EXPERT SERIES: EMANUELE REBASTI: The Legal Service of the Council of the EU (CLS) from the inside: from contributing to legislative negotiations to litigator in Court.

The Council, the European Council and their common Legal Service; similarities and differences with other Legal Services; relationship with the legal advisors of Member States and with the European Court of Justice.

Questions for students
 What is the role of the legal advisor to a legislative body at the EU level?
 Which is the relationship between the members of the Council Legal Service and the Presidency of the Council or the President of the European Council? In that respect, in what respect does the position of the Council Legal Service differ from the position and work of the officials of the General Secretariat of the Council which provide political advice (“Political Directorates General)?
 Which is the difference in role between the members of the Council Legal Service and the legal advisors working for the representatives of the Member States sitting in the Council? Which is their relationship?
 Which is the difference between the role of the Council Legal Service and the role of the Legal Service of the Commission? What’ s the difference in the work and position of the Council Legal Service with respect to the Parliament Legal Service? What do they have in common?

 
Session II
The contribution of the Council Legal Service to the legislative work of the Council and to the role of political steering of the European Council: the case of the legislative negotiations on the Rule of Law Conditionality Regulation.

Outline and questions for students
The context and the origin of the proposal
• The debate on the new MFF and the Rule of Law crisis in the Union
• The German request and the Commission proposal
• A dangerous bet: setting up a political package
• Legal basis and outline of the proposal

The legislative work in Council and the role of the CLS
• The legal questions and CLS opinion.
• The opinion of the CLS: main points
• The impact of the opinion on the negotiations
• The CLS work with the PCY: Romanian redrafting; German wrapping up
• The interinstitutional negotiations
 What do you think of the Council Legal Service opinion on the proposal for a conditionality regulation? Was that opinion followed by the Council (and the Parliament) in their legislative deliberations? To what extent do you think that the opinion influenced the final outcome of the legislation?

Beyond the legal issues: finding creative and legally correct solutions to political needs
• The curse of the package approach and the need to overcome a veto
• The research of possible concessions – role of a legal advisor?
• The example of recital 26: emergency brake. Is it legal?
 What do you think about recital 26 of the Conditionality Regulation? Is that provision compatible with the role of the European Council as resulting from the Treaties, and notably article 15 TEU? Which is its impact on the implementation of the Regulation and on possible adoption of measures of protection of the budget in a specific case? What was its political rationale? As a legal advisor, how would you have advised the Council to proceed?

• The example of the EuCo conlcusions of 10 and 11 December 2020
 What do you think of the European Council Conclusions of 10 and 11 December 2020? Are they compatible with the Conditionality Regulation and the respective role of the institutions (institutional balance) as laid down in the treaties? Which is their legal value/effect? Which was their political value/rationale? As a legal advisor, how would you have advised the Council to proceed?

The role of the legal advisor in a political negotiation
• Legality is paramount
• But he/she needs to provide workable solutions to the political needs
• European point of view but understanding of national dynamics
• The relationship with the other institutions and the political masters
 What is the relationship between law and politics in EU negotiations? What s the role of a legal advisor in a political context? What is the approach a Member of the Council Legal Service should follow? Should it have a European point of view or a national point of view? Should it follow political instructions or be guided exclusively by legal analysis?


 
Session III
The work of the Council Legal Service in litigation: the case of the cases of annulment brought by Poland and Hungary against the Rule of Law Conditionality Regulation.

Outline and questions for students
The litigation on the Conditionality Regulation
• The continuation of the political debate by other means…
• The EP dilemma
• The actions by HU and PL
• Arguments and strategy


The CLS as a litigator
• Choice to intervene in a case
• Litigation strategy and choice of the arguments
• The relationship with the Member States in the litigation phase
• The relationship with the Legal Services of the other Institutions
• CLS at the hearing
 What is the difference between the work of a référendaire at the Court of Justice and that of a Member of the Council Legal Service? What is the relationship between the Council Legal Service and the European Court of Justice? How does the role of an institution’s legal advisor change when it is represent its institution in front of the Court of Justice?
 In which case does the Council Legal Service intervene or should intervene in front of the Court of Justice? Which position should the Council Legal Service take and who should decide it? What’s the relationship between Council Legal Service and the legal advisors of the Member States in front of the Court of Justice?

 
The Judgments of the Court of Justice on the RoL Conditionality Regulation
• Full Court Judgment
• Validation or rejection? Choice of the legal basis
• Validation or rejection? No circumvention of article 7
• Validation or rejection? emergency brake
• A different constitutional reading of article 2 TFEU
• A political judgment?
 What do you think of the judgment of the Court of Justice on the Conditionality Regulation? Did it confirm or refute the conclusions of the opinion of the Council Legal Service on the Commission proposal? Focus in particular on the issues of legal basis, relationship with article 7 and with the issue of the “emergency brake” (recital 26 of the Conditionality Regulation). To what extent the Court of Justice went beyond the analysis of the Council Legal Service in its reasoning?

The relationship between law and politics in the EU legal Order. The role of the institutional lawyer
 What is the relationship between law and politics in the EU legal order? Does the judgment of the Court of Justice accommodate political concerns/considerations in its reasoning? If yes, to what extent and how? If no, should have it done differently?

IE Law School | Website | View More Events

Agustina ARes

Contact the organizers