Opinion of Advocate General Tesauro
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.
2. It is first appropriate to recall the essential terms of the Cooperation Agreement, together with the relevant national provisions.
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 and currently lives in Brussels where he is dependent on his father, an employed person of Moroccan nationality.
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.
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).
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 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.
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).
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)).
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).
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.
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:
1 Original language: Italian.
2 OJ 1978 L 264. p. 1.
3 Moniteur Beige, 1 April 1987, p. 4832.
4 Moniteur Belge, 1 August 1991, p. 16951.
5 See codified version in Council Regulation (EEC) No 2001 of 2 June 1983 (OJ 1983 L 230, p. 6).
6 It is perhaps worth pointing out that that accident was re-cognized 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.
7 Case C-18/90 Kziber [1991] ECR I-199.
8 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.
9 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.
10 Exchange of letters annexed to the Cooperation Agreement (OJ 1978 L 264, p. 114).
11 Exchange of letters appended to the Cooperation Agreement (OJ 1978 L 264, p. 114).
12 OJ 1992 L 136, p. 1.
13 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 Callemcyn [1974] ECR 553, paragraph 15.
14 See Callemeyn judgment cited above, paragraphs 7 and 8.
15 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.