Beware of Courts Bearing Gifts: Transparency and the Court of Justice of the European Union

Abstract

This article reconsiders the principle of transparency in the European Union (EU) legal order and takes as its focal point the contribution of the EU Courts as regards the presumptions of non-disclosure of EU documents. The aim is to investigate the role played by the judiciary in relation to a twofold question: How open can the Union’s decision-making be, and is it possible for citizens to participate in the decision-making process of EU institutions, bodies, offices and agencies? The article argues that accountability deficits in the field of access to documents have been filled, to an extent, by the EU Courts’ imposition of boundaries on the broad derogations to the right of access to documents. But nevertheless, the article concludes that the establishment through the case law of general presumptions against openness has fundamentally weakened the standards of accountability. Rather regrettably, although the EU legislature set the default position to the widest access to documents, this has been reversed to non-disclosure by the EU judiciary as regards non-legislative documents.