Commission of the European Communities v Council of the EC. (Eec Treaty ) [1989] EUECJ C-242/87 (30 May 1989)

Judgment 1 By an application lodged at the Court Registry on 7 August 1987, the Commission of the European Communities brought an action under the first paragraph of Article 173 of the EEC Treaty for the annulment of Council Decision 87/327/EEC of 15 June 1987 adopting the European Community Action Scheme for the Mobility of University Students ( Erasmus ) ( Official Journal 1987, L 166, p . 20 ). 2 That decision purports to have as its legal basis Articles 128 and 235 of the EEC Treaty and Council Decision 63/266/EEC of 2 April 1963 laying down general principles for implementing a common vocational training policy ( Official Journal, English Special Edition 1963-64, p . 25 ). 3 The Commission bases its action on two submissions : infringement of the Treaty, because the Council added Article 235 to the legal basis proposed by the Commission, and infringement of essential procedural requirements, inasmuch as that addition was based on a statement of reasons which does not satisfy the requirements of Article 190 of the Treaty . 4 The Federal Republic of Germany, the United Kingdom of Great Britain and Northern Ireland and the French Republic intervened in support of the conclusions of the Council . 5 Reference is made to the Report for the Hearing for an account of the facts of the case, the course of the procedure and the submissions and arguments of the parties, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court . Legal basis 6 As the Court has already stated, 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 ( judgment of 26 March 1987 in Case 45/86 Commission v Council (( 1987 )) ECR 1493 ). 7 The Commission maintains that the Council had the power to adopt the contested decision on the sole basis of Article 128 of the Treaty and Decision 63/266 . According to the Council and the intervening governments, the additional reference to Article 235 was necessary, first, because the measures planned under the Erasmus programme go beyond the powers conferred on the Council by Article 128 in the area of vocational training and, secondly, because the subject-matter of that programme exceeds the scope of vocational training within the meaning of that article . It is therefore necessary to examine the various arguments put forward to justify recourse to Article 235 with those two points in mind . ( a ) The powers of the Council in the area of vocational training 8 Whereas the Commission considers that Article 128 of the EEC Treaty constitutes the proper legal basis for the adoption of operational measures for implementing the common vocational training policy, the Council and the intervening governments maintain that that provision of the Treaty allows for the development of that policy at an embryonic stage only . They believe that the provision in question is of a programmatic rather than instrumental character and provides for a division of powers between the Member States and the Community institutions . They assert that while it is for the Council to define the criteria with which the Member States are obliged to comply when implementing the vocational training policy, it is not within the Council' s power, on the basis of that same provision, to specify Community action of the kind planned in the Erasmus programme . 9 In the face of those divergent views, it should be recalled that Article 128 provides that "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 common vocational training policy capable of contributing to the harmonious development both of the national economies and of the common market ". As the Commission has rightly pointed out, the fact that the implementation of a common vocational training policy is provided for precludes any interpretation of that provision which would mean denying the Community the means of action needed to carry out that common policy effectively . 10 The Court has already noted, in its judgment of 13 February 1985 in Case 293/83 Gravier v City of Liège (( 1985 )) ECR 593, that the common vocational training policy referred to in Article 128 of the Treaty is gradually being established . The abovementioned Decision 63/266, which constitutes the point of departure for that process of gradual implementation, is based on the idea that the task of implementing the general principles of the common vocational training policy ( see in particular the fourth paragraph of the first principle, the first and second paragraphs of the fourth principle and the fifth, eighth and ninth principles ) is one for the Member States and the Community institutions working in cooperation . 11 From an interpretation of Article 128 based on that conception it follows that the Council is entitled to adopt legal measures providing for Community action in the sphere of vocational training and imposing corresponding obligations of cooperation on the Member States . Such an interpretation is in accordance with the wording of Article 128 and also ensures the effectiveness of that provision . 12 That interpretation cannot be invalidated by the fact that Article 128 does not provide for the involvement of the European Parliament and does not contain any specific requirements concerning the majority required for a decision by the Council, whereas other provisions of the Treaty lay down stricter procedural requirements for the adoption of measures concerning the implementation of a common policy or even the coordination of national policies or provisions . 13 Under the system governing Community powers, the powers of the institutions and the conditions on their exercise derive from various specific provisions of the Treaty, and the differences between those provisions, particularly as regards the involvement of the European Parliament, are not always based on consistent criteria . 14 It must, however, be added that among the provisions of the Treaty relied upon in support of the Council' s position, Article 57 is certainly relevant in defining the scope of Article 128 . Article 57 provides specifically for the adoption of directives for the mutual recognition of diplomas, certificates and other evidence of formal qualifications and for the coordination of national provisions concerning the taking up and pursuit of activities as self-employed persons . It follows that that type of measure, even if it concerns the area of vocational training, does not fall under Article 128 . 15 However, the scope of that provision as a general basis for the adoption of measures relating to vocational training policy cannot be limited by the fact that specific action in the sphere of vocational training is envisaged in particular in Article 41 of the Treaty in the context of the common agricultural policy and in Article 125 in connection with aid granted by the European Social Fund . 16 It was also submitted that a measure having budgetary implications as significant as those of the Erasmus programme could not be adopted pursuant to Article 128 . 17 It should be pointed out first that in so far as that argument is based on a comparison between the procedural requirements of Article 128 and those of other provisions of the Treaty having budgetary implications, it has already been rejected above . 18 In so far as the argument is based on the fact that the budgetary decisions concerning the Erasmus programme need to be subject to more onerous procedural requirements than those laid down in Article 128, it must be pointed out that under the scheme of the Treaty the conditions under which legislative powers and budgetary powers are exercised are not the same . Consequently, the requirements of the budgetary procedure laid down for making available the appropriations needed for the implementation of the programme at issue cannot have any implications regarding the procedural requirements for the adoption of the contested decision, since those requirements fall under a completely separate provision . 19 In the light of the foregoing, it must be held that the measures envisaged under the Erasmus programme do not exceed the limits of the powers conferred on the Council by Article 128 of the Treaty in the area of vocational training . The decision in question provides for Community information projects and promotional activity and imposes on Member States obligations of cooperation . 20 Although it is true that Action 3 of the programme concerns "measures to promote mobility though the academic recognition of diplomas and periods of study", examination of the various measures provided for in this part of the programme shows that they are designed merely to prepare for and encourage the recognition envisaged; that recognition itself is not the subject-matter of the action . The nature of the action is thus sufficient to show that it does not fall under the exclusive scope of application of Article 57 of the Treaty . 21 It follows from the foregoing that the Council was empowered to enact the contested measure on the basis of Article 128 of the Treaty, subject to examination of the question whether that measure exceeded the scope of vocational training . ( b ) The scope of vocational training 22 While the Commission considers that the programme in question concerns vocational training alone, the Council and the intervening governments believe that it goes beyond that field in several respects . 23 They claim in the first place that the Erasmus programme is applicable to all university studies, a large part of which do not constitute vocational training . 24 As the Court has consistently held ( see primarily its judgment of 13 February 1985 in Gravier, cited above ), any form of education which prepares for a qualification for a particular profession, trade or employment or which provides the necessary skills for such a profession, trade or employment is vocational training, whatever the age and the level of training of the pupils or students, even if the training programme includes an element of general education . 25 In its judgment of 2 February 1988 in Case 24/86 Blaizot (( 1988 )) ECR 379, the Court has already stated that, in general, university studies fulfil those criteria and the only exceptions are certain courses of study which, because of their particular nature, are intended for persons wishing to improve their general knowledge rather than prepare themselves for an occupation . 26 It also follows from that judgment that studies do not cease to constitute vocational training where they do not directly provide the required qualification for a particular profession but provide specific training and skills, or in the case of university education, they are divided into different stages which must be regarded as a single unit, where it is not possible to make a distinction between one stage which does not constitute vocational training and a second which does ( see also the judgment of 27 September 1988 in Case 263/86 Humbel (( 1988 )) ECR 5365 ). 27 It follows that in general the studies to which the contested programme applies fall within the sphere of vocational training, and only in exceptional cases will the action planned under the programme be found to be applicable to university studies which, because of their particular character, are outside that sphere . The mere possibility of the latter cannot justify the conclusion that the contested programme goes beyond the scope of vocational training and that therefore the Council was not empowered to adopt it pursuant to Article 128 of the Treaty . 28 It was maintained, secondly, that certain objectives of the contested programme, in particular that of "(( strengthening )) the interaction between citizens in different Member States with a view to consolidating the concept of a people' s Europe" ( Article 2(iv ) of the contested decision ) exceeded the scope of vocational training . 29 In that regard it must be pointed out, first, that the Court has already held that there is a special link between the common vocational training policy and the free movement of persons ( see the judgment of 13 February 1985, Gravier, cited above ) and, secondly, that the perfectly legitimate aim that the development of a common policy should be in keeping with the general objectives of the Community, such as the achievement of a people' s Europe, cannot lead to a change in the proper legal basis of measures which fall objectively under the common policy in question . 30 Thirdly, it was asserted that the contested decision affected the organization of education inasmuch as it is intended to set up a European network for university cooperation ( Action 1 of the programme ). 31 The Court has already held in its judgment of 3 July 1974 in Case 9/74 Casagrande (( 1974 )) ECR 773 that although educational and training policy is not as such included in the spheres which the Treaty has entrusted to the Community institutions, it does not follow that the exercise of powers transferred to the Community is in some way limited if it is of such a nature as to affect the measures taken in the execution of a policy such as that of education and training . 32 According to the terms of Action 1, set out in the annex to the contested decision, the European university network will be composed of those universities which have chosen to conclude certain agreements for exchanges of students and teachers . Although it is true that it is for the Community to set up the network, universities may only participate on the basis of the provisions governing their status and organization, which are not affected by the programme in question . Consequently that argument cannot be accepted . 33 It was also maintained that recourse to Article 235 of the Treaty was necessary because the programme in question included some aspects falling within the sphere of research . 34 It is clear that scientific research is characteristically one of the proper functions of a university . Not only does a proportion of university staff devote its time exclusively to research but research constitutes in principle an essential element in the work of most university teachers and of some students, for example those studying for a doctorate or similar qualification . 35 Any interpretation of the contested decision to the effect that it did not concern the scientific research work of universities would lead to a considerable limitation on the scope of certain objectives of the Erasmus programme, in particular that of "(( promoting )) broad and intensive cooperation between universities in all Member States" and that of "(( harnessing )) the full intellectual potential of the universities in the Community by means of increased mobility of teaching staff, thereby improving the quality of the education and training provided by the universities with a view to securing the competitiveness of the Community in the world market" ( Article 2(ii ) and ( iii ) ). 36 Consequently, in the absence of any express reservation in the contested decision as regards scientific research, it must be held that at least some of the initiatives planned are aimed at the spheres of both research and vocational training . That is especially true of Action 1 (" Establishment and operation of a European university network "), which provides in particular for "support for teaching staff and university administrators to visit other Member States, to enable them to prepare programmes of integrated study with universities of these Member States and to exchange experience on the latest developments in their area of expertise", and support to encourage greater mobility for teaching staff ( paragraphs 3 and 4 ). Moreover, Article 130G of the Treaty, added by the Single European Act, sets out, among other activities to be carried out by the Community in pursuing the objectives laid down in the new title of the Treaty on research and technological development, the stimulation of training and mobility of researchers in the Community . 37 It follows that inasmuch as the contested decision concerns not only the sphere of vocational training but also that of scientific research, the Council did not have the power to adopt it pursuant to Article 128 alone and thus was bound, before the Single European Act entered into force, to base the decision on Article 235 as well . The Commission' s first submission that the legal basis chosen was unlawful must therefore be rejected . Statement of reasons 38 The Commission maintains that the contested measure does not fulfil the requirements laid down in Article 190 of the Treaty concerning the statement of reasons, because the last recital in the preamble is drawn up in vague and imprecise terms which shed no light on the reasons that led the Council to have recourse to Article 235 as a legal basis . 39 The recital in question expresses unequivocally the Council' s conviction that Article 128 of the Treaty was an insufficient legal basis with regard to the sphere covered by the measure in question and, in consequence, that the Treaty had not provided the necessary powers within the meaning of Article 235 . It follows from the matters discussed in connection with the first submission that that conviction was justified . 40 The fact that the Council expressed the reasons for its conviction in a succinct manner cannot therefore be regarded as a breach of an essential procedural requirement capable of invalidating the measure in question . 41 It follows that the Commission' s submission concerning the lack of an adequate statement of reasons must be rejected . Costs 42 Article 69(2 ) of the Rules of Procedure provides that the unsuccessful party is to be ordered to pay the costs if they have been asked for in the successful party' s pleading . Since the Commission has failed in its submissions, it must be ordered to pay the costs, including those incurred by the interveners . On those grounds, THE COURT hereby : ( 1 ) Dismisses the application; ( 2)Orders the Commission to pay the costs, including those incurred by the interveners . © European Communities, 2001 All rights reserved BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII