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The Legal Service of the European Commission

J-F Brakeland 26 June 2015

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Article 2 TEU

The Union is founded on the values of respect for … the rule of law…

Article 17 TEU 1. The Commission shall promote the general interest of the Union and take appropriate initiatives to that end. It shall ensure the application of the Treaties, and of measures adopted by the institutions pursuant to them. It shall oversee the application of Union law under the control of the Court of Justice of the European Union. […]. It shall exercise coordinating, executive and management functions, as laid down in the Treaties. With the exception of the common foreign and security policy, and other cases provided for in the Treaties, it shall ensure the Union's external

representation. […].

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Financial Times, 29 January 2004, "The Americas and Europe : Ryanair faces tough fight on EU ruling"

"The Legal Service is seen by rival Commission departments as having

the aura of papal infallibility"

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The 3 tasks of the Legal Service

1) Legal advice for the College

"solicitor" vs. "council of state"

2) Legal representation of the Commission in litigation :"barrister"

3) Quality of legislation in 24 languages

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Organisation Chart

The organisation of the Legal service

1) Central service, directly reporting to the President

2) Very light hierarchical structure

3) 12 teams but no silo mentality : compulsory rotation, linguistic agent in litigation

4) 185 + 52 =237 lawyers

5) Exchanges of staff with the EU Courts (judges, law clercks)

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Task 1 : Legal advice and supervision

Key principle 1: "The Legal Service shall be consulted on all drafts or proposals for legal instruments and on all documents which may have legal implications." Art.23(4) RoP

Key principle 2 : only the Commission acting by oral procedure can overrule a negative opinion from the LS

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ORDER OF THE COURT in case C-445/00 Austria v. Council of 23 October 2002 (ecopoints)

2. In Annex 3 to the application, the Republic of Austria produced an Opinion dated 11 April 2000 relating to the contested Regulation, which the Commission's legal service had sent to that institution's Directorate-General ‘Energy and Transport’ (hereinafter ‘the Legal Opinion of 11 April 2000’).

12. It would be contrary to public policy, which requires that the institutions can receive the advice of their legal service, given in full independence, to allow such internal documents to be produced in proceedings before the Court unless such production has been authorised by the institution concerned or ordered by that Court.

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Task 1 : Legal advice and supervision

In 2014 the Legal Service worked on 14861 inter-service consultations of which 1820 were also examined from a legistic point of view by the « Quality of Legislation » team.

The Legal Service is also consulted on draft replies to : • the Ombudsman : 135 • Petitions : 1053 • Parliamentary Questions : 10414

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Task 1 : Legal advice and supervision

7385 CIS-Net consultations in 2014

186 fast-track

For 48% of the consultations (3605) the Legal Service gave its agreement

For 3565 consultations the Legal Service gave a favourable opinion subject to comments being taken into account

Only 29 consultations received a negative opinion

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Task 2 : legal representation

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Task 2 : Legal representation of the Commission

Commission decision of 8 July 1959

The Legal Service is the only entity authorized to represent the Commission before the Courts :

1) the three jurisdictions of the Court of Justice

Court of Justice, General Court, Civil Service Trb

2) national courts (amicus in competition cases)

3) international courts (mainly WTO)

4) investment arbitration (amicus in state aid)

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Task 2 : Legal representation of the Commission

Formal College decision to bring a case or to appeal

NOT when defendant in General Court /Court of Justice OR for "preliminary references" from national courts before the Court of Justice

LS members are "agents of the Commission"

The Commission follows the language of the case ("linguistic agent")

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Workload of the Union Courts

Data on 2 June 2015

Cases pending Commission active

Court of Justice 820 715

General Court 1421 836

Civil Service Tribunal 255 144

Σ 2496 1695

The Court of Justice

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The tasks of the Court of Justice

control on national law

- cases against Member States (infringement 258)

- preliminary rulings on interpretation 267

control on EU law

- preliminary rulings on validity 267

- interinstitutional litigation 263 (including opinion on envisaged international agreements (218§11)

- "appeals" from GC (not on facts !)

=> More a Constitutional Court

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Workload of the Court of Justice (completed cases)

2010 2011 2012 2013 2014

References for a preliminary ruling 339 388 386 413 476

Direct actions 139 117 70 110 76

Appeals 84 117 117 155 157

Appeals concerning procedure 4 7 12 5 1

Opinions of the Court 1 1 2

Special forms of procedure 8 8 10 17 7

Total 574 638 595 701 719

Preliminary rulings

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Opinion 2/13 (ECHR) of 18 December 2014

176. In particular, the judicial system as thus conceived has as its keystone the preliminary ruling procedure provided for in Article 267 TFEU, which, by setting up a dialogue between one court and another, specifically between the Court of Justice and the courts and tribunals of the Member States, has the object of securing uniform interpretation of EU law (see, to that effect, judgment in van Gend & Loos, EU:C:1963:1, p. 12), thereby serving to ensure its consistency, its full effect and its autonomy as well as, ultimately, the particular nature of the law established by the Treaties (see, to that effect, Opinion 1/09, EU:C:2011:123, paragraphs 67 and 83).

Preliminary rulings by Member State (2004-2014)

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Infringements

At the end of 2014, 1609 infringement cases open by the Commission

1.Letter of formal notice : 605 sent in 2014

2.Reasoned opinion : 194 sent in 2014

3.Referral to the Court of Justice : 40 sent in 2014

April 2013 21

Infringements : all 1609 open infringement

cases on 31/12/2014 by Member States

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Infringements : all 1609 open infringement

cases on 31/12/2014 by sector

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The General Court

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The task of the General Court

control on EU law = cases involving action by private parties (+ MS) against EU institutions

(annulment 263, failure to act 265, damages 268)

=> More a classical administrative court, looking at facts and law

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Workload of the General Court (new cases)

2010 2011 2012 2013 2014

Actions for annulment 304 341 257 319 423

Actions for failure to act 7 8 8 12 12

Actions for damages 8 16 17 15 39

Intellectual property 207 219 238 293 295

Arbitration clauses 9 5 8 6 13

Appeals CST 23 44 10 57 36

Appeals concerning procedure 1 1 1 0 0

Special forms of procedure 77 88 78 88 93

Total 636 722 617 790 912

March 2015 27

Litigation before the three formations of the Court of Justice of the European Union

Statistics extracted from the Legal Service "base Contentieux"

WON, 74%

LOST, 10%

PARTIALLY, 8%

NON APPLICABLE, 7%

March 2015 28

Litigation before the Court

Statistics extracted from the Legal Service "base Contentieux"

WON, 84%

LOST, 8%

PARTIALLY, 6% NON APPLICABLE, 1%

March 2015 29

Litigation before the General Court

Statistics extracted from the Legal Service "base Contentieux"

WON, 55%

LOST, 13%

PARTIALLY, 11%

NON APPLICABLE, 20%

March 2015 30

Litigation before the TFP

Statistics extracted from the Legal Service "base Contentieux"

WON, 53%

LOST, 29%

PARTIALLY 12%

NON APPLICABLE, 6%

Questions ?

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