Judgment of the Court of 11 June 1991. - United Kingdom of Great Britain and Northern Ireland, French Republic and the Federal Republic of Germany v Council of the European Communities. - Second phase of the programme on cooperation between universities and industry regarding training in the field of technology (Comett II) (1990-1994) - Action for annulment - Legal basis - Vocational training - Research. - Joined cases C-51/89, C-90/89 and C-94/89.



European Court reports 1991 Page I-02757



Summary

Parties

Grounds

Decision on costs

Operative part



Keywords

++++

1. EEC Treaty - Article 235 - Scope

2. Social policy - Common vocational training policy - Adoption by the Council of legal measures providing for Community action and imposing obligations of cooperation on the Member States - Legal basis - Article 128 of the Treaty

(EEC Treaty, Art. 128)

3. Measures adopted by the Community institutions - Drafting procedure - Legislative measures and budgetary measures - Subject to different procedural requirements

4. Social policy - Common vocational training policy - Adoption by the Council of the second phase of the programme on cooperation between universities and industry regarding training in the field of technology (Comett II) - Account taken by the programme of the requirements of consistency and complementarity with Community measures in the area of scientific research - No bearing on the reference to Article 128 of the Treaty as the sole legal basis

(EEC Treaty, Art. 128; Council Decision 89/27)

5. Social policy - Common vocational training policy - Vocational training - Concept - Continuing training - Included

(EEC Treaty, Art. 128)

Summary

1. It follows from the very wording of Article 235 of the Treaty that its use 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. Article 128 of the Treaty must be interpreted as conferring on the Council the power to adopt legal measures which provide for Community action in the sphere of vocational training and impose corresponding obligations of cooperation on the Member States.

3. Under the scheme of the Treaty, the conditions under which legislative powers and budgetary powers are exercised are not the same. Consequently, the requirements of the budgetary procedure laid down for making available the appropriations needed for the implementation of a legislative measure cannot have any implications regarding the procedural requirements for the adoption of the measure in question.

4. The programme on cooperation between universities and industry regarding training in the field of technology ("Comett II" - second phase) seeks to ensure intra-Community cooperation between universities and industry regarding initial and continuing training in technology, in particular advanced technology, the development of highly skilled human resources and hence the competitiveness of European industry. From this it follows that the programme at issue is directed at vocational training and is founded, so far as its legal basis is concerned, on Article 128 of the Treaty alone. This conclusion is not undermined by the fact that such vocational training is envisaged as a means of facilitating both the exploitation of the results of scientific research and technological development within the Community, even though it has had the result of imposing an obligation on the Commission to ensure that the programme is consistent with other Community research and development projects. Nor is it undermined by the fact that the activities covered by the grants allocated to promote transnational exchanges, which are expressly singled out as training activities, may have a connection, even a close one, with scientific research and technological development.

5. According to its wording, Article 128 is directed at a common vocational training policy and does not draw any distinction between initial training and continuing training. Consequently, the latter type of training cannot be excluded from the concept of vocational training without restricting that concept in an arbitrary manner.

Parties

In Joined Cases

C-51/89,

United Kingdom of Great Britain and Northern Ireland, represented by J. Collins, Treasury Solicitor, acting as Agent, and Richard Plender, QC, with an address for service in Luxembourg at the British Embassy, 14 Boulevard Roosevelt,

applicant,

v

Council of the European Communities, represented by Arthur Alan Dashwood, a Director in its Legal Department, and Marta Arpio, an Administrator in the same Department, acting as Agents, with an address for service in Luxembourg at the office of Joerg Kaeser, Manager of the Legal Directorate of the European Investment Bank, 100 Boulevard Konrad Adenauer,

defendant,

supported by

Kingdom of Spain, represented by Javier Conde de Saro, Director General for Community Legal and Institutional Coordination, and Rosario Silva de Lapuerta, Abogado del Estado, a member of the State Legal Department for matters before the Court of Justice, acting as Agents, with an address for service in Luxembourg at the Spanish Embassy, 4-6 Boulevard Emmanuel Servais,

and by

Commission of the European Communities, represented by its Principal Legal Adviser Gregorio Garzón Clariana and by Julian Currall, a member of its Legal Department, acting as Agents, with an address for service in Luxembourg at the office of Guido Berardis, also a member of its Legal Department, Wagner Centre, Kirchberg,

interveners,

C-90/89,

French Republic, represented by Edwige Belliard, Deputy Director of Legal Affairs at the Ministry of Foreign Affairs, acting as Agent, and Marc Giacomini, Deputy Agent, with an address for service in Luxembourg at the French Embassy, 9 Boulevard Prince Henri,

applicant,

v

Council of the European Communities, represented by Arthur Alan Dashwood, a Director in its Legal Department, and Marta Arpio, an Administrator in the same Department, acting as Agents, with an address for service in Luxembourg at the office of Joerg Kaeser, Manager of the Legal Directorate of the European Investment Bank, 100 Boulevard Konrad Adenauer,

defendant,

supported by

Kingdom of Spain, represented by Javier Conde de Saro, Director-General for Community Legal and Institutional Coordination, and Rosario Silva de Lapuerta, Abogado del Estado, a member of the State Legal Department for matters before the Court of Justice, acting as Agents, with an address for service in Luxembourg at the Spanish Embassy, 4-6 Boulevard Emmanuel Servais,

and by

Commission of the European Communities, represented by its Principal Legal Adviser Gregorio Garzón Clariana and by Julian Currall, a member of its Legal Department, acting as Agents, with an address for service in Luxembourg at the office of Guido Berardis, also a member of its Legal Department, Wagner Centre, Kirchberg,

interveners,

and C-94/89,

Federal Republic of Germany, represented by Martin Seidel, Ministerialrat at the Federal Ministry for Economic Affairs, acting as Agent, assisted by Ralf Vieregge, Rechtsanwalt, Cologne, with an address for service in Luxembourg at the Embassy of the Federal Republic of Germany, 20-22 Avenue Emile Reuter,

applicant,

v

Council of the European Communities, represented by Arthur Alan Dashwood, a Director in its Legal Department, and Brigitte Laloux, a member of its Legal Department, acting as Agents, with an address for service in Luxembourg at the office of Joerg Kaeser, Manager of the Legal Directorate of the European Investment Bank, 100 Boulevard Konrad Adenauer,

defendant,

supported by

Kingdom of Spain, represented by Javier Conde de Saro, Director General for Community Legal and Institutional Coordination, and Rosario Silva de Lapuerta, Abogado del Estado, a member of the State Legal Department for matters before the Court of Justice, acting as Agents, with an address for service in Luxembourg at the Spanish Embassy, 4-6 Boulevard Emmanuel Servais,

and by

Commission of the European Communities, represented by its Principal Legal Adviser Gregorio Garzón Clariana and by Julian Currall, a member of its Legal Department, acting as Agents, with an address for service in Luxembourg at the office of Guido Berardis, also a member of its Legal Department, Wagner Centre, Kirchberg,

interveners,

APPLICATIONS for the annulment of Council Decision 89/27/EEC of 16 December 1988 adopting the second phase of the programme on cooperation between universities and industry regarding training in the field of technology (Comett II) (1990-1994) (Official Journal 1989 L 13, p. 28),

THE COURT,

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

Advocate General: G. Tesauro,

Registrar: D. Louterman, Principal Administrator,

having regard to the Report for the Hearing,

after hearing the oral argument submitted by the parties at the hearing on 8 January 1991, at which the French Republic was represented by P. Pouzoulet, Assistant Director of Legal Affairs at the Ministry of Foreign Affairs, and C. Chavance, civil servant, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 21 February 1991,

gives the following

Judgment

Grounds

1 By applications lodged at the Court Registry on 23 February, 17 March and 21 March 1989 respectively, the United Kingdom of Great Britain and Northern Ireland, the French Republic and the Federal Republic of Germany applied under the first paragraph of Article 173 of the EEC Treaty for the annulment of Council Decision 89/27/EEC of 16 December 1988 adopting the second phase of the programme on cooperation between universities and industry regarding training in the field of technology (Comett II) (1990-1994) (Official Journal 1989 L 13, p. 28, hereinafter referred to as "the contested decision").

2 The Council adopted the contested decision on the basis of Article 128 of the EEC Treaty and its own Decision 63/266/EEC of 2 April 1963 laying down general principles for implementing a common vocational training policy (Official Journal, English Special Edition 1963-1964, p. 25).

3 The applicant governments' fundamental contention is that the legal basis of the contested decision is insufficient in that it ought to have been based not only on Article 128 but also on Article 235 of the EEC Treaty.

4 The Kingdom of Spain and the Commission intervened in support of the submissions made by the Council.

5 Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the course of the procedure and the submissions and arguments of the parties, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.

6 As a preliminary point it should be noted that, as the Court has already held, it follows from the very wording of Article 235 of the Treaty that its use 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 (judgment of 26 March 1987 in Case 45/86 Commission v Council [1987] ECR 1493).

7 It is therefore necessary to consider the various submissions made by the applicant governments in support of their view that the Council had no power to adopt the contested decision on the legal basis of Article 128 of the Treaty alone.

Submissions based on the operational nature of the Comett II programme and its budgetary implications

8 The applicant governments claim essentially that the contested decision implements an operational programme encompassing a series of projects which go well beyond the laying down of the general principles referred to in Article 128. They add that a measure with budgetary implications as far-reaching as those of the Comett II programme cannot be adopted on the basis of that provision alone.

9 It is sufficient in this regard to point out that the arguments on which the applicants rely in the present case are identical to those rejected by the Court in its judgment of 30 May 1989 in Case 242/87 Commission v Council [1989] ECR 1425, which was delivered during the course of the present proceedings.

10 In that judgment, the Court interpreted Article 128 as conferring on the Council the power to adopt legal measures which provide for Community action in the sphere of vocational training and impose corresponding obligations of cooperation on the Member States.

11 It also follows from that judgment that under the scheme of the Treaty the conditions under which legislative powers and budgetary powers are exercised are not the same. Consequently, the requirements of the budgetary procedure laid down for making available the appropriations needed for the implementation of the programme at issue cannot have any implications regarding the procedural requirements for the adoption of the contested decision, since the latter requirements fall under a completely separate provision.

12 It follows that the submissions of the applicant governments based on the operational character of the Comett II programme and on its budgetary implications must be rejected.

The scope of vocational training

13 The applicant governments contend that the programme established by the contested decision goes beyond the scope of vocational training as referred to in Article 128 of the Treaty, in so far as some of its objectives and some of the projects for which it provides also touch on the fields of scientific research and technological development. They consider that the views expressed by the Court in its judgment of 30 May 1989 in Commission v Council, cited above, to the effect that the Erasmus programme included certain features coming within the scope of research are equally applicable to the Comett II programme.

14 According to Article 1(1) of the contested decision, the Comett II programme relates to intra-Community cooperation between universities and industry regarding initial and continuing training in the field of, in particular, advanced technology.

15 According to the first paragraph of Article 3, the programme "aims at reinforcing training in, in particular, advanced technology, the development of highly skilled human resources and the competitiveness of European industry. It is centred on the changing skill requirements of industry and its personnel. ... Through the training projects it supports, Comett II will contribute to the utilization and exploitation of the results, methods and tools of technology developed by the Community policy for research and development. Comett II will facilitate innovation and technology transfer as well as the balanced economic and social development of the Community."

16 It is "in this context" that the second paragraph of that article sets out a series of objectives which, taken as a whole, centre on technology training.

17 It is clear from the wording of those provisions that the programme at issue is directed at vocational training.

18 This conclusion is not undermined by the fact that such vocational training is envisaged as a means of facilitating both the exploitation of the results of scientific research and technological development within the Community.

19 It is true that Article 5(10) of the contested decision provides, as the applicant governments have emphasized, that "the Commission shall ensure that Comett II is consistent with other Community research and development projects already programmed".

20 That provision cannot, however, mean that the programme at issue is to be regarded as a research and development programme. It simply expresses a need for consistency between the Comett II programme and projects undertaken in the context of Community policies other than those relating to vocational training.

21 That provision also reflects the complementary nature of the vocational training envisaged in the programme in question in relation to scientific research. It is apparent from the fifth recital in the preamble to the contested decision that technological and industrial cooperation in the field of research and development, introduced by means of various specific projects, "must be supported by parallel efforts in the field of vocational training".

22 These requirements of consistency and complementarity are also addressed by the second paragraph of point 2 in the Annex to the contested decision, which provides that the selection of projects under the Comett II programme will take account of the development of the framework programme for technology research and development, in order to promote the training schemes resulting from Community research while avoiding duplication.

23 Finally, the specific measures provided for under point 4 of the Annex are aimed, according to their wording, at training activities rather than research activities.

24 The applicant governments, however, submit that the allocation of grants provided for under point 4(B) of the Annex also relates to scientific research activities.

25 That argument cannot be accepted.

26 The measures provided for under point 4(B) ("transnational exchanges") entail the allocation of grants, in order to promote such exchanges, to students undergoing periods of from three to twelve months' training in industry in another Member State (subparagraph (i) ), to persons who have completed their initial training and take up placements of six months to two years in a business undertaking in another Member State for the purpose of taking part in an industrial development project within that undertaking (subparagraph (ii) ), and, finally, to personnel seconded from universities and industry to industry or a university respectively in another Member State to bring their skills to the industry or university in question for the improvement of the training activities and the professional practices of the host organization.

27 The mere fact that the activities covered by these grants, which are expressly singled out as training activities, may have a connection, even a close one, with scientific research and technological development cannot be sufficient for the Comett II programme to be regarded as a research programme.

28 The Court' s reasoning in its judgment of 30 May 1989, cited above, concerning the Erasmus programme cannot be transposed to the facts of the present case.

29 The conclusion that the Erasmus programme also fell within the sphere of scientific research was based on the finding that scientific research is characteristically one of the proper functions of a university (paragraph 34) and on the fact that the objectives of the programme and at least some of the projects envisaged were directed generally at cooperation between universities and the activities of university staff, including scientific research; the Comett II programme, on the other hand, relates only to cooperation between universities and industry with regard to training.

30 It was also contended that the contested decision goes beyond the sphere of vocational training within the meaning of Article 128, since it provides for measures relating to continuing training, that is to say, advanced training, which do not come within that concept.

31 That argument must also be rejected. According to the wording of Article 128, it is directed at a common vocational training policy and does not draw any distinction between initial training and continuing training. Consequently, the latter type of training cannot be excluded from the concept of vocational training without restricting that concept in an arbitrary manner.

32 It should also be pointed out that Decision 63/266/EEC, cited above, includes continuing training among the general principles relating to vocational training (see the sixth recital in the preamble to the decision, the third paragraph of the first principle, paragraphs (f) and (g) of the second principle and the second paragraph of the ninth principle).

33 It must therefore be concluded that the Comett II programme does not go beyond the scope of vocational training. The submission put forward in this connection must therefore be rejected.

34 It follows from all the foregoing that the applications must be dismissed in their entirety.

Decision on costs

Costs

35 Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs. As the United Kingdom of Great Britain and Northern Ireland, the French Republic and the Federal Republic of Germany have been unsuccessful in their submissions, they must be ordered jointly and severally to pay the costs, including those incurred by the interveners.

Operative part

On those grounds,

THE COURT

hereby:

1. Dismisses the applications;

2. Orders the United Kingdom of Great Britain and Northern Ireland, the French Republic and the Federal Republic of Germany jointly and severally to pay the costs, including those incurred by the interveners.