C-189/97

PARLIAMENT V COUNCIL

OPINION OF ADVOCATE GENERAL MISCHO delivered on 11 March 1999 *

1. In citing, in conjunction with Article 43 3. The Agreement with Mauritania, which of the EC Treaty, the first subparagraph of was concluded for a period of five years Article 228(3) rather than the second sub- from 1 August 1996, enables Community paragraph, which requires the European vessels to fish in waters under Mauritanian Parliament's assent, as the legal basis in sovereignty or jurisdiction in return for conjunction with Article 43 of the EC comprehensive financial compensation Treaty, for the adoption of Council Reg- paid by the Community. ulation (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 ('Maur- itania') and laying down provisions for its 4. The financial compensation is the sub- implementation 1 ('the contested regula- ject of a protocol attached to the Agree- tion'), did the Council infringe the Parlia- ment, which fixes the amounts as follows: ment'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 Year 1: ECU 55 160 000 Spain.

Year 2: ECU 54 360 000

Year 3: ECU 53 560 000 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 Year 4: ECU 52 160 000 main purpose of the Agreement with Mauritania and the development of the dispute which has brought the Council and the Parliament before us today. Year 5: ECU 51 560 000,

5. The Agreement, which was negotiated itania and laying down provisions for its after Mauritania withdrew from an earlier implementation'. 2 Substituting the second agreement, was the subject of two propo- subparagraph of Article 228(3) of the sals from the Commission to the Council of Treaty for the legal basis cited by the 9 September 1996, one for a Council Council, the Parliament gave its assent to decision concerning the provisional appli- the Agreement in question. cation 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. 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 6. The latter proposal, based on the Treaty European Parliament'. '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 10. Having summarised the background conjunction with Article 228(2) and the we can now move on to the complaints first subparagraph of Article 228(3)', in that the Parliament has brought before us. other words it sought the Parliament's There are two, and according to the opinion rather than its assent. Parliament both of them may relate to infringements of essential procedural requirements and may amount to an infrin- gement of its prerogatives within the mean- ing of the third paragraph of Article 173 of 7. The proposal for a regulation was refer- the EC Treaty. red 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 11. The first alleges that the choice of the considered that the Agreement had impor- first subparagraph of Article 228(3) of the tant budgetary implications within the Treaty as the legal basis for the contested meaning of the second subparagraph of regulation constituted an infringement of Article 228(3) of the Treaty. the second subparagraph of Article 228(3).

13. Since the Council argues that the action is inadmissible in respect of the second 16. It considers that the link lies in the fact complaint, it is this that we shall examine that the change in legal basis made by the first. Council in relation to the Commission's proposal reduced the level of the Parlia- ment'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 complaint of absence of statement of the Treaty and the requirements of the principle of transparency that should gov- reasons ern the institutions' actions, certain features of the case before us demonstrate the importance of having a statement of rea- 14. The Parliament contends that the refer- sons. It refers here to the total lack of ence to the first subparagraph of Arti- transparency allegedly resulting from the cle 228(3) of the Treaty, rather than to the absence of any reasons for choosing a second subparagraph of Article 228(3), in different legal basis from that chosen by the citations of the contested regulation, two other institutions, although, as the without any explanation of this choice of Council was quick to point out, no state- legal basis, constitutes an infringement of ment of reasons was given for that choice Article 190 of the Treaty and is tantamount either. to an infringement of essential procedural requirements and an impairment of its prerogatives.

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 18. Moreover, the Parliament can certainly of a provision requiring only the Parlia- not at any time have had the slightest doubt ment's opinion instead of another requiring about the reasons why the Council chose its assent is directly linked to the extent of one subparagraph of Article 228(3) rather the Parliament's prerogatives. 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 implica- tions. The fact that the Council chose the 21. Even if it has not specifically cited it as first subparagraph of paragraph 3 showed a ground of inadmissibility, the Council has in the clearest manner possible that it felt suggested that the dispute before us is that that condition was not met in the purely theoretical, since the very fact that present case. the Parliament gave its assent showed that it approved the content of the agreement.

us. As long as it acts within the limits of tiations in consultation with special com- defending its prerogatives, the Parliament mittees appointed by the Council to assist it does not need, any more than the other in this task and within the framework of institutions, to show that it has a legitimate such directives as the Council may issue to interest in acting. Moreover, it is for the it. 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 bud- In exercising the powers conferred upon it getary implications. 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 unan- imously. 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 2. Subject to the powers vested in the important budgetary implications for the Commission in this field, the agreements Community' within the meaning of the shall be concluded by the Council, acting second subparagraph of Article 228(3) of by a qualified majority on a proposal from the Treaty. 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. 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. 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 ' 1 . Where this Treaty provides for the procedure referred to in Article 189b or conclusion of agreements between the that referred to in Article 189c is required Community and one or more States or for the adoption of internal rules. The international organisations, the Commis- European Parliament shall deliver its opi- sion shall make recommendations to the nion within a time-limit which the Council Council, which shall authorise the Com- may lay down according to the urgency of mission to open the necessary negotiations. the matter. In the absence of an opinion The Commission shall conduct these nego- within that time-limit, the Council may act.

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 Par- 29. Following this line of thought it con- liament invokes in its application a whole tends that, as the representative of the series of factors which it feels should people, the importance of its involvement govern the interpretation of that term. in the budgetary process means that the term 'agreements having important budget- ary 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. 27. It first points out that, in order to advance the democratisation of the Eur- opean Union, the Treaty on European Union from which the current wording of Article 228 was d r a w n sought to strengthen the Parliament's powers in the 30. Just as the requirement for the Council area of international agreements concluded to obtain its assent when concluding an by the Community. agreement entailing amendment of an act

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32. First of all, it describes its efforts to try to arrive, by common accord with the Council and the Commission, at an accep- — the first is based on the fact that the table interpretation of the controversial expenditure in question is to be spread term, and the plea of inadmissibility which over several years, 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 — the second is based on the relative UNRWA Agreement involving expenditure share of such expenditure in relation to of ECU 93 million spread over three years, expenditure of the same kind under the the 1994 fisheries agreement with Green- budget heading concerned; land 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 and Council.

— the third is based on the rate of increase 33. The Council asked for the Parliament's in expenditure compared with the assent only for the 1996 fisheries agreement previous agreement.

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national power structures into the Com- 44. It rejects the criterion that the Com- munity context, and that, as provided for in munity expenditure is to be spread over Article 4(1) of the EC Treaty, the institu- several years since the budget is, by defini- tions may act only within the limits of the tion, annual; it objects to the criterion of powers conferred upon them by the Treaty. 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 there- fore cannot be used as a reference, and it rejects as completely irrelevant the criterion that the amounts in question are greater 42. On the basis of the Court's judgment in than previous commitments, pointing out Case C-327/91 France v Commission,5 it that even doubling an insignificant amount also objects to any attempt to define the would not make it important. The only Parliament's powers in the field of external factor which it considers could be used as a relations by analogy with its internal reference for identifying agreements with powers in legislative or budgetary matters. important budgetary implications is the In particular, it points out in this connec- total amount of expenditure shown in the tion that the second subparagraph of Community budget. Compared with that Article 228(3) itself resists any such amount — more than ECU 82 billion for attempt, since, for agreements involving the 1997 budget — the fisheries agreement provisions coming under the scope of the with Mauritania cannot be deemed to Parliament's joint decision-making powers, entail major expenditure, since it represents the Parliament's assent is required only no more than 0.07% of the budget. where the agreement entails amendment of an act adopted under the procedure refer- red to in Article 189b of the Treaty.

46. Compared with these two conflicting shall therefore begin by examining the yet clear positions, the Commission's posi- literal interpretation to be given to the tion is ambiguous. It is true that it did not second subparagraph of Article 228(3) of see fit to intervene in these proceedings, the Treaty. 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. 48. The Council refers to a dictionary However, in accordance with the second which is widely used in French-speaking paragraph Article 21 of the EC Statute of countries (Le Petit Robert), which defines the Court of Justice, it was asked to explain 'notable' as 'ce qui est digne d'être noté, the reasons why it had made such a remarqué', adding 'Est notable ce qui est proposal, when it had not done so for the appréciable, important, sensible'. 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 49. According to Le Petit Larousse dic- explains that the position it adopted on the tionary, 'notable' means 'digne d'être noté, fisheries agreement with Mauritania was important, remarquable'. dictated by political considerations to do with the fact that the implementation of that agreement would require appropria- tions to be transferred from budget heading B7-800, which would require the Parlia- ment's agreement as a budgetary authority. 50. The other language versions of the passage in question are worded as follows:

— 'accordi che hanno repercussioni finan­ ziere considerevoli';

53. First of all, that provision covers agree- ments referred to in Article 238, which establish 'an association involving recipro- cal rights and obligations, common action — 'akkoorden die aanzienlijke gevolgen and special procedure'. Such agreements hebben'; 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. — 'acordos com consequências orçamen- tais significativas';

54. As for 'other agreements establishing a specific institutional framework by orga- — 'sådana avtal som har betydande bud- nising cooperation procedures', these are getmässiga följder för gemenskapen'. fairly similar to association agreements.

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They are usually concluded with countries context as other agreements with consider- which are in transition from a centralised able scope. By contrast, fisheries agree- economy to a market economy, or with ments are limited to a single sector and are developing countries not yet ready to concluded for only a few years. It therefore submit all their economic sectors to the seems to me that, if they are to claim the free competition conditions of a free trade same degree of importance as the other zone. types of agreements cited solely because of their budgetary implications, fisheries agreements need to have a very pronounced impact on the Community budget.

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 57. Thus, agreements with important bud- payment appropriations totalling ECU 233 getary implications are found in the same 500 000, or 0.28% of the total budget, in

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65. Again, with the idea of ensuring a which is also borne out by an examination consistent context for evaluation, we might of the context in which they are used is also think of considering the expenditure neither extensive nor restrictive, it is simply which a given agreement entails in relation objective. 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 68. Let us now consider the arguments the fisheries sector in the section of the which the Parliament seeks to draw from budget on the European Agricultural Gui- comparative constitutional law and whose dance and Guarantee Fund. The Council admissibility, as mentioned earlier, the informs us that this was 5.45% in payment Council disputes as a matter of principle. appropriations. 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.

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face of the Council's objections, did not 72. The Parliament contends that, in the pursue this line, there is no need for me to light of the overall budget, it would be do so. As regards the need to give practical presumptuous to classify the first as impor- effect to the disputed provision, I would tant but to deny the second the same simply point out that that does not mean classification. The short answer here, I feel, that texts must be made to say what they is that the expenditure under the agreement do not, and that it would be a gross with Morocco is more than double that oversimplification to deem a provision to under the agreement with Mauritania, a have no practical effect simply because it is ratio that cannot seriously be regarded as not applied frequently. Even if it were to be insignificant. I think it would be quite no more than a safety barrier to prevent the incorrect to suggest that, in not classifying Council from entering into major financial the agreement with Mauritania as an commitments on behalf of the Community agreement with important budgetary impli- and without the Parliament's agreement, cations, the Court would be repudiating the running the Community budget heavily institutions' classification as such of the into debt, the second subparagraph of agreement with the Kingdom of Morocco Article 228(3) would still not be totally in 1996. ineffective.

— 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.

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