The Greek Advisory Model
In the Greek legal system, the institutional bodies entrusted with advisory powers differ considerably in terms of the concentration of powers and responsibilities. In contrast to the Cypriot institutions of the AG and Law Commissioner that are personified in the holders of the positions, the Greek model has opted for impersonal and collective institutions.
The existence of different models in the two legal systems is, of course, the result of the different historical and normative settings that have influenced the development of the systems and the constitutional perceptions that continue to influence them. Additionally, the adoption of different methods must also be understood as a corollary of the different forms of government in the two countries.[379] It is submitted that, while the Greek model does not represent a prototype to be transplanted in the Cypriot legal order in tackling its isolationist approach in relation to bodies entrusted with constitutional advice, it can serve as a point of reference for opening up the debate due to its broad influence in public law in general.6.4.1 The Legal Council of the State: Origins and Main Competences
In Greece, the institution entrusted to provide legal advice on constitutional matters is the Legal Council of the State (or LCS),[380] an institution envisaged in Article 100A of the Greek Constitution, following the extensive 2001 constitutional revision. However, the institution of the Greek LCS predates the 2001 revision and has a long history in the Greek legal order. Specifically, the first version of a legal advisor to and litigator for the State was established by royal decree in 1835, at the time when the Minister of Finance—who was responsible for the legal defence of the State and the initiation of legal proceedings in favour of the Hellenic State—could assign such legal representation to a competent employee.[381] Following numerous adaptations as to the exact form and nature of the body,[382] the office of Consulting Director (to the Ministry of Finance) of the Legal Department was established in 1867, entrusted with the representation of the State in legal proceedings and performing the duties of legal advisor/counsellor of the Ministry of Finance.[383]
By 1882, the increased demands for legal advice to other ministries led to the appointment of seven additional legal counsellors placed at the ministries of Finance, Internal Affairs, Education, Foreign Affairs, National Defence, Justice and Commerce; together forming the collective body of the ‘Council of Legal Counsellors’, that is considered the predecessor of the LCS.[384] In 1935, a relevant law set the ‘Legal Council of the State’ as a public body exercising government function, and that is under the general command of the Minister of Finance.[385] The LCS took its final form during the period of 1961-1982, when the LCS was responsible, inter alia, for the legal support and representation of the State and for providing legal advice and guidance to the administration.
Interestingly, the LCS was abolished as a collective body during the period 19821990, and was replaced by distinct legal departments that were established in every ministry, with the mandate of providing legal recommendations, legal services and legal advice to the respective minister.[386] The re-emergence of the LCS as a collective body took place in 1990,[387] with the imposition of additional competences, such as the representation of the State before the ECJ and the ECtHR.[388] Subsequently, and by virtue of a presidential decree, the Organization of the LCS was established, which proclaimed the body as a higher, unitary and independent authority, under the direction of the Ministry of Finance.[389]
As already explained, the current LCS is the result of the 2001 revision of the Greek Constitution and the addition of Article 100A. According to the said article, the competences of the LCS pertain mainly to ‘the judicial support and representation of the State and the recognition of claims against the State or the settlement of disputes with it’. In other words, the LCS acts the Hellenic State’s official legal advisor and litigator. Moreover, Article 100A is an enabling clause, in the sense that it authorizes the adoption of further legislation for the regulation of matters relating to the establishment and functioning of the LCS, as well as matters relating to the service status of its personnel.
Accordingly, the Greek legislature implemented Law 3086/2002,[390] stipulating that the Legal Council of the State constitutes a unitary, higher authority of the State that reports directly to the Minister of Finance.[391] The same law breaks down the competences of the LCS, that can be divided into three main categories: (a) legal support and representation of the State before domestic courts and international tribunals (such as the ECtHR, CJEU, ICSID), (b) judicial and extra-judicial settlement of claims against the State, and (c) several advisory tasks, that are analysed below.
Thus, contrary to the Cypriot system, where the independence of the AttorneyGeneral is explicitly safeguarded under the Constitution,[392] based on its competences on national and international level, the Greek Legal Council of State forms a large part of the corpus of the administration,[393] and a ‘quasi-judicial institution’.[394]In terms of staff employment, by the end of 2019, the LCS comprised of approximately 450 legal officers (known as the main personnel), which is assisted by the administrative personnel. The legal officers may hold the following positions (in hierarchical rank): President (1),[395] Vice-President (10), Legal Counsellors of the State (61), senior advisors (134) and legal representatives (234). All legal officers are appointed by the Minister of Finance to the LCS following the successful completion of exams[396] and provided they are lawyers or judicial officers.[397] The personal and functional independence and impartiality of the main members of the LCS are constitutionally secured through the mutatis mutandis application of those provisions that apply for judicial officers.[398] Their independence and impartiality are further guaranteed by the prohibition of carrying out another paid occupation, and the legislative regulation of their remuneration for their services.[399]
Finally, the LCS has a mixed organization system set in Article 4 of the Law 3086/2002. Thus, the tasks entrusted to it are carried out by different departments that function under the general supervision of the LCS President: (a) the Central Service;[400] (b) the Bureaus of Legal Counsels,[401] that are located in various institution, such as the Hellenic Parliament, the Presidency of the Government, in every ministry, in universities, independent authorities, general secretariats, and other legal entities governed by public law; (c) Special Bureaus of Legal Counsels, established under relevant legislation; (d) Judicial Offices, that are located in all major cities of Greece and certain ministries and legal persons governed by public law (such as universities and independent authorities),[402] and; (e) public attorneys.[403]
This hands-on approach, especially of the in situ Bureaus of Legal Counsels and of the Judicial Offices within ministries and public law entities, offer guarantees of specialization, expertise. Most importantly, they guarantee (or should guarantee) the immediate and effective response to the needs of the administration, as well as of the Parliament, and ensure the public interest and the legitimacy of administrative action; features that are missing from the Cypriot model.
6.4.2 The Advisory Role of the Legal Council of the State
As already mentioned, the LCS plays a vital role in providing legal advice to the government and public administration, when such entities are faced with legal uncertainty and submit an official request to the LCS for the issuance of a legal opinion. Specifically, the LCS is empowered to: answer to legal questions addressed to it by the administration provide its legal opinion in relation to domestic and international arbitration proceedings (e.g. proposals for the appointment of arbitrators on behalf of the State in pending arbitration proceedings, acceptance of arbitration awards, etc.); offer legal assistance for drafting bills and regulatory acts; and give recommendations on appropriate legislative measures, in order to protect the public interest.
In general, and in terms of decision-making,[404] the LCS as a collective body acts in Plenary, chambers or three-member committees.[405] Depending on the content, importance and complexity of the legal question raised, decisions are issued by either the Plenary of the LCS, the chambers or three-member committees. While the three-member committees deal mostly with dispute settlements and adjudication of claims, it is the LCS Plenary and the chambers that engage in offering legal advice to the executive and legislature. All decisions are taken by majority of the members present and voting;[406] however, it should be noted that in Plenary and chambers only the LCS President, Vice-Presidents and the Legal Counsellors of the State have a voting right.[407]
In more detail, the chambers give opinions to questions of the Hellenic Parliament, as well to questions of the administration, including legal entities of public law, the legal service of which is carried out by the LCS.[408] The chambers further give their opinion on draft legislation (bills), draft decrees and draft regulatory ministerial decisions, that are send to the LCS for editing.[409] The Plenary of the LCS gives opinions regarding the submission of disputes to arbitration and the appointment of arbitrators,[410] and on questions addressed directly to the LCS Plenary by the President of the Hellenic Parliament or by a Minister, or on questions for which the chambers had already issued an opinion but the opinion was rejected and subsequently referred to the Plenary.[411]
In terms of transparency of the adoption of opinions and recommendations, the Law provides the detailed procedure for the functioning of the Plenary, chambers and the committees.[412] It is important to note that, pursuant to Article 7(4) of Law 3086/2002, opinions issued by the LCS are not binding on the public administration, and do not create any rights for third parties, unless they are endorsed by the President of the Hellenic Parliament, the competent minister, the board or other competent organ of a legal person governed by public law, an independent administrative authority, or the general secretary of the prefecture.
Put differently, the administration becomes obliged to apply the LCS’s legal opinion if the competent administrative organ endorses it, and as a result legal rights for third parties may be generated.[413]In comparison with the Cypriot model, the Greek example of legal advice may appear de-centralized, with the existence of Bureaus of Legal Counsels and Judicial Offices within ministries and public bodies. However, this is not the case as all departments are under the general direction of the President of the LCS and in any case the important legal advice is given by the LCS as collective body, by the Plenary of the chambers.
6.4.3 Other Advisory Procedures
Additional legislation has been implemented by the Greek legislature, with the view of securing general legal advice and legal assistance during legislative drafting by legal offices located within cardinal government positions. In particular, the recently adopted Law 4522/2019,[414] established the Presidency of the Government, within which operates an LCS Bureau.[415] The Presidency comprised of, among others, the General Secretariat of the Prime Minister and the General Secretariat for Legal and Parliamentary Matters.[416] Within the General Secretariat of the Prime Minister operates a legal office that is responsible for the legal support of the Prime Minister.[417]
As for the General Secretariat for Legal and Parliamentary Matters, it offers support to the Cabinet and other collective governmental bodies, with the main mission of ensuring the coherence and coordination of the legislative drafting process and the effective implementation of the principles of ‘good legislation’.[418] In order to achieve its mission, the General Secretariat for Legal and Parliamentary Matters is entrusted with the final editing of bills proposed by the government before their submission to the Parliament, coordinates all actions for the codification and reform of the law, coordinates the implementation of the principles of good legislation, provides legal support to the Prime Minister, the Presidency of the Government and the government (albeit within its competences), cooperates with Parliamentary bodies on issues related to the executive-legislature relations and even carries out all necessary actions for the implementation of provisions on ethics and conflict of interests relating to government officials.[419] The functions of the General Secretariat for Legal and Parliamentary Matters resemble, to a certain extent, particular duties of the Cypriot AG owed to the President (and the Cabinet or Cabinet Members) as head of the government.
Following the editing processes of the bills by the General Secretariat for Legal and Parliamentary Matters (in cooperation with the Cabinet), the bill is then scrutinized by the Quality Evaluation Committee of the Legislative Drafting Process. This Committee was established under Article 64 of Law 4622/2019 as an independent, interdisciplinary, advisory body. It evaluates and provides opinions to the General Secretary of Legal and Parliamentary Matters on the implementation and observance of the principles of good legislation in the context of bills, draft regulations, etc.[420] Specifically, the Committee examines the constitutionality of the proposed bills and their compatibility with international and EU law, as well as with the ECHR. Furthermore, it examines the compatibility of the proposed texts with existing legal provisions and the completeness of the proposed draft texts, in relation to repealed or amended provisions.[421]
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