Ezio Perillo, former judge on the EU General Court and EU civil service tribunal
Following the Sharpston-Council orders, declaring the former
British Advocate General’s action against the appointment of a new AG
inadmissible (cases C-684/20P
16 June 2021), even the decisions that the governments of the Member States
claim to take by mutual agreement for determining the seats of the European
agencies seem to fall outside the EU Court’s judicial review. This is, at
least, the opinion
expressed by AG Bobek, delivered on 6 October 2021, in joined cases, EMA
(European Medicines Agency, relocated to Amsterdam) and ELA (European Labour
Authority, located in Bratislava), C-59/18, C-182/18 and C-743/19, and in a parallel
opinion in Cases C-106/19 and 232/19. According to the AG, these are "decisions taken by the Member States outside
the framework of the Treaties" (paragraph 173).
to the Sharpston
orders, see L. Gradoni, Unpersuasive but Wise:
how the CJEU (Almost) Made the Right Call in
in Verfassung Blog,
2021. On EMA and ELA cases see, T.
Bucht, Sometimes less is more, a critical view on AG
Bobek’s Opinion on the seats of the agencies, in European Law Blog,
14 October 2021.)
I will say right
away, in tweet-mode, that the
opposite solution is also true.
“Sovereign” national decisions or obligations of European origin?
the Community’s institutions, the Masters of the Treaties decided at that time,
for political and practical reasons, to “delegate” to their respective
governments the task of determining their seats. Article 341 TFEU still
provides, nowadays, that "the seats
of institutions of the Union shall be determined by common agreement of the
governments of the Member States".
are therefore taken by the national governments in their own name and on behalf
of the authors of the Treaties but, substantially, in the exclusive interest of
the European Union, since the seats to be determined are those of the
institutions belonging to this new legal order.
It follows that,
in this context, national governments fully act within the EU legal framework
and not outside of it, as if they were actors of international law. In so
acting, they shall therefore respect the limits attached to this delegation as
well as the prerogatives which the Treaties confer in similar matters to the EU
In other words,
if they extend, at their discretion, the scope of the delegation received by
the Masters of the Treaties, national governments act ultra vires. In this event, the corresponding decisions must be
subject to the judicial review of the Court of Justice which has indeed the
duty to ensure the observance of the institutional balance between the
prerogatives the treaties confer to the national governments and those
conferred to the EU institutions.
are therefore "atypical Union law
The same applies,
by the way, also to the appointments of the members of the EU Court, which the
Masters of the Treaties did not certainly intend to leave to the arbitrium (the free will) of their
For instance, article
253 TFEU currently provides that “every
three years there shall be a partial replacement of the Judges and
Advocates-General”. Not timing that best suits their respective governments.
"The Community is a legal order and not a
mere arrangement founded on convenience", stated Robert Lecourt, the eminent
president of the EU Court, back in 1976, pointing his finger at certain
governments lagging behind. Indeed, "the
institutional provisions of the Treaties [those relating, in this case, to
the appointment of the EU judges], and
the dates when they are to be applied are binding and leave no room for
discretion" (See, Curia, Formal Hearings, 1976, p. 27.).
2. Determining the seats of the institutions and agencies:
two different procedures
First of all, there
is no specific provision of EU law on the seats of European agencies similar to
that of Article 341 TFEU on the seats of the institutions.
general competence for establishing European agencies, on a sector-by-sector
basis, is with the European Parliament and the Council, as EU lawmakers, and,
in a specific case, solely with the Council.
Article 45 TEU specifically
states that the "statute, seat and
operational rules” of the European Defence Agency are established by the
Council and, therefore, not by the governments of the Member States (see, in
this regard, also current Articles 85(1) and 88(2) TFEU on Eurojust and
It follows that,
according to the Lisbon Treaty, the basic, general rule on this matter is:
"only who has the authority to establish an agency (the European
Parliament and/or the Council), has the authority to determine its seat as well".
3. The location of the EU agencies and Protocol No. 6
to the Lisbon Treaty
to the Council, Protocol No. 6 to the Lisbon Treaty extended the scope of
Article 341 TFEU to include the location of the seats of agencies.
all the other 36 Protocols annexed to the Treaty (the introductory line of
which is "The High Contracting
Parties ... have agreed"), Protocol No. 6 begins with the words "The representatives of the Governments of
the Member States", i.e. legal
entities which, in principle, are not entitled to adopt Protocols or
amend or interpret the Treaties. It is worth noting that in the Treaty for
European Constitution, Protocol No. 6 began with the words "the High
Contracting Parties". After failure to ratify that Treaty, however,
this sentence was replaced, as in the previous Treaties of Amsterdam and Nice, with
the correct wording, namely "the representatives of the Governments of
the Member States ...".
regardless of the countless “practices”, which are certainly not customary,
followed in recent years by the Council (sometimes, perhaps, even contra legem Unionis), Protocol No. 6 remains
a mere implementation act pursuant to Article 341 TFEU and can in no way
constitute an appropriate legal source allowing for an extensive interpretation
of this article so as to include the location of the agencies. According to
article 341 TFUE, the national governments are, indeed, “obliged” to implement
the scope of this provision and not “authorised” to extend it. To quote, once
again, president Lecourt, “the Community is a legal order and not a mere
arrangement founded on convenience".
In the case, for
instance, of the first regulation establishing the EMA, adopted at the time by
the Council with the Parliament merely giving its opinion, Article 74 of that
act provided: “This Regulation shall enter into force on the day following
that on which the competent authorities have decided on the seat of the Agency”.
The entry into force of a Community’s regulation cannot be affected by a
decision resting with unidentified authorities not involved in the legislative process
in question, such as the national governments. If that were the case, this
would constitute a clear breach of the principle of legislative autonomy characterizing
the Union's legal system. In any event, the rules governing the adoption of the
legislative Union acts are not available to the institutions nor the national
governments. The Court should therefore not go along with it, especially when
the institutional balance’s observance is at stake.
4. The notion of “institutional balance” and the broad
interpretation of Article 263 TFEU
In its Post-Chernobyl judgment
dated 22 May 1990, C-70/88, the EU Court, reversing its own initial case-law,
stated that the same was required to "ensure
preservation of the institutional balance and, consequently, [to ensure,
with respect to each institution, the necessary] judicial review", because this entails protection of the
prerogatives which the Treaties expressly have conferred on each of them (paragraphs
Thus, "the absence in the Treaties of any provision
giving the Parliament the right to bring an action for annulment may constitute
a procedural gap, but it cannot prevail over the fundamental interest in the
maintenance and observance of the institutional balance laid down in the
Treaties" (paragraph 26).
It follows that
the list of challengeable acts in that article, just like the list of persons
entitled to bring an action, is not comprehensive.
However, in Sharpston, EMA and ELA cases, the
acts challenged before the Court were not acts by the institutions, as in the Post-Chernobyl case, but decisions
taken, upon common accord, by the national governments.
this important difference, I believe that our jurisprudential framework remains
the EU institutional balance is in fact an “autonomous”, European legal
principle, which “requires that it should
be possible to penalize any breach of that rule which may occur"
(paragraph 22). Constitutionally speaking, institutional balance means “separation
of powers”, i.e. a legal structure governed by constitutional “checks and
balances”. So, if it is for the institutions and the national governments to respect
the “EU Treaties balances”, it is for the EU Court to ensure, in case of breach
of the institutional balance, the due “EU judicial checks”.
5. Three examples of national governments' decisions
that the national governments were to appoint, upon common accord, not only some
judges of the EU Court or of the EU General Court (see article 253 and 254
TFUE) but also, during the same intergovernmental meeting, certain judges of a
specialised court, such as, for example, the European Civil Service Tribunal (before
its abolishment a few years ago).
is obviously not a formal one. According to article 257 TFUE, the appointment
of the judges of a specialised court is a decision of the Council which, as
such, is an act potentially subject to an action for annulment pursuant to
Article 263 TFEU. On the contrary, any “all-in-one”
appointment decision by the national governments, concerning all the three categories
of EU Court members, would not, at least on paper (or according to the nomen auctoris criterion), be included
among the acts specifically provided for by that article.
The EMA and ELA cases are not much different from this hypothesis.
In these cases,
the national governments have in fact decided to transfer (in EMA) and set up (in ELA) the seat of two EU agencies despite the fact that (i) Article
341 TFEU verbatim limits such power to
the determination of the seat of the EU “institutions”,
and (ii) Protocol n. 6 does not allow the extension in the scope of the
delegation under such Article.
In these three
cases and in light of the Post-Chernobyl
judgment, the institutional balance has clearly not been observed.
national governments, acting in compliance with the obligations referred to in
Articles 253 and 341 TFEU, i.e. in “the
fields covered by Union law” (Article 19 TEU), are fully subject to the EU
Court judicial review process. And, in this context, it belongs only to the EU Court
to ensure the crucial “effective judicial
protection” (Article 19 TEU) against breach of the institutional balance at
stake. Otherwise, such decisions would be deprived of any kind of judicial
review, since no other Court, whether national or international, such as the
European Court of Human Rights, could legitimately hold jurisdiction over the
legality of EU collective national governments acts.
the institutional balance is a general rule designed to ensure the proper
functioning of the entire system for the distribution of competences created
within the Union's legal system. Accordingly, “any breach of that rule” shall be subject to a sanction by the EU Court
for the purpose of ensuring an “effective
legal protection”, notwithstanding any procedural shortcomings of Article
combination of these two factors – i.e. observance of the institutional balance
and effective judicial protection – also strengthens the legality of the
intergovernmental decisions taken by the national governments according to
articles 253 or 341 TFUE. Indeed, in Union law these decisions cannot
constitute “les faits des princes”. On
the contrary, they are acts taken in the exclusive interest of the Union and
which shall therefore be adopted in compliance with rule-of-law and democracy values
around which the entire legal structure of the Union revolves.