CJEC, April 5, 1995, No C-103/94

THE COURT,

1 By judgment of 16 December 1993, received at the Court Registry on 25 March 1994, the Tribunal des Affaires de Sécurité Sociale (Social Security Court), Nanterre, referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question on the interpretation of Article 39(1) of the Cooperation Agreement between the European Economic Community and the People' s Democratic Republic of Algeria, signed in Algiers on 26 April 1976 and approved on behalf of the Community by Council Regulation (EEC) No 2210-78 of 26 September 1978 (OJ 1978 L 263, p. 1, hereinafter "the Agreement").

2 That question was raised in proceedings between Mrs Krid, an Algerian national, and the Caisse Nationale d' Assurance Vieillesse des Travailleurs Salariés (National Old-Age Insurance Fund for Employed Persons, hereinafter "the CNAVTS"), concerning the refusal to grant her a supplementary allowance from the Fonds National de Solidarité (National Solidarity Fund, hereinafter "the FNS").

3 According to the documents before the Court, Mrs Krid is the widow of an Algerian national who spent all his working life in France. Mrs Krid herself has never worked and resides at Asnières-sur-Seine (France).

4 When he reached the age of 65 on 1 December 1984, Mrs Krid' s husband received an old-age pension from the CNAVTS calculated on the basis of the 123 quarters during which he had paid contributions in France. On 1 April 1987, Mr Krid received an increase in his pension in respect of his dependent spouse.

5 After Mr Krid' s death on 2 October 1992, his wife received a survivor' s pension paid by the CNAVTS as from 1 November 1992.

6 On 29 June 1993 Mrs Krid applied in France for a supplementary allowance from the FNS under the Law of 30 June 1956.

7 The FNS was set up in France for the purpose of promoting as a general policy the welfare of old people by improving old-age and retirement pensions, annuities and allowances. To that end, an allowance, described as supplementary, is paid to the recipients of old-age or invalidity benefits under legislative provisions or regulations, where the persons concerned have insufficient means of their own.

8 That allowance is regulated by Title I, Section 5, headed "Allowances for elderly persons", of Book VIII of the new French Social Security Code. Articles L.815-2 to L.815-6 of that section lay down the conditions for granting the allowance.

9 Article L.815-2 confers entitlement to the supplementary allowance from the FNS on persons of French nationality resident in France. Under Article L.815-5, "the supplementary allowance is payable to foreigners only where an international convention based on reciprocity has been signed".

10 By letter of 18 August 1993, the CNAVTS rejected Mrs Krid' s claim on the ground that she was an Algerian national and that the social security convention between France and Algeria signed on 1 October 1980 did not contain a protocol concerning the supplementary allowance from the FNS.

11 On 11 September 1993 Mrs Krid brought an action challenging that decision before the Tribunal des Affaires de Sécurité Sociale, Nanterre.

12 In the proceedings before that court, Mrs Krid asserted in substance that, as the recipient of a survivor' s pension, she was covered by the general social security system in France and was entitled to the benefits connected with that system. In her view, Article 39(1) of the Agreement prohibits the French authorities from relying on a claimant' s Algerian nationality as a ground for refusing to grant the allowances claimed.

13 By contrast, apart from the fact that Mrs Krid was not of French nationality and that there was no international convention based on reciprocity between France and Algeria concerning supplementary allowances from the FNS, the CNAVTS maintained that Council Regulation (EEC) No 1247-92 of 30 April 1992 (OJ 1992 L 136, p. 1) amending Council Regulation (EEC) No 1408-71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, which has been consolidated by Council Regulation (EEC) No 2001-83 of 2 June 1983 (OJ 1983 L 230, p. 6, hereinafter "Regulation No 1408-71"), reserved entitlement to non-contributory benefits to EEC nationals alone.

14 Those were the circumstances in which the Tribunal des Affaires de Sécurité Sociale, Nanterre, referred the following question to the Court:

"Is the supplementary allowance from the National Solidarity Fund referred to in Council Regulation (EEC) No 1247-92 of 30 April 1992 reserved solely to EEC nationals (residing in France), or can it be extended to Algerian nationals (residing in France) whether pursuant to Article 39 of the Cooperation Agreement between the EEC and Algeria and-or to EEC legislation; can that allowance be granted, by extension, to nationals of Morocco and Tunisia, which have concluded with the EEC a cooperation agreement in relation to social security?"

15 Reference should be made at the outset to the objective of the Agreement and the relevant provisions thereof.

16 According to Article 1, the object of the Agreement is to promote overall cooperation between the contracting parties with a view to contributing to the economic and social development of Algeria and helping to strengthen relations between the parties. Under Title I that cooperation is to be instituted in the economic, technical and financial fields, under Title II it is to be instituted in the field of trade and under Title III in the social field.

17 Article 39(1), which forms part of Title III, headed "Cooperation in the Field of Labour", provides as follows:

"Subject to the provisions of the following paragraphs, workers of Algerian nationality and any members of 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 States in which they are employed."

18 The following paragraphs concern the aggregation of periods of insurance, employment or residence completed in the various Member States, the receipt of family allowances for members of the family resident in the Community and the transfer to Algeria of pensions or annuities in respect of old age, death, industrial accident or occupational disease and invalidity.

19 It is apparent from the context of the case that the national court' s question essentially seeks to ascertain whether Article 39(1) of the Agreement must be interpreted as precluding a Member State from refusing to grant a benefit such as the supplementary allowance from the FNS, which is provided for under its legislation for its own nationals who are resident in that State, to the widow of an Algerian worker, who is resident in that Member State and is the recipient of a survivor' s pension there, on the ground that she is of Algerian nationality.

20 In order to reply to that question, the Court must first consider whether Article 39(1) of the Agreement is capable of being relied on directly by an individual in proceedings before a national court and, secondly, whether it covers a situation in which a member of an Algerian migrant worker' s family applies in the Member State in which she lives and receives a survivor' s pension for an allowance of the kind at issue in the main proceedings.

The direct effect of Article 39(1) of the Agreement

21 It is settled case-law (see the judgments in Case C-18-90 Office National de l' Emploi v Kziber [1991] ECR I-199, paragraphs 15 to 22, and Case C-58-93 Yousfi v Belgian State [1994] ECR I-1353, paragraph 16) that 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 (OJ 1978 L 264, p. 1), which lays down in clear, precise and unconditional terms a prohibition of discrimination, based on nationality, against workers of Moroccan nationality and the members of their families living with them in the field of social security, contains a clear and precise obligation which is not subject, in its implementation or effects, to the adoption of any subsequent measure in respect of any question other than the matters mentioned in paragraphs 2, 3 and 4 of that article. In those judgments, the Court added that the object of the Cooperation Agreement to promote overall cooperation between the contracting parties, in particular in the field of labour, confirms that the principle of non-discrimination enshrined in Article 41(1) is capable of governing the legal situation of individuals.

22 The Court concluded (see the judgments in Kziber, cited above, paragraph 23 and Yousfi, cited above, paragraph 17) that that provision was capable of being applied directly.

23 Article 39(1) of the Cooperation Agreement between the EEC and Algeria is drafted in the same terms as Article 41(1) of the Cooperation Agreement between the EEC and Morocco, and the two agreements pursue the same object.

24 Accordingly, the direct effect which Article 39(1) of the Agreement must be recognized as having entails that persons to whom that provision applies are entitled to rely on it in proceedings before national courts.

The scope of Article 39(1) of the Agreement

25 In order to determine the scope of the principle of non-discrimination laid down in Article 39(1) of the Cooperation Agreement, it is necessary to examine on the one hand whether a person such as the plaintiff in the main proceedings is covered by that provision and, on the other, whether a benefit such as the supplementary allowance from the FNS at issue in the main proceedings comes within the field of social security within the meaning of that provision.

26 With regard, first, to the persons covered by Article 39(1) of the Agreement, it should be noted that the provision applies first and foremost to workers of Algerian nationality, a concept to be understood in the broad sense. In accordance with the case-law on the identical provision in the Cooperation Agreement between the EEC and Morocco (see Kziber, cited above, paragraph 27, and Yousfi, cited above, paragraph 21), which is consequently applicable by analogy in this case, the term "workers" must be understood as encompassing 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 conferring entitlement to allowances under other social security branches.

27 Furthermore, Article 39(1) of the Agreement also applies to members of those workers' families living with them in the Member State in which they are employed.

28 Article 39(2) expressly refers, in connection with the aggregation of periods of insurance, employment or residence completed in the various Member States, to pensions and annuities in respect of death awarded to the families of Algerian migrant workers residing within the Community.

29 In addition, Article 39(4) provides for the right to transfer to Algeria certain social security benefits acquired in the Member States, including pensions and annuities in respect of death.

30 It follows that Article 39(1) of the Agreement also covers members of the family of an Algerian migrant worker who continue, after the worker' s death, to live in the Member State in which he was employed.

31 In those circumstances, a person such as the plaintiff in the main proceedings, in her capacity as the widow of an Algerian migrant worker, who lives in the Member State in which the worker spent all his working life before he died and who is the recipient there of a survivor' s pension paid in consequence of such employment, is covered by Article 39(1) of the Agreement.

32 With regard, secondly, to the term "social security" used in Article 39(1) of the Agreement, it is clear by analogy with the judgments in Kziber, paragraph 25, and Yousfi, paragraph 24, that it must be deemed to bear the same meaning as the identical term used in Regulation No 1408-71.

33 Even though, prior to its amendment by Regulation No 1247-92, Regulation No 1408-71 did not specifically mention amongst the social security branches to which it applies benefits of the same kind as the supplementary allowance from the FNS, the Court had nevertheless consistently held (see, in particular, Joined Cases 379-85, 380-85 and 381-85 and 93-86 CRAM Rhône-Alpes v Giletti and Others [1987] ECR 955 and C-236-88 Commission v France [1990] ECR I-3163) that the allowance fell within the matters covered by Regulation No 1408-71 by virtue of Article 4(1) thereof.

34 The Court considered (see, in particular, Giletti and Others, cited above, paragraph 10) that national legislation of the kind concerning the supplementary allowances paid by the FNS in fact fulfils a dual function in so far as, in the first place, it guarantees a minimum means of subsistence to persons in need and, in the second place, it provides additional income for the recipients of social security benefits which are inadequate.

35 The Court concluded (see Giletti and Others, cited above, paragraph 11) that, in so far as such legislation confers a right to supplementary benefits designed to increase the amount of pensions paid by way of social security, without any assessment of individual needs or circumstances, which is a characteristic of assistance, it comes within the social security system within the meaning of Regulation No 1408-71. The Court added that the fact that a single law may also provide for advantages which can be classified as assistance cannot alter, for the purposes of Community law, the intrinsic social security character of a benefit linked to an invalidity, old-age or survivor' s pension to which it is an automatic supplement.

36 Furthermore, since Regulation No 1247-92 came into force, benefits such as the supplementary allowance from the FNS have been expressly included within the matters covered by Regulation No 1408-71, precisely in order to take account of the abovementioned case-law, as is clear from the third and fourth recitals in the preamble to Regulation No 1247-92. As is provided for in paragraph 2a, newly added to Article 4 of Regulation No 1408-71, that regulation is also to apply to special non-contributory benefits which, as in this case, are intended to provide supplementary, substitute or ancillary cover against the risks covered by the branches of social security referred to in paragraphs 1(a) to (h), which in fact include old-age benefits.

37 Since, in line with the Kziber and Yousfi judgments cited above, the term "social security" used in Article 39(1) of the Agreement cannot be given a definition different from that which it is recognized as having in the context of Regulation No 1408-71, a benefit of the same kind as the supplementary allowance from the FNS comes within the field of social security within the meaning of that provision.

38 The French Government has, however, raised the objection that an Algerian national, who is the widow of an Algerian migrant worker but who has never been a worker herself, may not rely on Article 39 of the Agreement in order to claim a benefit such as the supplementary allowance from the FNS, on the ground that that benefit is intended by French law to be a personal right and not a derived right acquired through the claimant' s status as a member of the family of a migrant worker.

39 In that regard, it is sufficient to note that Article 39(1) of the Agreement merely lays down the principle that Algerian migrant workers and any members of their families living with them are to be free from any discrimination based on nationality in relation to nationals of the Member States in which they are employed. Since the persons covered by that provision of the Agreement are not the same as those covered by Article 2 of Regulation No 1408-71, the case-law distinguishing between the derived rights and the personal rights of members of migrant workers' families in the context of Regulation No 1408-71 cannot be applied in the context of the Agreement, as is clear from the Kziber judgment.

40 In those circumstances, it follows from the principle of freedom from any discrimination based on nationality in the field of social security, embodied in Article 39(1) of the Agreement, that the widow of an Algerian migrant worker, who lives in the Member State in which the worker was employed and who satisfies all the conditions, save that of nationality, for receipt in that country of a benefit such as the allowance from the FNS which is provided for recipients of a survivor' s pension and the award of which is not dependent on the recipient having formerly had the status of worker, cannot be denied that benefit on grounds of nationality.

41 In light of the foregoing considerations, the answer to be given to the Tribunal des Affaires de Sécurité Sociale, Nanterre, must be that Article 39(1) is to be interpreted as precluding a Member State from refusing to grant a benefit such as the supplementary allowance from the FNS, which is provided for under its legislation for its own nationals who are resident in that State, to the widow of an Algerian worker, who is resident in that Member State and is the recipient of a survivor' s pension there, on the ground that she is of Algerian nationality.

Costs

42 The costs incurred by the French Government and the United Kingdom and by the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT,

in answer to the question referred to it by the Tribunal des Affaires de Sécurité Sociale by judgment of 16 December 1993, hereby rules:

Article 39(1) of the Cooperation Agreement between the European Economic Community and the People' s Democratic Republic of Algeria, signed in Algiers on 26 April 1976 and approved on behalf of the Community by Council Regulation (EEC) No 2210-78 of 26 September 1978, must be interpreted as precluding a Member State from refusing to grant a benefit such as the supplementary allowance from the FNS, which is provided for under its legislation for its own nationals who are resident in that State, to the widow of an Algerian worker, who is resident in that Member State and is the recipient of a survivor' s pension there, on the ground that she is of Algerian nationality.