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The EU Council Conclusions on the Publication of Court Decisions
Law via the Internet | Florence | 11 October 2018
This project is co-funded by
the European Union
Marc van Opijnen
Adviser Legal Informatics Publications Office of the Netherlands (UBR|KOOP)
Project Coordinator BO-ECLI (2015-2017)
Topics
The road towards
Legal status
Contents
Impact?
2
Law via the Internet
Florence11-10-2018
The Road Towards ECLI
3
EU Council Conclusions 2010
ECLI:ES:TS:2014:3876
Common set of metadata
Law via the Internet
Florence11-10-2018
The Road Towards ECLI
4
EU Council Conclusions 2010
ECLI:ES:TS:2014:3876
Common set of metadata
National ECLI coordinator
ECLI Search Engine.
Law via the Internet
Florence11-10-2018
5
This project is co-funded by the European Union
Italy
• Institute of Legal Information Theory and Techniques
• Alma Mater Studiorum University of Bologna
• University of Torino
Spain
• Documentary Centre for the Spanish Judiciary
Croatia
• Ministry of Justice of the Republic of Croatia
• Supreme Court of the Republic of Croatia
Romania
• Ministry of Justice of Romania
Belgium
• Federal Public Service Justice
Germany
• Federal Office of Justice of Germany
• Federal Administrative Court of Germany
Czech Republic
• Supreme Court of the Czech Republic
Estonia
• Centre of Registers and Information Systems
Greece
• Hellenic Council of State
• European Public Law Organization (EPLO)
The Netherlands
• Council of State
• Publications Office of the Netherlands (UBR|KOOP)(coordinator)
The Road TowardsBuilding on ECLI
The Road Towards Objectives BO-ECLI
1. Eight first or further national implementations of ECLI
2. Promotion of ECLI
3. ECLI 2.0
4. Linking data
5. Online publication of court decisions: research & guidelines.
6
Law via the Internet
Florence11-10-2018
Comparative research EU-wide, focus on: Legal frameworks Actual publication Data protection Open data ECLI
Report (177 pp, on website and SSRN)
7
The Road Towards Policy Research
Law via the Internet
Florence11-10-2018
Comparative research EU-wide, focus on: Legal frameworks Actual publication Data protection Open data ECLI
Report (177 pp, on website and SSRN)
Summarizing article: Legal Information Management, 17 (2017), pp. 136–145.
8
The Road Towards Policy Research
Law via the Internet
Florence11-10-2018
Agreed upon deliverable of the BO-ECLI contract “Preferably Council Conclusions” “If politically achievable”
Politically sponsored by the Netherlands
Negotiated: EU Council Working Party on e-Law (e-Justice) Between January 2017 and March 2018 Four meetings and written procedure
From 3486 to 851 words. 9
The Road Towards Policy guidelines
Law via the Internet
Florence11-10-2018
Legal StatusConclusions
Conclusions of the Council and the representatives of theGovernments of the Member States meeting within theCouncil on Best Practices regarding the On-line Publication ofCourt Decisions
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Law via the Internet
Florence11-10-2018
Legal StatusConclusions
Conclusions of the Council and the representatives of theGovernments of the Member States meeting within theCouncil on Best Practices regarding the On-line Publication ofCourt Decisions
11
“Conclusions […] are the Council’s ordinary means ofexpression when it is not exercising the powers conferredupon it by the Treaties. In principle, they have the status ofpurely political commitments or positions with no legal effect.”
Only by consensus.
Law via the Internet
Florence11-10-2018
Legal StatusConclusions
Conclusions of the Council and the representatives of theGovernments of the Member States meeting within the Councilon Best Practices regarding the On-line Publication of CourtDecisions
12
Even in a non-legislative instrument the Council cannot take astance on topics not within the Union’s areas of activity>> ‘Representatives of the Governments’
Mixed if: Conclusions are on topics within and outside EU competence There is no political agreement on whether it is within
competence of EU.
Law via the Internet
Florence11-10-2018
Legal StatusSoft Law
Hard law: treaties and customary law Soft law: resolutions, recommendations, a.o. of international
organisations Lex lata or lex ferenda? Depends on:
Intentions of the parties drafting the instrument; Expression of current state practice; Relation with other instruments in the field.
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Law via the Internet
Florence11-10-2018
Legal StatusCautious Wording
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Recital 5: “These best practices lack a mandatory character, donot strive for any kind of harmonization and should merely beviewed upon as an invitation for reflection. The extent to, andthe way in which court decisions are published on the internet,is up to every individual Member State and/or court to decide.”
Wording stresses the reluctance: … Member States are called upon … … deserves special attention … … are encouraged … … it might be considered …
Law via the Internet
Florence11-10-2018
ContentsHighlights
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Introduction:
Access to court decisions is important for transparency ofjustice and access to the law
At EU level, access to decisions of other Member Statesis needed
Scope limited to publication of court decisions on the internet.Law via the Internet
Florence11-10-2018
ContentsHighlights
16
On Selection:
Neutral on selection vs. publication of all decisions If selection: criteria should be drafted and published
On Data protection:
No stance on whether or not personal data have to beanonymized/pseudonymized
Consider the implications of the General Data ProtectionRegulation
Preserve readability / comprehensibility of the text.
Law via the Internet
Florence11-10-2018
ContentsHighlights
17
On reuse:
Make published court decisions available for reuse incomputer-readable formats
Including metadata Adequate options for download.
Law via the Internet
Florence11-10-2018
ContentsHighlights
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On improving usability:
Metadata, search engines Assign ECLI and make available via ECLI Search Engine The most revolutionary (?) recital:
“Comprehensive publication of court decisions contributes tothe transparency of the judiciary, but on the other handcreates voluminous repositories in which it might be hard tofind decisions of particular legal importance or societalimpact. If technically and organizationally achievable, it wouldbe advisable to supply for some kind of importance qualification, indicating which, and to which extent decisionsare of relevance for others than the parties to the case.”
Law via the Internet
Florence11-10-2018
Impact?
19
BO-ECLI report: Most countries publish substantial volumes, with varying
quality of metadata and search To be improved: metadata, translations, computer-readable
references To be improved: reusability (formats and APIs)
Council Conclusions: Final version less ambituous (topics/wording) than first draft Still, it is the first EU Council document on the topic Possible impact on how courts and administrations judge
their own performance and shape their future policies.
Law via the Internet
Florence11-10-2018
Thank you for your attention!
Council Conclusions: Official Journal EU C 362, 8.10.2018, p. 2–3https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2018:362:0002:0003:EN:PDF
More on BO-ECLI: http://bo-ecli.eu
Contact: [email protected]
This project is co-funded by
the European Union This presentation has been produced with the financial support of the Justice Programme of the European
Union. The contents of this publication are the sole responsibility of the partners of the BO-ECLI project and
can in no way be taken to reflect the views of the European Commission.
