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

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