C-179/98

BELGIAN STATE V MESBAH

OPINION OF ADVOCATE GENERAL ALBER deliveredon 18 May 1 9 9 9 *

A — Introduction since September 1985 and is part of the household of her son-in-law and daughter who acquired Belgian nationality 'appar- ently in the mid-1970s'. 1. In the present case the Cour du Travail (Higher Labour Court), Brussels, has refer- red for a preliminary ruling two questions which seek to establish whether the Mor- occan mother-in-law of a worker — who was at least originally Moroccan — who lives in Belgium and has since acquired Belgian nationality, may rely on the 3. According to the referring court, the requirement of equal treatment contained provision of Belgian law relating to the in the Cooperation Agreement between the grant of disability allowance states: European Economic Community and the Kingdom of Morocco 1 (hereinafter 'the Cooperation Agreement') in order to obtain a disability allowance in Belgium and whether she, as a mother-in-law, con- stitutes a member of the family for the purposes of Article 41(1) of the Coopera- tion Agreement. 'Any person claiming an allowance must have their actual residence [in Belgium] and fall within one of the following categories:

2. Mrs Mesbah, the plaintiff in the main proceedings (hereinafter 'the plaintiff), applied for such a disability allowance on 22 March 1995. At the time she was a Moroccan national. 2 According to the referring court, she has lived in Belgium 1. persons who are Belgian;

* Original language: German. 1 — Cooperation Agreement between the European Economic Community and the Kingdom of Morocco of 27 April 1976 approved on behalf of the Community by Council Regula- tion (EEC) No 2211/78 of 26 September 1978 concerning the conclusion of the Cooperation Agreement between the European Economic Community and the Kingdom of Morocco (OJ 1978 L 264, p. 1). 2 — According to the Belgian Government, she has possessed 2. persons who fall within the scope of Belgian nationality since 9 January 1998. Regulation (EEC) No 1408/71 ...

3 — Article 4 of the Law of 27 February 1987, as amended by 1. Can a member of the family of a the Law of 20 July 1991. worker, who was originally Moroccan

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but subsequently acquired Belgian produced — albeit not until the proceed- nationality, still rely on Article 41(1) ings before the Court of Justice — a of the Cooperation Agreement between certificate of 27 July 1998 from the Con- the European Economic Community sulate General of the Kingdom of Morocco and the Kingdom of Morocco, signed in Brussels showing that her son-in-law in Rabat on 27 April 1976 and possessed Moroccan nationality at that approved on behalf of the Community time. 4 by Council R e g u l a t i o n (EEC) No 2211/78 of 26 September 1978, and on the principle of non-discrimina- tion with regard to 'Moroccan work- ers' and 'members of their family' living with them which is contained therein ?

8. The other parties initially proceed from the basis of the facts stated by the referring court, according to which the plaintiff was the only person in her son-in-law's house- 2. What degree of relationship — vertical hold to retain her Moroccan nationality. In and/or horizontal — is covered by the their written observations only the Com- term 'family', contained in Arti- mission and the United Kingdom also cle 41(1) of the EEC-Morocco Agree- address the possibility that the plaintiff's ment, and can that term also be applied son-in-law may have retained his Moroc- to persons of Moroccan nationality can nationality. who are related only by marriage?

to him or to members of his family living 12. The parties also refer to the spirit and with him in Belgium. purpose of the Agreement. For example, the German Government contends that the present case is not covered by the protec- tion intended by the Agreement. The aim of Article 41 is not to provide independent protection for an unemployed member of the family. His entitlements stemming from 10. However, if the worker did not acquire Article 41(1) are directly dependent on his the nationality of a Member State in place family relationship to a Moroccan worker. of his Moroccan nationality until after the Although the worker loses the protection Agreement entered into force, Article 41 afforded by the Agreement by renouncing will be applicable in so far as it guarantees his Moroccan nationality, he acquires new that the worker and the members of his rights in respect of his new homeland family are not discriminated against which, where appropriate, also apply to because of the fact that the worker pre- the members of his family. Moreover, the viously had Moroccan nationality. In the equal treatment intended by Article 41(1) third category of case the United Kingdom comes about the moment the Moroccan assumes that the worker acquired Belgian worker acquires Belgian nationality. nationality in addition to his Moroccan nationality after the Agreement had entered into force. If that is the case, Article 41 will apply so as to ensure that the worker and the members of his family living with him in Belgium are not discriminated against because of the fact that he retains Mor- occan nationality. 13. In their submissions at the hearing the parties also examined whether the Agree- ment is applicable if the worker (the plaintiff's son-in-law) retained his Moroc- can nationality alongside his Belgian nationality. In that respect France con- cludes that if that is the case the plaintiff 11. The other parties assume that the is a member of the family of a Moroccan Agreement can no longer apply if the worker and may rely on the Agreement. worker is no longer a Moroccan national. The question which of the specific cases In that respect they rely on the wording of actually exists is purely one of fact and Article 41 and submit that the plaintiff is therefore for the national court alone to no longer a member of the family of a examine. Moroccan worker. In that context the French Government notes that, according to the referring court, the son-in-law acquired Belgian nationality before his mother-in-law came to Belgium and even before the Agreement entered into force. Consequently, the plaintiff does not fall within the scope ratione personae of the 14. At the hearing the Belgian Government Agreement. also considered the certificate produced by

17. Furthermore, the Commission notes that the objective of Article 41(1), that is to say the exclusion of any discrimination on the ground of nationality, is achieved by definition when the circumstances of the 15. Belgium does not dispute that the worker who has become Belgian and his worker in this case still possesses Moroccan family are governed by Belgian law. nationality under Moroccan law. However, it claims that he may not derive benefit from both nationalities, but that as a Belgian national Belgian law alone applies to him. In a letter written after the hearing 18. In its written submissions the Commis- the Belgian Government once again stated, sion gives only brief consideration to the by way of an explanation, that the plain- tiff's son-in-law, who had acquired Belgian nationality in addition to his Moroccan 5 — Judgment in Case 10/78 Belbouab v Bundesknappschaft [1978] ECR 1915 and judgment in Case C-105/89 Buhari nationality, is regarded under Belgian law Haji v Institut National d'Assurances Sociales pour Tra- vailleurs Indépendants [1990] ECR I-4211. as having only Belgian nationality and not 6 — Judgment in Case C-171/91 Tsiotras v Landeshauptstadt Moroccan nationality, since Belgium does Stuttgart [1993] ECR 1-2925.

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24. The Commission rejects any extension of the scope of the Agreement by analogy with the judgment in Krid. 10 In that 25. Finally, with regard to the submissions of the parties it should be noted that it is not disputed that the plaintiff herself was 8 — Judgments in Case 10/78 and Case C-105/89 (cited in and is not in gainful employment and footnote 5). cannot assert claims on the basis of Reg- 9 — Judgments in Case C-243/91 Belgian State v Taghavi [1992] ECR I-4401. ulation (EEC) No 1408/71 of the Council 10 — Judgment in Case C-103/94 Krid v Caisse Nationale of 14 June 1971 on the application of d'Assurance Vieillesse des Travailleurs Salariés (CNAVTS) [1995] ECR I-719. social security schemes to employed per-

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of cases actually exists and take evidence in follows from Article 2 thereof. Subpara- respect thereof. graph (1) provides that the Regulation applies inter alia to employed or self- employed persons if they are nationals of one of the Member States. 17 According to the Court of Justice, it follows that those terms must be considered 'in relation to the period in which the worker pursued his 1. Examination on the basis of the facts occupation. That condition of nationality stated by the referring court cannot be regarded as fulfilled where the worker in question was, at the time when he pursued his occupation and paid his contributions, a national of a State which was not yet a member of the Community and he lost the nationality of that State before its accession to the Community.' 18 29. According to those details, the plaintiff has lived in Belgium since 10 September 1985 in the household of her daughter and son-in-law, who apparently acquired Bel- gian nationality 'in the mid-1970s'. According to the referring court, the plain- tiff alone retained her Moroccan national- ity. Since it is not stated precisely when the 31. By analogy, the nationality requirement son-in-law lost his Moroccan nationality, it contained in Article 41 of the Cooperation is unclear whether he was still a Moroccan Agreement cannot be fulfilled where the national when the Cooperation Agreement worker originally possessed Moroccan entered into force. nationality but lost it before the relevant agreement with the Community was con- cluded. That means that in determining whether or not he fulfils the conditions for certain entitlements — in this case entitle- ment to the same treatment as Belgian nationals — he may not take into consid- (a) Loss of Moroccan nationality before the eration the period prior to the conclusion of Agreement entered into force an agreement or treaty which grants him those rights for the first time. For that reason a Moroccan worker and the mem- bers of his family cannot rely on the Cooperation Agreement if he lost his Mor-

34. However, it is uncertain whether that also applies to his family. The members of (b) Loss of Moroccan nationality after the his family have a personal right to disability Cooperation Agreement was concluded allowance via the 'roundabout route' pro- vided by Article 41 and on account of the Moroccan nationality of the worker, who is a member of their family. Even though it is not only a derived but also a personal right, it is granted only because they live together with a Moroccan worker in Belgium as members of his family. If he now decides 32. It is uncertain whether the worker or voluntarily to be treated only as a Belgian the members of his family can rely on the in accordance with Belgian law, it is not Agreement where the worker was a Mor- clear why the Agreement should still apply occan national when the Agreement to the members of his family. entered into force but where that condition was no longer fulfilled at the time the application was submitted or during the period when the disability allowance was to be paid. The United Kingdom takes the view that the rule of non-discrimination in the Agreement also applies in that case, so 35. Furthermore, is not possible to detect as to prevent possible discrimination any discrimination in relation to Belgian against the worker and his family on the nationals. It is consistent with Community ground of his previous Moroccan nationa- law for the plaintiff to be denied disability lity. allowance in accordance with Belgian law as a non-Belgian and a non-national of a Member State, even though she is the mother-in-law of a Belgian national. In its judgment in Taghavi the Court ruled that even a national of a non-member country who is the spouse of a national of a Member State cannot claim a handicapped person's allowance which is provided for by 33. I cannot concur with that. The worker national legislation as a personal right and himself no longer has any need to rely on not on account of membership of a work- the requirement of equal treatment con- er's family. 19 That means that Belgian law tained in the Cooperation Agreement since applies to the plaintiff in the same way as it he possesses Belgian nationality and is therefore treated in the same way as Belgian workers. In that respect it should 19 — Judgment in Case C-243/91 (cited in footnote 9), para- be borne in mind that he voluntarily graph 11 et seq.

does to all mothers-in-law of Belgian work- 37. For that reason no analogy may be ers who do not possess the nationality of a drawn with the case of Krid.20 That case Member State. As a Moroccan she would related to the widow of an Algerian worker be entitled to the same treatment as Belgian who had lived with him in France who was nationals under Article 41(1) of the Agree- able to rely on the principle of non- ment, but only on account of her member- discrimination contained in the Coopera- ship of the household of a Moroccan tion Agreement with Algeria even after his worker. However, since he has voluntarily death. In that context the Court of Justice renounced his Moroccan nationality, the also ruled that Article 41 of the Coopera- plaintiff can no longer claim that she is tion Agreement with Morocco and the discriminated against in relation to Belgian corresponding provision of the Coopera- nationals. tion Agreement with Algeria are identical and that the case-law relating to Article 41 of the Cooperation Agreement with Mor- occo is consequently applicable by ana- logy. 2 1 That must also apply conversely, so that the judgment in Krid may be applied to the Cooperation Agreement with Morocco. However, in the present case only an application by analogy could be possible, since the situation is not exactly the same. None the less, there is no scope in this case for such application by analogy. The pre- sent case does not concern the family of a Moroccan who never renounced his nation- ality remaining free from discrimination after his death. Instead it concerns a Moroccan worker voluntarily and with all consequences for the members of his family renouncing his Moroccan nationality in 36. For that reason the view of the United order to acquire Belgian nationality. In that Kingdom is of no avail as this case does not respect it should be noted that he concern possible discrimination on the renounced it when the plaintiff was still ground that the worker was originally a Moroccan. It concerns instead the possibi- lity that the position of the mother-in-law may have changed for the worse because her son-in-law is now Belgian rather than Moroccan. She cannot rely on the Agree- ment as the mother-in-law of a former Moroccan national. That conclusion is reinforced by the fact that the worker concerned renounced his Moroccan nation- ality before the plaintiff came to live in his household in Belgium. That means that in that case she has never lived in Belgium as the member of the family of a Moroccan 20 —Judgment in Case C-103/94 (cited in footnote 10). 21 — Judgment in Case C-103/94 (cited in footnote 10), para- worker. graph 26.

40. However, Belgium considers that the plaintiff's son-in-law possesses only Belgian 38. Furthermore, it should be noted that in nationality and not (also) Moroccan Krid the Court extended the scope of the nationality. However, it is uncertain whe- Agreement to survivors since Article 39(2) ther that is possible, that is to say whether expressly refers, in connection with the Belgium can refuse the worker and the aggregation of periods of insurance, to members of his family the right to rely on pensions and annuities in respect of death. the Agreement in that way. Moreover, provision is made for the trans- fer to Algeria of pensions and annuities in respect of death. For that reason the Court held that Article 39 of the Cooperation Agreement also covers members of the 41. In that context the Commission refers family of an Algerian migrant worker to the judgment in Micheletti.23 That who continue, after the worker's death, to judgment related to the question whether live in the Member State in which he was the provisions of Community law concern- employed. 22 ing freedom of establishment preclude a Member State from withholding that free- dom from a national of another Member State who at the same time possesses the nationality of a non-member country, on the ground that the legislation of the host 2. Examination in the event that the State deems him to be a national of the worker has retained his Moroccan natio- non-member country. In that respect the nality Court of Justice held that '[u]nder interna- tional law, it is for each Member State, having due regard to Community law, to lay down the conditions for the acquisition and loss of nationality.' 24 That competence is to be exercised in conformity with 39. In the event that the worker has Community law. The Court then added: retained his Moroccan nationality along- side his Belgian nationality, the conditions contained in Article 41(1) would be ful- filled in terms of the wording thereof. The plaintiff would be a member of the family 'However, it is not permissible for the of a Moroccan worker and living with him legislation of a Member State to restrict in his household in Belgium. She could

44. The judgment in Micheletti related to the nationality of a non-member country 42. Consequently, the Court of Justice being given precedence over the nationality concluded that where the persons con- of another Member State with the result cerned have produced documents in order that the national concerned was denied the to establish their status as nationals of a status of a national of a Member State. Member State, the other Member States are That is not the case here. Belgium recog- not entitled 'to challenge that status on the nises the plaintiff's son-in-law as a Bel- ground that the persons concerned might gian — but only as a Belgian. In doing so it also have the nationality of a non-member denies him the right to rely on his Mor- country which, under the legislation of the occan nationality. In this case the most host Member State, overrides that of the crucial factor is that in doing so it denies Member State.' 26 27 — In that respect Belgium relied on the Agreement on certain issues arising from the non-conformity of nationality laws, resolution of the Hague international codification con- ference of 1930 — adopted by Belgium by a Law of 1939 — which it submitted in a letter written after the

43. In this case it must be assumed that the member countries under a prior agreement and to perform plaintiff's son-in-law still possesses Moroc- its obligations thereunder (Case 812/79 Attorney General v Burgoa [19801 ECR 2787, paragraph 8). However, that can nationality. Belgium has probably applies only to the rights of non-member countries and the obligations of the Member States (Case C- 158/91 Levy granted him Belgian nationality without [1993] ECR I - 4287, paragraph 12). Consequently, Bel- requiring him to renounce his Moroccan gium can by no means derive from a previous agreement the right to give precedence to its nationality over the nationality. That means that Belgium does nationality of a non-member country. That is because

In this case Belgium has assumed a new obligation under the Cooperation Agreement. It should also be noted that according to settled case-law that Agreement forms an integral part of 25 — Judgment in Case C-369/90 (cited in footnote 7), para- Community law (Case 181/73 Haegeman v Belgian State graph 10. [1974] ECR 449, paragraph 5, and Case 104/81 Haupt- zollamt Mainz v Kupferberg [1982] ECR 3641, para- 26 — Judgment in Case C-369/90 (cited at footnote 7), para- graph 13 et seq.). graph 14.

47. According to the case-law of the Court 45. In Micheletti the Court of Justice ruled of Justice, the principle of non-discrimina- that the effects of the grant of the nation- tion contained in Article 41(1) means that ality of another Member State may not be the persons referred to by that provision — restricted by the imposition of an addi- that is to say migrant workers and members tional condition for the recognition of that of their family living with them — must be nationality with a view to the exercise of treated as if they were nationals of the the fundamental freedoms. It is true that in Member States concerned. It follows con- the present case the son-in-law is recog- sequently that the national legislation at nised as a Belgian and thus treated in the issue cannot impose upon those persons same way as other Belgian nationals, also more or stricter conditions than those in respect of the exercise of fundamental applicable to nationals of that Member freedoms. However, the effects of his State. 28 Therefore, under the Cooperation Moroccan nationality might be restricted Agreement the members of the family of a with a view to the exercise of the rights Moroccan worker living with him have a vested in him as a Moroccan by the right to the same treatment as Belgian Cooperation Agreement. nationals or the nationals of other Member States. In that respect it is irrelevant whether or not the benefit applied for is awarded to a beneficiary as a personal right or in that person's capacity as a member of the family. 29 Therefore, in accordance with Article 41(1) of the Agreement, a member of the family who satisfies all the condi- tions laid down by national legislation for 46. As far as he himself is concerned, no such restriction is initially apparent since he is not subject to discrimination if his 28 — Judgment in Case C-126/95 Hallouzi-Choho v Bestuur van de Sociale Verzekeringsbank [1996] ECR I-4807, para- Belgian nationality is recognised and he graph 35 et seq. may rely on it. However, in that context 29 — In respect of the Cooperation Agreement with Algeria, see the judgment in Case C-113/97 Babahenini v Belgian State note should be taken of the rights of the [1998] ECR I-183, paragraph 25.

48. If the Moroccan nationality of her son- in-law is not recognised, the plaintiff's rights under the Cooperation Agreement as a member of the family of a Moroccan worker are restricted. That in turn may constitute a restriction on the Moroccan worker in respect of the exercise of his rights since he may be prevented from living with the members of his family in the exercise of his rights, under the Coopera- 50. Similarly, Belgium's argument that the tion Agreement. aim of the Cooperation Agreement is simply to ensure that Moroccan workers are treated in the same way as Belgian workers must be refuted. As has been seen, it follows from Article 41 that it also seeks to ensure that the members of their families are treated in the same way as Belgian nationals in respect of both their personal and derived rights. 49. Belgium submits that if reliance on Moroccan nationality were also possible, the person possessing both nationalities would be granted greater rights than other citizens of the European Union. However, that is a consequence of the Agreement itself and the rights established therein. According to the case-law of the Court of Justice, it follows from Article 41 that the members of the family of a Moroccan worker may be treated more favourably than the members of the family of a Belgian 51. Finally, Belgium claims that in the national. For example, the Moroccan present case reliance on Moroccan nation- mother-in-law of a Belgian worker prob- ality results in the Moroccan worker being ably has no right to a disability allowance, granted greater rights than other Moroc- cans. However, the reason for that is that Belgium granted him Belgian nationality 30 — Judgment in Case C-18/90 Office National de l'Emploi v without requiring him to renounce his Kziber [1991] ECR I - 199, paragraph 28. Moroccan nationality.

I — Submissions of the parties Article 1(f) of R e g u l a t i o n (EEC) No 1408/71, as amended by Regulation No 118/97, on the other hand, sets out the following definitions in respect of its scope:

53. There are three possible answers to the '(i) member of the family means any per- question how the term 'member of the son defined or recognised as a member family' in Article 41(1) of the Cooperation Agreement should be interpreted. Either reference is made (one) to national law (as 31 — Regulation (EEC) No 1612/68 of the Council of 15 Octo- ber 1968 on freedom of movement for workers within the it is by Germany in its written observa- Community (OJ, English Special Edition 1968 (II), p. 475).

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of the family or designated as a mem- analogy with Regulation No 1612/68. ber of the household by the legislation Finally, with reference to the importance under which benefits are provided ... of residence in respect of the term 'member of the family', France notes that under the French national provision residence in France alone is sufficient for the grant of an allowance.

32 — Judgment in Case C-103/94 (cited in footnote 10), para- 33 — Judgment in Case C-58/93 Yousfi v Belgian State [1994] graph 39. ECR 1-1353.

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covers the case of the family of a worker security benefits. If that is adequate for the who possesses the nationality of a Member regulation, then it must also be adequate State but works in another Member State. for the Agreement. That is not the case here.

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reference would be made in turn to national legislation of the country con- national law which, however, does not cerned.' 34 In accordance with Arti- define the term 'member of the family' at cle 96(3), that Agreement replaces the issue in the present case, for example, since 1978 EEC-Tunisia Cooperation Agreement the allowance is granted as a personal right. which, for its part, is largely the same as the EEC-Morocco Cooperation Agreement. The Mediterranean Agreement with Mor- occo of 15 November 1995 contains the same provisions and declarations. 35 That Agreement has yet to be ratified. Similar declarations are also contained in the Europe agreements which are much more restrictive in respect of equal social II — Analysis rights. 36

60. It is not disputed that the Cooperation Agreement provides no criterion for who is to be regarded as a member of the family for the purposes of Article 41(1). Further- more, the Court of Justice has yet to express a view on that matter.

62. The question of the legal significance of such declarations may be left open. How- ever, in the absence of any specific reference the terms of Community law must in 1. Definition in accordance with national principle be defined autonomously, as law otherwise they would not be applied in a uniform manner. Accordingly, a definition of the term 'member of the family' which varies from Member State to Member State is certainly not appropriate.

2. Extension of principle of non-discrimi- of non-discrimination contained therein, nation to all resident Moroccans that the members of the family of a Moroccan worker are also entitled to the same treatment as Belgian nationals. That means that they are consequently entitled to disability allowance as a personal 63. A rule which, as France submits, takes right. 37The fact that the mothers-in-law as its sole basis permanent residence in the of Belgian nationals may not have such a relevant Member State would have the right is not due to an excessively broad advantage of simplifying administrative interpretation of the term 'member of the procedures. Moreover, the Member States family'. The reason is rather that the are free in principle to adopt such a rule. Cooperation Agreement provides for treat- However, that would appear to be too ment of the members of the family of broad an approach. Article 41(1) of the Moroccan workers which is equal not to Cooperation Agreement contains no indi- that of the members of the families of cation that would render such a solution Belgian workers but to that of Belgian possible. The criterion of being a member nationals. of the family as a condition for application of the principle of non-discrimination con- tained in the Cooperation Agreement would become completely meaningless.

66. However, it is not possible to infer a definitive definition of what constitutes membership of a family from Article 10(1) 3. Article 10(1) of Regulation No 1612/68 of Regulation No 1612/68, as Article 10(2) deals with other members of the family whose admission the Member States must facilitate if they are dependent on the worker or live under his roof in the country 64. However, Article 10(1) of Regulation whence he comes. 38 No 1612/68 might open up the possibility of reference to a definition contained in Community law to define the term 'mem- ber of the family'.

definition of family membership set out in 4. Article 1(f) of Regulation No 1408/71 Article 10(1) and the principle of non- discrimination in respect of social law. The subject-matter of the abovementioned provision is simply the right of residence, not the grant of social rights. Regulation No 1612/68 clearly grades the beneficiaries 69. It must therefore be examined whether in respect of their rights against the host Article 1(f) of Regulation No 1408/71 country concerned. Article 11 permits only should be used to define the term 'member the spouse and certain children of the of the family'. worker, but not relatives in the ascending line as provided for in Article 10(l)(b), also to take up employment in the host coun- try. 39 Article 12 grants a right to education only to the children of the worker. 40 Finally, the principle of non-discrimination 70. That is supported by the fact that the in respect of social law contained in Court of Justice uses the concept of social Article 7(2) benefits only the worker. 41 security in Article 41(1) of the Agreement by analogy with the identical concept in Regulation No 1408/71. 42 That conclu- sion is reinforced by the fact that both the Agreement and Regulation No 1408/71 relate to the equal treatment of workers and members of their families in the field of social security.

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under national law not as derived but as must be assumed that national law does not personal rights. In that context the Court of contain a definition of the term 'member of Justice ruled that that is in fact the case and the family' in every case. Nor is that that no distinction is drawn between necessary in respect of personal rights that derived and personal rights of members of are not asserted as rights derived from the family in the context of the Coopera- members of the family. To that extent tion Agreement. 44 However, those com- Regulation No 1408/71 would not provide ments do not necessarily relate to the a definition of the term 'member of the definition of the term 'member of the family' for every conceivable case. (For that family' as such. They refer to — since reason direct reference to national law can amended — case-law of the Court of likewise provide no definitive resolution.) Justice (the distinction between personal and derived rights). 45

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74. Accordingly, Article 1(f) of Regulation worker under national law and therefore No 1408/71 gives a specific definition of contain no relevant definition of 'member the term 'member of the family' which of the family', the number of beneficiaries reflects the aims of the Community legis- would be restricted accordingly to that lature in promoting living together as a minimum standard. family in the specific field of social security more accurately than Article 10(1) of Reg- ulation No 1612/68. Consequently, the term 'member of the family' must be defined on the basis of Article 1(f) of Regulation No 1408/71. 47 77. However, the historical purpose of Article 1(f) (ii) of Regulation No 1408/71 is at odds with that conclusion. That provision was incorporated into Regulation No 1408/71 only by Regulation (EEC) No 1247/92. 48 The second recital in the preamble thereto states:

75. No specific reference is made to the mother-in-law in the definition set out in Article l(f)(ii) of Regulation No 1408/71. However, it does not follow that she is excluded from the scope of the principle of non-discrimination. 'Whereas it is necessary to extend the definition of "member of the family" in Regulation (EEC) No 1408/71 to conform with the case-law of the Court of Justice concerning the interpretation of that expression'.

According to the judgments, that opening 79. An extension in Community law need up in Community law of the more restric- not be based solely on the concept of tive national definitions of 'family' is not to fairness. Precisely, within the scope of be understood as definitive but rather as an Article 41(1) of the Cooperation Agree- expression of the concept of fairness which ment it must be noted that the use of the must also be exercised having regard to the definition contained in Article l(f)(ii) of assessment underlying Article 10(1) of Reg- Regulation No 1408/71 restricts quite con- ulation No 1612/68. 50 siderably a very broad legal concept. Work- ers who live in a different country have to look after first their children who are minors, and then adult disabled children and possibly parents — who may be in need of care — and consequently it would seem appropriate to include them too in the scope of the principle of non-discrimination contained in the Cooperation Agreement. To interpret the concept of family with regard to those needs would not be unusual even in West European countries. Much greater weight must be attached to that idea precisely in connection with the Cooperation Agreement with Morocco. On account of the cultural conditions that 78. The openness of the term 'member of prevail there, Moroccan families show the family' required accordingly by Com- much greater solidarity across the genera- munity law must have been acknowledged tions than European families, artd thus in the further legislative process to amend protect against the risks involved in old Regulation No 1408/71 by Regulation age. Belgium was also aware of those No 1247/92. Whereas the Commission cultural differences when the Cooperation Proposal defines the term definitively as Agreement was concluded. Therefore, a 'the spouse of an employed or self- more restrictive definition of members of employed person and the children of such person who are either minors or dependent the family would have required an express upon such person', 5 1the final version of provision. Article l(f)(ii) of Regulation No 1408/71 is supplemented by the words 'at least'. Therefore, contrary to what the systematic context would suggest, that minimum standard is imposed not only on the national legal order for extension but also on Community law.

of Regulation No 1612/68, as the Court of 81. As long as there is no statutory clar- Justice has already done in the judgment in ification of the term 'member of the Inzirillo.52 That relatively broad category family', in particular in the Agreement with of person must then be restricted by the Morocco, relationship by marriage thus criterion of living together in Article 41(1) also constitutes an adequate family rela- of the Cooperation Agreement. The more tionship. However, the further condition of distant the relationship between the inten- living together must be satisfied to establish ded beneficiary and the Moroccan worker, a right. However, the additional condition the greater the requirements that must be that the persons concerned must live toge- placed on living together particularly in ther to a sufficient extent which, like the temporal, economic and spatial terms. In term 'family', must be assessed also having that respect account may be taken, for regard to the Moroccan point of view, example, of the reasons for living together, precludes an abstract answer to the ques- whether or not the intended beneficiary tion referred for a preliminary ruling, since could live with other, closer, members of it will depend on each specific case. the family or whether he could reasonably be expected to live alone, also in order to examine whether living together is compre- hensible for family reasons and is not done primarily to assert claims. This comple- mentary evaluation of family relationships and actual living together is also consistent with the criteria applied by the European Court of Human Rights to assess the degree of protection warranted by an existing family relationship as family life under Article 8(1) of the European Convention on Human Rights. 53 Consequently, in accordance with Article l(f)(ii) of Regula- tion No 1408/71 too, it must be concluded 82. In the present case it must first be noted that the scope rattorte personae of Arti- that the plaintiff, as a mother-in-law, is cle 41(1) of the Cooperation Agreement is closely related to the worker.

The A, No 290 § 45; the Moustaquin judgment of 18 February economic factor of supporting a relative in 1991 Series A No 193 § 36; the Hokkanen v Finland judgment of 23 September 1994 Series A No 299-A § 54; the ascending line under Article 10(l)(b) of the Hoffman v Austria judgment of 23 June 1993 Series A No 255-C § 29; the Bouchelkia v France judgment of Regulation No 1612/68 also supports that 29 January 1997 Reports 1997-1, 47 § 41; see also conclusion. According to the referring

In

(2) A person related by blood or by marriage in the ascending line may also be regarded as a 'member of the family' for the purposes of the EEC-Morocco Agreement. It is for the national court to decide whether, having regard to the degree of relationship, the reasons, intensity and duration of the state of living together with the worker are sufficient to establish an entitlement for the purposes of Article 41(1) of the Agreement.

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