To What Extent Can the CJEU Contribute to Increasing the EU Legislative Process’ Transparency?

Benjamin Bodson

doi:10.17645/pag.v9i1.3969

Abstract

Alongside other actors such as the European Ombudsman, the Court of Justice of the European Union (CJEU) plays what looks like, at first sight, a key role in improving the transparency of EU legislative procedures. To take two relatively recent examples, the De Capitani v. European Parliament (2018) judgment was perceived as a victory by those in favor of increased transparency of EU legislative procedures at the stage of trilogues, as was the ClientEarth v. European Commission (2018) judgment regarding the pre-initiative stage. Both rulings emphasize the need for “allowing citizens to scrutinize all the information which has formed the basis of a legislative act…[as] a precondition for the effective exercise of their democratic rights” (ClientEarth v. European Commission, 2018, §84; De Capitani v. European Parliament, 2018, §80). Nevertheless, while the CJEU’s case law may indeed contribute to improving the legislative process’ transparency, its impact on the latter is inherently limited and even bears the potential of having a perverse effect. This article sheds light on the limits of the CJEU’s capacity to act in this field and the potential effects of its case law on the EU institutions’ attitudes or internal organization.

Highlights

Many individuals or NGOs active in the field of transparency are confronted with confirmatory decisions of EU institutions rejecting their requests for access to documents
The former is dependent on the latter. This is salient in the context of the EU legislative process, in which the purpose of transparency of ongoing procedures is about public scrutiny—or accountability to the public—and allowing, in a timely manner, the participation of any interested citizen while a legislative act is in the making
Is the Court of Justice of the European Union (CJEU) able to contribute to improving the openness of the EU legislative process? If the CJEU has the capacity to do so, its capacity is limited, and its actions can lead to paradoxically reducing the transparency of the legislative process

Summary

Introduction

Many individuals or NGOs active in the field of transparency are confronted with confirmatory decisions of EU institutions rejecting their requests for access to documents These individuals and NGOs place a lot of hope in actions for annulment of those decisions brought before the Court of Justice of the European Union (hereafter CJEU), be it in first instance the General Court or in appeal the Court of Justice It gives a short overview of the key provisions of EU law relevant for the debate on the transparency of the legislative process It highlights three inherent limits—the limits of interpretation, the principles of institutional balance and institutional autonomy, and time— of the CJEU’s action on the matter. It raises some suggestions on how to rebalance the dynamics in place between the judiciary and the legislative branch to increase the capacity of the CJEU to act in this field

Legal Background

Three Limits to the CJEU’s Contribution

The Limits of Interpretation

Time Is of the Essence

A Risk of Perverse Effect

Conclusions