Do not travel abroad unless absolutely necessary!

Yesterday the Court of Justice of the European Union heard case C-401/19 Republic of Poland v European Parliament and Council of the European Union in which the Polish government asks the CJEU to annul the upload filtering provisions in Article 17 of the DSM directive. While we had not really taken this case seriously (it seemed more a domestic political gesture of the Polish government than a serious effort to protect fundamental rights) and did not pay much attention to it the case has recently become more interesting as it forces the parties involved to openly position themselves in the ongoing disputes about the correct implementation of Article 17). In that sense the hearing did not disappoint as i have written up here.

Writing this report turned out to be a little adventure. Given the stubborn refusal of the court to stream hearings and other public sessions, it required someone to be present at the hearing in Luxembourg. Given the pandemic related travel restrictions it became pretty clear that among the people working on Article 17 on our side i was the best positioned to go to Luxembourg, which still meant a 4,5 hour drive in each direction. In the end i drove down the evening before, stayed overnight in a hotel¹ and drove straight back to Amsterdam after the end of the hearing.

While was quite a bit of trouble (i really do not like driving!), in the end it was worth the effort. Had i not been there to report on the hearing the only reporter would have been a writer for a subscription only business intelligence platform (plus a handfull of lawyers observing for corporate stakeholders on the public tribune). The CJEU would certainly do itself a big favour if it would stream such hearings and other public sessions. In the long run having the European public being represented by a hack writing for a business intelligence service and a civil society operative with a dog in the fight does not seem good for transparency of the judiciary.