Inside the European Commission: a view on the Commission’s Legal Service

Mr Felix Schatz was Legal Officer in the Unit “Free movement of workers and coordination of social security schemes” of DG Employment, Social Affairs and Inclusion and Secretary-General of the Administrative Commission. However, Felix moved to the Legal Service of the European Commission in mid-April to take up new responsibilities there. He was prepared to give us some background information about the organisation and role of this Commission service, specifically with regard to EU social security coordination.

trESS: Mr Schatz, thanks a lot for your time. You moved from the Commission’s Unit dealing with social security coordination to the Legal Service of the Commission. How has this changed your daily business?

Felix Schatz (FS): The most important change is probably that I am no longer in direct contact with citizens and national administrations. The colleagues in the social security coordination unit deal with a lot of correspondence and complaints from citizens. They are also in direct contact with the national administrations, most importantly at the meetings of the Administrative Commission. In the Legal Service, our "clients" are the other services of the Commission. Normally, the only occasion on which the Legal Service interacts with the outside world is in court.

trESS: Can you tell us how the Legal Service of the European Commission is organised?

FS: The core business of the Legal Service is handled by twelve thematic teams of lawyers which are headed by a Principal Legal Adviser – in the Legal Service the equivalent of a Director. Social security coordination for example falls within the competence of the team for employment, social affairs, education and culture and health and consumer protection. The Members of the Legal Service all have a number of areas of law for which they are competent. In this area, they are responsible for replying to consultations received from other Commission services. However, they also act in other areas of law when their linguistic knowledge is required: the Commission – just like the other institutions of the Union – have to use the language of procedure in proceedings before the Court of Justice of the European Union. That is why the Members of the Legal Service also handle court proceedings concerning other areas of law in their mother tongue.

There are also some fifty Legal Revisers in a quality of legislation team. Their task is to revise legislative proposals linguistically and as regards the legislative technique. The coherence of the Legal Service's actions is ensured by the Director-General and his two assistants, together with a Deputy Director-General who is responsible for infringements, information and quality of legislation. The Legal Service falls within the portfolio of the President of the Commission.

trESS: What is the exact role of the Legal Service, particularly in the field of social security coordination?

FS: The role of the Legal Service in the field of social security coordination is not very different from most other areas of law. The Legal Service must be consulted on every legislative proposal and on every question that has legal implications. In practice, the Legal Service's agreement is required for every proposal for procedural steps in infringement proceedings (letters of formal notice, reasoned opinions, referrals to the Court of Justice and closure), for replies to written questions from Members of the European Parliament and for the Commission's observations on petitions from citizens to the European Parliament. The Legal Service must also be consulted on every new question of law, for example when this arises in the course of handling a complaint from a citizen. The Legal Service is the only body which is competent to represent the Commission in legal proceedings, be it at European or national level. Therefore, the Legal Service drafts applications to the Court of Justice in infringement proceedings and – with the input from the colleagues in the DG – the Commission's observations on references for a preliminary ruling to the Court of Justice.

trESS: The Legal Service cannot give legal advice to citizens. How would you describe the importance and added value of this department within the broader framework of the free movement of citizens?

FS: I do not think that the Commission's actions in this field cannot really be attributed either to the colleagues in the social security coordination unit or to the Legal Service. It is true that it is the Legal Service which acts in court proceedings and that the colleagues in the DG primarily deal with citizens and the national administrations. But all of this happens in close collaboration. For example, observations submitted by the Legal Service on references for a preliminary ruling are always based on an agreement in line with the colleagues in the DG. At the end of the day, it is the Commission as a whole that is acting in this framework.

trESS: As the Legal Service plays the role of the Commission’s in-house counsel for ECJ cases, there should be an intensive cooperation with the Unit dealing with social security coordination. How does this cooperation work in practice?

FS: There are indeed very good working relationships with the colleagues in the social security coordination unit. Whenever problems arise, we just pick up the phone and discuss them openly. As I already said, the Legal Service usually acts on the basis of drafts prepared by the colleagues in the DG. Colleagues are closely associated when final drafts for applications to the Court of Justice in infringement proceedings and for observations on references for a preliminary ruling are prepared. They come along to Luxembourg as experts to support the Legal Service if there is a hearing.

trESS: One of the key prospects of the European Union, and the Commission in particular, is “better lawmaking”. How is this achieved?

FS: Over the last decade, the Commission has continuously stepped up its efforts to ensure that regulation at EU level is of the highest quality possible. The Commission's 2002 Communication with an Action plan "Simplifying and improving the regulatory environment" led to the conclusion of the Inter-institutional Agreement on better law-making in 2003. In 2005, the Commission created a follow-up to the Action plan in its Communication on Better Regulation for Growth and Jobs in the European Union. The Better Regulation programme included a mix of different actions, most importantly the introduction of a system of impact assessment for Commission proposals, the consultation of citizens and stakeholders in the process and the implementation of a programme of simplification of existing legislation. Stakeholder consultations and impact assessments have increased transparency and accountability, and have promoted evidence-based policy making. As you will know, stakeholder consultations and an impact assessment for a revision of the rules on unemployment and long-term care benefits have just been completed or are currently on-going.

The Commission's 2010 Communication on Smart Regulation in the European Union takes it a step further and looks at the whole policy cycle, from the design of a piece of legislation to its implementation, enforcement and evaluation, to its revision. A central element of Smart Regulation is the evaluation of benefits and costs of existing legislation. A number of "fitness checks" are currently on-going for selected policy areas. They are not limited to one single piece of legislation but look at the whole policy area. Next to the reinforcement of impact assessments and stakeholder consultations in the design phase, the Commission puts particular focus on facilitating the implementation of EU law. Late 2012, the Commission adopted a Communication on EU Regulatory Fitness, which generalises the "fitness checks" that were initiated in selected pilot areas. The Regulatory Fitness and Performance Programme (REFIT) will identify burdens, inconsistencies, gaps and ineffective measures.

trESS: As regards social security coordination and the legal instruments involved, can you explain us why there is a basic regulation (Regulation 883/2004) and an implementing regulation (Regulation 987/2009)? In other words, why can the provisions of both regulations not be combined in one single instrument?

FS: There is in fact no compelling legal reason for having two separate regulations with basic and implementing rules on social security coordination. From a legal point of view, they could very well be combined into one single instrument. There is no clear hierarchical relationship between them. The basic regulation does not as such trump the implementing regulation.

I think there are two reasons why this seemingly obvious simplification was not done. First, there is the history of social security coordination. Since 1958, when Regulations 3 and 4 were adopted, we have had two regulations. Regulation 3 was adopted by the Council of the European Economic Community in 1958 but was in fact very closely based on the European Convention on Social Security for Migrant Workers signed in Rome on 9 December 1957 by the then six Member States under Article 69(4) of the ECSC Treaty. That Convention needed implementing rules – that is why Regulation 3 also needed such implementing rules.

The second reason is a political one: it seems easier to first focus on principles and then look at the details – certainly at the time before the entry into force of the Treaty of Lisbon when unanimity in Council was still required for social security coordination. Just think about the famous "parameters" which de-blocked negotiations on what later became Regulation 883/2004. Postponing the discussions on a number of issues to a second legal instrument on implementing rules probably allowed advancing more quickly on the basic rules.

trESS: To conclude, is there a past ECJ judgement – and you can go back to 1958 – you would have really liked to deal with as a lawyer in the Legal Service?

FS: That is a difficult one! If I had to choose a case which I would be proud of having achieved the outcome, then maybe a great classic like the Cassis de Dijon case could be my choice. What I like about that judgement is how it shows that EU law often serves to discard irrational arguments used in national law-making. But if you are hinting at a case where I would have liked to argue for a different outcome, I would go with the appeal in Unión de Pequeños Agricultores. On a very much personal level, I think that Advocate General Jacobs was right and that the line of reasoning pioneered by the Court of First Instance in Jégo-Quéré should have been followed.

trESS: That is clear. Thank you, Mr Schatz!

 

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