Opinion of Mr Advocate General Van Gerven delivered on 6 December 1990

1 Original language: Dutch.

2 Moniteur beige of 18. 1. 1964, p. 506.

3 This Cooperation Agreement was approved on behalf of the Community by Council Regulation (EEC) No 2211/78 of 26 September 1978 (OJ L 264, p. 1). It entered into force on 1 November 1978.

4 See the beginning of p. 7 of the decision making the reference.

5 Judgment in Case 94/84 Onem Deak [1985] ECR 1873

6 Regulation of the Council of 15 October 1968 on freedom of movement for workers within the Community (OJ English Special Edition 1968 (II), p. 475). Paragraph 2 of Article 7 provides that a worker who is a national of a Member State is to enjoy on the territory of the other Member States, the same social and tax advantages as national workers.

7 See paragraphs 20 to 24. As to this interpretation, see also section 19 infra

8 Cited in footnote 5 supra.

9 As amended and updated by Council Regulation No 2001/83 of 2 June 1983 (OJ L 230, p. 6)

10 See judgment in Case 12/86 Demirel v Stadt Schwäbisch Gmünd [1987] ECR 3719, with reference to the judgment in Case 181/73 Haegeman [1974] ECR 449, and judgment in Case 30/88 Greece v Commission [1989] ECR 3711, paragraph 12.

11 Judgment in Case 192/89 Sevince v Staatssecretaris van Justitie [1990] ECR I-3461, with reference to the judgments in Case 104/81 Kupferberg [1982] ECR 3641 and in Joined Cases 267/81, 268/81 and 269/81 SPI and SAMI [1983] ECR 801.

12 Judgment in Demirel, cited in footnote 9 supra, paragraph 14

13 See judgment in Kupferberg, footnote 10 supra.

14 See judgment in Case 87/75 Bresctani [1976] ECR 129

15 See judgment in Case 17/81 Pabst 6 Rieharz [1982] ECR 1331

16 See judgment in Demirel, footnote 9 supra, and judgment in Sevince, footnote 10 supra

17 See judgment in Joined Cases 21 to 24/72 International Fruit Company [1972] ECR 1219, paragraphs 19 to 27, as affirmed in the judgment in Case 9/73 Schluter [1973] ECR 1135, judgment in Case 266/81 STOT [1983] ECR 731 and judgment in Joined Cases 267/81, 268/81 and 269/81 SPI and SAMI [1983] ECR 801

18 Judgment in Case 26/62 [1963] ECR 3.

19 Sec the case-law cited in footnotes 12 to 15 supra and the Opinion of Mr Advocate-General Darmon in Sevince (supra, footnote 10) delivered at the sitting on 15 May 1990 [1990] ECR I-3473, sections 27 and 28.

20 See Article 1 of and the second paragraph of the preamble to the Agreement.

21 Cited in footnote 13 supra.

22 Cited in footnote 10 supra.

23 Cited in footnote 9 supra.

24 Cited in footnote 14 supra.

25 See, in this connection, the Opinion of Mr Advocate General Darmon in Sevince, cited above in footnote 18 supra, sections 22 to 29.

26 See Articles 44 to 48 of the Agreement.

27 See Articles 51 and 53 of the Agreement.

28 See Article 52 of the Agreement which entrusts the settlement of disputes between the parties, if they cannot be resolved by the Cooperation Council, exclusively to an ad hoc court of arbitration.

29 This follows, for example, as regards the provisions relating to the settlement of disputes, from the judgment in Bresciani relating to the Yaoundé Conventions. Those conventions provide that disputes relating to their interpretation and application, if they cannot be settled by the Association Council, are to be settled by a court of arbitration set up by those conventions (see Article 51 of the 1963 Convention and Anicie 53 of the 1969 Convention). Those rules are similar to those contained in Article 52 of the Cooperation Agreement with Morocco. Moreover, the fact that, by reason of the mixed character of an agreement, no compulsory or optional jurisdiction is conferred on the Court of Justice does not diminish the Court's jurisdiction when it comes to interpreting the Agreement in the context of problems of interpretation raised within the Community: for provisions expressly to that effect see Anicie 5 of the Internal Agreement 80/1154/EEC on the measures and procedures required for implementation of the Second ACP-EEC Convention of Lome (OJ L 347, p. 206) and Anicie 6 of Internal Agreement 86/127/EEC on the measures and procedures required for implementation of the Third ACP-EEC Convention (OJ L 86, p 221).

30 See judgment in International Fruit Company, cited in footnote 16 supra

31 Cited in footnote 10 supra.

32 Compare Articles 51 and 53 of the Agreement with Morocco and the possibility of adopting unilateral measures or safeguard measures contained in Ameles 25 to 31 of the Agreement with Portugal, and also Anicie 52 of the Agreement with Morocco and the conciliation procedure laid down in Anicie 30 of the Agreement with Portugal. The Agreement with Morocco contains, with respect to safeguard measures, rules which are every bit as strictly defined and, with respect to the settlement of disputes, even more binding.

33 Compare paragraph 20 of the judgment in Kupferberg, cited above (section 10) in which the Court accepted the direct effect of a provision involving an unconditional and precise obligation and therefore not requiring any prior intervention [on the part of the joint committee established by the agreement with Portugal] (my emphasis).

34 Moreover in the judgment in Sevince (cited in footnote 10 supra), the Court stated that the provisions of an international agreement may even have a direct effect where other provisions (in that case, at the national level) must be adopted in order to ensure their application. In paragraph 22 the Court stated in that respect: Those provisions merely clarify the obligation of the Member States to take such administrative measures as may be necessary for the implementation of those provisions, without empowering the Member States to make conditional or restrict the application of the precise and unconditional right..

35 Whatever may be the scope of the provision in question: for further details see sections 14 to 20 of this Opinion.

36 The Agreement did in fact enter into force on 1 November 1978 (see footnote 2 supra).

37 See, for example, the judgment in Case 2/74 Reyners [1974] ECR 631.

38 See the judgment in Case 270/80 Polydor [1982] ECR 329 and the judgment in Kupferberg, cited in footnote 10 supra, paragraphs 29 to 31.

39 See Aarticle 3(1) in conjunction with Article 2(1) of Regulation No 1408/71.

40 Judgme. in Case 40/76 [1976] ECR 1669.

41 See paragraphs 7 to 9.

42 Already cited n footnote 4 supra.

43 Sec paragraph 15.

44 Cited in footnote 5 supra.

45 See paragraph 21.

46 See paragraph 23.

47 See judgment in Case 344/87 Bettray [1989] ECR 1621, paragraph 11, with reference to the judgment in Case 66/85 Lawrie-Blum[1986] ECR 2121.