Are judges destroying transparency in EU institutions?

The parliament refused all journalists' requests for various reasons (no documents, excessive workload, and especially private data).

The journalists introduced a legal action.

The Court of Justice refused more or less all the author's requests, though they cited both his quality as a member of the institution, and later as a citizen.

The author then made a complaint to the Ombudsman, and later a legal action about three decisions.

In September 2018, the EU General Court approved totally the parliament's refusal, invoking essentially the protection of personal data (the concept is mentioned 43 times in a judgment of 140 points!).

It considered that more or less all documents contained personal data.

Consequently, for each document, the journalists had to produce a very concrete reason to disclose the personal data, with each time concrete evidence.

The general need to control concrete expenses financed by the European taxpayer was never considered as a valid justification.

In November 2018, in a letter to the ombudsman the president of the Court of Justice adopted exactly the same reasoning.

It covered any document written or signed by a judge on any administrative or legislative matter (car, chauffeurs, budget, ICT, appointment, official missions, legislative debate, etc), with the additional motive that all these topics are considered as directly linked to the judicial activity.

Again, the general need to control expenses financed by the European taxpayer is never considered as a valid justification. The judgment is invoked four times (though the appeal period was not over).

Transparency slowing dying

This approach leads to a very paradoxical result.

As the definition and protection of personal data are broadened, the EU institutions communicate less and less, and transparency is slowly dying.

Obtaining official documents becomes a new sequel of Mission Impossible (but without the happy ending).

Finding a concrete and precise justification for each document is extremely cumbersome. It also often requires precise information, which was precisely the reason why the Amsterdam Treaty enshrined the right to obtain it in the first place (the author was among the negotiators).

Furthermore, the required level of legal acumen makes this largely impossible for non lawyers.

Consequently, judgments often begin by affirming the theoretical principle of access and finish by concluding that concrete access is refused.

More fundamentally, many more requests are made, by journalists for example, and are refused. Financing a legal action is simply not possible.

There are reasons to doubt the validity of such a restrictive approach.

"Data protection was more important than the costs aspects" is the jurisprudence's synthesis given by the General Court's president.

The synthesis is alas good, but the court's legal interpretation is not.

Not 'absolute'

Data protection is not at all an absolute right, and should be combined with other rights similarly protected by the charter of fundamental rights, such as the right of access to documents (Article 42), the right to information (Article 11), and the right to a good administration (Article 41).

The jurisprudence's very restrictive approach has revealed a complete opposition between the Court of Justice and the commission.

As an example (there are many others), the court refuses to communicate any concrete element linked to the use of chauffeurs and cars by judges, while the commission, following the ombudsman's invitation, does precisely the opposite with commissioners.

This is an essential improvement.

For the first time, citizens and control organs can know exactly what is publicly financed, and the Juncker commission must be strongly commended for this.

It is very hard to understand how the trips of the institutions' members can be considered simultaneously so public that they must be financed by the taxpayer and so private that nobody can know anything about them.

Whatever one thinks about Martin Selmayr's appointment, the commission has also been very transparent with the documents (here too, the Court of Justice follows completely the opposite approach).

This context explains why the author introduced a legal action against the Court of Justice (with a hearing on 11 January 2019).

If the ECJ restrictive approach is confirmed, it will mean that the other institutions' openness (beginning with the commission's) will be strongly reduced.

In a period of strong contestation of the EU by various circles, this could become very dangerous.

This restricts strongly control by the press (which has a huge stake here), the institutions, and finally the citizens.

Furthermore, nothing infuriates more the public than the feeling that opacity protects the interests of the European institution's members (or top bureaucrats).

Transparency remains an essential instrument to remedy the present crisis of trust in the institutions. Accepting its fading away will be extremely damaging.

Franklin Dehousse is a professor at Liege University, and a former judge at the Court of Justice of the EU