C-113/97

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 pean Economic Community and the Peo­ ple's Democratic Republic of Algeria, signed in Algiers on 26 April 1976 and approved on behalf of the Community by Council Regu­ lation (EEC) No 2210/78 ('the Agree­ 1 ment'). 5. Mrs Babahenini, an Algerian national born on 12 July 1944, lives in Belgium with her husband, also an Algerian national, and their children. She has not worked in Bel­ gium; her husband, however, is in receipt of 3. The object of the Agreement is to pro­ a Belgian retirement pension and thus pre­ mote overall cooperation between the Con­ sumably worked in Belgium. Mrs Babaheni- tracting Parties with a view to helping to ni's application for Belgian disabled person's strengthen relations between them and to allowance was refused on the ground that contributing to the economic and social she did not meet the nationality requirement 2 3 development of Algeria. laid down by the relevant Belgian law. Article 4 of that law requires recipients of the disabled person's allowance to be genuinely resident in Belgium and to be of * Original language: English. 1 — Council Regulation (EEC) No 2210/78 of 26 September Belgian nationality, or fall within the scope 1978 concerning the conclusion of the Cooperation Agree- ment between the European Economic Community and the People's Democratic Republic of Algeria, OJ 1978 L 263, p.1. 2 — Article 1. 3 — Law of 27 February 1987 on disability allowances.

8. First, the term 'worker' encompasses 8 former worker, so that Mr Babahenini, who is in receipt of a Belgian retirement pension, 'In the light of Article 39 of the Cooperation may be presumed to fall within the personal Agreement between the European Economic scope of Article 39(1). Community and the People's Democratic Republic of Algeria, approved by Regulation (EEC) No 2210/78, may a Member State refuse to grant disablement benefit (in this case that provided for by the Belgian Law of 27 February 1987) to a disabled person of Algerian nationality who has not herself 9. Secondly, the term 'social security' cannot worked in Belgium, where that person receive a definition different from that indi­ resides in Belgium with her spouse, an Alge­ cated in the context of Regulation 9 rian national in receipt of a Belgian retire­ No 1408/71. Since the matters covered by ment pension?' Regulation No 1408/71 expressly include the 1 Belgian disabled person's allowance, 0that allowance is within the material scope of Article 39(1).

6. Written observations were submitted by the Belgian Government and the Commis­ sion. There was no hearing.

11. To my mind, it follows incontrovertibly ever, takes a different view (its conclusion from those propositions that Mrs Babahenini that the question referred should be is entitled to the disabled person's allowance answered in the negative is plainly an inad­ if, as appears to be the case, a Belgian vertent error). It refers to the distinction 13 national in her position would be so entitled. established by the Court in Kermaschek (It may be noted that the condition of resi­ between derived rights and rights in person dence in Belgium is a valid condition for in the context of the rights of members of a 12 payment of this type of benefit. ) She is a worker's family to claim certain benefits member of the family of, and lives with, a covered by Regulation No 1408/71 and sub­ former worker of Algerian nationality and mits that the disabled person's allowance can accordingly is entitled by virtue of Article only be claimed in one's own right and 39(1) to enjoy, in the field of social security, hence that Mrs Babahenini cannot claim it treatment free from any discrimination based by virtue of her husband's status. As the on nationality in relation to nationals of the Commission points out, however, the Court Member State in which her husband was has refused to apply that distinction to employed. claims based on Article 39(1) of the Agree­ 14 ment; in any event, the Court in Cabanis- 15 Issarte restricted the rule established in Kermaschek to certain narrowly defined cir­ 12. The Commission's observations are in cumstances which do not encompass the similar vein. The Belgian Government, how­ facts of the present case.