Opinion of Mr Advocate General Tesauro

Mr President,

Members of the Court,

1. In the applications which have given rise to these proceedings the United Kingdom (Case 51/89), France (Case 90/89) and Germany (Case 94/89) seek the annulment of Council Decision 89/27/EEC of 16 December 1988 adopting the second phase of the programme on cooperation between universities and industry regarding training in the field of technology (Comett II) on the ground that its legal basis is insufficient.

2. The Comett II decision was adopted on the basis of Article 128 of the Treaty and of Council Decision 63/266/EEC of 2 April 1963 laying down general principles for implementing a common vocational training policy; the latter decision was itself based on Article 128 and thus, the applicants all submit, cannot extend the scope of that article.

3. The applicants challenge the selection of Article 128 alone as the correct legal basis; they submit that that article, which refers to the adoption of general principles for implementing a common vocational training policy, allows the Community institutions to coordinate the national policies in that regard but not to administer independent training schemes under a programme such as Comett II. In particular, they claim that such a programme is operational in nature, has important financial and budgetary implications, and includes projects which fall within the field not of vocational training but of research; those factors make it impossible to regard Article 128 as a sufficient legal basis for the adoption of the programme.

4. With regard to the first two submissions put forward by the applicants, the operational nature of the programme and its important financial and budgetary implications, I need merely observe that they have already been rejected in the Erasmus judgment, which was delivered after the applications in these proceedings were brought. In that judgment the Court first of all confirmed that where the Community institutions are expressly granted specific 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 common policy effectively (paragraph 9). The Court went on to state, specifically with a view to ensuring the effectiveness of Article 128, that the Council must be 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 (paragraph 11).

5. In addition, the German Government put forward the submission that the Council has the power, on the basis of Article 128, to adopt only measures concerning initial training, to the exclusion of measures concerning continuing education, that is to say, advanced training.

6. That being the case, it remains to be established whether the contested decision is concerned exclusively with vocational training or, as the applicants claim, also relates to research, so as to entail the need to rely on both Article 128 and Article 235 as a legal basis.

7. And so we come finally to the problem of defining the contested decision from a legal point of view, examining first of all the objective and the content of the measure.

8. Having thus dealt with the objectives of the measure in issue, we must now turn to its content, that is to say the type of projects provided for by the contested decision; these projects are described in the annex to the decision.

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 vocational training may be based on Article 128 alone even if, at least potentially, it is capable of having repercussions on research and technological development policy.

10. Such a conclusion cannot be applied to the Comett II programme. Unlike the Erasmus programme, Comett II, as I have 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 from the programme do so in their capacity as teachers and not as researchers. Moreover, the transnational exchanges between universities and industry provided for in Point 4(B) of the annex are at most indicative of the fact that the programme is restricted, with regard to its effects, to the 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 to base itself on Article 128 alone in adopting the contested decision.

1 Original language. Italian

2 OJ 1989 L 13, p 28

3 OJ, English Special Edition 1963-1964, p 25.

4 Council Decision 86/365/EEC of 24 July 1986 adopting the programme on cooperation between universities and enterprises regarding training in the field of technology (OJ 1986 L 222, p. 17).

5 See the judgment of 26 March 1987 in Case 45/86 Commissionv Council [ 1987] ECR 1493, at paragraph 12

6 Judgment of 30 May 1989 in Case 242/87 Commission v Council (1989) ECR 1425; see also the judgment of 30 May 1989 in Case 56/88 United Kingdom v Council [1989] ECR 1615.

7 Council Decision 87/327/EEC of 15 June 1987 adopting an action scheme for the mobility of university students (OJ 1987 L 166, p. 20).

8 Council Deemon 89/657/EEC of 18 December 1989 establishing an action programme to promote innovation in the field of vocational training resulting from technological change in the European Community (OJ 1989 L. 393, p. 29)

9 Council Decision 9S/267/EFC, ot 29 May 1990 establishing an action programme for the development ot continuing vocational training in the European Community (OJ 1990 L. 156, p 1)

10 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 stage of the reply, that is to say after the Court had stated in the Erasmus judgment that the contested decision did not concern solely vocational training but also scientific research, and that the Council therefore did not have the power to adopt n on the basis of Article 128 alone but was obliged, prior to the entry into force of the Single European Act, to base the measure also on Article 235.

11 See the judgment of 26 March 1987 in Case 45/86 Commmission v Council [ 1987] ECR 1493. at paragraph 13.

12 See the judgment of 29 March 1990 in Case 62/88 Hellenic Republic v Council1990] ECR 1527

13 Judgment of 2 February 1988 in Case 24/86 Blaizol [1988] ECR 379, at paragraph 20.

14 Erasmuis judgment, Case 242/87, at paragraph 36.