Access to Written Submissions in Preliminary Reference Proceedings: An Evaluation of the CJEU Statute Reform and its Contribution to Open Justice

Table of Contents: 1. Introduction. – 2. Open justice and human rights: ensuring transparency and accountability through public access. – 2.1. The notion of open justice: scope and constitutive elements. – 2.2. Open justice under international and EU law. – 3. Open justice at the CJEU: evolution, targets achieved and unresolved questions. – 4. The CJEU and access to Court proceedings: the state of play. – 4.1. The lack of EU law provisions allowing for access to Court proceedings. – 4.2. Indirect access to Court proceedings through the Transparency Regulation 1049/2001. – 4.3. Voluntary disclosure by the parties to a case. – 5. The reform of the CJEU Statute and the paradigm shift concerning access to written submissions in the context of preliminary reference proceedings. – 5.1. The interinstitutional negotiations. – 5.2. The final text of Article 23(5) of the CJEU Statute. – 6. The reform between theory and practice: the limits to proactive publication of Court proceedings. – 6.1. The expanded definition of ‘interested person’ under Article 23 of the CJEU Statute – 6.2. The limits to proactive disclosure of Court proceedings: the objection to publication. – 7. Concluding remarks.

Abstract: The article analyses the new provisions of the Statute of the Court of Justice and its Rules of Procedure requiring the proactive publication, on the Court’s website, of written observations submitted in preliminary reference proceedings by the parties and other interested persons. This development represents a significant step forward for the Court of Justice, which has historically prioritised confidentiality to protect the serenity of proceedings and the equality of arms between parties. Against this backdrop, the Article delves into this aspect of the reform through the theoretical foundations of open justice alongside the evolution of the rules and case-law on access to court documents. It also explores the implications of the reform, with particular attention to the possibility for the parties and interested persons to object to publication. To that end, the Article includes an empirical analysis of the number of objections and published observations during the first six months of the new regime’s implementation. A combined reading of the normative and empirical findings suggests that the widespread concerns over an extensive use of objections appear (for now) to be unfounded, and that a real paradigm shift towards greater openness at the Court of Justice may indeed be underway.

Keywords: CJEU Statute – reform – openness – access to documents – court proceedings – preliminary reference proceedings.

1.   Introduction

International courts – including the Court of Justice of the European Union (CJEU) – often face criticism for their perceived lack of legitimacy. Just like any other judicial body, they contend with the inherent technicism of their mandate, which can create an impression of elitism and detachment from the general public. This perception is further reinforced by complex and mediated selection procedures.[1] Additionally, international courts can be easily associated with the alleged original sin of imposing legal obligations from outside the domestic arena that influence, where not dictate, national policies and their implementation.[2]

Within this landscape, the CJEU holds a privileged position compared to other international courts. This advantage stems from the unique nature of the EU integration process and the Court’s deep-rooted connections with national legal systems. As part of a ‘community of law’[3] built on shared values, the CJEU operates within a structured ‘constitutional framework’ of principles, rights, and remedies, strengthening its legitimacy and role within the legal order.[4]

Yet, over the last decades, some scholars have argued that the CJEU is not immune to concerns about legitimacy. Drawing the Nienke Grossman’s tripartite conceptualisation of the level of (whether normative or perceived)[5] legitimacy of an international court,[6] these critiques focus on three key factors: the absence of bias, adherence to the will of the states from which the court originates, and an appropriate level of transparency and openness.[7]

Regarding the first two strands, concerns about the CJEU adopting a pro-integrationist stance date back to 1986, when Hialte Rasmussen was the first one to explicitly accuse the Court of such bias.[8] According to Rasmussen, the CJEU’s case law is ‘goal-oriented’, deliberately extending the meaning and scope of Treaty provisions beyond what the drafters reasonably intended, often at the expense of national sovereignty.[9] Since then, criticism of judicial overreach – fuelled by perceptions of the Court’s reasoning as ‘cryptic,’[10] or ‘uneven and unpredictable’[11] – have periodically resurfaced.[12]

While broader questions concerning the quality of the CJEU’s legal reasoning and the legitimacy of its judicial mandate remain central to discussions on the EU legal order, issues of transparency and openness have thus far occupied only a marginal place in both public and specialist discourse. Yet, ‘judicial candor’[13] is a cornerstone of any legal community. It underpins democratic values, ensures the fair administration of justice, and enhances judicial accountability to the benefit of individuals and the legal system as a whole.[14]

Needless to say, the EU judicial system adheres to fundamental principles of court transparency. It ensures public access to hearings and judgments and has established internal procedures for accessing administrative documents. The CJEU has also demonstrated some responsiveness to technological advancements, such as the livestreaming of selected hearings. However, it has remained consistently cautious when faced with demands for greater openness in areas more directly linked to its judicial functions, such as most notably the denial of third-party access to court submissions and pleadings.

Against this backdrop, the recent reform of the CJEU Statute marks a notable development. For the first time, it has introduced a duty for the Court to proactively publish written pleadings submitted by interested parties in preliminary reference procedures. While this change might appear to be a secondary aspect of the broader reform package discussed in this Special Section, it marks a departure from longstanding practice and may prompt a significant shift in how institutional transparency is integrated into the Court’s judicial role, and how litigants and observers engage with its proceedings.

Building on the theoretical elaboration of the principle of open justice and its progressive incorporation into international standards for judicial independence and accountability (Section 2), this Article examines the evolution of the concept of openness in the EU judicial system before outlining the state of play (Section 3). Section 4 then focuses on third-party access to court proceedings, highlighting its inherent limitations – an essential backdrop for understanding the contentious interinstitutional negotiations and the specific content of the reform (Section 5). However, the practical impact of this reform remains uncertain. As argued in Section 6, its success in advancing transparency will largely depend on how parties to the main proceedings and other interested persons navigate their procedural choices before the Court. In this regard, this Article offers valuable insights by analysing the practices of EU institutions and Member States during the first six months of the reform’s implementation. Section 6 discusses emerging trends and supports its findings with original data derived from the Court’s website. Ultimately, whether this reform leads to a genuine shift toward greater judicial openness or remains a formal gesture with limited practical effect will depend on how the new rules are interpreted, applied, and strategically used in practice (Section 7).

2.   Open justice and human rights: ensuring transparency and accountability through public access

2.1.  The notion of open justice: scope and constitutive elements

Open justice is a foundational principle of democratic judicial systems, rooted in fairness, public participation, and the rule of law.[15] At its core, it ensures that justice is not only done but is seen to be done, reinforcing the legitimacy of judicial outcomes. More than a procedural norm, open justice encompasses the transparency of court processes, accessibility of legal reasoning, and public engagement with the judiciary. It holds judges accountable by subjecting their work to scrutiny, deters arbitrariness, and affirms the judiciary’s role as a guardian of rights.[16] In parallel, studies have shown that public scrutiny enhances honesty in legal proceedings, as parties are more likely to present accurate information when proceedings are accessible.[17]

In addition to its institutional implications, open justice has a profound societal dimension.[18] It builds trust in legal institutions, improves public understanding of the law, and strengthens civic engagement.[19] The media plays a critical role as an intermediary between courts and the public.[20] In recognition of this, courts often grant journalists privileged access to documents and hearings.[21] At the same time, media coverage shapes public perception of the judiciary, either reinforcing or undermining its legitimacy. In this regard, crucially, the principle of open justice is not absolute and must be balanced against competing interests, such as the need to protect vulnerable parties, maintain confidentiality, or safeguard national security. Exceptions must be narrowly defined and carefully applied to preserve the core function: ensuring fair and accountable justice. 

Three key components help define judicial openness. First, public access to hearings. According to Jaconelli, physical (and, we may add today, online) attendance of members of the public as well as the media to the trial as a ‘live event’ constitutes ‘the very core of the idea of open justice’[22] as it enables public oversight. The second component is transparency in the administration of justice, whereby courts must proactively disclose administrative structures, procedural rules, and organisational details.[23] Moreover, transparency in principle extends to judicial proceedings, requiring the proactive publication or accessibility through requests of court documents, decisions, parties’ submission, and reasoning behind judgments.[24] The third aspect relates to access to judicial documents and data, namely access to decisions, case files, court agendas and statistics, as well as all documents deposited with the registrar by the parties or by any third party.[25] There is growing recognition of the need for access in all judicial domains.[26] The digital age has expanded access through livestreams and online databases, but this evolution raises new challenges for balancing transparency with privacy and procedural fairness.

2.2.  Open justice under international and EU law

From a human rights perspective, open justice intersects directly with international law. Article 14 of the International Covenant on Civil and Political Rights (ICCPR)[27] and Article 6 of the European Convention of Human Rights (ECHR)[28] enshrine the principle of open justice as an entitlement to a fair and public hearing by an independent and impartial tribunal established by law. These provisions underline that public hearings and the publication of judgments are essential for ensuring judicial transparency and public trust.[29] However, the interaction between open justice and fair trial requires a court ‘to compare essentially incommensurable matters’.[30] Public disclosure in sensitive cases can harm the interests of the parties involved, particularly when privacy or reputational concerns are at stake. This tension has led to a cautious approach, with international standards outlining clear exemptions to transparency, including national security and the protection of commercial interests.[31]

The scope of open justice has evolved to include access to court documents as part of the broader right to information. UN Human Rights Committee’s General Comment 34 highlights states’ obligations to proactively disclose information and facilitate access to all public data, including judiciary-held information. Similarly, the OHCHR affirms that access to information must extend to all branches of government, including courts.[32] The Office of the United Nations High Commissioner for Human Rights (OHCHR) also recalls that ‘the obligation to provide access to information applies to the executive, legislative and judicial branches of government, and extends to all organs of the State, including all de facto entities and private entities carrying out elements of governmental functions’.[33]

Thus, access to court proceedings has been gradually and fully embedded into the international normative notion of open justice. The Istanbul Declaration on Transparency in the Judicial Process (endorsed by the UN Economic and Social Council in 2019) states that the justice system should be ‘integrated into society’, which requires that it ‘opens up and learns to make itself known’.[34] In this context, it mandates that ‘[S]ubject to judicial supervision, the public, the media and court users should have reliable access to all information pertaining to judicial proceedings, both pending and concluded. Such access could be provided on a court website or through appropriate and accessible records. Such information should include reasoned judgments, pleadings, motions and evidence. Affidavits or like evidentiary documents that have not yet been admitted in evidence may be excluded. Access to court documents should not be limited to case-related material, but should also include court-related administrative information such as statistics on the caseload and case clearance rates, as well as budget-related data, e.g. collection of court fees and the use of budgetary allocations’.[35]

The close connection between open justice and access to documents has been gradually acknowledged at the European level. A telling illustration is the Council of Europe Convention on Access to Official Documents (Tromsø Convention),[36] which codifies the right to access documents held by public authorities, including judicial bodies.[37] It defines documents broadly, encompassing written, audio-visual, or digital formats held or created by public institutions.[38]

In the EU legal order, the need for open and transparent judicial activity has its foundations in primary law. Article 15(1) TFEU establishes that ‘EU institutions, bodies, offices and agencies shall conduct their work as openly as possible’.[39] This provision highlights that openness is not an end in itself but a means to achieving broader objectives such as good governance, democracy, and institutional legitimacy.[40] In addition, Regulation 1049/2001 establishes the right of access to documents held by EU institutions, including the CJEU.[41] According to Article 2(3), this Regulation aims to ensure ‘the fullest possible effect to the right of public access to documents’. In particular, such right extends to the Court of Justice of the European Union’s activity. The broad personal scope of application of the Regulation reflects the similarly wide substantive reach of the notion of document. Under Article 3(a), the latter encompasses any content, whatever its medium (written on paper or stored in electronic form or as a sound, visual or audiovisual recording), concerning a matter relating to the policies, activities, and decisions falling within the institution’s sphere of responsibility. 

The underlying premise of these provisions is the recognition that openness of public institutions ‘enables citizens to participate more closely in the decision-making process and guarantees that the administration enjoys greater legitimacy and is more effective and more accountable to the citizens in a democratic system’.[42]

Yet, in drawing exceptions to request access to documents, Article 4(2) specifically states that ‘[t]he institutions shall refuse access to a document where disclosure would undermine the protection of court proceedings and legal advice’.[43] It follows that access to any document related to court proceedings held by the Court of Justice is in principle debarred from the scope of this transparency regime.

This long-standing exclusion has persisted with only minimal changes.[44] However, the recent reform of the Statute of the Court of Justice marks an interesting turning point. For the first time, it introduces a requirement for the Court to proactively publish written pleadings in preliminary reference cases. The following Sections trace the path leading to this reform and discuss its scope as well as its potential implications for enhancing openness at the Court of Justice. 

3.   Open justice at the CJEU: evolution, targets achieved and unresolved questions

The scope of the principle of open justice is inherently fluid and flexible depending on the EU institution or body concerned. Accordingly, while transparency and public access must be guaranteed, relevant measures and procedures differ significantly depending on the nature of the function and the specific institutional setting.

As for the CJEU, it performs fairly well in the openness ranking, especially if compared to other international courts.[45] This assessment is based on three key factors. 

First, Article 15(3) TFEU subjects the Court’s administrative activity to the principle of openness.[46] This means that, in the spirit of good administration of justice, the documents related to the Court’s internal self-governance, and the multifaceted administrative functions supporting the performance of jurisdictional functions must be as a rule disclosed to the public.[47] The scope of this provision, however, does not extend as such to the Court’s core judicial activities.

Second, concerning judicial activities, the CJEU’s Statute and the Rules of Procedure are designed to uphold fair trial guarantees. The Court adheres to the fundamental principles of publicity for court proceedings, including publishing notices of new cases, holding public hearings, and making judgments available and accessible in all 24 official EU languages.

Third, over time, the Court of Justice has responded to increasing demands for greater transparency, whether from civil society, legal commentators, or, more simply, offered by technological advancement. A notable example is the live broadcasting of Plenary and Grand Chamber hearings.[48] Originally announced as a 6-month pilot project, this practice has been gradually incorporated into the Court’s daily routine. Eventually, following the recent reform discussed in this Special Section, it has been codified in Article 80 bis of the Court’s Rules of Procedure.[49] Under paragraph 1 of this provision, the delivery of judgments and the reading of opinions of the Advocates General are live streamed, while hearings involving oral pleadings in cases referred to the full Court and the Grand Chamber are broadcast with a delay. Exceptionally, cases assigned to a Chamber of five judges may also be broadcast if deemed important.[50] In any event, a party to the case or, in the context of a preliminary reference procedure, one of the interested persons referred to in Article 23 of the Statute[51] can object to the decision to broadcast a hearing, by setting out the detailed circumstances that justify this claim.[52] A similar provision applies to requests for the removal of video recordings from the Court’s website.[53]The reform also introduced the possibility of broadcasting hearings before the General Court. Mutatis mutandis,[54] Article 110a of the Rules of Procedure of the General Court reiterates the same regime now briefly described. 

Overall, the CJEU has proved reasonably responsive to demands for greater openness. Despite these efforts, academic literature and legal commentators have identified several transparency gaps within the CJEU’s framework.

For example, previously, the Court published summary reports of its hearings, but this practice has been discontinued, raising concerns about reduced public access to case deliberations.[55] In addition, Article 76 of the CJEU’s Rules of Procedure allows the Court to decide cases without oral proceedings, unless a reasoned request for a hearing is submitted.[56] This practice has been criticised for limiting public scrutiny, particularly in cases of significant legal or political importance.[57]

Moreover, while the incorporation of hearing broadcasts in the Rules of Procedure represents a positive step, its scope remains limited. Currently, it only applies to select cases, excluding most of the Court’s caseload from public view.[58]

Lastly, recent debates have highlighted concerns over the appointment process of the CJEU judges and AGs.[59] The confidentiality of the ‘255 Committee’ deliberations responsible for vetting judicial candidates is regarded as a key guarantee for the serenity of these important evaluations, but critics argue that the lack of transparency in negative assessments undermines public trust in judicial appointments.[60]

Beyond these broader transparency concerns, one of the most contentious issues in recent reform discussions has been the limited access to written observations submitted by parties and interveners. Unlike other international courts,[61] the CJEU maintained strict confidentiality over these documents. This approach has led to significant debate among legal scholars, civil society, and policymakers. The next Section delves into this debate and examines the current state of access to written observations and the new elements introduced by recent transparency reforms, setting the stage for the analysis of the new elements introduced by the reform of the CJEU’s Statute and for a critical assessment of ongoing challenges and future prospects for judicial openness in the EU.

4.   The CJEU and access to Court proceedings: the state of play

4.1.  The Lack of EU Law Provisions Allowing for Access to Court Proceedings

Before the recent reform of the CJEU Statute, the EU legal regime governing third-party access to court proceedings echoed the overarching choice made by the Member States in the Treaties, with Article 15(3) TFEU delimiting the duty of disclosure only to documents concerning the Court’s administrative tasks. Accordingly, as recalled in the previous Section, the general transparency regime excludes the application of Regulation 1049/2001 to the documents held in the context of the exercise of the CJEU’s judicial functions.

In line with this framework, the Rules of Procedure of the CJEU did not provide for third-party access to court proceedings. Instead, an indirect understanding of access could be derived from a combined reading of the Statute, the Rules of Procedure, and the Instructions to the Registrar. On the one hand, Article 20(2) of the Statute provided – and still provides – that the written phase includes applications, defences, observations, replies and all documents and papers submitted by ‘the parties and […] the institutions of the Union whose decisions are in dispute’. On the other hand, the Rules of Procedure[62] and the Instructions to the Registrar made clear that only the parties to the case enjoyed a right to be served with these documents. A contrario, third parties and the general public were not entitled to access the case file.

A slightly different approach was taken by the General Court,[63] where the Instructions to the Registrar made clear that the President could authorise third parties’ access. In cases still pending, this authorisation was entrusted to the President of the relevant formation of the General Court.[64]

This approach reflected the Court’s reluctance to consider less stringent regimes on grounds of two main underlying objectives: preserving the serenity of court proceedings and deliberations and ensuring the parties’ equality of arms. Regarding the former, in the API case, the Grand Chamber made clear that secrecy aims ‘to ensure that, throughout the court proceedings, the exchange of argument by the parties and the deliberations of the Court in the case before it take place in an atmosphere of total serenity’.[65] As per the latter, in the same ruling the Court was concerned that, should the parties’ pleadings be open to public debate – especially those of the EU institutions, agencies, and bodies and the Member States – the criticism levelled against them, whatever its actual legal significance, might influence the position defended before the CJEU. Based on such risks, the Grand Chamber recognised and justified ‘a general presumption that disclosure of the pleadings lodged […] in court proceedings would undermine the protection of those proceedings’.[66]

Against this position, the CJEU itself has identified two situations in which this ‘general presumption of confidentiality’ can be rebutted: indirect access to the pleadings in possession of an EU institution through Regulation 1049/2001 once the case is closed, and a party’s voluntary decision to disclose its pleadings, even during the pending proceedings.

4.2.  Indirect Access to Court Proceedings Through the Transparency Regulation 1049/2001

The first exception to the general presumption of confidentiality concerns the obligations of EU institutions under Regulation 1049/2001. In the API case, a journalists’ organisation requested access to the Commission's written pleadings submitted before the General Court and the Court of Justice in several pending and closed cases. Tasked with the appeal of a judgment of the General Court concerning the Guardian of the Treaties’ partial refusal to grant access to its pleadings, the Court of Justice confirmed that the documents at issue fell under the scope of application of Regulation 1049/2001, since they had to be regarded as ‘drawn up’ by an EU institution under Article 2(1) and (3). As a result, the obligation to ‘give the fullest possible effect’ to the right of access, as laid out in Recital 4 and Article 1 of the Regulation, extends to the Commission’s written pleadings. Any deviation from this general rule must be strictly limited to the exceptions explicitly listed in Article 4 of the Regulation, which must be interpreted and applied narrowly.[67] Against this background, the Court drew a distinction among three categories of situations: (1) closed cases, (2) pending cases, and (3) closed cases that are substantively connected to pending ones.

As for closed cases, the CJEU found that its core judicial functions are completed once a case is concluded. Accordingly, there is ‘no longer ground for presuming’ that granting access to written pleadings would undermine the protection of court proceedings or legal advice under Article 4(2). Therefore, this exception cannot be invoked, and EU institutions are, in principle, obliged to disclose such pleadings upon request.

By contrast, in pending cases, the presumption of confidentiality reasserts itself. The burden shifts to the third party to prove that access would not harm protected interests under Article 4(2) – a threshold that can be difficult to meet. Moreover, the Court has extended the same presumption to various ongoing administrative and judicial proceedings.[68] While consistent in its application, the Court’s broad interpretation of harm has raised concerns about compatibility with international standards on access to information, which call for a narrower and more precise harm test.[69]

The third scenario is a hybrid one and involves closed cases that are substantively linked to pending ones. Here, the Court ruled that disclosure is not automatically presumed to undermine proceedings.[70] Nonetheless, the Grand Chamber acknowledged that disclosure could prove problematic for the EU institution involved, especially where its position in both sets of proceedings was based on similar legal arguments and the parties to the pending case were not the same as those to the closed one.[71] In such circumstances, access may be refused under Article 4(2), but only if the institution provides a detailed and specific justification subject to judicial scrutiny.[72]

Interestingly, in its initial judgment in the API case, the General Court had endorsed a broader interpretation in favour of transparency. Rather than distinguishing between closed and pending cases, it argued that once a hearing has taken place, the arguments have already been presented and debated publicly, weakening the rationale for a general presumption of confidentiality. The General Court advocated for a case-by-case assessment of whether greater transparency would be justified and harmless.[73]

However, the Court of Justice declined to follow this approach. Instead, in its subsequent case law, it confirmed the tripartite framework and reaffirmed a restrictive reading of Article 4(2) with respect to closed proceedings. A notable development arose in the Breyer case, where the Commission refused third-party access to a Member State’s written submissions in an infringement procedure. These submissions had originally been received from the Court of Justice. The Commission contended that the document was primarily in the Court’s possession and related to its judicial functions, thereby falling outside the scope of Regulation 1049/2001. Furthermore, it argued that the request conflicted with the limits to transparency set out in Article 15(3) TFEU.

The Grand Chamber rejected this argument, clarifying that while Regulation 1049/2001 does not apply to access requests directed at the Court of Justice itself, documents related to judicial activity remain within its scope if they are in the possession of another EU institution. In this case, the decisive factor was that the Commission held the document in question.[74] Thus, the Court found that the latter constituted a ‘document held by an institution’ under Article 2(3) of the Regulation.[75] Once the Regulation applies, any refusal of access must still be assessed in light of the tripartite framework discussed above. 

A similarly generous interpretative stance concerns the use an applicant intends to make of the documents to which they have been granted access, including to support their legal position in other pending court proceedings. Once disclosure of a document drafted or held by an EU institution has been granted, the Regulation contains no provisions that restrict onward use or public dissemination. Then, the applicant is not prohibited from making this information available to other persons or the general public. It follows that applicants who receive access to pleadings or other materials are not limited in how they use this information, including to support their legal arguments in other pending proceedings. As the Court noted, a disclosed document ‘could, one day, be referred to in court proceedings, even by other than the person who, after making the request, obtained access’.[76] Any attempt to limit such use would overreach the narrowly defined exceptions under Article 4(2).

4.3.  Voluntary disclosure by the parties to a case

A second situation in which the presumption that disclosure would undermine the EU Courts’ judicial functions can be rebutted concerns the voluntary release of written submissions by the parties themselves. In the absence of explicit rules governing this practice, both the Court of Justice and the General Court have consistently rejected the claim that proceedings are subject to a general and absolute principle of confidentiality.[77] On the contrary, the limited case-law suggests that parties are generally permitted to disclose their own submissions, even in pending cases, save exceptional circumstances where such disclosure might ‘adversely affect the proper administration of justice’.[78] However, this threshold of ‘exceptionality’ remains vague. The case-law has not clarified the degree of risk required to justify a restriction, the criteria for determining whether a particular disclosure would be harmful, or the procedural safeguards – if any – that could prevent inappropriate publication.

As a result, this legal ambiguity leaves ample room for uncertainty and inconsistent case-by-case application. During the APIproceedings, Advocate General Poiares Maduro called for a reassessment of this position. In his view, the current approach is problematic because it deprives the Court of the ability to control access to documents in the case file.[79] Just like access requests under Regulation 1049/2001, voluntary disclosures may exert public pressure on the judicial process or unfairly disadvantage one of the parties.

However, unlike requests processed through the transparency framework – which are subject to institutional scrutiny and legal safeguards – voluntary disclosures can occur unilaterally, unnoticed, and without any realistic possibility of redress once a document enters the public domain.[80] To address these risks, Advocate General Poiares Maduro proposed that the Court should act as a central gatekeeper, determining on a case-by-case basis whether a document should be made public. In his words, ‘in pending cases it is necessary to avoid imposing a strict rule at the current stage of development of the law and instead adopt a careful, case-by-case approach’.[81] Nevertheless, in its preliminary ruling in the API case, the Court of Justice did not take up this recommendation, missing an opportunity to clarify the law.

As the legal framework currently stands, EU law continues to permit the voluntary disclosure of written pleadings by parties without requiring prior judicial authorisation or oversight. This unresolved issue raises broader questions about how to strike an appropriate balance between transparency and the integrity of judicial proceedings, an area that may warrant future reform and clearer guidance.

5.   The reform of the CJEU Statute and the paradigm shift concerning access to written submissions in preliminary reference proceedings

5.1.  The interinstitutional negotiations

As discussed in the previous Section, access to written pleadings lodged before the CJEU has traditionally followed a bottom-up model rooted in Regulation 1049/2001. Access is not automatic but triggered by a third-party request, and its availability is governed by conditions and limitations developed through judicial interpretation.

Historically, the Court has been reluctant to adopt a more proactive stance on document disclosure, citing concerns about the serenity of deliberations and the equality of arms between parties. Yet, over the past two decades, this restrictive approach has been increasingly questioned, both within the Court and by legal scholars. The API case again serves as a key reference point. In his Opinion, Advocate General Poiares Maduro argued that written submissions should be made public once a case is closed, unless ‘exceptional circumstances demand that secrecy be maintained’.[82] This view has been endorsed in academic discourse by Alemanno and Stefan, and more recently by Krenn, who sees it as a way to reinforce the democratic legitimacy of the CJEU’s decision-making.[83]

Despite these arguments, the Court’s initial proposal to reform its Statute showed no inclination toward greater transparency. The formal request to amend Protocol n. 3, submitted under Article 281(2) TFEU,[84] focused solely on the partial transfer of jurisdiction over preliminary references to the General Court and the expansion of mechanisms for determining the admissibility of appeals. Transparency was conspicuously absent.

It was during the European Parliament’s deliberations that proposals for increased openness began to surface,[85] along with several other interesting – yet ultimately unsuccessful – proposals, such as establishing a conciliation mechanism between the Court of Justice and national supreme courts. More concretely, the Parliament initially proposed a mandatory disclosure regime, requiring the Court of Justice and the General Court to make available to the public ‘all documents deposited with the Registrar by the parties or by any third party in connection with an application’ in accordance with their Rules of Procedure and in compliance with primary EU law.[86] During the negotiations, the European Parliament held firm in advocating for the inclusion of access rights as a core element of the reform package, despite strong resistance from the European Commission.[87] As a matter of principle – and despite significantly diverging views on the scope of the right in question – the Court itself eventually acknowledged that its constitutional role within the EU legal order necessitated greater transparency and hence more openness.[88]

Following multiple rounds of interinstitutional dialogue, the Parliament’s JURI Committee softened its initial stance. The obligation for proactive publication was converted into a general right of access upon request. The revised proposal for a new Article 20a of the Statute provided that ‘any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have a right to access, upon request, documents of the Court’.[89] Under this framework, access could be refused only by the President of the Court of Justice or the General Court, and solely on grounds such as risks to public interests, privacy, individual integrity, commercial confidentiality, or the sound administration of justice. Significantly, the proposal extended this right to all procedures before the EU Courts, regardless of whether they were pending or concluded, marking a potential development in the transparency of judicial proceedings at the EU level.

5.2.  The final text of Article 23(5) of the CJEU Statute

The final compromise between the Parliament and the Council adopts an intermediate solution to openness. Article 1(1)(b) of Regulation 2024/2019 introduces a new paragraph 5 to Article 23 of the Court’s Statute, which provides that 

‘Statements of case or written observations submitted by an interested person pursuant to this Article shall be published on the website of the Court of Justice of the European Union within a reasonable time after the closing of the case, unless that person raises objections to the publication of that person’s own written submissions’.[90]

This provision marks a partial shift toward a regime of proactive disclosure of court proceedings, instead of solely relying on individual requests to access documents.[91] Overall, the post-reform scenario features two parallel and complementary transparency regimes: written submissions filed in the framework of preliminary reference procedures are now subject to proactive publication, albeit with some limitations; and access to written pleadings submitted in other actions remain subject to Regulation 1049/2001, with strict confidentiality safeguards, as outlined in the previous Section.

Although limited in scope, this reform represents a step forward in enhancing judicial openness. The proactive publication of pleadings is expected to contribute meaningfully to transparency, informed legal debate, and broader judicial accountability. It also aligns well with the nature of preliminary reference proceedings, as a dialogue between national courts and the CJEU. By making written observations publicly accessible, the Court allows the referring national court, the parties to the main proceedings, and other interested persons to better understand the reasoning behind the Court’s ruling, the role of divergent legal interpretations, and how those shaped the final judgment.[92] The European Parliament, in a 2023 resolution, further emphasised the value of such access: national judges, it argued, would be better positioned to follow up on preliminary rulings in their domestic proceedings and to determine whether further references to the Court of Justice are necessary – potentially helping to ease the Court’s caseload. The importance of this new rule is further underscored by its interaction with Article 23(1) and (2) of the Statute. These provisions define ‘interested persons’ broadly, extending the right to submit observations in preliminary reference cases beyond the parties to include Member States, the Commission, and – following the reform – the European Parliament, the Council, and the European Central Bank.[93] All of these actors are now entitled to receive notification of a reference for a preliminary ruling and may submit written observations within two months. As a result, their submissions also fall within the scope of the Court’s new duty to publish.

If one considers that the national courts’ references for preliminary rulings are increasingly made available on the Court’s website (usually) in most EU official languages, full accessibility of the key procedural documents is a tangible prospect for the jurisdiction of the Court under Article 267 TFEU.

From a broader comparative perspective, this move toward proactive disclosure helps narrow the transparency gap between the CJEU and the European Court of Human Rights (ECtHR). Under Article 40(2) of the ECHR – introduced by Protocol n. 11 – documents deposited with the ECtHR Registrar are publicly accessible unless the President of the Court decides otherwise. In this regard, Article 33 of the ECtHR’s Rules of Procedure allows online submission of access requests, and disclosure is generally permitted even while cases are still pending.[94] However, access may be refused on the President’s own motion or at the request of a party, based on specific grounds such as public order, national security, privacy, or the interests of justice.[95] While the ECtHR’s system offers broader access to documents – including in pending cases – it does not impose a requirement of proactive publication, which the new CJEU regime now does, albeit in limited circumstances. 

In conclusion, Article 23(5) represents an important development in the transparency of EU judicial proceedings. Still, both the Statute and the Court’s Rules of Procedure impose meaningful constraints. Two key aspects will determine the effectiveness of the reform: (1) the expanded definition of ‘interested persons’ and its implications for transparency, and (2) the mechanisms that allow parties to object to disclosure, which could potentially limit the reform’s reach. These issues will be examined in the following Section.

6.   The reform between theory and practice: the limits to proactive publication of court proceedings

6.1.  The expanded definition of ‘interested person’ under Article 23 of the CJEU Statute

As outlined in the previous Section, the reform of Article 23 of the CJEU Statute extends the definition of ‘interested parties’ to include the European Parliament, the Council, and the European Central Bank (ECB) in preliminary reference procedures. This expansion enhances opportunities for institutional participation and debate before the CJEU and has undeniable merits. However, bearing in mind the current state of play, its practical significance may be more modest than it appears. 

Even prior to the reform, existing legal provisions allowed these institutions to intervene when the validity or interpretation of one of their acts was at issue. The Parliament and Council, for example, were already entitled to submit observations in most preliminary references concerning acts adopted under the ordinary or special legislative procedures. Similarly, the ECB had standing in cases involving its own legal instruments.[96] In practice, however, interventions have been selective. As the number of preliminary references has grown, institutions have increasingly prioritised their involvement based on legal, political, and practical considerations. In addition, bare budgetary and human resource constraints limit the feasibility of systematically intervening in every case.

This selectivity is codified in internal rules. For instance, Article 155 of the European Parliament’s Rules of Procedure, supplemented by detailed Guidelines,[97] sets out a complex procedure for deciding whether to intervene. The final decision rests with the President of Parliament, based on a combination of legal analysis by the legal service and political judgment by the committee responsible for legal affairs. The Rules of Procedure are amended periodically, as an updated official version is usually published at the start of a new parliamentary term. However, the design of this procedure has remained largely unchanged over the last years, and the provisions in question have undergone minor adjustments. This entails that, unless the Parliament decides to streamline the decision-making framework in question, systematic and unselective parliamentary participation in preliminary reference proceedings remains unlikely. 

The situation for the Council is even more constrained. While it may intervene in cases where its acts or institutional prerogatives are at stake, its participation raises the challenge of balancing its role against those of Member States, which typically contribute to the legal debate before the Court but often advocate for differing interpretations of EU provisions, due to political or legal divergences.[98] Then, this institution’s participation requires careful preliminary evaluations and may demand appropriate coordination with intervening States. While the Council’s Rules of Procedure do not directly regulate this matter, internal litigation guidelines assign the legal service the task of initiating interventions, subject to the Council’s formal authorisation, at the COREPER’s level. Moreover, any document transmission to the Court of Justice or the General Court – including the appointment of agents – must receive prior approval. Here, the permanent representations of Member States play a prominent role, as the Council’s legal service must circulate draft submissions to them. This step can trigger political sensitivities, potentially exposing the Council’s legal arguments. In the absence of a clear and consistent policy, these internal checks – combined with political considerations – shape the Council’s institutional posture on voluntary interventions before EU Courts.[99]

By contrast, the Parliament is not constrained by such institutional limitations and might increasingly act as de facto amicus curiae,[100] especially in cases involving fundamental rights or democratic participation. The reform offers to the Parliament a firmer legal basis to do so. This evolution merits further attention, especially as parliamentary practice adapts to the new framework.[101]

6.2.  Limitations to proactive disclosure: the right to object to publication

Despite the importance of the reform, Article 23(5) of the Statute imposes three core limitations to the proactive disclosure of the parties’ and interested persons’ written submissions. First, the scope of this provision is limited to preliminary reference procedures. Second, it does not allow publication while the case is pending. Third, publication is contingent on the absence of an objection from the party concerned.

To the purpose of this analysis, the possibility of objecting to publication deserves closer examination, given its potentially significant implications for the day-to-day implementation of the reform. In this regard, the broad wording of Article 23(5) of the Statute must be read in conjunction with Article 96(3) of the Rules of Procedure, laying down more detailed rules on this matter. Three main issues arise from this legal framework: the grounds for filing an objection, the procedural regime, and the timing of an objection.

Concerning the first aspect, the Parliament initially proposed limiting the right to object to specific, predefined grounds to balance transparency with competing and equally compelling protected interests.[102] However, the final version of Article 23(5) of the Statute broadly reads that the interested person can raise ‘objections to the publication of that person’s own written submissions’. The lack of references to a duty to provide evidence of a qualified interest in confidentiality is confirmed by the Rules of Procedure: according to Article 96(3), the interested persons ‘need not to state the reasons on which [the objections] are based’. In principle, when an objection is raised, the Court’s website merely records its existence. More specifically, a fixed disclaimer has been added at the end of the InfoCuria online search webpage, reading that ‘The statements of case or written observations referred to above will not be accessible if an objection is raised pursuant to Article 96(3) of the Rules of Procedure of the Court of Justice or Article 202(3) of the Rules of Procedure of the General Court.’

In addition, in line with the absence of pre-determined grounds for objecting, the Rules of Procedure expressly exclude the possibility of challenging an opposition to publication before the Court of Justice or the General Court.

Lastly, as a rule, objections are to be communicated to the Registry by a separate document, no later than three months after the delivery of the judgment or service of the order closing the proceedings.[103] This means they can be filed alongside the written submissions or at any time during the proceedings. As the Court made clear in its draft amendments to the Rules of Procedure, this deadline serves two main purposes. On the one hand, it provides the parties and interested persons concerned with ‘sufficient time to become aware of the Court’s decision and to assess the potential impact on the publication (or non-publication) of the observations’. On the other hand, it allows the Court ‘to carry out the technical operations necessary for the observations lodged to be made available online, including any redaction of personal data which might prove necessary’.[104] In line with these purposes, the deadline in question is not mandatory and parties enjoy broad discretion to unilaterally and unconditionally oppose publications, unencumbered by substantive, procedural or time constraints. This is why the possibility to object has been described, in substance, as a right of veto.[105]

On the one hand, this approach can be explained by the need to make this system work in the face of the Court’s caseload. Due to the growing volume of preliminary references, judicial scrutiny over the merits of each objection would be resource-intensive. Also, it could lead to additional litigation, mirroring the abundant case-law on the exceptions to the right of access to documents under Regulation 1049/2001.

On the other hand, undeniably, proactive publication enters the courtroom through the main door – the Statute of the Court of Justice – only to exit through the back – the Rules of Procedure. While in principle the Court is bound to publish written submissions, the broad discretion granted to intervening parties can mitigate the ‘openness potential’ significantly. Moreover, even prior to the entry into force of the reform, the concern that parties, especially Member States, would routinely object to disclosure was reinforced by political signals. In March 2024, Austria, Cyprus, France, Greece, Italy, and Malta issued a joint declaration expressing criticism about the implications of Article 23(5). They emphasised that confidentiality is a cornerstone of many national legal traditions, enabling candid communication with the court. These States made clear that they expected the Rules of Procedure to maximise opportunities to object to disclosure.[106] Also, they were concerned about selective publication and the interaction among interested parties: if one party’s submissions are published but others are not, the objector’s position may still be inferred, rendering objections de facto meaningless. This argument echoed concerns raised by Advocate General Poiares Maduro in the API case, where he argued that equality of arms and procedural integrity require balanced access to information.[107] In the end, this concern did not materialise in the final text of the reform. However, interested parties could in practice decide to concert their procedural action to ensure their expectations of full confidentiality are satisfied. In addition, the lack of mandatory deadlines for confidentiality objections could trigger a domino effect, prompting similar initiatives from other parties or interested persons. The concern that – fully or partially – lifting confidentiality might deter parties from presenting their defence if they knew that critical elements of fact or law would be made public is deeply rooted in the case-law of the Court, legal scholarship, and some institutional narratives. Although focused on legal advice and policymaking within EU institutions, Leino-Sandberg’s analysis illustrates this underlying fear.[108] She argues that ‘[i]t is the conviction of the institutions and their legal advisers that legal advice has to remain confidential to remain objective’.[109] In particular, she points to the Council legal service’s concern that the public debate and external pressure deriving from greater openness would ultimately influence the position of the Council.[110]

Another concern stems from the structure of preliminary reference procedures and from national legal traditions. In many Member States, the disclosure of parties’ submissions is not permitted, reflecting a desire to preserve the confidentiality and serenity of judicial deliberations.[111] As the Court of Justice’s jurisdiction under Article 267 TFEU is incidental to domestic litigation, national courts remain the ultimate decision-makers. As a result, although deprived of a formal role on this matter, referring courts may not remain neutral on whether the Court of Justice should publish written observations. The Recommendations to national courts permit them to summarise parties’ arguments and state their own views. Updated in October 2024, these Recommendations remain silent on disclosure.[112] However, it is plausible that referring courts could incorporate disclosure preferences into their orders, especially if prompted by domestic legal culture or party concerns. Also, national courts could encourage parties to object to disclosure, to anticipate the spillover effects on their own proceedings and preserve confidentiality and the serenity of proceedings at the domestic level.

In this multifaceted context, preliminary interesting insights can be drawn from the early practice regarding the new publication regime. Between the 1^st of September and the 31^st of May,[113] the CJEU issued 183 preliminary rulings. As of the final submission of this Article,[114] pleadings have already[115] been made publicly available on the Court’s website in 85 of these cases.[116]

Within this subset of 85 judgments, full disclosure – meaning the publication of written pleadings from all parties and interested persons – occurred in 38 cases. In the remaining 47 cases, one or more objections were raised:

The following table summarises the number of cases in which the parties in the main proceedings, Member States, EU institutions and bodies, and EFTA States and bodies submitted written pleadings before the Court, and indicates how many of those cases involved an objection to publication:

From an institutional perspective, this data shows that the Commission has taken the openness rationale underpinning the reform seriously. As a general rule, it does not object to the disclosure of its written pleadings. Although the sample of relevant cases is smaller, the same cannot be said for the Council and the Parliament. The Council has lodged objections in 4 out of 6 cases, while the Parliament has, to date, opposed publication in every instance where it submitted pleadings.

As for Member States, the first six months of practice appear to confirm the anticipated trend of more frequent use of the objection mechanism. However, a more nuanced understanding of how Member States are utilising this procedural tool requires closer scrutiny. To that end, the following diagram disaggregates the 40 relevant cases into three sub-categories, based on the number of objections submitted by Member States in a single case: one objection (31 cases), two objections (6 cases), and three objections (3 cases):

The following table presents a State-by-State comparison of the number of interventions and the number of objections, using the pool of 85 cases as a benchmark. Member States are ranked in descending order based on the number of objections lodged. For States with an equal number of objections, and for those that intervened without invoking the objection clause, ordering is based on the total number of their interventions:

Although this data relates to the initial ‘warming up’ phase of the reform’s implementation, it nonetheless prompts a number of meaningful reflections that future research may further explore and validate. First, the widespread pre-reform concerns about the risk of an extensive use of the objection appears, for now, to be unfounded. The number of published submissions (139) significantly outweighs objections (49). Most Member States prioritise openness or, at very least, avoid blanket opposition to disclosure, apart from a few ‘permanent objectors’ such as France, Finland, and Hungary. Notably, Italy and Austria – members of the club of the most active interveners and signatories of the harsh declaration referenced in this section – have generally refrained from raising objections, with only one exception for Austria, in cases involving sensitive legal questions or issues directly affecting their domestic legal orders. Moreover, Member States seem not to be concerned about partial publication. Except for Neves 77 Solutions,[117]where all three intervening Member States decided to object, the other preliminary ruling proceedings involving more than one Member State feature publications of written submissions alongside objections.

Overall, it can be argued that the widespread and deep-rooted concerns about the fairness of proceedings and equality of arms reiterated by the Court and by various commentators have been effectively overcome by practice in a relatively short period.

That said, the practical implementation of the reform could also evolve towards compromise solutions, particularly in scenarios that current data trends are not yet able to capture or predict. While Article 96 of the Rules of Procedure adopts an ‘all or nothing’ approach to publication, the Court’s Explanatory memorandum to the amendments of the Rules of Procedure clarifies that it ‘will not publish the observations of an interested person if that person has expressed a wish to that effect, whatever the underlying reasons for it, such as, for example, the desire to await the outcome of the dispute in the main proceedings before the referring court or tribunal, or the outcome in parallel proceedings in another case pending before the Court’.[118] In other words, in the absence of clear normative indications on this point, the Court seems ready to accommodate delayed publication if the interested person concerned requests it to do so. For example, an interested party may wish to delay until parallel national proceedings or related cases before the CJEU are resolved. Though not ideal, this offers a middle ground and may reduce blanket objections.

Another challenge lies in the linguistic regime. Under Article 38 of the Rules of Procedure, the language of the case – typically the language of the referring court – governs written and oral pleadings. It follows that the parties’ written submissions are generally drafted in the language of the case. French – the Court’s working language – and the party or interested person’s language are relevant alternatives. In this context, Article 40 of the Rules of Procedure provides that the ‘publications of the Court’ must be available in all official EU languages. However, written submissions are not ‘publications of the Court’, thus falling outside the scope of this obligation. In addition, the Statute and Rules of Procedure do not require translation of written submissions. It follows that publication in the language of the case alone would technically satisfy the new disclosure obligation.

However, such an approach would likely undermine the spirit of the reform. Two arguments support a more inclusive linguistic approach. First, in practice, EU institutions and bodies translate their submissions into French, for the needs of the judges deciding the case, and sometimes also into the languages of the States intervening in a case. The revised text of Article 57(2) of the Court’s Rules of Procedure codifies this practice and requires institutions to produce translations of any procedural document into the other official languages.[119] It follows that the cost and administrative burden of multilingual publication may be manageable, at least for institutional submissions. Second, as per the parties’ and interested persons’ observations, the absence of an explicit translation requirement does not equate to a prohibition. The Court could voluntarily extend its current approach regarding the publication of preliminary references, wherein the official version in the language of the case is often published online alongside unofficial translations in multiple EU languages. The first semester of the reform’s implementation indicates that the Court has sought to balance potential linguistic barriers while also avoiding excessive operational burdens and resource-consuming practices. As a rule, statements of case and written observations – including those of EU institutions – are made available in French and the language of the case. In addition to these versions, the pleadings submitted by intervening States are available in their official language.

7.   Concluding remarks

The recent reform of the Statute of the CJEU marks a significant shift in the Court’s approach to transparency and access to court documents. By moving from a reactive model grounded on passive transparency – where third-party access to written pleadings was granted only upon request in very limited situations – to a system of active transparency as a way of proactive publication, the reform represents a significant departure from longstanding practices both within the EU and in other regional and international courts. Notably, it diverges from the more restrictive approach of the ECtHR – where individual requests to access documents have to be filed and assessed on a case-by-cases basis – and from the legal traditions of many EU Member States, particularly within the western central bloc, where judicial documents have historically remained confidential and locked away from the general public. This development, therefore, positions the CJEU as a frontrunner in embracing openness as an integral component of judicial accountability and legitimacy.

This shift aligns with broader international standards promoting transparency, including those set out by the Council of Europe, the United Nations and the Open Government Partnership, which emphasise that access to judicial information is fundamental to safeguarding the rule of law and enhancing public trust in the judiciary. 

However, while the reform constitutes a step forward in meeting these standards, concerns persist regarding the potential for procedural objections to publication provided for in Article 23 of the Statute to function as a de facto veto power. In particular, Member States and other institutional actors – who may have a vested interest in maintaining confidentiality – are provided leeway for invoking the objection clause. If objections become a routine procedural strategy rather than an exception based on genuine concerns about harm to protected interests, the new transparency framework risks being undermined, effectively preserving the status quo under a different legal guise.

Crucially, the analysis of the first semester of the reform’s implementation gives rise to cautious optimism. The Commission has demonstrated commitment to prioritising the disclosure of its written pleadings, with only one isolated exception. Member states are generally less inclined to accept publication as the default option. However, in most cases, they did not invoke the objection clause. This emerging trend is particularly significant, given that it has taken shape within a few months of the reform’s entry into force, following decades of entrenched institutional and academic positions that framed near-absolute confidentiality as necessary to preserve the serenity of proceedings and the equality of arms.

If the CJEU’s confidentiality walls have weakened considerably in just a few months, it is reasonable to anticipate a potential spillover effect on similarly confidentiality-oriented domestic legal systems over the longer term.

Looking ahead, the success of the reform will depend on its implementation and the extent to which its underlying rationale – enhancing transparency and openness in the EU judicial system – is upheld in practice in the longer term. It is, therefore, imperative that the evolution of the reform is closely monitored, both by legal scholars and by institutional actors committed to judicial transparency. The role of academia, civil society organisations, journalists and oversight bodies such as the EU Ombudsman, will be critical in assessing the extent to which the reform delivers on its promise of greater openness.

The European Parliament, in particular, which played a crucial role in advocating for increased transparency, could provide a key institutional check by conducting an independent evaluation of the reform’s implementation. Such an assessment would not only help determine whether the reform is achieving its intended objectives but could also serve as a basis for further practical or legislative refinements if necessary.

Ultimately, the reform represents an important milestone in advancing openness within the EU judicial system, but its long-term success will depend on the vigilance of institutional actors, legal practitioners, and civil society in ensuring that transparency is not just formally recognised but meaningfully upheld. Moving forward, sustained engagement with the principles of open justice will be essential to reinforcing the legitimacy of the Court and fostering a judicial culture that embraces, rather than resists, transparency as a fundamental pillar of the rule of law in the European Union.