not only the wording but also the object and purpose of the rules governing the EEC-Turkey association and the EEC-Morocco Agreement that the Court's case-law on the rules governing the EEC-Turkey association cannot be applied by analogy to 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.
65 That would be so if the host Member State had granted the person concerned a residence permit for a period shorter than the duration of his work permit and if, before the work permit expired, it then refused to extend the residence permit without justifying its refusal on grounds relating to the protection of a legitimate national interest, such as public policy, public security or public health.
66 As the Advocate General observes in points 63 to 66 of his Opinion, the effectiveness of the first paragraph of Article 40 of the EEC-Morocco Agreement necessarily requires that, where a Moroccan national has been duly authorised to take up gainful employment for a given period on the territory of a Member State, that worker enjoys, throughout that period, the rights which that provision confers on him.
67 In view of all the foregoing considerations, the answer to be given to the national court must be that the first paragraph of Article 40 of the EEC-Morocco Agreement is to be interpreted as not precluding in principle a host Member State from refusing to extend the residence permit of a Moroccan national whom it has authorised to enter its territory and to take up gainful employment there, for the entire period during which he has that 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. The situation would be different only if, in the absence of grounds relating to the protection of a legitimate national interest, such as public policy, public security or public health, that refusal were to affect the right actually to engage in employment conferred on the person concerned by a work permit duly granted by the competent national authorities for a period exceeding that of his residence permit. It is for the national court to determine whether that is the case.