Päivi Leino-Sandberg

Päivi Leino-Sandberg © Fenna Jensma

‘European Council’s legal service more powerful than most member states’

Finnish professor of European law Päivi Leino-Sandberg has written a book about the invisible players in the Brussels equation: the legal advisors of the EU institutions. They are indispensable in the legal underpinning of further steps in European integration. However, according to Leino-Sandberg, they do not serve the general interest but rather their employer’s: the EU institution.

​In April 2020, Finnish professor Päivi Leino-Sandberg already predicted the direction in which the discussion on European corona aid to the Member States would head. She quickly took a screenshot of the joint website of the European Council and the Council of the European Union, the two most powerful EU institutions.

That was just as well; soon after, the text she took screenshots of appeared to have been removed. What it stated is not compatible with the decision made by European leaders in June 2020 to finance a billion-dollar fund by having the European Commission issue debt obligations.

‘Something that has been considered illegal until 2020, actually became legal,’ Leino-Sandberg (45), professor of Transnational European Law at the University of Helsinki, said during a conversation with Follow the Money in the lobby of a hotel in Amsterdam.

The EU budget is based on the principle that income and expenditure should always be balanced

Before the pandemic, the issuing of debt obligations was not allowed according to everyone’s interpretation of the EU treaties. This was also clearly stated on the website, of which Leino-Sandberg made a screenshot. It explained that the EU has a budget based on the principle that income and expenditure should always be balanced. That principle, the website stated, ‘prevents the European Union from issuing debt to finance itself’.

The European Commission had a similar text on its website: ‘The EU cannot borrow to finance its budget.’ Former Bulgarian European Commissioner Kristalina Georgieva, responsible for budget matters, also conveyed this message in 2015.

‘Georgieva said it cannot be done. And now it can be done,’ Leino-Sandberg says. Ever since the founding of the European Economic Community in 1957, the European treaties have required the European budget to be ‘balanced’. This has always been interpreted as meaning that the Commission cannot borrow to balance its budget. ‘The only actual change that happened was in Merkel’s position.’

​Leino-Sandberg is critical of the way in which the national parliaments of the Member States have been lured into agreeing to this new interpretation of the EU Treaty. ‘The day before the decisive vote in the Finnish Parliament, the responsible commissioner tweeted, in fluent Finnish, that of course, it is obvious to everyone in the Commission that this is an exceptional package which will never be repeated. This was an absolute decisive point for the Finnish Parliament. But the day before, he was in the European Parliament, where he quite openly stated that the Commission is looking into options for turning this vehicle into a permanent mechanism.’

Does this adaptation of the message, dependent on the audience, annoy you?

‘It makes me tremendously angry. Not only as an academic but as a citizen as well. This is not a decent way of policy-making. I don’t want to be lied to. There are good reasons to support fiscal integration. But I want it done properly, through an open debate, based on justifications that carry beyond the acute crisis.’

It was explained the same way in all the northern states: ‘This is just a covid measure.’ That is not true

All national parliaments have ratified the decision. Thus, they have approved this new interpretation of the EU Treaty.

‘This is indeed given as the justification. But look at the level of pressure exerted on our parliament to ratify it – it was enormous. It was explained the same way in all the northern states: ‘This is just a covid measure.’ That is not true. It is going to have vast consequences. We have now agreed that the EU has the competence to engage. Thus, it is now a part of the EU toolkit.’

Could this fuel Euroscepticism?

‘Yes! I especially follow the discussions in the Nordic states, where the opposition against the EU is enormous. This is exactly what feeds them. The argument that the EU is unable to live up to its own treaties and that it oversteps its own powers is exactly what fuels these debates. And indeed, that is dangerous.’

The Council Legal Service played an important role in convincing parliaments. The influence and working methods of Europe’s legal advisers are the subjects of Leino-Sandberg’s recently published book The Politics of Legal Expertise in EU Policy-Making (Cambridge University Press). They play a crucial but underexposed role in European integration.

‘The Council Legal Service definitely has more power than any individual member state,’ says Leino-Sandberg. ‘Well, maybe except for Germany or France.’

She herself worked as a legal advisor to the Finnish government for ten years.

‘I often felt powerful,’ she says. She regularly received questions from a minister who wanted to know whether something was legally feasible. The legal advisor then presents various options. The politician ultimately decides, but the advisor can steer and frame the decision.

These legal advisers do not offer a neutral view of the legality of a proposal or decision

The insight gained from her book is that these advisers do not offer a neutral view of the legality of a proposal or decision. This is already evident from the fact that the Council, the European Commission and the European Parliament each have their own legal services, who regularly disagree. One clear message from her book is that legal advisers serve their employer – the EU institution for which they work – and not the public interest. She writes that ‘legal advisers see their role more as enabling institutional agendas and finding solutions rather than safeguarding Treaty limits’.

Nevertheless, legal opinions are used in political debates as independent and unambiguous. The legal opinion on the recovery fund, in particular, came in handy for ministers to brandish in parliamentary debates. ‘The fragile legal structure of the Next Generation EU risked becoming a liability in some national political debates, so it was useful for the Member States to have an outside legal authority to refer to,’ she writes.

How did the legal advisors you interviewed for your book feel about being instrumentalised in this way?

‘They offer a formal reply: “We are not the Court. We are just civil servants. It’s one opinion. Yeah, sure, you can challenge it.”’

Perhaps they do not take the unintended negative consequences of their work into consideration?

‘No, and very often they don’t think about consequences at all, beyond approval. They think that yet another regulation is automatically a good thing, because it creates new tasks for the EU and gives new power to the institution that they serve. I think their commitment is very genuine, and much of their work is good and important. What I am worried about is their narrow mindset.’

In her book, Leino-Sandberg describes how she tries to access legal advice using the European Freedom of Information Act. She frequently meets a wall of resistance. Subsequently, the legal service employees are also the ones who appear before the European Court of Justice on behalf of EU institutions. That is why Leino-Sandberg writes ‘that it is important to understand that the real protagonists in these battles are not the institutions’ political leadership but the legal advisers working for them, who draft the institutional positions and defend them before the Court.’ The Finnish professor experienced this first-hand (see frame).

Leino-Sandberg versus the European Parliament

During her research on the role that legal services play in disclosing documents, Päivi Leino-Sandberg herself became part of European case law. In 2018, she challenged the decision of the European Parliament to not disclose a document by going to the Court of Justice. At issue was a letter from the European Parliament rejecting a FOIA-request from Emilio de Capitani. The Italian wanted to know how EU institutions negotiate legislation behind closed doors (in so-called trilogies). De Capitani had already posted the letter from Parliament on the Internet, yet Parliament refused to provide her with a copy. The case was referred back to the General Court of the European Union early this year.

Leino-Sandberg filed a second case against the Council of the EU last October. She wanted access to documents on a revision of the European legal framework for information on the environment. The Council denied her request, saying that disclosure could jeopardise the revision by exerting ‘external pressure’ on the Council.

‘What is my role as an academic in society if I am not allowed to debate the solidity of legal solutions before they are implemented? That justification is what provokes me the most – that I shouldn’t have it because I am exercising pressure. That is an argument I am going to challenge.’

Read more Fold in

‘The highest courts of the Union have repeatedly ruled that EU institutions are obliged to make legal opinions on legislative proposals available to the public. ‘And yet they do not do it.’

Isn’t that frustrating?

‘It is extremely frustrating. I think the political level should intervene, but of course, in the Council, there is no political level that controls the legal advisers, or maybe we’ve even reached the point that it is not considered to be a problem. The political level in many states would agree that citizen input is a bother.’

So essentially, Merkel should have demanded this transparency?

‘Absolutely. Otherwise, it’s not going to happen.’

How do you explain the fact that the European Commission does not comply with the legal obligation to make legal opinions public in principle?

‘The European Parliament will tell you that it is the most transparent institution on the planet’

‘They put a huge effort into protecting the internal discussions in the Commission. They have systems for document tracking so that in case of a leak, it’s possible to check who the culprit was. That all comes from the notion that it is a collegial body, and we shouldn’t know of any internal differences of opinion.’

And the European Parliament?

‘In Parliament, it’s different. They will tell you that they are the most transparent institution on the planet. But no other institution has such a narrow definition of what counts as a document: only documents formally registered in the parliament system, derived from the political bodies in the parliament – which leaves out everything that individual MEPs do. The claim that the European Parliament is transparent has gained much ground, but it is not backed up in practice.’