This is a transcript of the oral presentation with which I introduced my paper for the conference The EU Court of Justice as a Relational Actor organised by Anna Wallerman Ghavanini at the University of Gothenburg, 16-17 December 2021. I was unable to attend personally, but the organisers kindly made arrangements for online participation. Thanks for having me. I will later develop the paper itself for publication. Thanks also to my discussant Erik Björling and my fellow participants for their encouraging and valuable comments.
I come to this from two odd places.
First, perhaps unlike most of you, I’m not an EU law expert in the least. I’m a legal theorist, and a critical one at that. The EU judiciary serves here as a case study of a paradigmatic model that national judiciaries – even beyond Member States – may gradually be gravitating towards due to the way in which the traditional fault lines separating law from politics are being redrawn in the activities of the Court. So my apologies for the somewhat half-baked quality of the ideas and the possible dilettantish missteps. All the shortcomings are even more visible when I view them in light of the elegance and finesse of all the previous presentations. As often happens, the paper itself didn’t really end up looking much like my original abstract either. Perhaps it looks more like a prelude to a project that I would like to take up from here.
Second, I am mainly interested in power, and more specifically on this occasion in judicial power. Why call it a ‘socio-legal’ approach? Judicial power is here not reduced to constitutional competences like the common definitions of ‘applying laws in individual cases’ or ‘ruling’. A socio-legal study would include the ‘factual’ elements of judicial power in the mix. So we could see the notorious Karlsruhe Instagram handle as a form of factual ‘judicial media power’ that would warrant closer investigation. How – and perhaps also why – is the account used? How does the proactive use of a BVerfG’s social media platform affect its relative power position?
In the paper, I focus on the ‘judicial media power’ of the EU judiciary, and more specifically on how that power is managed and administered by the CJEU. The main protagonists here are the CJEU’s Registrar and the various administrative departments under it, so there is less emphasis on the courts themselves. I contextualise the use of that power by situating it at the intersection where two potentially contradicting principles collide: judicial transparency and judicial independence.
As far as judicial transparency goes, many of the paper’s ideas here are in debt to collaborations with my colleague Päivi Leino-Sandberg and her recently completed ‘action research’ project Transparency in the EU – From Reaction to Manifesto? (TRUE) aimed at, among other things, challenging the Court’s reluctance to live up to the transparency ideals of the Union. The initial observation that one must necessarily come to is that as far as openness and transparency are concerned – especially in relation to third-party access to documents – the EU judiciary operates more in the shadows than its national counterparts.
Why the reluctance? This may partly be speculation, but ‘surrendering’ to contemporary broad-ranging ideals of openness and transparency may be seen to compromise the Court’s sense of its own independence. This is, perhaps, best reflected in the reasonings of the joined API cases from 2010 where the Court refused access to documents wishing to protect the ‘serenity of legal proceedings’. The main question of the project then becomes, how can the Court perform its trapeze act by releasing only as much information as it sees fit, and yet, at the same time, give the impression that, just as other EU institutions, it is a forerunner of openness and transparency? Perhaps this is a slightly hyperbolic way of presenting the problem, but it hopefully serves as the broad strokes needed for now.
As an assumption, we should be able to infer any transparency obligations that the EU judiciary may have from the Treaties and other legislation. We quickly realise that those obligations are tainted with a plethora of conditions and exceptions. A conventional analysis of the relevant norms won’t work here either because contrary to ‘legal logic’, for want of a better term, those conditions and exceptions are often spelled out in lower-level regulations and decisions than the legislated ‘fundamental values’. Hence a Foucaultian ‘legal archaeology’ instead of a more conventional ‘doctrinal’ approach. A legal ‘system’ is usually thought of in terms of layers of norms of varying normative value like Adolf Merkl’s infamous ‘Stufenbau’. So, for example, guidelines issued by an administrative office like the CJEU’s Registrar and its departments should ‘cohere’ with the more significant principles found at a more foundational level like the Treaties.
An archaeological approach does not strive for coherence between the sedimentary levels, nor does it attempt to extract ‘doctrines’ from the normative associations once a coherence has been identified. On the contrary, legal archaeology looks for contradictions and discontinuities that may provide valuable insights into the factual power relations that are at play.
The admittedly crude archaeology of the norms involved that is included in the paper can for the time being be summarised with the findings, but without going into the details that I hope to be able to refine later.
First, the potential of judicial transparency as a ‘fundamental value’ of EU law – if, indeed, it is one – is considerably compromised by an over-broad application of exceptions and conditions that are occasionally specified in legislation, but can also be found in lower-level regulations that shouldn’t be able to override the principle.
Second, like the proverbial fox guarding the henhouse, the Court itself is then given broad discretionary powers to interpret the scope of those exceptions and conditions. This further amplifies the powers of the Court and its ability to bypass what the more fundamental principles may suggest.
Finally, through an internal decision from 2019, the Court has created what I call its ‘hostile transparency environment’. The service design model offered by the Court for seeking access to its documents is so cumbersome that few even try. It is like applying for housing benefits from an authority using a service design model that mainly aims to secure that the authority’s budgetary targets are met.
At last we come to the reason why a legal theorist like me got interested in this project to begin with. This somehow refers to both the title and the abstract that I originally submitted. The overall impression that one gets is that the EU judiciary’s outlook to its own transparency is a form of ‘managed openness’. In addition to restricting the information and documents that are released, the Court has over the years devised a number of digital media artefacts like the Curia database, the digitally published Monthly Bulletins, the digitised Press Releases, and the Twitter handle. Through these digitised media, the Court produces and disseminates information of its own choosing. It’s not, then, responding to external demands for more openness and transparency, but simply making material that is already available more easily accessible. So a ‘trompe l’œil’ of sorts.
I originally wanted to do some work on Cornelia Vismann, German legal historian and theorist, who passed away in 2010 at the age of 49. Most legal theorists in the Anglophone world know her from her engagements with continental philosophy. Her background in German materialist media theory is, however, hardly known even though her breakthrough monograph Akten: Medientechnik und Recht (S. Fischer, 2000) was translated into English as Files: Law and Media Technology (Stanford UP, 2008). Through a materialist framework inspired by Vismann, as well as her media theorist colleagues like Friedrich Kittler, I plan to continue the project into the Court’s media artefacts like the digitised press releases understood now as ‘cultural techniques’.
But for now, that would be another story.