Peter Oliver, Honorary Professor at the Université Libre de Bruxelles
Photo credit: Isaac Castillejos
Some readers may recall that in
June 2018 the Court of Justice issued a press
release, to the effect that, in keeping with the General
Data Protection Regulation (GDPR), the Court had taken the following
In order to
ensure the protection of the data of natural persons involved in requests for a
preliminary ruling while guaranteeing that citizens are informed and have the
right to open courts, the Court of Justice has therefore decided, in all
requests for preliminary rulings brought after 1 July 2018, to replace, in all
its public documents, the name of natural persons involved in the case by
initials. Similarly, any additional element likely to permit identification of
the persons concerned will be removed.
in the original)
This approach was to be followed
not only in relation to the names of cases but would also apply to ‘all publications
made as part of the handling of the case, from its lodging until its closure
(notices to the Official Journal, Opinions, judgments...)’. The names of individuals were to be replaced by
two letters in each case, which were not their actual initials; and this would
be supplemented by a few words in brackets briefly describing the
subject-matter of the case.
For the avoidance of doubt, the
press release stated that the names of legal persons would continue to be
used. Another point which emerged
clearly from the press release was that the new guidelines would apply only to
preliminary rulings, the reason being that the General Court had no intention
of falling into line with the higher court (but this reason was not spelt out
in the press release).
Furthermore, the Court expressly
reserved the right to depart from this practice if “the particular
circumstances of the case so justify” (a nebulous test if ever there was one)
and “in the event of an express request from a party”.
The new approach went well beyond
the pre-existing practice of the Court of Justice and the General Court of replacing
the names of natural persons in sensitive cases (e.g. where a litigant is a
child and/ or an asylum seeker) by initials.
Manifestly, that is necessary to protect the privacy of the individuals
concerned in keeping with Article 8 ECHR and Article 7 of the Charter.
In July 2018, the Court’s
“Recommendations to national courts and tribunals in relation to the initiation
of preliminary ruling proceedings” appeared in the Official
Journal. In two passages of these
recommendations, national courts are encouraged to anonymise the names of
natural person who are party to proceedings, when drafting the preliminary
reference. But of course the Court has
no power to require the national courts to do so.
Those recommendations are
supplemented by a notice on the Court’s website variously entitled “Anonymity in judicial
proceedings before the Court of Justice” and “The
protection of personal data in connection with publications relating to
judicial proceedings before the Court of Justice”. As to judicial proceedings before the Court
other than preliminary references, the notice simply states that a person (who
may not necessarily be one of the parties to the case in question) may apply to
the Court to be granted anonymity. With
respect to preliminary references, the Court begins by recalling that,
according to Article 95(1) of its Rules
of Procedure, it is required to respect decisions of referring courts to
grant anonymity to a party to the proceedings.
For the rest, the notice repeats the key passages of the Court’s press
release of June 2018.
What is more, the notice on the
Court’s website points out that the policy change announced in the press
release of June 2018 pre-empted the adoption of Regulation
2018/1725 of the European Parliament and the Council on the protection of
national persons with regard to the processing of personal data by the Union’s
institutions and bodies. According to
recital 5 in the preamble to this Regulation, it is intended to align the rules
applicable in that context to the GDPR “as far as possible”. The Regulation is expressed to apply to “all”
the Union’s institutions and bodies (Article 2(1)). Crucially however, the notice on the Court’s
website does not suggest that the Regulation would preclude the Court from
reverting to its practice prior to July 2018, should it wish to do so.
In December 2018, I wrote a post
on this subject which
appeared on this blog. In the post, I
indicated what I believed (and still believe to be a number of shortcomings of
the scheme set out in the press release of June that year. In particular, I pointed out that this scheme
would make it harder for courts, practitioners, legal academics and students to
find, identify and remember the names of cases.
On 9 January 2023, the Court issued
release 1/23 announcing that as from 1 January the names of national
persons in new preliminary references would no longer be composed of initials,
but of fictional names which will not in principle be existing names. These computer-generated fictional names are
to be created by “dividing words into syllables, which are then randomly
combined to produce fictional names”. A generator
has been created “for each official language of the European Union and
additional generators will be developed, where necessary, for languages of
The press release also contains
the following statement:
of fictional names does not affect:
References for preliminary rulings in which the name of the legal person
is sufficiently distinctive (the name of that legal person will be used as the
name of the case);
actions (the Court of Justice will continue to allocate a conventional name to
those cases, which will appear in brackets after the usual name of the case);
Requests for opinions;
before the General Court.
In relation to the problem
mentioned above, the Court’s press release is most welcome: the new scheme will
undoubtedly make it easier for all concerned to find and remember case
names. However, it fails to solve the
other issues mentioned in my earlier post.
First of all, each individual’s fundamental
right under Article 8 and 10 ECHR and Articles 7 and 9 of the Charter to be known
by his or her own name will still not be respected. The Court’s stated willingness to accede to
an “express request” from a party who is a natural person for the use of his or
her own name is an empty letter unless that person is informed of the true
position at an extremely early stage after the preliminary reference is made. After all, it is entirely reasonable for the
individual, who does not happen to be acquainted with the minutiae of the
Court’s procedure, to assume that the Court will use precisely the same case
name as the referring national court. Moreover,
the Court’s readiness to depart from its usual practice of imposing anonymity where
“the particular circumstances of the case so justify” is of little or no avail
to such an individual, since by definition recourse to this exception is a entirely
a matter for the Court’s discretion.
Second, the Court’s decision not
to respect the case names employed by national courts in preliminary references
runs counter to the Court’s constant insistence on the fact that its co-operation
with those courts in such proceedings is of the essence. In any case, the Court has no means to coerce
national courts to follow its practice, even if that were desirable.
For all these reasons, it is
submitted that the Court should respect the choice of national courts except in
highly exceptional cases.
Finally, by using
computer-generated names the Court risks embarrassment or even ridicule. Such names may well have unfortunate connotations
of a racist, sexist or other inappropriate nature in the language of one or
more Member States. To avoid this, the
Court’s administration will need to check that each computer-generated name is
unobjectionable – at least in the language of the case and the language or
languages of the parties. This is likely
to take time, which is unfortunate given the time pressure on the Court after
it receives a preliminary reference.
However, this is obviously a minor concern.
In conclusion, whatever else may
be said about the policy announced by the Court in 2018, the fact is that it
still does not appear to have gained much traction: the General Court is still
unwilling to follow suit, and it is not clear that many national courts have
been persuaded to anonymise names in preliminary references. Whether the Court’s change of tack now will
garner much support remains to be seen. In
any event, the case for reverting to the Court’s practice prior to the summer
of 2018 remains as strong as ever.