C-314/96

DJABALI v CAISSE D'ALLOCATIONS FAMILIALES D E L'ESSONNE

OPINION OF ADVOCATE GENERAL JACOBS delivered on 15 May 1997 *

1. This case, referred by the Tribunal des 3. The object of the Agreement is to pro- Affaires de Sécurité Sociale d'Evry (Social mote overall cooperation between the Con- Security Court, Evry), concerns the entitle- tracting Parties with a view to helping to ment of an Algerian national resident in strengthen relations between them and to France to a special allowance payable in contributing to the economic and social France to disabled adults. The case also raises development of Algeria. 2 the issue whether the Court should rule where the dispute giving rise to the reference appears to have been settled after the refer- ence was lodged but the national court does not withdraw the reference.

4. Article 39(1) provides that, subject to the following paragraphs of Article 39, none of which is relevant to the present case, workers of Algerian nationality and any members of The relevant Community legislation their families living with them shall enjoy, in the field of social security, treatment free from any discrimination based on nationality in relation to nationals of the Member State in which they are employed.

2. The entitlement to social security benefits of Algerian workers and their families resi- dent in the Community is governed by the Cooperation Agreement between the Euro- 5. The Court has ruled that, since the term pean Economic Community and the Peo- 'social security' in the identically worded ple's Democratic Republic of Algeria, signed provision of the Cooperation Agreement in Algiers on 26 April 1976 and approved on between the European Economic Commu- behalf of the Community by Council Regu- nity and the Kingdom of Morocco 3 cannot lation (EEC) N o 2210/78 ('the Agree- receive a definition different from that indi- ment'). 1 cated in the context of Council Regulation (EEC) N o 1408/71 on the application of

social security schemes to employed persons, appears to be accepted that she satisfies the to self-employed persons and to members of abovementioned conditions. The documents their families moving within the Commu- on the national court's file, submitted to the nity, 4 disability allowances come within the Court, suggest that that application was ini- purview of social security within the mean- tially granted; however, it was presumably ing of that provision. 5 refused thereafter, since Mrs Djabali appealed to the CAF's Commission de Recours Amiable (appeals board). O n 13 July 1994 the appeals board dismissed her appeal, apparently on the ground that Mrs- Djabali was neither a French national nor a The facts and the national legislation national of a State that had concluded a reciprocal social security agreement with France. O n 14 June 1995 Mrs Djabali brought an action before the Tribunal des Affaires de Sécurité Sociale ('the Tribunal'), arguing that the refusal to award her the dis- 6. The allocation aux adultes handicapés abled adults' allowance was in breach of ('disabled adults' allowance') was introduced Article 39 of the Agreement. by Law N o 75/534 of 30 June 1975. The grant of the allowance is governed by Title II of Chapter VIII of the new French social security code. That code provides that the allowance is available to every French 8. The CAF contended before the Tribunal national or national of a State that has con- that the disabled adults' allowance was to be cluded a reciprocal agreement, subject to cer- seen as a social security benefit only when tain conditions as to the extent of the appli- the applicant was or had been a worker and cant's handicap and the receipt of other had therefore contributed in general to the benefits. 6 social security system. It argued that Mrs D - jabali was not entitled to the benefit on the basis that she had never been employed in France and was hence not a 'worker or former migrant worker'.

11. By letter dated 8 April 1997, the CAF 15. Written observations were submitted by informed the Court of Justice that the Min- the applicant, the French Government and istre du Travail et des Affaires Sociales had the Commission. The French Government decided in November 1996 to grant the and the Commission were represented at the allowance to Mrs Djabali. Mrs Djabalí had hearing. accordingly received FF 148 188.45 arrears and since January 1997 had been in receipt of monthly payments of FF 3 982. The CAF enclosed with its letter to the Court copies of letters (i) from the C A F to Mrs Djabali Jurisdiction of the Court dated 27 December 1996, informing her that the Ministre du Travail et des Affaires Sociales had decided to grant her the allow- ance with effect from 1 October 1993, con- firming that instructions to make the neces- sary payment to her had been given and 16. Mrs Djabali has now, apparently, been inviting her to withdraw her case from the granted the benefits to which she claimed Tribunal and (ii) from the C A F to the Tribu- entitlement. Although that fact does not nal dated 6 December 1996, to the same affect the admissibility of the reference, since effect. all the conditions for making a reference were fulfilled at the time the reference was made, it must now be doubtful whether a decision on the question referred can be 'necessary' to enable the national court to 12. It appears that Mrs Djabali has not taken give judgment, as required by Article 177 of the necessary procedural steps formally to the EC Treaty. In this case, the relevant withdraw her case. social security body has, in accordance with

21. It may, it is true, be dangerous for the Court to strike out the case without further 19. In cases other than those where the contact with the national court. The Court decision to refer is quashed on appeal, the of Justice will not necessarily be in a position principle appears to be that the Court of Jus- to determine conclusively, on the basis of the tice must continue the procedure until the information provided by the parties, that reference is withdrawn. 8 Such a course of there is no need for the national court to conduct appears incongruous where, as here, continue with the case: that court may con- the reference has 'lost its purpose' because ceivably need to continue for some reason the dispute has been resolved but the which is not apparent from this Court's file. national court does not withdraw the refer- Similarly, it would clearly not be appropriate ence. Indeed there may be a stronger case for for the Court of Justice to accept the asser- not proceeding to a ruling in a case such as tion of one party alone that a settlement has been reached. If, however, the national court and the parties were to be given the oppor- tunity specifically to address the point, the 7 — Case 31/68 [1970] ECR 403. 8 — See Case 43/71 Politi vItaly [1971] ECR 1039, in particular the Opinion of Advocate General Dutheillet de Lamothe, p. 1054, and Case 106/77 Amministrazione delie Finanze dello Stato v Simmentbal [1978] ECR 629, paragraph 10 of 9 — Sec Joined Cases C-422/93, C-423/93 and C-424/93 Zabola the judgment. Erasunand Others [1995] ECR I-1567.

26. The French Government argues that the reference is inadmissible since the order con- tains insufficient information. While it is true 23. A solution which might be applied in that the order is somewhat reticent about the cases where this problem arises is for the facts, the issue is in my view sufficiently clear Registry not merely to ask the national court for the Court to be able to answer the ques- whether it intends to maintain its request, tion. but to ask the national court and the parties whether there are any grounds for consider- ing that a decision on a question is still nec- essary to enable it to give judgment. If no such reasons were provided, then the case could be struck off on this Court's motion. 27. The Court has recognised that Article 39 of the Agreement has direct effect so that persons to whom it applies are entitled to rely on it in proceedings before national courts. 11 24. That solution would be consistent with the principle developed by the Court that the justification for a preliminary reference, 10 — Case 244/80 Foglia v Novelto [1981] ECR 3045, para- and hence for the jurisdiction of the Court, graph 19 of the judgment; Zabala Erasun, cited in note, paragraph 29. is not that it enables advisory opinions on 11 — Case C-103/94 Krid v CNAVTS [1995] ECR I-719, para- general or hypothetical questions to be deliv- graph 24 of the judgment.

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OPINION OF MR JACOBS — CASE C-314/96

28. It is not clear from the file whether Mrs- so employed, then Article 39(1) clearly Djabali's husband is or was 12 employed in applies and Mrs Djabali, as a member of his France, although it is suggested by a docu- family living with him, is entitled to the ment on the national court's file that he is a allowance. worker. On the assumption that he is or was