Thursday, 29 October 2009

The Council Legal Service: The dark force of the EU?

Within the EU, almost nothing of substance is decided without the Council, and within the Council there is a dark force: The Legal Service.

Unknown administrators decide whether something the member states want to do is in accordance with the Treaties. And their analyses are secret as you can see in this document as one of the many examples I have come across.

From what I have heard, the Council legal service slows down international negotiations because it first has to approve draft texts that the member states or the Council presidency want to sign or use as EU compromise proposals.

From what I can see in the documents it looks like the Council legal service is proactively shaping what the EU can do or not do:
"The representative of the Legal Service intervened in order to recall certain general principles applicable to the delegation of implementing powers to the Commission, and outlined some drafting suggestions in that regard." (source)
As you can see, the civil servant is telling the member states what they should do, he teaches them about "the principles", acting as if s/he was the guardian of the Treaties.

The Council legal service thus shapes the future law-making of the Union, but all we see from it is empty documents or documents where the most relevant parts are deleted: here, here, here or here.

What legitimacy do these people have to massively influence the Union, to decide over whether something may be done or not? Who is controlling this dark force hidden behind the opaque walls of legal secrecy? Who are these people?

PS.: If anyone has some interesting stories on how the Council legal service influences the EU's decision-making, please share them with us!


Gagarine said...

Hum. How should I put this. Maybe remind you that the EU is a community based on the rule of law?

The Council cannot adopt a legal act which violates the treaties. The role of the LS of the Council is to advise the Council (i.e. the representatives of the MS) as to what it can do and not do. It can also advise the Council as to the consequences of Commission proposals and the legal effect of certain draftings.

The Council can always ignore the advice of the LS. However, if it does something contrary to the treaties, an act could be faced with an annulement by the ECJ.

Why is this advice not public? Well, disclosure of legal opinions could give rise to doubts as to the lawfulness of legislative acts to which such advice related and could also compromise the independence of the opinions of the Council’s legal service (and thus the quality of advice).

But don't worry: the ECJ has recently ruled that the LS's advice should only remain confidential in exceptional cases (see Turco C-39/05P).

The effect of this? Well, the LS will be much more careful in its drafting, and sensitive stuff will remain oral.

Julien Frisch said...

Dear Gagarine,

this is not about the rule of law, this is about civil servants having a massive influence on European democratic decision making.

And your fear regarding public opinions by the legal service leading to problems if the member states decide to act against their recommendations: Good so. By now we don't even know when our governments don't follow the advice of the legal service nor do we know when they listen to its objections although the Council legal services might contradict all legal services of all other EU institutions.

Transparency is about control of power, and all I want is that EU decision-making, from the beginning to the end, becomes more transparent so that nobody can hide behind secretive opinions, opaque decisions or any other so-called "strategic" interest that do not serve the public good but just the limited interest of a small elite of power-holders.

Hans said...

Well, Julian.. What makes you think that a process becomes more transparent when every written word is made available to the public? If we follow many people's obsession with transparency, every word spoken by any civil servant to any other civil servant should be recorded and filed for future reference. After all, we don't want the Commission to draft a legislative proposal on the basis of someone's opinion that might have been influenced during a chat with a colleague, a meeting with an NGO or other lobbyist (after all, what minutes are really complete..), or the reading of a newspaper article?

Will the public good be served by access to what every single civil servant reads, hears or sees? After all, every proposal is based on what a small group of civil servants believes is the politically and legally correct way to progress. And their belief is shaped by more than the opinion of the legal services.

Why is everything that you do not have access to a "dark force"?

You say: "all I want is that EU decision-making, from the beginning to the end, becomes more transparent so that nobody can hide behind secretive opinions, opaque decisions or any other so-called "strategic" interest that do not serve the public good but just the limited interest of a small elite of power-holders."

One thing I remember from Physics is that when you wish to measure something, you should be careful that the measuring instrument does not influence the state of the parameter you wish to measure... If you stick a large cold thermometer in a small glass of warm water, you will rather influence the temperature of the water than measure it. Have a look at Article 4.3. of Regulation 1049/2001 ( : they have understood this law of physics.

So.... how big is the thermometer that you want to plug in the butt of the Community to measure its level of Democracy?

Julien Frisch said...

My argument is about the fact that I want transparency in reasoning behind law-making for 500 million people.

For that I don't need every word recorded, I don't need every little piece of paper written by a civil servant stored and saved and published.

For that I need knowledge about the crucial decisions, the crucial advices, the relevant argumentation that lead to a decision, and as long as not even this basic need of a democratic society is fulfilled, I think we citizens for whom this democracy is designed have the right to demand more openness and transparency.

Democracy is not about decision-makers and administrators, it is a way to channel the expressed will and interests of citizens into regulation (or de-regulation) trying to balance the diversity of these interests in fulfilling them.

For me, this complex democracy is about (good) arguments, but if you don't know what the (real) arguments behind a decision are, how can you make better ones if you think the decision is wrong? How can you prevent decision-makers telling me why they have decided in this or that direction, while in fact their real arguments were completely different?

The reason why I picked out the legal service of the Council is its important position within the EU system:

By saying that something is not possible according to its legal interpretation, and by convincing civil servants and diplomats of the member states that this actually true, certain decisions are made practically impossible, although the Court(s) might think differently.

The Council legal service is thus an uncontrolled gatekeeper, and its analyses are not just minor pieces of communication between EU employees, they are guiding lines for what the member states may or may not do when they decide in the Council.

If you look just at the examples I have linked in the post you see that these are not minor issues, they are related to substantial EU decisions, and the analyses thus become not only legal but very political guidelines that are worth publishing.

What I agree with is your remark that making the democracy more transparent will change the behaviour of the actors involved, and they might just seek new strategies to hide.

I have no answer to that, and all I can hope that parallel to new transparency rules we will see a new mindset where people working for us citizens don't think they need to hide but where those officials realise that their job should be done in the most open and transparent way, where they are willing and able to defend and explain their decisions that they make in our interest.

Maybe this is impossible, but I am not a cynic, I am an optimistic realist, hoping that things can change for the better and not just for the worse...

Hans said...

Being a cynic is not a bad thing. After all, cynisism is an unpleasant way of saying the truth. But sometimes the truth is an unpleasant thing in itself.

Democracy in my view means that you elect the people you trust, then let them do their job. If you don't like what they do, you throw them out at the next elections. You don't want a referendum for each decision, you can't run a government, an administration, or a business if everybody has a say in every single decision.

No, I'm not an advocate for covering up everything, hiding every reason behind every decision; but there are limits to the level of transparency, and if you cross that line, the effect will be counterproductive. The last thing you want is a set of great transparency rules that make life more complicated for everybody involved, and in the end to see people contuining the things they used to do, only in a more complicated manner (so, who's a cynic now?)

Take a look at the great transparency initiative: the voluntary register... the financial disclosure, etc... Everybody keeps talking about who should or should not register, think tanks, law cabinets, lobbyists, etc... But nobody really talks about WHY they should register, and what good that financial disclosure does. Do you know who's interested in financial disclosure? Not the regulators, they're smart enough to know who's knocking on their door, and why. And in 99,9% of the cases the lobbyist knocking on their door tells them exactly whom he's representing. No, the ones that are interested are... the lobbyists themselves, who want to know who's working for whom, and what the size of their budget is...
So who registers? All the lobby firms who already operate in a responsible manner. Of course the so-called NGOs that are financed for 98% by one corporation, or that choose fancy names that make them sound like something well-known and respected, don't register; these are the ones that send their comments in public consultations, that manage to work their way into the media, that are capable of setting off some public scare, without any accountability to anyone. No need to register for that. So, what's the effect of this great new transparency? That legislators are better informed? I don't think so.

Of course the Legal Service is an "uncontrolled gatekeeper". They can advice, but the Member States still have their own legal services to scrutinize that advice. In the end, it is the European Court that decides if anything is legal or not. You need experts to advice the politicians about the legality of their ideas, their proposals; you don't want the European Courts flooded with ramshackle legislation. Where you want transparency is in the political process: WHY do politicians want a certain piece of legislation? They should be accountable, when the legislation they throw upon us, doesn't bring what they set out to do. I don't believe that the legislators will blindly believe everything from the Council Legal Services... they have their own lawyers, and they double-check (or would you want the Member State internal legal comments on the Council LS advice also attached to it?).

You say "Democracy is not about decision-makers and administrators, it is a way to channel the expressed will and interests of citizens into regulation (or de-regulation) trying to balance the diversity of these interests in fulfilling them".

May I re-phrase that: Democracy is a way to channel the expressed will and interests of citizens into regulation (or de-regulation) trying to balance the diversity of these interests in fulfilling them; for that we need a system that allows decision-makers and administrators to work efficiently and correctly.

CEO said...


We (WDCS) are trying to the bottom of this story. See what you think.

best wishes