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Laurent Pech @ProfPech
, 8 tweets, 11 min read Read on Twitter
#Article7 proceedings against Hungary update: The mysterious Council Legal Service (CLS) opinion – a short story in 4 Acts

cc @Verfassungsblog @judithineuropa @Claude_Moraes
@Verfassungsblog @judithineuropa @Claude_Moraes Act I: having activated Article 7(1) TEU against Hungary last September, @Europarl_EN (EP) formally requested last October to be involved in the same way Commission is involved in Polish Article 7(1) file as Article 7(1) activating authority
@Verfassungsblog @judithineuropa @Claude_Moraes @Europarl_EN Act II: It was reported by @eszterz that EP’s formal involvement was refused on back of a CLS opinion finding that such involvement would (allegedly) be incompatible with EU Treaties: euobserver.com/political/1433…
@Verfassungsblog @judithineuropa @Claude_Moraes @Europarl_EN @eszterz Act III: Wishing to know the details of the CLS’s legal reasoning I submitted a FoI request on 30 October 2018 asktheeu.org/en/request/cls…
@Verfassungsblog @judithineuropa @Claude_Moraes @Europarl_EN @eszterz Act IV: Finally got a reply on 14 Dec and surprise, surprise, the Council (DG Communication and Information) not aware of any CLS legal opinion which was however used by same Council (GAC) to refuse formal involvement of European Parliament in Article 7 discussions re HU…
@Verfassungsblog @judithineuropa @Claude_Moraes @Europarl_EN @eszterz Possible explanation: CLS opinion only shared orally which is convenient as in absence of any written record no one can assess its (doubtful) merits…

As for disclosed CLS note of 28 July 2017 (before EP activation!)
it just offers a 4p purely descriptive account of Article 7…
@Verfassungsblog @judithineuropa @Claude_Moraes @Europarl_EN @eszterz Reminder: CLS has shown a rather striking inclination to adopt unhelpful if not extremely poorly reasoned (confidential) legal views when it comes to upholding #ruleoflaw in the EU
verfassungsblog.de/never-missing-…
@Verfassungsblog @judithineuropa @Claude_Moraes @Europarl_EN @eszterz Speaking of which recently heard back from Council re my request to publicly release this CLS opinion. Suffice it to say I am not in the slightest convinced by any of the arguments put forward so will have to submit confirmatory application

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More from @ProfPech see all

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In the absence of full text of ruling for time being (as far as I can see) a quick thread based on the (comprehensive) ECJ press release

#RuleofLaw #Poland
1/ Two most important features of ECJ VP order: its *immediate* suspensive effect re rules on forced retirement of SCt judges & its *retroactive* effect re SCt judges already dismissed on basis of these rules
2/ On the + side (that is if you believe in the #ruleoflaw): all previously “purged” SCt judges must be reinstated + current First President of SCt must remain in place (as per the Polish Constitution one may add)
Read 8 tweets
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Recently released new #Article7 @EUCouncil document in which Polish government's dishonest explanations accompany a misleading Powerpoint - doubt Council members have ever been confronted with such obviously deceitful material/behaviour before
@EUCouncil I mean come on... The Polish government's White Paper contradicts (not to mention multiple public statements made) the Polish government's "explanations" given to Council members
@EUCouncil No doubt community of judges/legal professionals will be impressed by original points made by Polish gov's legal eagles whereby judgments can be effective without being implemented or published but not enforced because of a Gov "annotation" denying their lawful/binding nature...
Read 4 tweets
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Just finished reading the Polish government’s non-paper on “judiciary regulations” revealed and critically analysed by @oko_press last Friday: oko.press/praworzadnosc-…

Thread (possibly long) to follow

#Poland #RuleofLaw #Article7
2/ My diagnosis in a nutshell: so-called "non-paper" is as ridiculously misleading as so-called “white paper” on so-called “reform” of Polish judiciary from last March



#TakingUsForFools (version 2.0)
3/ The silver lining: @TimmermansEU did not fall for so-called “changes” & “concessions” or "compromises" offered by Polish authorities which can be *at best* described as cosmetic or meaningless
Read 21 tweets

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This account is still at it spreading untruths (and Tory ones at that, ironically) about an Art50 extension and the EP elections. As he well knows, EU law makes specific provision to deal with this eventuality, and it is not a legal obstacle.
In case of doubt BTW, here’s the ex head of the Council Legal Service, drafter of large parts of several EU treaties, and author in EU law’s view.
Read 3 tweets
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The Walloon Solution, codicils, the Danish-Dutch fix -- what on earth does all this have to do with Brexit?

Here's my (probably futile) attempt to explain
The challenge: Theresa May needs a legally binding reassurance on the Northern Ireland backstop that does not actually change Britain's exit treaty.
The Danes faced this problem in 1992 when they voted down the Maastricht treaty.

With (a little) help from the Brits and some nifty footwork from @piris_jc a creative solution was found.

(@OleRyborg says it was first written on a copy of the FT during a Brazil-Norway flight)
Read 17 tweets
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1/ A few points about what to look for in this Advocate-General (AG) opinion coming next Tuesday.

First of all, AGs' opinions are not binding - so any headline that reads 'EU court says X' will not be accurate. The judges usually agree with the AG opinions, but you never know.
2/ The AG opinion will have to deal with the question of whether this case is hypothetical, because the UK govt has raised it. CJEU case law accepts that some cases are hypothetical, but defers a lot to national courts' assessment that they need answers to questions about EU law.
3/ Even if the AG agrees with the UK that this case is hypothetical, the usual practice in AGs' opinions is to discuss the merits of the arguments anyway in the alternative, in case the judges don't agree that the case is hypothetical.
Read 7 tweets
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1/ This article is paywalled, but I have also seen a leaked copy of this Council legal service opinion on whether EU legislation can sanction Member States financially for breach of the rule of law. Here's my summary.
2/ The Commission proposal is for legislation on general rules governing EU finances, which would allow for financial penalties if the rule of law is deemed to be infringed. In the view of the legal service, this is too broadly defined, & risks overlap with the Article 7 process.
3/ The legal service does however think that a much narrower version of this proposal could be OK legally.

Remember though: this is just a legal opinion. The Council legal service wins some cases in the EU courts. and loses some.
Read 5 tweets
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#Hungary’s filed its doomed claim that 2/3rds of MEPs actually voting doesn’t meet requirement of votes cast.
To condemn a Member State for endangering democratic values, EU Parliament motion needs support of a majority of *all* MEPs, and 2/3rds of those actually voting. >
Hungary’s case is first time CJEU has to interpret law on art 7 TEU procedure. There’s a special article - TFEU 269 - for this. >
Read 5 tweets
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This, from last year, is a summary by the ex-head of the Council Legal Service on some of the legal and political aspect that make an EEA type Brexit, however superficially attractive, hard to see as a politically sustainable solution. 1/
It didn't, of course, have to be this way. Had UKGov either pledged to pursue EEA (+CU, as would have been necessary for IE/NI border) from the start, and had spent the pre-Art50 phase managing expectations and selling that outcome, it may have been different. 2/
You can imagine a situation, for example, where a cross-party commission or similar was set up with the objective of finding the least damaging form of Brexit, or a UK Gov stating that the least damaging and disruptive form would be the one they pursued 3/
Read 12 tweets

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