The organisation and functions of the Office of the Legal Adviser in the Ministry of Foreign Affairs

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Database of the CAHDI "The organisation and functions of the Office of the Legal Adviser in the Ministry of Foreign Affairs" - contribution of Italy - 01/09/2015

1. What is the title, rank and position of the Legal Adviser?

(September 2015)

The Legal Adviser is officially called “Head of the Service for Legal Affairs, Diplomatic Disputes and International Agreements.” He/she holds the position of a Director-General. The position is assigned to a career diplomat, normally holding at least the rank of Minister Plenipotentiary. Since the reform of the Ministry (Presidential Decree No. 95/2010), there is no recruitment from outside the Ministry (an innovation from the previous period, as until 2008 the position was held either by a Full Professor in International Law or a State Attorney).

2. What are the principal functions of the OLA?

The reform of 2010 renovated the Office of the Legal Adviser according to the perceived needs for a broader range of activities. While in the past the Office ranked as Unit - attached to the Secretary General - dealing with Diplomatic Disputes and International Agreements, since 2010 the Office is renamed as “Service for Legal Affairs, Diplomatic Disputes and International Agreements”.

The functions of the Service are:

- to support the Minister and the Directorates General of the Ministry in providing legal assistance in matters related to public international law, European Union law and domestic law;
- research activities on legal matters concerning international relations;
- to provide legal assistance for the negotiations and the signature of international agreements and to follow the procedure for their approval and ratification;
- to collect the treaties, being the depository of international agreements for the Republic of Italy;
- to collaborate with the Agents of the Government before international courts, including the Agents for the ECJ and the ECHR;
- to deal with domestic litigation of the Ministry against external subjects (excluding litigation on staff, dealt with by a special office of the Directorate-General for Human Resources) and to be the focal point for contacts with the Attorney General.

3. Please give a brief description of staff employed by the OLA, including overseas staff. What is the distribution of posts between men and women within the OLA and what category of staff do they respectively belong to?

The staff employed in the Service for Legal Affairs could be classified according to three categories: diplomats, administrative staff and experts.

Currently, there are 8 career diplomats (7 men and 1 woman) serving at the Service for Legal Affairs in Rome. While a degree in Law is not necessary in principle, most of the members hold a diploma in legal studies. As for the administrative staff, 21 people (11 men and 10 women) are part of the Service, dealing with tasks ranging from the procedures on treaties (analysis of draft agreements, granting full powers, etc.) and the draft of memories for proceedings involving the Ministry to the activities of the archives and of administration (human resources, secretary).

Experts are divided into several categories: 4 are judges (2 men and 2 women), temporarily assigned to the MFA from the Ministry of Justice; 6 are professors (2 men and 4 women), collaborating with the Service on a voluntary basis in addition to their academic career; on a voluntary basis, a Counsellor of State (administrative judge) also collaborates in the activities of the Service concerning advice for administrative matters. The Service also collaborates with several Italian universities on the basis of ad hoc conventions.

The distribution of posts between men and women is thus 21 to 19.

Some missions abroad (Washington, New York-UN, Brussels-EU, Strasburg-CoE, The Hague, Vienna-OSCE) are also endowed with a legal expert, in most cases a professor or a judge. The rank of the expert (whose post is renewed every two years for a maximum period of eight years) is that of a Counsellor. These experts are not part of the Service for Legal Affairs – although contacts are, necessarily, on a regular basis.

4. Are there any specific recruitment and promotion policies, provisions and/or quotas to ensure non-discrimination and equal opportunities, e.g. for the underrepresented sex, for persons with disabilities or for persons belonging to ethnic or religious minorities or of immigrant origin?

As a general trend, the recruitment of women is improving both in the diplomatic and in the administrative careers. Currently, around 20% of diplomats are women, while women account for 55% of the administrative staff. There are no specific recruitment policies for the underrepresented sex or for disabilities as far as the diplomatic career is concerned. However, for administrative staff posts are assigned to people with special disabilities, according to the relevant national legislation granting favour to these category of workers.

As a general policy, the Ministry encourages application from categories that are underrepresented.

5. Is OLA staff trained on gender equality issues and are these issues mainstreamed into the OLA’s work?

The staff of the Service is trained on gender equality within the activities of the Ministry, according to the programme of the Unit for Professional Updating.

6. Briefly describe the organisation and structure of the OLA.

The Service for Legal Affairs, Diplomatic Disputes and International Agreements is structured into three divisions/offices: the first deals with treaties and international courts; the second with internal litigation concerning the Ministry (excluding litigation on human resources); the third is an office competent for counselling in both domestic and international law.

The organization of the Service could be summarized as follows:

Office I – Diplomatic disputes, international law, assistance to Italian Government Agents to protect national interests in international courts
· legal assistance for negotiation and the signing of international conventions and treaties;
· procedure for the ratification of international conventions and treaties entered into by Italy, as well as collecting and up-dating them;
· deposit and management of multilateral conventions of which Italy is the depositary (e.g. the EU Institutional Treaties);
· collaboration with the Italian Government Agents to protect the rights and interests of Italy before international courts and tribunals, in liaison with the other government departments concerned. The office of the Italian Government Agent before the European Court of Human Rights is also located within the SGCDT; the Service also assists the Agent before the European Court of Justice;
· assistance to the organisation of the Venice Commission’s meetings in Italy;
· collaboration with Public Officials on the admissibility of Foreign Direct Investments from non-EU Countries on the basis of the principle of reciprocity.

As for the Offices of the Agent of the Government before the European Court of Justice and the European Court of Human Rights, it appears opportune to specify the discipline:
- the Agent of the Government before the ECJ is appointed following Law No. 234/2012 (the statute concerning the participation of Italy to the activities on law and policy of the EU). Art. 42 of the Law provides for the appointment of the Agent, that has to be a State Attorney and has to be appointed by means of a Decree by the Presidency of the Council (or the Minister for EU Affairs) and the Ministry of Foreign Affairs. In his/her daily tasks, the Agent is supported by four people that are part of Office I of the Service.
- the Agent of the Government before the European Court of Human Rights is appointed by the Minister of Foreign Affairs only. He/she is supported by three judges, that provide collaboration for the draft of memoires for the cases discussed before the Court, and by two more judges (the “Co-Agents”) that deal with the cases in Strasburg and are located in the Permanent Representation of Italy to the CoE.

The appointment of an Agent of the Government deserves a particular mention. As seen, the method differs between the ECJ and the ECHR. Moreover, since the reform of 2010, the Service for Legal Affairs “collaborates” with the Agents of the Government before international courts. This means that the Service provides assistance to the Agents but that the Agents are a different entity from the Service, having strong links with it but being formally separated from the Ministry. The assistance provided consists in monitoring the disputes in the two Courts and in managing the flow of information to the different Administrations competent for single cases. As for the actual draft of memoires and the defence of the State, the Agent before the ECJ avails him/herself of the expertise of State Attorneys, while the Agent before the ECHR organises the defence by assigning the different cases to the judges working at the Service and in Strasburg.

Office II – Defence of the Ministry in external disputes
This office is organised in order to provide guidance and legal assistance in several matters, such us civil law, administrative law, labour and contract law.
On the basis of the information provided by the relevant offices in the Ministry and abroad this office is responsible for defence of the Administration in lawsuits brought by external parties or in lawsuits brought by the Ministry of Foreign Affairs against external parties.

The officers represent the Ministry in domestic courts for labour litigation, while in civil courts the Office draws on the assistance of the State Attorney, working closely with their central office in Rome.

The main cases dealt with in the Office pertain to disputes, generally, between the MFA and privates: for instance, of employees of Italian Institutes of Culture and the personnel of Italian schools abroad, on the use of the premises of Italian Embassies (and related works) and on the personnel hired on a temporary basis by the Ministry. Disputes on visas and on human resources with a permanent contract are excluded from the activities of Office II (as they are, respectively, a competence of the Directorate General for Italians Abroad and of the Directorate General for Human Resources).

Office III – Legal advisory service
- advice on legal questions submitted by other offices and of interest to the Ministry; with a view to ensuring unified guidance;
- opinions, assistance in drafting public tenders and contractual instruments;
- collection, up-dating and consultation of legislative provisions and the decisions of the courts.

Office III of the Legal Service is in charge of counselling for all legal matters in the Ministry. Usual activities concern consular law, the law of the seas, the study of draft statutes (also for application of EU Directives in the Italian legal system) and decrees issued by the Ministry.

7. What is the OLA’s place within the Ministry of Foreign Affairs?

The Service for Legal Affairs is compared to a Directorate General of the Ministry. As it stands as a division for internal counsel, the Service is activated by the different Directorates General according to the legal needs arising in the framework of their activities.

8. What are the main contacts of the OLA within Government?

The Service for Legal Affairs is an Office aimed at providing internal counselling advice to the Minister for Foreign Affairs and the Directorates General within the Ministry. Contacts with the other Administrations (including the Office of the Prime Minister) are frequent as far as international courts are concerned, in order to ensure a more coherent and coordinated approach for the defence of the State in international disputes.

Contacts concerning international agreements negotiated by other Ministries are maintained through the Offices of the Diplomatic Advisors (career diplomats that are assigned to the Cabinet of the Ministries in the different Administrations to deal with international activities).

9. Please describe the relations of the OLA with lawyers in private practice, academics and legal institutions.

The Service for Legal Affairs is in constant relations with several categories dealing with legal issues.

The relations with the academia have been growing in the last years. On the one hand, since part of the scientific experts pertain to the academic field, relations with universities are easily held – for the organisation of conferences or the discussion of specific topics of international or domestic law. On the other hand, the Service is establishing firm links with several universities by the signature of specific conventions, in order also to avail itself of the expertise of a larger number of professors in different subjects (administrative, labour, commercial, humanitarian law), to start an internship programme for students enrolled in the last two years of the Law Degree and to follow the evolution of international and domestic law in an academic perspective.

The Service also establishes contacts with the Offices of the State Attorney (see point 6) and with notaries.

10. Please provide a brief bibliography on the OLA, if available.

Baldi, S. (a cura di), Guida alla Farnesina, 1. Ed., ISDI-Press, Manuali di Formazione, 2012.