Among the consequences of the United Kingdom withdrawal from the European Union, there is the need to relocate those European Institutions that had their headquarters on the British territory: on 20 November 2017, European Union Member States decided to relocate in Amsterdam, in the Netherlands, the European Medicines Agency (EMA), in the margins of a meeting of the General Affairs Council. Amsterdam was one of the 19 offers to host EMA submitted by the Member States at the end of July 2017; the decision to relocate the European Medicines Agency in the Dutch capital is the result of an assessment of the bids by the European Commission and EMA.

In June 2019, with the Decision 2019/1199, the representatives of the government of the Member States by common accord decided to locate the seat of the European Labour Authority in Bratislava, Capital of Slovakia. With 15 votes out of 28, Bratislava was chosen over other three cities: Sofia, Riga and Nicosia; the deadline for the offers to host the seat of ELA was set on May 6^th and the decision was published on June 13^th.

For both decisions annulments have been requested: Italy and the Comune di Milano dispute the decision of the Representatives of the Governments of the MS to locate the EMA headquarters in Amsterdam (C-59/18) and Regulation 2018/1718 of the European Parliament and of the Council amending Regulation No 726/2004 as regards the location of the seat of the EMA. While the European Parliament disputes the decision of the representatives of the Member States to locate the seat of the ELA in Bratislava (C-743/19).

In particular, the Italian Republic and the Comune di Milano started an action against the Council, they asked the Court to order the Kingdom of the Netherlands and the EMA to provide all the information attesting the suitability of the city of Amsterdam as new seat of the EMA, to annul the decision that located the new seat of the EMA in the Dutch Capital and to allocate the seat to the city of Milan. Italy and the Comune di Milano are clearly unhappy that the Italian city lost against Amsterdam in its bid to host the EMA headquarters; in fact when a new European agency is established, the Member States look forward to host it in order to increase the prestige and the appeal of their cities. On the other side, the European Parliament initiated proceedings against the Council under Article 263 TFEU, claiming that the Court should annul the decision that locate the seat of the ELA in Bratislava.

In order to find a solution to those two cases, it is fundamental to find an answer to three main questions that those challenges raised:

1. Can a collective decision of the representatives of the Member States be subject to an action for annulment under Article 263 TFEU?
2. Do the decisions by the representatives of Member States concerning the location of seat of EU agencies fall within the scope of Article 341 TFEU?
3. What is the legal status, under EU law, of decisions of the representatives of the Member States that are not envisaged by the Treaties?

Apropos to the first question, it is established case-law that actions for annulment under Article 263 are admissible only if they have been adopted by EU institutions, bodies, offices and agencies and they must be intended to have binding legal effect. The purpose of actions for annulment is to verify the legitimacy of EU actions, thus the Court has no power to examine the lawfulness of measures adopted by Member States, individually or as a group: as agreed in the Judgment of the Court Parliament v Council and Commission, collective acts adopted by the representatives of the MS, usually made in the margin of a Council meeting, are not subject to the EU Court’s judicial power, since those representatives do not act as members of the Council but as delegates of their country. In the present cases it is central to understand what role the representatives of the Member States played at the moment of the decision: does the act fall under the competence of the Member States or the competence of the Union?

The Comune di Milano and the Italian government, in the EMA case, claimed that the decision that locate the seat of EMA in Amsterdam must be addressed to the Council, since deciding the seat of an agency is a competence of the Union, and not of Member States. On the other hand, the European Parliament did not claim that the contested decision was attributable to the Council, but suggested that the competence issue is relevant and that the decision can be subject to an action of annulment under Article 263 TFUE. The European Court of Justice, with the Judgment of the Court of 14 July 2022, concluded that the Regulation (EU) 2018/1718 that locates the HQs of the European Medicine Agency in Amsterdam is a non binding  political act, therefore it cannot be subject to an action of annulment under Article 263 TFEU.

On the issue of Article 341 TFEU, vital is the Order of the Court of 16 June 2021, Sharpston v Council and Conference of the Representatives of Governments of the Member States, where the Court affirmed that the decisions taken by Member States in the framework of the Treaties under Article 253 TFEU cannot be subject of an action of annulment; since article 341 TFEU is drafted in a similar manner to Article 253 TFEU, logically it follows that also the decision adopted by the MS within the scope of Article 341 cannot be subject of an action of annulment. Nonetheless, the question regards the competence of Member States to take the decision on the seat of EU agencies under Article 341 TFEU: this decision pertain to the MSs (Council position in the cause) or to the Parliament and the Council (as evoked by Italy in the EMA cause and by the Parliament in the ELA cause). According to the European Parliament in ELA case, since Article 341 TFEU only refers to the European institutions, it cannot represent a legal basis for the Member States to decide the seat of EU agencies. “The seat of the institutions of the Union shall be determined by common accord of the governments of the Member States”, the text of the Article clearly refers to the institutions and if the drafters of the Treaties wanted to include also the agency in the scope of Article 341 TFEU, they would have done so expressly. With the Treaty of Lisbon, Article 13 TEU provided the list of the EU institutions: agencies are not institutions.

The Court, reunited in the Grand Chamber, affirmed that Article 341 TFEU does not apply to the seat of the European Union agencies and bodies like EMA and ELA; the competence to decide the seat of European Agencies is for the Union legislator. Therefore, according to the Court, the decisions adopted in November 2017 and June 2019 by the representatives of the governments of the Member States in order to designate the host cities for the new seats of the European Medicines Agency and European Labor Authority, are purely political decisions of the Member States without any binding legal effect, which do not encroach on the Union legislator’s competence.

On the third matter, since those acts are not included within the scope of Article 341 TFEU, it follows that the two decisions are decisions of the Member States adopted outside the Treaties. As a consequence, the contested decisions are not part of EU law and thus they do not have legal effect on EU institutions and on MSs that did not agree; anyway, this does not mean that they cannot potentially have binding legal effects under international law. The challenged decisions can only produce binding legal effect in the European Union legal order once they become part of EU law: the non binding content of the decisions may be incorporated in a binding secondary law act.

In conclusion, it can be said that the allocation of the HQs of EMA and ELA in Amsterdam and Bratislava, at the moment, are simply matters of fact.

In the light of those subjects, the European Court of Justice reunited in the Great Chamber, on July 14^th 2022, dismissed the actions, coming from Italy and Comune di Milano and the European Parliament, in their entirety.