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Top EU Court to rule on transparency of EU judiciary tomorrow

Freedom, democracy and transparency

Just how transparent are EU court proceedings? Are the press and the public given access to pleadings in important landmark cases? Or do parties face a fine when disclosing pleadings to the press or the public? In an action brought by the German civil liberties activist and pirate party member Patrick Breyer, the EU Court of Justice (ECJ) will deliver its judgement concerning these issues tomorrow (Commission vs. Breyer, C-213/15 P).[1]

As the ECJ does not grant access to written submissions, Breyer asked the Commission to disclose Austrian pleadings concerning the non-transposition of the controversial EU Data Retention Directive. The Court of First Instance ruled in favour of Breyer and the Commission disclosed the pleadings[2] but filed an appeal against the judgement. It is not only asking the ECJ to repeal the judgement but also to fine Breyer for publishing all written submissions in the present case on his homepage.[3]

“The EU‘s judicial system is lacking transparency. This intransparency fosters mistrust instead of building trust in times of the EU experiencing a crisis of acceptance. Justice needs openness”, explains Breyer his aims.

“The EU‘s top court should not be conducting secret proceedings. Transparency is especially needed where instruments of mass surveillance and fundamental rights and freedoms are at stake. The validity of such interferences in our private lives is of interest to every one of us.

The transparency of the EU‘s Constitutional Court is not my only concern. This case is also about the freedom of the press and democratic control of governments in pending court proceedings. In landmark cases with far-reaching implications the press and the public should not be faced with irreversible facts. Our governments’ arguments and submissions need to be subjected to public scrutiny. In a democracy the government needs to account for its actions to the public, including its actions in court.”

Advocate General Bobek in December proposed broader access to Court documents:[4] The ECJ should revisit its rules on public access to documents. Documents ought to be made available upon request, in both closed as well as, to a more limited extent, in pending cases. Advocate General Bobek also suggested that pleadings could be routinely published on the Internet. Unlike the ECJ, the European Court of Human Rights in Strasbourg grants access to written submissions upon request.

[1] Court diary

[2] Pleadings disclosed by the Commission after the judgement in first instance

[3] Case file (in German)

[4] Advocate General Bobek proposes broader access to Court documents


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