C-316/91

2 — OJ 1991 L 229, p. 3. In addition to the original signatories, * Original language: English. Namibia acceded to the Convention in 1990. 1 — OJ 1991 L 266, p. 1. 3 — Decision 91/400/ECSC, EEC, OJ 1991 L 229, p. 1.

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long-term social, cultural and economic 6. On 16 July 1990, the representatives of development of the ACP States and to help the Governments of the Member States raise the standard of living of their peoples meeting within the Council adopted an through the provision of adequate financial Internal Agreement on the financing and resources and appropriate technical assis­ administration of Community aid under the 4 tance. To that end, development finance Convention 9 ('the Internal Agreement'). cooperation is to be provided on highly con­ Article 1 of the Internal Agreement provides 5 cessional terms. Within the framework of for the setting up of a seventh European the Convention, development finance coop­ Development Fund ('the Fund') by the eration covers inter alia capital projects and Member States. Article 1 also specifies the programmes, sectoral and general import contribution to the Fund of each Member support programmes, budgetary support to State. Article 32 provides as follows: alleviate domestic financial constraints, sup­ port for measures which contribute to atten­ uate the debt burden and balance of pay­ ments problems and technical cooperation programmes. 6 Provision is also made for support from the Community for struc­ tural adjustment programmes in the ACP 7 States. 'The provisions for implementing this Agreement shall be the subject of a Financial Regulation adopted, upon the entry into force of the Convention, by the Council, acting by the qualified majority laid down in Article 21 (4), on the basis of a Commission draft, after an opinion has been delivered by the [European Investment] Bank on the pro­ visions of concern to it and by the Court of Auditors established under Article 206 of the Treaty.'

7. In accordance with Article 32 of the Inter­ Fund and the responsibility of financial nal Agreement, the Commission submitted officers. Title III (Articles 44-60) provides to the Council a draft financial regulation in for the implementing measures and Title IV June 1990 and modifications to that draft in (Articles 61-68) lays down the duties of the October 1990. By a letter of 26 Octo­ executive agents. Title V (Articles 69-77) ber 1990, the Council requested the Parlia­ specifies the rules for the presentation and ment's opinion on the Commission's modi­ auditing of accounts and Title VI fied draft. By a resolution of 14 (Articles 78-79) contains the final provi­ 10 December 1990 the Parliament contested sions. the legal basis on which the Commission's draft was submitted. It took the view that the proposed Financial Regulation should be adopted on the basis of Article 209 of the Treaty and that it should take the form of a regulation within the meaning of Article 189 of the Treaty. It called on the Commission to act accordingly. By a resolution of 14 May 1991, 11 the Parliament rejected the 9. The Parliament claims that the contested Commission's draft on the ground that it act was adopted on the wrong legal basis. It infringed the provisions of the Treaty, in par­ argues that the expenditure concerning the ticular Articles 199 and 209, and requested development aid provided for by the Con­ the Commission to submit a new draft tak­ vention is Community expenditure. The ing into account the general Financial Regu­ measure ought therefore to have been 1 lation. 2 The Council did not follow the adopted pursuant to Article 209 of the Parliament's opinion. Instead, it adopted the Treaty, which states as follows: contested act on the basis of the Internal Agreement.

10. The Parliament argues that according to procedure which was followed for imple­ Article 199 of the Treaty, which lays down menting that aid. the principle of the unity of the Community budget, all items of revenue and expenditure of the Community must be shown in the budget. It claims that an exception to that principle may be introduced only by the Community legislature acting within the limits of its powers. It cannot be introduced validly by the Internal Agreement. 13. The dispute which has given rise to these proceedings is not a new one. The financial provisions of the four Lomé Conventions (as well as of the Yaounde Conventions which preceded them) were implemented by means 14 of a European Development Fund. Such a Fund was set up for each convention by an internal agreement of the Member States. The Parliament requested the inclusion of 11. It will be remembered that the Parlia­ the European Development Fund in the ment may bring an action for annulment budget for the first time in 1973: see Parlia­ against an act of the Council or of the Com­ ment resolution of 14 February 1973, para­ 15 mission provided that two conditions are graph 7. It has since repeated that request fulfilled: the action seeks only to safeguard several times but without success. The the Parliament's prerogatives and it is Council's refusal to incorporate in the bud­ founded only on submissions alleging the get the fifth European Development Fund, infringement of those prerogatives: see Case which was established in connection with the C-70/88 Parliament v Council (Chernobyl Second Lomé Convention, was one of 13 case). the reasons which led the Parliament to reject the draft budget for the 1980 financial year.

moted the same cause. In its opinion on the 15. The Member States have, however, con­ draft financial regulation applicable to the sistently rejected the idea of incorporating fifth European Development Fund, it stat­ the European Development Fund into the 17 ed: Community budget. In the negotiations leading to the conclusion of the Treaty on European Union, the Commission proposed an amendment to Article 199 of the Treaty, according to which Article 199 would state that all items of revenue and expenditure, including those relating to the European Development Fund, must be shown in the Community budget. That amendment was not adopted. On the contrary, the Final Act accompanying the Treaty on European '... the financial operations of the EDF are in Union includes a declaration on the Euro­ fact Community expenditure since they pur­ pean Development Fund, which reads as fol­ sue the same development objectives as all lows: the other measures in the general budget for the benefit of associated or non-associated countries, are managed by Community bod­ ies and are subject to the power of discharge of the Parliament;

'The Conference agrees that the European Development Fund will continue to be financed by national contributions in accord­ ance with the current provisions.'

development assistance to the ACP States which applies to operations financed by the and other developing countries on a bilateral Fund resources managed by the Bank, the basis. In some cases, the provision of such operations financed by the Fund are subject assistance reflects historical links between to the supervisory powers of the Court of individual Member States and certain devel­ Auditors. The discharge for the financial oping countries. The contribution of each management of the Fund must be given to Member State to the Fund as provided for in the Commission by the Parliament on the Article 1 of the Internal Agreement takes recommendation of the Council acting with into account the bilateral development aid the qualified majority laid down in Article 21 advanced by Member States. That would not (4) of the Internal Agreement. The functions be possible if the aid to the ACP States pro­ of the Court of Auditors and of the Parlia­ vided for by the Convention were part of the ment in that context are laid down in more Community budget. Further, the Council detail in Title V of the contested act. states that the financing of the aid provided for by the Convention by direct contribu­ tions outside the Community budget is pref­ erable from the point of view of the Com­ munity. The contributions of the Member States to the European Development Fund are additional to, and do not form part of, Admissibility of the application the Community's own resources. In a case such as that of the 1984 financial year, where the Commission's draft budget reached the legal ceiling of the Community's own resources, the importance of financing the development aid to the ACP States by direct contributions outside the Community bud­ get becomes obvious. 18. By a separate application, the Council requested the Court to reject the Parlia­ ment's application as inadmissible without going into the substance of the case. The Council claims that the application must be rejected as inadmissible on two grounds: first, on the ground that the contested act is not a reviewable act within the meaning of Article 173 of the Treaty; secondly, on the 17. It should be noted that, although the ground that the prerogatives of the Parlia­ Fund is not part of the budget, expenditure ment have not been infringed. incurred thereby does not escape the super­ visory control of the Parliament and of the Court of Auditors. Under Article 33 of the Internal Agreement, at the end of each finan­ cial year the Commission must adopt the revenue and expenditure account and the balance sheet of the Fund. Article 33 also provides that, without prejudice to the con­ trol and discharge procedure laid down in 19. In a case where the Parliament alleges an the Statute of the European Investment Bank infringement of its prerogatives, there is

22. The Spanish Government, which has 20. The Council's first claim clearly raises an intervened in support of the Council, also issue of admissibility. The Council concedes claims that the Parliament's application is that the contested act is an act of the Council inadmissible on the basis of arguments simi­ and not an act of the Member States. It lar to those submitted by the Council. argues, however, that the contested act was not adopted on the basis of the Treaty but on the basis of a capacity conferred upon it by Article 32 of the Internal Agreement. Since the contested act was adopted outside the Treaty, it is not a Community act and, a for- tiori, it is not a financial regulation within the meaning of Article 209 of the Treaty. 23. I will consider first the argument that the prerogatives of the Parliament have not been infringed on the ground that the Parliament was in any event consulted with regard to the contested act.

21. In any event, the Council claims that in adopting the contested act it did not infringe the Parliament's prerogatives. If the con­ tested act had been adopted under Art­

18 — See Case C-70/88 Parliament v Council, paragraph 31 and 24. It cannot be denied that, where consulta­ Joined Cases C-181/91 and C-248/91 Parliament v Council tion is provided for by the Treaty, a failure to (Bangladesh case), judgment of 30 June 1993, [1993] ECR I-3685, paragraph 32. consult infringes the prerogatives of the Par­

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26. Further, it is not correct to say, as the Council and the Spanish Government sub­ mit, that the legal effects of a compulsory consultation are identical to those of an optional one. First, as already stated, failure to consult the Parliament when consultation 25. It follows that if the Council adopts an is required by the Treaty constitutes a breach act on a legal basis which does not provide of an essential procedural requirement. The for the prior consultation of the Parliament omission of a purely optional consultation whereas the act concerned should have been would not infringe an essential procedural adopted under a provision of the Treaty requirement. Secondly, where consultation is which provides for such consultation, the required by the Treaty, both the Council and Council effectively refuses to recognize that the Parliament are under certain obligations. the Parliament has the right to be consulted This is not necessarily the case where consul­ with regard to the adoption of that act. It tation takes place only as a result of the seems to me that that is in itself an infringe­ Council's initiative. ment of the Parliament's prerogatives. It makes no difference that the Council requests the Parliament to submit its views and takes such views into account when sub­ mitted. Compliance with the procedures provided for by the Treaty is not at the dis­ cretion of the enacting institution. It does not suffice that the Council does as a matter of grace what it is required to do as a matter 27. Where consultation is compulsory, the of obligation. That view is necessary in order Council must consider the opinion of the Parliament with a receptive mind and pay

28. Similar considerations apply with regard to the Parliament. The Parliament's parti­ cipation in the legislative process is not to be seen only as a prerogative but also as a responsibility with which the Parliament is 30. I conclude that if it were accepted that entrusted and which it cannot waive. Where the correct legal basis of the contested act consultation is required, there is a duty upon was Article 209 of the Treaty, which provides the Parliament to look carefully at the Com­ for the prior consultation of the Parliament, mission's proposal and pay due regard to the the adoption of the contested act on a legal issues involved. basis which does not provide for such con­ sultation would constitute an infringement of the Parliament's prerogatives even though the Parliament was asked for, and gave, its 22 — See Roquette Frères v Council, paragraph 36. opinion. It follows that the issue whether the 23 — Case C-65/90 Parliament v Council [1992] ECR I-4593, paragraph 16. prerogatives of the Parliament have been

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infringed is linked to the issue whether the Member States meeting in Council is not contested act should have been adopted sufficient to place it beyond the reach of under Article 209 of the Treaty. Article 173, if it is in reality an act of the Council: see Joined Cases C-181/91 and C-248/91 Parliament v Coimai, judgment of 30 June 1993 (Bangladesh case). A fortiori, in the present case, where it is not disputed that the act concerned is an act of the Coun­ cil, the Court is entitled to look at the con­ tent and the effects of the act, as well as the framework within which it was adopted, with a view to determining whether it is an 31. The other objection to admissibility, i. e. act subject to judicial review. that the contested act is not an act subject to review under Article 173, is also linked to the substance of the case.

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The development aid to the ACP States the institutions of the Community powers within its internal system for the purpose of attaining a specific objective, the Community has authority to enter into the international commitments necessary for the attainment of that objective even in the absence of an 25 express provision in that connection.

35. Before examining in more detail the arguments of the parties, it will be helpful to discuss briefly the case-law of the Court concerning the external competence of the Community.

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ing a common policy envisaged by the 4L There is a further consideration which Treaty, adopts provisions laying down com­ supports the view that the competence of the mon rules, the Member States no longer have Community in the field of development aid the right to undertake obligations with third to the ACP States is concurrent with that of countries which affect those rules or alter the Member States. The title of the 28 their scope. The judgment of the Court in Convention concerning development finance ERTA was taken further in Opinion 2/91. In cooperation contains provisions with 30 that Opinion, the Court held that the pre­ regard to emergency assistance. Under emptive effect of Community law is not Article 254, emergency assistance shall be restricted to the case where the Community accorded to ACP States faced with serious has adopted rules within the framework of a economic and social difficulties of an common policy. Member States are also pre­ exceptional nature resulting from natural cluded from entering into international com­ disasters or extraordinary circumstances mitments containing rules capable of affect­ having comparable effects. That assistance, ing, or altering the scope of, existing therefore, has essentially a humanitarian Community measures in areas falling outside character. In the Bangladesh case, the Court 29 common policies. stated that in the realm of humanitarian aid the competence of the Community is not exclusive and that the Member States are not prohibited from exercising collectively their 31 competence in that field.

43. According to the Parliament, since under the Convention the Community undertook the obligation to provide development aid to the ACP States, the Member States are pre­ cluded from acting in that field. In support of its arguments, the Parliament refers to the judgments of the Court in Case 804/79 46. The crucial difference between Commis- 32 Commission v United Kingdom, which sion v United Kingdom and the present case related to Article 102 of the 1972 Act of is that that case concerned an area where the Accession, and in ERTA. competence of the Community was 'total and definitive' and not one where compet­ ence is shared between the Community and the Member States. There is nothing in the judgment of the Court in Commission v United Kingdom to suggest that where the Community exercises its competence in an 44. If the Parliament's reasoning were area which falls within the concurrent com­ accepted, it would follow that it is not pos­ petence of the Community and the Member sible for the Community and the Member States, the Member States are necessarily States to act jointly for the purposes of prohibited from exercising theirs. granting development aid to the ACP States and also that it is not possible for the Mem­ ber States to undertake directly the financial burdens arising from the Convention. In my view, however, that reasoning cannot be accepted.

45. The cases to which the Parliament refers do not support the argument that, where the Community and the Member States enjoy 47. Nor is the view of the Parliament sup­ ported by the judgment of the Court in ERTA. In ERTA, as in Opinion 2/91, the 32 — [1981] ECR 1045. Court was concerned with the relationship

48. It is clear that once the Community 50. It cannot be accepted, however, that, as enters into an international agreement the the Parliament contended especially at the subject-matter of which falls within the con­ oral hearing, once the Community under­ current competence of the Community and takes an obligation by entering into an inter­ the Member States, the Member States are national agreement, the Member States are under certain obligations which emanate necessarily excluded from undertaking that from Article 5 of the Treaty. In particular, obligation jointly with the Community. As a the Member States must facilitate the fulfil­ general rule, in an area where the Commun­ ment of the Community's obligations arising ity and the Member States enjoy concurrent out of the agreement and may not act unilat­ competence, they may exercise their compet­ erally in a way which could compromise ences concurrently by undertaking joint their duty to proceed by common action action and joint obligations vis-à-vis third within the framework of the agreement. parties.

49. It may also be accepted, on the basis of the judgment of the Court in ERTA and its 51. The view that it is possible for the Com­ ruling in Opinion 2/91, that, once the Com­ munity and the Member States to act jointly munity enters into an international agree­ in an area where they enjoy concurrent com­ ment, the Member States are precluded from petence is also supported by the judgment of doing anything capable of affecting that the Court in the Bangladesh case. In that agreement or altering its scope. The exact case, the Court made it clear that it is poss­ limits of the duty imposed on the Member ible for the Member States to provide the States in that context cannot be laid down in necessary funds to finance humanitarian aid the abstract but depend on the agreement in and for the Commission to undertake the question. As the Council pointed out at the coordination of that aid.

It is clear therefore that under those provi­ sions development policy falls within the 33 — See above, paragraph 14.

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iture to finance the aid provided for by the Council claimed that the draft agreement fell Convention, was included in the Commun­ partly within the competence of the Com­ ity budget with effect from 1978. munity and partly within the competence of the Member States and that it should there­ fore be adopted as a mixed agreement.

34 — Sec G. Isaac, Les Insulations Coinmitnautttircs, Jims Clas- seur tic droit européen, November 1990, fascicule 250, para­ graph 27. 35 — [1979) ECR 2871. 36 — Opinion 1/78, paragraph 55.

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exclusive competence or whether the Mem­ effective defence of the common interests ber States enjoy concurrent competence to of the Community. As the Court has conclude that agreement precisely on the held: basis of whether the Member States are will­ ing to undertake directly the financial obliga­ tions arising from its provisions.

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Convention. The provision of development 63. According to the Parliament, it emerges aid to the ACP States is essential to facilitate from Article 231 of the Convention which the objectives of the Convention and consti­ refers to 'the Community's financial assist­ tutes one of the cornerstones of ACP-EEC ance' and from Article 1 of the Financial cooperation. It follows, on the basis of the Protocol which uses the same language that ruling of the Court in Opinion 1/78, that it the obligation to provide financial assistance is possible for the Member States to provide to the ACP States is an obligation under­ directly, outside the Community budget, the taken only by the Community and not by funds necessary to finance the development the Member States. The ACP States can only aid to the ACP States provided for by the require the Community, and not the Convention. Member States directly, to provide that assistance.

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eluded; the ruling of the Court does not 68. In any event, I do not share the Parlia­ apply to the present case where under the ment's view that, according to the language terms of the Convention the Community and the spirit of the Convention, the obliga­ has undertaken the obligation to provide the tion to provide the aid burdens the aid. Community alone.

66. I understand the Parliament's argument to mean that where, under a mixed agree­ ment, the obligation to provide aid is under­ 69. The Convention was concluded as a taken only by the Community and not by mixed agreement (i. e. by the Community the Member States, the Member States may and its Member States jointly) and has essen­ not undertake to finance that aid by direct tially a bilateral character. This is made clear contributions outside the Community bud­ in Article 1, which states that the Conven­ get. tion is concluded between the Community and its Member States, of the one part, and the ACP States, of the other part. Under a mixed agreement the Community and the Member States are jointly liable unless the provisions of the agreement point to the 3 opposite conclusion. 8

71. That interpretation is supported by Art­ icle 223, which provides that in the context of development finance cooperation, unless otherwise provided in the Convention, all decisions requiring the approval of 'either Contracting Party' shall be approved, or deemed approved, within 60 days of notifica­ tion. If it were true, as the Parliament con­ 74. It should also be noted that the Conven­ tends, that the obligation to provide the aid tion is the most recent of a series of conven­ burdens only the Community, Article 223 tions where similar financial arrangements should not have made reference to 'either were made. As already stated, the Member Contracting Party' which means, on the one States undertook to provide directly the side, the Community and the Member States funds necessary to finance the development and, on the other side, the ACP States. aid provided for by the successive Yaounde Instead it should have made reference to the and Lomé Conventions. That also supports Community and to the ACP States. the conclusion that the Member States have undertaken a joint obligation with the Com­ munity to provide the development aid under the Convention.

72. I note that neither the Convention nor the Financial Protocol specifies how the aid will be financed. In my view, the fact that the Member States have agreed to provide 75. I am not persuaded therefore that the directly the funds necessary to finance the reference to 'the Community's financial aid is in itself a very strong indication that assistance' in the Convention means that the they have undertaken a joint obligation with obligation to provide the assistance burdens the Community under the Convention. the Community alone. If the contracting par-

78. It will be remembered that, according to 76. There is no doubt that the aid to the the Council and to the Spanish Government, ACP States provided for by the Convention the contested act is not a reviewable act is Community aid in that it is offered under because it was not adopted on the basis of the auspices of the Community. In that the powers conferred upon the Council by respect, it should be contrasted with bilateral the Treaty but on the basis of a power con­ aid granted by the Member States to the ferred upon it by the Member States. ACP States. Articles 17 and 19 of the Inter­ nal Agreement contain provisions which seek to ensure coordination and improve complementarity between the aid granted by the Community and the bilateral aid granted by the Member States. That is not to say, however, that the aid provided for by the Convention may not be financed by direct 79. The Parliament disputes that view. It contributions of the Member States outside argues that the Council may not act outside the Community budget. the framework of the Treaty on the basis of a mandate conferred upon it by the Member States. Alternatively, it argues that, by reason of its substance and its form, the contested act presents all the characteristics of a Com­ munity act. If it were accepted that the Council could act outside the framework of 77. I have concluded that the development the Treaty, the contested act should be aid provided for by the Convention is not annulled because it was adopted by a method Community expenditure and that it does not and in a form foreign to its nature. need to be part of the budget. It follows that it was not necessary to adopt the contested act under Article 209 of the Treaty, which provides for the prior consultation of the Parliament. Contrary to what the Parliament argues, therefore, no question arises of its prerogatives having been infringed. The Par­ liament's application is therefore inadmiss­ ible. On that view, it is not necessary to 80. I will examine first the issue whether the examine the other issue of admissibility, i. e. Council had the power to adopt the con­ whether the contested act is a reviewable act. tested act on the basis of the Internal Agree­ For the purposes of completeness, however, ment. I will then discuss the nature of the I will examine that issue. contested act.

81. It is not correct to say, as the Parliament Council often played a role conferred upon argues in its written submissions, that a it not by that article, but by the Member Community institution may never act on the States. basis of a mandate conferred upon it by the Member States. In the Bangladesh case, the Court held that the Commission was not precluded from undertaking the coordina­ tion of collective action decided by the 39 Member States. The action in issue in that case was the administration of humanitarian aid granted to Bangladesh by a decision of the Member States meeting in Council. 83. Nor does it follow from Article 4 (1) of the Treaty, on which the Parliament placed much reliance in its written submissions, that a Community institution may never act on the mandate of the Member States. Article 4 (1) provides that each Community institu­ tion shall act within the limits of the powers conferred upon it by the Treaty. Its main objective is to define the constitutional posi­ tion of the Community institutions vis-à-vis that of the Member States. It makes clear 82. As the Council points out, there are that the Community institutions do not have other cases also where the Member States inherent powers but only those which, authorize a Community institution to act on expressly or by implication, are conferred their behalf in an area which falls within upon them by the Treaty. Powers which are their competence. Considerations of expedi­ not thus conferred upon them lie with the ency make such a practice desirable. Thus, in Member States. It follows from Article 4 (1) the case of mixed agreements, the Member that a Community institution may not States mandate the Commission to negotiate encroach upon the competence of the Mem­ with the other party to the agreement on ber States nor may it act in such a way as to their behalf and under their control in rela­ evade the requirements of the Treaty. It is tion to any parts of the agreement which fall, not the purpose of that provision, however, or appear to fall, within their exclusive com­ to rule out the possibility of a Community petence. The Commission also undertook institution undertaking functions on the the negotiations on behalf of the Member mandate of the Member States. States in agreements for the accession of new States to the Community in accordance with Article 237 of the Treaty, although the Treaty made no provision for the Commission to undertake that task. In the sphere of Euro­ pean Political Cooperation provided for in Article 30 of the Single European Act, the

Member States certain functions outside the purpose of the contested act is to lay down framework of the Treaty provided that such detailed rules with regard to the administra­ functions, and the way in which it performs tion of the development aid to the ACP them, are compatible with its Treaty obliga­ States provided for in the Convention. In my tions. Whether that is the case is subject to view, it was possible for the Council to the control of the Court. adopt the contested act, given that the Con­ vention is a mixed agreement and that the contested act falls within an area where the Community and the Member States enjoy concurrent competences. The Court has held that, where an agreement is concluded in an area where competence is shared between the Community and the Member States, negoti­ ation and implementation of the agreement 85. As a general rule, a distinction can per­ require joint action by the Community and 40 haps be drawn between executive functions the Member States. and legislative functions. It will be easier to accept that a Community institution may undertake an executive function on the man­ date of the Member States, such as to coor­ dinate action decided by the Member States or to represent their collective interests vis- à-vis third countries, than to accept that a Community institution, especially the Coun­ cil, may undertake a legislative function on the mandate of the Member States. That is because the Council is the main legislative 87. In the implementation of the Conven­ organ of the Community and, as a general tion the Member States act in close contact rule, it may not operate in a legislative capac­ with the Community institutions. Under the ity on the mandate of the Member States in Internal Agreement, the Commission bears parallel with its legislative function under the primary responsibility for administering the Treaty. Such action might have the result that Fund and for implementing the aid policy 41 the procedures provided for in the Treaty defined by the Council. The Convention is were evaded, and might also cause confusion accompanied by an Internal Agreement on with regard to the nature of the acts adopted the measures and procedures required for its 42 by the Council. implementation which, like the Internal Agreement on the basis of which the con­ tested act was adopted, is an act of the rep­ resentatives of the Governments of the Member States meeting in Council. Article 1 provides that the Council is to adopt unan­ imously, after consulting the Commission,

88. It is clear therefore that a central role in the implementation of the Convention is performed by the Council and by the Com­ mission, which act in a dual capacity: as Community institutions and as, effectively, delegates of the Member States. This is nec­ essary in view of the fact that the Conven­ 91. It is equally clear however that the con­ tion has been concluded in the form of a tested act shares many of the characteristics mixed agreement. The adoption of the con­ of a Community act. The following consid­ tested act is an integral part of the conse­ erations point to that conclusion: quential action which needs to be taken for the implementation of the Convention. It would be difficult to question the Council's power to enact the contested act without questioning the overall participation of the Council and of the Commission in the implementation of the Convention. (a) The contested act was adopted by the Council and not by the representatives of the Member States meeting in Coun­ cil.

89. I conclude therefore that it is compatible with the Treaty for the Council to adopt the contested act on the basis of the Internal Agreement. I turn now to examine the nature of the contested act.

(b) Other Community bodies were involved in the adoption of the con­ tested act. In accordance with Article 32 of the Internal Agreement, the Council 90. It is clear that the contested act is not a acted on the basis of a draft submitted regulation within the meaning of Article 189 by the Commission and after obtaining of the Treaty. It was not adopted on the basis the opinion of the Court of Auditors of a Treaty provision but on the basis of the and of the European Investment Bank. Internal Agreement which is a decision of The opinion of the Parliament was also the representatives of the Governments of sought.

Conclusion

94. I am therefore of the opinion that:

(1) the action should be dismissed;

(2) the Parliament should be ordered to pay the costs of the Council ; Spain, as intervener, should bear its own costs.

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