Keywords

Summary



Keywords

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1. EEC Treaty ° Article 235 ° Scope

2. Acts of the institutions ° Choice of legal basis ° Criteria

3. Community law ° Principles ° Equal treatment ° Discrimination on grounds of nationality ° Prohibited ° Access to vocational training ° Consequences ° Right of entry and residence of a national of another Member State admitted to a vocational training course ° Directive 90/366/EEC on the right of residence for students ° Legal basis ° Second paragraph of Article 7 of the EEC Treaty

(EEC Treaty, Art. 7, second para.; Council Directive 90/366)

4. Actions for annulment ° Judgment annulling a measure ° Effects ° Limitation by the Court ° Applied to a directive

(EEC Treaty, Art. 174(2))

Summary

1. It follows from the very wording of Article 235 of the Treaty 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.

2. 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.

3. 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.

Designed to uphold and regulate the right of residence of students who are nationals of a Member State, Directive 90/366 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 of the Treaty.

Having regard to the content of the directive and in view of the fact that 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, the Council was competent to adopt Directive 90/366 on the basis of the second paragraph of Article 7 of the Treaty. Consequently, it was not entitled to rely on Article 235 and the directive must therefore be annulled.

4. Outright annulment of Directive 90/366 on the right of residence for students 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. Moreover, the essential legislative content of the directive, for which the period for implementation by the Member States has already expired, is not challenged either by the institutions or by the Member States. In those circumstances, important reasons of legal certainty, comparable to those which operate in cases where certain regulations are annulled, justify a decision by the Court, in the exercise of the power expressly conferred on it by Article 174(2) of the EEC Treaty in such cases, 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.