Opinion of Advocate General Bobek delivered on 6 October 2021.

• Jurisdiction: European Union
• Celex Number: 62018CC0059
• ECLI: ECLI:EU:C:2021:812
• Date: 06 October 2021
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

BOBEK

delivered on 6 October 2021(1)

Joined Cases C‑59/18 and C‑182/18

Italian Republic (C‑59/18)

Comune di Milano (C‑182/18)

v

Council of the European Union

Case C‑743/19

European Parliament

v

Council of the European Union

(Action for annulment – Agencies of the Union – European Medicines Agency and European Labour Authority – Seats – Scope of Article 341 TFEU – Competence to decide on the seats of agencies – Decisions adopted by the representatives of the Member States in the margins of Council meetings to determine the location of the seats of agencies – Legal nature – Author of the act – Court’s jurisdiction under Article 263 TFEU – Absence of binding effects in the EU legal order)

I. Introduction

1. In November 2017, following the notification by the United Kingdom of Great Britain and of Northern Ireland of its intention to withdraw from the European Union, the representatives of the governments of the Member States selected, in the margins of a meeting of the Council of the European Union (‘the Council’), the city of Amsterdam (Netherlands) to replace London as the new location for the seat of the European Medicines Agency (EMA). In June 2019, the representatives of the governments of the Member States also decided by common accord that the newly founded European Labour Authority (ELA) would have its seat in Bratislava (Slovakia).

2. In Joined Cases C‑59/18 and C‑182/18 (‘the EMA cases’), the Italian Republic and the Comune di Milano (Municipality of Milan, Italy) respectively challenge the decision of the representatives of the governments of the Member States to relocate the seat of the EMA to Amsterdam. In Case C‑743/19 (‘the ELA case’), the European Parliament challenges the decision of the representatives of the Member States to locate the seat of the ELA in Bratislava (Slovakia).

3. Those challenges give rise to a number of important questions. First, can a collective decision of the representatives of the Member States be subject to an action for annulment under Article 263 TFEU? Second, do the decisions by the representatives of the Member States concerning the location of the seat of EU agencies fall within the scope of Article 341 TFEU? Third, what is the legal status, under EU law, of decisions of the representatives of the Member States that are not envisaged by the Treaties? Since those constitutional issues are common to the three cases at hand, I will deal with them jointly in this Opinion.

4. Subsequent to the decision of the representatives of the governments of the Member States, Regulation (EU) 2018/1718 (2) provided that Amsterdam would be the location of the new seat of the EMA. That regulation was challenged by two actions lodged by the Italian Republic (C‑106/19) and the Commune di Milano (C‑232/19), respectively. I deal with those cases jointly in a parallel Opinion, delivered on the same day as the present one. (3)

II. Legal framework

5. Article 341 TFEU provides that:

‘The seat of the institutions of the Union shall be determined by common accord of the governments of the Member States.’

6. On 12 December 1992, the representatives of the governments of the Member States adopted by common agreement, on the basis of Article 216 of the EEC Treaty, Article 77 of the ECSC Treaty and Article 189 of the Euratom Treaty, the Decision on the location of the seats of the institutions and of certain bodies and departments of the European Communities (‘the Edinburgh Decision’). (4)

7. Article 1 of the Edinburgh Decision sets the respective seats of the European Parliament, the Council, the Commission, the Court of Justice, the Economic and Social Committee, the Court of Auditors and of the European Investment Bank. Article 2 of that decision provided that ‘the seat of other bodies and departments set up or to be set up will be decided by common agreement between the Representatives of the Governments of the Member States at a forthcoming European Council, taking account of the advantages of the above provisions to the Member States concerned, and giving appropriate priority to Member States who do not at present provide the sites for Community institutions’.

8. Pursuant to Protocol No 6, annexed to the TEU and TFEU by the Treaty of Amsterdam, on the location of the seats of the institutions and of certain bodies, offices, agencies and departments of the European Union (‘Protocol No 6’):

‘The representatives of the governments of the Member States,

Having regard to Article 341 of the Treaty on the Functioning of the European Union and Article 189 of the Treaty establishing the European Atomic Energy Community,

Recalling and confirming the Decision of 8 April 1965, and without prejudice to the decisions concerning the seat of future institutions, bodies, offices, agencies and departments,

Have agreed upon the following provisions …:

Sole Article

(a) The European Parliament shall have its seat in Strasbourg …

(b) The Council shall have its seat in Brussels. …

(c) The Commission shall have its seat in Brussels. …

(d) The Court of Justice of the European Union shall have its seat in Luxembourg.

(e) The Court of Auditors shall have its seat in Luxembourg.

(f) The Economic and Social Committee shall have its seat in Brussels.

(g) The Committee of the Regions shall have its seat in Brussels.

(h) The European Investment Bank shall have its seat in Luxembourg.

(i) The European Central Bank shall have its seat in Frankfurt.

(j) The European Police Office (Europol) shall have its seat in The Hague.’

III. The background to the disputes and proceedings before the Court

A. Cases C‑59/18 and C‑182/18 (the EMA cases)

9. The European Agency for the Evaluation of Medicinal Products was created by Council Regulation (EEC) No 2309/93 of 22 July 1993 laying down Community procedures for the authorisation and supervision of medicinal products for human and veterinary use and establishing a European Agency for the Evaluation of Medicinal Products. (5)

10. On 29 October 1993, the Heads of State or Government of the Member States decided by common agreement that it would have its seat in London (United Kingdom). (6)

11. Regulation No 2309/93 was subsequently repealed and replaced by Regulation (EC) No 726/2004 of the European Parliament and of the Council of 31 March 2004 laying down Community procedures for the authorisation and supervision of medicinal products for human and veterinary use and establishing a European Medicines Agency. (7) By that regulation, the European Agency for the Evaluation of Medicinal Products was renamed the European Medicines Agency. The regulation did not contain any provision as to the location of the latter’s seat.

12. On 29 March 2017, in accordance with Article 50(2) TEU, the United Kingdom notified the European Council of its intention to withdraw from the European Union.

13. On 22 June 2017, in the margins of a European Council meeting (Article 50), the Heads of State or Government of the other 27 Member States accepted, on a proposal of the President of the European Council and of the President of the Commission, the procedure for the relocation of the seat of the EMA and of the European Banking Authority (‘the selection rules’). (8)

14. Those rules provided, in particular, that the decision on the future seat of the two agencies should be taken on the basis of a fair and transparent decision-making process with an organised call for offers to host the seat based on specific objective criteria. Six criteria were laid down in paragraph 3 of the selection rules, namely (i) the assurance that the agency can be set up on site and take up its functions at the date of the United Kingdom’s withdrawal from the European Union; (ii) the accessibility of the location; (iii) the existence of adequate education facilities for the children of agency staff; (iv) appropriate access to the labour market, social security and medical care for both children and spouses; (v) business continuity; and (vi) geographical spread.

15. It was stated in the selection rules that those criteria were based by analogy on criteria for the decision on the location of the seat of an agency set out in point 6 of the Joint Statement and Common Approach on Decentralised Agencies, (9) having special regard to the fact that the two agencies already existed and that the business continuity of the two agencies was vital and had to be ensured.

16. The selection rules also provided that the decision would be taken by a voting process the outcome of which the Member States agreed in advance to respect. (10) In particular, it was stated that, in case of a tie between the remaining offers within the third voting round, the decision would be taken by the Presidency drawing lots between the tied offers, and the offer drawn would then be considered to be the selected one.

17. On 30 September 2017, the Commission published its assessment of the 27 offers submitted by the Member States. (11) On 31 October 2017, the Council published a note supplementing the selection rules on practical questions regarding voting. (12)

18. On 20 November 2017, the offer of the Italian Republic and that of the Kingdom of the Netherlands received the same number of votes within the third voting round. The Kingdom of the Netherlands’ offer was subsequently selected after drawing lots between the tied offers.

19. As a result, on that same day, the representatives of the Member States selected, in the margins of the 3579th meeting of the General Affairs Council, the city of Amsterdam as the EMA’s new seat (‘the contested decision in the EMA cases’). That decision was announced in the minutes of the Council meeting (13) and was published by means of a press release. (14) In both the minutes and the press release, it was stated that: ‘the Commission will now prepare legislative proposals reflecting [the] vote for adoption under the ordinary legislative...