Vigjilenca Abazi & Christina Eckes*
*Assistant professor of European law, Maastricht University and professor of European law, University of Amsterdam, respectively.
Beyond a ‘Procedural’ Adjustment
The European Union has encountered substantial political and economic turmoil in recent years. For the first time in its 60-year existence, it faces a Member State seeking to withdraw, confronts hostility and trade conflicts with its former transatlantic partner, and grapples with rising populist movements across Europe that challenge the EU’s core principles, such as the rule of law. Amidst this uncertainty and pressure, it’s understandable that less attention is given to the EU courts and their evolving approach to sensitive information, such as classified documents involving national security.
A seemingly minor change, a 2015 revision to the Rules of Procedure concerning the handling of confidential information by EU courts, has significant implications for access to justice, European judicial collaboration, and EU counterterrorism efforts—all issues largely absent from public discourse.
For the first time in EU court history, reliance on undisclosed evidence, meaning evidence not accessible to the applicant, is permissible. This restriction on an individual’s ability to defend themselves contradicts established rights to access to justice under both EU law and the European Convention on Human Rights (ECHR).
This procedural adjustment unfolded largely behind closed doors. When human rights organizations voiced concerns, they were rebuffed by the then-President of the General Court, who rejected any “interference.”
Drawing on a recent publication concerning undisclosed evidence, we outline the ramifications of this practice for access to justice and European judicial cooperation.
An Unjustified Restriction of Access to Justice
The right to access to justice is safeguarded by all Member States’ constitutions, the EU Charter of Fundamental Rights, and the ECHR. Under these legal frameworks, any restrictions on access to justice must be justified and meet specific criteria. A fundamental requirement is disclosing the essence of confidential information used against an individual, enabling them to mount a defense and refute allegations. However, Article 105(8) of the Rules of Procedure of the General Court permits, in certain circumstances, complete secrecy and non-disclosure of confidential materials to the applicant. For instance, if the Council relies on confidential information in its arguments and the Court accepts the sensitivity of these files, the Court may base its decision on these arguments without disclosing them to the applicant. Even a summary is withheld, marking a departure from previous Court rulings.
Constraints do apply to the Court’s use of undisclosed evidence. First, the Court may consider confidential information only if it is crucial to the case. Second, the Court must limit itself to strictly necessary information. Third, the final judgment must acknowledge the applicant’s inability to address the undisclosed evidence. While these constraints are important, they do not compensate for the lack of even a summary of the undisclosed evidence, a requirement in ECtHR case law.
The EU procedure for undisclosed evidence’s inconsistency with ECtHR case law could put Member States in a precarious legal situation. Bound by the ECHR under international law, following the EU procedure would violate their obligation under the ECtHR to disclose at least the essence of incriminating information, potentially harming the relationship and trust between the Strasbourg and Luxembourg courts.
Trust and Judicial Collaboration
The EU’s undisclosed evidence procedure could exacerbate tensions in European judicial cooperation, impacting relations between national and EU courts and between EU courts and the ECtHR.
Sharing sensitive information demands a high level of trust. Sharing secrets, especially concerning national security, among Member States or between them and EU institutions has been challenging. The lack of trust and information sharing by national authorities with the Court prompted the procedural revisions. The Court repeatedly overturned EU restrictive measures against terrorist suspects (EU counter-terrorism sanctions) imposed by the Council due to a lack of access to confidential or classified information on which the sanctions were (presumably) based.
While the General Court might gain some trust from Member States by implementing security procedures, the EU’s undisclosed evidence procedure could damage trust between national and EU courts. Using undisclosed evidence is not allowed in most Member States. If EU courts utilize this procedure in a way that deviates from the ECtHR, national constitutional courts might intervene to uphold fundamental rights, leading to increased tension and power struggles.
Furthermore, although the ECtHR cannot directly rule on EU acts, as the EU is not a party to the ECHR, it could send a strong message urging EU courts to reconsider the EU’s undisclosed evidence procedure by instructing Member States to adhere to the gist requirement. The EU courts’ response to such a message could test the limits of European judicial cooperation, the legitimacy of the EU’s undisclosed evidence procedure, and ultimately the EU itself.
Open Dialogue on Security and Confidentiality
As the EU becomes more engaged in security matters, including military matters, classic tensions between the rule of law’s demands for transparency and accountability and the necessity of confidentiality will intensify. How should the EU navigate this tension?
EU courts play a vital role in scrutinizing (national) executive power. The case law on sanctions demonstrates that EU courts can, to a certain degree, limit executive power, even in areas where judicial review typically grants significant leeway to executive actors. Therefore, it is crucial for EU courts to maintain rigorous oversight of executive power in security matters. The EU’s undisclosed evidence procedure is a step in the wrong direction and warrants reconsideration. Regardless of the approach chosen to balance confidentiality and transparency, it must align with the ECtHR’s interpretation of the ECHR.
Moreover, the EU should refrain from treating these crucial discussions on security and secrecy as mere “procedural” matters. Instead, the EU must foster open dialogue and public deliberation on reconciling openness and secrecy, particularly when EU fundamental rights are directly impacted to accommodate security concerns. Ultimately, the most significant factor in legitimizing the EU as an actor in security and human rights is the trust of EU citizens in its ability to safeguard their human rights and security interests. Procedural talks held behind closed doors are unlikely to build public trust.
Barnard & Peers: chapter 10
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