C-242/87
ECLI:EU:C:1989:78
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OPINION OF MR MISCHO — CASE 242/87
OPINION OF MR ADVOCATE GENERAL MISCHO delivered on 22 February 1989 *
Mr President, 3. In its judgment concerning the system of Members of the Court, generalized tariff preferences 3 the Court confirmed that 'it follows from the very wording of Article 235 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'. 1. The Commission has requested the Court to annul the inclusion of Article 235 of the EEC Treaty as part of the legal basis of Council Decision 87/327/EEC of 15 June 1987 adopting the European Community action scheme for the mobility of university 4. It should, moreover, be pointed out that 1 students (Erasmus) and to annul the last in the present case the dispute over the recital in the preamble to that decision, proper legal basis is not a purely formal which states the reasons for its inclusion. In one, since Articles 128 and 235 contain the alternative, should a declaration by the different rules concerning the manner in Court of partial nullity not be possible, the which the Council may adopt a decision. Commission seeks a simple declaration that The choice of the legal basis could thus the decision is void in so far as it is based on affect the determination of the content of Article 235. the decision challenged.
5. As regards Decision 63/266/EEC I will not touch on the dispute, more apparent 2. The Commission considers that Article than real, which divided the parties on the 128 of the Treaty, in combination with importance to be attached to it either as a Council Decision 63/266/EEC of 2 April precedent or as the legal basis for the 1963 laying down general principles for decision in question, since in any case it implementing a common vocational training could not affect the scope and effect of 2 4 policy, constitutes the sole correct legal Article 128 of the Treaty. basis for the Erasmus decision, so that recourse to Article 235 amounts to an 3 — Judgment of 26 March 1987 in Case 45/86 Commission v infringement of the Treaty. It adds that Council [1987] ECR 1493, paragraph 13. 4 — In its 'hormones' judgment of 23 February 1988 in Case recourse to that article is in any case based 68/86 United Kingdom v Council [1988] ECR 855, the on an inadequate and imprecise statement of Court declared that a mere practice on the part of the Council cannot derogate from the rules laid down in the reasons. Treaty and create a precedent binding on Community institutions with regard to the correct legal basis (paragraph 24) and that the rules regarding the manner in * Original language: French. which the Community institutions arrive at their decisions are laid down in the Treaty and are not at the disposal of 1 — OJ L166,25.6.1987, p. 20. the Member States or of the institutions themselves 2 — OJ, English Special Edition 1963-64, p. 25. (paragraph 38).
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6. Article 128 provides that: universities (Actions 1, 3 and 4),
university associations (Action 4), 'The Council shall, acting on a proposal from the Commission and after consulting the Economic and Social Committee, lay down general principles for implementing a teaching staff and university administrators common vocational training policy capable (Action 1), of contributing to the harmonious devel opment both of the national economies and of the common market'. national academic recognition information centres (Action 3),
7. According to the Council and the inter veners, that provision does not constitute a persons promoting joint curriculum devel sufficient legal basis for the adoption of a opment between universities (Action 3). decision such as the Erasmus decision. They claim that the Erasmus scheme includes measures which go beyond the powers granted to the Council by Article 128 and 10. All those bodies may receive that the scheme covers areas which do not Community aid granted by Commission constitute vocational training. decision. The Commission may also finance publications designed to enhance awareness of study and teaching opportunities in the other Member States (Action 4) and Erasmus prizes to be awarded to students 1. The scope of the Council's powers and staff members (Action 4).
11. It is only the grants awarded by the 8. In the event it is not disputed that the Community to university students carrying Erasmus scheme is, as the title of the out a period of study in another Member contested decision indicates, a 'Community State that are to be administered by the action scheme' which must be put into effect competent authorities in Member States by the Commission in accordance with the (Action 2). annex to the decision (see Article 3 of the decision).
12. The question therefore is whether the Council's power to lay down 'general prin ciples for implementing a common voca 9. The actions defined in the annex involve tional training policy' entails the power to direct contact between the institution adopt a Community action scheme responsible for administering the scheme comprising concrete operations of this kind, to be implemented by the Commission and:
OPINION OF MR MISCHO — CASE 242/87
cooperating directly with universities and Treaty and in accordance with the timetable teachers. set out therein
13. The dispute arises from the fact that Article 128 employs concepts which are at first sight difficult to reconcile. On the one hand it is directed towards 'a common voca (b) the establishment of a common customs tional training policy', but on the other tariff and of a common commercial hand it makes reference to the competence policy towards third countries, of the Community institutions only in relation to laying down 'general principles for implementing' that policy.
14. The parties attach more or less (d) the adoption of a common policy in the sphere of agriculture, importance to one or the other aspect of the article according to the argument they are defending. In my opinion, however, those aspects should not be set against each other. (e) the adoption of a common policy in the The text should be read as a whole. The sphere of transport, laying down of 'general principles' must lead to the implementation of 'a common vocational training policy', which constitutes the objective to be attained.
(i) the creation of a European Social Fund in order to improve employment oppor 15. However, does it thus follow from tunities for workers and to contribute to Article 128 that that common policy may be the raising of their standard of living, implemented directly by the institutions of the Community and, what is more, in the form of concrete measures such as the grant ' of a subsidy to a particular university asso ciation or a particular individual teacher?
18. It seems to me difficult to deny that if the common policy in the sphere of voca 16. In order to reply to that question we tional training had the same scope and the should first examine Article 128 in the same degree of Community involvement as context of the Treaty, concentrating our the common policies in the spheres of agri attention on provisions which concern the culture, transport or external trade it would 'implementation of a common policy'. have been mentioned in Article 3, which lists the major objectives of the Community.
17. Under Article 3 'the activities of the 19. Indeed, the common agricultural policy Community shall include, as provided in this and the common transport policy form part
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of the 'foundations' of the Community (title 21. They are to be adopted unanimously of Part Two of the Treaty). Although it is during the first two stages of the transitional true that the common commercial policy period and by a qualified majority thereafter like the common vocational training policy, (Article 43(2), Article 75(1), Article 111(3), falls under Part Three of the Treaty, Article 113(4), Article 114). Finally, Article entitled simply 'Policy of the Community', a 116 too, which provides that in respect of whole separate chapter is allocated to the all matters of particular interest to the former, whereas the latter is referred to only common market, from the end of the transi in a single article in Title III — which deals tional period onwards, Member States must with 'Social policy' in general — and in a proceed within the framework of inter position which has raised many questions. It national organizations of an economic is to be found at the end of the chapter character only by common action, states dealing with the European Social Fund, that the Commission is to submit to the only the creation of which is mentioned in Council, which is to act by a qualified Article 3. Stabenow considers, 5 rightly in majority, proposals concerning the scope my opinion, that the position of Article 128 and implementation of such common action. indicates that when the Treaty was being drawn up the promotion of vocational training was regarded as the main task of the Social Fund and that the 'general prin ciples' were to provide a frame of reference ('Bezugsrahmen') for that purpose. In fact vocational training has always been one of 22. To that it may be added that Article the priority activities of the Social Fund. 41(a) provides for effective coordination of efforts in the spheres of vocational training, of research and of the dissemination of agri cultural knowledge; this may include joint financing of projects or institutions.
20. In the second place it should be pointed 23. Even though it is clear that that article, out that unlike Article 128 Articles 43, 75 which concerns agriculture, does not refer and 113 provide, in addition to the laying solely to vocational training, the fact down of broad lines (Article 43(1)) or the remains that it would not have been development of uniform principles (Article necessary for it to provide for the possibility 113(1)), for the submission by the of joint financing of projects if that was Commission of proposals directly aimed at already possible under Article 128, the the implementation of the common policies general provision on vocational training. in question. In the case of the common agri cultural policy and the common transport policy those measures are to be adopted after consultation of the European Parliament.
5 — Wolfgang Stabenow in Groebcn, Boeck, Thiesing, 24. In light of the undeniable coherence of Ehlermann, Kommentar zum EWG- Vertrag, 3rd edition. 1983, Vol. 1. commentary on Anide 128, p. 2087, No 2. that overall picture, it cannot be supposed
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that the authors of the Treaty forgot or personnel from universities and industry; it inadvertently omitted, in Article 128, to give may provide support for training courses in the Council the task of adopting, upon a technology and for work on devising, proposal from the Commission, the developing and testing at European level measures necessary for the implementation joint training projects in technology, etc. of a common vocational training policy. It is The Comett II decision is thus of great not possible to construe that article as interest as regards the case before the Court conferring by implication a power on the because it enables us to get a better idea of Council to adopt such measures by a simple the whole range of powers which Article majority and without mandatory consul 128, according to the proponents of a broad tation of the Parliament. In the eyes of the interpretation of that provision, confers on authors of the Treaty that implementation the Council and permits it to delegate to the was thus to be left to others, that is to say Commission. the Member States.
26. In support of that broad interpretation the Commission also relies on the principle 25. As I pointed out above, however, the of 'effet utile' (the need to give full effect to subject-matter of the Erasmus decision is a legislative provision). Even though Article just such concrete measures. The same is 128 omits to indicate the concrete means 6 true of the Comett I programme, which is whereby the common vocational training also based on Articles 128 and 235, and of policy is to be implemented, says the the Comett II programme, 7which is based Commission, it is not right to interpret that on Article 128 alone. The latter programme provision in such a way that the Community also permits the Commission to adopt is denied the practical means necessary to measures 'directed at trainees, including conduct the policy effectively. those who have completed their initial training, and at persons in active employment, including employers' and workers' representatives and the training officers concerned' (second subparagraph of paragraph 1 of the Annex to the decision). 27. Here the Commission is no doubt It allows the Commission to grant financial referring to the Court's 'migration policy' support of up to 50 % of the expenditure judgment of 9 July 1987 8in which it stated eligible, and up to 100% for 'university- that industry training partnerships (UITPs)'. In contrast to the Erasmus scheme, the Commission may also award grants directly to students and other persons undergoing periods of from three to 12 months' training 'where an article of the EEC Treaty — in in industry in another Member State and to this case Article 118 — confers a specific task on the Commission, it must be 6 — Council Decision 86/365/EEC of 24 July 1986 adopting accepted, if that provision is not to be the programme on cooperation between universities and enterprises regarding training in the field of technology rendered wholly ineffective, that it confers (Comett), OJ L 222, 8.8.1986, p. 17. 7 — Council Decision 89/27/EEC of 16 December 1988 8 — Joined Cases 281, 283, 284, 285 and 287/85 Federal adopting the second phase of the programme on Republic of Germany, French Republic, Kingdom of the cooperation between universities and industry regarding Netherlands, Kingdom of Denmark and United Kingdom of training In the field of technology (Comett II) (1990-94), Great Britain and Northern Ireland v Commission [1987] OJ L 13, 17.1.1989, p. 28. ECR 3203.
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on the Commission necessarily and per se to be achieved in those consultations or the powers which are indispensable in order prevent the Member States from to carry out that task' (paragraph 28). implementing drafts, agreements or measures which it might consider not to be in conformity with Community policies and actions (paragraph 34). 28. I freely accept that that which is valid for the Commission, in the context of Article 118, is valid generally for the Community institutions. In that respect the 32. It is true that Article 118 simply gives Commission is right to say that in Article the Commission the task of promoting close 128 the Treaty could not set an objective (a cooperation between Member States in the common policy) without providing for the social field. Article 128 takes, so to speak, a practical means necessary to attain that further step and lays down as its objective objective. '[implementation of] a common ... policy capable of contributing to the harmonious development both of the national economies and of the common market.' The principle 29. It follows without a doubt that the of 'effet utile' therefore means that a result general principles that the Council may lay corresponding to that definition must be down are not simple guidelines but achieved, but in providing solely for the mandatory legal rules. laying down of general principles Article 128 does not require that the common policy should result in actual harmonization of national provisions concerning vocational 9 30. The appeal to the need to give full training and it does not make the effect to Article 128 (its 'effet utile') should institutions of the Community responsible not, however, result in the practical means for implementation of the common policy. of taking action for which it makes express provision being replaced or added to by other means of a different kind, even if the latter would enable the objectives pursued 33. That is to say, the objective pursued to be attained more easily and more effec may be attained by setting out the general tively. It is precisely in order to remedy such principles as precisely as possible, adapting lacunae and to enable the Community to them periodically to new problems which achieve fully its objectives, even where the may arise, making comparative studies and Treaty has not invested it with the necessary organizing regular mandatory consultations powers of action, that Article 235 was during which the experiences of the formulated. different Member States are discussed and common conclusions drawn.
31. That distinction is equally inherent in the 'migration policy' judgment cited above. 34. Moreover, it is the Commission's task The need to give full effect to Article 118 to follow attentively the implementation of led the Court to accept that the Commission the general principles by the Member States, had the power to oblige Member States to to draw their attention to any possible take part in consultations which it had decided to arrange (paragraph 28), although 9 — In this connection sec Stabenow in the commentary cited it could not determine in advance the result above, at p. 2088.
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discrepancies and, if necessary, to 37. It is true that the last paragraph of the commence proceedings under Article 169, first principle laid down in the 1963 decision since the general principles are binding on states also that 'it shall be the responsibility the Member States. Article 128, together of the Member States and the competent with Article 155, also enables the institutions of the Community to apply such Commission to recommend action to be general principles within the framework of taken by the Member States in a coor the Treaty'. But the addition of the words dinated manner. If the recommended action 'within the framework of the Treaty' would is chosen carefully the Member States will not have been necessary if the Council had certainly do all that is necessary. been of the opinion that Article 128 itself already permitted the institutions to take all the implementing measures considered necessary. Those words must be interpreted as meaning that the institutions may apply the general principles in so far as other provisions of the Treaty confer the 35. This way of looking at the matter necessary powers on them. corresponds to the definition which the Council gave to the common vocational training policy in Decision 63/266/EEC. According to the first principle set out in that decision 'a common vocational training 38. The only provisions of any possible policy means a coherent and progressive assistance in that connection are those common action which entails that each concerning the European Social Fund and Member State shall draw up programmes Article 235. (Possibly Article 100 as well if and shall ensure that these are put into the differences between national policies effect in accordance with the general prin were capable of directly affecting the estab ciples ... and with the resulting measures lishment or functioning of the common taken to apply them'. market.)
39. In the context of this case the Council's agent considered that the Council was also 36. Does the reference to measures taken to entitled, on the basis of Article 128 alone, to apply the principles indicate that in 1963 at take action designed to guide and least the Council was of the opinion that the encourage the activities of the Member general principles could also be States, at a lower level than Community implemented by Community action? I do action the objectives and mechanism of not believe so. The text I have just quoted which are determined by a Community legal clearly reflects the view that not only the measure and implemented by the 'putting into effect' but also the programmes Commission. In my opinion that represents are the responsibility of the Member States a fairly robust interpretation of Article 128 alone. I think I may therefore conclude that and very careful case-by-case scrutiny in the eyes of the Council the 'resulting would be necessary in order to determine measures taken to appiy'the general prin what such 'action' could consist of. That ciples were to consist solely in the definition problem is not, however, one that must be of the scope of the general principles in resolved today. Here it is the measures relation to any particular aspect of the voca provided for in the Erasmus scheme that call tional training policy. for examination.
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40. I cannot agree with the Commission cultural policy, usually on the basis of regu when it maintains that the Community lations. action provided for in the Erasmus scheme constitutes nothing but 'promotional action' providing an incentive to the Member States rather than directly imposing on them new legal constraints, since the proposed 43. Finally, an additional point which shows measures presuppose the voluntary partici that the Erasmus scheme is not confined to pation of potential beneficiaries. 'promotional actions' designed to encourage action on the part of the Member States may be drawn from the fact that the direct administration of the scheme and the award of grants to beneficiaries (except as regards grants for students) are carried out by the 41. We are in fact faced with concrete Commission. measures which are to be put into effect directly 'on the ground'. The programme is in no way confined to providing incentives for the Member States, but imposes on them direct obligations in relation to those 44. It follows from the foregoing that a concrete measures. Thus the competent 'Community action scheme' such as authorities of the Member States are Erasmus could not be adopted on the sole expressly made responsible for administering basis of Article 128 and that the Council the grants awarded to students under Action was obliged to cite Article 235 as a basis as 2 and for cooperating closely in well. implementing the measures provided for in Action 3 to promote mobility through the academic recognition of diplomas and periods of study. 45. Something remains to be said on the subject of the budgetary expenditure which the scheme involves. In that connection it suffices to state that since Article 128 alone 42. Moreover, even though the Council does not permit the institutions of the resorted to a measure of a special kind, Community to undertake themselves or to namely a decision sui generis ('Beschluß'), instigate and finance concrete measures with which does not appear among those a view to implementing the common voca expressly listed in Article 189 of the Treaty, tional training policy 'on the ground', it the real nature of the measure strongly cannot serve as a justification for the expen resembles that of a regulation, since it diture which those actions entail for the confers a direct right on individuals, for budget. example universities, teachers or university students, to apply for certain benefits. The fact that potential beneficiaries do not become actual beneficiaries unless they themselves so wish and their application is 46. Let us turn now to the second argument then granted is not a characteristic peculiar relied upon by the Council to justify to action schemes such as Erasmus; it is true recourse to Article 235, namely the assertion of a whole series of aid measures and that not all the measures provided for in the premiums which are granted in particular Erasmus scheme fall within the sphere of within the framework of the common agri vocational training.
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2. The concept of 'vocational training' 50. In that judgment the Court referred expressly only to 'access to and participation in courses of instruction and apprenticeship' (paragraph 35) and not to the organization of the courses as such, which falls within the 47. According to the Council and the inter scope of education and training policy. veners the contested decision covers areas other than that of vocational training, first because not all forms of university teaching necessarily constitute vocational training and secondly because certain objectives 13 51. Finally, in its judgment of 3 July 1974 pursued by the Erasmus scheme fall outside in Casagrande, the Court declared that that area.
'Although educational and training policy is 48. In that regard it should first be not as such included in the spheres which emphasized that it follows from the the Treaty has entrusted to the Community 10 judgment of 22 February 1988 in Blaizot institutions, it does not follow that the that although in general university studies exercise of powers transferred to the constitute vocational training, there are Community is in some way limited if it is of certain courses of study which, because of such a nature as to affect the measures their particular nature, are intended for taken in the execution of a policy such as persons wishing to improve their general that of education and training' knowledge rather than prepare themselves (paragraph 6). for an occupation.
52. It can be concluded from all those 49. It should next be pointed out that judgments that the determination of although in its judgment of 13 February 11 education policy, including the organization 1985 in Gravier the Court concluded that of education, remains within the powers of 'the conditions of access to vocational the Member States, even if Community law training fall within the scope of the Treaty' may affect certain 'measures taken in [its] (paragraph 25), it had earlier been careful to execution'. state that
53. However, the Erasmus decision makes 'educational organization and policy are not no distinction between university education as such included in the spheres which the according to whether it can be classified as Treaty has entrusted to the Community 12 vocational training or general education and institutions'(paragraph 19). lays down measures which directly affect the actual organization of such education in 10— Case 24/86 Blaizot v Université de Liège and Others, especially at paragraph 20. the different Member States. 11 — Case 293/83 Cravierv City of Liège [1985] ECR 593. 12 — See also the judgment of 13 July 1983 in Case 152/82 13 — Case 9/74 Casagrande v Landeshauptstadt München [1974] Forcheriv Belgium [1983] ECR 2323. ECR 773.
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54. In Anicie 1(1) the decision refers not 58. In order to ascertain whether specific only to increasing significantly the mobility studies constitute vocational training, it is of university students but also to promoting certainly not necessary to take into account greater cooperation between universities. whether or not those undertaking such studies do so with a view to entering a specific occupation, or whether measures taken in the area of university education are taken with the future entry of students to occupations in mind, in so far as all courses of study, even those which do not objec 55. Anicie 1(2) gives a very wide definition tively prepare for entry into working life, of the term 'university' under the scheme, are likely to be affected thereby. and thus of the notion of university education. That term 'shall be used to cover all types of post-secondary education and training establishments which offer, where appropriate within the framework of advanced training, qualifications or 59. Finally, the interuniversity cooperation diplomas of that level, whatever such estab which the Erasmus scheme thus seeks to lishments may be called in the Member promote, which appears among the States'. objectives listed in Article 2 of the contested decision, is to be achieved under the terms of Action 1 described in the annex by the setting up of a 'European network' composed of universities which have concluded agreements for exchanges of students and teachers with universities of 56. That definition therefore encompasses other Member States. Those agreements are those university studies which, according to to aim 'to give the students of one university the Blaizot judgment, do not constitute the opportunity to undertake a fully vocational training. recognized period of study in at least one other Member State, as an integral pan of their diploma or academic qualification'. In that context priority is to be given to the development of programmes involving an integrated and fully recognized period of study in the universities concerned. 57. That finding cannot be called in question on the ground, put forward by the Commission, that 'the Erasmus scheme was conceived as a vocational training scheme' and that 'the mobility of students [is] envisaged in the Erasmus scheme in relation to vocational training' (paragraph 37 of the 60. Interuniversity cooperation as thus reply). It follows from paragraphs 16 and 20 conceived will incontestably lead to changes of the judgment in Blaizot that if university in the organization of education inasmuch studies in general fulfil the criteria of voca as it is intended to establish special courses tional training, they do so 'by their nature' of study involving two or more universities and if certain courses of study fall outside belonging to different Member States and to the scope of vocational training they do so draw up special education programmes for 'because of their particular nature'. that purpose.
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61. From the foregoing it may be concluded vocational training (5.7) and contains as its that the Council was right to consider, in sole proposal that: the last recital in the preamble to the contested decision, that
'the Member States do their utmost, within national policies, whenever possible in asso 'this action programme includes aspects ciation with enterprises and social partners, relating to education which, at the present to ensure that all young people wishing to stage of development of Community law, do so receive one year's, or if possible two may be regarded as falling outside the scope years', vocational training in addition to of the common vocational training policy as their compulsory education'. provided for in Article 128 of the Treaty'.
65. It is precisely those measures on the pan of the Member States that Council 62 In addition there are other objectives Decision 87/569/EEC of 1 December and aspects of the Erasmus scheme which 1987, 15 which has been challenged in Case can be considered not to fall exclusively 56/88, was intended to support and within the scope of Article 128. In any case supplement. the wording of the Erasmus decision is not calculated to dispel any doubts in that respect. 66. For the rest, the bulk of Chapter 5 of the report in question deals with youth exchanges in respect of schoolchildren (5.2 and 5.3), university students (5.6) and 63. It is not disputed that the political workers (5.8). The proposed interuniversity origins of the Erasmus scheme lie in the cooperation (5.6) was itself to revolve work of the ad hoc Committee on a people's around such exchanges. Europe, especially the report it submitted to the European Council in Milan on 28 and 29 June 1985. 14 The eighth and ninth recitals in the preamble to the contested 67. The least that can be said is that the decision refer expressly to the people's importance thus accorded to exchanges is Europe initiative and one of the objectives echoed in the wording of the Erasmus listed in Article 2 is precisely that of decision, which is defined in its title as a [strengthening] the interaction between Community action scheme for the mobility citizens in different Member States with a of university students, which it is intended view to consolidating the concept of a to 'increase significantly' (Article 1(1)). In people's Europe'. Communication 88/C240/03, published in Official Journal C 240, 15.9.1988, p. 3, 16 the encouragement of such mobility is presented as the 'principal objective' of the Erasmus scheme. 64. Chapter 5 of the report in question, entitled 'Youth, education, exchanges and 15 — Decision concerning an action programme for the voca sport' devotes a very succinct paragraph to tional trainingof young people and their preparation for adult and working life, OJ L 346, 10.12.1987, p. 31. 1 S le in of he 16 — Erasmus, financial support for cooperation and mobility in 4 — ee Bul t t EuropeanCommunities, Supplement hi her g education in the Euro pean Community (Academic 7/85, p. 19 et seq. year 1989/90).
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68. Similarly, most of the actions described university level and that the encouragement in the annex to the Erasmus decision are of greater mobility for university students is intended to 'stimulate Community-wide simply a means of achieving that aim. exchange of students' (Action 1, Without necessarily wishing to go so far as paragraph 1). to suggest that the Commission deliberately 'dressed up' the objective of encouraging such mobility as vocational training in order to fit the contested decision into the scope of application of Article 128, I am 69. Leaving aside the contacts that the convinced that the decision pursues an decision aims to establish between university objective of encouraging the mobility of administrators and teachers, so that they persons quite as much as vocational training may compare their respective methods, it of university students. For that reason also I does not seem to me to be an exaggeration consider that recourse to the dual basis of to say that the primary and fundamental 17 Articles 128 and 235 was necessary. aim of the Erasmus scheme is not directly to increase the vocational training of university students who might benefit from it but to develop contacts between university students from different Member States and to 3. The statement of reasons in respect of enlarge their personal rather than vocational recourse to Article 235 knowledge. The Erasmus scheme does not in any case ensure that the acquisition of 'first-hand experience of economic and social aspects of other Member States' 72. In order for the Council to be obliged (Article 2(i)) should always go hand in hand to have recourse to Article 235 it is with improvement in vocational training. It sufficient that the act in question should thus does not preclude the possibility that a include a single aspect which cannot be stay abroad may constitute an end in itself, based on another provision of the Treaty. independent of any consideration of voca tional training.
73. As we have seen, the reasons indicated in the final recital (inclusion of matters 70. Exchanges of persons as such certainly relating to education which may be do not fall within the purview of Article 128 regarded as falling outside the scope of the and, it would seem, can be promoted only common vocational training policy) relate to on the basis of Article 235, as is shown by such an aspect. Council Decision 88/348/EEC of 16 June 1988 adopting an action programme for the promotion of youth exchanges in the Community — 'Youth for Europe' 74. The decision must therefore be programme (Official Journal L 158, considered to contain a sufficient statement 25.6.1988, p. 42). of reasons, even though reference could also have been made to other aspects of the decision in order to justify recourse to that
71. In view of that context, I find it difficult 17 — In its judgment of 27 September 1988 in Case 165/87 Commission v Council (1988) ECR 5545, the Court to accept that the direct and immediate expressly declared that 'in so far as the competence of an institution is derived from two provisions of the Treaty, objective of the Erasmus scheme is thai institution is bound 10 adopt the relevant measures on improvement of vocational training at the basis of both provisions', (paragraph 11)
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article. The claim that there is an insuf recital in the preamble to that decision ficient statement of reasons cannot therefore stating the reasons for the said legal basis'. be accepted.
75. As a very subsidiary point, that is to say in the event that the Court should not share my view and should decide that the Council 76. Such a solution is not possible in my could derive the necessary powers to adopt view, since the inclusion of Article 235, by the Erasmus scheme from Article 128, it making the adoption of the decision remains for me to take a position on the dependent on the unanimous agreement of question whether it is possible, in all the Member States, could have had an accordance with the Commission's principal influence on the actual content of the claim, to 'declare null and void the inclusion decision. If recourse to Article 235 was not of Article 235 as part of the legal basis for justified, the entire decision must be Council Decision 87/327/EEC and the last declared null and void.
Conclusion
77. It follows, however, from the foregoing discussion that in my opinion the Council could not derive from Article 128 all the powers necessary for the adoption of Decision 87/327/EEC and that it was right to base the decision on Article 235 as well. Moreover, the statement of reasons for the inclusion of that article contained in the last recital in the preamble to the decision is sufficient.' Consequently, I propose that the Court dismiss the application and order the Commission to pay the costs, including those of the interveners.