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 and C-685/20P, 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).
(With reference to the Sharpston orders, see L. Gradoni, Unpersuasive but Wise: how the CJEU (Almost) Made the Right Call in Sharpston, in Verfassung Blog, 24 June 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.
1. “Sovereign” national decisions or obligations of European origin?
In establishing 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".
These decisions 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 institutions.
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.
These decisions are therefore "atypical Union law acts".
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 governments.
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.
Instead, the 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 Europol).
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
Still, according 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.
However, unlike 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 ...".
Therefore, 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 21-23).
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.
Even considering this important difference, I believe that our jurisprudential framework remains unchanged.
Observance of 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
Let’s suppose 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).
The difference 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.
Therefore, the 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.
Observance of 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 263 TFEU.
Ultimately, the 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.