CELEX: 61990CJ0295
Directive 90/366/EEC on the right of residence for students
Legal basis
Prerogatives of the European Parliament

Grounds
1 By application lodged at the Court Registry on 28 September 1990, the European Parliament brought an action for the annulment of Council Directive 90/366/EEC of 28 June 1990 on the right of residence for students (OJ 1990 L 180, p. 30).
2 The legal basis of that directive is Article 235 of the EEC Treaty, whereas the Commission had proposed that it should be the second paragraph of Article 7.
3 In support of its application, the Parliament puts forward three pleas in law.
4 Primarily, it claims that by failing to choose the proper legal basis, namely the second paragraph of Article 7 of the EEC Treaty, the Council failed to respect the prerogatives of the Parliament in the legislative process since the latter provision requires the participation of that institution under the cooperation procedure, whilst Article 235 merely requires it to be consulted.
5 In the alternative, the Parliament maintains that the Council did not provide a sufficient statement of reasons for relying on Article 235, thus depriving the Parliament of the possibility of checking whether its prerogatives had been respected in the legislative process.
6 In the further alternative, it maintains that the Council should have given reasons for its refusal to accept certain amendments proposed by the Parliament.
7 Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the procedure and the pleas in law and arguments of the parties, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.
Admissibility
8 The United Kingdom submits that the application is inadmissible since, by virtue of the case-law of the Court, the Parliament' s right of action arises only where the Commission disagrees with the Parliament regarding the latter' s legal appraisal of its own prerogatives, a condition that is not fulfilled in the present case.
9 That argument, which the United Kingdom bases on the judgment of the Court in Case C-70/88 Parliament v Council [1990] ECR I-2041, cannot be upheld. As is apparent from paragraph 27 of that judgment, an action for annulment brought by the Parliament is admissible provided that the action seeks only to safeguard its prerogatives and is founded only on submissions alleging their infringement.
10 It follows that the present action, which meets that requirement, must be declared admissible.
The legal basis
11 It must be borne in mind at the outset that, as the Court has held (primarily in its judgment in Case 45/86 Commission v Council [1987] ECR 1493, paragraph 13), it follows from the very wording of Article 235 that recourse to that provision as the legal basis for a measure is justified only where no other provision of the Treaty gives the Community institutions the necessary power to adopt the measure in question.
12 It is therefore necessary to consider whether the Council was competent to adopt the contested directive on the basis of the second paragraph of Article 7, as maintained by the Parliament and the Commission and, at the hearing, the United Kingdom, which departed from its initial position following the judgment of the Court in Case C-357/89 Raulin v Minister van Onderwijs en Wetenschappen [1992] ECR I-1027.
13 The Court has consistently held that, in the context of the organization of the powers of the Community, the choice of a legal basis for a measure must be based on objective factors which are amenable to judicial review. Those factors include, in particular, the aim and content of the measure (see, in particular, the judgment in Case C-300/89 Commission v Council [1991] ECR I-2867, paragraph 10).
14 The contested directive is designed to uphold and lay down rules governing the right of residence ° which is co-terminous with the period of training undertaken ° of students who are nationals of a Member State and of their spouses and dependent children. The beneficiaries must merely prove by any means that they are enrolled in a recognized educational establishment for the principal purpose of following a vocational training course there, are covered by sickness insurance and will not become a burden on the social assistance system of the host State. They receive from the host State a residence document, which is valid for a maximum period of one year but may be renewed. No derogation is allowed from the provisions of the directive save on grounds of public policy, public security or public health. The directive does not confer entitlement to the payment of maintenance grants by the host State.
15 As the Court pointed out in paragraph 34 of the judgment in Raulin, cited above, the right to equality of treatment regarding the conditions of access to vocational training applies not only to the requirements laid down by the educational establishment in question, such as payment of enrolment fees, but also to any measure that may prevent the exercise of that right. It is clear that a student admitted to a course of vocational training might be unable to attend the course if he did not have a right of residence in the Member State where the course takes place. It follows that the principle of non-discrimination with regard to conditions of access to vocational training deriving from Articles 7 and 128 of the EEC Treaty implies that a national of a Member State who has been admitted to a vocational training course in another Member State enjoys, in this respect, a right of residence for the duration of the course.
16 It follows that the contested directive lays down, in an area covered by the Treaty, namely that of vocational training referred to in Article 128 thereof, rules prohibiting discrimination on grounds of nationality, as envisaged in the second paragraph of Article 7.
17 The Council and the Netherlands Government nevertheless contended at the hearing that the contested directive conferred on students a right of freedom of movement similar to that of migrant workers, which is more extensive than the right of residence for the purposes of vocational training, and that, consequently, the aim and content of the directive went beyond the scope of Article 7 of the Treaty, thus necessitating recourse to Article 235 of the Treaty as a legal basis.
18 In that regard, it should be noted that the general principle laid down in the first paragraph of Article 7 can only apply subject to the special provisions of the Treaty (see in particular the judgment in Case 8/77 Sagulo, Brenca and Bakhouche [1977] ECR 1495, paragraph 11) and that the purpose of the second paragraph of Article 7 is to enable the Council to adopt, having regard to the rights and interests concerned, the provisions needed in order effectively to eliminate discrimination on grounds of nationality in areas where its powers are not based on any of the special provisions governing the various fields covered by the Treaty. However, measures adopted under the second paragraph of Article 7 of the Treaty do not necessarily have to be limited to rules governing the rights which derive from the first paragraph of that article but may also be concerned with matters in respect of which rules appear to be required in order to ensure that those rights can be effectively exercised.
19 Furthermore, the various elements of the contested directive are linked with the actual exercise of a student' s right of residence for the purposes of vocational training. It must be emphasized in particular that the right of residence conferred on the spouse and dependent children of a student appears essential to the effective exercise of the student' s right of residence, as is indeed expressly indicated in the eighth recital in the preamble to the directive.
20 It follows from all the foregoing that the Council was competent to adopt the contested directive on the basis of the second paragraph of Article 7 of the Treaty and that, consequently, it was not entitled to rely on Article 235.
21 Consequently, without its being necessary to consider the pleas in law put forward by the Parliament in the alternative, the contested directive must be annulled.
Limitation of the effects of the annulment
22 The Commission, the Netherlands Government and the United Kingdom have asked the Court, in the event of the annulment of the directive, to limit the effects of such annulment. The Parliament expressly stated that it had no objection to any such limitation.
23 It must be observed in the first place that outright annulment of the contested directive would be likely to undermine the exercise of a right conferred by the Treaty, namely a student' s right of residence for vocational training purposes.
24 Account must also be taken of the fact that, as is apparent from the information given to the Court by all the parties, the essential legislative content of the directive is not challenged either by the institutions or by the Member States.
25 Finally, account must also be taken of the fact that the period prescribed by Article 6 for the Member States to bring into force the laws, regulations and administrative provisions necessary to comply with the directive expired on 30 June 1991.
26 In those circumstances, important reasons of legal certainty, comparable to those which operate in cases where certain regulations are annulled, justify the Court' s exercising the power expressly conferred on it by Article 174(2) of the EEC Treaty in such cases, and indicating which effects of the contested directive are to be maintained.
27 In the particular circumstances of this case, it is appropriate to maintain for the time being all the effects of the directive annulled, until such time as the Council has replaced it with a new directive adopted on the proper legal basis.
Decision on costs
Costs
28 Under Article 69 (2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs. Since the Council has failed in its submissions, it must be ordered to pay the costs. Pursuant to Article 69(4), the Commission, the Netherlands Government and the United Kingdom, which intervened in the proceedings, must be ordered to bear their own costs.
Operative part
On those grounds,
THE COURT
hereby:
1. Annuls Council Directive 90/366/EEC of 28 June 1990 on the right of residence for students;
2. Declares that the effects of the directive annulled are to remain in force until the entry into force of a directive adopted on the proper legal basis;
3. Orders the Council to pay the costs;
4. Orders the Commission, the Netherlands Government and the United Kingdom to bear their own costs.