A Survey of Principal Decisions of the European Court of Justice Pertaining to International Law in 1990-91 1. Facts 2. The Judgment 3. Analysis II. Kziber Case C-18/90, National Employment Office v. B. Kziber, Judgment of 31 January 1991 (not yet reported) 1. Facts Bahia Kziber, a national of Morocco, lived with her parents in Belgium. After finishing her studies, Kziber applied for unemployment benefits which were denied her. According to the Belgian Office of Employment, the basis for the denial was her Moroccan nationality. Kziber appealed the denial citing Article 41 of the International Agreement between the EC and Morocco, 27 April 1976.5 Article 41 contains an interdiction of discrimination in social security on the grounds of nationality. The competent Belgian Court (Labor Court of Liege) asked the ECJ (through Article 177) about the meaning and direct effect of Article 41 and whether according to its wording and situation in the Agreement, Article 41 could be deemed not to have direct effect. 2. The Judgment The ECJ gives direct effect to dispositions of international agreements if they contain a clear, precise and unconditional obligation and if the objectives of the Agreement sustain that interpretation. All of these requisites, as defined in its earlier case-law are here broadly interpreted. The Court began its analysis by defining the purpose of the EC-Morocco Accord, `the global cooperation between the EC and Morocco ... favoring and developing the economic and social conditions of the country...'.6 It then proceeded to examine not the article at issue (Article 41(1)), but instead a separate article (Article 40) one that is more clearly directly effective. Since Article 40 consists of an interdiction of discrimination in conditions of work and salary based on nationality, the Court associated it with Article 41(1), which prohibits discrimination in Social Security. Thus, when the Court finally approached Article 41(1) (the interdiction of discrimination against any worker and family in areas of social security on which the case turns), it had already built a presumption in favour of direct effect. The Court then examined the possibility of direct effect of 41(1) on its own, applied to the facts of the case. Invoking Demirel, the simple test of looking at the terms, nature and object of the Agreement was applied and the Court found a clear, precise and unconditional obligation in 41(1). The last sentence of Article 41(1) subjects the non-discrimination principle to the `reserves of the following paragraphs'. But by the Court's analysis, this refers only to the rest of the paragraphs of the same Article 41 (41(2), 41(3), 41(4)). All of these confer other benefits on the worker, none limits the applicability of 41(1). Thus, the Court refused to let Article 41(1)'s principle of non-discrimination be conditioned by Article 42, which gives the Council of Cooperation the task of developing rules for the application of all principles enunciated in Article 41. And, since the interdiction can thus be read as unconditional, the possibility of reserve serves only to adapt the principle to the national legal regimes, not to condition its application. The Advocate General had suggested in his conclusions that Article 42 only requires the Council to facilitate respect for the interdiction, but does not condition the application of the principle. The Court fully endorsed this view; direct effect is granted to Article 41(1) once the Court has ensured that the principle of non discrimination is susceptible of directly regulating the situation of the worker and her family and that this possibility does not contradict the object and nature of the Agreement to which the principle belongs. 3. Analysis This decision repeats the doctrine of direct effect of provisions of international agreements. They will be given direct effect if they contain clear, precise and unconditional obligations. But it adds a presumption against conditionality, at least in the case of interdictions of discrimination. Article 41(1) concludes with a `subject to reserves' clause and Article 42 clearly tells the Council of Cooperation to develop the principles of Article 41. The Court, however, disregards both elements in so far as they would support the conditionality of the principle and states that reserves, in such cases, cannot make the interdiction more conditional. Moreover, in this decision the word `conditional' does not imply that Member States or parties to the Agreement have a margin of appreciation of the interdiction. On the contrary, if there is a possibility that the principle could directly regulate without any further development, that is considered to be the only possibility. 5 Concluded by Regulation 2211/78 of 26 September 1978, OJ L 264/1. 6 (unofficial translation).
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