A permanent Polish Advocate-General?

An interesting story on euobserver.com (story in italics, my comments in normal font):

Poland seeks EU court adviser post in treaty talks03.09.2007 - 17:23 CET By Mark BeundermanEUOBSERVER / BRUSSELS - Poland is demanding that it gets a permanent legal adviser to the European Court of Justice (ECJ) - a so-called advocate general - as part of ongoing talks on a new EU treaty. The ECJ currently has eight advocates-general, who are the EU court's highest advisers. Five of them are normally drawn from the EU's 'big five' states Germany, France, the UK, Italy and Spain, with the other three posts rotating between smaller member states.

Poland now wants to be treated on an equal footing with the big five, Polish EU treaty negotiator Marek Cichocki said."In my opinion this is about equal representation of Poland in the different EU institutions. Every country in the EU wants to keep an eye on its own particular issues in the institutions. This is only obvious and natural and this is why Poland wants to have a permanent representative."Before each ECJ ruling, one advocate-general issues a legal opinion, which is not binding, but in practice it is followed by judges in the majority of cases. Warsaw now wants the number of court advisers to be increased from eight to nine, allowing it to have its own permanent post. EU diplomats said Warsaw had raised the issue in Brussels, where member states' legal experts are currently studying a draft of the EU's new Reform Treaty.

In my view, we should look to be reducing the number of A-Gs, not increasing them, since their involvement in cases entails cost and delays and they are generally not necessary -- as proved by their absence from the Court of First Instance, Civil Service Tribunal, and 30% of ECJ judgments. But since cutting the numbers is not on the agenda at the moment, I guess adding just one more is not a tragedy, and it is reasonable enough to argue that Poland should be on the same footing as Spain.

The curious thing here is that Poland has linked this issue to the IGC, whereas the Treaty permits the Council, acting unanimously, to increase the number of A-Gs at any time (the Reform Treaty wouldn't alter this). So it makes no sense legally to ask for this change in the context of the IGC, since a Council decision increasing the numbers could instead take effect immediately and would not be subject to the risk of non-ratification, as the Reform Treaty will be. It may make sense politically though -- ie a Polish threat not to sign or ratify the Reform Treaty unless this further demand is made. Presumably it also makes good domestic politics to make further demands of the EU during an election campaign.

Foreign ministers will meet for a first political discussion on the draft in Portugal later this week. Poland's latest demand comes in addition to earlier concerns it had raised on the treaty draft - particularly on its voting weight in the EU council, member states' decision making body. Poland wants to see a reference in the treaty text to the so-called Ioannina mechanism, whereby it can delay an EU decision if its vital interests are at stake. But most member states only want to have the Ioannina clause mentioned in a separate declaration which has less legal status. "The main issue is the question where this mechanism is included," Mr Cichocki said. "Legally it has a bit lower value when it is put in a declaration. We would like it to be a little stronger." "I believe this will be decided at the political level," he added. Poland already fought hard for its voting rights at a bitter EU leaders summit in June, which saw a head-to-head clash between Warsaw and Berlin before an eleventh-hour deal on the treaty blueprint was reached. Warsaw is now also set to dominate part of the last round of treaty negotiations, which the Portuguese EU presidency wants to wrap up at an EU leaders meeting in October. The Poles are also still considering to opt out from the EU's Charter of Fundamental Rights, following the example of the UK which already secured an exemption from the rights charter at the June summit. Poland's embattled conservative government dislikes the charter for its supposed liberalism on moral issues, but at the same time it is under pressure from trade unions - who support the charter's social rights catalogue - to refrain from the opt-out."This will rather be decided in the last period of the IGC," said Mr Cichocki.

What should happen, in my view, is that the Treaty should provide a legal basis for the Decision on the delay in decision-making. Otherwise the Council Decision is just weird, because what power does the Council have to take it? And what if the Council wanted to amend or repeal it? The Decision should either be referred to in a new para in (say) Article 205 EC, or take the form of a separate Protocol.

As for the Charter, the Poles had explicitly reserved their decision on whether to join the British opt-out Protocol as part of the IGC mandate, so signing up to this Protocol would not constitute a new Polish demand for the IGC. It will look odd, though, that the birthplace of Solidarity will be signing up to a protocol that in particular specifies that Chapter IV of the Charter -- the 'solidarity' provisions! -- cannot raise social standards in national law. The Polish government would probably prefer to target the equality provisions in Chapter III of the Charter -- but I think a demand along these lines would not be well-received by other Member States.