Letter to EU Presidents to include Civil Society at the Conference on the Future of Europe

Updated version, October 6th, 2021

Dear Mr. President, Cher Monsieur,

 

The Court of Justice of the European Union’s hearings are public. Yet to attend one requires to be physically present in Kirchberg. To travel to Luxembourg is however not an option for most Court’s observers, and even less by the average EU resident interested in the Court’s judicial activity and its subsequent impact on her/his life.

 

It is against this legal and factual backdrop that I take the liberty to write you today in the most constructive spirit.

 

With this letter, I would like to ask for the Court’s permission to live stream the public hearing in cases C-156/21 and C-157/21, scheduled on October 11-12, 2021. I would like to do so from the salle d’audience through my personal 4-G mobile phone. Given the high-profile nature of the cases at hand and risk of misinformation that might stem from the lack of publicity of such a hearing, I intend to travel to Luxembourg – together with several other academic colleagues as well as civil society organization representatives. In so doing, we intend to:

 

• enable a wider community of citizens to gain direct access to the exchanges and information provided during the hearing;
• provide a direct, and gratuitous account of what will be asked and discussed;
• contribute to a more informed media reporting by acting as fact-checkers. Being present during the hearing, we will be able to not only get the record straight but also pedagogically illustrate what will be debated during the hearing itself;
• ultimately, mitigate the risks stemming from the Court’s lack of publicity of the hearing. The latter situation does not only render the access to the Court’s hearing unequal within society, but also feed misperceptions, thus potentially exposing the Court to unfounded criticism.

 

While considering my request, I would like you to consider the following:

 

Legal arguments

1. Access to the oral hearings of the CJEU is public. This is expressly stated in Article 31 of the Statute as well as Article 47 of the Charter of Fundamental Rights (CFR). However, attendance at a hearing and access to the information herewith exchanged presupposes physical presence, and therefore a trip to Luxembourg.
2. This situation characterized by unequal access to the information presented and exchanged during a Court’s hearing contrasts with Article 15 TFEU, which requires the Court of Justice of the European Union – like any other EU institutions – to “conduct [its] work as openly as possible”.  Indeed, following the entry into force of the Lisbon Treaty and the re-writing of Article 255 TCE, the principle of openness has acquired the status of an autonomous and legally enforceable principle. If the judicial activity of the Court – being non-administrative – is exempted from the safeguards of Article 15 (3), this activity does not escape all requirements imposed by the principle of openness. Indeed, by extending the principle of openness to the CJEU, Article 15 (1) TFEU illustrates that there exists an autonomous area of openness that should be guaranteed regardless of the nature, administrative or non-administrative, of the activity undertaken by the CJEU. This duty of openness extends to and covers the Court’s public hearings.
3. To fully comply with Article 31 of the Statute read in conjunction with Article 15 TFEU, the Court should either directly ensure the broadcast of its public hearings or allow – upon request – citizens and or other third-parties present to the hearing to stream – via their private equipment – those hearings.
4. Failing to do so, the Court puts itself in conflict with the principle of openness governing its action within the limits established by Article 15 TFEU. Yet, being the only judge over its compliance over such a principle, it puts itself outside of its own administrative and judicial scrutiny.

Policy considerations

1. Livestreaming of the Courts’ hearings has become common practice in many national courts, and as it is already the case in France (i.e. Conseil Constitutionnel), in Poland (i.e. Trybunał Konstytucyjny), the UK (e.g. the Supreme Court) or other international judicial institutions, like the European Court of Human Rights. It remains unclear why the CJEU’s hearings would deserve a different treatment than these established judicial institutions.
2. The experience gained by the Court during the pandemic has demonstrated the technical feasibility of relying on new technologies to facilitate access to justice, and its limited costs.
3. The absence of a dedicated policy governing the broadcasting of its ‘public’ hearings is causing several unintended consequences, such as:
   1. the physical attendance is de facto reserved to a handful of individuals – be they academics, students, close observers, and journalists –, who are essentially the ‘lucky few’ able to make the trip to Luxemburg.
   2. This has been leading to the creation of a cottage industry of professional journalists, lawyers and corporate consultants who attend the hearings to then inform their paying clients about the questions posed by the members of the Court, the responses that were provided as well as precious information, such as for instance the expected day of publication of the opinion of the Advocate General.
   3. None of this information exchanged during a ‘public’ hearing is made public by the Court itself, by thus remaining a prerogative of the few who can either travel to Luxembourg or pay someone to go there.
   4. In the absence of full publicity of the Court’s hearings (as would be guaranteed by streaming), there is a risk that the accounts of those hearings offered by a few selected gate-keepers – be they commercial (such as the specialized media) or institutional (such as the governments involved) ones –, may not reflect what it actually occurred. Conversely, the broadcasting of the hearing itself would enable greater public scrutiny, thus preventing all unintended consequences previously identified from manifesting themselves, and in particular by mitigating the risk of distortive (be it selective, incomplete or deliberately deceiving) reporting.
4. Today there is a decisive, compelling argument for the Court to embrace public openness of its hearings – be it guaranteed by the Court itself or by third parties. As the awareness of the social costs of climate change increases, the Court can’t realistically expect carbon cost-minded citizens, companies and all other stakeholders to travel to Luxemburg to attend ‘public’ hearings. Streaming its hearings, would be a small but significant, tangible step towards a greener EU administration.

 

Conclusions

 

Despite being aware of the historical reticence of the Court to limit publicity of its judicial activities – largely motivated by the legitimate desire to preserve the ‘serenity’ of its judicial work –, the new political, social and technological environment calls on the Court to re-assess its own role in, and contribution to, the democratic life of the Union. At a time in which the rule of law is challenged across the Union, livestreaming of the EU courts’ hearings would not only help the EU to be better understood by its own citizens. It would also mark a major, highly symbolic step in defending the rule of law. Only with the public watching, the promise to “hear the other side” is subject to effective oversight, what may in turn neutralize any (forthcoming) accusation of lack of impartiality.

 

Ultimately, to stream its public hearings should be the first in a long series of measures aimed at opening the Court to its citizens at a time of growing, and worrisome, populistic attacks on the judicial branch across the EU.

 

I look forward to hearing from you, possibly before Monday October 11, 2021 when the ‘public’ hearings in cases C-156/21 and C-157/21 are scheduled to take place in Luxembourg.

 

Thank you in advance and warm wishes,

 

Alberto Alemanno | Jean Monnet Professor of EU Law | HEC Paris | Director | The Good Lobby | www.albertoalemanno.eu

 

First version from February, 13rd, 2021

 

Dear President of the European Parliament, President of the European Council,  and President of the European Commission,

 

We are local, national and pan-European civil society organisations and citizens committed to a successful realization of the forthcoming Conference on the Future of Europe. We would like to express our concern about the exclusion of organized civil society from the work of the conference.

 

There’s a tangible risk that by raising expectations it can’t easily deliver on, the Conference may erode citizens’ trust at a time when the demand for public engagement is at record highs across the continent. Europe and your political leadership can hardly afford that.

 

Due to its top-down approach, the proposed blueprint of the Conference defies its own purpose: to be “a bottom-up exercise where European citizens are listened to and their voices contribute to the debates on the future of Europe”.

 

Here’s why.

 

First, neither the blueprint put forward by the Parliament nor that proposed by the Commission foresee the participation of civil society organizations with the only exception of the European trade unions and the employers’ BusinessEurope. Yet, without unleashing the mobilizing potential of European civil society the Conference will never be owned and felt by citizens. This goes quite against the positive experience of involving civil society organisations in promoting turnout in the European elections: if the European institutions think that civil society will be happy only to act as promoter of a Conference they have no say in, the institutions risk an unpleasant surprise.

 

Second, the only participatory dimension of the Conference comes from six citizens’ assemblies – called ‘agoras’ in the Parliament’s proposal – which will deliberate on a set of predefined policy areas, from the climate crisis the digital revolution to the redrafting of EU electoral law. It remains unclear how the agoras – which have been downgraded to citizen’s dialogues in the Commission’s blueprint – will actually be run and moderated, and, more importantly, how their conclusions will feed into the work and final conclusions of the Conference. Furthermore, it is not clear how feedback between decision-makers and citizens participating in the assemblies actually takes place, and how disagreements are resolved. Moreover, in this approach citizens are not involved in agenda setting. 

 

Third, the methodological vagueness and improvisation characterizing the first blueprints of the Conference contrast with the countless and well-established democratic innovations already taking shape across the continent, from the Irish citizens’ Constitutional Convention, which reviewed the constitution, to the Ostbelgien Citizens’ Council in the German-speaking community in Eastern Belgium – a permanent mechanism and the first of its kind, letting randomly chosen ordinary citizens take part  in developing recommendations for the local parliament with parliamentarians. Even the EU’s own democratic innovation in the form of Citizens’ Initiatives is not included in the blueprint.

 

Fourth, there is a thriving literature on the state of European democracy and some of its possible fixes. Yet the current proposals for – and debate surrounding – the Conference seem to blissfully neglect such a wealth of analysis. No democratic construction will succeed in the absence of an architecture informed and designed by its best constitutional architects and experienced carpenters. 

 

Fifth, the ultimate success of the Conference will be defined by its durability. Europe needs to devise an effective mechanism capable of capturing the most relevant and promising proposals coming from the citizens and turn it into a permanent method feeding the day-to-day EU decision-making. Citizens participation needs institutionalization, not on-off or ad hoc processes.

 

Time has come to invest into our own European democracy, far from the day-to-day political bickering and in close cooperation with those citizens who invest their lives, as activists and advocates, in our common future. 

 

Europe, and your fresh yet already contested political leadership, can hardly afford to be associated with an initiative that might soon be perceived as top-down, unauthentic, outdated and out-of-touch with EU citizens’ daily lives.

 

For the Conference to succeed, the three most powerful EU institutions should lead by example, by stepping back and carving out a meaningful and effective role for citizens’ input within the forthcoming Conference so as to be able to constantly co-create the future the EU deserves. Specifically, following from the deficiencies of the current models discussed, our concrete recommendations would be:

 

• Give civil society a leading role in the Conference, by giving it a voting seat at the plenary table, alongside the social partners.
• Ensure that the process is built in such a way that real deliberation can take place between citizens, and between citizens and elected decision makers and governments: this means enabling citizens to set the agenda on equal terms with governments (as it is the case within the Open Government Partnership), and allowing contradictory debate and compromise to take place over the course of the democratic exercise.
• Give young people a decisive role in the Conference, by empowering them in the plenary, and ensuring young people are in the Presidium or in other governing bodies of the Conference itself.
• Take the time to involve the practitioners, academics and specialists in civil society participation in the design and running of the Conference.

 

Finally, at the outset of the exercise, the institutions should make sure that this is a decisive and long-term evolution in the way European democracy works, and not a one-off exercise.