How Transparent Is Transparent Enough? Balancing Access to Information Against Privacy in European Judicial Selection

The establishment of two dedicated advisory bodies to scrutinise the suitability of judicial candidates to the Court of Justice of the EU (CJEU) and the European Court of Human Rights (ECtHR) represents so far the most significant reform of their respective appointment systems. It signals a progressive shift from the rubberstamping of judicial appointments to a more reflexive, at times discursive, selection of candidates for judicial posts both at the ECtHR and the CJEU. While this is a positive development, their operation inevitably affects the balance of powers in the processes of judicial appointment, and brings to the fore fundamental legitimacy and accountability issues. The foregoing analysis demonstrates that the current policy of limited disclosure pursued by both panels in relation to their input and output renders those concerns even more acute. This seems especially true for the 255 TFEU Panel that is progressively turning into ‘a germ of a council of judiciary within the Union’. Both panels justify their restrictive stance vis-à-vis public access by invoking the protection of privacy of the candidates and the related interest of protecting their reputation as well as the alleged ‘chill’ effect that full disclosure could generate in potential candidates. This chapter critically examines these arguments and submits that greater publicity of the panels’ output could not only maximise the effectiveness of their respective pedagogical missions, but also enhance the democratic legitimacy and accountability of the respective judicial selection processes. This might in turn strengthen the authority of the European courts in the eyes of the general public as a whole.

The chapter proceeds as follows. First, it provides a comparative analysis of the judicial panels’ missions, prerogatives and operational rules within their respective and differing institutional contexts. Second, it identifies and discusses what is the actual impact that these two panels are generating within their respective judicial selection systems. Third, it analyses the overall level of transparency surrounding the access to the information gathered by the panels, by exploring and critically analysing the arguments generally adduced against further disclosure of their activity. Fourth, it provides a critical look at their actual publicity policy by highlighting unaddressed legitimacy and accountability concerns. Fifth, it formulates some recommendations aimed at striking a more adequate balance between access to the information these panels generate and the privacy of the candidates.