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

47 Pages Posted: 5 Jan 2014  

Alberto Alemanno

HEC Paris; NYU School of Law

Oana Andreea Stefan

King's College London – The Dickson Poon School of Law; King's College London

Date Written: January 4, 2014

Abstract

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.

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

JEL Classification: K19, K33

Suggested Citation

Alemanno, Alberto and Stefan, Oana Andreea, Openness at the Court of Justice of the European Union: Toppling a Taboo (January 4, 2014). Common Market Law Review, Vol. 51, No. 1, 2014. Available at SSRN: https://ssrn.com/abstract=2374665

Alberto Alemanno (Contact Author)

HEC Paris ( email )

1 rue de la Libération
Jouy-en-Josas Cedex, 78351
France

NYU School of Law ( email )

Paris
France

Oana Andreea Stefan

King's College London – The Dickson Poon School of Law ( email )

Somerset House East Wing
Strand
London, WC2R 2LS
United Kingdom

King's College London ( email )

School of Law
Strand
London, WC2R 2LS
United Kingdom

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