Open Justice in Europe: IP practitioners speak out

'Tis the season of IP parties - fa la la la la, la la la la! And indeed it is! Able to depart her desk last night at a semi-reasonable time, the AmeriKat made it down to the first of her season's IP extravaganzas - Middle Temple for AIPPI's Annual Garden Party. There, along with the IPKat, she brushed elbows with some of the best and the brightest of IP lawyers. (picture, left - the AmeriKat burrowing into Middle Temple gardens last night) The topic of UCL's IBIL Annual Hugh Laddie Lecture came up a number of times -- especially the issue that the AmeriKat reports on today -- the secrecy of written observations to the Court of Justice of the European Union (CJEU).

For those not familiar with the idiosyncrasies of the procedure in cases that reach the CJEU, they are briefly as follows. A Member State's court can make a reference to the CJEU on issues of interpretation of European law in matters arising from a case. EU Member States are then invited to make observations on the case. In the UK, the Intellectual Property Office advises Ministers who then decide whether the UK should submit any observations to the Court. Member States have two months to make written observations after receiving notification from the EJC. The kicker, of course, is that the content of the UK's observations in an case before the CJEU is not disclosed to the public.

The general consensus among all walks of practitioners last night was that these documents should be made public: why shouldn't the public that is bound by the law of a national government and of the European Government not see how their own national government interprets that law? The initiator of the debate on this topic at the Hugh Laddie Lecture was IPKat friend, Richard Ashmead (picture, right). Richard wrote to the AmeriKat this week with the following comments on this topic and of which he has kindly allowed the Kat to publish:

"Thank you for this report on IBIL's Annual Hugh Laddie Lecture last week, and the kind words in it to the unintendedly anonymous contributor on the lack of transparency of member states’ observations on CJEU references. It was I. That contribution was triggered by Mrs Macken’s comment on how interesting it will be to read the written observations which will no doubt be filed by numbers of member states in the Dutch High Court reference in the ONEL case on CTM genuine use. The chances are, sadly, that we will not be able to read them as they are regarded by the CJEU as confidential, a position reflected in the practices of some, possibly all, member states and other “parties” consulted by the CJEU.

There have been recent attempts to obtain Her Majesty's Government's (HMG)’s written observations in two IP reference cases, the UK “IP TRANSLATOR” case [see IPKat/Ashmead post here] on the use of class headings in trade mark applications/registrations, and the German patent annulment case of Brüstle v Greenpeace which raises a question on the definition of the human embryo in Directive 98/44/EC on the legal protection of biotechnological inventions. Freedom of Information (FoI) requests on both have been declined with reasons in the generality only, that is to say regardless of the individual case details. HMG is prepared to acknowledge that written observations have been submitted, and that it is not obliged to keep its own observations confidential, but has a policy to keep them secret.

The FoI Act provides a number of exemptions to allow secrecy to be maintained. The one on court papers is specifically not subject to any public interest balance, and other applicable FoI exemptions (which are subject to public interest factors) have been viewed, on a policy basis, as not in fact in the public interest, e.g. so as to preserve the UK’s reputation internationally, to avoid undermining the integrity of the proceedings concerned, or to allow the government to develop its policy in CJEU proceedings.

These written observations are made available to the parties to the basic actions, to all member states and to other allowed CJEU “parties”, such as the Commission and OHIM, but learned advice is as follows:

Are these Written Observations public documents? No
Can their content be discussed publicly? No
Is there a contempt issue? Yes

The point of a CJEU reference from a member state's court is to obtain a definitive interpretation of (existing) EU law in a context in which it is, axiomatically, legally unclear. That sounds like a public interest matter to me and will almost always be so, at least in IP matters. The public interest in a reference on what constitutes a human embryo and its use in medical and industrial matters sounds quite important to society, commerce and the IP world. What EU law really means on the scope of a very large number of trade mark registrations is perhaps not as fundamental to society’s mores and concerns but clarification of the legality of the “class-heading-covers-all” practice, on which the IP TRANSLATOR case centres, is of widespread concern to trade mark owners and users throughout Europe, as well as to their advisers. Once HMG has concluded that its involvement in these references cases is appropriate to help the court clarify what the law should be, why keep that secret as a matter of policy?

Mrs Macken’s support for more openness was most welcome, as has been IPKAT’s in related earlier commentary. A policy basis may be a comfortable way for HMG to avoid publication of its thinking but sits poorly with support for open justice. Aside from looking worryingly like making law without consultation, a bit of governmental confidence in the use of sensible discretion in public interest matters would not go amiss."

Transparency in court cases which include government involvement, especially at the European level, is essential to open justice. The AmeriKat finds it interesting that in the U.S., when the US Government makes observations in cases to the Supreme Court on issues of legal interpretation of US law (by way of amicus briefs), those briefs are public documents. The underlying rationale is that the US public should know the position of their own government in the interpretation of the law and legal issues with bind and concern them. There are obviously other issues to take into account in relation to observations made not by one's own federal government, but by several sovereign nations - but should not the philosophy and fundamental principle of "open justice" be the same?

In March, Master of the Rolls, Lord Neuberger, (picture, below) a former member of the Patents Court, delivered the annual Judicial Studies Board lecture entitled "Open Justice Abound?". He stated that

"The importance of open justice as a fundamental principle has not only secured its place in our legal system. It has also secured its place in the legal systems of all those countries which are signatories to the European Convention on Human Rights. Article 6 of the Convention was specifically drafted to replicate the House of Lords’ ringing affirmation of open justice in the seminal early twentieth century decision of the House of Lords in Scott v Scott. In that case, Lord Shaw described how open justice was ‘a sound and very sacred part of the constitution of the country and the administration of justice. . .The principle is equally embedded into the framework of all common law systems; not least the United States, where, in 1791, it was enshrined as a constitutional right by the 6th amendment. It is as important as it is well-travelled and long-lived."

Well then...give us our written submissions, the AmeriKat says!

What do readers thinks? Does anyone have any fun arguments regarding open justice, freedom of information and Regulation 1049/2001? Is there a legitimate public interest not to disclose the observations in IP cases? Are all of the exceptions swept up by "international relations" justification?

Further, is there really a contempt issue, as suggested? How can there be contempt in circumstances where the Court, who cannot rule on the underlying substantive case anyway, is charged only with making a preliminary ruling about abstract legal questions? And more preliminarily, where does the power of the Court to find contempt even come from? Let the debate begin!