The EU Public Interest Clinic and Access Info Europe Present: A Complaint to the European Ombudsman Regarding Judicial Transparency

19 Pages Posted: 29 Jul 2015  

Alberto Alemanno

HEC Paris; NYU School of Law

Christopher Lapp

New York University (NYU), School of Law, Students

Agathe Delalande

HEC Paris

Lamin Khadar

New York University (NYU) - NYU School of Law (Paris); HEC Paris; European University Institute, Students

Helen Darbishire

Access Info Europe

HEC-NYU EU Public Interest Clinic

New York University (NYU), School of Law, Students; HEC Paris

Pam Bartlett Quintanilla

Access Info Europe

Date Written: June 06, 2015

Abstract

This complaint relates to the denial, dated 14 April 2014, by the Council of the European Union of a 21 January 2014 access to documents request (by the HEC-NYU EU Public Interest Clinic). By its denial, the Council refused to disclose to us any documents in its possession (redacted or otherwise) prepared by the panel provided for under Article 255 of the Treaty on the Functioning of the European Union which is charged with reviewing and selecting judicial candidates for the Court of Justice of the EU (CJEU) and the General Court of the EU. In particular, we had sought access to suitability opinions produced by the Panel with respect to prospective judicial candidates.

In the Council’s denial of our initial request and confirmatory application, the Council repeatedly applied Regulation 1049/2001 in ways that accord neither with the spirit of the law, nor with EU principles of openness, transparency and participatory democracy.

-- Firstly, by claiming that its activities as Panel Secretariat do not fall within its sphere of responsibility under Regulation 1049/2001, the Council disregards a legitimate interpretation (detailed in part A) which would give full effect to the right of public access to documents.

-- Secondly, the Council failed to show sufficiently precisely how and in which ways the judicial candidates’ privacy interests would be undermined by disclosure of the Panel Opinions (as detailed in part B).

-- Thirdly, in its response to our confirmatory application, the Council argued that disclosure of the Panel Opinions would jeopardise the Panel’s functioning, even though there is strong academic and empirical evidence to the contrary (discussed in part C).

-- Fourthly, the Council fails to adequately consider our myriad arguments that the public interest is overriding in this case. Since "merely argu[ing] that the public interest was not sufficiently high, without…considering that the underlying issue is an important subject [that] affects the fundamental rights of millions of EU citizens" gives rise to a claim of maladministration, part E illustrates how the public interest must override in this case.

In addition, this complaint is about the failure by the Council’s General Secretariat, as Secretariat to the Panel, to maintain a set of information including correspondence with the Data Protection Officer about the confidentiality and security of the processing of personal data in connection with the Panel Opinions, as required under Article 25 of Regulation 45/2001. In case such a record was in fact maintained, the Council’s failure to register it in a public register that can be inspected by any person, as required under Article 26 of Regulation 45/2001.

Keywords: judicial transparency, CJEU, court of justice, EU law, European Ombudsman, Access Info, transparency, judicial, judges

Suggested Citation

Alemanno, Alberto and Lapp, Christopher and Delalande, Agathe and Khadar, Lamin and Darbishire, Helen and EU Public Interest Clinic, HEC-NYU and Bartlett Quintanilla, Pam, The EU Public Interest Clinic and Access Info Europe Present: A Complaint to the European Ombudsman Regarding Judicial Transparency (June 06, 2015). Available at SSRN: https://ssrn.com/abstract=2636877

Alberto Alemanno

HEC Paris ( email )

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

NYU School of Law ( email )

Paris
France

Christopher Lapp

New York University (NYU), School of Law, Students ( email )

New York, NY
United States

Agathe Delalande

HEC Paris ( email )

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

Lamin Khadar

New York University (NYU) - NYU School of Law (Paris) ( email )

Paris
France

HEC Paris ( email )

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

European University Institute, Students ( email )

San Domenico di Fiesole
Italy

Helen Darbishire

Access Info Europe ( email )

Calle Cava de San Miguel 8, 4c
Madrid, 28005
Spain

(HEC-NYU) EU Public Interest Clinic (Contact Author)

New York University (NYU), School of Law, Students ( email )

New York, NY
United States

HEC Paris ( email )

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

Pam Bartlett Quintanilla

Access Info Europe ( email )

Calle Cava de San Miguel 8, 4c
Madrid, 28005
Spain

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