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Thought of the day

with 12 comments

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The Law and judicial review would improve significantly if Court submissions were public.

 

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Written by Alfonso Lamadrid

11 December 2013 at 4:02 pm

12 Responses

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  1. But what about the confidentiality of proceedings if parties’ submissions are made public before a judgement is delivered? What about business secrets? What would be the scope of this right ? Would it also include the annexes (reports, analysis…) …..

    Louise

    11 December 2013 at 4:18 pm

  2. There is actually an interesting project that has been carried out at the University of Gothenburg where governments’ submissions to the ECJ were studied. Their trick to get a hold of those documents was through the Swedish foreign ministry, which keeps copies of these submissions. This was possible since there is a publicity principle for documents held by Swedish authorities. See here: http://anslag.rj.se/en/fund/37998#

    Katharina

    11 December 2013 at 4:24 pm

  3. It is interesting that national Supreme Courts are leading the way. Only a few weeks ago, the Irish Supreme Court announced that it would be publishing submissions. Problems such as business secrets can easily be dealt with. Even if that means some redactions, the submissions will usually still be intelligible in terms of the underlying argument. There is much to be done to improve transparency in Luxembourg.

    Jarleth

    11 December 2013 at 4:24 pm

  4. Especially for the loser :-)

    Damien

    11 December 2013 at 4:27 pm

  5. Parole, parole, parole

    That’s my thought of the day

    My sense after reading the judgment is that there seems to be no ‘Menarini effect’ after all.

    Two aspects that I found surprising about the judgment: (i) 140 paras (!) and (ii) the fact that in some passages I was not sure whether I was reading the Commission decision or the findings of the Court

    Personal disclosure: I had very interesting debates about the case with my LLM students. After those discussions, this ruling is somewhat anti-climactic

    Pablo Ibanez

    11 December 2013 at 5:06 pm

  6. Alfonso mate: there’s one good news!!! You can now side with me on ineffective judicial review :)

    Nicolas Petit

    11 December 2013 at 5:12 pm

  7. The parties’ submissions to the Supreme Court of Canada are public and available on-line from the Court’s website: see eg submissions in the Viagra case at http://www.scc-csc.gc.ca/case-dossier/info/fac-mem-eng.aspx?cas=33951 I expect redactions would be permitted to protect confidential information, as this is sometimes done in lower court decisions. However, it probably isn’t necessary very often in appeals to the Supreme Court, which generally deal with principles of law.

    Norman S

    12 December 2013 at 3:03 pm

  8. I have another one: “Going to Court against the Commission is quite often like gambling; Casino always wins”.

    Miguel Troncoso Ferrer

    12 December 2013 at 8:13 pm

  9. I disagree with the last comment- i’d say most of the times the party being right wins- not always, i grant you that – errors occur everywhere and it is inevitable that also a court makes mistakes
    but i do not see why going to court shld be a gamble, whomever you are challenging there
    if it were, hiring a lawyer or another would make no difference
    that is clearly not the case
    in fact some lawyers are able to charge very high fees and others cannot
    i’m not saying that the best paid lawyers are always or necessarily better than the ones paid less, but that’s what I see in the legal market

    luca

    16 December 2013 at 8:36 pm

    • My comment was not to be taken so seriously. I did not mean that going to Court is a gamble, of course not. I was just meaning that if we follow statistical data, it is quite hard to find cases where the Commission loses.

      And you are quite right about what you see in the legal market.

      Miguel Troncoso Ferrer

      17 December 2013 at 4:58 pm

  10. Alfonso: as you know, often, they ARE public
    Under the conditions laid down in the API judgment

    luca

    16 December 2013 at 8:38 pm

  11. Thanks for the comments!

    @ Louise: I wouldn’t suggest to do it before Judgments come out. I understand that -as pointed out by Jarleth- the problems you mention are adequately dealt with in other jurisdictions. You’re nevertheless right to point that there would be a number of practical issues to solve.

    @ Katharina: that’s a very good point. Member States should also also establish some mechanism to grant access to their submissions (even the Commission has it under the form of the transparency regulation, even if vere few people actually seek access to documents in cases that do not directly affect them).

    @ Jarleth: Agreed. I didn’t know about the Irish Supreme Court, but -prompted by your comment- I read about it this weekend; it makes a lot of sense.

    @ Damien Geradin: … sure.

    @ Pablo Ibañez: thanks for the understanding ;) Allow me not to comment on the “substance”.

    @ Nico: Innocence lost… I finally matured enough to understand Denis Walbroeck… :)

    @ Norman: thanks, but I really don’t want to know how you found out that submissions in the Viagra case in Canada were public!

    @ Miguel: thanks again; that’s a statement I would have nuanced (at least in the past). But losing or winning aside, the point of the post is that I think the law and sound legal reasoning improve when arguments are fully disclosed and publicly discussed (you may remember I made this same point some weeks ago regarding the assessment of evidence in cartel cases).

    @ Luca: Yes, but -unless I’m wrong- the API Judgment (for the benefit of those not familiar:http://ec.europa.eu/dgs/legal_service/arrets/07c514_en.pdf ) only relates to submissions from EU institutions. I agree that public institutions (both at the EU and Member State level) should be held to a higher standard of transparency (see comments above), but my point was wider; I’m referring to a Court docket of the sort they have in the States, which would also include submissions by private parties.

    Alfonso Lamadrid

    16 December 2013 at 9:00 pm


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