As the European Parliament discusses a proposal to reform the Court of Justice of the European Union (CJEU), ARTICLE 19 urges the Parliament to ensure that open justice principles apply to future CJEU proceedings in line with international standards on access to information. Namely, the reform should mandate the right of public access to the Court’s documents and documents about its judicial proceedings.
The European Parliament is currently discussing a proposal to reform the CJEU, necessitated by a significant increase in the number of requests for preliminary rulings. The legislative proposal consists of the amendment of Protocol No 3 of the Statute of the CJEU and focuses on sharing the CJEU’s competence with the General Court.
ARTICLE 19 believes that this reform is an opportunity to ensure that the CJEU is fully subjected to open justice principles. We note that the current EU standards on access to information, namely Regulation 1049/2001 on access to documents of EU institutions and the CJEU’s Decision concerning public access to documents held by the CJEU in the exercise of its administrative functions, give access to documents held by the CJEU in the exercise of its administrative functions. However, these do not fully provide for transparency of the CJEU’s decision-making. The Decision explicitly excludes access to court documents. According to the CJEU decision in Sweden vs. Association de la presse internationale ASBL (API) and European Commission, such public access would harm the sound administration of justice and the equality of arms principle.
ARTICLE 19 believes that inability of the public to access legal documents of the CJEU is a serious gap and a stark contrast with practices of other international and regional courts. For instance, Article 40 (2) of the European Convention on Human Rights provides that ‘documents deposited with the Registrar shall be accessible to the public unless the President of the Court decides otherwise’. Court documents held by the European Court of Human Rights, including parties’ submissions, are accessible upon request via an online form. As the CJEU is increasingly required to rule on matters of a constitutional nature and related to human rights, it should also be subject to the open justice principle.
ARTICLE 19 recalls that access to court documents is important to ensuring transparency of the judiciary and is a precondition for establishing and maintaining public trust in the judiciary. It follows that public access to court documents is an essential element of judicial transparency that promotes the fairness of court proceedings. Transparency of court proceedings also allows the public to access the reasoning behind judicial decisions and settles expectations for future cases. This should apply to court documents held by the CJEU.
Therefore, ARTICLE 19 recommends that the amendment of Protocol No 3:
- Include provisions stipulating that the public can request access to all documents deposited with the Registrar by the parties or by any third party in connection with an application. This should cover the full range of documents about judicial proceedings from case files to statistics on cases filed, resolved and pending cases or, the court’s agenda;
- Establish that court documents are made public as a rule and that access requests can be denied only per a limited and very narrowly-defined list of exceptions as prescribed in Regulation 1049/2011.
We call on the members of the European Parliament (MEPs) to include these issues into their proposals for the amendments of Protocol No 3 or support such amendments proposed by other MEPs.