• By
  • Charles Forelle

In a case which, we admit, is close to Real Time Brussels’ heart, the EU’s highest court left in place a tight system of secrecy that generally prevents the public from seeing the European Commission’s arguments in legal cases until they are resolved–or even well after.

The suit, Sweden and API v. Commission (and related actions), was brought by Brussels journalists who wanted to see the commission’s legal briefs in several landmark cases, including the fights over the EU’s rejection of the GE-Honeywell merger.

The commission refused to make them public, and the journalists sued. (Sweden, a fan of government openness, took the hacks’ side.)

The issue arises from the collision of two EU principles: the commission’s avowed commitment to openness, under which documents it produces are presumptively public, and a Continental legal system that carries out much of its argumentation and deliberation behind closed doors.

The closed doors won.

The European system is deeply perplexing to Americans, whose federal courts grant access to practically every scrap of paper filed with them to whoever is willing to pay eight cents a page for the privilege. In the EU’s own courts system, complaints and responses are filed in secret, the official notice of a case is just a few paragraphs, and the only public session is an optional oral hearing at which witnesses are neither sworn nor cross-examined. After a few months of private cogitation, the judges rule–summarizing, incidentally, how each side argued.

In its ruling today, the European Court of Justice broadly confirmed that judicial proceedings are outside the bounds of the EU’s access-to-documents rule.

Even the commission–which is clearly inside the bounds–doesn’t have to disclose its briefs before the hearing, for fear that “if the content of the Commission’s pleadings were to be open to public debate, there would be a danger that the criticism levelled against them, whatever its actual legal significance, might influence the position defended by the Commission before the EU Courts.”

Oh no! They might be swayed by public opinion into taking a politically expedient action! Fortunately the commission never does that.

What about after the hearing?

Still generally under wraps, the court says, since “disclosure 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.” (The court sits in Luxembourg, where serenity is prized even more than delicious dairy products.)

All is not lost for the journos. The court did hold that, in certain cases of “overriding public interest,” the principle of transparency should be weighed against the “aim of preventing all external influences on the proper conduct of court proceedings.”