C-58/93

Mr President, The objective of the Cooperation Agreement Members of the Court, 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 1. The questions raised by the Tribunal du cooperation under Title II, and cooperation Travail (Labour Court), Brussels, turn on the in social matters under Title III. interpretation of Article 41(1) of the Cooper­ ation 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 For present purposes, the provisions con­ tained in Title III concerning cooperation in the field of labour are of particular import­ ance. 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 More specifically, the national court is asking working conditions or remuneration is to be whether Article 41(1) of the Cooperation free from any discrimination based on Agreement is directly applicable and whether nationality. Article 41(1), whose interpreta­ disability allowances come within its sub­ tion is sought in these proceedings, provides stantive scope. that, subject to the provisions of the subse­ quent paragraphs of that article concerning aggregation of periods of insurance, employ­ ment or residence completed in the various Member States, workers of Moroccan nationality and any members of their fami­ lies living with them, are to enjoy, in the field 2. It is first appropriate to recall the essential of social security, treatment free from any terms of the Cooperation Agreement, discrimination based on nationality in rela­ together with the relevant national provi­ tion to nationals of the Member States in sions. which they are employed. The subsequent paragraphs permit: aggregation for the pur­ pose of such benefits of periods of insurance or residence completed in the various Mem­ * Original language: Italian. 1 — OJ 1978 L 264. p. 1. ber States by workers of Moroccan nation-

ality (paragraph 2); receipt of family allow­ 3. I now come to the facts underlying the ances for family members resident in the present proceedings. Mr Yousfi, a Moroccan Community (paragraph 3); unrestricted citizen born and resident in Belgium suffered 5 transfer to Morocco of old-age pensions or an accident at work in July 1984 and cur­ annuities (paragraph 4). The provisions of rently lives in Brussels where he is depen­ paragraphs 1, 3 and 4 of Article 41 have as dent on his father, an employed person of their counterpart reciprocal treatment as Moroccan nationality. 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 Cooper­ ation Council with the task of adopting pro­ visions to implement the principles set out in Article 41. Following the refusal by the competent Bel­ gian authorities to grant him disability allowances as provided for under the above- mentioned law of 27 February 1987, on the ground of his Moroccan nationality, Mr Yousfi brought proceedings before the Tribu­ nal du Travail, Brussels, before which he claimed entitlement under Article 41(1) of the Cooperation Agreement to the allow­ ances applied for. In support of his argu­ ments, he relied in particular on the Kziber judgment 6in which the Court, ruling on the interpretation of the provision in question held it to be directly applicable and more­ As regards the national legislative back­ over established that the concept of social ground it should be remembered that, at the security to which it refers must be construed material time, the applicable provision was in the same way as the identical concept in 2 Article 4 of the Law of 27 February 1987, Regulation No 1408/71. pursuant to which disability allowances were reserved to Belgian nationals, political refu­ gees and stateless persons. That legislation 3 was amended by a law of 20 July 1991 which essentially extended the benefit of the allowances in question to all persons coming within the scope ratione personae of Regula­ tion No 1408/71 on the application of social Although considering the citation of that security schemes to employed persons and to judgment to be justified, the national court self-employed persons and members of their 4 families moving within the Community.

4. It is, it seems to me, appropriate, without In this connection I think it is sufficient for engaging in a prolonged philosophical dis­ me here to observe that no such distinction cussion which could more usefully be is to be found in the Court's case-law in embarked on in another place, to make some which both expressions are used inter­ brief observations on the alleged distinction changeably (sometimes even within the same between direct applicability and direct effect, sentence) to refer to provisions which create a distinction with which academic writers are in favour of individuals positions which may not unfamiliar. 7 be relied on directly before the national courts. The extreme variability of the terms (direct applicability, direct effect and even 7 — See, for example, De Winter, Direct applicability and direct immediate effect) used to describe the princi­ effect: two distinct and different concepts in Community law, ple in question permits cognizance to be CMLR, 1972, pp. 425, and Luzzato, La diretta applicabilità nel diritto comunitario, Milan 1980, particularly pp. 32; and taken of the fact that the difference between Joliet, Le droit institutionnel des Communautés européennes, Liège, 1983, pp. 142. the expressions used, at least in the case-law

I-1357

OPINION OF MR TESAURO — CASE C-58/93

I-1358

YOUSFI

nevertheless dependent on the adoption by Agreement. As to the fact that the Court's the Cooperation Council of implementation decision, by declaring precise and uncondit­ measures, the Court pointed out that the ional provisions of the Agreement to have purpose of that provision is to facilitate com­ direct effect, may be such as to have a 'neg­ pliance with the prohibition in question, but ative' impact on the content of Cooperation 'may not be regarded as rendering condit­ Agreements in the course of being entered ional the immediate application of the prin­ into, I would merely point out that in any ciple of non-discrimination' (paragraph 19). event the Court's interpretation cannot and may not be made to depend on the 'approv­ al' of the Member States.

7. It was likewise argued during these pro­ ceedings that it was to be inferred from the exchange of letters concerning Moroccan In the final analysis it does not seem to me 9 labour employed in the Community that that the conclusions as to the direct applica­ the parties did not intend too confer direct bility or, if you prefer, direct effect of Art­ effect on the provision in question; for the icle 41(1) of the Cooperation Agreement Court to affirm the contrary would have a arrived at by the Court in the Kziber judg­ negative effect on the positions of the Mem­ ment may be called in question by the obser­ ber States in the conclusion of similar agree­ vations submitted in the course of these pro­ ments, including the new agreement with ceedings. Morocco.

Now the situation has changed. Following the entry into force of Council Regulation 1 No 1247 of 30 April 1992, 1amending Regu­ lation No 1408/71, non-contributory bene­ In accordance with the matters provided for fits are also expressly included provided cer­ in Article 4(1)(b), Regulation No 1408/71 tain conditions are satisfied: Regulation applies to all 'invalidity benefits, including No 1247/92 added to Article 4(2) of Regula­ those intended for the maintenance or tion No 1408/71 a paragraph 2a under which improvement of earning capacity'. It follows the substantive scope of that article was that since Mr Yousfiis incapacitated as a extended to 'special non-contributory bene­ result of an accident at work, he comes fits which are provided under a legislation or squarely within the scope of Article 41(1) of schemes other than those referred to in para­ the Cooperation Agreement. graph 1 or excluded by virtue of paragraph 4, where such benefits are intended (a) either to provide supplementary, substitute or ancil­ lary 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'.

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 assis­ tance, comes within the field of social secur­ The Court's case-law has consistently ity pursuant to Article 4(1 )(b) of Regulation affirmed that 'benefits in favour of handi­ No 1408/71, to the extent to which the capped persons fall within the substantive applicant is an 'employed person' within the scope of Regulation No 1408/71 pursuant to meaning of that regulation. Article 4(1 )(b) thereof which expressly men­ 12 tions "invalidity benefits'". 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 handi­ capped persons who are entirely outside the social security system and, on the other hand, to provide supplementary means to Since the concept of social security contained persons entitled to social security benefits 13 in Article 41(1) of the Cooperation Agree­ who are entirely incapacitated from work' ment must be interpreted in the same way just as 'in the case of an employed or self- as the concept mentioned in Regulation employed person who by reason of his pre­ No 1408/71, that applies also to applicants of vious occupational activity is already covered Moroccan nationality with the status of by the social security system of the State 'employed persons' within the meaning and whose legislation is invoked, that legislation for the purposes of the relevant provisions of the Cooperation Agreement.