JUDGMENT OF THE COURT
23 February 1999 (1)
(Council Decision 96/664/EC Promotion of linguistic diversity of theCommunity in the information society Legal basis)
In Case C-42/97,
European Parliament, represented by Johann Schoo, Head of Division in its LegalService, and Norbert Lorenz, of its Legal Service, acting as Agents, with an addressfor service in Luxembourg at its General Secretariat, Kirchberg,
Council of the European Union, represented by Bjarne Hoff-Nielsen, Head ofDivision in its Legal Service, and Frédéric Anton, of its Legal Service, acting asAgents, with an address for service in Luxembourg at the office of AlessandroMorbilli, Director-General, Legal Directorate, European Investment Bank, 100Boulevard Konrad Adenauer, Kirchberg,APPLICATION for annulment of Council Decision 96/664/EC of 21 November1996 on the adoption of a multiannual programme to promote linguistic diversityof the Community in the information society (OJ 1996 L 306, p. 40),
composed of: P.J.G. Kapteyn, President of the Fourth and Sixth Chambers, actingas President, G. Hirsch and P. Jann (Presidents of Chambers), G.F. Mancini, J.C.Moitinho de Almeida, C. Gulmann, J.L. Murray, L. Sevón (Rapporteur), M.Wathelet, R. Schintgen and K.M. Ioannou, Judges,
Advocate General: A. La Pergola,
Registrar: H. von Holstein, Deputy Registrar,
having regard to the Report for the Hearing,
after hearing oral argument from the parties at the hearing on 17 March 1998,
after hearing the Opinion of the Advocate General at the sitting on 5 May 1998,
gives the following
- By application lodged at the Court Registry on 31 January 1997, the EuropeanParliament brought an action under the third paragraph of Article 173 of the ECTreaty for the annulment of Council Decision 96/664/EC of 21 November 1996 onthe adoption of a multiannual programme to promote the linguistic diversity of theCommunity in the information society (OJ 1996 L 306, p. 40, hereinafter 'thecontested decision), on the ground that the legal basis of that decision should havebeen not only on Article 130 of the EC Treaty but also Article 128 thereof.
- Article 128 of the Treaty provides:
'1. The Community shall contribute to the flowering of the cultures of theMember States, while respecting their national and regional diversity and at thesame time bringing the common cultural heritage to the fore.
2. Action by the Community shall be aimed at encouraging cooperation betweenMember States and, if necessary, supporting and supplementing their action in thefollowing areas:
improvement of the knowledge and dissemination of the culture and historyof the European peoples;
conservation and safeguarding of cultural heritage of European significance;
non-commercial cultural exchanges;
artistic and literary creation, including in the audiovisual sector.
4. The Community shall take cultural aspects into account in its action under otherprovisions of this Treaty.
5. In order to contribute to the achievement of the objectives referred to in thisArticle, the Council:
acting in accordance with the procedure referred to in Article 189b andafter consulting the Committee of the Regions, shall adopt incentivemeasures, excluding any harmonisation of the laws and regulations of theMember States. The Council shall act unanimously throughout theprocedure referred to in Article 189b;
acting unanimously on a proposal from the Commission, shall adoptrecommendations.
- Article 130(1) and (3) provide:
'1. The Community and the Member States shall ensure that the conditionsnecessary for the competitiveness of the Communitys industry exist.
For that purpose, in accordance with a system of open and competitive markets,their action shall be aimed at:
speeding up the adjustment of industry to structural changes;
encouraging an environment favourable to initiative and to the developmentof undertakings throughout the Community, particularly small and medium-sized undertakings;
encouraging an environment favourable to cooperation betweenundertakings;
fostering better exploitation of the industrial potential of policies ofinnovation, research and technological development.
3. The Community shall contribute to the achievement of the objectives set out inparagraph 1 through the policies and activities it pursues under other provisions of
this Treaty. The Council, acting unanimously on a proposal from the Commission,after consulting the European Parliament and the Economic and Social Committee,may decide on specific measures in support of action taken in the Member Statesto achieve the objectives set out in paragraph 1.
This Title shall not provide a basis for the introduction by the Community of anymeasure which could lead to a distortion of competition.
- The first three recitals in the preamble to the contested decision are as follows:
'Whereas the advent of the information society provides industry and in particularthe language industry with new prospects for communication and trade onEuropean and world markets which are marked by a rich linguistic and culturaldiversity;
Whereas industry and all other players concerned must work out specific andadequate solutions to overcome the linguistic barriers if they are to benefit fullyfrom the advantages of the internal market and remain competitive on worldmarkets;
Whereas the private sector in this field consists mainly of small and medium-sizedenterprises (SMEs), which face considerable difficulties in addressing differentlanguage markets and must thus be supported, especially when their role as asource of employment is considered.
- The fourth recital mentions the need to encourage the use of technologies, toolsand methods which reduce the cost of transferring information between people.
- The sixth recital indicates that the emergence of the information society couldafford the citizens of Europe greater access to information and offer them anoutstanding opportunity for access to the cultural and linguistic wealth and diversityof Europe.
- The seventh recital states that 'language policies are a matter for the MemberStates, taking account of Community law; ... however, promoting the developmentof modern language-processing tools and their use is a field of activity in whichCommunity action is necessary in order to achieve substantial economies of scaleand cohesion between the various language areas; ... the measures to be taken atCommunity level must be commensurate with the objectives to be attained andconcern only those fields which are likely to produce an added value for theCommunity.
- The other recitals refer in particular to:
the need for the Community to take into account the cultural and linguisticaspects of the information society (ninth recital):
the fact that it is essential to provide citizens with equitable access toinformation in their own languages (eleventh recital);
the fact that languages that remain excluded from the information societywould run the risk of a more or less rapid marginalisation (twelfth recital).
- The first paragraph of Article 1 of the contested decision provides:
'A Community programme is hereby adopted, the aims of which shall be:
to raise awareness of and stimulate provision of multilingual services in theCommunity, which make use of language technologies, resources andstandards,
to create favourable conditions for the development of the languageindustries,
to reduce the cost of information transfer among languages, in particular forthe sake of small and medium-sized enterprises,
to contribute to the promotion of the linguistic diversity of the Community.
- Subparagraph (b) of the second paragraph of Article 1 of the Community decisionstates that 'language industries are defined as companies, institutions andprofessionals that provide, or enable the provision of, monolingual or multilingualservices, in fields such as information retrieval, translation, language engineeringand electronic dictionaries.
- The first paragraph of Article 2 of the contested decision provides:
'In order to attain the objectives referred to in Article 1, the following actions shallbe undertaken in accordance with the action lines contained in Annex I and theprocedures for implementing the programme set out in Annex III:
support for the creation of a framework of services for language resourcesand encouragement for the associations involved in such a construction,
encouragement for the use of language technologies, resources andstandards and their incorporation into computer applications,
promotion of the use of advanced language tools in the Community andMember States public sector,
- Annex I to the contested decision describes four action lines corresponding to thefour indents of the first paragraph of Article 2 thereof.
- The first action line is entitled 'Support for the creation of a framework of servicesfor language resources and encouragement for the associations involved in such aconstruction and its aim is to 'support, for all European languages, theconstruction of a European infrastructure of multilingual resources and to stimulatethe creation of electronic language resources. It is also stated that '[m]ost of theenterprises operating in this sector are small and medium-sized enterprises, whichare often innovative and efficient, but whose financial means are insufficient in viewof the level of investments required.
- The second action line is entitled 'Encouragement for the use of languagetechnologies, resources and standards and their incorporation into computerapplications and its aim is to 'spur the language industries into action bystimulating technology transfer and demand through a limited number of share-costdemonstration projects which could act as a catalyst in certain key sectors.
- The third action line is entitled 'Promotion of the use of advanced language toolsin the Community and Member States public sector and its aim is to 'promotecooperation between administrations in the Member States and the Communityinstitutions in order to reduce the cost of multilingual communication in theEuropean public sector, in particular by centralising advanced language tools.
- The fourth action line comprises the accompanying measures, in particularpromoting technical standards which meet the linguistic needs of users andorganising concertation and coordination between the principal operators involvedin developing a multilingual information society.
- Article 3 of the contested decision provides that the duration of the programme isto be three years as from its adoption and sets the amount of Community financingof the programme at ECU 15 million.
- Under Article 4 the Commission is to be responsible for the implementation of theprogramme and its coordination with other Community programmes.
- Article 6 of the contested decision provides:
'1. The Commission shall ensure that actions under this decision are subject toeffective prior appraisal, monitoring and subsequent evaluation.
2. During implementation of projects and after their completion, the Commissionshall evaluate the manner in which they have been carried out and the impact oftheir implementation in order to assess whether the original objectives have beenachieved.
In so doing, the Commission shall in particular investigate the extent to which thesmall and medium-sized enterprises target group has benefited from the projectsimplemented.
- According to the documents before the Court, on 8 November 1995 theCommission submitted to the Council a proposal for a Council decision on theadoption of a multiannual programme to promote the linguistic diversity of theCommunity in the information society (OJ 1996 C 364, p. 5, hereinafter 'the MLISprogramme). That proposal was preceded by a communication entitled 'Themultilingual information society. The proposed legal basis was Article 130(3) ofthe Treaty.
- Having been consulted by the Council, the Parliament expressed the view, in itsresolution of 21 June 1996 (OJ 1996 C 198, p. 248), that it should have the duallegal basis of Article 128(1) and (2) and Article 130(3). It also proposed numerousamendments, emphasising the cultural aspect of the MLIS programme.
- Among other things, the Parliament also proposed adding a number of recitals tothe preamble to the decision. According to the Parliament's proposal, the firstrecitals would be worded as follows:
'Whereas maintaining and encouraging European linguistic diversity is an integralpart of the conservation and safeguarding of cultural heritage within the meaningof Article 128 of the Treaty;
Whereas in the information society cultural and social aspects hold as muchimportance as economic interests.
- The Parliament also proposed moving the aim 'to promote the linguistic diversityof the Community in the global information society into the first sentence ofArticle 1, in other words putting it first.
- In its amended proposal of 2 October 1996 (OJ 1996 C 364, p. 11), the Commissionnevertheless retained Article 130(3) of the Treaty as the sole legal basis of themeasure. The reason it gave for rejecting the dual legal basis was that 'theprincipal objective is to encourage industrial actions to provide multilingual services. This suffices to choose one legal base (130). There are cultural, social aspects orspin-offs, but that should not lead to a double legal base. It also rejected theamendments relating to change of the legal basis.
- The Council adopted the contested decision on the basis of Article 130 of theTreaty whereupon the Parliament brought the present action for annulment.
- The Parliament's action is based on the view that the Community's linguistic wealthforms part of the cultural heritage which the Community is responsible for
conserving and safeguarding in accordance with the second indent of Article 128(2)of the Treaty. By seeking 'to promote the linguistic diversity of the Communitythe MLIS programme pursues a cultural object and should therefore have beenadopted on the basis of Article 128 in addition to the legal basis chosen.
- More particularly, the Parliament observes that the use of the word 'promotionin the title of the contested decision shows that it is an incentive measure within themeaning of Article 128(5) of the Treaty, going far beyond the obligation arisingfrom Article 128(4), which merely requires the Community to take cultural aspectsinto account in its action under other provisions of the Treaty.
- In analysing the aim of the contested decision, the Parliament draws attention tocertain of its recitals, in particular the second, which indicates that its aim is 'toovercome the linguistic barriers, the ninth, according to which 'the Communityshould take into account the cultural and linguistic aspects of the informationsociety, and the twelfth, which states that 'languages that remain excluded fromthe information society would run the risk of a more or less rapid marginalisation. According to the Parliament, technology, as envisaged in the context of the MLISprogramme, is merely the instrument of culture, a means of allowing access toculture.
- As regards the content of the contested decision, the Parliament states that thethird indent of Article 2 thereof concerns the public sector of the Community andof the Member States and infers that such participation by the public sectorexceeds the scope of Article 130 of the Treaty, which is concerned solely withpromoting the competitiveness of undertakings.
- The Council contends, on the other hand, on the basis of an analysis of theCommission communication preceding the MLIS programme, that the logic of thatprogramme is above all economic and industrial. The aim, it says, is to reduceundertakings' translation costs whilst at the same time maintaining the linguisticdiversity needed to ensure the vitality of Community industry. The benefit of thatlinguistic diversity accrues to all European citizens but is merely a 'spin-off of theprogramme, whose aim is industrial.
- The Council also analyses the four objectives of the programme, laying stress onthe order in which they are set out in Article 1 and on their purely economic andindustrial character. As regards, more particularly, the fourth and last objective('to contribute to the promotion of the linguistic diversity of the Community),there is in its view nothing to indicate that it is cultural, severable and notincidental. In the context of supporting the language industry, the promotion oflinguistic diversity could not have anything other than an economic, industrial orcommercial purpose. Even if it were conceded that that purpose was cultural, thefact that it was not incorporated in a separate article and that the amendmentclassifying as cultural, proposed by the Parliament, was rejected shows that it is notseverable. Finally, even if it were conceded that that objective is severable, it is
only incidental and does not affect the main object of the programme, asdemonstrated by the fact that the Council likewise did not adopt the amendmentproposed by the Parliament to the effect that cultural and social aspects should beaccorded as much importance as economic interests.
- Finally, with regard to the content of the contested decision, the Council contendsthat each of its provisions is directly and exclusively attributable to one or more ofthe actions referred to in Article 130(1) of the Treaty. With regard in particularto the third action line concerning promotion of the use of advanced language toolsin the Community and Member States public sector, it contends that its purpose,in conformity with that provision, is to encourage better exploitation of theindustrial potential of innovation, research and technological development and alsoto foster an environment conducive to the development of Communityundertakings. Accordingly, there is nothing to justify recourse to Article 128 as anadditional legal basis.
- According to the Council, the MLIS programme does not extend into the areasreferred to in Article 128(2) of the Treaty. The persons directly benefiting fromthe programme are not cultural figures such as the novelists, playwrights andliterary translators mentioned by the Council but are persons engaged in economicor institutional activities. Finally, languages are not a cultural element in thecontext of the decision. The Parliament's argument is, in its view, misconceived asto its basis and relies on terms taken out of context.
- If the Court should annul the contested decision, the Council asks that its effectsbe maintained until a new decision is adopted. The Parliament, on the other hand,asks that its effects should be maintained only as regards any measures adopted onthe basis of the contested decision before the date of the judgment in this case. Tomaintain its future effect would deprive the Court's judgment of its effectivenessand would dissuade the Commission from presenting a new proposal without delay.
The merits of the application
- In the first place, it must be observed that there is no dispute concerning the factthat the contested decision is based on Article 130 of the Treaty. It is thereforeonly necessary to consider here whether it should have been based on Article 128of the Treaty as well.
- According to settled case-law, in the context of the organisation of the powers ofthe Community the choice of the legal basis for a measure must be based onobjective factors which are amenable to judicial review. Those factors include inparticular the aim and the content of the measure (see, in particular, Case C-271/94Parliament v Council  ECR I-1689, paragraph 14, and Case C-22/96Parliament v Council  ECR I-3231, paragraph 23).
- It must be pointed out that the wording of the title of a measure cannot by itselfdetermine its legal basis and, in this case, that the words 'to promote ... linguisticdiversity appearing in the title of the contested decision cannot be isolated fromthe measure as a whole and interpreted independently.
- In order to determine whether the dual legal basis contended for by the Parliamentwas necessary, it is appropriate to consider whether, according to its aim andcontent, as they appear from its actual wording, the contested decision isconcerned, indissociably, both with industry and with culture (see, to that effect,Case C-300/89 Commission v Council  ECR I-2867, paragraph 13).
- In that connection, it is not sufficient for the contested decision to pursue a twofoldpurpose or for an analysis of its content to disclose the existence of a twofoldcomponent.
- If it were apparent from an examination of the decision that its 'industrialcomponent is identifiable as the main or predominant component, whereas the'cultural component is merely incidental, it would follow that the only appropriatelegal basis for it was Article 130 of the Treaty.
- That interpretation conforms with the actual text of Article 128(4) of the Treaty,according to which the Community is to take cultural aspects into account in itsaction under other provisions of the Treaty.
- It is clear from that provision that not every description of the cultural aspects ofCommunity action necessarily implies that recourse must be had to Article 128 asthe legal basis, where culture does not constitute an essential and indissociablecomponent of the other component on which the action in question is based butis merely incidental or secondary to it.
- It is important therefore to verify in this case whether culture is an essentialcomponent of the contested decision, in the same way as industry, and cannot bedissociated from industry, or whether the 'centre of gravity of the decision is tobe found in the industrial aspect of the Community action.
- It must first be pointed out that the terms of the contested decision and certainrecitals in its preamble clearly show that the beneficiaries for which the MLISprogramme is directly intended are undertakings. The first recital mentions thelanguage industries for which the advent of the information society opens up newperspectives, the second recital is concerned with the situation of industry and allother players concerned in the internal market and world markets, whilst the thirdrecital is concerned with the private sector, that is to say essentially small andmedium-sized enterprises, which experience difficulties in overcoming languagebarriers and remaining competitive when seeking business in markets with differentlanguages.
- The fourth recital, however, is concerned with the transfer of information betweenpeople and the sixth with access to information for European citizens. Similarly,the tenth and eleventh recitals make reference to European citizens in connectionwith the need to ensure that they have equal opportunities to participate in theinformation society and with the importance of ensuring that they have informationavailable to them in their languages.
- The general terms of those recitals are not, however, such that citizens can beidentified as beneficiaries directly targeted by the programme in the same way asthe economic operators described in the first recitals.
- Citizens are seen as beneficiaries of linguistic diversity in general, in the context ofthe information society. In contrast, economic operators and, more particularly,small and medium-sized enterprises, are envisaged as beneficiaries of concreteactions that will be undertaken in accordance with the action lines of theprogramme provided for by the decision.
- The conclusion drawn from a reading of those recitals, according to which smalland medium-sized enterprises are to be the main beneficiaries of the contesteddecision, is supported by the text of the second subparagraph of Article 6(2) of thedecision which identifies them as the 'target group of the programme and requiresthe Commission to investigate the extent to which they have benefited from theprojects implemented, no such investigation being called for, however, in relationto European citizens.
- Next, it is important to observe that whilst certain of the recitals, such as the sixthand the ninth, refer to the cultural aspects of the information society, it isnevertheless clear from their wording that they express findings or wishes of ageneral nature which do not allow those aspects to be seen, in themselves, asobjectives of the programme. The sixth recital, in fact, does not set any objectivebut notes that the emergence of the information society could afford the citizensof Europe greater access to the cultural and linguistic wealth and diversity ofEurope, whilst the ninth recital states that 'the Community should take intoaccount the cultural and linguistic aspects of the information society, and in doingso merely reproduces the content of Article 128(4) of the Treaty.
- As regards marginalisation of the languages that remain excluded from theinformation society, mentioned in the twelfth recital, it is not a risk of a specificallycultural nature. Marginalisation of languages may be understood as the loss of anelement of cultural heritage, but also as the cause of a difference of treatmentbetween economic operators in the Community, who enjoy greater or lesseradvantages depending on whether or not the language they use is widespread.
- Article 1 of the contested decision also presents the aim of the programme as beingof an economic nature. The second and third indents of the first paragraph
mention, as aims pursued, the creation of favourable conditions for thedevelopment of the language industries and reduction of the cost of informationtransfer for small and medium-sized enterprises.
- As regards the aim 'to contribute to the promotion of the linguistic diversity of theCommunity mentioned in the last indent of the first paragraph of Article 1, itcannot be seen in isolation but must be looked at in conjunction with the otheraims set out in that paragraph.
- In that connection, it must be stated that it does not express a cultural aim pursuedas such but merely one of the aspects of the programme of which the main andpredominant characteristic is of an industrial nature. Language in that context isseen not as an element of cultural heritage but rather as an object or instrumentof economic activity.
- It must be emphasised, finally, that the Council rejected the Parliament's proposalthat that aim be placed at the beginning of Article 1 of the decision, thusmanifesting its wish not to move the 'centre of gravity of the decision but tomaintain the latter's essentially economic and industrial character.
- As regards the content of the contested decision, it must be pointed out that theactions referred to in Article 2 and the action lines mentioned in Annex I relate to the development of infrastructures, the use of technologies and resources, thereduction of costs through centralisation of the tools available and the promotionof technical standards in linguistic fields.
- Such actions cannot be regarded as having the direct effect of improving thedissemination of culture, conserving or safeguarding cultural heritage of Europeansignificance or encouraging artistic and literary creation within the meaning ofArticle 128(2) of the Treaty.
- On the contrary, the main aim of those actions is to ensure that undertakings donot disappear from the market or have their competitiveness undermined bycommunications costs caused by linguistic diversity.
- As regards more particularly the action line referred to in the third indent of thefirst paragraph of Article 2 of the contested decision, namely promotion of the useof advanced language tools in the Community and Member States public sector, itmust be observed that, according to the seventeenth recital, it is designed inparticular to reduce the cost of developing and using language tools. It is alsojustified by the 'the catalytic role of the public sector for the quicker, widespreadadoption of common standards and the concern to encourage convergence in thefuture development of language tools, indicated in point 3 of Annex I to thedecision.
- From a review of those factors it cannot be concluded that that action line isspecifically cultural. On the contrary, looked at in conjunction with the other actionlines, it must be regarded as one of the elements of a comprehensive programmepursuing above all rationalisation of the development of linguistic tools and therapid establishment of multilingual infrastructures.
- Even if an action line of that kind concerns the public sector, it cannot be disputedthat it comes predominantly within the objectives laid down in Article 130(1) of theTreaty, whether it be speeding up the adjustment of industry to structural changes,encouraging an environment favourable to initiative and to the development ofundertakings throughout the Community or the objective of 'fostering betterexploitation of the industrial potential of policies of innovation, research andtechnological development.
- It is clear from the foregoing examination that the object of the programme,namely the promotion of linguistic diversity, is seen as an element of an essentiallyeconomic nature and incidentally as a vehicle for or element of culture as such.
- It is not disputed that the programme will have beneficial effects for thedissemination of cultural works, in particular by improving the tools available forthe task of translation. The Council was therefore right to take account of them,in accordance with Article 128(4) of the Treaty, and to mention those effects in anumber of recitals in the preamble to the contested decision.
- They are, however, indirect and incidental effects as compared with the directeffects sought, which are of an economic nature and do not justify basing thedecision on Article 128 of the Treaty as well.
- In conclusion, it is clear from the contested decision as a whole, and particularlyfrom the aims mentioned in its preamble and in Article 1, and from the actionsenvisaged in Article 2 and Annex I, that it was properly based only on Article 130of the Treaty.
- The action must therefore be dismissed.
- Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to beordered to pay the costs if they have been applied for in the successful party'spleadings. The Council has asked that the Parliament be ordered to pay the costs. Since the Parliament has been unsuccessful, it must be ordered to pay the costs.
On those grounds,
1. Dismisses the application;
2. Orders the Parliament to pay the costs.
|Kapteyn Hirsch Jann|
Mancini Moitinho de Almeida Gulmann Murray
Sevón Wathelet Schintgen Ioannou
Delivered in open court in Luxembourg on 23 February 1999.
G.C. Rodríguez Iglesias