Peter Oliver, Honorary Professor at the Université Libre de Bruxelles

Photo credit: Isaac Castillejos

In June 2018, the Court of Justice announced its decision to alter its handling of personal data in preliminary ruling requests. Citing the General Data Protection Regulation (GDPR), the Court stated its commitment to safeguarding the data of individuals involved in these cases while upholding transparency and public access to court proceedings.

Starting July 2018, the names of individuals in all public documents related to preliminary rulings would be replaced with initials, not their actual ones, alongside a brief description of the case subject matter. This practice extended to all publications from the case’s initiation to its closure. Importantly, this only applied to preliminary rulings and not legal persons, and the Court reserved the right to deviate from this approach if circumstances permitted or upon a party’s explicit request.

While this new policy aimed to protect individual privacy, as emphasized by Article 8 ECHR and Article 7 of the Charter, it differed significantly from the previous practice of anonymizing only sensitive cases.

The Court, through its July 2018 recommendations published in the Official Journal, urged national courts to adopt similar anonymization practices when submitting preliminary references, acknowledging their lack of authority to enforce it.

Further information regarding anonymity in judicial proceedings is available on the Court’s website. It confirms that individuals involved in cases other than preliminary references can request anonymity. For preliminary references, the website reiterates the Court’s commitment to respecting anonymity decisions made by referring courts, as stated in Article 95(1) of its Rules of Procedure. It also reiterates the key elements of the June 2018 press release.

The website clarifies that this policy shift anticipated the implementation of Regulation 2018/1725, aiming to align data protection rules within EU institutions with the GDPR. Despite the regulation’s broad application, the Court retains the option to return to its pre-July 2018 practices.

In December 2018, concerns were raised regarding this approach, particularly the difficulties it posed in case identification and recall for legal professionals and academics.

Responding to these concerns, the Court, in January 2023, announced a shift from initials to fictional, computer-generated names in new preliminary references. These fabricated names, created by randomly combining word syllables, will be generated for all EU official languages and, when needed, for third-country languages.

This press release further outlines scenarios where this new naming convention doesn’t apply: cases with sufficiently distinctive legal person names, direct actions, requests for opinions, appeals, and cases before the General Court.

While this new system addresses the issue of case identification and recall, other concerns remain. First, it still infringes upon an individual’s fundamental right to be identified by their name, as protected by Articles 8 and 10 ECHR and Articles 7 and 9 of the Charter. While the Court allows for individuals to request the use of their real names, this provision is rendered meaningless unless individuals are made aware of this option early in the process. Additionally, the Court’s discretionary power to deviate from anonymization based on “particular circumstances” offers little solace to individuals.

Second, disregarding the case names used by national courts in preliminary references contradicts the Court’s emphasis on collaboration in such proceedings. Moreover, the Court cannot compel national courts to adopt this practice. Therefore, respecting national courts’ chosen case names, except in extraordinary situations, is recommended.

Finally, relying on computer-generated names risks generating names with potentially offensive connotations in different languages. Preventing this necessitates meticulous checks, potentially delaying an already time-sensitive process.

Despite these concerns, the 2018 policy shift has yet to gain widespread adoption. The General Court remains hesitant, and it’s unclear how many national courts have implemented anonymization in preliminary references. The effectiveness of the recent changes remains to be seen. Nonetheless, a return to the pre-summer 2018 practices is strongly advocated.