Italian Republic v Council of the European Union.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2022:567
• Date: 14 July 2022
• Docket Number: C-59/18
• Celex Number: 62018CJ0059
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (Grand Chamber)

14 July 2022 (*)

(Action for annulment – Law governing the institutions – EU bodies, offices and agencies – European Medicines Agency (EMA) – Competence to determine the location of the seat – Article 341 TFEU – Scope – Decision adopted by the Representatives of the Governments of the Member States in the margins of a Council meeting – Jurisdiction of the Court under Article 263 TFEU – Author and legal nature of the act – Absence of binding effects in the EU legal order)

In Joined Cases C‑59/18 and C‑182/18,

ACTIONS for annulment under Article 263 TFEU, brought on 30 January 2018 and 9 March 2018,

Italian Republic, represented by G. Palmieri, acting as Agent, and by C. Colelli, S. Fiorentino and G. Galluzzo, avvocati dello Stato,

applicant in Case C‑59/18,

Comune di Milano, represented by M. Condinanzi, A. Neri and F. Sciaudone, avvocati,

applicant in Case C‑182/18,

supported by:

Italian Republic, represented by G. Palmieri, acting as Agent, and by C. Colelli, S. Fiorentino and G. Galluzzo, avvocati dello Stato,

Regione Lombardia, represented by M. Tamborino, avvocato,

interveners,

v

Council of the European Union, represented by M. Bauer, J. Bauerschmidt, F. Florindo Gijón and E. Rebasti, acting as Agents,

defendant,

supported by:

Kingdom of the Netherlands, represented by M.K. Bulterman and J. Langer, acting as Agents,

European Commission, represented by K. Herrmann, M. Konstantinidis and D. Nardi, acting as Agents,

interveners,

THE COURT (Grand Chamber),

composed of K. Lenaerts, President, A. Arabadjiev, K. Jürimäe, C. Lycourgos, E. Regan, S. Rodin, I. Jarukaitis, N. Jääskinen and J. Passer, Presidents of Chambers, J.‑C. Bonichot, M. Safjan, F. Biltgen, P.G. Xuereb, A. Kumin and N. Wahl (Rapporteur), Judges,

Advocate General: M. Bobek,

Registrar: R. Şereş, Administrator,

having regard to the written procedure and further to the hearing on 8 June 2021,

after hearing the Opinion of the Advocate General at the sitting on 6 October 2021,

gives the following

Judgment

1 By their applications, the Italian Republic (C‑59/18) and the Comune di Milano (Municipality of Milan, Italy) (C‑182/18) seek the annulment of the decision adopted in the margins of the 3 579th meeting of the Council, in its General Affairs formation, of 20 November 2017, in so far as that decision designated the city of Amsterdam as the new seat of the European Medicines Agency (EMA) (‘the contested decision’).

Legal context

2 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 EAEC Treaty, the decision on the location of the seats of the institutions and of certain bodies and departments of the European Communities (OJ 1992 C 341, p. 1; ‘the Edinburgh Decision’).

3 Article 1 of the Edinburgh Decision fixed the respective seats of the European Parliament, the Council of the European Union, the European Commission, the Court of Justice of the European Union, the European Economic and Social Committee, the European Court of Auditors and the European Investment Bank.

4 Under Article 2 of that decision:

‘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.’

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 As provided in Protocol No 6 on the location of the seats of the institutions and of certain bodies, offices, agencies and departments of the European Union (‘Protocol No 6’), annexed to the EU, FEU and EAEC Treaties:

‘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.’

Background to the dispute

7 The European Agency for the Evaluation of Medicinal Products was established 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 (OJ 1993 L 214, p. 1). That regulation contained no provision relating to the location of the seat of that agency.

8 Pursuant to Article 1(e) of Decision 93/C 323/01 of 29 October 1993, taken by common Agreement between the Representatives of the Governments of the Member States, meeting at Head of State or Government level, on the location of the seats of certain bodies and departments of the European Communities and of Europol (OJ 1993 C 323, p. 1), that agency’s seat was located in London (United Kingdom).

9 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 (OJ 2004 L 136, p. 1). By that regulation, the European Agency for the Evaluation of Medicinal Products was renamed ‘the European Medicines Agency’. That regulation contained no provision relating to the location of the seat of that agency.

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

11 On 22 June 2017, in the margins of a meeting of the European Council relating to the procedure laid down in Article 50 TEU, the Heads of State or Government of the 27 other Member States approved, on the basis of a proposal from the President of the European Council and the President of the Commission, a procedure for the adoption of a decision on the transfer to other sites of the seats of the EMA and the European Banking Authority in the context of the United Kingdom’s withdrawal from the European Union (‘the selection rules’).

12 The selection rules provided, inter alia, that that decision was to be taken on the basis of a fair and transparent decision-making process, including the organisation of a call for offers based on precise objective criteria.

13 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 proposed 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.

14 According to the selection rules, those criteria were established by analogy with those set out in the Common Approach set out in the annex to the Joint Statement of the European Parliament, the Council and the Commission of 19 July 2012 on decentralised agencies (‘the 2012 Joint Statement’), particular attention being paid to the fact that the EMA and the European Banking Authority had already been established and that the continuity of their activities was of paramount importance.

15 Paragraph 2 of 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. In particular, it was stated that, in case of a tie between the remaining offers in the third round of votes, the decision would be taken by drawing lots between the tied offers.

16 On 30 September 2017, the Commission published its assessment of the 27 offers submitted by the Member States.

17 On 31 October 2017, the Council published a note intended to supplement the selection rules on practical questions regarding voting.

18 On 20 November 2017, the Italian Republic’s offer and that of the Kingdom of the Netherlands obtained, ex aequo, the highest number of votes in the third round. After the drawing of lots organised in accordance with paragraph 2 of the selection rules, the Kingdom of the Netherlands’ offer was accepted.

19 Consequently, on the same date, the Representatives of the Governments of the Member States, by the contested decision, designated, in the margins of a meeting of the Council, the city of Amsterdam as the new seat of the EMA. The minutes and press release of that meeting stated as follows:

‘The Commission will now prepare legislative proposals reflecting today’s vote for adoption under the ordinary legislative procedure with the involvement of the European Parliament. The...