The General Court versus the Court of Justice of the EU. A comment on Dehousse/Court of Justice of the EU (T-433/17)
The distribution of tasks within the Court of Justice of the EU can create peculiar outcomes. The judgment of the General Court in Dehousse/CJEU is one of them.
Last Friday, the General Court ruled on Franklin Dehousse’s request of access to documents, first made as a sitting judge, and subsequently as a former judge. The request was based on the research judge Dehousse was undertaking on the governance of the Court. He asked for all kinds of documents, including data about the use of chauffeurs by the judges of the Court, the appointment of special counsellors, the implementation of efficiency measures for dealing with the workload of the Court and, last but not least, the correspondence and all communications of President Skouris with the authorities of the German Federal Government during a specific time-period. One may wonder why such communications are relevant at all. The request is probably related to (in my opinion maliciously) unfounded allegations in Jean Quatremer’s blog, hinting at Skouris’ contacts with Wolfgang Shäuble and other German officials at the time of the economic crisis, a moment in which the Court was dealing with high-profiled cases on major crisis-management decisions such as Pringle or Gauweiler.
The internal allocations of tasks in the Court demands that requests of access to documents shall be channelled by the institution itself. Thus, the first and confirmatory decisions on access are handled and finally ruled by the Institution. As a result, the applicant must challenge a decision of the Court of Justice of the European Union, as an Institution, before the competent court to rule in first instance on access to documents requests: the General Court.
In Dehousse/CJEU, a potentially explosive request of documents, made by a former judge who certainly knew exactly what he was looking for, has resulted in a damning judgment by the General Court. Although judge Dehousse’s request is practically dismissed in its entirety, it has been upheld on a very sensitive point: the request of access to correspondence and all other communications between President Skouris, his chief of staff and the German Federal authorities. The reason why the General Court upholds this ground is quite straight-forward: the CJEU’s lawyers argued that such communications were never found and therefore were not accessible to the applicant.
The judgment goes into considerable detail to determine in what situations an institution can argue that the requested documents are no longer available or located within the premises of the institution. It is an interesting but technically solvable query. However, the judgment goes well beyond the technical intricacies of the case and makes an unflattering portrait of the Court’s handling of internal documents. According to the CJEU’s defence, most of such communications would have probably been found in personal e-mails or made by telephone conversations. Personal e-mail accounts of the Court’s staff are destroyed after a period of time and telephone conversations are not recorded. The General Court was not impressed and ruled that such handling of communications with other public authorities does not reflect a suitable management of public resources.
The theatrics and gossipy twists of the judgment are too tempting to ignore. Skouris was the President that helped pass a reform of the General Court that the latter openly rejected. The applicant is a former judge whose mandate was not renewed by the government of his country and had, therefore, nothing to lose when requesting the documents. The rapporteur and the President of the chamber are also judges who, like the applicant, are not being renewed by their countries and have nothing to lose either. The scent of a mischievous farewell letter in the shape of a judgment is too tempting to ignore.
However, the judgment makes a fair point in law, and its legal reasoning is quite implacable. To argue that communications are non-existent anymore is not good enough for an EU Institution to argue. This is particularly the case of the Institution in charge of reviewing compliance of other Institutions with the principle of good administration (see Article 41 of the Charter). The Court of Justice of the European Union must be impeccable in its virtuosity and act in ways that put it beyond all reasonable doubt of impartiality or maladministration. Dehousse/CJEU has given the Court the chance of amending any flaws in this regard. It might be embarrassing in the short term, but it could be the first of other positive steps forward to come.