C-51/89

UNITED KINGDOM AND OTHERS v COUNCIL

O P I N I O N OF MR A D V O C A T E GENERAL TESAURO delivered on 21 February 1991 *

Mr President, done in the case of the first Comett Members of the Court, programme, 3 of which the contested decision constitutes the second phase.

1. In the applications which have given rise to these proceedings the United Kingdom It is more than obvious that such a dispute (Case 51/89), France (Case 90/89) and over the correct legal basis is not of a purely Germany (Case 94/89) seek the annulment formal nature. Since Articles 128 and 235 of Council Decision 89/27/EEC of contain different rules regarding decision 16 December 1988 adopting the second making in the Council, the exclusion of phase of the programme on cooperation Article 235, and thus of the requirement of between universities and industry regarding a unanimous vote, could have repercussions training in the field of technology (Comett on the content of the contested decision; 4 II) 1 on the ground that its legal basis is an incorrect choice of legal basis may thus insufficient. constitute a breach of essential procedural requirements such as to impeach the validity of the measure.

4. With regard to the first two submissions put forward by the applicants, the opera- In the light of those considerations the tional nature of the programme and its Court therefore concluded that the Erasmus important financial and budgetary impli- decision 6did not exceed 'the limits of the cations, I need merely observe that they powers conferred on the Council by Article have already been rejected in the Erasmus 128 of the Treaty in the area of vocational judgment, 5 which was delivered after the training', since in substance it did no more applications in these proceedings were than provide for 'Community information brought. In that judgment the Court first of projects and promotional activity' and all confirmed that where the Community impose 'on Member States obligations of institutions are expressly granted specific cooperation' (paragraph 19). powers, in this case the implementation of a common vocational training policy, they must by necessary implication have 'the means of action needed to carry out that Having regard to the foregoing, I do not common policy effectively' (paragraph 9). think there is anything in the contested The Court went on to state, specifically decision that can put in question the with a view to ensuring the effectiveness of conclusions at which the Court arrived in Article 128, that the Council must be the Erasmus judgment. entitled 'to adopt legal measures providing for Community action in the sphere of vocational training and imposing corre- sponding obligations of cooperation on the Member States' (paragraph 11). Moreover, in view of that judgment the applicant governments, at the stage of the reply and in the oral procedure, did not persist with these submissions, but simply With regard to the procedural requirements sought the annulment of the contested laid down in Article 128, which are less decision on the ground that, like the strict than those laid down by other Erasmus decision, it goes beyond the ambit provisions of the Treaty concerning the solely of vocational training and concerns adoption of measures implementing a research as well. common policy, the Court vigorously rejected the idea that that difference could furnish an argument for restricting the scope of application of the provision in question. Similarly, it emphasized that 'the conditions 5. In addition, the German Government put under which legislative powers and forward the submission that the Council has budgetary powers are exercised are not the the power, on the basis of Article 128, to adopt only measures concerning 'initial' 5 — Judgment of 30 May 1989 in Case 242/87 Commission v Council (1989) ECR 1425; see also the judgment of 30 6 — Council Decision 87/327/EEC of 15 June 1987 adopting May 1989 in Case 56/88 United Kingdom v Council [19891 an action scheme for the mobility of university students ECR 1615. (OJ 1987 L 166, p. 20).

Here it is necessary to be more specific. The expression 'vocational training' cannot be restricted to initial training; it is clear that a training programme which did not include continuing education would be robbed of much of its utility. Training is As I have just stated, the applicant important throughout a person's career governments submit that the contested precisely because it meets a need for decision should have been based also on Article 235 since it relates to research and continued adaptation to the requirements of goes beyond the field of vocational training. working life and to occupational devel- In that regard I should observe first of all opments, especially as a result of economic that, as the Court has frequently pointed and technological restructuring. out, 'it follows from the very wording of Article 235 that its use as the legal basis of a measure is justified only where no other provision of the Treaty gives the Community institutions the necessary power I should also observe that Decision to adopt the measure in question'. 10 63/266/EEC, referred to above, includes continuing education among the objectives of vocational training (see the first principle, third paragraph, the second principle, subparagraphs (0 and (g), and the ninth It is well known, in so far as it is relevant principle, second paragraph) and that here, that the Single European Act inserted Community programmes such as Euro- in the Treaty a new title on research and tecnet 7and Force, 8 both of which are based development (Articles 130f to 130q) and on Article 128 alone and were not chal- lenged by any Member State, are directed 9 — In that regard it may be relevant to observe, without wishing to draw any conclusions, that the United Kingdom and France put forward such a submission only at the 7 — Council Deemon 89/657/EEC of 18 December 1989 stage of the reply, that is to say after the Court had stated establishing an action programme to promote innovation in the Erasmus judgment that the contested decision did not in the field of vocational training resulting from techno- concern solely vocational training but also scientific logical change in the European Community (OJ 1989 1. research, and that the Council therefore did not have the 393, p. 29) power to adopt n on the basis of Article 128 alone but was obliged, prior to the entry into force of the Single 8 — Council Decision 9S/267/EFC, ot 29 May 1990 estab- European Act, to base the measure also on Article 235 lishing an action programme for the development ot continuing vocational training in the European 10 - - See the judgment of 26 March 1987 in Case 45/86 Community (OJ 1990 I. 156, p I) Commmon\ Council [ 1987] ECR 1493. at paragraph 13

that in the Erasmus judgment the Court 7. And so we come finally to the problem stated that before the entry into force of the of defining the contested decision from a Single European Act research activities legal point of view, examining first of all the could be based only on Article 235, thus objective and the content of the measure." clearly implying — as indeed is obvious — that with effect from that date such activities find a solid foundation in the specific provisions granting powers in that The objective of the decision is quite clear regard, that is to say those laid down in from Article 1, which describes Comett II as Title VI of the Treaty. a programme for 'intra-Community cooperation between universities and industry regarding initial and continuing training in the field of, in particular, In those circumstances it is thus frankly advanced technology'; it is thus an action difficult to understand what led the programme unequivocally aimed at applicants, given that there are specific encouraging vocational training. provisions concerning research, to argue that the contested decision would still require Article 235 as a legal basis for research projects. That conclusion is challenged by the applicants, who refer to a number of provisions of the decision which show, they say, that it is also aimed at furthering research activities. It seems to me instead that if it were to be thought that the contested decision contains elements or projects in the fields of research or technological development the decision should have as its legal basis, in addition to Reference is made in particular to Article 3, Article 128, the provision of Title VI which according to which the programme in issue, grants the power to adopt legislation. 'through the training projects it supports, . . . will contribute to the utilization and exploitation of the results, methods and tools of technology developed by the Community policy for research and devel- I should add that such a conclusion leaves opment' and 'facilitate innovation and tech- unchanged the terms of the dispute with nology transfer as well as the balanced which we are concerned inasmuch as, even economic and social development of the on that hypothesis, it is not purely formal in Community' (see also the thirteenth recital character. Article 130q, the provision which in the preamble to the decision). would on this hypothesis be the appropriate legal basis, lays down rules different from those in Article 128 with regard both to the voting procedure and to the participation of the European Parliament. Consequently, if I do not think it can be argued that a it were to be concluded that the correct programme with such effects necessarily legal basis for the contested decision was entails research activities, as the United Articles 128 and 130q, the decision would Kingdom submits. It seems clear to me that be invalid for breach of essential procedural II — See the judgment of 29 March 1990 in Case 62/88 Hellenic requirements. Republic v Council1990] ECR 1527

that provision, as it is worded, simply calls nation between two policies which, although for the utilization of the results of research quite separate, are nevertheless connected. (which has already been carried out); that research thus constitutes a pre-condition for the training envisaged by the Comett II programme and not its objective. Such an interpretation is confirmed by the fifth recital in the preamble to the decision, in which reference to the decisions estab- lishing research and development programmes is followed by the assertion In other words, a vocational training that the technological and industrial programme in the field of advanced tech- cooperation brought about by those nology necessarily entails the optimization programmes 'must be supported by parallel of human resources, the reinforcement of efforts in the field of vocational training'. the scientific bases of industry and a spur to innovation, precisely because it provides industry with a highly qualified workforce which is thus able to apply and develop the technological achievements already made. These are thus natural and logical conse- 8. Having thus dealt with the objectives of quences which do of course make plain the the measure in issue, we must now turn to existence of a connection between a its content, that is to say the type of projects programme of this kind and research and provided for by the contested decision; development policy, but which equally these projects are described in the annex to clearly mean that the programme cannot in the decision. itself have the objective of encouraging research or impinge on such an objective in any way, except to the extent inherent in any programme of vocational training in the field of technology. The United Kingdom argues that the projects envisaged in Point 4(B)(a), in particular subparagraphs (ii) and (iii), in so far as they call for the allocation of grants, very probably concern scientific research work. I do not think, moreover, that the fact that in Article 5(10) the Commission is required to ensure 'Comett II is consistent with other Community research and development projects already programmed' can be considered decisive. Such a provision cannot The United Kingdom's complaint seems to be read as meaning that the Comett II be not so much that the function of these programme itself is thus defined as a grants — which in the Council's view are research programme; it should instead be exclusively for training purposes — is to read as meaning that it is necessary to provide an incentive for research work but ensure its consistency with research rather that there is a possibility that they programmes, not only by avoiding dupli- may be used for such purposes; that is to cation of aspects of such programmes which say, that they may go beyond what is may in some way concern training but also expressly provided for and stray into the in order to achieve the best possible coordi- research sector.

Indeed, this is the main element on which ambit of vocational training policy and thus the applicants' arguments focus: the Comett prevent the Council from adopting it on the II programme does not as such concern basis of Article 128 alone. research and development policy, but could potentially do so, given the natural and inevitable influence which a programme of that kind may have on research and devel- opment activities. That conclusion cannot, I think, be affected by the fact that the Court took a different view with regard to the Erasmus decision, for the simple reason that, contrary to what the applicants submit, it is not possible merely to transpose the Court's reasoning I think that view was fully confirmed during with regard to the Erasmus programme to the oral procedure, in which the applicants, the Comett II programme, given the in particular the representatives of the difference in the objectives and content of United Kingdom and the French the two programmes. Government, specifically insisted on the point that Comett II was not a mixed programme (vocational training plus research) but a training programme which might have some effects in the research field. In that regard I should observe first of all that the Erasmus programme is restricted to universities: it is intended solely for university lecturers and students, and its objective, in addition to mobility for students, is 'to promote greater cooperation between universities'. 9. Having clarified that point, I think we must first establish whether a Community action programme which is, as in this case, undoubtedly aimed at encouraging voca- tional training may be based on Article 128 alone even if, at least potentially, it is It is precisely because of those features that capable of having repercussions on research in the Erasmus judgment the Court, after and technological development policy. pointing out that the concept of vocational training includes university studies, with the sole exception of courses of study 'intended for persons wishing to improve their general knowledge rather than prepare themselves for an occupation', 12 nevertheless went on to state that scientific research is character- istically one of the functions off a My answer is in the affirmative: I think the university: indeed, a proportion of mere possibility that the projects contem- university staff devotes its time exclusively plated as part of the Comett II programme to research, and research constitutes an may have repercussions on the research sector cannot justify the conclusion that the 12 — Judgment of 2 February 1988 in Case 24/86 Blaizol [1988] programme in question goes beyond the ECR 379, at paragraph 20.

essential element in the work of most and optimization of the results of activities university teachers and of some students. in Community research, technological devel- opment, and demonstration', it is also clear, indeed it follows from the very wording of On that premise, and in view of the absence the provision, that it concerns Community of any express reservation as regards research programmes and that its essential scientific research, the Court thus came to purpose is to ensure that all businesses the conclusion in relation to the Erasmus which may be concerned have access to the programme that 'at least some of the results of research financed by the initiatives planned are aimed at the spheres Community. of both research and vocational training' 13 and that consequently Article 235 of the Treaty was required as a basis for its adoption. A programme such as Comett II, on the other hand, concerns the organization of vocational training as such and thus does not in itself involve specific research or 10. Such a conclusion cannot be applied to development activities which fall within the the Comett II programme. Unlike the scope of the powers which are the subject- Erasmus programme, Comett II, as I have matter of Title VI of the Treaty. already stated, concerns the development of relations between universities and industry in the field of vocational training. It follows that teachers and researchers who benefit As I have already stated, the dissemination from the programme do so in their capacity and optimization of research activities as teachers and not as researchers. resulting from the application of the Comett Moreover, the transnational exchanges II programme constitute merely the natural between universities and industry provided consequence, if not the necessary for in Point 4(B) of the annex are at most complement, of any vocational training indicative of the fact that the programme is initiative in the field of advanced tech- restricted, with regard to its effects, to the nology. exploitation and dissemination of the results of scientific research, and does not itself encompass research activities. 11. It follows from all the foregoing considerations that the Council was correct Although it is true that Article 130g(c) of to base itself on Article 128 alone in the Treaty provides for the 'dissemination adopting the contested decision.