Opinion of the Advocate General — ECLI:EU:C:2016:994
Date: 2016-12-21
Language of the case: German
Subject matter: Provisions governing the Institutions;Access to documents
Procedure: Action for annulment;Appeal - unfounded

summary of the pleas and arguments, is available online as soon as it is drafted, thus also for pending cases. 110. Pleadings lodged before the International Court of Justice can be made accessible to the public, after ascertaining the views of the parties, on or after the opening of the oral proceedings. (50) 111. The International Tribunal of the Law of the Sea, for its part, makes pleadings of the parties to a case public on the opening of the oral proceedings - or earlier, though not until the views of the parties have been ascertained. (51) 112. Finally, within the Court of Justice of the European Union itself, specifically the General Court, the issue of access to judicial documents was initially governed by Article 5(8) of the Instructions to the Registrar of the General Court. Third parties could, after the parties to the case had been heard, obtain access to the case file on the express authorisation of the President or, if the case was still pending, by the President of the formation. That issue is now regulated by Article 38(2) of the new Rules of Procedure of the General Court, (52) which has taken over the rule that used to apply before the Civil Service Tribunal. (53) It provides that ‘no third party, private or public, may have access to the file in a case without the express authorisation of the President of the General Court, once the parties have been heard. That authorisation may be granted, in whole or in part, only upon written request accompanied by a detailed explanation of the third party's legitimate interest in having access to the file’. 113. What lessons, if any at all, can be drawn from such a varied overview of (and by definition selective) comparative samples? Four points shall be offered in lieu of a conclusion to this section. 114. First, judicial openness is all around. (54) If there is any common denominator to the considerably varied practice at the national and international levels, it is that the courts as institutions have been becoming more, not less, open in the last decade or two. 115. Second, whatever the individual or procedural arrangements in the system in question, potential disclosure of party pleadings tends to be administered by the courts themselves. Arguably, there are not many systems in which no access to pleadings would be provided at all. 116. Third, a comparison might be of relevance not only at the level of normative solutions, but also at the level of social impact and consequence of certain legislation or a solution. Seen from this perspective, it would not appear, in those systems that opted for greater openness and access to judicial documents, that the often conjured negative consequences, such as the information being exploited or misused by third parties, or parties’ agents or a member of the court being pressurised or influenced in any way, would have materialised in any tangible way. It might well be, of course, that such incidents have just not been reported. However, at the present stage, the comparative information available does not confirm the coming into existence of any of the frequently advanced dangers as to why greater openness at courts is not possible. 117. The fourth and final point is that of course it is true that normative choices and solutions adopted in one system are not eo ipso transferable into another system. Comparative argument remains an inspiration. The fact that others do things in a certain way does not mean that one must do the same. On the other hand, seeing the robust trend pointing in a clear direction, buttressed by strong normative arguments as to why reasonable openness of courts is a good thing, a very convincing explanation would be needed for suggesting that the Court of Justice is and ought to be different in this regard. D – Revisiting access to (external) judicial documents of the Court 118. Against this background, it is fair to acknowledge that the present state of openness at the Court as far as its judicial activity (55) is concerned is not optimal. An interested third party has no access to the judicial file. Access to some written pleadings might be possible in cases that have been closed, if the conditions of API are met. 119. Broader context and evolution of judicial practice also matters in this regard. Although there have been some positive developments with regard to access to (older) judicial documents of the Court, (56) the fact remains that as far as the overall access to further information about the ongoing judicial business of the Court is concerned, avenues of information were being closed rather than new ones being opened. Until the mid-1990s, an interested third party could have obtained more information about the case and the arguments of the parties through a report for the hearing published in the European Court Reports alongside the decision of the Court and the Opinion of an Advocate General. This is no longer possible as publication of the reports for the hearing was discontinued. Since 2012, with the entry into force of the new Rules of Procedure, reports for the hearing ceased to be generated altogether. Added to this is the increasing conciseness of both the judgments of the Court and the Opinions of Advocates General with respect to the restatement of the arguments advanced by the parties or interveners, for the obvious and understandable reasons of translation costs. 120. In sum, somewhat paradoxically in an age of universal internet information overload, the interested outside world is in fact receiving less and less information about the decision-making of the Court. The time is ripe to turn the tide. Against the outline above, providing greater access to some judicial documents of the Court should more properly be seen as re-establishing the balance in terms of understanding the judicial procedure before the Court: some avenues of information have, for operational reasons, been closed down. Others, such as broader access to written pleadings submitted to the Court, should therefore open up. 121. Before outlining a few suggestions in this regard, three preliminary points should be made at the outset. 122. First, all the suggestions made in this section are based on the principle of openness under Article 15(1) TFEU. It should be clearly reiterated that the Court, when exercising its judicial tasks, is not subject to the obligation to enable the right of access to documents. What follows is rather an expression of what a judicial institution that is responsive and reasonably engages with the broader world ought to wish to do of its own accord. 123. The approach of the European Central Bank (ECB) may be illustrative in this regard. The ECB is in a similar position to that of the Court. By virtue of Article 15(3), fourth subparagraph, TFEU, the ECB is subject to the right of access to documents only when exercising its administrative tasks. (57) That fact, however, did not prevent the ECB from voluntarily providing wider access to its documents, some time ago, on the basis of the broad concept of openness laid down in Article 1, second paragraph, TEU. (58) 124. Second, and following on from the previous point, nor is the Court covered by Regulation No 1049/2001. However, even if not applicable, the principles and the case-law under the Regulation might provide some guidance in devising the appropriate legislative solution, as was in fact also the case with the Court’s Decision of 11 December 2012. 125. Third, in terms of access, two categories of judicial documents (59) of the Court ought to be distinguished: ‘internal judicial documents’ and ‘external judicial documents’. 126. Internal judicial documents are those drafted within the Court and for the Court, such as draft opinions and judgments, preliminary reports, notes for a decision on procedure, or notes for deliberation. Those documents pertain to the quintessential process of judging. Unless the nature of the judicial function was to change considerably, those documents cannot be concerned by openness. (60) 127. External judicial documents of the Court are either those drafted by the Court for the purpose of the Court’s judicial communication with external bodies (parties, interveners, or the national courts) or those submitted by third parties to the Court in judicial proceedings, such as pleadings submitted by the parties, but also the requests for a preliminary ruling submitted by national courts. They may, in principle (unless any of the exceptions preventing disclosure in the individual case applies), be accessible to foster openness at the Court. 128. All that follows in this section relates exclusively to external judicial documents of the Court. As to the practical modalities of access, I am of the opinion that the Court should grant physical (1) and remote (2) access to external judicial documents upon request. Ideally, it could also provide access to certain documents of its own motion (3). 1. Third-party physical access to individual documents in the file 129. Third-party access to the judicial file, or rather the appropriate segment of it containing external judicial documents, ought to be made possible at the premises of the Court upon request in both closed as well as pending cases. (61) 130. Differentiated regimes of access to the file might be called for with regard to ongoing and closed cases. There is a difference in the balance of interests. The right balance needs to be struck between two competing aims: openness on the one hand and protection of court proceedings on the other. Before the judgment is issued (or, at any rate, until the oral hearing or until the end of the written stage of procedure in cases without oral hearing), the legal discussion should be concentrated within the Court and take place in the courtroom, not in the media. In addition, although the danger of influence or threats to parties or their representatives should not be exaggerated, it cannot be completely excluded either. 131. There is, however, no reason why there would be the need for any prima facie presumption, as in API, that disclosure of judicial documents in pending cases would automatically go against the requirement of protection of court proceedings. A case-by-case assessment is called for, also in view of the institutional dimension of the proposition discussed here: if it is the Court itself deciding on the potential disclosure, there is perhaps less need for any presumptions formulated to guide administrative discretion. 132. Therefore, access to external judicial documents in pending cases could also be allowed, albeit in a restricted manner compared to closed cases. In pending cases, a third party that shows a legitimate interest in consulting a document should have a right of access to it, upon individual application, on the premises of the Court. The decision on access should be made by the President of the Chamber, who is arguably best placed to weigh the competing interests present with the particular details of the individual case. The parties to the ongoing proceedings should be consulted. 133. In closed cases, when there is no connection to any pending cases, an overall lighter access regime ought to apply. A legitimate interest shall no longer be required. Indeed, in terms of balancing, the overall public interest in openness can be presumed to prevail and the access will be granted, unless there is any legitimate reason that could prevent such access, such as protection of personal data, protection of minors or of business secrets. For the same reasons, but also for a number of practical reasons, for closed cases there should no longer be the need to consult the parties. 2. Third-party remote access to individual documents in the file 134. Requests for remote access to individual external judicial documents contained in a judicial file should also be possible in order to facilitate individual access. Such type of access is in particular likely to be of relevance with regard to standard types of documents, which are reasonably expected to be present in a file, such as pleadings submitted in a case by a party or an intervener. 135. Enabling some type of remote access is in the best interest of both: the interested third party as well as, in fact, the institution itself. Equality and social considerations plead for remote access in the case of the former: not everybody can afford to travel to Luxembourg in person to inspect the file at the premises of the Court. As the Court has stated in different contexts on a number of occasions, substance and the ability to genuinely exercise certain a right must be safeguarded, not just the mere formal existence of a right or remedy. (62) 136. In any event, the conditions for remote access should in substance be the same as those suggested for physical access to files at the premises of the Court, outlined above in points 130 to 133. However, the interested person must be naturally more specific in terms of the precise documents he or she would like to obtain. Equally, reasonable caps might be imposed on the amount of copies, as well as appropriate fees for those copies. 3. Online access to selected judicial documents 137. Finally, as a supplement to the individual request but also as its extension, a more proactive stance to the publication of selected external judicial documents could be envisaged for closed cases (or at least a portion of them). In such cases, the most significant types of external judicial documents – such as the request for a preliminary ruling, the pleadings of the parties and, if applicable, the national court’s final decision – could be put on the Court’s website, as a matter of routine. They would create, together with the decision of the Court and, if delivered, Opinion of the Advocate General, an online ‘E-file’ of a case. 138. The suggestion made is in fact by no means as revolutionary as it might appear at first sight: all three types of documents tend to be already, in one way or another, in the public domain. The text of the questions referred by national courts in their requests for a preliminary ruling are already published in the Official Journal of the European Union. Besides, in most Member States’ legal systems, those requests are normal judicial decisions (orders) that are likely to be accessible anyway, in the respective online databases of national courts. (63) That also holds true for the final decision of the national court which would be, in most jurisdictions, accessible online as well. For their part, written pleadings of the Commission in closed cases may already be obtained by virtue of API and, if the Court follows the approach advocated in the first part of this Opinion (Section A), the Commission would be obliged also to disclose the written observations submitted by other parties. 139. Thus, all that information is already somehow in the public domain. It is just difficult to locate and to access, scattered across a number of databases in numerous Member States and Union institutions. Such a proactive stance would certainly foster the discourse and awareness of European Union law which is naturally in the interest of the Court itself. It would, in fact, also save the time and resources of the institution, as well as those of the individual: no special requests for access would have to be made, and nobody would have to process them. 140. Three final remarks relating to all three modalities of access are outlined in this section: first, in my view, openness with regard to external judicial documents means inspection of the file or remote access to the documents in the version received by the Court from an individual party, including the language in which the document was originally received. 141. Second, should the Court embrace any of the suggestions made in this section, their gradual implementation should allow the parties concerned to adapt their course of action, should they wish to. In particular, clear instructions to the parties in advance would indicate that a third party might seek access to the judicial file. If that materialises, it could be open to the author of the document (pleadings) to suggest to the Court what part of their submissions ought not to be disclosed. 142. Third, of course the suggestions made in this section would require a number of other technical adaptations. However, the technical and operational issues cannot be allowed to cloud the original value, deeply reflecting the vision of what type of court the Court wishes to be. There is no reform without change. 4. A Coda 143. Finally, for the sake of completeness: how would the suggestions made in this section relate to the Court’s ruling in API, potentially filled out by the Court’s judgment in the present case? 144. As I acknowledged above (Section B), the API approach, brought to its outer, but logical and necessary, conclusions by the present case, is not ideal. However, until and unless the Court itself provides for access to some of its judicial documents, that approach and the possibility it gives ought to stand. Once, however, the Court devises rules on access to its judicial documents, those rules should take precedence, as lex specialis, over the jurisprudential approach embraced by API and potentially extended by the present case. 145. Once any such system is established, any requests for disclosure of judicial documents should primarily be addressed to the Court. In practical terms, if the Court is approached before another EU institution, its decision as to whether to grant access binds the Commission, and any other Union institutions. That means those latter institutions could not disclose the requested documents, even if in possession of them, if the Court refused to provide access. If requests for third-party documents were addressed first to the Commission or another institution covered by the Regulation, it is my humble suggestion that they should be redirected to the Court. Nevertheless, that should not, in principle, prevent self-disclosure of an institution’s own documents, that is, its own pleadings. The parties would remain free to disclose their own pleadings, in line with previous case-law. (64) E – Costs 146. At the hearing, the Commission asked the Court to order Mr Breyer, on the basis of Article 138(3) of the Rules of Procedure, to bear his own costs, even in the case of the dismissal of the appeal. 147. Mr Breyer asked the Court to order the Commission to bear the costs of the appeal. He further invited the Court to generally clarify the issue of whether a party may use the documents obtained only to defend his or her own private interests or may also freely publish them online and comment on them. 148. In the judgment under appeal, the General Court gave satisfaction to Mr Breyer on the merits. However, it ordered him to pay half of his own costs incurred by the Commission on account of the fact that he published on his website, while the judicial proceedings were still ongoing, the defence, the reply, Sweden’s statement in intervention and an exchange of letters between the Commission and the applicant on the subject of the publication of those documents. The publication of the documents would have offered internet users the possibility to make comments and given rise to a number of comments which were critical of the Commission. (65) 149. It ought to be stressed that the General Court’s decision on costs is not the subject of the present appeal. That issue is not formally raised as a separate ground of appeal by the Commission. It was also not subject to a cross-appeal by Mr Breyer. 150. Instead, in the present appeal, the Commission invited the Court to rule on the costs of the appeal in a similar way to the General Court. Indirectly therefore, the Court is asked to endorse the approach of the General Court, by essentially replicating it on the appellate level. 151. I would not recommend the Court to do so. My proposition to the Court as far as a decision on costs of the present appeal is concerned is to follow the normal rule of Article 138(1) of the Rules of Procedure and to order the Commission, as the unsuccessful party, to pay the full costs of the Respondent, for two reasons. 152. First, even if one were to endorse the approach of the General Court in relation to costs in a similar situation, the Respondent was already ordered to bear half of his own costs by the General Court. In this respect, I fail to see why he should be sentenced a second time for apparently the same alleged wrongdoing at the appellate level as well. 153. Second, I must admit that I also have general reservations as to the approach chosen by the General Court. For its decision on costs in the present case, the General Court relied on its previous decision in Svenska. (66) The present case, however, appears to me to be rather different, both factually as well as procedurally. 154. As to the facts, in Svenska, it was stated that the applicant published edited – that is, altered – versions of the relevant judicial documents online, with the telephone and telefax numbers of the Agents of the Council, expressly inviting the public to send their comments and thus bring pressure upon the Council, to provoke the public criticism of the Agents. (67) For that, the applicant received only two thirds of its costs from the Council, although it was wholly successful in the case. In the present case, it would appear that Mr Breyer contented himself with publishing the integral version of the received documents online, without altering them, and only after having anonymised all of the personal data. And for that, which might be arguably seen as much less interference, the defendant was reimbursed only half of his costs. 155. There also appears to be a procedural difference. In Svenska, the issue of publication of judicial documents on the internet was treated as a preliminary issue by the Court of First Instance, on which the parties were invited to submit observations, with the incident being discussed and incidence of the publication on the proceedings assessed. (68) In the present case, it is not entirely evident how specifically (the factually rather different) disclosure would have impaired the Commission’s right of defence and constitute a misuse of the pleadings. (69) 156. For all these reasons, I would suggest that the Court follow the general rule applicable to allocation of costs of appeals: the unsuccessful party shall be ordered to bear the costs. A (potentially) far-reaching decision of the Court on whether and how a party to the proceedings might publish online the pleadings of another party or intervener ought to be reserved for a proper and full consideration in a different case, where that issue would be properly heard and discussed. VI – Conclusion 157. In the light of the aforementioned considerations, I propose that the Court should: – dismiss the appeal; – order the Commission to bear its own costs and those incurred by Mr Patrick Breyer; – order the Kingdom of Spain, the French Republic, the Republic of Finland and the Kingdom of Sweden to bear their own costs. 1 – Original language: English. 2 – Regulation of the European Parliament and of the Council of 30 May 2001 (OJ 2001 L 145, p. 43). 3 – Judgment of 21 September 2010, Sweden and Others v API and Commission and API v Commission and Commission v API (C‑514/07 P, C‑528/07 P and C‑532/07 P, EU:C:2010:541). 4 – Decision of the Court of Justice of the European Union of 11 December 2012 concerning public access to documents held by the Court of Justice of the European Union in the exercise of its administrative functions (OJ 2013 C 38, p. 2). 5 – Directive of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC (OJ 2006 L 105, p. 54). 6 – Throughout this Opinion, I shall employ the term (written) ‘pleadings’ as a generic term referring to any written submissions made by a party or an intervener in a procedure before the Court, thus encompassing both the notion of (written) ‘observations’ and (written) ‘submissions’. 7 – Judgment of 29 July 2010, C‑189/09, EU:C:2010:455. 8 – Judgment of 21 September 2010, Sweden and Others v API and Commission and API v Commission and Commission v API (C‑514/07 P, C‑528/07 P and C‑532/07 P, EU:C:2010:541). 9 – T‑188/12, EU:T:2015:124. 10 – Paragraphs 47 to 48 of the judgment under appeal. 11 – Paragraph 74 of the judgment under appeal. 12 – Paragraph 80 of the judgment under appeal. 13 – Paragraph 112 of the judgment under appeal. 14 – Paragraph 113 of the judgment under appeal. 15 – See judgment of 21 September 2010, Sweden and Others v API and Commission and API v Commission and Commission v API (C‑514/07 P, C‑528/07 P and C‑532/07 P, EU:C:2010:541, paragraph 79 et seq.). 16 – See judgment of 21 September 2010, Sweden and Others v API and Commission and API v Commission and Commission v API (C‑514/07 P, C‑528/07 P and C‑532/07 P, EU:C:2010:541, paragraphs 130 to 131). 17 – See judgment of 21 September 2010, Sweden and Others v API and Commission and API v Commission and Commission v API (C‑514/07 P, C‑528/07 P and C‑532/07 P, EU:C:2010:541, paragraph 92 et seq.). 18 – See judgments of 18 December 2007, Sweden v Commission (C‑64/05 P, EU:C:2007:802, paragraph 55), and of 21 July 2011, Sweden v MyTravel and Commission (C‑506/08 P, EU:C:2011:496, paragraph 88). See also recital 10 of the Regulation. 19 – See judgment of 18 December 2007, Sweden v Commission (C‑64/05 P, EU:C:2007:802, paragraph 56). 20 – It might be added that the same is true also for other types of proceedings before the Court where the Commission is involved, notably the preliminary ruling procedure. Also in the latter type of proceedings, if the Commission decides to intervene pursuant to Article 23 of the Statute of the Court of Justice, it naturally acts within its sphere of responsibility in the sense of Article 3(a) of the Regulation. 21 – See my Opinion in Typke v Commission (C‑491/15 P, EU:C:2016:711, paragraph 35 and the case-law cited). 22 – It is perhaps worth noting that Article 15(3), fourth subparagraph, TFEU refers to ‘administrative tasks’. However, neither that provision, nor in fact the Regulation in its exception in Article 4(2), actually employ the term ‘judicial activity’. On the other hand, assuming that the Court can act only when exercising its ‘administrative tasks’ or, a contrario, ‘judicial tasks’ (and that tertium non datur), then, for all practical purposes, the exercise of ‘judicial tasks’ might be equated with ‘judicial activity’ and the exercise of ‘administrative tasks’ with ‘administrative activity’. 23 – Implemented by the Court in its Decision of 11 December 2012). 24 – Thereby joining in general the suggestion already made with regard to access to judicial documents in ongoing cases in the Opinion of Advocate General Poiares Maduro in Sweden v API and API v Commission and Commission v API (C‑514/07 P, C‑528/07 P and C‑532/07 P, EU:C:2009:592, paragraph 14). 25 – In relation to the Court and to judicial institutions in general, I shall employ the term ‘openness’ and not ‘transparency’. Judicial work, unless its character is to change considerably, can never be transparent. It might seek to become, however, reasonably open in the sense of being accessible, both intellectually as well as physically, for the citizens. 26 – See, for example, Alemanno, A., Stefan, O., ‘Openness at the Court of Justice of the European Union: Toppling a Taboo’, Common Market Law Review, Vol. 51, Kluwer Law International, 2014, pp. 97 to 139. More generally, on openness and transparency in the context of the European Union, see Prechal, S., De Leeuw, M.E., ‘Transparency: A General Principle of EU Law?’, in Bernitz, U. et alia (eds), General Principles of EC Law in a Process of Development, Kluwer Law International, London, 2008, pp. 201 to 242; Dyrberg, P., ‘Accountability and Legitimacy: What is the Contribution of Transparency?’, in Arnull, A., Wincott, D. (eds), Accountability and Legitimacy in the European Union, Oxford University Press, Oxford, 2002, pp. 81 to 96; Rideau, J. (dir), La transparence dans l’Union européenne – Mythe ou principe juridique?, L.G.D.J, Paris, 1999; Curtin, D., Executive Power of the European Union. Law, Practices, and the Living Constitution, Oxford University Press, Oxford, 2009, pp. 204 to 245; Coudray, L., ‘La transparence et l’accès aux documents’, in Auby, J.-B., Dutheil de la Rochère, J. (dir), Traité de droit administratif européen, 2nd edition, Bruylant, Brussel, 2014, pp. 699 to 712. 27 – See also Article 10(3) TEU, which falls under Title II ‘Provisions on democratic principles’, and, more broadly, also Article 298(1) TFEU. Emphasis added. 28 – See judgment of 9 November 2010, Volker und Markus Schecke and Eifert (C‑92/09 and C‑93/09, EU:C:2010:662, paragraph 68 and the case-law cited). 29 – Furthermore, given specific factual constellations, other rights could also be potentially relevant, such as Article 13, entitled ‘Freedom of arts and the sciences’. It provides that ‘the arts and scientific research shall be free of constraint. Academic freedom shall be respected’. 30 – See for instance judgments of the ECtHR of 10 July 2006 in Sdružení Jihočeské Matky v. Czech Republic (ECLI:CE:ECHR:2006:0710DEC001910103); of 14 April 2009 in Társaság a Szabadságjogokért v. Hungary (ECLI:CE:ECHR:2009:0414JUD003737405, § 35); of 3 April 2012 in Gillberg v. Sweden (ECLI:CE:ECHR:2012:0403JUD004172306, § § 82-83); and of 17 February 2015 in Guseva v. Bulgaria (ECLI:CE:ECHR:2015:0217JUD000698707, § 53). 31 – See judgment of the ECtHR of 14 April 2009 in Társaság a Szabadságjogokért v. Hungary (ECLI:CE:ECHR:2009:0414JUD003737405). 32 – Stating, in rather sweeping terms, that ‘the present case essentially concerns an interference – by virtue of the censorial power of an information monopoly – with the exercise of the functions of a social watchdog, like the press, rather than a denial of a general right to access to official documents’ - judgment of the ECtHR of 14 April 2009 in Társaság a Szabadságjogokért v. Hungary (ECLI:CE:ECHR:2009:0414JUD003737405, § 36). 33 – See, for illustration, the pending case concerning access to a case file: ECtHR, Studio Monitor and Zuriashvili v. Georgia, Application no. 44920/09. 34 – Bentham, J., ‘Draught of a Code for the Organization of the Judicial Establishment in France, in Works IV (1790)’, The Works of Jeremy Bentham, 1838-1843, Bowring, J., (ed), Russell & Russell, New York, 1962, p. 316. 35 – Bentham, J., ‘Essay on Political Tactics, in Works II (1791)’, The Works of Jeremy Bentham, 1838-1843, Bowring, J., (ed), Russell & Russell, New York, 1962, p. 314. 36 – See, in general, Dawson, J.P., The Oracles of Law, University of Michigan Law School, Ann Arbor, 1968, in particular pp. 50 to 64. 37 – See Opinion of Advocate General Poiares Maduro in Sweden v API and API v Commission and Commission v API (C‑514/07 P, C‑528/07 P and C‑532/07 P, EU:C:2009:592, paragraph 26, last line). 38 – See De S.-O.l’E. Lasser, M., Judicial Deliberations. A Comparative Analysis of Judicial Transparency and Legitimacy, Oxford University Press, Oxford, 2009, p. 299 et seq. 39 – See Scharpf, F., Regieren in Europa. Effektiv und demokratisch?, Campus Verlag, Frankfurt/New York, 1999, pp. 16 to 28. 40 – See Ewing, K.D., ‘A Theory of Democratic Adjudication: Towards a Representative, Accountable and Independent Judiciary’ Alberta Law Review, Vol. 38, 2000, pp. 708 to 733. In the CJEU’s context, see de Witte, B., ‘Democratic Adjudication in Europe – How Can the European Court of Justice be Responsive to the Citizens?’, in Dougan, M., Nic Shuibhne, N., Spaventa, E. (eds), Empowerment and Disempowerment of the European Citizen, Hart Publishing, Oxford and Portland, 2012, pp. 129 to 144. 41 – R v Sussex Justices, Ex parte McCarthy ([1924] 1 KB 256, [1923] All ER Rep 233). Emphasis added. 42 – See Habermas. J., Faktizität und Geltung. Beiträge zur Diskurstheorie des Rechts und des demokratischen Rechtsstaats. Suhrkamp, Frankfurt am Main, 1992, p. 435 et seq. 43 – See, emphasising the link between access to information on the part of social watchdogs and contributing to public debate, judgments of the ECtHR of 25 June 2013 in Youth Initiative for Human Rights v. Serbia (ECLI:CE:ECHR:2013:0625JUD004813506, § 24) and of 28 November 2013 in Österreichische Vereinigung Zur Erhaltung, Stärkung und Schaffung Eines Wirtschaftlich Gesunden Land- und Forstwirtschaftlichen Grundbesitzes v. Austria (ECLI:CE:ECHR:2013:1128JUD003953407, § 33). 44 – See Opinion of Advocate General Poiares Maduro in Sweden v API and API v Commission and Commission v API (C‑514/07 P, C‑528/07 P and C‑532/07 P, EU:C:2009:592, paragraph 33). 45 – See for instance, Sharpston, E., ‘Transparency and Clear Legal Language in the European Union: Ambiguous Legislative Texts, Laconic Pronouncements and the Credibility of the Judicial System’, Cambridge Yearbook of European Legal Studies, Vol. 12, 2010, pp. 409 to 423. 46 – See, for the outline of selected national systems, National practices with regard to the accessibility of court documents, European Parliament, Directorate-General for Internal Policies, Policy Department C: Citizens’ Rights and Constitutional Affairs, 2013; or Report on Access to Judicial Information, Open Society Justice Initiative, March 2009. 47 – See in this regard, in particular the Model Policy for Access to Court Records in Canada, drawn up by the Judges Technology Advisory Committee of the Canadian Judicial Council in September 2005, as well as the Policy for Access to Supreme Court of Canada Court Records of 17 March 2015 (online at http://www.scc-csc.ca/case-dossier/rec-doc/pol-eng.aspx). 48 – Rule 33(2) of the ECtHR’s Rules of Court. 49 – Article 14(5) of EFTA Court’s Rules of Procedure. 50 – Article 53 of the Rules of Court of the International Court of Justice. 51 – Article 67 of the Rules of the International Tribunal for the Law of the Sea. 52 – OJ 2015 L 105, p. 1. 53 – Article 22(2), first subparagraph, of the Rules of Procedure of the Civil Service Tribunal (OJ 2014 L 206, p. 1). 54 – A sceptic might remark that it used to be love (that was all around). But then apparently something has changed (certainly with regard to public perception of courts). 55 – Leaving aside, in this section, the access to the Court’s documents relating to its administrative activities, provided for by the Decision of the Court of Justice of the European Union of 11 December 2012. 56 – See Decision of the Court of Justice of the European Union of 10 June 2014 concerning the deposit of the historical archives of the Court of Justice of the European Union at the Historical Archives of the European Union (European University Institute) (OJ 2015 C 406, p. 2). 57 – Despite the absence at that time of a Treaty provision requiring it to give access to its administrative documents, the ECB already provided for such access in Decision ECB/1998/12 of 3 November 1998 concerning public access to documentation and the archives of the European Central Bank (OJ 1999 L 110, p. 30). 58 – Decision of the European Central Bank of 4 March 2004 on public access to European Central Bank documents (OJ 2004 L 80, p. 42). 59 – As opposed to administrative documents of the Court. 60 – Unless some of them are made accessible in the Historical Archives (see above, note 56). 61 – Thus, in a (modified) way, following the example of the Rules of Procedure of the General Court and the now defunct Civil Service Tribunal (see above, point 112 of this Opinion). 62– See, by a broader analogy with cases relating to effective judicial protection, judgments of 15 September 2016, Star Storage and Others (C‑439/14 and C‑488/14, EU:C:2016:688, paragraph 44) or of 22 December 2010, DEB (C‑279/09, EU:C:2010:811, paragraph 28). 63 – In addition, some national jurisdictions, in particular higher jurisdictions, go even further and ‘self-post’ on their own websites, with regard to requests for preliminary rulings that they have submitted to the Court: they typically publish their original request for a preliminary ruling, the Court’s reply, and their own final national decision. 64 – See order of 3 April 2000, Germany v Parliament and Council (C‑376/98, EU:C:2000:181, paragraph 10). 65 – Paragraph 126 of the judgment under appeal, in the light of paragraphs 120 and 122. 66 – Judgment of 17 June 1998, Svenska Journalistförbundet v Council (T‑174/95, EU:T:1998:127). 67 – Judgment of 17 June 1998, Svenska Journalistförbundet v Council (T‑174/95, EU:T:1998:127, paragraph 138). 68 – Judgment of 17 June 1998, Svenska Journalistförbundet v Council (T‑174/95, EU:T:1998:127, paragraphs 22 to 24). 69 – Judgment under appeal, paragraphs 123 and 124, with the Commission’s claim as to costs apparently only having been made at the hearing (paragraph 25 of the judgment under appeal).