Joined Cases C‑106/19 and C‑232/19
Italian Republic
and
Comune di Milano
v
Council of the European Union
and
European Parliament
Judgment of the Court (Grand Chamber), 14 July 2022
(Action for annulment – Law governing the institutions – Regulation (EU) 2018/1718 – Location of the seat of the European Medicines Agency (EMA) in Amsterdam (Netherlands) – Article 263 TFEU – Admissibility – Interest in bringing proceedings – Locus standi – Direct and individual concern – Decision adopted by the Representatives of the Governments of the Member States in the margins of a Council meeting in order to determine the location of the seat of an EU agency – Absence of binding effects in the EU legal order – Prerogatives of the European Parliament)
1. Actions for annulment – Natural or legal persons – Interest in bringing proceedings – Regulation concerning the determination of the location of the seat of a body, office or agency of the Union – Action brought by a regional or local entity which is a candidate to host that seat – Admissibility
(Art. 263 TFEU; European Parliament and Council Regulation 2018/1718)
(see paragraphs 55-57)
2. Actions for annulment – Natural or legal persons – Locus standi – Measures of direct and individual concern to them – Regulation concerning the determination of the location of the seat of a body, office or agency of the Union – Action brought by a regional or local entity which is a candidate to host that seat – Admissibility
(Art. 263, fourth para., TFEU; European Parliament and Council Regulation 2018/1718)
(see paragraphs 58-60, 77, 78)
3. Actions for annulment – Natural or legal persons – Acts of direct concern to them – Cumulative criteria – Direct concern and lack of discretion of the addressees who are responsible for implementing acts of the European Union – Act directly affecting the applicant’s legal situation – Regulation concerning the determination of the location of the seat of a body, office or agency of the Union – Action brought by a regional or local entity which is a candidate to host that seat – Locus standi – Included
(Art. 263, fourth para., TFEU; European Parliament and Council Regulation 2018/1718)
(see paragraphs 61-67)
4. Actions for annulment – Natural or legal persons – Measures of direct and individual concern to them – Individual concern – Criteria – Regulation concerning the determination of the location of the seat of a body, office or agency of the Union – Action brought by a regional or local entity which is a candidate to host that seat – Locus standi – Included
(Art. 263, fourth para., TFEU; European Parliament and Council Regulation 2018/1718)
(see paragraphs 68-72)
5. European Union – Seat of the institutions – Determination – Article 341 TFEU – Scope – Designation of the location of the seat of the bodies, offices or agencies of the Union – Not included – Determination of the seat of the European Medicines Agency (EMA) by the Representatives of the Governments of the Member States – Political decision with no binding legal effects under EU law – Competence of the EU legislature
(Art. 13(1) TEU; Arts 114, 168(4), 340, second para., and 341 TFEU; Protocol No 6; Decision of the Representatives of the Governments of the Member States of 12 December 1992, Art. 2; European Parliament and Council Regulation 2018/1718)
(see paragraphs 112-115, 120, 122, 126-136, 139-142)
6. European Union – Institutional balance – Implications – Observance of the separation of powers – Powers of the Member States and the legislative power given to the European Parliament and Council – Ordinary legislative procedure – Regulation concerning the determination of the location of the seat of a body, office or agency of the Union – Implementation of a decision adopted by the representatives of the Member States in the margins of a meeting of the Council designating the seat of the European Medicines Agency (EMA) – No impact on the powers of the EU legislature
(Arts 13(2), 14(1) and 16(1) TEU)
(see paragraphs 145-149)
Résumé
Five actions were brought before the Court for annulment of various measures adopted, first, by the Representatives of the Governments of the Member States and, secondly, by the Council and the European Parliament, concerning the determination of the seat of two European agencies.
Two actions were brought by the Italian Republic and the Comune di Milano (Municipality of Milan, Italy), respectively, against (i) the Council for the annulment of the decision of 20 November 2017 (1) adopted by the Representatives of the Governments of the Member States (Joined Cases C‑59/18 and C‑182/18) and (ii) the Parliament and the Council for the annulment of Regulation (EU) 2018/1718 (2) (Joined Cases C‑106/19 and C‑232/19) concerning the designation of the city of Amsterdam (Netherlands) as the new seat of the European Medicines Agency (EMA) following Brexit. Another action was brought by the Parliament against the Council for annulment of the decision of 13 June 2019 (3) taken by common accord between the Representatives of the Governments of the Member States and determining the seat of the European Labour Authority (ELA) in Bratislava (Slovakia) (Case C‑743/19).
In the cases concerning the seat of the EMA, the Heads of State or Government had approved, following Brexit, a procedure for adopting a decision on the transfer of that seat, which had until then been established in London (United Kingdom). At the end of that procedure, the offer of the Kingdom of the Netherlands had prevailed over the offer of the Italian Republic (Milan). Consequently, the Representatives of the Governments of the Member States had, by the decision of 20 November 2017, designated, in the margins of a meeting of the Council, the city of Amsterdam as the new seat of the EMA. That designation had been confirmed by the contested regulation at the end of the ordinary legislative procedure, involving the participation of the Parliament. The Italian Republic and the municipality of Milan maintained, however, that the decision determining the new seat of the EMA, in so far as it concerned the designation of the seat of an agency of the Union and not of an institution of the Union, fell within the exclusive competence of the European Union and that it had, in fact, to be attributed to the Council. They therefore disputed the lawfulness of that decision as the basis for the contested regulation and maintained, moreover, that the Parliament had not fully exercised its legislative prerogatives when adopting that regulation.
In the case concerning the seat of the ELA, the Representatives of the Governments of the Member States had approved by common accord the procedure and the criteria for deciding on the seat of that agency. In accordance with that procedure, they adopted, in the margins of a meeting of the Council, the decision fixing the seat of the ELA in Bratislava. The Parliament maintained that the actual author of that decision was in fact the Council and that, since it was a legally binding act of the European Union, it could be challenged before the Court in an action for annulment.
By three Grand Chamber judgments, the Court develops its case-law on the legal framework applicable to the determination of the seat of bodies, offices and agencies of the Union. It considers, inter alia, that decisions determining the new seat of the EMA and the seat of the ELA are political acts, adopted by the Member States alone in that capacity, and not as members of the Council, with the result that those acts are not subject to the review of legality provided for under Article 263 TFEU. Those decisions cannot be treated in the same way as those taken under Article 341 TFEU, (4) which concerns only the determination of the seat of the institutions of the Union. (5) That provision cannot, therefore, constitute the legal basis for those decisions.
Findings of the Court
– Admissibility of an action brought by a regional or local entity against a regulation determining the location of the seat of a body, office or agency of the Union (Joined Cases C‑106/19 and C‑232/19)
The Court notes, first of all, that an action brought by a regional entity cannot be treated in the same way as an action brought by a Member State within the meaning of Article 263 TFEU and that, consequently, such an entity must establish both an interest and standing to bring proceedings. After finding that the municipality of Milan had an interest in bringing proceedings, in so far as the possible annulment of the contested regulation would entail the resumption of the legislative procedure for determining the seat of the EMA in which it was a candidate, the Court holds that that entity is directly and individually concerned by that regulation and, therefore, has standing to seek its annulment. In that regard, it states, first, that that regulatory act leaves no discretion to its addressees and, secondly, that the municipality of Milan actually participated in the selection procedure for the seat of the EMA, which placed it in a situation which distinguished it individually in a similar manner to that of an addressee of the act.
– The jurisdiction of the Court to hear and determine proceedings concerning decisions of the Member States on the location of the seat of a body, office or agency of the Union (Joined Cases C‑59/18 and C‑182/18 and Case C‑743/19)
The Court notes, as a preliminary point, that, in the context of an action for annulment, the EU Courts have jurisdiction only to review the legality of acts attributable to the institutions, bodies, offices and agencies of the Union. Acts adopted by the Representatives of the Governments of the Member States, acting in that capacity and thus collectively exercising the powers of the Member States, are therefore not subject to judicial review by the EU Courts, except where, having regard to its content and the circumstances in which it was adopted, the act in question is in reality a decision of the Council. The Court states, consequently, that the decisions determining the new seat of the EMA and the seat of the ELA can be understood only in the light of the legal framework applicable to the location of the seat of the bodies, offices and agencies of the Union.
In that regard, the Court examines, as part of a textual, contextual and teleological analysis, whether Article 341 TFEU may validly be relied on as the basis for those decisions. (6)
In the first place, it points out that the wording of Article 341 TFEU refers formally only to ‘the institutions of the Union’.
In the second place, as regards the context of that provision, the Court considers, in particular, that the broad interpretation it gave to that term in relation to non-contractual liability (7) cannot usefully be relied on for the purposes of defining, by analogy, the scope of that provision. Furthermore, the Court notes that the previous institutional practice relied on by the Council, in accordance with which the seats of bodies, offices and agencies of the Union were determined on the basis of a political choice made solely by the Representatives of the Governments of the Member States, is far from being generalised, does not enjoy institutional recognition and, in any event, cannot create a precedent which is binding on the institutions.
In the third place, as regards the objective of Article 341 TFEU, the Court states, first of all, that that article preserves the decision-making powers of the Member States in determining the seat of the institutions of the Union only. It notes, next, that the establishment of the bodies, offices and agencies of the Union is the result of an act of secondary legislation adopted on the basis of the substantive provisions implementing the EU policy in which the body, office or agency is involved. However, the decision on the location of the seat of those bodies, offices or agencies is consubstantial with the decision on their establishment. Accordingly, the EU legislature has, in principle, exclusive competence to determine the location of the seat of a body, office or agency of the Union, just as it has to define its powers and organisation. Lastly, the Court points out that the fact that the decision determining the location of the seat of a body, office or agency of the Union may have an important political dimension does not preclude that decision from being taken by the EU legislature in accordance with the procedures laid down by the substantively relevant provisions of the Treaties.
In the light of the foregoing, the Court concludes that Article 341 TFEU cannot be interpreted as governing the designation of the location of the seat of a body, office or agency of the Union, such as the EMA or the ELA, and that the competence to determine the location of the seat of those agencies lies not with the Member States but with the EU legislature, in accordance with the ordinary legislative procedure.
The Court then examines whether it has jurisdiction to rule on the validity of the decisions determining the location of the new seat of the EMA and the seat of the ELA under Article 263 TFEU. In that regard, it notes that the relevant criterion to exclude the jurisdiction of the EU Courts to hear and determine an action brought against acts adopted by the Representatives of the Governments of the Member States is solely that relating to their author, irrespective of their binding legal effects. To extend the concept of a challengeable act under Article 263 TFEU to acts adopted, even by common accord, by the Member States would amount to allowing the EU Courts to carry out a direct review of the acts of the Member States and, thus, to circumventing the remedies specifically provided for in the event of failure to fulfil their obligations under the Treaties.
Lastly, the Court states that it is for the EU legislature, for reasons of both legal certainty and effective judicial protection, to adopt an act of the European Union ratifying or, on the contrary, departing from the political decision adopted by the Member States. Since that act necessarily precedes any measure for the actual implementation of the location of the seat of the agency concerned, only that act of the EU legislature is capable of producing binding legal effects under EU law.
The Court concludes that the decisions of the Representatives of the Governments of the Member States determining the location of the new seat of the EMA and of the seat of the ELA (Joined Cases C‑59/18 and C‑182/18 and Case C‑743/19) are not acts of the Council but acts of a political nature without any binding legal effects, taken by the Member States collectively, with the result that those decisions cannot be the subject of an action for annulment under Article 263 TFEU. Accordingly, it dismisses the actions in question as being directed against acts the legality of which it does not have jurisdiction to review.
– The validity of the legislative act determining the location of the seat of a body, office or agency of the Union (Joined Cases C‑106/19 and C‑232/19)
As regards the contested regulation, by which the Council and the Parliament confirmed, by means of the ordinary legislative procedure, the decision of the Representatives of the Governments of the Member States determining the location of the new seat of the EMA, the Court points out that it is for those institutions alone, in accordance with the principles of conferred powers and institutional balance enshrined in the EU Treaty, (8) to determine its content. In that regard, it points out that that decision cannot be given any binding force capable of limiting the EU legislature’s discretion. That decision therefore has the force of a measure of political cooperation which cannot in any event encroach on the powers conferred on the institutions of the Union in the context of the ordinary legislative procedure. The fact that the Parliament was not involved in the process which led to that decision does not therefore constitute, in any event, an infringement or circumvention of the Parliament’s prerogatives as co-legislator, and the political impact of that decision on the legislative power of the Parliament and the Council cannot constitute a ground for annulment by the Court of the contested regulation. Since the decision of 20 November 2017 has no binding legal effect under EU law, the Court concludes that that decision cannot constitute the legal basis of the contested regulation, with the result that the lawfulness of that regulation cannot be affected by any unlawfulness vitiating the adoption of that decision.