Have a seat, but who is the host? The difficult identification of decision-makers in the location of EU agencies (C-59/18 and C-182/18, C-106/19 and C-232/19 European Parliament, Italy, Comune di Milano v Council)

This article discusses the 2022 rulings of the Court of Justice on the allocation of the seats of EU agencies. In the absence of any provision in the Treaties or other uniform rules, the allocation of the seats of EU agencies has pragmatically followed the method used for EU institutions. The 2012 Common Approach annexed to their Joint Statement on EU agencies aimed to rationalise such decision-making process and base it on objective criteria. On these grounds, specific selection rules were adopted in the legislative proceedings for the relocation of the two agencies leaving the United Kingdom because of Brexit, the European Medicines Agency (EMA) and the European Banking Authority (EBA), as well as for the location of the newly established European Labour Authority (ELA). These procedures created a hybrid decision-making process where intergovernmental and supranational responsibilities were blurred. In the actions for the annulment of the decisions on the seats of EMA and ELA, the Grand Chamber of Court of Justice had to settle the question of who decides where an EU agency should be located, the Member States or the EU institutions. The Court of Justice endorsed a full supranational approach: competence belongs to the EU institutions, while the relevant decision of the Representatives of the Member States has no binding legal effect. This article analyses the approach adopted by Court of Justice and focuses on the effects of the rulings on the responsibilities of the Member States and EU institutions.