Opinion of the Advocate-General
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Mr President,
Members of the Court,
1. The questions raised by the Tribunal du Travail (Labour Court), Brussels, turn on the interpretation of 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. (1)
More specifically, the national court is asking whether Article 41(1) of the Cooperation Agreement is directly applicable and whether disability allowances come within its substantive scope.
2. It is first appropriate to recall the essential terms of the Cooperation Agreement, together with the relevant national provisions.
The objective of the Cooperation Agreement is to promote overall cooperation between the contracting parties in order to contribute to the economic and social development of Morocco and to help strengthen relations between the parties. Economic, technical and financial cooperation are provided for under Title I of the Cooperation Agreement, trade cooperation under Title II, and cooperation in social matters under Title III.
For present purposes, the provisions contained in Title III concerning cooperation in the field of labour are of particular importance. I would first point out that under Article 40 each Member State is to accord to workers of Moroccan nationality employed in its territory treatment which, as regards working conditions or remuneration is to be free from any discrimination based on nationality. Article 41(1), whose interpretation is sought in these proceedings, provides that, subject to the provisions of the subsequent paragraphs of that article concerning aggregation of periods of insurance, employment or residence completed in the various Member States, workers of Moroccan nationality and any members of their families living with them, are to enjoy, in the field of social security, treatment free from any discrimination based on nationality in relation to nationals of the Member States in which they are employed. The subsequent paragraphs permit: aggregation for the purpose of such benefits of periods of insurance or residence completed in the various Member States by workers of Moroccan nationality (paragraph 2); receipt of family allowances for family members resident in the Community (paragraph 3); unrestricted transfer to Morocco of old-age pensions or annuities (paragraph 4). The provisions of paragraphs 1, 3 and 4 of Article 41 have as their counterpart reciprocal treatment as regards workers who are nationals of a Member State and employed in Morocco (paragraph 5). Finally, it should be borne in mind that Article 42(1) entrusts the Cooperation Council with the task of adopting provisions to implement the principles set out in Article 41.
As regards the national legislative background it should be remembered that, at the material time, the applicable provision was Article 4 of the Law of 27 February 1987, (2) pursuant to which disability allowances were reserved to Belgian nationals, political refugees and stateless persons. That legislation was amended by a law of 20 July 1991 (3) which essentially extended the benefit of the allowances in question to all persons coming within the scope ratione personae of Regulation No 1408/71 on the application of social security schemes to employed persons and to self-employed persons and members of their families moving within the Community. (4)
3. I now come to the facts underlying the present proceedings. Mr Yousfi, a Moroccan citizen born and resident in Belgium suffered an accident at work in July 1984 (5) and currently lives in Brussels where he is dependent on his father, an employed person of Moroccan nationality.
Following the refusal by the competent Belgian authorities to grant him disability allowances as provided for under the abovementioned law of 27 February 1987, on the ground of his Moroccan nationality, Mr Yousfi brought proceedings before the Tribunal du Travail, Brussels, before which he claimed entitlement under Article 41(1) of the Cooperation Agreement to the allowances applied for. In support of his arguments, he relied in particular on the Kziber judgment (6) in which the Court, ruling on the interpretation of the provision in question held it to be directly applicable and moreover established that the concept of social security to which it refers must be construed in the same way as the identical concept in Regulation No 1408/71.
Although considering the citation of that judgment to be justified, the national court found it necessary to make a reference to the Court in order to establish whether disability allowances as provided for under the Belgian system come within the concept of social security and, thus, within the scope of Article 41(1) of the Cooperation Agreement. It also asked whether such a provision is directly applicable in the internal legal system; as is evident from the order for reference, the national court is presupposing that a distinction is to be drawn between direct applicability and direct effect.
Direct applicability of Article 41(1) of the Agreement
4. It is, it seems to me, appropriate, without engaging in a prolonged philosophical discussion which could more usefully be embarked on in another place, to make some brief observations on the alleged distinction between direct applicability and direct effect, a distinction with which academic writers are not unfamiliar. (7)
It has indeed been maintained that, whilst the concept of direct applicability signifies that the provision does not require any act transposing it into national law, direct effect on the other hand means that it is capable of directly creating rights and obligations for individuals, thus enabling them to rely on an individual legal position before the national court.
In this connection I think it is sufficient for me here to observe that no such distinction is to be found in the Court' s case-law in which both expressions are used interchangeably (sometimes even within the same sentence) to refer to provisions which create in favour of individuals positions which may be relied on directly before the national courts. The extreme variability of the terms (direct applicability, direct effect and even immediate effect) used to describe the principle in question permits cognizance to be taken of the fact that the difference between the expressions used, at least in the case-law is merely terminological and not substantive. (8)
The position which it seems to me is most reasonable to adopt, as it is the minimalist one, is that the different expressions mentioned here merely reflect a difference of emphasis: in the expression, direct applicability, the accent is placed on a characteristic of the provision, whereas in the expression, direct effect, the emphasis is placed on the impact of the provision on the legal situation of the intended beneficiary.
5. Having said that I would point out that in the Kziber judgment, after recalling the conditions which the provisions of an agreement must meet in order to produce direct effect, the Court stated with great clarity that "it follows from the terms of Article 41(1), as well as from the purpose and nature of the Agreement of which that Article forms part, that that provision is capable of being applied directly" (paragraph 23).
In the course of these proceedings controversy has turned on whether the provision in question may be applied directly and the Court was requested, particularly by the German Government, to review its case-law on this point. The majority of the arguments developed in support of that position were, however, exhaustively examined in the Kziber judgment in which the Court therefore already answered the various objections raised in order to demonstrate that Article 41(1) of the Cooperation Agreement did not have direct effect.
6. And in fact, as regards the argument that the subject-matter and nature of the Cooperation Agreement preclude its provisions from being regarded as having direct effect, suffice it here to recall that the Court has expressly recognized that the fact that the Cooperation Agreement does not refer to "Morocco' s association with or future accession to the Communities is not such as to prevent certain of its provisions from being directly applicable" (paragraph 21). The Court also rejected the argument that the prohibition of discrimination in Article 41(1) of the Cooperation Agreement is qualified to the extent to which it applies only "subject to the provisions of the following paragraphs". In that connection, although it stated that, as regards the aggregation of periods, the grant of family benefits and the transfer to Morocco of pensions and annuities, the prohibition of discrimination is guaranteed only within the limits of the conditions laid down in paragraphs 2, 3 and 4 of Article 41, "that reservation may not, however, be interpreted as divesting the prohibition of discrimination of its unconditional character in respect of any other question which arises in the field of social security" (paragraph 18). With regard to the fact that the prohibition in question, as is confirmed by Article 42(1), is nevertheless dependent on the adoption by the Cooperation Council of implementation measures, the Court pointed out that the purpose of that provision is to facilitate compliance with the prohibition in question, but "may not be regarded as rendering conditional the immediate application of the principle of non-discrimination" (paragraph 19).
7. It was likewise argued during these proceedings that it was to be inferred from the exchange of letters concerning Moroccan labour employed in the Community (9) that the parties did not intend too confer direct effect on the provision in question; for the Court to affirm the contrary would have a negative effect on the positions of the Member States in the conclusion of similar agreements, including the new agreement with Morocco.
In that connection, suffice it to observe that the exchange of letters in question merely provides for exchanges of views in the context of colloquies in order to examine "the possibilities of making progress towards the attainment of equality of treatment for Community and non-Community workers, and the members of their families, in respect of living and working conditions, having regard to the applicable Community provisions", (10) with "social and cultural questions" which are matters not covered by the Cooperation Agreement. As to the fact that the Court' s decision, by declaring precise and unconditional provisions of the Agreement to have direct effect, may be such as to have a "negative" impact on the content of Cooperation Agreements in the course of being entered into, I would merely point out that in any event the Court' s interpretation cannot and may not be made to depend on the "approval" of the Member States.
In the final analysis it does not seem to me that the conclusions as to the direct applicability or, if you prefer, direct effect of Article 41(1) of the Cooperation Agreement arrived at by the Court in the Kziber judgment may be called in question by the observations submitted in the course of these proceedings.
The scope of Article 41(1) of the Cooperation Agreement
8. Also in its Kziber judgment the Court stated that "the concept of social security in Article 41(1) of the Agreement must be understood by means of an analogy with the identical concept in Regulation No 1408/71 ..." (paragraph 25) and that the concept of worker in that provision "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 creating entitlement to allowances falling under other branches of social security" (paragraph 27).
In accordance with the matters provided for in Article 4(1)(b), Regulation No 1408/71 applies to all "invalidity benefits, including those intended for the maintenance or improvement of earning capacity." It follows that since Mr Yousfi is incapacitated as a result of an accident at work, he comes squarely within the scope of Article 41(1) of the Cooperation Agreement.
Given that the concept of social security must be interpreted in the same way both as regards Regulation No 1408/71 and in relation to Article 41 of the Cooperation Agreement, it merely remains to verify whether disability allowances come within the concept of social security within the meaning of Regulation No 1408/71 and, conversely, within the scope ratione materiae of Article 41(1) of the Cooperation Agreement.
9. Article 4(1) of Regulation No 1408/71, which governs the branches of social security to which the regulation applies, did not, in the version in force at the material time, list disability allowances. It should be remembered that it expressly excluded from its scope the branch of social and medical assistance (Article 4(4)).
Now the situation has changed. Following the entry into force of Council Regulation No 1247 of 30 April 1992, (11) amending Regulation No 1408/71, non-contributory benefits are also expressly included provided certain conditions are satisfied: Regulation No 1247/92 added to Article 4(2) of Regulation No 1408/71 a paragraph 2a under which the substantive scope of that article was extended to "special non-contributory benefits which are provided under a legislation or schemes other than those referred to in paragraph 1 or excluded by virtue of paragraph 4, where such benefits are intended (a) either to provide supplementary, substitute or ancillary cover against the risks covered by the branches of social security referred to in paragraph 1(a) to (h), or (b) solely as specific protection for the disabled".
In view of the fact that that amendment occurred after the material time, the governments which submitted observations in these proceedings maintained, on the one hand, that such a provision is not applicable to Mr Yousfi' s situation and, on the other hand, that the very fact that such provision was only very recently inserted into Regulation No 1408/71 would in itself be sufficient to show that previously such benefits were excluded from its substantive scope.
10. I cannot share that line of argument. Suffice it to point out in that connection that Regulation No 1247/92 itself justifies the insertion of paragraph 2a as necessary to "take account of the case-law of the Court of Justice stating that certain benefits provided under national laws may fall simultaneously within the categories of both social security and social assistance because of the class of persons to whom such laws apply, their objectives and their manner of application" (third recital).
The Court' s case-law has consistently affirmed that "benefits in favour of handicapped persons fall within the substantive scope of Regulation No 1408/71 pursuant to Article 4(1)(b) thereof which expressly mentions 'invalidity benefits' ". (12) The Court reached that conclusion on the basis of the fact that legislation concerning the grant of benefits to handicapped persons "fulfils a double function, which is on the one hand to guarantee a minimum income to handicapped persons who are entirely outside the social security system and, on the other hand, to provide supplementary means to persons entitled to social security benefits who are entirely incapacitated from work" (13) just as "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". (14)
11. In the final analysis there do not appear to me to be any doubts, in the light of the case-law cited, that national legislation such as that in issue in the main proceedings, albeit having certain of the (non-contributory) characteristics of social assistance, comes within the field of social security pursuant to Article 4(1)(b) of Regulation No 1408/71, to the extent to which the applicant is an "employed person" within the meaning of that regulation.
Since the concept of social security contained in Article 41(1) of the Cooperation Agreement must be interpreted in the same way as the concept mentioned in Regulation No 1408/71, that applies also to applicants of Moroccan nationality with the status of "employed persons" within the meaning and for the purposes of the relevant provisions of the Cooperation Agreement.
12. In the light of the foregoing considerations I therefore propose that the Court reply as follows to the questions raised by the Tribunal du Travail, Brussels:
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, must be interpreted as precluding a Member State from refusing disability allowances provided for under its own legislation to a worker residing on its territory on the ground that the person concerned is of Moroccan nationality.
(*) Original language: Italian.
(1) - OJ 1978 L 264, p. 1.
(2) - Moniteur Belge, 1 April 1987, p. 4832.
(3) - Moniteur Belge, 1 August 1991, p. 16951.
(4) - See codified version in Council Regulation (EEC) No 2001 of 2 June 1983 (OJ 1983 L 230, p. 6).
(5) - It is perhaps worth pointing out that that accident was recognized as occurring at the workplace by a judgment of the Cour du Travail (Higher Labour Court), Liège, and that it is merely a question of determining the extent of the physical loss sustained and the amount of compensation in respect thereof.
(6) - Case C-18/90 Kziber [1991] ECR I-199.
(7) - See, for example, De Winter, Direct applicability and direct effect: two distinct and different concepts in Community law, CMLR, 1972, pp. 425, and Luzzato, La diretta applicabilità nel diritto comunitario, Milan 1980, particularly pp. 32; and Joliet, Le droit institutionnel des Communautés européennes, Liège, 1983, pp. 142.
(8) - For example, in the Kziber judgment, and thus specifically in relation to Article 41(1) of the Cooperation Agreement, the Court with detached indifference uses both direct effect and direct applicability .
(9) - Exchange of letters annexed to the Cooperation Agreement (OJ 1978 L 264, p. 114).
(10) - Exchange of letters appended to the Cooperation Agreement (OJ 1978 L 264, p. 114).
(11) - OJ 1992 L 136, p. 1.
(12) - See, most recently, the judgment in Case C-310/91 Schmid [1993] ECR I-3011, paragraph 10. The first affirmation to that effect is to be found already in the judgment in Case 187/73 Callemeyn [1974] ECR 553, paragraph 15).
(13) - See Callemeyn judgment cited above, paragraphs 7 and 8.
(14) - Judgment in Case C-356/89 Newton [1991] ECR I-3017, paragraph 15. See also to the same effect the Callemeyn judgment, cited above, at paragraph 11.
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