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Blog by Eljalill Tauschinsky

Recently, the CJEU published a judgment and a corresponding press release which will probably delight many users of the access to documents provisions of the EU – of which me and my fellow academics rank supreme – namely the judgment in Case T-188/12. Yet it does not only contain reason for delight – but also some reason for concern.

In this case a German politician of the Pirate Party (Patrick Breyer) has tried to get access to the documents referring to Austria’s non-implementation of the data retention directive – mainly because he had heard rumours of Austria criticizing the directive in these documents and, being likewise opposed, wanted to see Austria’s arguments. The Commission had refused access arguing that the documents were actually documents of the Court of Justice, to whom the transparency regulation only applies to a very restricted extent.

The Court disagreed, arguing that the documents in question were just as other documents on the hands of the Commission, and thus in principle within the application of the transparency regulation.  So far so good (or even great).

Interestingly, however, the Court also held something else, namely that it was not permissible for a party to the proceedings to publish the documentation pertaining to it (well, it had held that before), and that commenting on the documents and making them available for public comment on the internet aggravated the offense of publication. For some reason, the Court put stock in the fact that the publication on Mr. Breyers website had resulted in some comments by those frequenting his website which were not at all favourable to the Commission.

The comments appear to have been removed from the internet (since the case is closed now, the publication of documents should not be problematic anymore, as per this judgement), so that it is difficult to get a clear picture of what the Court is talking about here. So my remarks have to refer exclusively to what is actually in the judgement.

As mentioned this case is not the first one in which a party has published documents pertaining to ongoing proceedings. However, it develops that ‘strand of case law’ further in some regards.

Under the rules of procedure of the CJEU, no third party should have access to the documents pertaining to a case (well, there is a procedure to allow access, but we’ll skip that now). In the case mentioned, in 1998, the Court held that publishing the documents pertaining the a case was basically the same as “inciting criticism on the part of the public in relation to arguments raised by other parties in the case”. The Court found it obvious that the documents had been published with the goal of putting pressure on the Commission and on their Agents specifically. This last point came from the fact that the documents published included the names and addresses of those being responsible for them, a fact which the Court found especially problematic.

The first remark is that the Court took offence (if that is the right word), even though Patrick Breyer did not commit what the Court had found specifically objectionable in an earlier case. In the 1998 case the Court had found fault mainly with the fact that the published documents included the names and addresses of the drafters with a more or less implicit call to contact them on behalf of the plaintiff. Mr. Breyer, in contrast blacked out the names and addresses of those responsible for the documents, so that they could not be contacted and be put under pressure individually.

The second remark is that it appears that the Court puts significant weight on the critical attitude of the friends and followers of Patrick Breyer towards the Commission, and the fact that Mr. Breyer enabled them to voice this attitude in reference to the documents in question (namely those which concerned the ongoing proceedings in this case).

Of course I whole-heartedly agree with the supposition that ongoing proceedings must be protected – and yet I cannot help but feel uneasy by the view expressed by the Court.  I support the proposition that it might endanger the integrity (for want of a better word) of Court proceedings if those taking part in it would have to face a public backlash because of their positions taken in Court. But does that justify taking such a protective stance towards the Commission, which arguably is the stronger (in terms of resources and power) party in this case?

There is a dilemma here. Either the Court is too lenient on those publishing documents relating to Court proceedings. The consequence would be to make it unattractive for people (or institutions) to bring Court proceedings, as they might have to fear to be subject of public debate and public pressure. This is very much to be avoided, especially as Court proceedings also sometimes provide protection for individuals and minorities against the public opinion. Or, if the Court is too restrictive, it is rather too protective of those already having the greater leverage. Like in this case, where the Commission is neither an individual, not in a minority position – but rather in a position of power.

Yet, the Court does not appear to realise this dilemma and the fact that it needs to tread a fine line. Nowhere in its argumentation does it acknowledge the democratic desirability – well even necessity – of criticising those who take the (political) decisions. The Court might also acknowledge the value in being critical towards the Commission, instead of seeing this as an aggravating circumstance.

It has been remarked before on this blog that the Court appears to sometimes decide as if it was afraid – of the Member States and the citizens and for the institutions. And I cannot help but wonder whether the current decision is again a show of that attitude – resulting in a rather heavy handed reaction: in this case it ‘punished’ Mr. Breyer with half of his costs, whereas in 1998 it had ‘punished’ those in a similar situation with only a third.

And this brings me to a last and only somewhat related remark: In the earlier case where the Court condemned the publication of documents of on-going proceedings, the offending party appeared repentant and – having won on the other points – did not go into appeal. In this case, there is no such repenting attitude perceivable. It will be very interesting to see whether there will be an appeal to this case. And then there might again be reason for me and my colleagues to rejoice over food for thought and discussion: If both parties appeal – maybe this will be the first case of cross appeals before the CJEU.

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