C-268/94

OPINION OF MR LA PERGOLA — CASE C-268/94

OPINION OF ADVOCATE GENERAL LA PERGOLA delivered on 23 May 1996 *

1. The Portuguese Republic is seeking the ment of the energy sector (Article 7), tour­ 1 annulment of Council Decision 94/578/EC ism (Article 13) and culture (Article 15), its approving the conclusion of the Cooperation conclusion should have been approved by Agreement between the European Commu­ the Council in accordance with the pro­ nity and the Republic of India on Partner­ cedure under Article 235 of the Treaty. The ship and Development (hereinafter 'the provisions laid down by the Agreement con­ 2 Agreement'). cerning intellectual property (Article 10) and drug abuse control (Article 19) affect sectors that are within the purview of the Member States and therefore required the adoption of a mixed agreement.

2. During the proceedings, the Republic of Greece intervened in support of Portugal, while Denmark and the Commission inter­ vened in support of the Council.

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basis and the consequential rules of pro­ the Community action provided for therein. cedure that have to be complied with in the It confers specific powers which can apply light of the legislative content of the Agree­ neither to all types of Community action ment in this case and the objectives it pur­ encompassed by the conduct of international sues. A new and important issue of compe­ commercial relations, nor to the adoption, tence has therefore to be considered. This is externally, of any measure involving those the first time that the Court has been asked areas which are internally a matter for the to rule on the application of the provisions Member States or require recourse to introduced by the Treaty on European Article 235. In the view of the Council, how­ Union in the specific area of development ever, Article 113 provides the appropriate cooperation. 3Furthermore, the Agreement legal basis even for those provisions of the between the Community and India in many Agreement which are ancillary to others ways represents the prototype of what are forming the main subject-matter of the rules described as 'third generation' agreements laid down therein. That is the approach 4 with the developing countries and may taken in the case-law of the Court. It is therefore affect the future of the whole of clear from the judgments delivered in other this increasingly important sector of external cases that Article 113 is the appropriate legal relations. basis for an agreement even where, as in this case, the commercial policy instrument pur­ sues the parallel objective of promoting the 5 development of a third country.

subsidiarity. Compliance with that principle formal recognition in Title XVII of the would have required action by the Member Treaty and constituted an important objec­ States rather than the Community, namely tive of Community action even before the by opting for the adoption of a mixed agree­ Maastricht Treaty was adopted. From the ment or for the application of Article 235: in time of the first Yaoundé Conventions, in both cases, the Member States would have 1974, it has evolved in three successive enjoyed greater opportunities for participat­ stages: in the 'first generation' agreements ing in the decision-making process. That is the main focus is on Community aid; the also the view taken by Greece in its observa­ 'second generation' agreements are basically tions. The Council, however, interprets geared to economic cooperation; and the Article 130y as meaning that the Community 'third generation' agreements take into is fully empowered to deal with development account the social structure of the develop­ policy in accordance with the objectives laid ing countries as well as commercial relations. down in Article 130 u of the Treaty.

8. I shall look at both of those points of view and then go on to consider them, together with the other aspects of the dis­ pute, in terms of the legal basis of the various 10. Before a specific legal basis was pro­ provisions of the Agreement at issue in this vided, Community action was founded on a case. It is necessary first to clarify the sub­ variety of provisions: Article 238 (in the case stance and possible scope of the Treaty pro­ of association agreements with the ACP and visions relevant to this case, beginning with Mediterranean countries); Article 235, by those that have been the subject of the differ­ itself or in conjunction with another legal ing interpretations put forward by Portugal basis, usually Article 113 (in the case of the and the Council. autonomous instruments employed in rela­ tion to the countries of Latin America and Asia).

13. If wc then consider the objectives laid down in Article 130u(1), it is clear that they 12. Even though development cooperation reflect a complex vision of development, the had acquired its own legal basis, also as a product of interaction between its economic, result of the place it had been assigned social and political aspects, which are taken within the system by the Court, the legisla ture deemed it necessary to insert into the 8 Treaty a specific title for it. That is a decision which, among other things, meets 9 — For an interpretation to the effect that the new rules form part of an evolving development cooperation policy, sec J. the need properly to integrate into the legal Raux: 'Politique de cooperation au développement et poli tique commerciale commune', in M. Maresceau (cd.) The system an activity that is in itself significant European Community's Commercial Policy after 1992:

LCR 2871. Those decisions clarified the concept of an evolv That concept of development requires total commitment on ing common commercial policy which needed to include ele the part of the Community and a large measure of consis ments more directly linked to development cooperation tency between the specific development objectives which the policy. Community pursues. No longer can there be any question of 7 — Judgment of 26 March 1987, cited above, in Case 45/86 expanding trade without taking into account the other Commission v Council. aspects of cooperation, and, in consequence, the objectives of 8 — The insertion in the Treaty of an express reference to deve development can no longer be a matter of trade alone.

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into account by the most recent cooperation that of the Member States. 13Article 130u agreements. In addition to being 'econ­ specifically lays down to that effect: 'Com­ omic and social', Community policy is munity policy in the sphere of development intended to promote a sustainable level of cooperation ... shall be complementary to the development that takes account of the policies pursued by the Member States'. 1 environment. 1 The objectives considered include sustainable development as well as the smooth and gradual integration of the developing countries into the world economy and the campaign against poverty. Together with that objective, another general and overtly political objective is envisaged: Community action must contribute to 15. The applicant and Greece interpret the 'developing and consolidating democracy above provision as meaning that Community and the rule of law' and to 'respecting policy is subordinate to that of the individual human rights'. Democratic values are thus Member States. They argue that it is the viewed as a crucial factor for long-term former that complements the latter and not socio-economic development. vice versa. The specific legal basis provided by Article 130y therefore has to be inter­ preted restrictively. It follows that the Com­ munity cannot adopt any type of measure in this field unless there is a link between that measure and development cooperation. On that basis, given their purpose and substance, the measures of the kind provided for in the Agreement should instead be based on Article 235.

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foremost, with the provision contained in Article 130w, to adopt the 'measures neces- Article 130x: sary' to further the objectives laid down in Article 130u. That implies that the Commu­ nity is empowered to conduct its own deve­ lopment cooperation policy, also by means of instruments other than the agreements or negotiations with third countries, provided 'The Community and the Member States for in Article 130y, and on the basis of the 6 shall coordinate their policies on develop­ procedure provided for in Article 189c.' ment cooperation and shall consult each Furthermore, the third sentence of other on their aid programmes, including in Article 130x(1) provides that the Member international organizations and during inter­ States arc to contribute if necessary to the 1 implementation of Community aid pro­ national conferences' 4(emphasis added). grammes, which necessarily presupposes an independent Community policy as a vital means of furthering the objectives of the Treaty, with Member States involved in their implementation if need be. Finally, in accordance with Article 130y, the Commu­ The reference to coordination and consulta­ nity and the Member States are to cooperate tion, inserted for reasons of effectiveness 15 with third countries 'within their respective also, demonstrates that the policies consid­ spheres of competence', while the arrange­ ered here arc independent of one another ments for cooperation may be the subject of and does not permit any order of prece­ agreements between the Community and dence, even in purely functional terms, to be such countries. It is evident that the legisla­ established between them. ture in any case intended clearly to assign to the Community the competence required to

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18. Contrary to the applicant's submission, Article 228(3), after consulting the European the conclusion I have reached is not in any Parliament. That decision-making process way contradicted by Declaration No 10, differs from the one provided for in annexed to the Treaty, according to which Article 235, formerly used for the conduct of the provisions of Article 130y do not affect the sectoral policy in question, because it the principles laid down in the judgment makes it easier for the Community to act, by

ing the conclusions I have reached as to the relationship that exists between the policies of the Community and the Member States, that ruling therefore confirms them. 20. In the light of those legislative provi sions, the applicant's interpretation of the provisions at issue cannot be accepted. As the Court has held, Article 235 is designed to fill the gap where no specific provisions of the Treaty confer on the Community institu tions express or implied powers to act, if 19. Two further points may be made here. In such powers appear none the less to be accordance with Article 130x(2), the Com mission may take any useful initiative to promote coordination between the policies 18 — Indeed a number of academic writers have pointed out that of the Member States and its own policy. the effect of the Commission having been empowered to promote coordination between the different policies may be Coordination in fact requires that the bodies the reverse of that put forward by the applicant, namely the providing it should enjoy equal standing. 'communitarization' of development cooperation policy. See S. Cisnal de Ugarte, C. Fernandez Liesa and C. Moreiro The Community promotes coordination and Gonzalez, op. cit., p. 83: 'the obligation to coordinate State and Community action —which often coincide in sub thus plays an active role, and that is certainly stance and scope — can to a great extent restrict the autonomy of the Member States' policy on development and cooperation'. Similarly, J. Roldan Barbero, op. cit., p. 131: 'In general terms, where the effectiveness of deve lopment cooperation is concerned, centralization rather than multiplication of initiatives is to be preferred' (p. 167). 17 — Case 22/70 Commission v Council [1971] ECR 263.

necessary to enable the Community to carry this sector, is thus able to operate in a man out its functions with a view to attaining one ner fully compatible with the criterion of of the objectives laid down by the Treaty. 1 subsidiarity. In the light of that clarification, I consider that the provisions of Title XVII actually contain the 'powers' needed to pursue the objective laid down in Article 3(q) of the Treaty, obviating the need to use Article 235 as a basis for Community action in that area. I am further of the opinion that — even seeking to rely, as docs the applicant, on the

development cooperation and the effective tested provisions of the Agreement have measures it requires may be beyond the therefore to be interpreted in a way that powers and resources of the individual attaches due importance to the objectives Member States. Moreover , complementary pursued by this new title of the Treaty. That action by the Community exists — as made has a number of consequences which I shall clear, furthermore , in the second paragraph take into account in due course in my Opin of Article 130y and in Article 25 of the ion but which I shall describe forthwith .

policy. The Treaty keeps the two policies 20 — The second paragraph of Article 130y provides that: 'The previous paragraph shall be without prejudice to Member States' competence to negotiate in international bodies and to conclude international agreements'. Article 25 of the Agreement stipulates that: 'Without prejudice to the rei 21 — See, to that effect, J. Raux, op. cit., according to whom, cvant provisions of the Treaties establishing the European given the complex nature of the concept of development Communities, neither this Agreement nor any action taken gradually defined in the various decisions of the Court: 'it thereunder sitali in any way affect the powers of the Mem is understandable that the Council of the European ber States of the Communities to undertake bilateral activi Communities should have thought it "necessary" to use tics with India in the framework of economic cooperation both Article 113 and Article 235 to conclude commercial or to conclude, where appropriate, new economic coopera and economic cooperation agreements with the developing tion agreements with India'. Sec also the second sentence of countries. The provisions of the EEC Treaty (Article 113) Article 1 of Council Regulation (LLC) No 443/92 of 25 could not cover the wealth of proposed agreements, February 1992 on financial and technical assistance to, and whereas they had provided an adequate basis for the con economic cooperation with, the developing countries in elusion of the "first generation agreements" the trade or Asia and Latin America (OJ 1992 L 52, p. 1): ''this coopera commercial cooperation agreements. In future, the Council tion, which shall be in addition to assistance from the Mem will have to use the combined provisions of Article 130y and ber States, shall involve Imančiai and technical development Article 228 when concluding Cooperation agreements with assistance and economic cooperation'. the same oh/ecttves' (p. 183, emphasis added).

'Respect for human rights and democratic principles is the basis for the cooperation between the Contracting Parties and for the Finally, the area covered by development provisions of this Agreement, and it consti­ cooperation must be considered with close tutes an essential element of the Agreement'. reference to the provisions of the third gen­ eration agreements, since this subject-area has already been consolidated in the Treaty, particularly in relation to the objectives and 24 — The need to use third generation agreements as a criterion for determining the substance of Article 130u is confirmed by the use of Article 235 as their legal basis. If that article is a 'substitute' legal basis, Íl follows that measures taken in accordance with the earlier agreements must, for that very reason, be deemed to be specific measures in pursuit of the 22 — In that context, I am unable to support the argument put Community's responsibilities in relation to the attainment forward at the hearing by Portugal to the effect that, in this of development cooperation objectives. The logical conse­ case, the use of Article 113 is superfluous as the cooperation quence, as I sec it, is that the subjcct-matlcr of the measures agreement should be based solely on the provisions con­ taken in accordance with those agreements is encompassed tained in Title XVII. Firstly, thai view is based on an inter­ by the new legal basis. The special features of the history of pretation of the common commercial policy which cannot development cooperation also make any objection founded be accepted in the light of the case-law of the Court of Jus­ on the irrelevance of Community practices in determining tice, as it is unduly restrictive (see, to that effect, the judg­ the legal basis immaterial (see the judgment of 23 February ments cited at footnote 6). Secondly, various provisions 1988 in Case 68/86 United Kingdom v Council [1988] contained in the Agreement, whose legality Ís not, more­ ECR 855, paragraph 29). As I have concluded in my Opin­ over, al issue, relate to matters closely linked to the com­ ion, using academic writing to support my view, the specific mon commercial policy: Article 2 (most-favourcd-nation legal basis of Article 130y was created precisely in order to clause) and Article 3 (iradc and commercial cooperation), confirm the stage reached in Community action with regard for example. There arc clearly therefore two 'concepts' to development and such action must, in my view, be underlying lhe Agreement, namely trade and development, founded on it. It is therefore on that basis alone that I con­ and in interpreting the Agreement those concepts can and sider the existence of similar clauses in earlier agreements to must be kept separale. be a significant pointer to the legality of the provisions of the Agreement in terms of both the objectives pursued and 23 — Opinion of Advócale General Lenz in Case 45/86 Commis- their substance. sion v Council [1987] ECR 1501, especially p. 1512.

24. The Council objects, in general terms, that the applicant makes an artificial distinc­ tion between the Community action referred to in Article 130u and the instruments pro­ vided for that purpose in Articles 130y and 'fundamental rights form an integral part of 130w, with the paradoxical outcome that any the general principles of law whose obser­ action the objective of which is stated in vance the Court ensures. For that purpose, Article 130u ought then to have as its legal the Court draws inspiration from the consti­ basis Article 235. The Council also argues tutional traditions common to the Member that the definition of respect for human Stales and from the guidelines supplied by

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27. Nor does making the protection of human rights and development cooperation interdependent mark a new departure in Community action. This is a link that has been recognized in a variety of measures, dating back to the mid-1980s. I shall mention the most important of them. The first was 28 — Communication from the Commission to the Council on human rights, democracy and development cooperation policy, Bulletin EEC 3/1991, point 1.3.41, p. 64. 29 — Sec the conclusions of the Lisbon European Council in 25 — See Opinion 2/94 (cited at footnote 19), paragraph 33. Bulletin EEC 6/1992, point 1.26, p. 17 (emphasis added). 26 — Furthermore, in order to demonstrate the significance of Sec also, for an earlier, less clearly formulated precedent, the this subject-area for the Community legal order, para­ conclusions of the Luxembourg European Council of 28 graph 32 of Opinion 2/94 contains a specific reference to and 29 June 1991, which reaffirmed the Council's belief that Article 130u. 'certain aspects with an important bearing on these relations 27 — J. Cloos, op. cit., p. 349: 'At first sight, the form of words (with the developing countries), such as broader-based adopted appears merely to be a statement of fact. But it is democracy, respect for human rights, and economic reform, clear that, as far as the authors of the Treaty arc concerned, arc bound to develop further', Bulletin EEC 6/1991, an clement of contingency is implied here'. point 1.30, p. 14.

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. . the exer accordance with the Treaty guidelines. That cise of human rights and fundamental is its purpose, and it is designed to allow the freedoms and democratic principles are pre Community to exercise the right to termi conditions for real and lasting economic and nate the Agreement, in accordance with social development' (second paragraph). Article 60 of the Vienna Convention, where the non-member State has failed to respect 33 human rights within its own legal system. Moreover, that, and that alone, is the signifi cance of the reference in the Agreement to respect for human rights. What matters here is that it is unequivocally directed towards the pursuit of the objectives of development

See, in that connection, Council Decision 94/822/EC of 19 30 — That document, which is designed to lay down guidelines December 1994 concerning the conclusion of a Coopera- for action by the Community and Member States, expressly tion Agreement between the European Community and the mentions (paragraph 5) that human rights are central to Republic of South Africa (OJ 1994 L 341, p. 61). According development cooperation relations and, with that in mind to Article 1 of that agreement: 'Relations between the Com- (paragraph 6), the possibility of taking retaliatory measures munity .

According to Council of Ministers for Development Cooperation, Brussels Article 1 of that agreement: 'Cooperation tics between the 1992, p. 91. Community and Sri Lanka and this Agreement in its 31 — See also the Council guidelines of 18/19 December 1990 entirety arc based on respect for democratic principles and and February 1991 on cooperation with the ALA develop- human rights which inspire the domestic and external poli- ing countries, paragraph 2: The aim of cooperation is cen- cies of both the Community and Sri Lanka and which con- tred on the development of the human being, which pre- stitute an essential element of the Agreement' (emphasis supposes observance and promotion of all human rights. added). Both those instruments had as their legal basis Co-operation measures are consistent with this positive Articles 113, 130y and 228. view, in which respect for human rights is regarded as fun- 33 — The main requirement, within the meaning of Article 60 of damental to true development and co-operation itself is seen the Vienna Convention, is the existence of a 'material' as a contribution to the promotion of these rights' (emphasis breach which may be lawfully invoked by one of the parties added). And again, in the next subparagraph: 'In those cases as a ground for terminating or suspending the Treaty in where human rights arc violated and democratic principles whole or in part. A breach of that nature, within the mean- infringed, the Community could amend the implementation ing of Article 60(3)(b), may consist in the 'violation of a pro- of co-operation by confining co-operation to activities of vision essential to the accomplishment of the object or pur-, direct benefit to those sectors of the population in need.' pose of the Treaty'. See, on this point, R. Pisillo Mazzcschi: The text appears in Compilation of texts adopted by the Risoluzione e sospensione dei Trattati per inadempimento, Council of Ministers for Development Cooperation, p. 115. Milan, 1984, p. 93 et seq. See the third paragraph of For an informative reconstruction of the historical and Article 2 of Regulation No 443/92: 'In the case of funda- political process within which this view of the link between mental and persistent violations of human rights and demo-

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cooperation policy in accordance with Article 13 provides as follows: Article 130u.

29. The latter provision of the Treaty there­ 'The Contracting Parties agree to contribute fore constitutes a secure legal basis for to cooperation on tourism, to be achieved Article 1 of the Agreement. I would go fur­ through specific measures, including: ther than that. The whole of Community action in this area illustrates the importance attaching to respect for human rights in development aid policy for non-member countries. If that is properly taken into (a) interchange of information and the carry­ account, the democracy clause must indeed ing out of studies; be deemed necessary if development coop­ eration policy is to be lawfully pursued. I might venture to add that it would be the failure to adopt a clause of that type that would compromise the legality of Commu­ (b) training programmes; nity action, because compliance with the spe­ cific wording of Article 130u would no longer be guaranteed. I cannot therefore endorse the applicant's objections on that point. (c) promotion of investment and joint ven­ tures'.

Energy, tourism and culture

Article 15 provides as follows:

31. According to the defendant and the Commission, those provisions of the Agree­ ment are instead ancillary to development cooperation, which forms the real core of the Agreement, and, moreover, are not of a pre­ (d) organizing cultural events and exchanges'. scriptive nature.

Assessment Positions of the parties

32. In view of the argument put forward by Portugal, we also have to consider whether 30. The applicant submits, in relation to the subject-areas at issue may be linked to these three areas, that there is no specific the objectives of cooperation as laid down in legal base for Community competence and Article 130u and whether the provisions of that Article 235 must therefore be used for the Agreement may, given their substance, the conclusion of the Agreement. Generally fall within the range of matters covered by speaking, energy and tourism are considered the agreements provided for in Article 130y. in Article 3(t) of the Treaty only, while responsibility for cultural matters, assigned to the Community by Article 128(2), is 34 purely a matter of coordination.

33. The answer to the first question must, in 34 — The first paragraph of Article 128(2), relating to culture, provides as follows: 'Action by the Community shall be my view, be in the affirmative. These three aimed at encouraging cooperation between the Member States and, if necessary, supporting and supplementing their areas are crucially important to development action ...'. and therefore clearly fall within this subject-

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34. So far as energy is concerned, no further That brings us to culture. It is useful to see assessment is needed, as the provision of the here what the Treaty has to say regarding the Agreement to the effect that this is an area provisions of Title IX. Article 128(4) links important 'to social and economic de­ cultural policy to the Community's other velopment' is conclusive. Furthermore, policies: 'The Community shall take cultural Article 8(1) of Regulation No 443/92 itself aspects into account in its action under other provided that economic cooperation with the provisions of this Treaty'. Article 128(3) pro­ developing countries 'shall cover all econ­ vides for clear international scope for Com­ omic, technical and scientific fields, in par- munity action in this field by laying down 36 ticular energy'. As specified by Article 7 of that: 'The Community and the Member the Agreement, among the various energy States shall foster cooperation with third sources, priority attaches to alternative countries ... in the sphere of culture'. sources. That solution is fully consistent with the environmental principle which, as I have had occasion to point out, is linked to the concept of sustainable development and to the reference to 'industrial ecology' in Article 8 of the abovementioned regulation.

35 — Sec to that effect ex midtis Council Decision 92/509/EEC of 19 October 1992 concerning the conclusion of the frame­ work cooperation agreement between the European Econ­ omic Community and the Republic of Paraguay (OJ 1992 Culture is therefore a 'transversal' Commu- L 313, p. 71; Articles 13 and 17 of the agreement); Council Decision 91/627/EEC of 7 October 1991 concerning the nity objective which influences individual conclusion of the framework cooperation agreement sectoral policies and leaves its mark on the between the European Economic Community and the United States of Mexico (OJ 1991 L 340, p. 1; Articles 30, Community's international activity, includ­ 32 and 35 of the agreement). ing action in the field of development coop­ 36 — Regulation No 443/92 (cited at footnote 20; emphasis added). eration.

36. Hence there is no doubt that, in terms of the objectives pursued, those areas are cov­ ered by the concept of development coop­ eration. It is, however, necessary to take into account the substance of the provisions adopted by the Agreement. Were they to impose detailed and specific obligations on the Member States, Community competence could be called in question on account of the possible implications of its exercise for the It is clear that these are statements of prin­ ciple rather than specific obligations binding on the parties. Nor can I endorse the view of 37 — Council guidelines of 18/19 December 1990 and 4 February the applicant, according to which the Agree­ 1991 on cooperation with the ALA developing countries in Compilation of Texts adopted by the Council of Ministers ment itself provides for measures to be for Development Cooperation, Brussels, 1992, p. 115. Those adopted that would require recourse to guidelines were then reflected in a series of agreements con eluded by the Community with countries of the ALA Article 235. The activities provided for group. See also, in addition to those already cited. Council Decision 91/158/EEC of 4 March 1991 concerning the con (exchanges of information, studies, promo­ elusion of the Framework Agreement for cooperation between the European Economic Community and the tion and training activities), although general, Republic of Chile (OJ 1991 L 79, p. 1, Article 13 of the are directly and clearly linked to cooperation agreement) and Council Decision 92/205/EEC of 16 March 1992 concerning the conclusion of the Framework Agree in those sectors and, in view of their ancil­ ment for cooperation between the European Economic lary nature, may be founded on the legal Community and the Eastern Republic of Uruguay (OJ 1992 I. 94, p. 1; Article 16 of the agreement). basis adopted for the conclusion of the

38. Article 10 of the Agreement provides as 39. Portugal does not consider the Commu­ follows: nity competent, on the basis of Articles 113 and 130y, to enter into such undertakings. In support of its submission, the applicant cites the judgments of the Court in this area, in which it ruled that in the absence of Com­ munity provisions harmonizing national rules, it is for the Member States to establish, in compliance with international agreements, 'The Contracting Parties undertake to ensure the conditions and procedures governing lit­ 39 as far as their laws, regulations and policies erary and artistic property. The rationale allow that suitable and effective protection is behind that case-law is to prevent the Com­ provided for intellectual property rights, munity from using external agreements as an including patents, trade or service marks, indirect means of encroaching upon areas copyright and similar rights, geographical which it is instead required to regulate in designations (including marks of origin), accordance with the procedural and voting industrial designs and integrated circuit arrangements laid down by Articles 100 and topographies, reinforcing this protection 100a as regards internal market harmoniza­ where desirable. They also undertake, wher­ tion measures, or by Article 235 as regards the creation of new rights taking precedence 40 over national rights. That conclusion is borne out by Opinion 1/94 in which the 38 — For an assessment of 'ancillary' in relation to clauses similar to those at issue in this case, sec Opinion 1/78 (cited at Court established that the Member States footnote 6), paragraph 56. Nor can I support the objections made by the applicant at the hearing with regard to train­ and the Community were jointly competent 41 ing. I am persuaded that the measures have to be viewed in in relation to the TRIPs Agreement. terms of the objective of the Agreement and not, as the applicant would appear to view them (and not only in rela­ tion to this point), in absolute terms. In other words, wc arc not dealing with an agreement concerned mainly with voca­ tional training but with measures that arc clearly ancillary to the objectives of development cooperation which seem to me — and this, I think, is worth stressing — to involve 39 — Judgment of 20 October 1993 in Joined Cases C-92/92 and aspects that concern training. Indeed, various Community C-326/92 Phil Collins [1993] ECR I-5145, paragraph 19; instruments bear witness to that. Regulation No 443/92, for judgment of 24 January 1989 in Case 341/87 EMI-Electrola example, which provides (in Articles 5 and 7) for training [1989] ECR 79, paragraph 11. measures; or the abovementioned Council guidelines (foot­ 40 — As laid down by Council Regulation (EC) No 40/94 of 20 note 37) which include training among the areas to which December 1993 on the Community trade mark (OJ 1994 priority is to be given for cooperation measures implemented L 11, p. 1). by the Community (p. 119, paragraph 2; emphasis added). 41 — Opinion 1/94 of 15 November 1994 [1994] ECR I-5267.

43. In assessing the legality of intellectual Assessment property clauses contained in agreements entered into by the Community on the basis of Article 113, the Court has, however, iden­ tified a partial derogation from the principle set forth above. Full Community compe­ tence has been recognized in cases in which 41. I too believe that this issue has to be the external agreement concluded on the considered on the basis of the view taken by basis of Article 113 contains 'ancillary provi­ the Court in Opinion 1/94, where it does sions for the organization of purely consul­ indeed state that the Community does not tative procedures or clauses calling on the enjoy exclusive competence in relation to other party to raise the level of protection of 44 intellectual property and that the Member intellectual property'. States have to be accorded joint competence. This means that, in external relations, mat­ ters have to be regulated by means of mixed agreements.

44. Let us consider this case in the light of the view taken by the Court. If we look at the terms in which it is worded, the con­ 42. It has to be borne in mind, however, that tested clause of the Agreement cannot be the Court reached that conclusion in relation equated with the provisions of the TRIPs to an agreement which is very broad in Agreement. As far as I am concerned, given scope, is very detailed in substance and is the way in which the common commercial designed 'to strengthen and harmonize the policy has been interpreted in the case-law of protection of intellectual property on a the Court, the clause can instead be covered world-wide scale' where there are as yet no by Article 113, as both the Commission and 42 Community harmonization measures.

47. In addition, the considerations set forth by the Court in the abovementioned opinion on the link between intellectual property and trade in products take on special significance 46. In the second place, the obligation aris­ for the economies of the developing coun­ ing under the Agreement is no more, in my tries. The incentive effect with which exclu­ view, than an incentive to apply the legisla­ sive rights have to be credited constitutes a tion and thus, to adopt the terminology used by the Court in the abovementioned opin­ ion, it is fundamentally an 'invitation' to the other party to the Agreement to increase 48 — See, ex multis, Council Decision 93/407/EEC of 19 July 1993 on the conclusion of the cooperation agreement the level of protection. In those terms, the between the European Economic Community and the Republic of Slovenia (OJ 1993 L 189, p. 1; Article 27 of that obligation laid down has to be deemed a agreement). standard clause, eminently political in sub­ 49 — Also ancillary in nature is the undertaking, contained in the second sentence of the provision at issue, 'wherever pos­ stance, while its legal purpose is, in any sible to facilitate access to the data bases of intellectual property organizations'. Even there, the obligation assumes what is clearly an ancillary nature as compared with the commercial policy content of the Agreement and can in many ways be equated with those 'ancillary provisions for the organization of purely consultative procedures' whose 45 — See judgment of 26 March 1987 in Case 45/86 (cited at inclusion in the commercial policy agreements entered into footnote 5). by the Community in that field has, as we have seen, been 46 — See Opinion 1/78, cited at footnote 6, paragraph 56. found to be lawful by the Court in Opinion 1/94 (para­ graph 68, but see also the examples given in paragraph 67). 47 — See Opinion 1/94, cited above, paragraph 60.

Article 19 of the Agreement provides as fol­ lows:

(c) technical, financial and administrative assistance in the monitoring of precursors 1. 'The Contracting Parties affirm their trade, prevention, treatment and reduc­ resolve, in conformity with their respec­ tion of drug abuse;

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OPINION OF MR LA PERGOLA — CASE C-268/94

(d) exchange of all relevant information, market; that would allow the Community, including that relating to money launder­ on the basis of the principle of parallel ing.' action, to deal with that same subject-area in external relations as well. The Commission takes a different view: the provisions of the Agreement on combating drugs must be directly linked to the pursuit of the objec­ tives of social and economic development and thus be based on Article 130y. Positions of the parties

49. The applicant claims that the provision Assessment at issue involves reciprocal commitments in regard to combating drug abuse. There are, however, no Treaty provisions covering drug abuse or any Community measures on the internal market capable of justifying the inclusion of provisions of that nature in the Agreement. In any event, since these relate to cooperation in justice and home affairs (regulated by Article K.1(4) and (9) of the Treaty), the contested provisions of the 51. Combating drugs was not expressly rec­ Agreement should have been adopted using ognized in the Community legal order until the mixed-agreement procedure. the advent of the Maastricht Treaty. The adoption of rules in this area is, however, either a matter for the Community or it is reserved, under the Maastricht system, for the common external and security policy and cooperation in justice and home affairs.

(Article K.1(3)(7)), customs cooperation 53. Having made that general point, I now (Article K.1(3)(8)) and police cooperation turn to the substance of the issue. It is my (Article K.1(3)(9)). view that, in the light of its objectives, com­ bating drugs has to be viewed as part of development policy. That approach is to be preferred, as is confirmed by the position adopted by the Community institutions on various occasions. In the first place, there are the guidelines for cooperation drawn up by 5 the Commission 1and approved by the Council (of Ministers for Cooperation with Developing Countries) in two statements The relevant Community provision is, how­ made in 1990 and 1991, which list combating ever, Article 129 which has, in a sense, 'con- drugs among the six main areas of develop­ stitutionalized' the principle of health in the ment aid. Community legal order. The second para­ graph of Article 129(1) provides that 'Com­ munity action shall be directed towards the prevention of diseases, in particular the major health scourges, including drug depen- dence' (emphasis added) and goes on to state: 'Health protection requirements shall form a constituent part of the Community's other policies' (third paragraph of Article 129(1)). On that occasion, it was pointed out that:

'Community cooperation ... in the fight 52. I am aware that, as the applicant points against drugs will be stepped up on the basis out, Community action under Article 129 of a dialogue within the more general context involves simply coordinating the policies of of the economic development of the producer the Member States. I consider, however, that countries and their cooperation with the the reference contained in the third para­ European Community. This cooperation will graph of Article 129(1) is of major signifi­ consist of action covering humanitarian aid as cance for the analysis we arc conducting well as development aid.' 52

That approach was subsequently confirmed 54. Development cooperation must there­ by Regulation No 443/92. In relation to fore relate directly to the fight against Community action in the field of develop­ drugs. That is the decision of the Commu­ ment cooperation, the regulation provides: nity institutions. The reasons are quite clear. The repercussions of an economy based on the production of narcotics — or deriving substantial revenue from narcotics produc­ tion — on the structures of a developing society are bound to jeopardize the smooth integration of the country concerned into the world economy. The marginalization, the incentive to commit crime and the disruption of social structures resulting from drug use and the drugs industry are incompatible with the very concept of sustainable social deve­ lopment and make it impossible to create the 'Special attention must be given to measures conditions necessary for the objectives of to combat drugs. Community cooperation ... Community policy to be attained. to promote the fight against drugs shall be stepped up on the basis of a dialogue within the more general context of the economic development of the producer countries and their cooperation with the European Com­ 53 munity'.

55. Given its objectives, the relevant provi­ In accordance with those guidelines, the fight sion of the Agreement can, in my view, against drugs has since become an integral legitimately be considered to reflect the part of the 'third generation' cooperation objectives of Article 130u. Whether its agreements which contain provisions similar content justifies recourse to Article 130y or 54 in content to the clause at issue. requires a different legal basis is another matter.

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PORTUGAL v COUNCIL

56. What is the solution? The first point to 59. Similar considerations apply to the mea­ note is that the obligation laid down in the sures designed to encourage the alternative first paragraph of the provision at issue economic opportunities provided for in amounts to a simple statement of intent. The Article 19(2)(b). Reconversion of areas used parties merely reiterate their 'resolve' to act to grow opiates is one of the 'historical' mea­ efficiently, in conformity with their respec­ sures taken by the Community in this area. tive competences, by applying 'policies' and As of 1987, a specific North-South coopera­ 'measures', both in relation to the drugs mar­ tion programme was created to fund that ket and by preventing and reducing drug process. 56 Bearing in mind the link between abuse and thus, as an economist would put such action and the 'rural' sector which, it, in relation to either the supply or the according to the Community guidelines, demand side of the product in question. constitutes a priority area for Community action in the field of cooperation, the mea­ sures concerned are without doubt ancillary to the objectives pursued. 57

57. That said, it is clear that we would not be faced with the problem had the Commu­ nity effectively covered itself by adopting harmonizing measures. No such measure has been envisaged. Nor was it necessary to make provision for such measures under the Agreement.

61. A more detailed analysis is, however, assistance geared to those aims is clearly cru­ needed to assess the measures referred to in cial if the fight against drugs is to be effec­ the first part of Article 19(2)(c). The Com­ tive. Given that they are ancillary to the aims munity took action in this area in the form of cooperation, the measures in question of Council Regulation (EEC) No 3677/90 may lawfully be based on Article 130y. which laid down the measures to be taken to monitor trade between the Community and third countries in substances frequently used for the illegal manufacture of narcotic drugs and psychotropic substances, to prevent the diversion of such substances. That regu­ lation, adopted on the basis of Article 113, forms part of the more general commitment 62. The latter argument and the wider con­ on the part of the Community to take action, text in which the Community is operating in within the limits of its powers, in the context this field must also be taken into account of international initiatives to combat drugs, when assessing the measures provided for in the most important instance of which was Article 19(2)(d). the conclusion of the United Nations Con­ vention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, signed in Vienna on 19 December 1988 by the Community and the Member States. As stated in the regulation, it is in the spirit of that Convention that the Community is con­ tributing to the efforts made by the producer 63. If it is to pursue an adequate anti-drugs countries to combat drug trafficking (seventh policy, the Community must have available recital in the preamble to the regulation). to it the necessary data, and a European Monitoring Centre for Drugs and Drug 58 Addiction was set up for that purpose. The purpose of the Centre is to provide 'the Community and its Member States ... with objective, reliable and comparable infor­ mation at European level concerning drugs and drug addiction and their consequences' (Article 1(2)). The information in question does not relate to 'specific named cases' (Article 1(5)). The Centre is to collect, regis­ ter and analyse information of a general 59 nature on this issue (Article 2). Among the priority sectors of information listed in the It is also on the basis of that data that the annex to the abovementioned regulation Community may, in my view, adopt mea­ are (Part A, paragraph 5) the 'implications of sures in this field by means of cooperation the drugs phenomenon for the producer, agreements with non-member countries. Monitoring trade in psychotropic substances actually forms part of this global programme of cooperation to combat drugs and may, as 58 — The Monitoring Centre was established by Regulation No 302/93 (cited at footnote 50). such, inform action undertaken in pursuit of 59 — As regards the confidential nature of the data collated, sec the aims of Article 130u. Action to provide also the provisions of Article 6.

66. That preliminary observation requires further clarification, however. The measure 64. There remains the problem of the legal in question must be deemed to be linked to basis on which such action should be the general guidelines adopted by the Com­ founded externally. In point of fact, not only munity to combat drugs in the context of docs the regulation have Article 235 of the development cooperation. According to the Treaty as its legal basis, it also provides that Community measures considered above, the 'the Centre shall be open to the participation drugs problem is clearly encompassed within of those non-Community countries which this sphere de plano. The exchange of infor­ share the Community's interests and those mation is therefore a means of preliminary of its Member States in the Centre's objec­ analysis, the purpose of which is to secure tives and work, on the basis of agreements the adoption of the measures needed to com­ entered into between them and the Commu­ bat drugs. That is also apparent from the sev­ nity on the basis of Article 235 of the Treaty' enth recital in the preamble to, and Article 2 (Article 13). of, the abovementioned regulation, according to which the information collected acts as a basis for Community action with a view to the adoption of measures to combat drugs. The measure provided for under Article 19(2)(d) is therefore ancillary to the objective of combating drugs pursued by means of the cooperation agreements, pre­ 65. Notwithstanding those two references to cisely because it provides for and permits the Article 235, however, the clause of the adoption of other appropriate measures Agreement at issue here may be deemed to allowing action to be taken in this sector. be based on the rule contained in Article 130y in so far as it is clearly ancillary to the prime objective of the Agreement itself. That is apparent from a variety of con­ siderations.

tion provided by the Council at the hearing with the Republic of India is (only) 'all' that concerning the nature of that information. It which is 'relevant', that is to say, which has a is, in fact, general information, that is to say direct bearing on cooperation between the similar to the kind which, as I have had occa­ Community and the Republic of India. sion to point out, the Community obtains Apart from that subjective restriction on the from the Monitoring Centre and uses — in exchange of information, there is another, as whatever form it considers most effective — it were, objective constraint. The infor­ where, as in this case, it embarks upon action mation forming the subject of the exchange likely to be covered by the fight against is 'relevant', within the meaning of Art drugs, in the broad sense. The measures pro­ 19(2)(d), if and in so far as it contributes to vided for in Article 19(1) of the Agreement the measures provided for in Article 19(2)(a), fall therefore within the purview of the (h) and (c) and to pursuit of the general Community and do not exceed the limits of objective laid down in Article 19(1). The its competence. This case does not involve exchange of information here has been such areas of police cooperation as fall designed with a partial function in mind, that within the scope of cooperation in justice is to say, it constitutes a method that lays the and home affairs. foundations for the fight against drugs exclusively within the framework of any measures that may be adopted in the field of development cooperation.