Articles

Openness at the Court of Justice of the European Union: Toppling a Taboo

A. ALEMANNO, O. STEFAN

Common Market Law Review

January 2014, vol. 51, n°1, pp.97-139

Departments: Tax & Law, GREGHEC (CNRS)

Keywords: Openness, Transparency, Legitimacy, Accountability, Civil society, European Union, Good governance, Social Media, Participation, Civic empowerment

http://ssrn.com/abstract=2374665


Despite the pervasive rhetoric of transparency characterizing the work of the EU in recent years, the openness of the CJEU vis-à-vis the public appears to have escaped both institutional attention and academic scrutiny. The principle of openness consists of various forms of active cooperation and communication between the EU institutions and the public typically entailing access to information. While the CJEU has consistently guaranteed the principles of transparency of judicial proceedings and publicity of trial vis-à-vis the parties to a dispute as stemming from Article 6 ECHR, it has failed to provide a similar level of ‘openness’ beyond the parties involved in its judicial activities. By establishing that openness applies essentially to the work of the executive and legislative powers, the Court emphasised the specificity of the judicial task with which it has been invested. Yet, Article 15 TFEU expressly extends the application of this principle to the activities of the CJEU, while confining free access to only those related to the exercise of its administrative tasks. Against such backdrop, this article examines to what extent the public is informed or may obtain information concerning the activity of the Court. It does so by distinguishing in its assessment between input openness (related to the written stage of the procedure), throughput openness (related to the oral phase and the Courts’ deliberations), and output openness (related to the delivery of judgment and subsequent diffusion). The article pays due regard to the distinction made in Article 15 TFEU between administrative and judicial tasks. It commends the recent regulatory developments on access to administrative documents as well as the efforts made during the years towards ensuring access to information concerning the judicial activity of the Court. Nonetheless, the article argues that Article 15 (1) TFEU requires rendering all the activities of the Court – regardless of whether they are or are not of an administrative nature – more open to the public than before