The EFTA Court has recently opened for consultation on the possible publication of Written Observations in Advisory Opinion Cases. As academics with a keen interest in EEA law in general, and the workings of the EFTA Court in particular, the authors of this contribution have taken the opportunity to present some thoughts on the proposal and the need to go even further to provide transparency to the judicial proceedings before the Court.
Authors: Christian N.K. Franklin, Halvard Haukeland Fredriksen, Finn Arnesen, Tarjei Bekkedal, Stian Øby Johansen and Ole-Andreas Rognstad
The proposal of a consultation follows up the Court’s recent decision to publish requests for Advisory Opinions on its website, as a means to provide additional transparency to the judicial dialogue between the Court and the national courts in the EFTA States. It must also, however, be understood in light of the Court’s much less fortunate decision to shorten the Reports for the Hearing, so that they no longer contain any record of the arguments set out in the written observations, only the proposed answers by each participant.
In the interest of further academic debate on these matters, we reproduce our comments here:
The Court’s proposal to make available written observations submitted in Advisory Opinions cases on its website is laudable, and merits praise. As far as the Governments of the EEA States, the EFTA Surveillance Authority and the European Commission are concerned, we see no reason why their written observations should not be made public in this way. At present, said governments and institutions cannot object to their legal reasoning being reproduced in great detail in the Report for the Hearing by the Judge Rapporteur. The Court’s Reports for the Hearing have always been a highly enlightening source of information for those interested in EEA law, early dissemination of which has often been crucial to understanding and shaping opinions of the often varying interests at stake in a given case. We fail to see how the Court’s proposal could in any way be viewed as disadvantageous to the said governments and institutions. To the contrary, publication of the written observations would seem beneficial, as preventing any possible misunderstandings in the communication of their legal arguments to the public. Since at least some EEA states already allow public access to their own written observations, the Court would, by publishing the written observations of all such parties, eliminate any risk that the public would receive a skewed picture of how the case is being argued.
Publication of such written observations has long been the established practice of other prominent international courts. The International Court of Justice, the International Tribunal for the Law of the Sea, and the International Criminal Court all routinely publish written observations on their respective websites as they are received. Moreover, both the European Court of Human Rights and the Inter-American Court of Human Rights allow public access to written observations. The Court of Justice of European Union has admittedly followed a more restrictive practice. However, it too has recently taken steps toward greater openness, for example by since late 2019 publishing all requests for preliminary ruling.
If any of the said governments or institutions nevertheless should object to the Court’s proposal, and the Court should then decide to not act upon it, we would respectfully call upon the Court to reconsider its recent decision to shorten the Reports for the Hearings and revert to detailed reproduction of the legal arguments set out in the written observations. Although we appreciate that this would entail considerable amounts of time and resources being spent on the translation of the Report for the Hearing into the language in which the case is dealt (Article 27(3) of the Court’s Rules of Procedure), such costs would seem heavily outweighed by considerations of transparency. Whether such translations should be considered necessary in cases other than those where private parties involved in the main proceedings so request is debatable, but we do acknowledge that a change of the Rules of Procedure is dependent on the approval of the EEA/EFTA States.
As far as the written observations of private parties involved in the main proceedings are concerned, publication of these will generally be of less importance to outside observers. One suggestion in this regard might nevertheless be to offer private parties the choice of publication of their written observations, without there being an obligation to such effect. Paramount in our view is in any event that any special consideration of the private parties in this regard should not serve as an argument against publication of the written observations of the EEA States and/or EU and EFTA institutions.
Concerning issues of confidentiality, we understand there may well be cases where only redacted, non-confidential versions of the written observations are published. Yet in the event that private parties are not obliged to publish their written observations, it is our view that the threshold for keeping parts of the written proceedings secret should be high, and strictly limited to personal information and business secrets. In our view, in the interests of transparency and the fullest possible dissemination and discussion of the Court’s proceedings, no part of the legal argumentation should be allowed to be kept from the public. As much would seem to be implied by Article 27 of the Court’s Statute, which requires “serious reasons” for the Court to close a hearing to the public. In order to avoid any potential abuse, the same should apply to any legal argumentation included in possible annexes, and other supporting documents, which the Court suggests that it will not publish.
As to the time of publication, we fail to see why the serenity of the judicial deliberations should prevent publication of the written observations prior to delivery of judgment. Given that comprehensive reiterations of the arguments set out in the written observations of all parties have previously been included in the Report for the Hearing, and that these Reports were published even before the oral hearings, we would suggest that the same ought to apply for the publication of written observations on the Court’s website. Access to the written observations would be important – and in many cases quite simply necessary – in order to follow the oral pleadings. Furthermore, any added publicity, comment or debate that such swift publication might entail would greatly contribute to wider discussion and dissemination of the issues at stake in a given case, thereby further enhancing the public’s general awareness and understanding of the Court’s work. With the Court’s commendable practice of streaming the oral hearings on its website – a practice we would strongly urge the Court to continue also after the Covid 19-pandemic – the hearings have become available to many more members of the public otherwise unable to set aside the time and money required for the journey to Luxembourg. It would be most unfortunate if this development towards greater transparency in the workings of the Court should be offset by a simultaneous decision that would limit the usefulness and/or possibility of following the oral hearings considerably. We would also on this point like to refer to the practice of the International Court of Justice, the International Tribunal of the Law of the Sea, and the International Criminal Court, where written observations are being published as soon as they are received by the Court.
The decision to publish all requests for Advisory Opinions on the website merits praise. As noted by the Court, this provides additional transparency to the judicial dialogue between the Court and the national courts in the EFTA States. For the very same reason, any subsequent exchange between the EFTA Court and the referring court under Article 97(4) of the Court’s Rules of Procedure, whereby the Court may ask the referring court for clarifications, should also be published in the same way.
We would also suggest for reasons of ensuring transparency that in cases where the Court asks the parties to a case for supplementary observations, that these – along with the requests made by the Court – are also published in full on the Court’s website. This seems especially important, since neither the questions raised nor the answers proffered may end up being raised or mentioned at the oral hearing or reiterated in the Court’s decision.
Finally, we would also respectfully suggest that the proposal to publish written observations in Advisory Opinion cases also be extended to cases pursuant to Articles 31 and 36 of the Surveillance and Court Agreement. Failing which, we would suggest at the very least that the Reports for the hearings in such cases provide detailed reiterations of the arguments of the parties to the case and any intervening parties. If Articles 31 and 36 cases are treated differently than Advisory Opinion cases as far as publication of the written observations are concerned, this certainly justifies differences in treatment also as far as the Reports for the hearings are concerned, to offset at least some of the negative consequences of the former differentiation.
Authors
Christian N.K. Franklin, University of Bergen
Halvard Haukeland Fredriksen, University of Bergen
Finn Arnesen, University of Oslo
Tarjei Bekkedal, University of Oslo
Stian Øby Johansen, University of Oslo
Ole-Andreas Rognstad, University of Oslo
How to cite
Franklin, Christian N.K.; Fredriksen, Halvard Haukeland; Arnesen, Finn; Bekkedal, Tarjei; Johansen, Stian Øby ; Rognstad, Ole-Andreas (2021): Transparency in the judicial proceedings before the EFTA Court. Blog. EFTA-Studies.org.