REPORT FOR THE HEARING

in Case C- 18/90 (*1)

I — Facts and procedure

1.The Cooperation Agreement between the European Economic Community and the Kingdom of Morocco (hereinafter referred to as ‘the Agreement’) was signed on 27 April 1976 at Rabat by the Kingdom of Morocco, on the one hand, and the Member States of the EEC and the Community, on the other hand, and concluded, on behalf of the Community, by Council Regulation No 2211/78 of 26 September 1978 (Official Journal L 264, p. 1).

The objective of the Agreement, as stated in Article 1 thereof, is

‘to promote overall cooperation between the Contracting Parties with a view to contributing to the economic and social development of Morocco and helping to strengthen relations between the Parties. To this end provisions and measures will be adopted and implemented in the field of economic, technical and financial cooperation, and in the trade and social fields.’

‘The treatment accorded by each Member State to workers of Moroccan nationality employed in its territory shall be free from any discrimination based on nationality, as regards working conditions or remuneration, in relation to its own nationals.

4. Article 41(1) provides:

‘Subject to the provisions of the following paragraphs, workers of Moroccan 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.’

5. Articles 44 and 45, which appear in Title IV relating to general and final provisions, provides for the establishment of a Cooperation Council composed, on the one hand, of members of the Council of the European Communities and members of the Commission of the European Communities and, on the other hand, of members of the Government of the Kingdom of Morocco. For the purpose of achieving the objectives set by the Agreement and in the cases provided by the Agreement, this Council is vested with decision-making powers. The decisions taken are binding on the Contracting Parties who are required to adopt measures necessary for their implementation.

6. Article 42(1) provides:

‘Before the end of the first year following entry into force of this Agreement, the Cooperation Council shall adopt provisions to implement the principles set out in Article 41.’

7. Notwithstanding the proposals for a decision submitted by the delegation of the Community no decision has been adopted by the Cooperation Council in the field of social security.

10. Ms Kziber brought an action against that decision of refusal before the labour courts. Whereas before the Tribunal du travail (Labour Tribunal) she relied on the general social security Convention between Belgium and Morocco, before the Cour du travail (Labour Court) she relied on the provisions of Anicie 41(1) of the Agreement.

11. Since it considered that the dispute involved an interpretation of the Agreement, the Cour du travail, Liège, by judgment of 16 January 1990, stayed the proceedings until the Court of Justice had given a preliminary ruling on the following question:

‘May a Member State refuse to grant, on the grounds of nationality, a social advantage within the meaning of Article 7(2) of Regulation No 1612/68 to the dependent children of a worker who is a national of a non-member country (Morocco), with which the European Economic Community has concluded a cooperation agreement containing, in the field of social security, a clause providing for the equal treatment of migrant workers from that country employed in the Community and of members of their family living with them?’

12. In the grounds of the judgment making the reference the Cour du travail, Liège, states that the Agreement forms part of the Community legal order and that the non-discrimination clause contained in Article 41(1) is by its very nature perfectly capable of producing direct effects. According to the Cour du travail Miss Kziber cannot claim the status of worker employed in the territory of one of the States of the Community within the meaning of Article 41(1) of the Agreement; similarly, the Court of Justice had held in its judgment in Case 94/84 Deak [1985] ECR 1881 that the Belgian allocation d'attente (special unemployment allowance for young workers who have completed certain vocational studies or apprenticeships) did not constitute a derived right on which the holder could rely in his capacity as a descendant of a migrant worker; the Court of Justice did however hold that the allocation d'attente constituted a social advantage within the meaning of Article 7(2) of Regulation No 1612/68 of the Council on freedom of movement for workers within the Community, establishing the principle of equal treatment in the matter of social advantages as between national workers and workers who are national to the Member State (Official Journal, English Special Edition 1968 (II), p. 475). The question before the Cour du travail was whether the benefit of that provision was reserved exclusively to the dependent children of a worker who is a national of a Member State or whether it might also be accorded to the child of a worker who is a national of a non-member country with which the European Economic Community had concluded a cooperation agreement, on the basis of a non-discrimination clause of the type contained in Article 41(1) of the Agreement.

13. The order of the Cour du travail, Liège, was registered at the Registry of the Court of Justice on 22 January 1990.

14. In accordance with Article 20 of the Protocol on the Statute of the Court of Justice of the EEC written observations were submitted on 1 April 1990 by the Commission, represented by its Legal Adviser, Jean-Claude Séché, acting as Agent, on 3 April 1990 by Bahia Kziber, appellant in the main proceedings, represented by Michèle Baiwir and René Jamar, trade union representatives, on 6 and 9 April 1990 by Onem, respondent in the main proceedings, represented by C. Derwael, of the Brussels Bar, on 17 April 1990 by the Federal Republic of Germany, represented by Ernst Roder arid Joachim Karl, officials of the Federal Ministry of Economic Affairs, and on 8 April by the French Republic, represented by Philippe Pouzoulet, Deputy Director, and Claude Chavance, Attaché Principal, in the Legal Affairs Directorate of the Ministry for Foreign Affairs.

15. Upon hearing the Report of the Judge-Rapporteur and the views of the Advocate General the Court decided to open the oral procedure without any preliminary enquiry.

II — Written observations submitted to the Court

In considering whether she has the status of a worker, it is necessary to go beyond the strict interpretation of that concept. It is not solely an unemployed person in receipt of unemployment allowances after a certain period of employment who must be considered as a worker but also a person registered as a person in search of employment and entitled under Belgian legislation to unemployment allowances.

Even if the Court were not to accept this assimilation, Miss Kziber must be entitled to rely on the non-discrimination rule in her capacity as a member of the family of a worker. In its judgment in Deak (cited above) the Court held that the allocation d'attente constituted a social advantage within the meaning of Regulation No 1612/68. It accepted that a worker who is a national of a Member State may pursuant to Article 7(2) of Regulation No 1612/68, which provides for equality of treatment in the matter of social advantages, claim the grant of the allocation d'attente to his child, even if the latter is not a national of a Member State.

Article 41(1) of the Agreement provides a guarantee of non-discrimination between Moroccan workers and workers of the Member States ‘in the field’ of social security. This formulation would appear to be wider than the non-discrimination in relation to the worker's rights to social security benefits by virtue of their own situation. In these circumstances Moroccan workers may, by virtue of Article 41(1) of the Agreement, rely on Article 7 of Regulation No 1612/68 which, according to the Court, prohibits nationality clauses affecting the children of workers who are nationals of a Member State, even if the child does not possess the nationality of a Member State, at least in so far as it concerns social security rights and not ‘social advantages’ in the broad sense.

Miss Kziber therefore proposes that the question should be answered as follows:

‘By virtue of Article 41(1) of the Cooperation Agreement the Member States may not set up as against Moroccan nationals nationality requirements laid down by national legislation for the grant of unemployment insurance benefits. In the alternative, Moroccan workers may, by virtue of Article 41(1) of the Cooperation Agreement, claim for their children the benefit of Article 7 of Regulation No 1612/68 with a view to the grant of unemployment insurance benefits.’

Onem points out that in its judgment in Leak the Court held that the Belgian allocation d'attente was a right granted to young persons in search of employment on the basis of their own situation and not a right derived from their situation as a member of the family of a worker. The fact that the Court held that the principle of equal treatment laid down in Article 7 of Regulation No 1612/68 applied to the grant of the allocation d'attente to children of workers who are nationals of the Member State may be explained in the light of the purpose of the EEC Treaty which is, in the perspective of freedom of movement, to ensure the best possible social conditions for workers who are nationals of the Member States. The application of Article 7(2) should not be extended to workers who are nationals of a non-member country even if that country has concluded with the Community a cooperation agreement. Moreover, the agreement in question is manifestly of a limited scope and does not grant allocations d'attente to children of Moroccan workers on the basis of their own situation.

Furthermore, in the absence of provisions adopted by the Cooperation Council pursuant to Article 42 of the Agreement, the principle of non-discrimination laid down in Article 41(1) of that Agreement cannot apply-Even supposing — even if it were at all possible — that Article 41(1) applies, the person concerned does not have the status of worker within the meaning of that provision.

The Government of the Federal Republic of Germany considers that the question submitted by the Cour du travail, Liège, should be answered in the affirmative.

Article 7(2) of Regulation No 1612/68 lays down the principle of equal treatment in the matter of social advantages only for the benefit of workers who are nationals of a Member State. Unlike the case decided by the Court in its judgment in Deak, the appellant in the main proceedings is not the descendant of a Community migrant worker.

Article 41(1) is not applicable in this case because the person concerned does not have the status of worker. Nor may she claim entitlement to rights as a member of the family of a worker, since her father is in retirement. Articles 40(1) and 41(1) provide for equality of treatment only for the benefit of Moroccan workers employed in the territory of a Member State. In these circumstances, the appellant's father himself could not claim the rights under the Agreement.

Even supposing that the father could rely on Article 41(1) of the Agreement, the right to equal treatment for the purposes of benefiting from a social advantage within the meaning of Article 7(2) of Regulation No 1612/68 is precluded. That regulation was adopted on the basis of Article 48 et seq. of the EEC Treaty and is intended to guarantee a right of free movement for Community workers, an objective which is different from that of the Agreement. In these circumstances the question whether the allocation d'attente qualifies as a social advantage may be left undetermined.

The Government of the French Republic states at the outset that the appellant in the main proceedings may not, under Community law, claim entitlement, on the basis of her own nationality and that of her father, either a right to social security benefits on the basis of her own situation or a derived right to such benefit.

The Agreement, which is the sole instrument on which the appellant in the main proceedings can rely, lays down, in Article 40, a reciprocal principle of non-discrimination, reiterated in Article 41(1) for the benefit of workers of Moroccan nationality, a principle whose implementation, however, is a matter, according to Article 42, for the Cooperation Council.

In its judgment in Case 12/86 Demirel [1987] ECR 3719 the Court clearly stated that, for a provision of an agreement concluded by the Community with non-member countries to be capable of being directly applicable, it must, regard being had to its wording and to the purpose and nature of the agreement, contain a clear and precise obligation which is not subject, in its implementation or effects, to the adoption of any subsequent measure. In the present case the general principle laid down in Article 41 requires implementation by the Cooperation Council. Notwithstanding proposals to that end from the Community delegation, no implementing decision has been adopted by the Cooperation Council.

The French Government observes moreover that the unemployment allowances at issue in the main proceedings do not rank amongst the benefits listed in Article 41 of the Agreement. While the Court did classify such allowances as a social advantage within the meaning of Article 7(2) of Regulation No 1612/68, that classification applies only to the persons who benefit under the regulation and who do not include workers who are nationals of non-member countries.

In the case of Moroccan workers such a classification for the purposes of Article 41 of the Agreement could only result from a formal measure adopted by the Cooperation Council.

The Commission points out that in its judgment in Deak the Court held that the Belgian allocation d'attente in question constituted a social advantage within the meaning of Article 7(2) of Regulation No 1612/68 which must be accorded to a migrant worker who is a national of a Member State, irrespective of the nationality of his child.

As regards the question of the direct effect of the provision included in an agreement concluded by the Community with a non-member country, the Commission recalls the criteria laid down by the Court in its case-law and, in particular and most recently, in its judgment in Demirel.

The object of the Agreement is to promote overall cooperation between the Contracting Parties with the view to contributing to the economic and social development of Morocco and helping to strengthen relations between the Parties. Article 51(1) of the Agreement which provides that the Contracting Parties are to take any general or specific measures required to fulfil their obligations under the Agreement merely underlines the binding character of the Agreement without prejudging the question of the direct effect which might come to be attached to certain of its provisions.

Such direct effect must be accorded to Article 40 of the Agreement which prohibits all discrimination as regards working conditions or remuneration. These are sufficiently precise concepts and no further measure is required for the application, in regard to them, of the principle of non-discrimination. The concepts of working conditions and remuneration does not include however the allocation d'attente at issue in the main proceedings. Article 40 cannot be construed as covering social advantages within the meaning of Article 7(2) of Regulation No 1612/68, a provision which applies only to Community nationals. Even if the Agreement mentions social advantages, that concept would not have the same scope as that accorded to it in Regulation No 1612/68 in view of the particular purposes of the EEC Treaty in the matter of freedom of movement. Finally, Article 40 refers exclusively to workers and not to the members of their families.

The allocation d'attente does however constitute a social security benefit within the meaning of Article 41(1) of the Agreement which, unlike Article 40, expressly mentions the members of the family. These provisions may not however be regarded as having direct effect. The application of the principles laid down in Article 41 is made subject, by virtue of Article 42, to action on the part of the Cooperation Council. The Community's delegation within the Cooperation Council has been unable to obtain the agreement of Morocco for the purpose of adopting implementing decisions.

The Commission therefore proposes that the question should be answered as follows:

‘The provisions of Article 41 of the Cooperation Agreement between the European Economic Community and the Kingdom of Morocco signed at Rabat on 27 April 1976 and concluded on behalf of the European Economic Community by Council Regulation No 2211/78 of 26 September 1978 do not constitute rules of Community law which are directly applicable in the internal legal orders of the Member States.’

Judge-Rapporteur

* Language of the case: French.

31 January 1991 (*1)

In Case C-18/90,

REFERENCE to the Court under Article 177 of the EEC Treaty by the Cour du travail, Liège, for a preliminary ruling in the proceedings pending before that court between

Office national de l'emploi (Onem)

and

on the interpretation of certain provisions of the Cooperation Agreement between the European Economic Community and Kingdom of Morocco,

composed of: O. Due, President, G. F. Mancini, G. C. Rodríguez Iglesias and M. Díez de Velasco (Presidents of Chambers), Sir Gordon Slynn, C. N. Kakouris, R. Joliet, F. A. Schockweiler and P. J. G. Kapteyn, Judges,

Advocate General: W. Van Gerven

Registrar: J. A. Pompe, Deputy Registrar

after considering the observations submitted on behalf of

Onem, by C. Derwael, of the Brussels Bar,

Bahia Kziber, by Michèle Baiwir and René Jamar, trade union representatives,

the German Government, by Ernst Roder and Joachim Karl, officials in the Federal Ministry of the Economy, acting as Agents,

the French Government, by Philippe Pouzoulet, Deputy Director, and Claude Chavance, Attaché Principal, in the Legal Affairs Directorate of the Ministry of Foreign Affairs, acting as Agents,

the Commission of the European Communities, by Jean-Claude Séché, Legal Adviser, acting as Agent,

having regard to the Report for the Hearing,

after hearing the oral argument presented by Onem, Miss Kziber, the French Government and the Commission at the hearing on 6 November 1990,

after hearing the Opinion of the Advocate General at the sitting on 6 December 1990,

gives the following

1This request for a preliminary ruling concerns the interpretation of Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (OJ 2012 L 26, p. 1), as amended by Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 (OJ 2014 L 124, p. 1) (‘Directive 2011/92’).

2The request has been made in proceedings between, on the one hand, Waltham Abbey Residents Association and, on the other hand, An Bord Pleanála (Planning Board, Ireland; ‘the Board’), Ireland and the Attorney General (Ireland), concerning authorisation granted by the Board for a strategic residential housing development.

Legal context

European Union law

Directive 2011/92

Recitals 7 to 9 of Directive 2011/92 state:

‘(7) Development consent for public and private projects which are likely to have significant effects on the environment should be granted only after an assessment of the likely significant environmental effects of those projects has been carried out. …

(8) Projects belonging to certain types have significant effects on the environment and those projects should, as a rule, be subject to a systematic assessment.

(9) Projects of other types may not have significant effects on the environment in every case and those projects should be assessed where the Member States consider that they are likely to have significant effects on the environment.’

Article 2(1) of that directive provides:

‘Member States shall adopt all measures necessary to ensure that, before development consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects on the environment. Those projects are defined in Article 4.’

Under Article 3(1) of that directive:

‘The environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each individual case, the direct and indirect significant effects of a project on the following factors:

…

(b) biodiversity, with particular attention to species and habitats protected under [Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7), as amended by Council Directive 2013/17/EU of 13 May 2013 (OJ 2013 L 158, p. 193) (“Directive 92/43”)] and Directive 2009/147/EC [of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (OJ 2010 L 20, p. 7)];

…’

Article 4 of Directive 2011/92 provides:

‘1. Subject to Article 2(4), projects listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10.

2. Subject to Article 2(4), for projects listed in Annex II, Member States shall determine whether the project shall be made subject to an assessment in accordance with Articles 5 to 10. Member States shall make that determination through:

(a) a case-by-case examination;

(b) thresholds or criteria set by the Member State.

Member States may decide to apply both procedures referred to in points (a) and (b).

Where a case-by-case examination is carried out or thresholds or criteria are set for the purpose of paragraph 2, the relevant selection criteria set out in Annex III shall be taken into account. Member States may set thresholds or criteria to determine when projects need not undergo either the determination under paragraphs 4 and 5 or an environmental impact assessment, and/or thresholds or criteria to determine when projects shall in any case be made subject to an environmental impact assessment without undergoing a determination set out under paragraphs 4 and 5.

Where Member States decide to require a determination for projects listed in Annex II, the developer shall provide information on the characteristics of the project and its likely significant effects on the environment. The detailed list of information to be provided is specified in Annex IIA. The developer shall take into account, where relevant, the available results of other relevant assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The developer may also provide a description of any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

The competent authority shall make its determination, on the basis of the information provided by the developer in accordance with paragraph 4 taking into account, where relevant, the results of preliminary verifications or assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The determination shall made available to the public and:

(a) where it is decided that an environmental impact assessment is required, state the main reasons for requiring such assessment with reference to the relevant criteria listed in Annex III; or

(b) where it is decided that an environmental impact assessment is not required, state the main reasons for not requiring such assessment with reference to the relevant criteria listed in Annex III, and, where proposed by the developer, state any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

Member States shall ensure that the competent authority makes its determination as soon as possible and within a period of time not exceeding 90 days from the date on which the developer has submitted all the information required pursuant to paragraph 4. In exceptional cases, for instance relating to the nature, complexity, location or size of the project, the competent authority may extend that deadline to make its determination; in that event, the competent authority shall inform the developer in writing of the reasons justifying the extension and of the date when its determination is expected.’

Annex II.A of that directive contains the list of ‘information to be provided by the developer on the projects listed in Annex II’. That list reads as follows:

‘1. A description of the project, including in particular:

(a) a description of the physical characteristics of the whole project and, where relevant, of demolition works;

(b) a description of the location of the project, with particular regard to the environmental sensitivity of geographical areas likely to be affected.

2. A description of the aspects of the environment likely to be significantly affected by the project.

(a) the expected residues and emissions and the production of waste, where relevant;

(b) the use of natural resources, in particular soil, land, water and biodiversity.

4. The criteria of Annex III shall be taken into account, where relevant, when compiling the information in accordance with points 1 to 3.’

Annex III to that directive sets out the ‘criteria to determine whether the projects listed in Annex II should be subject to an environmental impact assessment’.

Directive 2014/52

Recitals 11 and 29 of Directive 2014/52 state:

‘(11) The measures taken to avoid, prevent, reduce and, if possible, offset significant adverse effects on the environment, in particular on species and habitats protected under [Directive 92/43] and Directive 2009/147 …, should contribute to avoiding any deterioration in the quality of the environment and any net loss of biodiversity, in accordance with the [European] Union’s commitments in the context of the [United Nations Convention on Biological Diversity, signed in Rio de Janeiro on 5 June 1992,] and the objectives and actions of the Union Biodiversity Strategy up to 2020 laid down in the [Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions] of 3 May 2011 entitled ‘Our life insurance, our natural capital: an EU biodiversity strategy to 2020’ [(COM(2011) 244 final)]

…

(29) When determining whether significant effects on the environment are likely to be caused by a project, the competent authorities should identify the most relevant criteria to be considered and should take into account information that could be available following other assessments required by Union legislation in order to apply the screening procedure effectively and transparently. In this regard, it is appropriate to specify the content of the screening determination, in particular where no environmental impact assessment is required. Moreover, taking into account unsolicited comments that might have been received from other sources, such as members of the public or public authorities, even though no formal consultation is required at the screening stage, constitutes good administrative practice.’

Directive 92/43

Article 6(3) of Directive 92/43 provides:

‘Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.’

Article 12(1) of that directive provides:

‘Member States shall take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV(a) in their natural range, prohibiting:

(a) all forms of deliberate capture or killing of specimens of these species in the wild;

(b) deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration;

(c) deliberate destruction or taking of eggs from the wild;

(d) deterioration or destruction of breeding sites or resting places.’

Point (a) of Annex IV to that directive mentions ‘all species’ of bats belonging to the suborder of ‘microchiroptera’.

Irish law

By judgment of 16 January 1990 which was received at the Court on 22 January 1990 the Cour du travail (Labour Court), Liège (Belgium), referred a question to the Court of Justice under Article 177 of the EEC Treaty for a preliminary ruling on the interpretation of the Cooperation Agreement between the European Economic Community and the Kingdom of Morocco signed in Rabat on 27 April 1976 and concluded on behalf of the Community by Council Regulation No 2211/78 of 26 September 1978 (Official Journal L 264, p. 1, hereinafter referred to as ‘the Agreement’).

2That question was raised in proceedings between Bahia Kziber, a Moroccan national, and the Belgian Office national de l'emploi concerning a refusal to grant unemployment allowances.

3It is apparent from the file in the main proceedings that Miss Kziber lives with her father, a Moroccan national, who is a pensioner in Belgium where he had worked as a wage-earner.

4The Belgian Royal Decree of 20 December 1963 relating to employment and unemployment (Moniteur belge of 18.1.1964, p. 506) provides, in Article 124 thereof, for the grant of unemployment allowances for the benefit of young workers who have completed vocational studies or apprenticeships. As regards foreign and stateless workers, Article 125 of the Royal Decree provides that they are not to be entitled to unemployment allowances except within the limits of an international convention.

5The Office national de l'emploi refused to grant the unemployment allowance to Miss Kziber on the ground of her nationality. She brought proceedings against that decision before the Belgian labour courts.

6The Cour du travail (Labour Court), Liège, before which the matter had been brought on appeal, decided to stay the proceedings until the Court of Justice had given a preliminary ruling on the following question :

‘May a Member State refuse to grant, on the grounds of nationality, social advantage within the meaning of Article 7(2) of Regulation No 1612/68 to the dependent children of the worker who is the national of a non-member country (Morocco), with which the European Economic Community has concluded a cooperation agreement containing, in the field of social security, a clause providing for the equal treatment of migrant workers from that country employed in the Community and of members of their families living with them?’

7Reference is made to the Report for the Hearing for a fuller account of the facts of the case in the main proceedings, the course of the procedure and the written observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.

8In order to define the purpose of the question submitted by the Cour du travail, Liège, it is necessary to recall to mind the objectives and the relevant provisions of the Agreement.

9The objective of the Agreement is, according to Article 1 thereof, to promote overall cooperation between the Contracting Parties with the view to contributing to the economic and social development of Morocco and helping to strengthen relations between the Parties. That cooperation is instituted, under Title I, in the economic technical and financial fields, under Title II, in the field of trade cooperation, and, under Title III, in the field of labour.

10Article 40, which forms part of Title III relating to cooperation in the field of labour, provides that each Member State is to grant to workers of Moroccan nationality employed in its territory treatment free from any discrimination based on nationality, as regards working conditions or remuneration.

11Article 41, which forms part of the same Title III provides, in paragraph 1, that subject to the provisions of the following paragraphs, workers of Moroccan nationality and any members of the family living with them are to 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. Paragraph 2 of that article grants to Moroccan worker the benefit of the aggregation of periods of insurance, employment or residence completed by such workers in the various Member States in respect of certain benefits; paragraph 3 grants them the benefit of family allowances for members of their families who are resident in the Community; paragraph 4 allows them to transfer freely to Morocco pensions or annuities. Article 41(5) establishes the principle of reciprocity in favour of workers who are nationals of the Member States as regards the treatment specified in paragraphs 1, 3 and 4 of that article.

12Article 42 of the Agreement entrusts the Cooperation Council with the task of adopting provisions to implement the principles set out in Article 41.

13Analysed in the light of those provisions of the Agreement, the question referred to the Court for a preliminary ruling must be understood as seeking, in substance, to ascertain whether Article 41(1) of the Agreement precludes a Member State from refusing to grant an allocation d'attente provided by its legislation for young persons in search of employment to a member of a family of a worker of Moroccan nationality living with him, on the ground that the person in search of employment is of Moroccan nationality.

14In order to give a helpful answer to that question it is first necessary to determine whether Article 41(1) of the Agreement may be relied on before the national court and, secondly, whether that provision covers the situation of a member of the family of a migrant Moroccan worker who applies for an allowance of the type at issue in the main proceedings.

The direct effect of Article 41(1) of the Agreement

15As the Court has consistently held (see judgment in Case 12/86 Demirel [1987] ECR 3719), a provision of an agreement concluded by the Community with non-member countries must be regarded as being directly applicable when, regard being had to its wording and to the purpose and nature of the agreement itself, the provision contains a clear and precise obligation which is not subject, in its implementation or effects, to the adoption of any subsequent measure.

16In order to determine whether Article 41(1) of the Agreement satisfies those criteria, it is necessary in the first place to examine the terms of that provision.

17In that respect, it must be held that Article 41(1) 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.

18The fact that Article 41(1) states that that prohibition of discrimination applies only subject to the provisions of the following paragraphs means that, as regards the aggregation of periods, the grant of family benefits and the transfer to Morocco of pensions and annuities, that prohibition of discrimination is guaranteed only within the limits of the conditions laid down in paragraphs 2, 3 and 4 of Article 41. That reservation may not, however, be interpreted as divesting the prohibition of discrimination of its unconditional character in respect of any other question which arises in the field of social security.

19Similarly, the fact that Article 42(1) provides for the implementation of the principles set out in Article 41 by the Cooperation Council may not be construed as calling in question the direct applicability of a provision which is not subject, in its implementation or effects, to the adoption of any subsequent measure. The role assigned to the Cooperation Council by Article 42(1) consists, as the Advocate General has pointed out in section 12 of his Opinion, in facilitating compliance with the prohibition of discrimination and, if necessary, in adopting the measures required for the implementation of the principle of aggregation embodied in paragraph 2 of Article 41 but it may not be regarded as rendering conditional the immediate application of the principle of non-discrimination.

20The finding that the principle of non-discrimination embodied in Article 41(1) is capable of directly governing the situation of a Moroccan worker and of the members of his family living with him in the Member States of the Community is not, moreover, contradicted by a consideration of the purpose and the nature of the Agreement of which that provision forms part.

21The object of the Agreement, as has already been stated, is to promote overall cooperation between the Contracting Parties, in particular in the field of labour. The fact that the Agreement is intended essentially to promote the economic development of Morocco and that it confines itself to instituting cooperation between the Parties without referring to Morocco's association with or future accession to the Communities is not such as to prevent certain of its provisions from being directly applicable.