Abazi & Christina Eckes*
professor of European law, Maastricht University and professor of European law,
University of Amsterdam, respectively.
More than a ‘Procedural’ Revision
European Union for the past few years has faced significant crises of political
and economic nature. It has to deal for the first time in its 60-year history
with a Member State wanting to exit from the Union; with hostility by and even
trade wars with what used to be a solid transatlantic ally; and growing
populist movements across Europe undermining the fundamentals of the EU
construction, such as the rule of law. It is understandable that in the midst
of these waves of uncertainties and challenging pressures, less attention is
paid to the EU courts and the changes in how they deal with secrets, such as
classified documents protecting national security.
prima facie may seem merely as a procedural change, introduced by a revision of
the Rules of Procedure in 2015, in how EU courts should handle confidential
information, has a severe impact on the right of access to justice, European
judicial cooperation, and EU counter-terrorist measures – all of which have
been largely out of public focus and debate.
the first time in the history of the EU courts, the reliance on closed
evidence, i.e. evidence that is not disclosed to the applicant, is allowed.
This restricts the ability of the individual to defend herself to an extent that
is contrary to established guarantees of the right of access to justice both
under EU law and under the European Convention on Human Rights (ECHR).
An Unlawful Limit of Access to Justice
right of access to justice is protected under all constitutional orders of the
Member States, the EU Charter of Fundamental Rights and the ECHR. Under all these
legal orders, limitations to access to justice must be justified and can only
be justified if they meet certain requirements. One essential requirement is
that the gist of the secret information that is used against the individual
must be disclosed to her, in order to allow the individual to defend herself
and rebut the accusations brought by the other party. However, Article 105(8)
of the Rules of Procedure of the General Court allows under certain
circumstances full secrecy and complete lack of disclosure of the confidential material
to the applicant. For example, if the Council relies on confidential information
in its arguments and the Court is convinced about the sensitive nature of these
files, the Court will base its assessment on these arguments without disclosing
the information to the applicant. Not even a summary is disclosed to the
applicant and this marks a clear departure from the Court’s previous case law.
constraints however apply to the Court when considering closed evidence: first,
the Court may take into account the confidential information only if it is
essential for the decision in the case; second, the Court must confine itself
to information that is strictly necessary; and third, in its final judgment the
Court must take into account that the applicant has not been able to make their
views known on the closed evidence against them. Although these constraints are
necessary they do not compensate for the fact that not even the gist of closed
evidence was disclosed to the applicant, which is a requirement in the case law
of the ECtHR.
fact that the EU procedure for closed evidence does not comply with the case
law of the ECtHR may leave the Member States in a difficult legal position.
Member States are bound by the ECHR under international law. If they followed
the EU closed evidence procedure they would infringe their duty under ECtHR to
disclose in all cases at least the gist of the incriminatory information. This
would in turn negatively affect the relations and trust between the Strasbourg
and Luxembourg courts.
Trust and Judicial Cooperation
closed evidence procedure may add to the tensions in European judicial
cooperation, both in the relation between national courts and EU courts as well
as between EU courts and the ECtHR.
official secrets requires a high level of trust. Especially in issues of
national security, sharing secrets among Member States or between them and the EU
institutions has been a challenge, to say the least. In fact, this lack of
trust and lack of sharing of information by national authorities with the
Court, was what led to the revision of the procedural rules in the first place.
The Court was continuously annulling
EU restrictive measures against terrorist suspects (EU counter-terrorist sanctions)
by the Council when it was not receiving access to the confidential or even classified
information on the basis of which the sanctions were (presumably) adopted.
the General Court may gain (a bit of) Member States’ trust by having security
procedures in place, the EU closed evidence procedure could strain trust relations
between national courts and EU courts. The use of closed evidence is not
permitted in most
Member States. If the EU courts use the closed evidence procedure in a
manner that does not comply with the ECtHR, it would not be a surprise if
national constitutional courts stepped in to ensure fundamental rights, resulting
in even greater tensions and power struggles.
whereas the ECtHR would not be able to rule directly on an EU’s act as the EU
is not a party to the ECHR, it could still send a strong message to the EU courts
to reconsider the EU closed evidence procedure by ordering Member States to
comply with the gist requirement. How the EU courts would respond to such a
message could be a new test to the limits of judicial cooperation in Europe,
but also the legitimacy of the EU closed evidence procedure, as well as
ultimately the EU itself.
Public Debate about Security &
the increased EU involvement with security issues, including the military,
classic tensions between the rule-of-law demands for transparency and
accountability on the one hand and the need for confidentiality on the other
will only grow in the EU. How should the EU resolve this tension?
carry out important checks on (national) executive power. The case law on the sanctions
regime illustrates that EU courts can – to some extent – constrain executive
power, including in an area in which judicial review traditionally allows for
great discretion of executive actors. It is hence of outmost importance that
the EU courts continue to conduct a rigorous review of the exercise of executive
powers in matters of security. The EU closed evidence procedure is not a step in
that direction and should be reconsidered. Whatever precise way is chosen to
resolve the tension between confidentiality and transparency, it must comply
with the ECHR as interpreted by the ECtHR.
the EU should not continue to treat these salient discussions on security and
secrecy as a mere matter of ‘procedure’. Rather, the EU must establish an open
debate and have public deliberations on how to reconcile openness and secrecy,
especially when EU fundamental rights are directly affected in order to
accommodate security rationales. Ultimately, the most important legitimating
factor for the EU as a security and human rights actor is the trust of EU
citizens in how the EU defends human rights and their security interests. Procedural
talks behind closed doors are hardly the way to gain public trust.
& Peers: chapter 10