C-42/97

PARLIAMENT v COUNCIL

OPINION OF ADVOCATE GENERAL LA PERGOLA delivered on 5 May 1998 *

3 1. In these proceedings, the European Parlia­ of 21 June 1996, the Parliament stated that ment seeks the annulment of Council Deci­ the decision should have been based not only sion 96/664/EC of 21 November 1996 on the on Article 130 but also on Article 128 in order adoption of a multi-annual programme to to stress the cultural aspects of the pro­ promote linguistic diversity of the Commu­ gramme. The Commission, however, main­ nity in the information society. 1 The Parlia­ tained its initial proposal as regards the choice ment's objection concerns the legal basis of of legal basis and, on 21 November 1996, the the decision, which was adopted on the basis Council adopted the contested measure on of Article 130 of the Treaty. According to the the basis of Article 130 alone. The Parliament applicant institution, the decision should then commenced proceedings before this instead have been based on Article 128, con­ Court for annulment of the decision. cerning Community action in the cultural field.

3. To appraise the appropriateness of the legal basis for the measure in question, it is neces­ Facts and legislative background sary first, according to settled case-law of the Court, 4 to examine its purpose and content.

The first recital in the preamble states: 2. The procedure prior to the adoption of the measure may be summarised as follows. On 8 November 1995, the Commission submitted to the Council a proposal for a decision on the adoption of a multi-annual programme to promote the linguistic diversity of the Com­ 'The advent of the information society pro­ munity in the information society (hereinaf­ vides industry and in particular the language 2 ter 'the MLIS programme'). By resolution industry with new prospects for communica­ tion and trade on European and world mar-

Emphasis is also laid on the positive conse­ 5 — Second recital. quences of the decision for Community citi-

I-872

PARLIAMENT v COUNCIL

zens regarding both 'equitable access to infor­ munity, which make use of language tech­ mation', which 'should be available to them nologies, resources and standards, in their language', and the 'opportunity for access to the cultural and linguistic wealth 7 and diversity of Europe'.

— to create favourable conditions for the development of the language industries,

The preamble then goes on to state that:

— to raise awareness of and stimulate provi­ sion of multilingual services in the Com­

(b) language industries are defined as compa­ nies, institutions and professionals that 6 — Eleventh recitai. 7 — Sixth recital. provide, or enable the provision of, mono­ 8 — Twelfth recital. lingual or multilingual services, in fields

I-873

OPINION OF MR LA PERGOLA — CASE C-42/97

such as information retrieval, translation, — accompanying measures. language engineering and electronic dic­ tionaries.'

Article 2 then defines the content of the pro­ None of these actions should duplicate the gramme in detail: work being carried out in these fields under Community or national programmes.

PARLIAMENT v COUNCIL

Article 128, appearing in Tide IX, concerning 3. The Community and the Member States culture, is worded as follows: shall foster cooperation with third countries and the competent international organisations in the sphere of culture, in particular the Council of Europe.

'The Community shall contribute to the flow­ ering of the cultures of the Member States, while respecting their national and regional 4. The Community shall take cultural aspects diversity and at the same time bringing the into account in its action under other provi­ common cultural heritage to the fore. sions of this Treaty, in particular in order to respect and to promote the diversity of its cultures.'

2. Action by the Community shall be aimed at encouraging cooperation between Member States and, if necessary, supporting and supple­ In order to achieve the above objectives, the menting their action in the following areas: Council is vested with authority of two kinds: it may adopt recommendations, 'acting unani­ mously on a proposal from the Commis­ 1 sion'; 1 or adopt 'incentive measures, excluding any harmonisation of the laws and 1 regulations of the Member States'. 2In such — improvement of the knowledge and dis­ circumstances, provision is made for recourse semination of the culture and history of to the 'co-decision' procedure governed by the European peoples; Article 189b.

— conservation and safeguarding of cultural heritage of European significance; Also relevant is Article 130, which appears in Title XIII, which is concerned with industry:

— non-commercial cultural exchanges; 'The Community and the Member States shall ensure that the conditions necessary for the

5. At the outset, it must noted that the Par­ liament does not dispute the appropriateness of Article 130 as a legal basis for the con­ — encouraging an environment favourable to tested measure; however, it does not consider cooperation between undertakings; 1 that it constitutes the only basis; 3that provi­ sion should be accompanied by another, Article 128. The central issue in these pro­ ceedings, therefore, is whether, in the light of the aim and content of the contested measure, recourse was required to the dual legal basis — fostering better exploitation of the indus­ contended for by the Parliament. trial potential of policies of innovation, research and technological development.

13 — The Parliament submits, however, that the Council, in accen- tuating the industrial aspects of the measure, improperly used expressions such as 'language industries', which the Parliament does not consider to exist. The Council, for its part, replies correctly that that expression, used in Article 1(2)(b), refers collectively to all economic operators which, in various ways, arc engaged in that sector of activity. A sector, I would add, of which it seems to me to be difficult to deny the existence.

I-876

PARLIAMENT v COUNCIL

It seems to be that the decision under review 6. I cannot agree with the Parliament's argu­ purports to pursue the second aim, and not ment. I do not consider that in this case 'lin­ the first. The legislature starts from the pre­ miss that 'industry and all other players con- cerned must work out specific and adequate solutions to overcome the linguistic barriers 14 — The Parliament, at the hearing, observed that the cultural aspects of the decision are also apparent from the fact that if they are to benefit fully from the advan- the financial resources necessary for its implementation were included in the Commission budget under the heading 'cul- tages of the internal market and remain com- ture'; the Council did not respond by dealing with the 15 petitive on world markets'. Particular impor­ substance of that contention, merely stating that it was put forward at a late stage. However, the Parliament's argument, tance is then attached to the fact that 'small whether late or not, does not seem to me to be pertinent. I do not see how the allocation of the programme concerned within the Commission budget can affect the Court's view of the legal basis of the decision: in the first place, the budget was approved after the measure in question here was adopted; moreover, it is quite possible that there was a mistake in budgetary allocation rather than in the choice of the legal basis for the measure. 15 — Second recital. Emphasis added.

I - 877

OPINION OF MR LA PERGOLA — CASE C-42/97

and medium-sized enterprises ... face consid- That conclusion is then supported by Article erable difficulties in addressing different lan- 2, which describes the Community actions guage markets and must thus be supported intended to achieve the abovementioned objec­ 16 ...'. tives:

'Promotion of the use of advanced language tools in the Community and Member States public sector' (third indent); Essentially, the Community programme is clearly inspired by considerations of an eco­ nomic nature, as, moreover, is expressly stated in Article 1 of the decision, which sets out its purposes: 'to raise awareness of and stimulate provision of multi-lingual services in the Com­ 'Accompanying measures' (fourth indent). munity, which make use of language tech­ nologies, resources and standards' (first indent); 'to create favourable conditions for the development of the language industries' (second indent); 'to reduce the cost of infor­ mation transfer among languages, in par­ Here again we are concerned with technical ticular for the sake of SMEs' (third indent). action focusing on commercial applications and, therefore, designed to help undertakings operate on a trans-national basis. And that 16 — Third recital. Emphasis added. therefore must be the context for evaluating 17 — Fourth recital. Emphasis added. the scope to be attributed to the fourth indent

I-878

PARLIAMENT v COUNCIL

I do not thereby mean to exclude the possi­ bility that the Community programme in question, once implemented, may have reper- 18 — It need hardly be pointed out that there is no merit in the I consider that the twelfth recital should be Parliament's view that part of the decision does not come read in that light, where it states that 'lan­ within the scope of Article 130 and therefore necessitated recourse to Article 128. More specifically, the applicant insti- guages that remain excluded from the infor­ tution refers to the third indent of Article 2, which includes mation society would run the risk of a more among the programme's actions 'promotion of the use of or less rapid marginalisation'. That phrase is advanced language tools in the Community and Member States public sector'. In its opinion, the actions at issue here referred to by the Parliament, which considers relate to the public sector, and thereby fall outside the scope that the protection of less-widely spoken lan­ of Article 130, which concerns the private sector alone. guages has a clearly cultural dimension. It is However, the Council was right to reply that the provision just referred to is intended to ensure 'the conditions neces- wrong to do so, however: the danger which sary for the competitiveness of industry'; and the proper the legislature sought to ward off is that of functioning of the Community administration, and of the marginalisation in the commercial sphere, not national administrations, constitutes one of those conditions; moreover, the term 'public sector' embraces not only admin- the cultural sphere. And it is for that reason istrations properly so called but also public undertakings.

8. In conclusion, I do not perceive in the decision any purposive factor or substantive content such as to render it classifiable as Community action in the area of culture and The foregoing considerations are also con­ to make it necessary to have recourse also to firmed by the very wording of Article 128(4), Article 128 for the adoption of the measure. The promotion of 'linguistic diversity' is, I repeat, treated in the decision as a commercial 19 — The possibility likewise cannot be excluded of repercussions matter; and the cultural aspects of the deci­ outside the strictly commercial sphere, albeit of an indirect nature and affecting future developments: see the sixth recital, sion are merely an indirect consequence inci­ which lays emphasis on the opportunities of access to cul- ture which will become available to European citizens with dental to the purpose and content of the mea­ the advent of the information society. sure in question. 20 — See Case C-271/94 Parliament v Council [1996] ECR I-1689.

I-880

PARLIAMENT v COUNCIL

Conclusions

In view of the foregoing considerations, I suggest that the Court:

— dismiss the European Parliament's action;