19-01 |
A Legal Certainty Perspective on International Case Law Databases: The Example of the European Case Law Identifier Search Engine [Volume 9 – 2019] |
17 February 2019 |
| Stefan Wrbka |
| Unit Head and Academic Coordinator Business Law University of Applied Science for Management and Communication, Vienna |
1. Introduction |
Legal certainty has traditionally been considered a prime principle of developed law. Contributions in the past showed that the concept has a broad meaning and that various mechanisms can be applied to maximise it. Growing globalisation has added an important layer to the debate. The increasing number of cross-border activities necessitate to look at legal certainty from an international perspective, taking into account differences in law and legal development. Academic networks have emerged to exchange views and knowledge in this regard. One area that has been passed largely without further comment in the context of legal certainty is the use of case law databases to simplify the access to foreign judicial decisions. |
The purpose of this paper is to fill the lacuna by taking a look at a recent example, which is arguably one of the most ambitious database projects thus far – the European Case Law Identifier Search Engine (ECLI-SE) introduced in May 2016 by the European Commission (Commission). [1] The paper will start with a brief look at the concept of legal certainty and its different notions. The emphasis will be put on the situation in the European Union (EU). In a second step, the contribution looks at the European Case Law Identifier (ECLI), a common identifier that paved the way for the introduction of a central case law database. The paper will then turn to that platform – the ECLI-SE – and outline its mechanism as well as the rationale behind it. This will be followed by a critical analysis of the database from a legal certainty perspective. In this context, the paper aims to answer the question to what extent the wish for increased legal certainty is fulfilled. The paper will be rounded off by a look into the (likely) future. |
2. Legal Certainty |
Over the last decades, a number of studies have addressed legal certainty and pointed out that the concept is much broader than one might think. Two of the most influential, early European commentators are the German Claus-Wilhelm Canaris and the Austrian Franz Bydlinski, who first presented their views in the 1960s (Canaris) and the 1980s (Bydlinski). Both authors divide the umbrella certainty term into different categories. Pursuant to their explanations, legal certainty can – depending on the actual discussion – be understood in one or more of the following ways: |
Canaris: |
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Bydlinski: |
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Some of these categories and notions overlap. Canaris’s concept of legal firmness and predictability, for example, shows parallels with Bydlinski’s legal clarity and stability constructs. Alternative classifications could be made with respect to the eventual goal that policy-makers try to achieve. |
Overall, one can note that the actual meaning will depend on the context in which legal certainty is discussed. This view is confirmed by several, more recent studies, which try to apply the above categories as parameters to sectoral discussions and developments. [4] |
2.2. Legal certainty in an EU context |
Comprising (still) 28 different Member States (as of February 2019), additional issues emerge in the endeavour to achieve a high degree of legal certainty. Most notably, differences in law constitute fragmentation between domestic legal regimes. In particular from the viewpoint of legal clarity this fact creates a significant challenge. |
Conventionally, EU policy- and lawmakers have tried to align national rules with the help of legal standardisation. In this context one can notice a gradual shift from minimum to maximum harmonisation and from using directives to relying on a greater amount of regulations. Both trends aim to remove (or at least minimise) differences created by autonomous national legislation. The increasing preference for maximum harmonisation, for example, deprives Member States of their discretional policy-making powers by enshrining an explicit level that has to be met and must not be exceeded at the national level. The use of regulations supports this strategy, most notably because of the direct applicability of these instruments. Member States cannot freely choose their preferred method of implementation. Instead, EU regulations show direct effect and stipulate rights and obligations that do not have to be ‘translated’ by the Member States. |
One of the most recent examples to link these strategies to certainty considerations was the 2011 Proposal for a Regulation on a Common European Sales Law (CESL Regulation Proposal).CESL Regulation ProposalThis Regulation enables traders to rely on a common set of rules and use the same contract terms for all their cross-border transactions thereby reducing unnecessary costs while providing a high degree of legal certainty Directive setting up minimum standards of a non-optional European contract law would not be appropriate since it would not achieve the level of legal certainty and the necessary degree of uniformity to decrease the transaction costs’ (emphasis added). [5] Fully harmonised rules would further contribute to legal certainty. Pursuant to the memorandum, consumers ‘would enjoy more certainty about their rights when shopping cross-border on the basis of a single [i.e. fully harmonised] set of mandatory rules’. [6] |
Harmonising fragmented national laws might be considered the most prominent or genuine form of addressing legal certainty at the EU level. As we will see in the course of this paper, however, case law databases might add some important value to this. This can be explained with simplified access to relevant legal materials. The more comprehensive a database is, the higher are the chances that parties can find an answer to legal questions. Although this idea sounds convincing – as we will see later, the Commission used the ‘simplified access’ argument to promote the ECLI-SE – the likely certainty success of databases is determined by several factors that might create challenges. In the evaluation part of this paper, we will encounter the most striking parameters in this respect: operationality, visibility and usefulness of databases. While operationality refers to predominantly technical issues and the question how a mechanism works, visibility relates to the database awareness of likely users. The usefulness criterion complements the group and adds a more practical layer by analysing the actual merits of a database. I will return to these three criteria shortly in the specific context of the ECLI-SE. |
3. The European Case Law Identifier |
The growing amount of EU legislation might increase the defragmentation level of national laws. However, over the years, national implementation of EU law and case law that revolves around the interpretation of supranational EU law and touches upon the relation between EU and domestic rules have not necessarily improved the overall level of certainty. The abundant number of decisions and legislation as well as difficulties with respect to the accessibility to national sources might not be beneficial in this regard. |
EU policy-makers have launched several initiatives to improve the situation. One of these projects – the European Case Law Identifier (ECLI) – dates back to 2008, when policy-makers started to explicitly point out that easier access to case law might serve legal certainty. [7] This assumption rested on earlier projects that aimed to establish instruments that would allow for an easier identification of national and supranational court decisions. Some earlier initiatives in this respect were Caselex, Dec.Net, JURE and Jurifast. [8] In early 2017 the EUPILLAR database was added to the list. It contains more than 2,000 summaries in English language of national decisions that relate to some of the core instruments in the field of EU private international law and procedural law, e.g. the Brussels I / Brussels I Recast, Brussels IIa, Rome I and Rome II Regulations. [9] Most projects were funded by the EU, but carried out at private initiatives. The EUPILLAR project, for example, was launched by the University of Aberdeen. It has to be assumed that cross-border case law databases have a positive effect in terms of accessibility, but one of the most significant weaknesses of most projects was (and still is) their lack of comprehensiveness. Collecting and translating, for example, more than 2,000 case summaries (as in the case of EUPILLAR) is undeniably an ambitious and time-consuming task. |
It was a 2009 report issued by a Council group on legal data processing (e-Law WG) that prompted EU stakeholders to take further action. [10] The e-Law WG discussed the likely introduction of a common case law identification framework. Subsequently, the Council presented a more detailed statement in late 2010 (ECLI Council conclusions) – the idea to introduce a standardised reference tool, the ECLI, was born. [11] The Commission welcomed this project and argued that the ECLI would finally enable parties to find ‘easy access to … national, foreign and European case law’. [12] Explicit reference to legal certainty – more precisely to its two notions of accessibility and transparency – was further made in the course of promoting the use of the ECLI. The EU initiative ‘Building on ECLI’ (BO-ECLI) linked the ECLI to legal certainty as follows: ‘[A]ccessibility of case law is necessary to ensure scrutiny of the judiciary by the public. By improving this accessibility, both in qualitative and quantitative sense, transparency of the judiciary will be reinforced and the rule of law strengthened’. [13] |
The ECLI can be defined as a code that identifies case law and directly links it to the issuing authority and jurisdiction. It is formed by five components – separated by colons – that can be classified as follows: |
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A judgment by the General Court of the Court of Justice of the European Union (CJEU) could, for example, look as follows: ECLI:EU:T:2014:153. In this case the ECLI refers to the 153rd document of the General Court (abbreviated with ‘T’) of the CJEU published in 2014. |
While the ECLI-components 1, 2 and 4 are pre-determined, ECLI using institutions (ECLI-users) can exercise a certain degree of discretion with respect to components 3 (court code) and 5 (ordinal number). ECLI-users are principally free in designing their court codes and ordinal numbers, as long as the choice does not lead to confusion and as long as the court code / ordinal number stays within a maximum number of digits (determined centrally at the EU level). |
Although using the ECLI is recommended by the Commission, it is basically up to the Member States to decide whether – and if yes, to what extent – they want to implement the ECLI. Data of 2015 shows that the ECLI has led to mixed reactions. Only roughly half of the Member States expressed their willingness to introduce the ECLI broadly at the national level. Thus far, the ECLI enjoys more general acceptance at the supra-/international level. Not only the Court of Justice of the EU (CJEU), but also other institutions such as the European Patent Office and the European Court of Human Rights have introduced the ECLI. [15] |
4. The European Case Law Identifier Search Engine [16] |
The European Case Law Identifier Search Engine (ECLI-SE) launched in May 2016 is a key factor in the attempt to improve the accessibility of case law in the EU. The 2011 ECLI Council conclusions, more precisely §§ 3 and 4 of their Annex, pointed out that the introduction of a common case law identifier (i.e. the ECLI) would not be enough to guarantee the success of the ECLI project. The idea was to install a central platform – the ECLI-SE (§ 4) – that could be accessed via website. To simplify the use of the database, practical information on how to use it should be integrated into the website (§ 3). [17] |
The ECLI-SE can be used in most official EU languages. As of February 2019 it is available in 23 different languages. To guarantee a high standard of operability, the Commission (the central institution in charge of the functionality of the ECLI-SE) and the Court of Justice of the EU (the ‘ECLI co-ordinator’) serve as monitoring and further developing institutions. They are supported by national coordinators that can be either a governmental or a judicial institution. The eventual choice is up to the Member States. Both the search engine and the supplementary information are embedded in the e-Justice Portal. The choice for the e-Justice Portal can be considered the logical consequence of attempts to bundle legal information in a common access point. |
In the beginning of the project only a handful of Member States – Spain, the Netherlands, Slovenia, the Czech Republic, Germany – and two institutions – the CJEU and the European Patent Office – were significantly active in feeding the engine with cases. At least with respect to the number of listed cases, the database commenced at remarkably high speed. In June 2016 – one month after the launch of the database – the search engine contained already more than 3.5 million ECLI links. The numbers have constantly been on the rise ever since, which might in particular be explained with the fact that more and more Member States have decided to join the project. Italy, for example, was not among the first contributors, but – as of February 2019 – ranks as the second most active one (behind Spain with slightly more than 3.5 million materials) with a bit less than 3.5 million links. The total number of ECLI-SE sources has risen from roughly 5.4 million (as of mid-2017) to 10.7 million (as of February 2019). [18] |
The ECLI-SE is accessibly free of charge. Interested parties can choose between two different search types. A ‘simple search’ allows for fast search results based on single words or phrases. The ‘advanced function’ adds a number of parameters to narrow down the search. This includes options to limit the focus to certain Member State, courts, languages (of decisions), publication and decision dates or fields of law. |
The results page lists all ECLI links that fulfil the search criteria. Supplementary and explanatory data are added. A simple search for ‘shareholder’, for example, would (as of February 2019) lead to more than 2,000 results. The following actual example illustrates how the ECLI links can be interpreted and used: |
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The above result refers to a decision of one of the four Dutch Appellate Courts, i.e. the second highest courts in the Netherlands, the Gerechtshof Amsterdam (abbreviated GHAMS) – more precisely to its decision with the judgment number 1666 (of 2017). The court’s decision can be accessed by clicking on the ECLI at the top of the respective result – in the present case this would be the following: ECLI:NL:GHAMS:2017:1666 – and the preferred language version on the next page. Alternatively, one can do the same by clicking on one of the language buttons. Depending on the button one clicks, this would lead to the decision itself, its abstract or an even shorter description of the case / decision. In the concrete example the results are only available in Dutch language. |
The idea behind the ECLI sounds promising. A central access point to case law might indeed simplify the search for decisions. In particular for the purpose of comparative studies this might be a big advantage. In the following I would like to take a slightly closer look at the ECLI-SE from a legal certainty perspective and try to answer the question whether the project is really as helpful as it seems at first sight. |
5. A Look at the European Case Law Identifier Search Engine from a Legal Certainty Perspective |
The use of case law databases is a paramount example for how to improve legal certainty, in particular with respect to the accessibility and transparency notions as described by Canaris and Bydlinski. Databases have the potential to serve accessibility, because they usually incorporate a significant number of cases in one single instrument. This in return has a positive effect on transparency, because court decisions would spread more effectively among interested stakeholders. Eventually, additional certainty functions, such as clarity and enforceability would be strengthened. Studying and comparing published court decisions could clarify legal situations, while displaying judgments would show that laws are enforced, which arguably could encourage enforcement seeking parties to take action. In particular in an environment like the EU where jurisdictions aim to share a common market these considerations might be of practical relevance. Without a common approach, identifying and offering access to case law would be left to the autonomous regulation by the individual jurisdictions. |
The importance of case law databases from a legal certainty perspective has been repeatedly voiced by European instruments. In the already mentioned CESL Explanatory Memorandum, for example, the Commission expressed the following view: |
In order to enhance legal certainty by making the case-law of the Court of Justice of the European Union and of national courts on the interpretation of the Common European Sales Law or any other provision of this Regulation accessible to the public, the Commission should create a database comprising the final relevant decisions. With a view to making that task possible, the Member States should ensure that such national judgments are quickly communicated to the Commission (emphasis added). [19] |
Further explicit reference can be found directly in the CESL Regulation Proposal. Its Article 14(1) (‘Communication of judgments applying this Regulation’) asked the Member States to communicate national CESL decisions to the Commission. This in return would – according to Article 14(2) – enable the Commission to create a database of CESL case law. The Parliament’s Legal Affairs Committee (JURI) stressed the importance of such a database when commenting on the proposal. Listing it as one of the key ‘flanking measures’, JURI supported the idea of a CESL case law database and asked to make it ‘fully systematized and easily searchable’. [20] From a practical perspective, the JURI reference emphasises a number of important certainty features when it comes to case law databases. If meant to be successful, such platforms need to accomplish the following: effective supervision, standardised conceptualisation, and user-friendliness. |
In the following I would like to take a closer look at the ECLI-SE addressing these issues. For the sake of simplicity, I introduce three criteria that should be fulfilled to guarantee a high level of satisfaction: ‘operationality’ (focusing on technical issues); ‘visibility’ (relating to awareness and recognition) and ‘usefulness’ (discussing the practical merits if databases). |
5.2. The European Case Law Identifier Search Engine from a legal certainty perspective |
The operationality criterion addresses the technical framework of databases. More precisely, it focuses on their technical functionality and user-friendliness. |
Earlier in this paper I outlined the ECLI-SE and discussed, in particular, its two search functions. The Commission decided to integrate the database into the e-Justice portal. From an accessibility perspective, the decision makes sense. Being ‘conceived as a future electronic one-stop-shop in the area of justice’ [21], the e-Justice portal ensures fast access to EU law related matters. The ECLI-SE can be read and searched in 23 different languages (as of early 2019) and be reached via two mouse-clicks (once on the e-Justice portal). The first click leads to a short description of the search engine, the second one to the ‘simple search’ interface. If needed, a third mouse-click would lead to the ‘advanced search’ function. Each step is explained in simple and intelligible language, allowing also less-experienced users to utilise the database without major difficulties. The availability of the advanced search function ensures that results can be further narrowed down. By combining different search parameters, one can prioritise individual search interests. Once a particular result is selected, different links allow for accessing either the main decision, a short abstract or additional background information on the case. National and central ECLI-SE monitoring institutions ensure the stability of the system and might be of help in case of technical issues or questions. Overall, the ECLI-SE should be considered sufficiently user-friendly. |
5.2.2. Visibility |
Visibility relates to the recognition of databases and database awareness as seen from an end-user’s perspective. It might still be too early to arrive at a definite conclusion. At the time of writing this paper, reliable or direct data that could give information on the awareness level is still pending. In absence of pertinent data one has thus to base the evaluation on more general observations. |
Visibility – or more generally speaking, awareness – is of utmost importance for any legal tool to show positive effects. In an earlier study I extensively dealt with this issue and arrived at the conclusion that the general low awareness level with regard to European initiatives is one of the most significant actual impediments to the success and comprehensibility of EU law. [22] |
Although studies indicate that the awareness situation has been slightly improving over the years, low awareness is still a general problem. One of the most relevant studies in the context of the present analysis relates to the European Judicial Network in civil and commercial matters (EJN-civil). The EJN-civil was launched in 2002 to enhance the judicial exchange between the Member States. Most notably, it introduced the European Judicial Atlas in civil matters (European Judicial Atlas) that incorporated information on procedural EU law. The European Judicial Atlas was later integrated into the e-Justice portal, i.e. the platform that hosts the ECLI-SE. |
A 2014 Commission report on the EJN-civil (2014 EJN-civil report) discussed the visibility of the platform. The 2014 EJN-civil report confirmed previous, more general data. It explained that EJN-activities were not commonly known to the public. More than that, even among legal professionals the awareness level was considerably low. According to the 2014 EJN-civil report only roughly 30 per cent of legal professionals in the EU had heard about EJN-civil. [23] The report arrived at the conclusion that ‘EJN-civil seems not to be known enough among the legal professions and the general public … [and that] steps need to be taken to increase the visibility of the EJN-civil among the legal professionals and the general public’. [24] It has to be assumed that the situation with respect to the ECLI-SE is not much better. |
The conclusions of the 2014 EJN-civil report suggest that a low awareness level might be a general threat to legal certainty. In particular the success of mechanisms that aim to inform parties – case law databases are a good example – would be significantly limited if general awareness could not be achieved. Without strong efforts to improve the situation, the ECLI-SE might remain widely unknown and – as a consequence – unused. |
5.2.3. Usefulness |
The third parameter I would like to introduce to evaluate the certainty value of databases can be called ‘usefulness’. It is the broadest of the three criteria and relates to the actual merits of databases. Some general observations shall be made to comment on more obvious features. Subsequently I would like to discuss a peculiarity that I consider as one of the biggest challenges for the ECLI-SE to realise its full potential. |
On the positive side one has to note that the number of cases that have been integrated into the ECLI-SE has been steadily on the rise. Compared with other, older initiatives, the international catalogue of case law is remarkably broad. Admittedly, not all addressees actively contribute to the ECLI-SE (yet). But as the above discussed example of Italy shows, one should be patient and give Member States time to lay the foundations for contributing to the database. Another positive feature of the ECLI-SE can be seen in complementing the implementation of the underlying common identifier idea. Without a central platform the ECLI might not have made much sense. It is the uniqueness of the ECLI coupled with the technical environment (created by the ECLI-SE) that allows for standardised searches and gives significance to the project. |
On the negative side, however, one needs to stress that feeding the ECLI-SE with national data is not made mandatory (yet). As of February 2019, Member States can still freely decide if – and if yes, to what extent – they want to contribute. This cannot guarantee the completeness of the database and obviously reduces the accessibility level with regard to national decisions. |
One additional caveat has to be issued that should be looked at more closely. When using the ECLI-SE one will see that searches can be carried out in (nearly) any of the official languages of the EU. Chances that end-users understand the interface and have the actual possibility to search for cases are (also from a linguistic perspective) relatively high. It is, however, exactly this multilingualism – in the literature one can alternatively find the term ‘plurlingualism’ [25] – that might create the biggest practical problem and significantly limits the usability of the database. |
Being ‘united in diversity’, the EU holds its multilingual environment in high esteem. To keep it with Elina Paunio one can say that ‘[m]ultilingualism constitutes one of the very cornerstones of the European project’. [26] Take, for example, the online presence of the EU. Most information can be accessed and read in virtually any of the EU’s official languages. |
The multilingualism of the EU further materialises in the (general) availability of texts and materials in different languages and the introduction of special ‘lifelong learning programs’ (LLP). By offering multilingual access to legal sources, the EU aims to maximise the transparency and comprehensibility of its instruments. Interested stakeholders have the chance to read EU regulations, directives, and other sources in their preferred language. LLPs, most notably Erasmus, Leonardo da Vinci and Comenius complement the multilingual experience. To improve professional and language skills people can benefit from study and work abroad initiatives. |
Admittedly, linguistic differences and nuances might make it difficult to ensure clarity and overall certainty. [27] There is indeed a thin line between satisfying the call for legal certainty with the help of multilingual access to materials and causing legal uncertainty as a consequence of ‘inherent imperfections of legal translations’. [28] But to an eminent extent, specialised translators have been contributing to securing a high level of clarity / certainty. At least from a legal certainty perspective the advantages of having multilingual access to sources outweigh possible disadvantages / risks by far. To maximise the positive effects of multilingual availability of materials, commentators highlight successful projects and recommend additional measures. Domenico Cosmai, for example, stresses the importance of EU guidelines to simplify and standardise the terminology used in EU materials. One of the key initiatives in this regard is the 2003 Joint Practical Guide for the drafting of legislation within the Community institutions (currently available in a 2013 version). [29] To complement this, Jaap Baaij asks for a stronger involvement of legally trained translators. This, so Baaij, would further increase the consistency of legal translations. [30] |
The Commission has been monitoring multilingualism in the EU since the early 2000s. Various studies offer – on a regular basis –invaluable insights into the actual language skills of European citizens. One of the most recent studies, the 2012 Eurobarometer language study, for example, covered a number of relevant issues. [31] Most notably it took a look at the language skills with regard to foreign (official EU) languages, both in an active (i.e. spoken) and a passive (i.e. comprehensibility) context. |
On the positive side, it should be noted that the 2012 Eurobarometer language study confirmed the principally appreciative view towards supporting multilingualism. An overwhelming 98% of respondents would encourage their children to study foreign languages. [32] 88% expressed their opinion that foreign language skills show positive effects in terms of personal development, and 84% supported the idea that European citizens should be encouraged to master at least one foreign language. [33] When asked which (foreign) language(s) EU citizens regard as most important and useful 79% of respondents named English. [34] Taking into account that giving multiple answers was an option, it might surprise that all languages other than English received significantly lower scores. The two runner-ups, French and German, for example, were named only by 20% – one in five respondents, while most other languages scored only low single-digit percentages. [35] |
For the present evaluation arguably of highest interest were the results with regard to the actual foreign language skills. At first sight the results were not that negative. After all, more than half of the respondents – 54% – answered that they were capable of at least one foreign (official EU) language. [36] Not surprisingly, the percentage of those who were in command of more than one foreign language was significantly lower. 25% of the respondents said they would speak at least two, 10% of the respondents claimed to speak at least three foreign languages. [37] |
As was further to be expected, the study confirmed a significant gap between the most commonly understood foreign language – English – and all other languages. While the results with respect to English were relatively satisfying – 38% of the respondents who were capable of foreign languages said they could communicate in English and 25% would understand English passively – the scores for all languages other than English were worrisome. [38] None of them scored higher than 12% (active) and 7% (passive). [39] From a developmental perspective it should further be added that (with the exception of English and Spanish) no language showed a significant positive change over the years since the Commission had conducted its first multilingualism study in 2001. [40] |
Looking at the results of the multilingualism studies one can conclude the following with regard to the usability of the ECLI-SE. Multilingualism is an actual phenomenon in the EU. As of February 2019 the EU counts 24 official languages. More than half of the EU citizens are capable of at least one foreign (EU official) language. However, multilingualism creates certain challenges for regulators. The only commonly understood foreign language in the EU is English. No other European language comes even close to it. The vast majority of official EU languages is not understood by a significant number of non-native speakers. One could say that most languages are limited to those Member States where they are official languages. To worsen the multilingualism situation (from the viewpoint of being capable of foreign languages), one has to note that slightly less than half of the EU citizens do not understood any foreign (official EU) language other than the language of their home Member State. [41] |
To accommodate this situation, pertinent EU databases – CELEX might be one of the best examples – try to offer as many materials in as many official EU languages as possible. As a basic principle, at least EU directives and regulations are commonly published in all official EU languages. Most of the CJEU case law can be read alternatively in English, in many instances additionally in some other major languages. Translators are principally supported by special terminology lists and databases as well as by guidelines on how to improve linguistic clarity and to avoid ambiguity and confusion. |
From a linguistic perspective, arguably the biggest shortcoming of the ECLI-SE is its lack of true multilingualism. The interface can be accessed and used in most official EU languages. The search results, however, are in the vast majority of cases only available in the official language(s) of the respective jurisdiction – regardless of whether it is the full court decision or ‘merely’ the abstract or case description. The regulatory framework behind the ECLI-SE remains principally silent when it comes to multilingualism. An exception – to the best of my knowledge, the only one – can be found as a side note. The Annex of the ECLI Council conclusions asks for translations of the court names (but nothing else) ‘in[to] all [official EU] languages, according to the multilingual thesaurus of names of organisations as set up to be used within the e-[J]ustice portal, and with hyperlinks to the descriptions of these courts as comprised on the e-Justice portal’. [42] |
Recalling the rationale behind the ECLI-SE – the wish to improve access to foreign case law – one has to note that this goal is not necessarily fulfilled, because the limitation to source Member State languages drastically limits the usability of the database. The situation might not be that bad in those very limited cases where English is an official language of a submitting Member State. Here cases are accessible in English and likely understood by the average reader. But in the vast majority of cases the lists of the submitting Member State’s official languages do not include English and do not provide for any translation of uploaded materials. With the Brexit ante portas this situation will not improve unless policy-makers apply supporting strategies. Possible initiatives might include encouraging Member States to submit translations of court decisions (at least of higher courts) or case summaries in (at least) the English language (as is known, e.g. from the more recently established EUPILLAR database discussed further above). |
6. Concluding Remarks |
The ECLI-SE has raised the overall level of legal certainty in the EU. Admittedly, the idea behind the database is convincing. The project is thus far the most comprehensive initiative to enhance the accessibility and improve the transparency of national and supranational case law at a pan-EU level. The well-engineered technical functionality – the operationality – of the ECLI-SE successfully contributes to this endeavour. Furthermore, the number of contributing Member States and institutions is on the rise. As a consequence of this, by February 2019 already more than 10.7 million cases were accessible via the database. |
However, when looking at the instrument a bit closer, some certainty concerns arise. Two issues might pose the biggest challenge for regulators in attempts to maximise the positive effects of the platform. An effective initiative needs to be launched to improve the level of end-user awareness. Although no relevant data was available at the time of writing this paper to draw concrete conclusions, past examples indicate that the visibility of the database is not as high as it should be to allow the ECLI-SE to become a commonly used interface. Second, A more comprehensive strategy needs to be developed to deal with a linguistic problem. None of the actively contributing Member States uses English as an official language. As of February 2019 more than 7 million cases available via the ECLI-SE come from Spain and Italy. The majority of these and the other roughly 3.7 million decisions are, however, only offered in the respective official language(s) of the host jurisdiction. Considering that English is the only commonly understood (foreign) language in the EU, the absence of translations into foreign languages – most notably into English – needs to be regretted (to say the least). |
Ultimately, a third concern could impair the possible success of the ECLI-SE. The underlying question that needs to be asked is who should benefit from the ECLI-SE. Put differently, who is expected to use that database? If one aims (only) at legal professionals, the above concerns might still rest relatively strong, but the situation could be more easily manageable. The presence of international legal networks, for example, would make it easier to receive linguistic support. However, if the ECLI-SE were meant to be a more commonly used / useable platform, the lack of a legal terminology database might be considered an additional practical issue. Even if (non-legally experienced) end-users understood the respective language, ‘technical’ terminology might impede overall legal certainty. Integrating a legal terminology database admittedly is an ambitious project and would likely only be of help if the two afore-mentioned, more general issues could be solved. But eventually it might be a further ingredient to achieve true legal certainty with the help of the ECLI-SE. |
Despite these concerns the ECLI-SE should be judged favourably. It introduced a comprehensive project that – on the condition that the policy-makers adequately address the discussed issue – might indeed significantly contribute to the overall improvement of legal certainty in the EU. |
| Endnotes: |
[1] <https://e-justice.europa.eu/content_ecli_search_engine-430-en.do> (for the ECLI-SE in English language; visited February 16, 2019). |
[2] For details see Claus-Wilhelm Canaris, Systemdenken und Systembegriff in der Jurisprudenz 17 (1969). |
[3] For details see Franz Bydlinski, Fundamentale Rechtsgrundsätze 293 (1988); Franz Bydlinski, Juristische Methodenlehre und Rechtsbegriff 325 (2nd ed. 2011), p. 325. |
[4] See, e.g. Mark Fenwick and Stefan Wrbka eds., Legal Certainty in a Contemporary Context: Private & Criminal Law Perspectives (2016); Mark Fenwick, Mathias Siems and Stefan Wrbka eds., The Shifting Meaning of Legal Certainty in Comparative and Transnational Law (2017) with further references. |
[5] CESL Explanatory Memorandum accompanying the CESL Regulation Proposal, 2011, at 10. |
[6] Ibid. For further examples of explicit links between full harmonisation and legal certainty see, e.g. Recital 2 of the 2015 Package Travel Directive; Recital 3 of the 2009 Timeshare Directive; Recital 7 of the 2011 Directive on Consumer Rights. |
[7] See, in particular, the resolution of the European Parliament on the role of the national judge in the European judicial system, 2008; and the evidence in Marc Van Opijnen, Identifiers, Metadata and Document Structures: Essential Ingredients for Inter-European Case Law Search (2008), <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2046294> – visited February 16, 2019). |
| [8] Marc Van Opijnen, Finding Case Law on a European Scale – Current Practice and Future Work, (2008) <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2046266> – visited February 16, 2019. |
[9] <https://w3.abdn.ac.uk/clsm/eupillar/#/home> – visited February 16, 2019. |
[10] Working Party on Legal Data Processing (e-Law), Draft Conclusions of the Council on European Case-Law Identifier (ECLI) (2009), 17377/09. |
[11] Council conclusions inviting the introduction of the European Case Law Identifier (ECLI) and a minimum set of uniform metadata for case law (ECLI Council conclusions), OJ 2011, C 127/1. For references to the case law accessibility issue see, in particular, its § I.2, § I.3 and § 4.2.(d) of its Annex. |
[12] <https://e-justice.europa.eu/content_european_case_law_identifier_ecli-175-en.do?init=true> – last visited February 16, 2019. |
[13] <http://bo-ecli.eu/ecli/benefits> – last visited February 16, 2019. |
[15] For details see Mark Van Opijnen and Alexander Ivantchev, Implementation of ECLI – State of Play, in Legal Knowledge and Information Systems 166 (Table 1) (Antonino Rotolo ed., 2015). |
[16] <https://e-justice.europa.eu/content_ecli_search_engine-430-en.do?clang=en> – last visited February 16, 2019. |
[17] <https://e-justice.europa.eu/content_european_case_law_identifier_ecli-175-en.do> – last visited February 16, 2019. |
[20] JURI, Report on the proposal of the European Parliament and the Council on a Common European Sales Law (2013), Article 186a(2). |
[21] <https://e-justice.europa.eu/home.do?plang=en&action=home> – visited February 16, 2019. |
[22] Stefan Wrbka, European Consumer Access to Justice Revisited 269-207 and 298 (2015). |
[23] European Commission, Evaluation of the activities of the European Judicial Network in civil and commercial matters 84 (2014). |
[25] See, e.g. Francis G. Jacobs, Approaches to Interpretation in a Plurilingual Legal System, in A True European – Essays for Judge David Edward 297-305 (Mark Hoskins and William Robinson eds., 2003). |
[26] Elina Paunio, Legal Certainty in the Context of Multilingualism, in The Shifting Meaning of Legal Certainty in Comparative and Transnational Law (supra note 4). |
[27] For some concern in this respect see, e.g. the comments in Bénédicte Sage-Fuller, Ferdinand Prinz zur Lippe and Seán Ó Conaill, Law and Language(s) at the Heart of the European Project: Educating Different Kind of Lawyers, in Law and Language 506-509 (Michael Freeman and Fiona Smith eds., 2013); Anne Lisa Kjaer, Theroretical Aspects of Legal Translation in the EU: The Paradoxical Relationship between Language, Translation and the Autonomy of EU Law, in Language and Culture in EU Law – Multidisciplinary Perspectives 91-107 (Susan Šarčević ed., 2015); Annarita Felici, Translating EU Legislation from a Lingua Franca: Advantages and Disadvantages, in Language and Culture in EU Law – Multidisciplinary Perspectives 123-140 (Susan Šarčević ed., 2015); Ingemar Strandvik, On Quality in EU Multilingual Lawmaking, in Language and Culture in EU Law – Multidisciplinary Perspectives 141-165 (Susan Šarčević ed., 2015); Oscar Filipowski, The Impact of Language on Building the Internal Market: The Consumer Transactions Perspective, 4 Wroclaw Review of Law, Administration and Economics 21, 28 (2014); Stefaan Van der Jeught, EU Language Law 131-132 (2015). |
[28] Barbara Pozzo, The Challenges of a Multi-lingual Approach, in Research Handbook on EU Consumer and Contract Law 142 (Christian Twigg-Flesner ed., 2016). |
[29] European Parliament, Council and Commission, Joint Practical Guide for persons involved in the drafting of European Union legislation (2013), <eur-lex.europa.eu/content/techleg/EN-legislative-drafting-guide.pdf > – visited February 16, 2019. |
[30] Jaap Baaij, EU Translation and the Burden of Legal Knowledge, in Language and Culture in EU Law – Multidisciplinary Perspectives 119 (Susan Šarčević ed., 2015). |
[31] European Commission, Special Eurobarometer 386 on Europeans and their Languages (2012). |
[40] European Commission, Eurobarometer 54 Special Report on Europeans and Languages (2001); European Commission, Special Eurobarometer 237 on Europeans and Languages (2005); European Commission, Special Eurobarometer 243 on Europeans and their Languages (2006). |
[42] § 4(2)(a)(iii) of the Annex of the ECLI Council conclusions. |
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