The European Court of Justice (ECJ) needs reform. But after months of negotiations, the latest compromise proposals from the European Council and the ECJ on public access to information provisions and strengthening transparency are far from ideal. As discussions near their closing stages this week, ARTICLE 19 warns that the EU institutions risk missing a crucial opportunity for transparency and open justice.
Update: On 7 December 2023, the EU institutions finally reached a compromise on the ECJ reform. The EU Court will now have to proactively publish letters and arguments submitted by the parties to proceedings on its website after a judgement has been delivered. An exception remains: parties will have the right to object the publications. While the finally agreed text has not introduced an individual right to access court documents, access to information requests can still be filed via the EU Commission as per Regulation 2001/1049.
The Court Statute will now include for the first time a principle of proactive disclosure. This introduction marks a paradigm shift for the Court from its secrecy culture towards openness and transparency in line with international standards on access to information.
In September, the European Parliament’s JURI Committee voted overwhelmingly to allow every individual to request information from the ECJ about ongoing judicial proceedings, data related to statistics on cases filed, resolved or pending, or the Court’s agenda. Such changes would have a huge and important impact: journalists, for instance, would be able to report on the state of ongoing cases and gain insight into how the Court makes decisions. Such measures are fundamental for transparency and are in line with international standards on access to information, which call for open justice.
These demands from the only democratically elected EU institution cannot simply be brushed aside and ignored. And yet, so far, all the ECJ and the Council have done is dilute the Parliament’s proposals.
It has long been acknowledged that transparency into the ECJ workings is dismal: the reform of the ECJ Statute was seen by many as a unique opportunity to right this wrong. But the proposals for public right to access have been met with resistance. The opposition to increased transparency has rested on implausible arguments from the Court about practical challenges of setting up a dedicated office that will deal with requests to access. Many EU member states with deep-rooted secrecy culture, where individuals do not have access to documents held by courts, are strongly opposing the reforms. In this regard, the ECJ can and should be setting the standards – it is disappointing they choose not to do so.
Opacity continues at the ECJ
Under the proposed compromise by the ECJ, transparency will only apply when legal proceedings are over. What is more, the Court will proactively publish only documents submitted by parties on its website, unless a party raises any objection about publishing their own submissions. This lack of compulsion for all parties to publish is deeply concerning. Member states have a history of opacity and secrecy when it comes to court submissions, so it is likely many will simply oppose the publication of documents, preventing the public from understanding the full scope of the case.
Any move to grant access to documents for the public should be considered a positive, if much belated, step in the right direction. However, the scope of the compromise put forward by the Council and the ECJ falls way short of what’s needed.
Notwithstanding that the Parliament’s proposal has already been watered down, the amended ECJ statute does not include any individual right to access court documents: this means no one will be able to ask the Court how it works and what it is doing. The public will also be deprived of the ability to access documents related to the Court’s workings, such as information about staffing, budgets and general administration.
Little more than a gesture
The proposed reforms are negligible and reveal the Council and ECJ’s unwillingness to realise, in practice, the EU’s long espoused values of transparency and openness.
The role of the ECJ has changed significantly over the years: the Court increasingly rules on matters related to human rights, such as migration, privacy, health, or the environment. It is only right that with this expanded remit comes greater external scrutiny. Journalists, researchers, and civil society organisations should have a better sense of how the Court reaches its decisions: they should be able to scrutinise, report and comment on proceedings in real time, s and not only once they have been concluded. Lawyers should also be able to review practices before the Court so they can better prepare arguments and strategies based on insights into previous cases.
This transparency would benefit everyone who turns to the EU Court to resolve disputes.
In September, cognisant that negotiations on the ECJ reform were not proceeding as planned, ARTICLE 19 and 18 European civil society organisations called for the EU to change tack. With trust in political institutions continuing to fall, the time is right for the EU to open the ECJ up to the scrutiny of EU taxpayers, who, at the end of the day, subsidise its structures. An increase in transparency would also support the fairness and impartiality of the judiciary, which are crucial in any democratic system.
Our demand for reform goes to the core of democratic values – and how the EU lives up to them. As negotiations continue in the coming days, EU institutions have the chance to change course and provide openness and transparency that all EU citizens deserve.