Op-Ed: “Publication of Written Observations in Advisory Opinion Cases by the EFTA Court: Does the transparency come at price?” by Michal Kianička
The Court of Justice of the European Free Trade Association States (‘EFTA Court’) has launched (reported here) an open consultation on the possible publication of written observations in advisory opinion cases. It believes that making available those written observations on its website could further increase transparency.
The transparency of the EFTA Court proceedings has recently undergone major changes, in two ways.
On the one hand, the EFTA Court has decided to shorten its reports for the hearing. Currently, they, in principle, no longer comprise the parties’ arguments presented in writing, only their proposed answers. This step must be seen in the particular context of the EFTA Court and its practice. In fact, the EFTA Court publishes these reports on its website. By contrast, one half of the Court of Justice of the European Union (‘CJEU’), namely the Court of Justice, abolished them in 2012 as a source of ‘cost and delay in the handling of cases’. This was described as regrettable. Even before, these reports were available to participants of oral hearings, including members of the public, but not published on the CJEU’s website. The same has been the case with the General Court. When the services of the European Parliament prepared a study focused on accessibility of court files of the CJEU in 2013, they concluded that the practice of the CJEU compared unfavourably with that of the EFTA Court.
On the other hand, the EFTA Court has decided to publish on its website all requests for advisory opinions submitted after 1 January 2021, catching up with the CJEU. The latter announced the availability of requests for a preliminary ruling in November 2019, covering all requests which reached the CJEU after 1 July 2018.
As for the reactions to these changes and intentions of the EFTA Court, a group of Nordic legal scholars welcomed the publishing of the requests. They also praised the intent to go even further and to publish the written observations in advisory opinion proceedings. They suggested publishing written observations in EFTA infringement cases (Article 31 of the Surveillance and Court Agreement) and in direct action proceedings (Article 36 of the Surveillance and Court Agreement) as well, which the EFTA Court, at least for now, does not envisage. Finally, they urged the continuation of streaming of hearings even post-COVID-19. By contrast, in a rather diplomatic way, they described the shortening of reports for the hearing as ‘much less fortunate’. Much heavier and more open here was the critique of the former long-time President of the EFTA Court, who in the past also criticised the secrecy of deliberations.
I cannot but agree with the EFTA Court itself, that it would ‘further increase transparency’, should it after all decide to publish written observations in the advisory opinions. But would it only bring the good? I am not entirely sure. Nor does the EFTA Court itself appear to be. Not only, to its credit, does it ask. It also explicitly writes that ‘[t]here may be considerations other than transparency and the efficient use of resources, which may be pertinent’.
Let me, for the sake of further debate, and in short, pinpoint some of the possible gains and pitfalls. The list is certainly not complete and many of the considerations are not limited to the EFTA Court.
Numerous stakeholders, including scholars, would benefit from the publication of written observations in advisory opinion cases. They could more easily research and better understand the background and genesis of any decision rendered by the EFTA Court, be it for research or study purposes, for the sake of legal representation or dispute settlement, or in relation to legislative and executive powers. Here I have great sympathy for the wish of the academics to have access to the file, because these materials are priceless for their research. Conversely, I do not understand why the publication of private parties’ observations should be, as suggested, of less importance to outside observers compared to those of Member States and institutions.
The perspective of the written observations being published would probably influence the content of the submissions. Perhaps for better, perhaps for worse. Some arguments might not find their way into the submissions in the knowledge that they would be published. Yet quite the opposite might be the case with other arguments, ironically for the very same reason. Whether this would be for the benefit of judicial dialogue, or to its detriment, would depend.
Admittedly, should the EFTA Court publish the written observations even before the hearing, it might enable observers to better follow the hearing. The EFTA Court nevertheless does not foresee it for now, in order to remove any possibility of disturbing the serenity of the judicial deliberations. It has been said that the publication prior to judgment does not appear to entail such a risk, and if so, the publication of the report for the hearing including the summary of parties’ pleadings would constitute the same risk.
I tend to side here with the CJEU case law, emphasising the ‘need to ensure that, throughout the court proceedings, the exchange of argument by the parties and the deliberations of the Court in the case before it take place in an atmosphere of total serenity’. Further to that, the ‘[d]isclosure of the pleadings in question would have the effect of exposing judicial activities to external pressure, albeit only in the perception of the public, and would disturb the serenity of the proceedings’ (Sweden e.a. v API, joined Cases C-514/07 P, C-528/07 P and C-532/07 P, paragraphs 92 and 93; see also the Opinion of the Advocate General, proposing a different outcome and partly defending a different approach). It could be argued that a wider discussion and external inputs would be of no danger, but of use for the court, as it would gain further insight and broader perspective, which would again help it to find the right solution. Unfortunately, one cannot count only on useful input, backed by fair and honest motivation. Nevertheless, it has been remarked, completely correctly, that some judicial bodies pursue a different practice.
I see the point made regarding the report for the hearing and the summary of the parties arguments therein. However, this could after all endorse confidentiality of that report, or at least call into question its publication on the court’s website, and not necessarily favour publishing of the written observations. In addition to that, the written observations could possibly be published much earlier than the report for the hearing. Given the fact that the report is drawn up when the court already has chewed upon the case in all peace and the case is ripe for the hearing, the opportunity for the judges to reach that stage without external interference might be decisive.
I see another difference between merely publishing the written observations of the parties and synthesising the arguments of the parties in the report for the hearing. It is true that the latter costs time and energy, but forces one to try to understand the essence and meaning of the arguments. At the same time, misconceptions cannot be excluded, but as long as they clearly surface in the report for the hearing, they can be dispelled. In other words, it allows, as also noted here and here, verification of whether the judges understood the arguments, and responding if necessary. Both, the effort of the judges invested into the understanding and the chance to verify and rectify the latter, might contribute to better resolution of the case.
At the same time, if an uninvolved observer analyses the report for the hearing summarising the parties’ arguments (or even their written observations) and the final judgment, her or his analysis could result in unjustified doubts on the judgment, although possible misunderstandings were cleared up in the hearing. This could be prevented – either by providing the access to the minutes or even the recording of the hearing, or simply by explicitly dealing with it in the judgment. Yet again, the same question as above arises, whether this is an argument for doing one step more, or perhaps rather one step less.
Finally, several practical aspects would have to be settled, such as the protection of personal data or business secrets. The responsibility for the preparation of the non-confidential version of the written observations would have to be clearly assigned either to the EFTA Court or to the parties, either of them then having to invest some time and energy into it.
To conclude, transparency is of crucial importance. However, saying that there can never be too much transparency, or that transparency can only serve the good and never do harm, would be short-sighted. I believe that transparency is essential, but it is not almighty, it involves risks and it comes at price. Besides that, if the judgments themselves are not satisfying, because they for example inappropriately set the scene, improperly deal with parties arguments and let them fall under the table, or simply lack clarity and are not comprehensible, the publishing of parties’ submissions as such will not resolve it. By contrast, if the judgment does not suffer from those deficiencies, the publishing of parties’ submissions might not provide any added value.
Let me finish with a rather provocative, though hopefully thought-provoking contemplation. The internet nowadays provides almost everyone with the chance to express her or his opinion on literally anything, anytime, and addressing, at least in theory, anyone. Sounds like heaven for freedom of speech, one of the pillars of democratic society along with transparency, doesn’t it? In all honesty, though, did it only improve the quality of public discourse, or did it also result in a boom of hate speech, hoaxes, and vulgarisation?
Michal Kianička is a former member of the Slovak EU litigation team (2010-2020). Currently, he is stagiaire at the Court of Justice of the EU in the Cabinet of Advocate General Michal Bobek. His publications on the issue of transparency include ‘Streaming of hearings: a tough call for the Court of Justice’, Weekend Edition No. 13, EU Law Live, 18 April 2020, and Hearings 1.1: Remote Appearances before the Court Of Justice in D. Utrilla and A. Shabbir (ed.), EU Law in Times of Pandemic. The EU’s Legal Response to COVID-19, EU Law Live Press, 2020.