You are on page 1of 13

Information Please: Opening Antitrust to the Public Why More European Union Court and Commission Documents and

d Hearings Should no Longer be Secret

Information Please: Opening Antitrust to the Public Why More European Union Court and Commission Documents and Hearings Should no Longer be Secret*
David Lawsky** Introduction Antitrust agencies in the United States and Europe play peek-a-boo with the public, each showing off bits and pieces of their very different processes for making decisions. Americans have something to learn from the Europeans carefully thought out administrative process. But Europeans also have something to learn from Americans about opening up institutions, lessons that will benefit the public and the decision-making bodies themselves the European Commission and European Union courts. I will argue here that when the European Commission acts against cartels or abuses of dominance the public should have access to some of the documents during the case and should be able to attend hearings now closed. Even more important, in merger cases as well as cartel and dominance cases, the European courts need to let the public see far more of what they do, including access to all filings.1 The European Commission has a formal timetable for each step of its administrative review of mergers and informs the public of its progress along the way. This system has been praised by lawyers for being both more organised and, crucially for our purposes, more open than the American system. For example, Warren Grimes has suggested that the American antitrust agencies should follow the European example and issue a reasoned decision in every case.2 But once merger, cartel and monopolisation (or abuse of dominance, to use the European term) cases move to the courts, the American justice system is more open in every way than its European Union counterparts in Luxembourg, the European Court of Justice and Court of First Instance.
* Also published as David Lawsky, Information Please: Opening Antitrust to the Public Why More European Union Court and Commission Documents and Hearings Should no Longer be Secret, forthcoming in P. Marsden (ed.), Handbook of Trans-Atlantic Antitrust, Edward Elgar Publishing, Cheltenham, scheduled for publication in January 2007. The author spoke on The journalists perspective at the conference The European Court of Justice for Journalists organised by ERA in cooperation with the International Press Association (Brussels) and Press and Information Division of the European Court of Justice in Trier and Luxembourg on 27-28 March 2006. ** News agency reporter in Brussels, specialising in coverage of competition policy at the European Union; email: I am particularly grateful to the men and women I spoke with at the European Courts, the European Commission, the Federal Trade Commission and the Department of Justice, all of whom were very helpful. I am not identifying them by name. But I can identify some of those outside the institutions who helped. These people read the chapter or made suggestions or provided information: Don Baker, Stephen Calkins, Mark Clough, Joe Gilchrist, Celia Hampton, Clifford Jones, Sarah Lawsky and John Schmidt. I have to give special thanks to Jonathan Baker for reading this article and commenting at several stages. However, I am responsible for all facts and opinions in this article. 1 These would be in the form seen by third parties, which exclude business secrets. I am a member of the Association de la Presse Internationale (API), a group of international reporters in Brussels covering the European Union, which is in court against the Commission in an attempt to open briefs. Our lawyer, Sven Voelcker, says that courts in the United States, Canada, Sweden and Denmark all have various forms of such open filings, and that there has been no harm from them. Court of First Instance Case T-36/04, filed on 2 February 2004. At the time of writing in October 2006 we await a hearing date. 2 Warren S. Grimes (2003), Transparency in Federal Antitrust Enforcement, Buff. L. Rev., 51, 937-1051.


David Lawsky

If European Union institutions become more open, everyone will benefit, from the parties involved to the casual observer. Companies of course stand to benefit. For example, reading the Commissions briefs will provide companies with a better understanding of the Commissions legal views, and thus permit companies to follow the law more easily and less expensively.3 In addition, more open institutions may actually improve competition law and its administration, because openness will foster better, more productive discussions among lawyers and economists from private and public institutions. More open institutions will also improve public oversight. In a democracy reporters often stand in for the public, and journalism shines a light on government activities. Thus reporting enhances public scrutiny, which in turn serves as a check on institutions. But without adequate information, even the sharply competitive reporters in Brussels are forced to focus on leaks instead of substance, and therefore their stories are less useful to the public than they would otherwise be. And in journalism, where what happens today is the news, information delayed is often information denied. Reasoned decisions that become public six to 18 months after a decision are helpful to lawyers and academics but useless to reporters. A brief comparison of antitrust basics in the US and EU United States antitrust officials must go to court and convince a judge to block mergers, punish price fixers or remedy monopolisation, with the exception of a sprinkling of cases handled by Federal Trade Commission administrative law judges.4 Most cases are resolved before a complaint is filed, typically when the agency closes its investigation or settles with the parties. Accordingly, the US handles much of its work as an administrative agency, although without the clearly defined process of the European Commission. In contrast to the United States, the European Commission itself has authority to block mergers, fine cartels and punish abuse of dominance, and its decisions may be appealed to the courts.5 The European Union and United States institutions differ in the amount and type of information they make available to the public during a case. Lets touch on differences in public disclosure between the US Federal Trade Commission (FTC), the US Department of Justice Antitrust Division, the European Commission Directorate-General Competition (DG Comp), US courts and European Union courts.


This guidance would be particularly helpful because of the adoption of Council Regulation 1/2003, which requires companies to determine on their own that they are in compliance with cartel law when they make deals with each other, a change from the past practice of seeking the security blanket of advance approval from the Commission. Some believe that openness has gone too far at the Federal Trade Commission, because under the sunshine law any time a majority of the five Commissioners gets together (except for certain decision-making meetings) they must hold an open meeting, notified in advance to the public. In fact, in the view of the United States Supreme Court, the Commission acts as a tribunal in a judicial or quasi-judicial capacity when it makes decisions. We have no warrant to exclude the European Commission, to the extent that it acts as a first-instance decision maker from being considered a tribunal, the Court said: Intel Corporation v. Advanced Micro Devices, 542 U.S. 241, 124 S. Ct. 2466, 2479 (2004).

Information Please: Opening Antitrust to the Public Why More European Union Court and Commission Documents and Hearings Should no Longer be Secret

Mergers United States law requires Washington agencies to keep merger filings secret, while European Union law requires the exact opposite: the Commission must publish merger filings in the European Union Official Journal. Companies can be sure that Washingtons antitrust agencies will say nothing if the FTC or Antitrust Division makes a second request for more information on a merger, because the law prohibits it. But Brussels officials issue a press release explaining their reasons when they open an in-depth second phase investigation. In the United States, the agency review of a non-cash tender offer is supposed to last 30 days plus 20 days for a second request, plus time needed to compile requested information. The reality is that in cases posing what the US agencies perceive as significant concerns negotiations can occur at several steps in the process, potentially delaying a decision for months. The European Commission process lasts 25 working days, which may be slightly extended, with the possibility of an additional in-depth review. The Commissions in-depth review has a formal timetable of steps culminating in a final deadline after 90 working days, or roughly four months, which is occasionally extended slightly.6 During its in-depth review, the European Commission often sends companies a Statement of Objections (SO), which is a charge sheet open to rebuttal. Third parties receive redacted versions of the SO, that is, versions with commercial secrets removed. SOs are confidential but some leak to journalists. The Commission also offers parties a closed hearing to make their case before a hearing officer, who makes no decision but reports to the Competition Commissioner.7 Both the United States and European agencies can choose to approve a merger or require changes. US agencies file a formal complaint and settlement agreement that is public and must be approved by a federal judge.8 The European Commission issues a press release when it settles a case and gives its reasoned decision to the parties. Only after business secrets are removed is the reasoned decision released publicly. Much later some decisions are published in translation.

A two-week extension can take place. The clock can also be stopped while the parties supply additional information, which rarely happens. The Commission set a record for the length of a stoppage during Oracles hostile takeover of rival software company PeopleSoft. In that instance a suspension (a second suspension, itself a rarity) lasted from April until October 2004, ending shortly after a US judge had ruled in favor of the allAmerican deal. The Commission decision, coming soon thereafter, followed suit. The hearing officers mandate, available at the following website: , makes clear that the hearing officer has the power to assure that procedural rules are followed, but also to go beyond that and deal with questions of substance. See Article 3, Section 3 (The hearing officer may present observations on any matter arising out of any Commission competition proceedings to the competent member of the Commission.) and Article 13, Section 2 (In addition to the report referred to in paragraph 1 [on procedural issues] the hearing officer may make observations on the further progress of the proceedings. Such observations may relate among other things to the need for further information, the withdrawal of certain objections, or the formulation of further objections.). There is an exception to the Justice Departments silence during its review of merger cases. By law, the Department of Justice Antitrust Division publicly advises the Comptroller of the Currency on competitive effects of bank mergers during the administrative review by the comptroller. Once the comptroller acts on a bank merger, Justice has 30 days to accept that decision or challenge it in court. If not challenged within 30 days the merger becomes immune to challenge under the antitrust laws.


David Lawsky

The European Commission can block a deal, which at the time of writing it has done so only 19 times in the 2838 mergers it has dealt with since 1990, and later issues a reasoned decision.9 The FTC and Antitrust Division must convince a judge to block a deal, but the government decision to take a case to court usually convinces companies to drop their deal rather than face the time and expense of defending themselves. Court fights grow out of only a tiny sliver of the merger filings in the United States, but in the rare instance of a trial all evidence, briefs, exhibits and hearing transcripts are commonly public, except for a small amount of confidential information such as sales figures.10 Even months or years later, any member of the public can go to a courthouse and look up the case, getting free access to a transcript if there is one, including every word spoken in court and bench conversations with the judge or meetings of the parties in the judges office. Every file will include briefs from each side, motions, decisions and evidence. Cartels Cartel enforcement is criminal in the United States but civil in the European Union (although criminal in some member states). In the United States, cartels often reach settlements with the agencies instead of subjecting themselves to criminal trials, because one or more of the conspirators has turned in the others in return for immunity from fines or jail time. There are exceptions, such as the high-profile 2001 trial in New York of Alfred Taubman for fixing commissions on art with rival auction-house Christies. Prosecutors who bring a criminal case first take it to a grand jury, which calls witnesses and hears evidence. The procedure, so secret that lawyers for witnesses are barred from the room, has been called a vacuum cleaner for finding government evidence. Grand juries nearly always indict, based on papers prepared by prosecutors. In the European Union a civil administrative review determines whether companies violated the law and those who have can be fined up to 10 percent of their annual worldwide turnover. In cartel cases, as in in-depth merger cases, companies have the right to a closed hearing. Monopolisation or abuse of dominance One high-profile example may illustrate differences between the two systems the Microsoft case,11 the best-known antitrust case of the past 20 years. In the United States Microsoft was brought to trial by the US Justice Department. During the trial in 1998 and 1999, all testimony was public, along with thousands of pages of evidence and testimony. Motions and filings were posted




It has taken only 225 of those cases to in-depth review, of which 78 were approved with remedies and 28 were approved unconditionally. See: Transcripts are made of major trials (sometimes daily transcripts, as in the Microsoft trial) and of trials which are appealed. Transcripts are kept on file at courthouses so that anyone may view them. When there is no transcript anyone may order one, paying by the page. United States v. Microsoft Corp., 147 F.3d 935 (D.C. Cir 1998); United States v. Microsoft Corp., 87 F.Supp.2d 30 (D.D.C.2000), 253 F.3d 34 (C.A. D.C. 2001) (No. 03-5030).

Information Please: Opening Antitrust to the Public Why More European Union Court and Commission Documents and Hearings Should no Longer be Secret

on the World Wide Web by the Court, and the daily transcripts were posted by private parties. In the European case the Commissions evidence was secret and much of what the public knew was from the parallel but different US case. The Commission conducted a hearing, but it was closed to the public. Microsoft appealed the Commissions 2004 decision to the European Courts, where one of the parties has told me that 5000 pages of arguments have been filed so far. None is public. Hearings were public, but the transcripts were not. Courts Courts in the United States are open. Long before a case goes to trial, the parties file briefs and replies, and thus arguments in the case are available to the public. A case running in parallel in both the United States and Europe (as many mergers do) can lead to the bizarre situation of having the same information secret in Brussels but available in the United States. For example, both sides filed papers in the US District Court in San Francisco when the Justice Department filed suit there to halt Oracles hostile takeover of PeopleSoft. Meanwhile, the European Commission held a closed oral hearing on the case, where both sides relied on the same arguments they had made publicly in the United States. That led to the strange situation of reporters quizzing participants in the closed hearing during breaks to find out which of the arguments had been invoked. US court filings or, for wire services, mere reports of those filings provided the detail needed to understand and explain in stories what was happening behind closed doors in Brussels. One of those involved in the case contended that the parties obtained more information through discovery in the United States than the European Commission obtained through its version of the same process, which is to send letters requesting information under Article 11 of the European Union merger regulation. In addition, US lawyers often say that the process of crossexamination of witnesses and experts by those from the other side helps as an important means of testing evidence. When Federal District Court Judge Vaughn Walker in San Francisco decided in 2004 to permit Oracle to buy PeopleSoft, his decision came out at the same time as his judgment. The decision in Europe was accompanied by a short news release, with public release of the reasoned decision to follow later. Description of Commission hearings The hearing focuses on the Commissions case so that the parties may defend themselves by raising questions about it. At the beginning of the hearing, which usually runs one or two days, the Commission reviews the case it laid out in the SO in a presentation which usually lasts 15 to 30 minutes. The parties present the case they made in their written reply, followed by third-party presentations. After each presentation there may be brief questioning, but formal questioning takes place after all of the presentations are made. At that point the parties face


David Lawsky

questioning by the Commission, followed by representatives of the 25 member states and third parties. After that, the parties themselves have a round of questioning to the Commission and third parties. The basic idea is that everyone is allowed to ask questions to everybody, said one person who has attended many of the hearings. But the questioning does not go as far as US cross-examination, say those who have attended the hearings.12 Arguments for open hearings on abuse of dominance and cartel cases Opening up hearings on cartels and abuse of dominance would put an end to keyhole journalism, which occurs when reporters get only a narrow view from leaks. Our time and effort goes into developing sources and obtaining leaks. Even with the best intent, a leaker cannot convey to the reporter everything that happened inside, only what the leaker sees as the highlights. At other times a leaker may be self-interested and put a spin on the ball. But even if what I have is fragmentary and biased, if I know it to be true I will report it. Competition against my journalist colleagues compels me to. By contrast, when reporters are inside a hearing things are different. Instead of expending our energy getting crumbs to report, we take in the whole day and spend our time thinking about what we believe to be the most important points. If all the reports are the same, the public knows that something significant happened, while if everyone leads on something different, the public understands that nothing particularly outstanding took place. My experience in reporting trials is that what goes on inside the courtroom dictates the lead, not what people tell us outside. We are less easily manipulated because we have seen what happened first hand. A London antitrust lawyer (not one acknowledged at the beginning of this chapter) told me that it would be a good idea to open up such hearings, noting: Even in a jury trial in Britain the public can go in and see the trial and it does not compromise whether the defendant is guilty or not guilty. The London lawyer was dubious about opening up the Statement of Objections and replies, expressing the view that SOs were sometimes grossly inaccurate and companies might face unfair publicity if the SOs became public. But I would disagree, based on my experience in reporting cases in the United States. I do write one-sided stories when one side files papers; indeed, I often find the papers persuasive. But I write about replies too, when those are filed, and those replies can be equally persuasive. Thus over a period of time I tell both sides of the story.


One concern of those opposed to open hearings is that if the public were to see the lopsided focus on the Commissions case it would view the Commission as the centre of criticism and form a negative view of DG Comps arguments, with an adverse effect on the final Commission decision. However, a similar negative focus on the Commissions case can also take place at public hearings before the European Union Court of First Instance when a Commission decision is challenged. No one has suggested that is a reason for closing such hearings.

Information Please: Opening Antitrust to the Public Why More European Union Court and Commission Documents and Hearings Should no Longer be Secret

If SOs remain closed a company would have a good reason to avoid an open hearing, where information about the charges against it would become public. But if the SOs and replies were open the information would already be in the public domain. While in mergers parties exercise their opportunity for a hearing only about half the time, in cartel cases hearings are the norm, because those accused of being in a cartel are watching each other closely, I am told. Under current law and practice, the first moment we hear the voice of the parties in an official setting is when a Commission decision is appealed to court and a hearing is conducted. In the European Commission Microsoft case, for example, there were three years of proceedings before members of the public, including journalists, were ever able to weigh the words of the two sides. When the Commission decision was released we saw only the portions of Microsofts written argument that the Commission chose to put in the decision, and only in the context which the Commission chose. Statements of Objection are roughly parallel to a complaint or a brief in a case in the United States. US complaints making the governments side of the case are public and are usually written to avoid confidential business information, or else a redacted version is quickly made public. Statements of Objections would give commentators a chance to assess far more clearly the arguments on both sides. Openness would also end the problem that once information is shared with third parties a case can become a leaky black box. Reasons for closed hearings before the Commission in merger cases Merger cases differ from abuse of dominance and cartel cases. The Commission has legitimate concerns about protecting companies attempting to carry out a merger, a transaction that may be pro-competitive. In addition, the Commission and parties are up against the tight four-month deadline for review. Reporters would love to see merger hearings accessible to the public. But European Commission staff and private lawyers are dubious about opening up hearings or Statements of Objections and replies in merger cases. One outside lawyer said the limited four-month in-depth review is far too intense and pressured to add the extra layer and expense of hiring a public affairs company to deal with the press at hearings. It would be a new layer of complexity he would have to manage. Fights over which matters qualified as confidential business secrets would complicate matters further. The outside lawyer believes that the European Commission would have to take great care to make sure the press debate did not take over the process, because, he believes, some reporters are in the pocket of one party or another. Some private lawyers and Commission staff believe the presence of even one reporter at a merger hearing would chill the relatively frank discussions that now take place. Instead of low-key hearings aimed at bringing out plain facts in a serene setting, all sides would play to the jury of public opinion, attempting to influence the general public and decision makers. Large companies could


David Lawsky

exacerbate the problem by using a public relations army to reinforce arguments and trash the other side. Even fewer merging firms might elect to have hearings, further diminishing the internal check provided by the process. One should be careful, too, not to exaggerate the lack of openness. Even with the Commissions doors closed and its matters secret, the press gets its hands on a surprisingly substantial amount of information, these private lawyers and Commission staff argue. (This, it seems to me, is not really true because reporters get only the narrow view of those who leak to us.) Those who are admitted to the hearing come to participate, not just to listen. Participants include customers and competitors, although some people turn down invitations out of fear of putting their heads above the parapet. However, those in an industry who do attend can serve as a brake on exaggerated claims. There is also a question about whether anyone wants more openness, other than reporters such as myself. The Commission sought public suggestions at the time it rewrote the merger and cartel regulations, and no comments from the public requested an open process. Certainly the companies involved are in no rush to have more information in the public eye or in the hands of competitors who are not in the room. As matters stand, people involved are happy with the system. The system guarantees procedural rights and respects the rights of the parties. Opening it up could threaten the existing balanced system. For example, parties might be reluctant to exercise their right to a hearing if they had to subject themselves to open scrutiny by the press. If there is a reason to change things, it is incumbent on those who want the change to show why. Evaluation of arguments Before writing this piece, I believed that all hearings should be open, in part because discrepancies between the US and European systems lead to ludicrous situations such as the one I described above involving Oracle. But the arguments of staff and private lawyers cited above persuaded me that the merger process hearings should continue to be closed to the public. I was particularly convinced by the limited period of time involved and the idea that the merger hearings are not necessarily adversarial. Similar arguments probably apply to SOs and their replies. However, notwithstanding these arguments, Statements of Objections and the replies of parties should be open in cases involving cartels and abuse of dominance. Such openness would give the public a chance to see the views of the Commission and the parties in their own words and help observers evaluate the Commissions decision. Beyond that, the ultimate goal should be to open the hearings themselves, even if it forces a change in their nature. Open hearings would help the public better understand a case, just as it helps the Commission.


Information Please: Opening Antitrust to the Public Why More European Union Court and Commission Documents and Hearings Should no Longer be Secret

Lets now look at what happens to a case when it is appealed to the courts. The arguments for closed briefs before the courts Courts in the United States are open. As Ive said above, those who dont attend still have an opportunity later to read transcripts (even if they dont exist, someone who wants to look at them badly enough can often pay to have them transcribed from court reporters notes), look at the evidence and the pleadings and understand exactly what happened. Briefs before European Union courts are closed and there is no transcript available to the public, although the court prepares a transcript for internal use and some parties employ stenographers to sit quietly in the audience and take notes for their internal use. Those who favour the existing system have explained to me that closed briefs are a traditional and established approach common to many national legal systems of the European Union, squarely within the continental legal tradition. Such a system has been used since the inception of the European Court of Justice without difficulty. The advocates of the current system make a number of additional points. First, as with the Commission hearings, it is important that cases are adjudicated entirely independently, without external influence by the press, third parties or others. Keeping pleadings confidential minimises the risk of having the case judged in the press. After all, the purpose of the pleadings is to help adjudicate the matter, not to provide fodder for public comment. Second, closed briefs help parties feel freer to produce confidential information without fearing it will enter the public domain. Lawyers can express themselves in absolute freedom. Moreover, public briefs could engender significant delays and waste limited resources, because the courts would have to filter out confidential information instead of devoting all their time to the substance of the case. Finally, even though the briefs themselves are not public, there is still much openness. On the day a hearing occurs before the Court of First Instance, the court provides a Report for the Hearing, which includes an accurate summary of all the arguments before the court. The hearings themselves are public and the judgments are public and fully reasoned. Sometimes the judgments are longer specifically to ensure that the views of all sides are aired. The public can also request documents, but must give detailed reasons for doing so. These arguments by advocates of the existing closed system are subject to substantial challenge both from the success of open court in the United States and on their own terms.


David Lawsky

Arguments for opening court briefs Courts in the United States have tremendous authority and legitimacy because of their transparency: everyone who cares to can see exactly what went into a decision, save for a very small amount of redacted materials. Academics, researchers of all kinds and the general public examine the full, rich record days, months or years later to assess the performance of a court, witnesses or lawyers. The question is where to strike the balance between legitimate secrecy and the right of the public to oversee its institutions. Celia Hampton, former editor of Competition Law Insight in London, has been seeking more openness for years. In a context of EU institutions other than courts which are exempt from most disclosure Hampton makes the point that European government exists only to carry out functions on behalf of the public, including collecting and creating information that it holds for the public. The EU Treaty only obliges [EU institutions] to refuse public access to [information] if it consists of personal data or professional secrets. If it is held by government because it has been created or collected in the course of government work, it is public information. If not, government has no business holding it . The public must be able to see what the government is doing so that its propriety and efficiency can be checked.13 It is not enough to hear the court explain itself in a decision, even if that decision is long enough to include the parties arguments as well as the courts conclusion. Reporters and the public we serve learn more from reading the arguments made by the parties in their own words, rather than the characterisation of their arguments either in the Report for the Hearing, drained of all passion and nuance, or in decisions by the Court. We benefit from comparing both sides arguments and making independent judgments about the Courts conclusions and reasoning. How else can a member of the public judge the courts? And whose job is it, if not the publics, to judge the courts? Under current rules attending a hearing at the Court of First Instance or European Court of Justice is like walking into the middle of a conversation. Before going to a competition hearing I write lead-up articles based on talks with both sides, to the extent they are willing to talk. But I have no access to the Report for the Hearing until the day of the hearing itself, and therefore I am unable to use it to prepare set-up articles or to prepare myself for the hearing. During the hearing, participants constantly refer to the briefs, down to citations to particular paragraphs. But I do not have the briefs, so I have no way of knowing what they are referring to. Similarly, the court sometimes poses questions in writing to the Commission lawyers. We hear the lawyers responses, but have no way of knowing what they are responding to.


See: , points 1 and 2. Celia Hampton is editor of

Information Please: Opening Antitrust to the Public Why More European Union Court and Commission Documents and Hearings Should no Longer be Secret

The Report for the Hearing is offered to the public only in the language of the case, even though the court also prepares the report in its working language of French. No single reporter can know anywhere near all 21 languages used in the court the 20 official EU languages plus Irish. A reporter assigned to spend his time at the EU courts and write about the cases there a familiar job among journalists in the United States called the courthouse beat found the job difficult, telling me: You go into the hearing basically blind. The hearing itself always has simultaneous interpretation into French, and sometimes other languages, but without knowing anything about a case it is nearly impossible to follow. This places a very high barrier in the way of reporting the courts business. In the United States, Britain, Germany, France, Sweden, Hungary, the Czech Republic, Greece and other countries the courts are in major media centres, but Luxembourg has only the courts and some non-political institutions (and occasional European Union meetings), making it difficult for news organisations to dispatch reporters to court. The nearest centre for international media is Brussels, more than two hours away by train or car. Whether through design or insensitivity, the cumulative effect has been to discourage news organisations from doing comprehensive coverage of the courts and to prevent the public from knowing what their courts are doing. In competition cases, at least, I have some understanding of the cases when I walk in the door. My obligation is immediately that is, within 30 or 40 minutes after the hearing to write a story about what happened and what it meant. People will read my story to help them understand the hearing and form their opinions. Those who were not fortunate enough to attend the hearing lack access to a transcript and have no way of knowing even what I know about the hearing. Conferences on competition are called in part to help move the law forward. But the kinds of restrictions imposed by the European Court of Justice have inhibited exchanges of views and analysis at antitrust conferences. For example, at a November 2004 Brussels antitrust conference Thomas Vinje, a lawyer who represented rivals of Microsoft, asked a panellist about the application of a case involving IMS Health to a pending Microsoft decision before the European Union Court of First Instance. I dont have the benefit of having read the papers on both sides, replied the panellist. Later, pressed again, he said: Without having studied Microsofts own arguments, the Commission is making a pretty powerful argument. There had been a hearing that laid out the views of both sides, but the panellist, a British lawyer, had not been there and there was no official transcript. We are also asked to believe that opinion pieces that people might write about accessible briefs would unduly influence judges. But why then is there not a similar concern about articles about the hearings? Overly influential opinion


David Lawsky

pieces about court briefs do not appear to be a problem for the United States judicial system. Are we being asked to believe that judges in European courts are much more easily influenced by outside writings? In fact, open and available pleadings can educate lawyers and others. One British lawyer told me he looks at a United States government website to read its World Trade Organisation filings, while Europeans almost never open their filings to the public. Finally, when the opinion itself comes out ideas are sometimes deliberately fuzzed up in order to cover splits within the panels, numerous people have told me. The court speaks with a single voice; there are no minority opinions in judgments by the Court of First Instance or European Court of Justice. Judges are appointed for only six years. The lack of dissent is supposed to protect judges from retribution at home for taking unpopular stances and to increase the legitimacy of the court by papering over splits. But the effect can be to make the reasoning of judgments even more curious and impenetrable to people who have no access to most of the basis for the opinion.14 Others claim that redacting confidential material from open briefs would take too much of the courts time and effort. Yet US judges and lawyers manage to redact briefs quickly, efficiently, and without harming the US judicial process. Why should redaction be more difficult in Luxembourg? The European Union courts need public acceptance for their support and growth, perhaps one day beyond Luxembourg to other states. The courts should make public all non-confidential filings, as well as court transcripts and the lower courts Reports for the Hearing, in all languages in which they are available as soon as they are available.15 The courts exist not merely for those who appear before them but also for the broader public, which foots the bill. Only with more information can the European public give courts increased support. Conclusion Warren Grimes argues in the Buffalo Law Review that transparency is a fundamental principle governing the actions of the European Commission. As he notes, the Commission must report in detail on the reasons for its decisions in mergers while the United States agencies rarely do so. But for a reporter, the delay in making these materials accessible makes the requirements relatively meaningless. We report news, not history. And what we report largely forms the basis for current, timely public understanding of public institutions.



Majority and minority opinions not only help the public better understand the court. In other jurisdictions minority opinions have pointed the way to future decisions and given courts reasoning to use when, as occasionally happens, they alter their views. There is considerable latitude in what one means by public. These days, I think it would be insufficient to put documents on public file in Luxembourg. All documents should be available in machine readable form, so that anyone can email them or post them to the Web. Or the EU courts could follow the practice in some other jurisdictions, which require all filings to be made in machine readable form, such as PDF, and then post them to their own court website. Confidential materials are of course excluded.

Information Please: Opening Antitrust to the Public Why More European Union Court and Commission Documents and Hearings Should no Longer be Secret

Checks and balances are built into democracy, but informed citizens are the ultimate check on government. And citizens cannot be fully informed without access to original source material. While a baker in Siena may or may not take much interest in the merger of a German and a French chemical company, there are people who care. More information will improve these citizens oversight of European Union institutions. With increased openness will thus come increased public approval, which will in turn add to the strength and legitimacy of the European Commission and European courts.