CJEU: Advocate General Bobek proposes broader access to court documents

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Regulation No 1049/2001 obliges the Commission to grant a third party access to the pleadings submitted by a member state, of which it holds a copy, in a case that has already been closed. However, Advocate General Michal Bobek, said it should be the court, as master of the judicial file, who should primarily decide on access to documents contained in that file.

Patrick Breyer requested the Commission to grant him access to the written pleadings submitted by Austria to the court of Justice in infringement proceedings brought by the Commission against that member state for failing to transpose the Data Retention Directive. At the time of his request these proceedings had already been closed. The Commission refused access to those pleadings, of which it held a copy, on the grounds that it is a court document and therefore does not fall within the scope of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents.

Mr Breyer brought an appeal against this decision to the General Court, which annulled the Commission’s decision refusing access.

According to the General Court, written pleadings of a member state of which the Commission holds a copy fall, like the Commission’s own pleadings, within the scope of Regulation No 1049/2001.

The Commission appealed this judgment of the General Court before the Court of Justice.

In his Opinion, Advocate General Bobek proposed to the Court of Justice to confirm the General Court’s judgment and dismiss the Commission’s appeal. According to Mr Bobek, the Regulation obliges the Commission to grant a third party access to the pleadings submitted by a member state, of which it holds a copy, in a case that has already been closed.

However, acknowledging the need for the court to become more open, the Advocate General suggested to the court to revisit its institutional arrangements on access to some of the documents relating to its judicial activity.

Even if the court is exempt from the right of access to documents in so far as its judicial tasks are concerned, the court remains subject to the principle of openness. More openness would not only increase public confidence in the EU judiciary, but it would also improve the overall quality of justice.

In terms of providing access to documents of the court, Advocate General Bobek made a distinction between internal and external judicial documents of the court. Internal judicial documents, such as the preliminary report of the reporting judge and the notes for deliberation cannot, in Mr Bobek’s view, be concerned by openness and, thus, cannot be disclosed.

As regards external judicial documents, such as pleadings submitted by the parties, they may in principle be accessible. Advocate General Bobek suggested that those documents ought to be made available upon request, in both closed as well as, to a more limited extent, in pending cases.

However, beyond individual requests for access, Advocate General Bobek also suggested that the pleadings of the parties and the request for a preliminary ruling could be put on the website of the court as a matter of routine.