Opinion of the Advocate General — ECLI:EU:C:2021:812
Date: 2021-10-06
Language of the case: Italian
Subject matter: Provisions governing the Institutions
Procedure: Action for annulment - inadmissible
Origin: Italy

summary, it is certainly not precluded that the Member States make known their collective view on the desirability of a new EU agency, its general function and overall limits to its functions, including the desired location of its seat, prior to the legislative procedure within the Union for that purpose being initiated. Indeed, the Member States, even if later united in the Council, might already indicate their political preferences in this way. So too might the Parliament, for that matter. Nevertheless, the establishment of such an agency, including the binding selection of its seat, is a matter of EU law and its own internal legislative procedures, typically that of the ordinary legislative procedure. In some way, that is hardly surprising. After all, the agency to be established is an agency of the Union, not of the Member States. V. Costs 177. Under Article 138(1) of the Rules of Procedure of the Court of Justice, the unsuccessful party is to be ordered to pay the costs. 178. In formal terms, it is true that in the present cases, the Comune di Milano and the Italian Republic in the EMA cases, and the Parliament in the ELA case, were unsuccessful inasmuch as it has been established that the Court lacks jurisdiction to examine the contested decisions. 179. However, in view of the facts that (i) it cannot be said that the Council would have been successful on the merits of its case; (ii) this has been a complex, inherently institutional litigation, which has been as much about past cases as is has about clarifying the rules for the future; and (iii) the Court joined some of the cases and then held a joint hearing for all five cases, following which a retroactive earmarking of the exact costs for each individual case might be a rather complex exercise, I would find it fairer and more equitable exceptionally to apply Article 138(3) of the Rules of Procedure and to order (all of) the parties to bear their own costs. 180. Under Article 140(1) of the Rules of Procedure, the interveners must also bear their own costs. VI. Conclusion 181. In Joined Cases C‑59/18, Italy v Council, and C‑182/18, Comune di Milano v Council, I propose that the Court should: – Hold that it lacks jurisdiction over the Decision of the representatives of the Member States adopted in the margins of a meeting of the Council of the European Union locating the new seat of the European Medicines Agency in Amsterdam (Netherlands); – Order the Comune di Milano (Italy), the Italian Republic, and the Council to bear their own costs; – Order all of the interveners to bear their own costs. 182. In Case C‑743/19, I propose that the Court should: – Hold that it lacks jurisdiction over Decision (EU) 2019/1199 taken by common accord between the Representatives of the Governments of the Member States of 13 June 2019 on the location of the seat of the European Labour Authority; – Order the European Parliament and the Council to bear their own costs; – Order the intervening parties to bear their own costs. 1 Original language: English. 2 Regulation of the European Parliament and of the Council of 14 November 2018 amending Regulation (EC) No 726/2004 as regards the location of the seat of the European Medicines Agency (OJ 2018 L 291, p. 3). 3 Opinion in Italian Republic and Commune di Milano v Council and Parliament (‘the EMA 2 cases’) (Joined Cases C‑106/19 and C‑232/19). 4 OJ 1992 C 341, p. 1. 5 OJ 1993 L 214, p. 1. 6 Decision taken by common Agreement between the Representatives of the Governments of the Member States, meeting at Head of State and Government level, on the location of the seats of certain bodies and departments of the European Communities and of Europol (OJ 1993 C 323, p. 1). 7 OJ 2004 L 136, p. 1. 8 Council Document XT 21045/17 – Procedure leading up to a decision on the relocation of the European Medicines Agency and the European Banking Authority in the context of the United Kingdom’s withdrawal from the Union. 9 Council Document 11450/12 – Endorsement of the Joint Statement and Common Approach. 10 See paragraph 2 of the selection rules. 11 Commission Assessment of 27 offers submitted by Member States under the procedure leading up to a decision on the relocation of the European Medicines Agency and the European Banking Authority in the context of the United Kingdom’s withdrawal from the Union. 12 Council Document XT 21092/17 – Procedure leading up to a decision on the relocation of the European Medicines Agency and the European Banking Authority in the context of the United Kingdom’s withdrawal from the Union. 13 Council Document 14559/17 – Outcome of the Council meeting (3579th Council Meeting, General Affairs (Article 50)). 14 Press Release of 20 November 2017, ‘European Medicines Agency to be relocated to Amsterdam, the Netherlands’ – https://www.consilium.europa.eu/en/press/press-releases/2017/11/20/european-medicines-agency-to-be-relocated-to-city-country/. 15 OJ 2018 L 291, p. 3. 16 See Article 71a of Regulation No 726/2004. 17 That case was initially introduced before the General Court by the Comune di Milano (Case T‑46/18). On 8 March 2018, the General Court decided, in accordance with the third paragraph of Article 54 of the Statute of the Court of Justice of the European Union and Article 128 of the Rules of Procedure of the General Court, to decline jurisdiction in favour of the Court of Justice so as to allow the Court to rule on that action in the light of the fact that, in Case T‑46/18, the issue of the validity of the same act was raised as in Case C‑59/18. 18 Order of the Vice-President of the Court of 2 July 2018, Comune di Milano v Council (C‑182/18 R, not published, EU:C:2018:524). 19 COM(2018) 131 final. 20 See the note from the President of the Council, containing the selection rules in an annex (Council Document 7491/19 – Procedure for the selection of the seat of the European Labour Authority). 21 See above, footnote 9 of this Opinion. 22 In footnote 2 of the document containing the selection rules, ‘common agreement’ and ‘common accord’ were defined as ‘terms having the equivalent effect of requiring that all Government Representatives are able to express themselves in favour of the solution retained (no abstention)’. 23 P8_TA(2019)0380 – European Parliament legislative resolution of 16 April 2019 on the proposal for a regulation of the European Parliament and of the Council establishing a European Labour Authority (COM(2018) 0131 – C8-0118/2018 – 2018/0064(COD)). 24 Point 32 of this Opinion. 25 That statement was published in the Official Journal (OJ 2019 L 188, p. 131) after the founding regulation was adopted. 26 See Council Document 10360/19 – Draft minutes, Council of the European Union, Employment, Social Policy, Health and Consumers Affairs, p. 5. See also the Press Release of 13 June 2019 of the Council of the European Union. 27 Decision taken by common accord between the Representatives of the Governments of the Member States of 13 June 2019 on the location of the seat of the European Labour Authority (OJ 2019 L 189, p. 68). 28 Regulation establishing a European Labour Authority, amending Regulations (EC) No 883/2004, (EU) No 492/2011, and (EU) 2016/589 and repealing Decision (EU) 2016/344 (OJ 2019 L 186, p. 21). 29 See, for example, judgments of 23 April 1986, Les Verts v Parliament (294/83, EU:C:1986:166, paragraph 23); of 28 March 2017, Rosneft (C‑72/15, EU:C:2017:236, paragraph 66 and the case-law cited); and of 3 June 2021, Hungary v Parliament (C‑650/18, EU:C:2021:426, paragraph 34). 30 See, for example, judgments of 26 March 2019, Commission v Italy (C‑621/16 P, EU:C:2019:251, paragraph 44); of 9 July 2020, Czech Republic v Commission (C‑575/18 P, EU:C:2020:530, paragraph 46 and the case-law cited); and of 3 June 2021, Hungary v Parliament (C‑650/18, EU:C:2021:426, paragraph 37). 31 See, for example, where the Court found that it had no jurisdiction, judgments of 28 April 1988, LAISA and CPC España v Council (31/86 and 35/86, not published, EU:C:1988:211, paragraphs 17 and 18), regarding provisions of an Act of Accession; of 19 March 1996, Commission v Council (C‑25/94, EU:C:1996:114, paragraphs 24 to 28), regarding a measure adopted by auxiliary bodies of an EU institution such as Coreper; and of 17 September 2014, Liivimaa Lihaveis (C‑562/12, EU:C:2014:2229, paragraph 51), regarding a measure adopted by the representatives of the national authorities of several Member States acting in the framework of a committee provided for in a European Union regulation. 32 See, for example, judgments of 31 March 1971, Commission v Council (22/70, EU:C:1971:32, paragraphs 40 to 42); of 4 September 2014, Commission v Council (C‑114/12, EU:C:2014:2151, paragraph 39); and of 20 February 2018, Belgium v Commission (C‑16/16 P, EU:C:2018:79, paragraph 31). 33 See, for example, judgment of 19 December 2018, Berlusconi and Fininvest (C‑219/17, EU:C:2018:1023, paragraph 42 to 50). 34 See, for example, with the Court’s jurisdiction flowing from the second subparagraph of Article 14.2 of the Statute of the ESCB and of the ECB, judgment of 26 February 2019, Rimšēvičs and ECB v Latvia (C‑202/18 and C‑238/18, EU:C:2019:139, paragraph 55). 35 See, for example, judgment of 3 December 1992, Oleificio Borelli v Commission (C‑97/91, EU:C:1992:491, paragraph 9), and orders of 16 May 2008, Raulin v France (C‑49/08, not published, EU:C:2008:286, paragraph 7), and of 21 February 2013, Gassiat v Ordre des avocats de Paris (C‑467/12, not published, EU:C:2013:104, paragraph 8 and the case-law cited). 36 See, for example, Bebr, G., ‘Acts of representatives of the governments of the Member States’, Sociaal-Economische Wetgeving, vol. 14, 1966, p. 528; Pescatore, P., ‘Remarques sur la nature juridique des “decisions des représentants des États membres réunis au sein du Conseil”’, Sociaal-Economische Wetgeving, vol. 14, 1966, p. 579; Mortelmans, K.J., ‘The Extramural Meetings of the Ministers of the Member States of the Community’, Common Market Law Review, vol. 11, 1974, p. 62. 37 Judgment of 30 June 1993, Parliament v Council and Commission (C‑181/91 and C‑248/91, EU:C:1993:271, paragraph 12) (‘Parliament v Council’). My emphasis. 38 See orders of the Court of 16 June 2021, Sharpston v Council and Conference of the Representatives of Governments of the Member States (C‑684/20 P, not published, EU:C:2021:486, paragraph 39), and Sharpston v Council and Representatives of the Governments of the Member States (C‑685/20 P, EU:C:2021:485, paragraph 39). See also orders of the Vice-President of the Court of 10 September 2020, Council v Sharpston (C‑423/20 P(R), not published, EU:C:2020:700, paragraph 26), and Council v Sharpston (C‑424/20 P(R), not published, EU:C:2020:705, paragraph 26). 39 See order of the Court of 16 June 2021, Sharpston v Council and Conference of the Representatives of Governments of the Member States (C‑684/20 P, not published, EU:C:2021:486, paragraph 40). 40 With the Court’s type of jurisdiction being laid down in those decisions. See, for example, by analogy as far as agreements between Member States are concerned, recital 16 and Article 37(3) of the Treaty establishing the European Stability Mechanism, and judgment of 27 November 2012, Pringle (C‑370/12, EU:C:2012:756, paragraphs 170 to 176). 41 See, to that latter effect, order of the Court of 16 June 2021, Sharpston v Council and Conference of the Representatives of Governments of the Member States (C‑684/20 P, not published, EU:C:2021:486, paragraphs 41 and 42). 42 See, to that effect, judgments of 22 June 2010, Melki and Abdeli (C‑188/10 and C‑189/10, EU:C:2010:363, paragraphs 45 to 47 and 54 and 55), and of 19 December 2018, Berlusconi and Fininvest (C‑219/17, EU:C:2018:1023, paragraph 46). 43 Judgment of 22 October 1987, Foto-Frost (314/85, EU:C:1987:452, paragraph 15). 44 Parliament v Council (paragraph 14). My emphasis. 45 See, to that effect, Opinion of Advocate General Jacobs in Joined Cases Parliament v Council and Commission (C‑181/91 and C‑248/91, EU:C:1992:520, points 17 to 22). 46 Order of 28 February 2017, NG v European Council (T‑193/16, EU:T:2017:129, paragraph 67). 47 See the orders of the General Court of 28 February 2017, NF v European Council (T‑192/16, EU:T:2017:128); NG v European Council (T‑193/16, EU:T:2017:129); and NM v European Council (T‑257/16, EU:T:2017:130). 48 Orders of the General Court of 28 February 2017, NF v European Council (T‑192/16, EU:T:2017:128, point 62); NG v European Council (T‑193/16, EU:T:2017:129, point 63); and NM v European Council (T‑257/16, EU:T:2017:130, point 61). 49 See, for example, order of the Vice-President of the Court of 10 September 2020, Council v Sharpston (C‑423/20 P(R), not published, EU:C:2020:700), and order of the Vice-President of the Court of 10 September 2020, Council v Sharpston (C‑424/20 P(R), not published, EU:C:2020:705) where the same persons represented both the Council and the representatives of the governments of the Member States. 50 I nonetheless readily acknowledge that all this might simply be attributable to a rather narrow and perhaps outdated vision of judicial function, insisting that the judicial review of acts can be carried out only with regard to those that one has in fact seen. However, clairvoyance might absolve one from such mundane physical limitations. See also in this regard judgment of 10 March 2009, Heinrich (C‑345/06, EU:C:2009:140), in the light of the Opinion of Advocate General Sharpston in Heinrich (C‑345/06, EU:C:2008:212, points 70 to 77). 51 To provide a notable recent example: it was only in the judgment of 5 December 2017, M.A.S. and M.B. (C‑42/17, EU:C:2017:936, paragraphs 43 to 47) that the Court drew that consequence from the fact that ‘the protection of the financial interests of the Union by the enactment of criminal penalties falls within the shared competence of the Union and the Member States’ and that, as in judgment of 8 September 2015, Taricco and Others (C‑105/14, EU:C:2015:555), ‘at the material time for the main proceedings, the limitation rules applicable to criminal proceedings relating to [value added tax] had not been harmonised by the EU legislature’. 52 See orders of the Court of 16 June 2021, Sharpston v Council and Conference of the Representatives of Governments of the Member States (C‑684/20 P, not published, EU:C:2021:486), and Sharpston v Council and Representatives of the Governments of the Member States (C‑685/20 P, not published, EU:C:2021:485). 53 See, for example, Parliament v Council (paragraph 15). 54 See the last sentence of the first paragraph of Article 263 TFEU; the second paragraph of Article 265 TFEU; and Article 267 TFEU. 55 See Article 123 TFEU. See also, still in relation to the ECB, Article 282(3) TFEU. 56 See Article 228 TFEU. See also, as regards administration more generally, Article 298(1) TFEU. 57 Pursuant to Article 342 TFEU, ‘the rules governing the languages of the institutions of the Union shall, without prejudice to the provisions contained in the Statute of the Court of Justice of the European Union, be determined by the Council, acting unanimously by means of regulations’. 58 Council Regulation determining the languages to be used by the European Economic Community (OJ, English Special Edition, Series I 1952-1958, p. 59). See, for instance, Article 35 of Regulation 2019/1149. 59 See, for example, Article 25(2) of Council Regulation (EC) No 168/2007 of 15 February 2007 establishing a European Union Agency for Fundamental Rights (OJ 2007 L 53, p. 1). 60 See, in relation to the Office for Harmonisation in the Internal Market (Trade Marks and Designs (OHIM), the predecessor of the European Union Intellectual Property Office (EUIPO), judgment of 9 September 2003, Kik v OHIM (C‑361/01 P, EU:C:2003:434, paragraph 92 to 94). 61 See, for example, judgment of 16 December 2020, Council and Others v K. Chrysostomides & Co. and Others (C‑597/18 P, C‑598/18 P, C‑603/18 P and C‑604/18 P, EU:C:2020:1028, paragraph 80). 62 See, for example, as regards the European Foundation for the improvement of living and working conditions (‘Eurofound’), Regulation (EU) 2019/127 of the European Parliament and of the Council of 16 January 2019 establishing the European Foundation for the improvement of living and working conditions (Eurofound), and repealing Council Regulation (EEC) No 1365/75 (OJ 2019 L 30, p. 74), mentioned Article 153(2) TFEU (complementary competence of the Union in the field of working conditions), and as regards the European Union Aviation Safety Agency (EASA), Regulation (EU) 2018/1139 of the European Parliament and of the Council of 4 July 2018 on common rules in the field of civil aviation and establishing a European Union Aviation Safety Agency, and amending Regulations (EC) No 2111/2005, (EC) No 1008/2008, (EU) No 996/2010, (EU) No 376/2014 and Directives 2014/30/EU and 2014/53/EU of the European Parliament and of the Council, and repealing Regulations (EC) No 552/2004 and (EC) No 216/2008 of the European Parliament and of the Council and Council Regulation (EEC) No 3922/91 (OJ 2018 L 212, p. 1), adopted on the basis of Article 100(2) TFEU which concerns sea and air transport. 63 I stress again in conceptual terms, as to the nature of the decision to be made and the ability to make it. I certainly agree that in terms of the specific decision and its outcome, a political decision by the Parliament, as well as by any other institution or actor for that matter, might potentially differ from that of the Member States. However, the ability to reach a different decision certainly cannot be equated with the inability to make a political decision. 64 In detail above, points 14 and 33 of this Opinion respectively. 65 The predecessors to Article 341 TFEU are, in a reverse chronological order, Article 289 TEC, Article 216 TEEC and Article 77 of the ECSC Treaty. 66 See above, point 91 of this Opinion. 67 My emphasis. 68 When that type of decision is taken on the basis of a specific EU law provision, it is then a part of EU law. See, for example, to that effect, with regard to the seat of EU institutions under the predecessor of Article 341 TFEU, judgment of 1 October 1997, France v Parliament (C‑345/95, EU:C:1997:450, paragraph 34), where the Court examined the compatibility of the Parliament’s vote in question with the Edinburgh Decision. 69 Protocol No 22 was adopted in the wake of the Decision of the Heads of State or Government, meeting within the European Council in Edinburgh on 12 December 1992, concerning certain problems raised by Denmark on the Treaty on European Union, to which that protocol expressly refers. 70 Following the first rejection of the Treaty of Lisbon by the Irish people, the Heads of State or Government of the 27 Member States of the European Union, meeting within the European Council, adopted in June 2009 a Decision on the concerns of the Irish people on the Treaty of Lisbon. That decision envisaged the adoption of a protocol at the time of the next accession Treaty. A Protocol on the concerns of the Irish people on the Treaty of Lisbon was thus adopted and annexed to the Treaties on the occasion of Croatia’s accession (OJ 2013 L 60, p. 131). 71 Under the Treaty of Lisbon, with the establishment of the European Council as an EU institution, decisions of the Heads of State or Government are likely to be gradually replaced by (reviewable) decisions of the European Council. As a result, situations which could potentially lead to legal vacuums in EU law due to ‘unincorporated’ decisions of the Heads of State or Government should eventually disappear. 72 See, to that effect, judgment of 2 March 2010, Rottmann (C‑135/08, EU:C:2010:104, paragraph 40), which concerned the part of the Edinburgh Decision relating to Denmark and also an interpretive declaration annexed to the Treaties. 73 See footnote 5 of this Opinion. 74 Decision taken by common agreement between the representatives of the Member States, meeting at Head of State or Government level, of 13 December 2003 on the location of the seats of certain offices and agencies of the European Union (OJ 2004 L 29, p. 15), regarding the European Union Agency for Law Enforcement Training (CEPOL), the European Food Safety Authority (EFSA), the European Union Agency for Criminal Justice (‘Eurojust’), the European Maritime Safety Agency (EMSA), EASA, the European Union Agency for Railways (ERA), the European Union Agency for Cybersecurity (ENISA), the European Centre for Disease Prevention and Control (ECDC) and the European Chemicals Agency (ECHA). 75 Decision taken by common agreement between the Representatives of the Governments of Member States of 7 December 2009 on the location of the seat of the Agency for the Cooperation of Energy Regulators (OJ 2009 L 322, p. 39), taken ‘having regard to Article 341 [TFEU]’ and signed by the President of the Council. The establishment of that agency was decided by Regulation (EC) No 713/2009 of the European Parliament and of the Council of 13 July 2009 establishing an Agency for the Cooperation of Energy Regulators (OJ 2009 L 211, p. 1). 76 Decision (EU) 2021/4 taken by common accord between the Representatives of the Governments of the Member States of 9 December 2020 on the location of the seat of the European Cybersecurity Industrial, Technology and Research Competence Centre (OJ 2020 L 4, p. 7). 77 See, for example, Article 94(3) of Regulation 2018/1139; Article 79(1) of European Parliament and Council Regulation (EU) 2018/1727 of the European Parliament and of the Council of 14 November 2018 on the European Union Agency for Criminal Justice Cooperation (Eurojust), and replacing and repealing Council Decision 2002/187/JHA (OJ 2018 L 295, p. 138); and Article 25 of Regulation (EU) 2015/2219 of the European Parliament and of the Council of 25 November 2015 on the European Union Agency for Law Enforcement Training (CEPOL) and replacing and repealing Council Decision 2005/681/JHA (OJ 2015 L 319, p. 1). 78 The seat of the European Centre for the Development of Vocational Training (Cedefop) was decided in the founding act (Article 1 of Regulation (EEC) No 337/75 of the Council of 10 February 1975 establishing a European Centre for the Development of Vocational Training (OJ 1975 L 39, p. 1)), with no mention of Article 341 TFEU. That regulation was repealed by Regulation (EU) 2019/128 of the European Parliament and of the Council of 16 January 2019 establishing a European Centre for the Development of Vocational Training (Cedefop) and repealing Council Regulation No 337/75 (OJ 2019 L 30, p. 90). Article 20(3) thereof states that ‘Cedefop shall have its seat in Thessaloniki [Greece]’. 79 See Regulation (EEC) No 1365/75 of the Council of 26 May 1975 on the creation of a European Foundation for the improvement of living and working conditions (OJ 1975 L 139, p. 1). Under Article 4(2), ‘the seat of the Foundation shall be in Ireland’. Under Regulation 2019/127, Article 21(3) provides that ‘Eurofound shall have its seat in Dublin [Ireland]’. 80 See Council Decision 2005/358/EC of 26 April 2005 designating the seat of the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (OJ 2005 L 114, p. 13). That decision was taken ‘having regard to’ Article 15, fifth paragraph, of Council Regulation (EC) No 2007/2004 of 26 October 2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (OJ 2004 L 349, p. 1). Article 341 TFEU was not mentioned in that decision. 81 Article 18(4) of Council Regulation (EC) No 768/2005 of 26 April 2005 establishing a Community Fisheries Control Agency and amending Regulation (EEC) No 2847/93 establishing a control system applicable to the common fisheries policy (OJ 2005 L 128, p. 1). 82 See, for example, Article 7 of Regulation (EU) No 1093/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Banking Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/78/EC (OJ 2010 L 331, p. 12). See also, in the context of the banking union, the seat of the Single Resolution Board (Article 48 of Regulation (EU) No 806/2014 of the European Parliament and of the Council of 15 July 2014 establishing uniform rules and a uniform procedure for the resolution of credit institutions and certain investment firms in the framework of a Single Resolution Mechanism and a Single Resolution Fund and amending Regulation (EU) No 1093/2010 (OJ 2014 L 225, p. 1)). 83 See, for example, Article 1(3) of Council Decision 2014/401/CFSP of 26 June 2014 on the European Union Satellite Centre and repealing Joint Action 2001/555/CFSP on the establishment of a European Union Satellite Centre (OJ 2014 L 188, p. 73). Taken on the specific basis of Article 45(2) TEU, see also Article 1(5) of Council Decision (CFSP) 2015/1835 of 12 October 2015 defining the statute, seat and operational rules of the European Defence Agency (OJ 2015 L 266, p. 55). 84 Initially, the decision on the seat was made by the Council in its Decision of 22 December 2000 establishing a European Police College (CEPOL) (OJ 2000 L 336, p. 1). That seat was then ‘decided’ again by the decision of the representatives of the Member States of 13 December 2003 (see footnote 77 of this Opinion). Subsequently, it was the Council which decided, on 8 October 2013, to modify CEPOL’s seat before European Parliament. Accordingly, Regulation (EU) No 543/2014 of the European Parliament and of the Council of 15 May 2014 amending Council Decision 2005/681/JHA establishing the European Police College (CEPOL) (OJ 2014 L 163, p. 5) was adopted. At present, CEPOL’s seat is mentioned in Article 25 of Regulation 2015/2219. 85 See, for example, my Opinion in Confédération paysanne and Others (C‑528/16, EU:C:2018:20, points 138 to 142). 86 Quod non, as explained above in point 106 of this Opinion, but with that assumption made for the sake of the argument. 87 See, for example, judgments of 19 July 2016, H v Council and Others (C‑455/14 P, EU:C:2016:569, paragraph 41), and of 28 March 2017, Rosneft (C‑72/15, EU:C:2017:236, paragraphs 72 and 73). 88 Incidentally, there still appears to be no formal seat for the European Council despite the transformation of the latter from an intergovernmental practice into an EU institution by the Treaty of Lisbon. 89 Whether Article 341 TFEU would suffice to that effect or whether it should be relied on in association with Article 48 TEU, as argued by the Council, does not need to be determined for the purposes of the present cases. 90 Points 72 to 81 of this Opinion. 91 See points 38 and 40 of this Opinion. 92 Relating rather to the nature of the document and its binding force, not necessarily authorship. However, even with regard to the former, the Court has stated over and again that publication in the Official Journal is not relevant. See, for example, to that effect, judgments of 6 October 1987, Demouche and Others (152/83, EU:C:1987:421, paragraph 19), and of 15 June 2017, Lietuvos Respublikos transporto priemonių draudikų biuras (C‑587/15, EU:C:2017:463, paragraph 38). 93 Point 19 of this Opinion. 94 See paragraph 6 of the selection rules. 95 With the principle of attributed competence having repercussions on the authorship as well: if it indeed (factually) happened within the Commission, and the Commission may only act as that very institution, the author must therefore be the Commission – see above, point 58 of this Opinion. 96 See, for example, judgment of 27 November 2012, Pringle (C‑370/12, EU:C:2012:756, paragraph 158 and the case-law cited). 97 See above points 104 to 108 of this Opinion. 98 See above, points 121 to 125 of this Opinion. 99 As suggested above, points 80 and 81 of this Opinion. 100 Point 6 of the Common Approach annexed to the Joint Statement on decentralised agencies (see footnote 9). My emphasis. 101 Commission proposal for a regulation of the European Parliament and of the Council amending Regulation (EC) No 726/2004 as regards the location of the seat of the European Medicines Agency (COM(2017) 0735 final). My emphasis. 102 Point 32 of this Opinion. 103 Report from the Commission to the European Parliament and the Council on the implementation of the Joint Statement and Common Approach on the location of the seats of decentralised agencies (COM(2019) 187 final). 104 As also demonstrated indirectly by the submissions of virtually all the parties to the present cases: while having very different views on the legal points raised by the present cases, sometimes even diametrically opposed views, all of the (institutional) parties were united in agreeing that it is vital for the Court to clarify the rules for the future. 105 Orders of the Court of 16 June 2021, Sharpston v Council and Conference of the Representatives of Governments of the Member States (C‑684/20 P, not published, EU:C:2021:486, paragraph 44), and Sharpston v Council and Representatives of the Governments of the Member States (C‑685/20 P, EU:C:2021:485, paragraph 50). 106 See points 115 to 117 of this Opinion. 107 See the parallel Opinion in Italian Republic and Commune di Milano v Council and Parliament (‘the EMA 2 cases’) (Joined Cases C‑106/19 and C‑232/19). 108 See, for example, judgment of 20 February 2018, Belgium v Commission (C‑16/16 P, EU:C:2018:79, paragraph 26). 109 See, to that effect, judgment of 31 January 2006, Commission v Spain (C‑503/03, EU:C:2006:74, paragraphs 33 to 35). See also Opinion of Advocate General Kokott in Commission v Council (C‑13/07, EU:C:2009:190, points 37 to 41). 110 See, for example, to that effect, judgments of 27 November 2012, Pringle (C‑370/12, EU:C:2012:756, paragraphs 163 and 164), as regards the Treaty establishing the European Stability Mechanism, notably in the light of EU competences, and of 20 September 2016, Ledra Advertising and Others v Commission and ECB (C‑8/15 P to C‑10/15 P, EU:C:2016:701, paragraph 67), in relation to memoranda of understanding between a Member State and the European Stability Mechanism.