European Ombudsman investigates lack of transparency in selection of judges for European Court of Justice

Madrid, 27 July 2015 – The European Ombudsman last week called on the Council of the European Union to respond to allegations made by Access Info Europe and the HEC-NYU EU Public Interest Clinic that it wrongly refused access to information on selection processes used for judges entering the Court of Justice of the European Union (CJEU).

The EU Clinic originally requested access to the opinions of the panel that examines all judicial candidates put forward by the Member States for the Court of Justice and the General Court of the EU. The information was denied on the basis that the documents were not covered by the access to documents rules, and that it was necessary to protect the decision-making process of the panel as well as the privacy of the individuals concerned.

The European Ombudsman has now confirmed that she will open an investigation following a complaint collectively submitted by the organisations in June. Alberto Alemanno, their legal representative, stated that “given the profound transformative effects that the advisory panel is having on EU judicial selection, its current restrictive transparency policy raises important and unaddressed questions about democratic legitimacy and accountability. The panel cannot continue operating as a ‘black-box’, thus escaping any form of democratic oversight”.

Access Info Europe and the EU Clinic believe that information about how and why some members were selected for the CJEU and some were not should be available to the public, and in the complaint we argue that:
» Regulation 1049/2001 does apply to the panel opinions, because they are held by the Council, which also acts like the panel’s secretariat;
» The right to privacy should be balanced with the right of access to documents, and, since there is a high public interest in ensuring that selection processes such as this are transparent, the requested information should be provided;
» The reputation of the candidates would be better protected by transparency than by the gossip-inducing status quo and the legitimacy of the CJEU would be enhanced as a result;
» The Council should have provided us with partial access to the documents instead of denying them outright;
» We question the Council’s assertion that the panel’s decision-making process would be foreseeable and more than purely hypothetically undermined, if these documents, or parts of them, were to be published;
» Finally, there is an overriding public interest in access to the panel opinions that means that any harm should be balanced against the public interest in the information; accordingly we believe that access to the panel opinions should be provided.

Helen Darbishire, Executive Director of Access Info Europe, emphasised that “These judges decide how EU legislation should be applied to over 500 million citizens, transparency around their selection is of utmost importance for public confidence in the court’s integrity and independence.

The Ombudsman has given the Council a deadline of 31 October 2015 to submit an opinion on the allegations raised in the complaint.

A copy of the complaint is available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2636877

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