United Kingdom of Great Britain and Northern Ireland, French Republic and the Federal Republic of Germany v Council of the European Communities (C-51/89, C-90/89, C-94/89)

Contents

Judgment of the Court11 June 1991^noteIn Joined CasesC-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,vCouncil 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 Jörg Käser, Manager of the Legal Directorate of the European Investment Bank, 100 Boulevard Konrad-Adenauer,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 byCommission of the European Communities, represented by its Principal Legal Adviser Gregorio Garzon 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,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,vCouncil 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 Jörg Käser, Manager of the Legal Directorate of the European Investment Bank, 100 Boulevard Konrad-Adenauer,Kingdom of Spam, 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 byCommission of the European Communities, represented by its Principal Legal Adviser Gregorio Garzon 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,Federal Republic of Germany, represented by Martin Seidel, Ministerialrat at the Federal Ministry of 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,vCouncil 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 Jörg Käser, Manager of the Legal Directorate of the European Investment Bank, 100 Boulevard Konrad-Adenauer,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 byCommission of the European Communities, represented by its Principal Legal Adviser Gregorio Garzon 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,THE COURT,composed of: O. Due, President, G. C. Rodriguez Iglesias and M. Díez de Velasco (Presidents of Chambers), Sir Gordon Slynn, C. N. Kakouris, R. Joliét, 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

1By 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’).

2The 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).

3The 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.

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

5Reference 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.

6As 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).

7It 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

8The 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.

9It 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.

10In 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.

11It 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.

12It 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

13The 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.

14According 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.

15According 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.’

16It 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.

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

18This 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.

19It 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’.

20That 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.

21That 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’.

22These 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.

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

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

25That argument cannot be accepted.

26The 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.

27The 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.

28The 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.

29The 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.

30It 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.

31That 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.

32It 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).

33It 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.

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

Costs

35Under 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 COURThereby:

(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.

Delivered in open court in Luxembourg on 11 June 1991.