Council to appeal the Pech judgment

Institution’s step comes after its Legal Service advices member state ambassadors to initiate proceedings, on grounds left invisible to the public.

They’d rather not have their expenditure of EU funds checked for rule of law breaking elements.

On 26 May, Coreper gave the green light for the Council to appeal the General Court’s ruling in the Pech v Council case, opening the way for it to bring proceedings. Under the Statute of the Court of Justice, the Council has two months upon the notification of the Court’s decision to bring an appeal, a term that in this case lapses on 2 July. The case has not yet been registered by the Court of Justice.

The Pech case was brought by a professor of EU law based at London’s Middlesex University, who in 2018 sought access to the Council Legal Service’s advice on a Commission proposal to attach rule of law conditionality to the EU’s Multiannual Financial Framework (MFF). At the end of 2020, this proposal became the centre of a tense standoff between Hungary and Poland, who opposed the draft law, and the other EU member states. In April of this year, the General Court rejected the Council’s arguments against disclosure of the legal advice.

The Council Legal Service discusses the General Court’s judgment in a publicly accessible analysis intended for the internal decision call on whether to appeal or not. However, the part of the document containing the Service’s reaction to this judgment is suppressed in its entirety. Hence, little is known of the Council and its Legal Service’s motives to contest the ruling. Notwithstanding, from previous access case law, including Turco, Besselink, In ‘t Veld v Council, and the so-called Tobacco cases, we know that the transparency of legal advice is a particularly sensitive issue for the European institutions. It often is withheld in access requests, but also frequently leaked to specialist media outlets.

Meanwhile, Hungary and Poland in March lodged a case against the rule of law conditionality law on grounds of a lack of competence for the EU, in a case that is widely believed by EU law experts to constitute an act of electoral posturing with little legal merit. The European Parliament moved swiftly to request the Court of Justice to deal with the case in an expedited procedure to clear the road for the earliest possible implementation of the instrument.

Last Friday, the European Parliament furthermore decided that it would bring legal proceedings against the Commission under article 265 of the TFEU. The Parliament considers for the Commission’s inaction on the conditionality law a failure to act, thereby breaching its obligations under the European Treaties. The deal is supported by all the self-styled “pro-European groups” in the Parliament and was brokered by its lead negotiator on the conditionality law, MEP Daniel Freund.