The invisibility of legal advice given to EU institutions

Leino_Sandberg_P_ivi_2_photo_Linda_Tammisto.jpgWhenever a political institution seeks to rely on legal advice, there are often calls for that advice to be published, so it can be scrutinised. As has been discussed previously on the blog, there are pros and cons to placing material prepared in confidence into the public domain. Päivi Leino-Sandberg argues that in an EU context, such advice is often invisible, to the detriment of the decision-making process. 

Legal advice matters. It may not always decide the fate of nations, as Attorney General Geoffrey Cox’s advice on the Irish backstop may have done, but an astute follower of EU politics may recall times when proposals by the European Commission have hit a legal roadblock. A measure may have been found unconstitutional by the legal service of another EU Institution or a powerful Member State, bringing the political process to a halt. Typically, a flurry of fierce legal wrangling then ensues, during which the offending parts of the proposal are reviewed, removed or modified to reconcile divergent legal views. In most cases, the proposal will eventually re-emerge and is adopted in a revised form. Sometimes, it is quietly buried.

These are the battlegrounds of legal advisers working in the EU Institutions. Their opinions carry significant weight. The Commission Legal Service has enjoyed a de facto veto power over most Commission measures, even though this power has weakened during the Juncker Commission (2014-2019). The Council Legal Service is no less powerful. A Member State legal adviser explains how:

‘if you haven’t either managed to silence the Council Legal Service … or get them onside, forget about it. Because if they come out with something that’s contrary to where you are, they probably have a natural majority of fifteen Member States before you even start. And of the thirteen others, seven or eight will go with them anyway.’

But in spite of its importance, legal advice in the EU remains curiously invisible.

Two recent posts on this blog debated access to legal advice given to parliaments. In the first of these posts, Ben Yong, Greg Davies and Cristina Leston-Bandeira cautioned against publishing UK Parliament select committee legal advice. They concluded that publication of advice personalises and potentially politicises it, and threatens the relationship of trust and confidence between officials and parliamentarians. Publication might also create an exaggerated picture of the role of legal advice in political decision-making. In contrast, Gabrielle Appleby advocated for the publication of such advice to facilitate greater transparency about the influence of legal advice in parliamentary decision-making.

In the EU, legal advice given in the legislative context should, as a rule, be open to public scrutiny. However, it continues to be treated as confidential. I have been examining its use empirically in the Commission, the Council and the European Parliament. Each of these institutions has – in addition to legally trained officials in policy units – a dedicated Legal Service that plays a key role in its legislative work and defends it before the courts. It is these bodies that are tasked to assess the constitutionality of proposed action. They may advise against certain approaches and recommend in favour of others.

Since EU law comprises a significant body of general principles, broad policy objectives and also international law obligations that require interpretation, the different Legal Services frequently disagree. In the end, few political projects are categorically impossible; if political will is strong, a solution can often be found, albeit one that challenges or even redefines the limits of the law.

Two additional aspects characterise the EU institutional context for legal advice. First, unlike solicitors or barristers, most EU legal advisers are not bound by any legal professional rules. As Union officials, they are subject to the general rights and obligations provided in the EU Staff Regulation: to act ‘objectively, impartially and in keeping with his duty of loyalty to the Union’ (Regulation No. 31), But from a professional ethical viewpoint, they exist in a regulatory vacuum.

Second, unlike in the UK, EU law recognises no categorical legal professional privilege (LPP) exception that would be relevant for EU legal advisers. Discussion about LPP in the EU context has been confined to in-house lawyers’ opinions in the context of competition law investigations and limited its scope to advice received from ‘independent, and thus external, legal advisers’. This is in line with the original function of LPP: to ensure that citizens are able to seek legal advice in confidence without the state watching, controlling, harassing or punishing them. Therefore it is not obvious why public sector lawyers should benefit from it.

The EU legal advisers’ advice is subject to Regulation 1049/2001 on public access to documents. This Regulation sets a general principle that documents containing legal advice should be publicly available, but allows the institutions to refuse disclosure in case this would undermine Court proceedings and legal advice. Even in this case, access can be granted when there is an overriding public interest in disclosure.

Publicity of legal advice has provoked a great deal of litigation and political controversy. Institutional legal services have been particularly concerned that their negative opinions could be produced in the Court of Justice for the European Union by other parties to litigation to support their own arguments. The Court has in certain situations been responsive to their concerns, finding this practice ‘contrary to the public interest, which requires that the institutions be able to benefit from the opinions of their legal services, provided in complete independence’.

But the debate has moved to the broad principle of legislative transparency. This was enshrined in the Treaty of Lisbon and mobilised through public access requests brought by civil society, researchers and also individual MEPs. The Turco case concerned the refusal of the Council to grant public access to an opinion of its Legal Service concerning a proposal for a directive. Not unlike Appleby in her blog, the Court relied in its judgment on democratic principles:

‘it is precisely openness in this regard that contributes to conferring greater legitimacy on the institutions in the eyes of European citizens and increasing their confidence in them by allowing divergences between various points of view to be openly debated. It is in fact rather a lack of information and debate which is capable of giving rise to doubts in the minds of citizens, not only as regards the lawfulness of an isolated act, but also as regards the legitimacy of the decision-making process as a whole. Furthermore, the risk that doubts might be engendered in the minds of European citizens as regards the lawfulness of an act adopted by the Community legislature because the Council’s legal service had given an unfavourable opinion would more often than not fail to arise if the statement of reasons for that act was reinforced, so as to make it apparent why that unfavourable opinion was not followed.’

The impact of the ruling should be considerable, as much of the advice given by the legal services indeed relates to legislative matters: the legal basis of legislative proposals, the scope of EU powers, institutional prerogatives, or delegation of powers.

Yet, the Council and Commission continue to resist disclosure. The Council has relied extensively on the exception allowed by the Court in Turco to refuse disclosure if an opinion is ‘of a particularly sensitive nature or having a particularly wide scope’. The Court has returned to the matter several times, routinely striking down the Council’s refusal. The Commission, not formally a part of the co-legislature, has considered its documents as falling outside the provisions of legislative transparency—again, an argument rejected by the Court.

The European Parliament’s legal advisers tend to be more relaxed about disclosure of their opinions. They are used to the Parliament not following their advice, and, in any case, it is difficult to keep matters confidential in the Parliament, despite disclaimers. A former Parliament legal adviser explains how publicity ‘has a very sanitary effect on the members on the Legal Service, they really have to try and get it right immediately, from the beginning. And if this means a little more caution, fine’.

Despite the Parliament’s more liberal approach, in the EU model, there is no tradition of exposing bold legal steps to public scrutiny. Rather, the tendency is the opposite: if the EU adopts legislation that potentially transgresses the boundaries of its Treaties (which does occasionally occur), any discussions are kept carefully out of the public eye.

In comparison, many Member States (such as the Netherlands, Belgium, France, Sweden) have an independent body that assesses the constitutionality of proposed legislation prior to its adoption. Their opinions tend to be public and, while the government and the legislature are not strictly required to follow them, their disclosure makes them very difficult to ignore. A negative opinion is always followed by a stage of public accommodation and justification: if the government proposes something constitutionally questionable, this will be in the context of a proper public discussion.

Public access requests to EU legal opinions are not always sought for reasons of democratic transparency, but also to inform attempts to challenge the validity of EU law. This possibility tends to affect the mindset of the institutional advisers even if the consequences of invalidity are seldom dramatic. If the Court declares an EU act invalid, it tends to rule on its consequences– for example that its effects are maintained until the act is replaced with another act adopted in the correct procedure.

Some recent public access requests have concerned informal correspondence between the institutions’ legal advisers and their drafting suggestions on new EU tobacco legislation, which was being challenged before a national court. The CJEU acknowledged that disclosure of this kind of highly informal advice would compromise the principle of equality of arms and thus the Institution’s

‘decision-making process, as it would deter staff from making such remarks independently and without being unduly influenced by the prospect of wide disclosure exposing the institution of which they are part.’

The belief in the confidentiality of legal advice continues to be deeply rooted in the institutional mindset. In my interviews with EU legal advisers, there was palpable concern about public access to legal advice leading to self-censorship and ultimately the sacrifice of their independence.

Legal advisers stress that they do not engage in politics but rather issue technical opinions. Responsibility for decisions should be with the politically accountable institution, the recipients of the advice. Their advice only constitutes ‘one opinion, not an authoritative statement or infinite truth’, and it is for the Court to judge whether an EU proposal is correctly based on a Treaty provision. Others argue that public access should be denied only if the institution has not followed the opinion of its legal service – a situation clearly addressed by the Court in its Turco ruling. Some advisers do acknowledge the connection between disclosure of legal reasoning and the legitimacy and quality of the EU decision-making process. In particular, this was seen as countering the tendency to misuse legal arguments to camouflage political positions.

Despite attempts to keep (especially negative) legal analyses confidential, many Council Legal Service opinions are leaked: the more politically important a file, the more likely it is that its legal aspects will also be debated in the Financial Times or Politico. No matter how hard legal advisers stress the objectivity of their opinions, they will always be given in a political context and have political implications.

Law is needed to enable EU action, and sometimes this requires creative readings of the Treaties. But law is also meant to constrain, and to protect the careful balance of powers that underlies the European construction. An EU that is seen as careless about the limits of its powers will quickly lose its legitimacy. In this balancing act, the job of EU legal advisers is to act as guardians of its constitutional and institutional structure, and to mediate the tension between political will and the rule of law.

The EU is not a state. It is a political construction that continues to face scrutiny and criticism, and is in a constant need to legitimate its existence. In times of heightened concerns about the rule of law in its Member States, should the Union conceal its own adventures with Treaty boundaries? I would argue that while allowing open debate about difficult decisions may feel like a nuisance, it is a necessary check and balance for the EU’s legislative powers and an important element in strengthening its legitimacy in the eyes of its citizens.

This post was written partly in response to two other blogs that discussed the merits of publishing legal advice to parliaments. The first, written by Greg Davies, Cristina Leston-Bandeira and Ben Yong, can be found here. The second, written by Gabrielle Appleby, can be found here.

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About the author

Päivi Leino-Sandberg is Professor of Transnational European Law at the University of Helsinki, Finland. Prior to returning to academia in 2015 she worked for over 10 years as a legal adviser representing and advising the Finnish Government in various EU negotiations, including those leading to the conclusion of the Treaty of Lisbon. Her monograph The Politics of Legal Expertise in EU Policymaking, and an edited volume, Legal Expertise in EU Policymaking: Changing Roles for the Legal Profession (co-edited with Emilia Korkea-aho) are soon to be published by Cambridge University Press.