A pan-European service disseminating national case law: the Caselex project

• Autore: Sebastiano Faro/Roberta Nannucci
• Carica: Senior researchers at ITTIG. R. Nannucci has been the administrative Coordinator of the Caselex project
• Pagine: 75-90

Page 75

@1. Public sector information (PSI)

Public governmental bodies in exercising their tasks and duties collect, create, store and disseminate huge quantities of information of any kind (financial and business information, legal and administrative information, geographical, traffic, tourist information, etc.). As a consequence, the public sector can be considered the biggest resource of raw material for the creation of value-added information content and services. This is very important for citizens, business firms and professionals who can greatly benefit from this type of information released on the Internet.

The European Community focused its attention on this kind of information called "public sector information" (PSI). A directive on PSI re-use has been passed in 2003¹ together with strategies and policies oriented to guarantee PSI accessibility and availability. Furthermore, these policies were some of the objects of the eContent progamme² which aimed at supporting the production, use and distribution of European digital content and at promoting linguistic and cultural diversity on the global networks.

Page 76

@2. Case law as an essential source of PSI

Case law is an important source of PSI as output of the judiciary, together with information of governmental bodies, as output of the executive and legislation, as output of the legislative: they jointly constitute the so-called "basic information of the democratic constitutional State"³ and it is generally accepted that these categories of PSI should be more and more accessible and available as wide as possible. Furthermore, case law represents the most dynamic source of law in view of the fact that increasingly case law becomes law: although theoretically court decisions only affect parties, courts (in particular lower courts) have the tendency to follow decisions of higher courts, especially those of the Supreme Courts, thus creating a new legal reality. This is particularly true if applied to EU legislation considering the relevant role played by both the EU courts and the national courts relating to its implementation.

However, contrary to legislation and information of representing public bodies -most countries offer full coverage thereof via the Internetthe dissemination of case law (beyond the conflicting parties involved) has most often not been considered to be a public task and not received sufficient attention, in particular on global networks: traditionally, publishers have taken that role within a national context and perspective, and in markets which can be described as fragmented and oligopolistic from a European perspective⁴. Therefore case law was risking to be unaccessed and unexploited. Europe at large is not being served, which can be considered a missing link for the complete eGovernment fuelled services chain in the open and democratic Europe.

This situation is awfully negative if it is considered that, with the evolving European integration, legal professionals, mainly working inPage 77 courts or public administrations, next to serving as sole practitioners or in small and medium-sized law firms, demand European knowledge on legal solutions to a greater extent as the legal issues questioned by their clients are increasingly turning to European business. The growing importance of European legislation fuels this need even further.

The national oriented supply of case law did not meet the need and expectations of the legal community. Moreover, elements such as the independence of the judiciary, its limited resources, the lack of clear dissemination and communication policies and conservative stance towards new methods of work and technologies had in many countries left the important online case law dissemination entirely up to voluntary exercise of single judges or court employees, or to specialized legal publishers.

Furthermore, European law should in principle be applied transparently and equally across the Member States. Such a reality is hardly to be achieved without access to any European eGovernment service allowing judges and other legal professionals to seek inspiration and best practice solutions to the very same issues. Today they struggle with identical legal challenges, without the opportunity to learn if, and how, other foreign courts already have tackled these issues. As a consequence Europe is losing out on knowledge capturing and sharing, in the form of case solutions, between courts, between courts and other legal practitioners, and between legal practitioners themselves who argue the cases in front of the courts.

Besides the obstacles driven from the market and the insufficient activity of the courts in disseminating their cases, there is a number of practical barriers preventing players from entering the market and produce cross border services. These barriers relate to the complexity and inconsistent state of online case law in addition to the absence of truly interoperable data across Europe. Furthermore, the different European languages create a significant problem next to the rather traditional culture of national court organisations, lacking experience with open competitive public-private partnerships.

The Caselex project, financed by the European Commission under the e-Content Programme, during 2005 and 2006, contributed to bridge this gap.

Page 78

@3. The Caselex project

The Caselex Project, through a Consortium blending private and public sector parties⁵, aimed at building a platform that could shift the public case law content from a disconnected group of national information sources to an integrated European knowledge service, offering access to national case law across European borders harmonising the different legal traditions and cultural backgrounds of European countries.

It overcame all practical barriers for establishing an online service able to support and link the vast repository of important case law of national and European courts with European relevance.

Caselex had four main objectives.

Firstly, it aimed to bring public case law resources from the state of national, public information sources to distributed European knowledge for legal professionals.

Secondly, it gave substantial added value to national case law. The simple collecting of case law from the various European countries would not have allowed end-users to take full advantage of its knowledge potential. Consequently, the Caselex service had a crucial role to play in adding context and meaning to the cases, also allowing navigation between cases. The legal community in Europe has no strong tradition in using foreign case law as source material in its professional life, despite recognising the value of cases related to a common denominator such as EU law. Consequently, Caselex had to put strong emphasis on the quality of the service and its content, and to be put in a legal context which makes sense to the user and allows the user to fully utilise the service offering.

Page 79

The third objective was to offer an "inclusive" pilot system, not privileged or restricted by unfair pricing, contributing to access for all, allowing publishers and other intermediaries to exploit national case law.

Finally, Caselex aimed to build and launch a business model for Caselex as a viable European venture allowing courts as publishers to easily and cost-effectively disseminate court cases and judgments across Europe in a cost-effective manner; allowing publishers to exploit new content and market channels into new territories; allowing legal professionals to acquire and render better knowledge and advice.

As a result, Caselex has created a system offering an Internet based "one-stop-shop" service for important national case law linked to the common denominator of EU law, i.e. decisions of supreme and high courts in all the EU member States plus the EFTA States involved in the EEA, also holding cases from the European and EFTA courts, within selected areas of law connected to the implementation and application of EU law.

The service pays specific attention to the important judgments that can inspire cross-border legal solutions and ultimately be used as authoritative source for solutions in courts outside its respective country. In order to be of such value, Caselex focuses on case law that:

- is introducing a new principle or rule;

...