Peter Oliver, Barrister, Monckton Chambers; Visiting Professor, Université Libre de Bruxelles
Having a name is essential, as not having one can lead to problems. This is why courts in Strasbourg and Luxembourg have acknowledged a person’s fundamental right to use their own name.
The Court of Justice has traditionally used initials to protect the identities of vulnerable individuals like asylum seekers and children involved in sensitive litigation. However, in a recent announcement, the Court stated its intention to partially overturn this long-standing practice. Beginning July 1st, when preliminary references involve individuals, their names will be replaced with initials that don’t match their actual initials.
This change is motivated by the Court’s case law on data protection, the implementation of the General Data Protection Regulation (GDPR), and the updated regulations regarding data processing by EU institutions.
While data protection is crucial in the digital age, this right, as enshrined in Article 8 of the Charter, is not absolute. It must be carefully considered alongside an individual’s right to use their own name.
Established legal precedent recognizes the right to use one’s name as an integral aspect of personal identity, safeguarded under Article 8 of the European Convention on Human Rights (ECHR). This principle, introduced into EU law over 25 years ago, is now protected under Article 7 of the Charter.
Furthermore, Article 11 of the Charter, which enshrines freedom of expression, must also be taken into account. Article 85 of the GDPR explicitly requires Member States to strike a balance between data protection and freedom of expression and information, including processing for journalistic purposes.
The Court’s announcement does acknowledge that it “may” deviate from this new rule if a party specifically requests it or if the circumstances justify it. However, the language used is unclear and provides no specific guidance on what constitutes justifiable “particular circumstances.”
In high-profile cases involving public figures, the Court has published the full names of individuals. However, many litigants take pride in having their names associated with landmark cases. It remains unclear whether individuals will be consistently informed of their right to have their names used in proceedings and if they’ll have sufficient time to inform the Court of their preference.
There are rumors that the Court is considering faster notifications to Member State judiciaries about new preliminary references to prevent duplicate inquiries. While seemingly beneficial, this should not supersede the fundamental rights of litigants. The Court could withhold names initially and disclose them later when appropriate.
This change in policy was implemented without amending the Rules of Procedure, which would have required the Council’s approval under Article 253 TFEU. Article 95 of the Rules of Procedure already provided a framework for anonymization, allowing the Court to alter its practice regarding the anonymization of parties’ names “of its own motion.”
It is also unclear whether the Court, in line with good governance principles, consulted with other institutions like EU bodies, Member States, or legal associations before enacting this significant change.
While Article 95 specifically addresses preliminary rulings, Article 190(3) extends its application to appeals against General Court decisions. However, the new policy seemingly only applies to preliminary rulings, potentially to avoid interfering with General Court decisions or recognizing the futility of doing so.
The disparity between the Court’s acceptance of the General Court’s decisions on anonymity and its imposition of its own approach on preliminary references is notable. This raises questions about the Court’s commitment to cooperation with national courts on preliminary rulings and the practicality of imposing anonymity when national courts might not follow suit.
The Court lacks the authority to prevent Member State courts or others from using a litigant’s real name. The Irish case, known as LM in Luxembourg but retaining the original name in Ireland, illustrates this.
The Court’s recommendation to national courts to remove natural persons’ names from preliminary references remains aspirational unless anonymization is mandated by GDPR or Article 8 of the Charter.
This situation undermines the Court’s authority and creates inconsistencies with common law traditions and several national legal systems where using parties’ real names is standard practice.
The Court’s website is ill-equipped to handle the shift to random initials. Searching for cases by name will become significantly harder without a reliable way to connect initials to specific cases, hindering legal research.
While the Court has pledged to add keywords to case names, this might not be as effective as using real names, especially if the chosen keywords are common in case law.
This new practice will make the Court’s case law less accessible to legal professionals, academics, and students.
To mitigate these issues, the Court should, at a minimum, respect the referring court’s practices unless compelling reasons necessitate otherwise. Improvements to the Court’s website and other measures could further alleviate the drawbacks of this hastily implemented policy.
Barnard & Peers: chapter 10
Photo credit: Inforrm’s blog