Ezio Perillo, formerly a judge on the EU General Court and the EU civil service tribunal, argues that decisions made by EU Member States regarding the locations of European agencies may not be subject to judicial review by the EU Court. This is based on the Sharpston-Council orders (cases C-684/20P and C-685/20P), which deemed the former British Advocate General’s challenge against a new AG appointment inadmissible, and Advocate General Bobek’s opinion in joined cases concerning the European Medicines Agency (EMA) and the European Labour Authority (ELA) (cases C-59/18, C-182/18, and C-743/19, and in a parallel opinion in Cases C-106/19 and 232/19). Bobek argues that these are “decisions taken by the Member States outside the framework of the Treaties.”
(For further reading on the Sharpston orders, see L. Gradoni’s “Unpersuasive but Wise: how the CJEU (Almost) Made the Right Call in Sharpston” in Verfassung Blog; on the EMA and ELA cases, see T. Bucht’s “Sometimes less is more, a critical view on AG Bobek’s Opinion on the seats of the agencies” in the European Law Blog.)
Perillo contends that the opposite conclusion is equally valid.
1. National Sovereignty or European Obligations?
When the EU’s founding treaties were established, the decision of where to locate institutions was left to the governments of the Member States. Article 341 TFEU still dictates that the seats of the Union’s institutions are to be determined by common agreement among the governments of the Member States.
These decisions, made by national governments, are made on behalf of the original signatories of the treaties. However, these decisions primarily serve the EU, as the institutions in question belong to the EU legal order.
As such, national governments are acting within the framework of EU law, not outside it as they would under international law. Therefore, they must operate within the limits of this delegated authority, respecting the powers granted to EU institutions in similar situations by the treaties.
If national governments overstep this delegation of power, they are acting ultra vires. The resulting decisions should then be subject to judicial review by the Court of Justice, which is obligated to uphold the balance of power between Member States and EU institutions as defined in the treaties.
Decisions on the location of institutions are therefore considered “atypical Union law acts.”
This concept also applies to the appointment of EU Court members, a process the treaty signatories did not intend to leave solely to the discretion of national governments.
Article 253 TFEU states that “every three years there shall be a partial replacement of the Judges and Advocates-General,” without regard for the preferences of individual governments.
In 1976, prominent EU Court President Robert Lecourt emphasized that “the Community is a legal order and not a mere arrangement founded on convenience,” criticizing governments that were slow to act. He stated that “the institutional provisions of the Treaties [regarding the appointment of 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. Distinct Procedures for Institutions and Agencies
There is no specific provision in EU law dictating the location of European agencies comparable to Article 341 TFEU’s guidance on the seats of institutions.
Instead, the authority to establish European agencies rests with the European Parliament and the Council (acting as EU lawmakers), or in certain cases, solely with the Council.
Article 45 TEU specifies that the European Defence Agency’s “statute, seat and operational rules” are established by the Council, not by Member State governments. This is also reflected in Articles 85(1) and 88(2) TFEU, which concern Eurojust and Europol.
Therefore, the Lisbon Treaty establishes the following general rule: only the entities authorized to establish an agency (the European Parliament and/or the Council) have the authority to determine its location.
3. Protocol No. 6 and the Location of EU Agencies
The Council argues that Protocol No. 6 to the Lisbon Treaty broadened the scope of Article 341 TFEU to include agency locations.
Unlike the other 36 Protocols attached to the Treaty (which begin with “The High Contracting Parties … have agreed”), Protocol No. 6 starts with “The representatives of the Governments of the Member States.” These entities are not authorized to adopt, amend, or interpret the treaties. It is noteworthy that in the Treaty for European Constitution, Protocol No. 6 did begin with “the High Contracting Parties,” but this was changed to the current wording in subsequent treaties.
Therefore, despite the Council’s frequent “practices” in recent years (some of which may even contradict EU law), Protocol No. 6 remains merely an act implementing Article 341 TFEU. It cannot be considered a legal basis for broadly interpreting the article to include agency locations. Article 341 TFUE “obliges” national governments to implement its provisions, not to expand their scope. To quote President Lecourt once more, “the Community is a legal order and not a mere arrangement founded on convenience."
For example, Article 74 of the first regulation establishing the EMA, adopted by the Council with only the Parliament’s opinion, stated: “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 enactment of an EU regulation cannot hinge on a decision made by unnamed entities not involved in the legislative process, such as the national governments. Doing so would violate the principle of legislative autonomy central to the EU legal system. In any case, national governments and EU institutions are not empowered to alter the rules governing the adoption of EU legislation. The Court should not endorse such actions, especially when the balance of institutional power is at stake.
4. The Importance of “Institutional Balance” and a Broad Interpretation of Article 263 TFEU
In its Post-Chernobyl judgment (C-70/88) on May 22, 1990, the EU Court reversed its previous stance, stating that it was obligated to “ensure preservation of the institutional balance and, consequently, [to ensure, with respect to each institution, the necessary] judicial review.” This ensures the protection of the powers explicitly granted to each institution by the treaties (paragraphs 21-23).
Therefore, “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).
This means that the list of acts that can be challenged under that article, like the list of those who can bring an action, is not exhaustive.
However, the acts challenged in the Sharpston, EMA, and ELA cases were not acts of the institutions, as in Post-Chernobyl, but rather decisions made jointly by national governments.
Despite this significant difference, the existing legal framework remains relevant.
Maintaining the EU’s institutional balance is a fundamental principle of EU law, requiring that “it should be possible to penalize any breach of that rule which may occur” (paragraph 22). This principle of institutional balance is analogous to the concept of “separation of powers,” a legal framework governed by a system of constitutional “checks and balances." While institutions and national governments are responsible for respecting the balance established by the EU Treaties, the EU Court must ensure appropriate “EU judicial checks” in cases where the institutional balance is threatened.
5. Three Examples of National Government Decisions
Imagine that during an intergovernmental meeting, national governments, acting in unison, decide to appoint not only judges to the EU Court and the EU General Court (as per Articles 253 and 254 TFEU) but also judges to a specialized court, such as the (now abolished) European Civil Service Tribunal.
This is not merely a procedural distinction. According to Article 257 TFEU, appointing judges to a specialized court is the Council’s prerogative and, as such, is potentially subject to an action for annulment under Article 263 TFEU. However, if national governments were to make an “all-in-one” appointment decision regarding all three categories of EU Court members, it would not, at least on paper (or according to the nomen auctoris criterion), be subject to the provisions of that article.
The EMA and ELA cases present a similar scenario.
In these cases, national governments decided to relocate (in the case of the EMA) and establish (in the case of the ELA) the seats of two EU agencies, even though (i) Article 341 TFEU explicitly limits such authority to determining the seats of EU “institutions,” and (ii) Protocol No. 6 does not permit expanding the scope of delegation under that article.
In these three examples, and in light of the Post-Chernobyl judgment, the institutional balance has clearly been disregarded.
Therefore, when national governments act in accordance with their obligations under Articles 253 and 341 TFEU, meaning “in the fields covered by Union law” (Article 19 TEU), they are fully subject to judicial review by the EU Court. In this context, it is solely the EU Court’s responsibility to ensure “effective judicial protection” (Article 19 TEU) against any breach of the institutional balance. Without this oversight, such decisions would be exempt from any form of judicial review, as no other court, whether national or international (including the European Court of Human Rights), could rightfully claim jurisdiction over the legality of collective acts by EU national governments.
6. Conclusions
Maintaining the institutional balance is a fundamental principle that ensures the proper distribution of powers within the EU legal system. Any violation of this principle should be subject to sanction by the EU Court to guarantee “effective legal protection,” regardless of any procedural limitations outlined in Article 263 TFEU.
The combination of these two factors — upholding the institutional balance and ensuring effective judicial protection — also reinforces the legality of intergovernmental decisions made by national governments under Articles 253 and 341 TFEU. Within EU law, these decisions cannot be considered arbitrary acts. Rather, they are decisions made solely in the interest of the Union and must therefore be taken in accordance with the principles of the rule of law and democracy that underpin the entire EU legal framework.
Reblogged from the Free Group blog and Verfassungsblog
Photo credit: Massimo Catarinella on wikicommons