Opinion of Mr Advocate General Mischo delivered on 11 March 1999. - European Parliament v Council of the European Union. - EC/Mauritania fisheries agreement - Agreements with important budgetary implications for the Community. - Case C-189/97.



European Court reports 1999 Page I-04741



Opinion of the Advocate-General

1 In citing, in conjunction with Article 43 of the EC Treaty, the first subparagraph of Article 228(3) rather than the second subparagraph, which requires the European Parliament's assent, as the legal basis in conjunction with Article 43 of the EC Treaty, for the adoption of Council Regulation (EC) No 408/97 of 24 February 1997 on the conclusion of an Agreement on cooperation in the sea fisheries sector between the European Community and the Islamic Republic of Mauritania (`Mauritania') and laying down provisions for its implementation (1) (`the contested regulation'), did the Council infringe the Parliament's prerogatives? This, essentially, is the question to be resolved in order to decide on the validity of the action for the annulment of the regulation in question, which the Parliament has brought against the Council supported by the Kingdom of Spain.

2 Before examining the merits of the complaints which the European Parliament has put forward against the validity of the contested regulation, let us summarise the main purpose of the Agreement with Mauritania and the development of the dispute which has brought the Council and the Parliament before us today.

3 The Agreement with Mauritania, which was concluded for a period of five years from 1 August 1996, enables Community vessels to fish in waters under Mauritanian sovereignty or jurisdiction in return for comprehensive financial compensation paid by the Community.

4 The financial compensation is the subject of a protocol attached to the Agreement, which fixes the amounts as follows:

Year 1: ECU 55 160 000 Year 2: ECU 54 360 000 Year 3: ECU 53 560 000 Year 4: ECU 52 160 000 Year 5: ECU 51 560 000,

giving a total of ECU 266.8 million.

5 The Agreement, which was negotiated after Mauritania withdrew from an earlier agreement, was the subject of two proposals from the Commission to the Council of 9 September 1996, one for a Council decision concerning the provisional application of the Agreement, which was adopted by the Council on 26 November 1996, the other for a Council regulation on the conclusion of the Agreement.

6 The latter proposal, based on the Treaty `and in particular Articles 43 and 228(3)(2) thereof', required the Parliament's assent. However, the Council decided to consult the Parliament on the basis of the Treaty `and in particular Article 43 thereof, in conjunction with Article 228(2) and the first subparagraph of Article 228(3)', in other words it sought the Parliament's opinion rather than its assent.

7 The proposal for a regulation was referred to the relevant Parliament committee, which approved the conclusion of the proposed Agreement subject to a return to the legal basis requiring the Parliament's assent proposed by the Commission. It considered that the Agreement had important budgetary implications within the meaning of the second subparagraph of Article 228(3) of the Treaty.

8 On 28 November 1996 the Parliament adopted its `Decision on the proposal for a Council regulation on the conclusion of an Agreement on cooperation in the sea fisheries sector between the European Community and the Islamic Republic of Mauritania and laying down provisions for its implementation'. (2) Substituting the second subparagraph of Article 228(3) of the Treaty for the legal basis cited by the Council, the Parliament gave its assent to the Agreement in question.

9 On 24 February 1997, the Council adopted Regulation No 408/97, reinstating the first subparagraph of Article 228(3) as the legal basis and citing `the opinion of the European Parliament'.

10 Having summarised the background we can now move on to the complaints that the Parliament has brought before us. There are two, and according to the Parliament both of them may relate to infringements of essential procedural requirements and may amount to an infringement of its prerogatives within the meaning of the third paragraph of Article 173 of the EC Treaty.

11 The first alleges that the choice of the first subparagraph of Article 228(3) of the Treaty as the legal basis for the contested regulation constituted an infringement of the second subparagraph of Article 228(3).

12 The second alleges that the absence of any statement of reasons showing why the Council believed that, contrary to the Commission's proposal, it could merely ask the Parliament for its opinion and then, without taking account of the fact that the Parliament had wanted to give its assent, adopt the regulation citing only the Parliament's opinion, constituted an infringement of Article 190 of the EC Treaty.

13 Since the Council argues that the action is inadmissible in respect of the second complaint, it is this that we shall examine first.

The complaint of absence of statement of reasons

14 The Parliament contends that the reference to the first subparagraph of Article 228(3) of the Treaty, rather than to the second subparagraph of Article 228(3), in the citations of the contested regulation, without any explanation of this choice of legal basis, constitutes an infringement of Article 190 of the Treaty and is tantamount to an infringement of essential procedural requirements and an impairment of its prerogatives.

15 Aware that the Court has found on two occasions, in judgments of 13 July 1995 (3) and 18 June 1996, (4) that an action for annulment by the Parliament based on infringement of Article 190 of the Treaty was not admissible unless the Parliament could provide a relevant indication as to how that infringement, assuming that it had been established, was such as to impair its prerogatives, the Parliament seeks to demonstrate the existence of a link between the infringement of Article 190 of the Treaty and its prerogatives.

16 It considers that the link lies in the fact that the change in legal basis made by the Council in relation to the Commission's proposal reduced the level of the Parliament's involvement in the decision-making process. The Parliament also contends that, if we consider the position in relation to the various cases envisaged in Article 228 of the Treaty and the requirements of the principle of transparency that should govern the institutions' actions, certain features of the case before us demonstrate the importance of having a statement of reasons. It refers here to the total lack of transparency allegedly resulting from the absence of any reasons for choosing a different legal basis from that chosen by two other institutions, although, as the Council was quick to point out, no statement of reasons was given for that choice either.

17 However, I do not find the Parliament's arguments convincing, since I cannot see why the fact that the Council cited a provision requiring only the Parliament's opinion without giving any reasons for doing so could infringe the latter's prerogatives. If there is any aspect of the Council's conduct which might infringe them, it is the very fact of choosing that legal basis rather than one requiring assent, but whether or not an explanation was given for that choice would not appear to affect the defence of the Parliament's prerogatives.

18 Moreover, the Parliament can certainly not at any time have had the slightest doubt about the reasons why the Council chose one subparagraph of Article 228(3) rather than another. By its very nature and subject-matter, an agreement such as the fisheries agreement with Mauritania could not have required the Parliament's assent unless it had important budgetary implications. The fact that the Council chose the first subparagraph of paragraph 3 showed in the clearest manner possible that it felt that that condition was not met in the present case.

19 It is true that it might have been preferable if the Court, in the judgments referred to earlier, had adopted a formulation which clearly excluded any possibility of a link between an infringement of Article 190 of the Treaty and an infringement of the Parliament's prerogatives, instead of declaring that the Parliament had not proved the existence of such a link in that particular case. In any event, I consider that the Council is justified in requesting the Court to dismiss as inadmissible the complaint of infringement of Article 190 of the Treaty.

The complaint relating to the choice of legal basis

20 By contrast, the Parliament's other complaint, alleging incorrect choice of legal basis for the contested regulation, does not present any problems of admissibility, since it cannot be disputed that the Council's use of a provision requiring only the Parliament's opinion instead of another requiring its assent is directly linked to the extent of the Parliament's prerogatives.

21 Even if it has not specifically cited it as a ground of inadmissibility, the Council has suggested that the dispute before us is purely theoretical, since the very fact that the Parliament gave its assent showed that it approved the content of the agreement.

22 If I understand the Council correctly, it alleges that the Parliament is using the differences of opinion on the interpretation of Article 228(3) of the Treaty which the conclusion of the Agreement with Mauritania brought to light as an excuse for getting the Court to define criteria for future use in identifying agreements with important budgetary implications.

23 It seems highly likely that this was indeed the Parliament's objective in bringing this action, but this need not concern us. As long as it acts within the limits of defending its prerogatives, the Parliament does not need, any more than the other institutions, to show that it has a legitimate interest in acting. Moreover, it is for the Court alone to decide whether, in order to settle the very specific problem of the validity of the contested regulation, there is any need to establish criteria on which the institutions can rely in future for identifying agreements with important budgetary implications.

24 As the Parliament, the Council and the Kingdom of Spain, as intervener, agree, the specific question raised by this action is whether the 1996 fisheries agreement with Mauritania is to be regarded as `having important budgetary implications for the Community' within the meaning of the second subparagraph of Article 228(3) of the Treaty.

25 Before examining the arguments on which the dispute between the parties is based, I should draw attention to the content of Article 228, or at least of its first three paragraphs.

`1. Where this Treaty provides for the conclusion of agreements between the Community and one or more States or international organisations, the Commission shall make recommendations to the Council, which shall authorise the Commission to open the necessary negotiations. The Commission shall conduct these negotiations in consultation with special committees appointed by the Council to assist it in this task and within the framework of such directives as the Council may issue to it.

In exercising the powers conferred upon it by this paragraph, the Council shall act by a qualified majority, except in the cases provided for in the second sentence of paragraph 2, for which it shall act unanimously.

2. Subject to the powers vested in the Commission in this field, the agreements shall be concluded by the Council, acting by a qualified majority on a proposal from the Commission. The Council shall act unanimously when the agreement covers a field for which unanimity is required for the adoption of internal rules, and for the agreements referred to in Article 238.

3. The Council shall conclude agreements after consulting the European Parliament, except for the agreements referred to in Article 113(3), including cases where the agreement covers a field for which the procedure referred to in Article 189b or that referred to in Article 189c is required for the adoption of internal rules. The European Parliament shall deliver its opinion within a time-limit which the Council may lay down according to the urgency of the matter. In the absence of an opinion within that time-limit, the Council may act.

By way of derogation from the previous subparagraph, agreements referred to in Article 238, other agreements establishing a specific institutional framework by organising cooperation procedures, agreements having important budgetary implications for the Community and agreements entailing amendment of an act adopted under the procedure referred to in Article 189b shall be concluded after the assent of the European Parliament has been obtained.

The Council and the European Parliament may, in an urgent situation, agree upon a time-limit for the assent.'

26 In support of its argument that, because of the amounts that the Community has undertaken to pay Mauritania, the 1996 fisheries agreement is covered by the term `agreements having important budgetary implications for the Community', the Parliament invokes in its application a whole series of factors which it feels should govern the interpretation of that term.

27 It first points out that, in order to advance the democratisation of the European Union, the Treaty on European Union from which the current wording of Article 228 was drawn sought to strengthen the Parliament's powers in the area of international agreements concluded by the Community.

28 From now on the rule is that the Parliament must be consulted for its opinion on all agreements to be concluded by the Community, with two exceptions: first, agreements coming under Article 113 of the Treaty, a `negative' exception in that it means that the Parliament is not involved at all, and second, agreements referred to in the second subparagraph of Article 228(3), a `positive' exception in that it means that the Parliament is more involved since its assent is required. According to the Parliament, its internal powers will now be matched on an external level. It goes on to argue that, still with a view to making the operation of the institutions more democratic, Article 228 of the Treaty should be interpreted in the light of comparative constitutional law, from which it appears that, in most Member States of the Community, parliament's approval is required for the conclusion of international agreements with budgetary implications, without even any need, in most cases, for those implications to be important.

29 Following this line of thought it contends that, as the representative of the people, the importance of its involvement in the budgetary process means that the term `agreements having important budgetary implications', which compels the use of a procedure in which the requirement to obtain its assent lends the Parliament a certain weight, must not be interpreted restrictively.

30 Just as the requirement for the Council to obtain its assent when concluding an agreement entailing amendment of an act adopted under the joint decision-making procedure is designed to safeguard its freedom of action as legislator, so the assent procedure for agreements having important budgetary implications is designed to safeguard its freedom of action as a budgetary authority.

31 Having thus defined the spirit in which the interpretation of the term `agreements having important budgetary implications' should be approached, the Parliament goes on to examine the precedents which might be relied on to settle the dispute concerning the agreement with Mauritania.

32 First of all, it describes its efforts to try to arrive, by common accord with the Council and the Commission, at an acceptable interpretation of the controversial term, and the plea of inadmissibility which the Council allegedly set up against it. It goes on to point out that its difference of opinion with the Council dates from well before the agreement with Mauritania, since in three other cases - the 1993 UNRWA Agreement involving expenditure of ECU 93 million spread over three years, the 1994 fisheries agreement with Greenland involving ECU 232 200 000 spread over six years, and the 1996 UNRWA agreement involving ECU 105 900 000 spread over three years - it had asked to give its assent and was refused by the Council.

33 The Council asked for the Parliament's assent only for the 1996 fisheries agreement with Morocco, involving ECU 500 million spread over four years. The Parliament was forced to conclude that, despite its efforts to reach agreement with the Council on defining criteria which would allow the second subparagraph of Article 228(3) to be applied without dispute, the Council persisted in giving that provision an interpretation which it could not accept since it severely reduced the Parliament's scope for intervention through the assent procedure, and it finally decided to bring proceedings before the Court in order to have affirmed the criteria which it considers relevant.

34 The Parliament invokes three criteria, though it does not rule out others:

- the first is based on the fact that the expenditure in question is to be spread over several years,

- the second is based on the relative share of such expenditure in relation to expenditure of the same kind under the budget heading concerned;

and

- the third is based on the rate of increase in expenditure compared with the previous agreement.

35 The first two criteria seem to the Parliament to be particularly relevant, since they concern the reduction in the freedom of action of the budgetary authority and of the Community itself which may result from entering into external commitments.

36 When applied to the fisheries agreement with Mauritania the three criteria manifestly lead to the conclusion, according to the Parliament, that it is an agreement with important budgetary implications.

37 In addition to being spread over five years, the amounts in question, as set out earlier, account, according to its calculations, for more than 20% of budget heading B7-800 `International fisheries agreements' and represent an increase of 225% over the amounts paid to Mauritania in 1995, the last year in which the previous agreement with that country applied.

38 The Parliament also points out that these important budgetary implications had a very practical impact on the 1996 budget in that the budget heading in question had to be bolstered by transferring appropriations from other budget chapters, and it stresses the need, particularly in its reply, to give practical effect to the second subparagraph of Article 228(3), as laid down in the Treaty of European Union.

39 In its opinion, refusing to classify the fisheries agreement with Mauritania as an agreement requiring the Parliament's assent for its conclusion would, by restricting the application of that provision to entirely exceptional cases, deprive it of any practical effect, whereas it is an expression of the unquestionable desire of the constitutive legislature of the Communities to involve the Parliament, as a branch of the budgetary authority, more closely in the conduct of the Community's external relations.

40 This line of argument is fundamentally rebutted by the Council, supported by the intervener. First of all, the Council stresses that its refusal to take part in a working party to try to arrive at an interinstitutional agreement defining the term `agreements having important budgetary implications for the Community' cannot be interpreted as a failure to fulfil its duty of cooperation in good faith between institutions, since the conclusion of such agreements was in no way compulsory and other methods of reconciling different views, particularly those involving the gradual development of a practice based on ad hoc arrangements, were likely to prove more appropriate. The Council also objects to any attempt to draw guidance from the constitutional law of the Member States in the debate on the interpretation of the second subparagraph of Article 228(3).

41 It points out that the construction of the Community is an entirely new development, which precludes any transposition of national power structures into the Community context, and that, as provided for in Article 4(1) of the EC Treaty, the institutions may act only within the limits of the powers conferred upon them by the Treaty.

42 On the basis of the Court's judgment in Case C-327/91 France v Commission, (5) it also objects to any attempt to define the Parliament's powers in the field of external relations by analogy with its internal powers in legislative or budgetary matters. In particular, it points out in this connection that the second subparagraph of Article 228(3) itself resists any such attempt, since, for agreements involving provisions coming under the scope of the Parliament's joint decision-making powers, the Parliament's assent is required only where the agreement entails amendment of an act adopted under the procedure referred to in Article 189b of the Treaty.

43 In the Council's opinion, the second subparagraph of Article 228(3) of the Treaty introduces an exception to the rule laid down in the first subparagraph of that provision, which, in the case of the conclusion of international agreements by the Community, requires only the Parliament's opinion and therefore, like any exception, it must be interpreted strictly. According to the Council, importance is relative, and from that point of view it finds the criteria proposed by the Parliament to be completely inappropriate.

44 It rejects the criterion that the Community expenditure is to be spread over several years since the budget is, by definition, annual; it objects to the criterion of the size of the amounts in question vis-à-vis the budget heading under which they will be entered, pointing out that the budget headings are not fixed or stable and therefore cannot be used as a reference, and it rejects as completely irrelevant the criterion that the amounts in question are greater than previous commitments, pointing out that even doubling an insignificant amount would not make it important. The only factor which it considers could be used as a reference for identifying agreements with important budgetary implications is the total amount of expenditure shown in the Community budget. Compared with that amount - more than ECU 82 billion for the 1997 budget - the fisheries agreement with Mauritania cannot be deemed to entail major expenditure, since it represents no more than 0.07% of the budget.

45 In reply to the possible allegation that it had deprived the second subparagraph of Article 228(3) of any practical effect, the Council argues that it was entirely in agreement with both the Commission and the Parliament that the fisheries agreement with the Kingdom of Morocco, which represented ECU 500 million spread over four years, accounting for 0.15% of the 1996 Community budget, should, in view of its important budgetary implications, be classified as requiring the Parliament's assent.

46 Compared with these two conflicting yet clear positions, the Commission's position is ambiguous. It is true that it did not see fit to intervene in these proceedings, even though, in proposing that the Council should seek Parliament's assent, it might have given the impression that it had already decided how the term `agreements having important budgetary implications for the Community' should be interpreted. However, in accordance with the second paragraph Article 21 of the EC Statute of the Court of Justice, it was asked to explain the reasons why it had made such a proposal, when it had not done so for the three other agreements in respect of which the Parliament had claimed the right to give its assent, although it had been unable to persuade the Council of the merits of its position. Its reply is rather puzzling, since it explains that the position it adopted on the fisheries agreement with Mauritania was dictated by political considerations to do with the fact that the implementation of that agreement would require appropriations to be transferred from budget heading B7-800, which would require the Parliament's agreement as a budgetary authority.

47 This statement clearly shows the atmosphere of political confrontation which surrounds this dispute before the Court, however legal it may be in substance. I therefore feel that the best approach is to be entirely pragmatic, leaving aside the perfectly legitimate debate on the powers that the institution which can claim to be the people's representative should have in order to meet democratic requirements, and focusing instead on the actual wording of the provision on whose interpretation the settlement of the dispute will be based. I shall therefore begin by examining the literal interpretation to be given to the second subparagraph of Article 228(3) of the Treaty.

48 The Council refers to a dictionary which is widely used in French-speaking countries (Le Petit Robert), which defines `notable' as `ce qui est digne d'être noté, remarqué', adding `Est notable ce qui est appréciable, important, sensible'.

49 According to Le Petit Larousse dictionary, `notable' means `digne d'être noté, important, remarquable'.

50 The other language versions of the passage in question are worded as follows:

- `Abkommen mit erheblichen finanziellen Folgen';

- `som har betydelige budgetmæssige virkninger for Fællesskabet';

- `accuerdos que tengan implicaciones presupuestarias importantes';

- `sopimukset, joilla on huomionarvoisia vaikutuksia yhteisön talousarvioon';

- `ïé óõìöùíßåò ðïõ óõíåðÜãïíôáé óçìáíôéêÝò äçìïóéïíïìéêÝò åðéðôþóåéò';

- `comhaontuithe ag a mbeidh impleachtaí buiséadacha suntasacha don Chomhphobal';

- `accordi che hanno repercussioni finanziere considerevoli'; - `akkoorden die aanzienlijke gevolgen hebben';

- `acordos com consequências orçamentais significativas';

- `sådana avtal som har betydande budgetmässiga följder för gemenskapen'.

51 None of these language versions uses a weaker expression than the French `notable'. Some use a stronger expression. The word which is equivalent to the French `important', which is used in a number of the versions, appears to me to be a sort of common denominator of all the language versions and best reflects what was presumably the intention of the constitutive legislature.

52 Is this interpretation borne out by what we can deduce from the context in which reference is made to agreements having important budgetary implications? What is the scope of the other agreements for which the second subparagraph of Article 228(3) also requires the Parliament's assent?

53 First of all, that provision covers agreements referred to in Article 238, which establish `an association involving reciprocal rights and obligations, common action and special procedure'. Such agreements normally cover almost all economic sectors and relate to the creation of a free trade zone or even a customs union. They have no specified period of validity and, in some cases, they even include a reference to possible accession.

54 As for `other agreements establishing a specific institutional framework by organising cooperation procedures', these are fairly similar to association agreements. They are usually concluded with countries which are in transition from a centralised economy to a market economy, or with developing countries not yet ready to submit all their economic sectors to the free competition conditions of a free trade zone.

55 What these two categories of agreements have in common is that, on the one hand, because of the nature and intensity of the links they establish with non-member countries, they are highly political in tone and launch a process of harmonisation which is intended to be developed, and on the other, because they open up the markets, they have a major economic impact in part or all of the Community, irrespective of their purely budgetary implications for the Community, which vary widely.

56 Finally, `agreements entailing amendment of an act adopted under the procedure referred to in Article 189b' directly relate to the internal operation of the Community. Since the act in question has been adopted by joint decision with the Parliament, it must be an extremely important item of legislation which the Council could not undertake to amend, with respect to a non-member country, without first obtaining the agreement of its co-author, the Parliament.

57 Thus, agreements with important budgetary implications are found in the same context as other agreements with considerable scope. By contrast, fisheries agreements are limited to a single sector and are concluded for only a few years. It therefore seems to me that, if they are to claim the same degree of importance as the other types of agreements cited solely because of their budgetary implications, fisheries agreements need to have a very pronounced impact on the Community budget.

58 As the parties themselves agree, because previous practice is lacking, it cannot be claimed that a different interpretation was given to the term `important' when it came to implementing the joint declaration of the Parliament, the Council and the Commission of 4 March 1975 concerning the introduction of the cooperation procedure, which refers to general Community acts `... with important financial implications'.

59 Everything therefore militates in favour of interpreting `notable' as `important'. The question remains: important in what terms? I support the Council's position in thinking that the budget heading cannot be an adequate framework for measuring that importance.

60 First of all, the budget heading itself can have only limited importance. In this particular case budget heading B7-800 `International fisheries agreements' covered payment appropriations totalling ECU 233 500 000, or 0.28% of the total budget, in 1996. Moreover, in addition to the alterations they may undergo for perfectly legitimate reasons which have nothing whatsoever to do with manipulation, budget headings seem to me to be a framework in which variations involving very small sums can appear quite considerable, as if seen through a magnifying glass. How relevant would importance be as a criterion in a budget heading if a very special agreement, such as a UNRWA agreement, had to be made a budget heading in itself precisely because of its special nature, thus by definition accounting for 100% of the appropriations?

61 Should we therefore consider that the only relevant reference is the total amount of expenditure entered in the budget, as the Council contends? I think that the proportion of the budget accounted for by the expenditure involved in an agreement (in this case 0.07%) must always be taken into account or, more precisely, must never be overlooked. The importance of the budgetary implications of an agreement cannot perhaps be assessed only in relation to the total Community budget for a given year; other elements may also be taken into account, but in themselves cannot be enough to prove that the budgetary implications are important if the amounts in question, viewed objectively, must be regarded as only a negligible proportion of the total budget.

62 These other elements, which I feel cannot all be objected to, certainly include the fact that the expenditure is spread over a number of years, or more precisely the duration of the agreement, since sums which in themselves are not very great may, cumulatively over 10 or 20 years, produce a sizeable total. Fisheries agreements, however, are concluded only for a period of five years.

63 Chapter B7, which covers all appropriations used to fund the Community's external operations, is on a different order of magnitude which falls between the budget heading, which is too limited, and the overall budget, in terms of which calculations soon have to be made in per thousand rather than per cent. It is true that the figures in that chapter do not cover all activities in that field, the European Development Fund, for example, being financed from the Member States' budgets. But by considering the appropriations linked to a particular agreement in the context of that chapter it is easier, in my view, to avoid the accusation of not comparing like with like, since the arguments will be in relation to the overall cost of `external affairs'.

64 In 1996, subsection B7 `External operations' covered ECU 4 468 586 000 in payment appropriations, of which fisheries agreements accounted for 5.22%. The agreement concluded with Mauritania, for which ECU 55 160 000 in payment appropriations were provided for the same year, therefore accounted for 1.23% of the appropriations allocated for `External operations'.

65 Again, with the idea of ensuring a consistent context for evaluation, we might also think of considering the expenditure which a given agreement entails in relation to the appropriations entered in the budget for the internal part of the policy of which the agreement forms part. In the case in issue, this would mean comparing the expenditure associated with the agreement with Mauritania with the expenditure for the fisheries sector in the section of the budget on the European Agricultural Guidance and Guarantee Fund. The Council informs us that this was 5.45% in payment appropriations.

66 These last two methods of comparison are certainly relevant for the agreement with Mauritania, and I think the Council could not have been blamed if, giving a very broad and political interpretation to the concept of `important budgetary implications', it had used them to ask the Parliament for its assent. However, I consider that, legally speaking, the Council was not obliged to do so, since a comparison with the overall Community budget shows, in purely objective terms and based solely on the figures, that the budgetary implications of the agreement must be classified as minor.

67 Are the Parliament's other arguments likely to undermine this conclusion? Let us first dismiss any possible allegation that I adopted a restrictive interpretation of the second subparagraph of Article 228(3) by pointing out that an interpretation based on the literal meaning of the words used which is also borne out by an examination of the context in which they are used is neither extensive nor restrictive, it is simply objective.

68 Let us now consider the arguments which the Parliament seeks to draw from comparative constitutional law and whose admissibility, as mentioned earlier, the Council disputes as a matter of principle. In my view, the Council's observations are conclusive. It is impossible to interpret the powers of any Community institution in the light of the powers held by a similar institution in some or even all the Member States.

69 The Court, as an institution set up by the constitutive legislature of the Communities, intergovernmental conference and the parliaments of the Member States, is manifestly not entitled to confer on another Community institution powers not granted to it by the constitutive legislature. The task of the Court must therefore be limited to identifying the scope of the rights which the constitutive legislature might reasonably be understood to have intended to confer on the Parliament through the second subparagraph of Article 228(3).

70 Likewise, it could also be shown that the Parliament's arguments that there are parallels between internal and external powers are rendered inadmissible by the institutional system established by the Treaty. But since the Parliament, in the face of the Council's objections, did not pursue this line, there is no need for me to do so. As regards the need to give practical effect to the disputed provision, I would simply point out that that does not mean that texts must be made to say what they do not, and that it would be a gross oversimplification to deem a provision to have no practical effect simply because it is not applied frequently. Even if it were to be no more than a safety barrier to prevent the Council from entering into major financial commitments on behalf of the Community and without the Parliament's agreement, running the Community budget heavily into debt, the second subparagraph of Article 228(3) would still not be totally ineffective.

71 Finally, let us dismiss the argument that it is inconsistent to consider, as the Parliament, the Council and the Commission did, that the fisheries agreement with the Kingdom of Morocco fitted the concept of agreements having important budgetary implications, even though it accounted for only 0.15% of the overall budget, whereas the agreement with Mauritania, which represents 0.07% of the same budget, does not.

72 The Parliament contends that, in the light of the overall budget, it would be presumptuous to classify the first as important but to deny the second the same classification. The short answer here, I feel, is that the expenditure under the agreement with Morocco is more than double that under the agreement with Mauritania, a ratio that cannot seriously be regarded as insignificant. I think it would be quite incorrect to suggest that, in not classifying the agreement with Mauritania as an agreement with important budgetary implications, the Court would be repudiating the institutions' classification as such of the agreement with the Kingdom of Morocco in 1996.

73 Having concluded that the 1996 fisheries agreement with Mauritania is not an agreement with important budgetary implications for the Community, it simply remains for me to draw the appropriate conclusion from this, that in citing the Treaty `and in particular Article 43 thereof, in conjunction with Article 228(2) and the first subparagraph of Article 228(3)' as the legal basis for adopting Regulation No 408/97, the Council did not act unlawfully.

Conclusion

74 I therefore propose that the Court:

- dismiss the action as inadmissible in so far as it is based on an infringement of Article 190 of the EC Treaty;

- dismiss it as unfounded as to the remainder;

- order the European Parliament to pay the costs; the Kingdom of Spain, for its part, must pay its own costs.

(1) - OJ 1997 L 62, p. 1.

(2) - OJ 1996 C 380, p. 20.

(3) - Case C-156/93 Parliament v Commission [1995] ECR I-2019.

(4) - Case C-303/94 Parliament v Council [1996] ECR I-2943.

(5) - [1994] ECR I-3641.