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@@ -17,7 +17,7 @@ /* cache key: new_euwiki-en_:resourceloader:filter:minify-css:7:7c2ee0c606b1353543b5ce882fb1bb3b */</style> <script src="http://en.euwiki.org/w/load.php?debug=false&lang=en&modules=startup&only=scripts&skin=monobook&*"></script> <script>if(window.mw){ -mw.config.set({"wgCanonicalNamespace":"","wgCanonicalSpecialPageName":false,"wgNamespaceNumber":0,"wgPageName":"EUT/2nd-edition","wgTitle":"EUT/2nd-edition","wgCurRevisionId":17528,"wgRevisionId":0,"wgArticleId":5353,"wgIsArticle":false,"wgIsRedirect":false,"wgAction":"edit","wgUserName":null,"wgUserGroups":["*"],"wgCategories":[],"wgBreakFrames":true,"wgPageContentLanguage":"en","wgPageContentModel":"wikitext","wgSeparatorTransformTable":["",""],"wgDigitTransformTable":["",""],"wgDefaultDateFormat":"dmy","wgMonthNames":["","January","February","March","April","May","June","July","August","September","October","November","December"],"wgMonthNamesShort":["","Jan","Feb","Mar","Apr","May","Jun","Jul","Aug","Sep","Oct","Nov","Dec"],"wgRelevantPageName":"EUT/2nd-edition","wgIsProbablyEditable":false,"wgRestrictionEdit":[],"wgRestrictionMove":[]}); +mw.config.set({"wgCanonicalNamespace":"","wgCanonicalSpecialPageName":false,"wgNamespaceNumber":0,"wgPageName":"EUT/2nd-edition","wgTitle":"EUT/2nd-edition","wgCurRevisionId":17555,"wgRevisionId":0,"wgArticleId":5353,"wgIsArticle":false,"wgIsRedirect":false,"wgAction":"edit","wgUserName":null,"wgUserGroups":["*"],"wgCategories":[],"wgBreakFrames":true,"wgPageContentLanguage":"en","wgPageContentModel":"wikitext","wgSeparatorTransformTable":["",""],"wgDigitTransformTable":["",""],"wgDefaultDateFormat":"dmy","wgMonthNames":["","January","February","March","April","May","June","July","August","September","October","November","December"],"wgMonthNamesShort":["","Jan","Feb","Mar","Apr","May","Jun","Jul","Aug","Sep","Oct","Nov","Dec"],"wgRelevantPageName":"EUT/2nd-edition","wgIsProbablyEditable":false,"wgRestrictionEdit":[],"wgRestrictionMove":[]}); }</script><script>if(window.mw){ mw.loader.implement("user.options",function($,jQuery){mw.user.options.set({"ccmeonemails":0,"cols":80,"date":"default","diffonly":0,"disablemail":0,"editfont":"default","editondblclick":0,"editsectiononrightclick":0,"enotifminoredits":0,"enotifrevealaddr":0,"enotifusertalkpages":1,"enotifwatchlistpages":1,"extendwatchlist":0,"fancysig":0,"forceeditsummary":0,"gender":"unknown","hideminor":0,"hidepatrolled":0,"imagesize":2,"math":1,"minordefault":0,"newpageshidepatrolled":0,"nickname":"","norollbackdiff":0,"numberheadings":0,"previewonfirst":0,"previewontop":1,"rcdays":7,"rclimit":50,"rows":25,"showhiddencats":0,"shownumberswatching":1,"showtoolbar":1,"skin":"monobook","stubthreshold":0,"thumbsize":2,"underline":2,"uselivepreview":0,"usenewrc":0,"watchcreations":1,"watchdefault":1,"watchdeletion":0,"watchlistdays":3,"watchlisthideanons":0,"watchlisthidebots":0,"watchlisthideliu":0,"watchlisthideminor":0,"watchlisthideown":0,"watchlisthidepatrolled":0,"watchmoves":0,"wllimit":250, "useeditwarning":1,"prefershttps":1,"language":"en","variant-gan":"gan","variant-iu":"iu","variant-kk":"kk","variant-ku":"ku","variant-shi":"shi","variant-sr":"sr","variant-tg":"tg","variant-uz":"uz","variant-zh":"zh","searchNs0":true,"searchNs1":false,"searchNs2":false,"searchNs3":false,"searchNs4":false,"searchNs5":false,"searchNs6":false,"searchNs7":false,"searchNs8":false,"searchNs9":false,"searchNs10":false,"searchNs11":false,"searchNs12":false,"searchNs13":false,"searchNs14":false,"searchNs15":false,"searchNs274":false,"searchNs275":false,"searchNs828":false,"searchNs829":false,"variant":"en"});},{},{});mw.loader.implement("user.tokens",function($,jQuery){mw.user.tokens.set({"editToken":"+\\","patrolToken":false,"watchToken":false});},{},{}); @@ -153,9 +153,9 @@ In its judgement, the General Court held that "even supposing that the right of Be that as it may. As Advocate General Poiares Maduro has correctly pointed out, the fact remains that henceforth the existence of the right of access to documents of the institutions is no longer based on internal measures adopted by the institutions, with which they are bound to comply, or even on Regulation 1049/2001, but on a provision of constitutional import.<ref>Sweden v Commission, C‑64/05 P, EU:C:2007:802</ref> The Court has in this regard clarified that the "principle of openness" stated in a general manner in the second paragraph of Article 1 TEU is "crystallised" by Regulation 1049/2001.<ref >Commission v Agrofert Holding EU:C:2012:394, paragraph 88 </ref> An alleged infringement of the second paragraph of Article 1 TEU is therefore in the Court's view not distinct from a plea alleging a wrongful application of the exceptions referred to in Regulation No 1049/2001. -The existence of a "principle of openness" is confirmed by Art. 15 of the Treaty on the Functioning of the European Union, which states +The existence of a "principle of openness" is confirmed by Art. 15 of the Treaty on the Functioning of the European Union, which states: -<blockquote>In order to promote good governance and ensure the participation of civil society, the Union institutions, bodies, offices and agencies ''shall conduct their work as openly as possible''.</blockquote> +<blockquote>In order to promote good governance and ensure the participation of civil society, the Union institutions, bodies, offices and agencies ''shall conduct their work as openly as possible''. [emphasis added]</blockquote> === Charter of Fundamental Rights of the European Union === @@ -211,13 +211,13 @@ The following Recitals in the Preamble to Regulation No 1049/2001 are relevant i The Court has confirmed that the considerations of legislative openness are clearly of particular relevance where the Council is acting in its legislative capacity: "Openness in that respect contributes to strengthening democracy by enabling citizens to scrutinise all the information which has formed the basis for a legislative act. The possibility for citizens to find out the considerations underpinning legislative action is a precondition for the effective exercise of their democratic rights".<ref>Sweden and Turco v Council, paragraph 46 and Council of the European Union v Access Info Europe, paragraph 00</ref> -The theoretical underpinnings of the Principle of Openness and of legislative openness has thus acquired a solid foundation in the Treaties and in the case-law of the court. However, due to the eternal tide wave and purported conflict between Openness and Efficiency, Parliament has in practice struggled to live up to the Principle of Openness by resorting to informal decision-making procedures. As Nikoleta Yordanova has correctly noted: <ref>Nikoleta Yordanova, Collusion in Bicameral EU Decision-making Efficiency at the expense of transparency and representation?, Paper prepared for the Conference: New Trends in Political Representation, available at http://nikoletayordanova.net/wp-content/uploads/exeter.pdf</ref> +The theoretical underpinnings of the Principle of Openness and of legislative openness has thus acquired a solid foundation in the Treaties and in the case-law of the court. However, due to the eternal tide wave and purported conflict between Openness and Efficiency, Parliament has in practice struggled to live up to the Principle of Openness by resorting to informal decision-making procedures. As Nikoleta Yordanova has correctly noted: <blockquote>Traditionally, the parliamentary committees have offered important venues for political involvement of extra-parliamentary actors due to the openness and transparency of their meetings. In the past fifteen years, however, the EP has been resorting ever more often to informal decision-making, whereby the parliamentary decisions are not reached internally following deliberations and debate in committee and plenary but in secluded trilogue meetings of limited number of representatives of the three EU legislative institutions – the EP, the Council of Ministers and the European Commission. [...] -The implications of the switch to an informal mode of legislating for representation in the EP are twofold – decreased input and, potentially also, output legitimacy. Specifically, the decrease in committee influence has curtailed the channels of representation of interest groups to affect decision-making, depriving them of an effective tool to monitor and shape the legislative process and outcomes by raising timely demands. A possible implication of this is diminished receptiveness of legislators to constituents’ interests. Moreover, the lack of transparency of the secluded inter-institutional meetings has limited the ability of constituents to monitor their representatives’ policy bargaining, positions and the concessions, and, consequently, to evaluate how responsive legislators are to their preferences and demands.</blockquote> +The implications of the switch to an informal mode of legislating for representation in the EP are twofold – decreased input and, potentially also, output legitimacy. Specifically, the decrease in committee influence has curtailed the channels of representation of interest groups to affect decision-making, depriving them of an effective tool to monitor and shape the legislative process and outcomes by raising timely demands. A possible implication of this is diminished receptiveness of legislators to constituents’ interests. Moreover, the lack of transparency of the secluded inter-institutional meetings has limited the ability of constituents to monitor their representatives’ policy bargaining, positions and the concessions, and, consequently, to evaluate how responsive legislators are to their preferences and demands.<ref>Nikoleta Yordanova, Collusion in Bicameral EU Decision-making Efficiency at the expense of transparency and representation?, Paper prepared for the Conference: New Trends in Political Representation, available at http://nikoletayordanova.net/wp-content/uploads/exeter.pdf</ref></blockquote> === The Need for Lawmakers to Deliberate in Private === @@ -251,12 +251,21 @@ Yet it is by no means desirable, nor would it appear consistent with the overall == Conduct of Business as "Openly as Possible" or with the "Utmost Transparency" == -Rule 115 states that "Parliament shall ensure that its activities are conducted with the utmost transparency", which on a textual interpretation goes beyond the more relative principle of openness enshrined in Article 1 TEU, whereby “decisions are taken as openly as possible”. Indeed, it strikes that Rule 115 uses the word '''"utmost"''', which is a far stronger word than "as openly as possible" used for other institutions. +Rule 115 states that "Parliament shall ensure that its activities are conducted with the utmost transparency", which on a textual interpretation goes beyond the more relative principle of openness enshrined in Article 1 TEU, whereby “decisions are taken as openly as possible”. Indeed, it strikes that Rule 115 uses the word '''''utmost''''', which is a far stronger word than "as openly as possible" used for other institutions: - <blockquote>''ut·most'' - adj. 1. Being or situated at the most distant limit or point; farthest: the utmost tip of the peninsula. - 2. Of the highest or greatest degree, amount, or intensity; most extreme: a matter of the utmost importance. - n. The greatest possible amount, degree, or extent; the maximum: worked every day to the utmost of her abilities.<ref>http://www.tfd.com/utmost American Heritage® Dictionary of the English Language, Fourth Edition copyright ©2000 by Houghton Mifflin Company. As reported by The Free Dictionary</ref></blockquote> +<blockquote> +''ut·most'' + +adj. + +1. Being or situated at the most distant limit or point; farthest: the utmost tip of the peninsula. + +2. Of the highest or greatest degree, amount, or intensity; most extreme: a matter of the utmost importance. + +n. + +The greatest possible amount, degree, or extent; the maximum: worked every day to the utmost of her abilities.<ref>http://www.tfd.com/utmost American Heritage® Dictionary of the English Language, Fourth Edition copyright ©2000 by Houghton Mifflin Company. As reported by The Free Dictionary</ref> +</blockquote> Therefore it is clear that there is no effort to spare in order to bring the "utmost" openness or transparency, in other words, openness to the most extreme consequences. Parliament has in this respect imposed upon itself a far higher standard to meet in order to ensure openness than any other institution. @@ -264,11 +273,13 @@ This means that the balancing test at hand should at least equal, and may even e A similar construction has been adopted by the Court as regards access to documents. The Court has held that since they derogate from the "principle of the widest possible public access to documents", exceptions to that principle must be interpreted and applied strictly<ref>Council v In 't Veld, EU:C:2014:2039, paragraph 48, Council v Access Info Europe, EU:C:2013:671, paragraph 30 and the case-law cited.</ref>. In Council v In 't Veld, access was requested to an opinion of the Council’s Legal Service, issued in the context of the adoption of the Council’s decision authorising the opening of negotiations, on behalf of the European Union, in respect of the proposed agreement. Having established the "principle of the widest possible public access to documents", the Court held: -<blockquote>51 However, the mere fact that a document concerns an interest protected by an exception to the right of access laid down in Article 4 of Regulation No 1049/2001 is not sufficient to justify the application of that provision (see, to that effect, Commission v Éditions Odile Jacob, C‑404/10 P, EU:C:2012:393, paragraph 116). +<blockquote> +51 However, the mere fact that a document concerns an interest protected by an exception to the right of access laid down in Article 4 of Regulation No 1049/2001 is not sufficient to justify the application of that provision (see, to that effect, Commission v Éditions Odile Jacob, C‑404/10 P, EU:C:2012:393, paragraph 116). 52 Indeed, if the institution concerned decides to refuse access to a document which it has been asked to disclose, it must, in principle, first explain how disclosure of that document could specifically and actually undermine the interest protected by the exception — among those provided for in Article 4 of Regulation No 1049/2001 — upon which it is relying. In addition, the risk of the interest being undermined must be reasonably foreseeable and must not be purely hypothetical (Council v Access Info Europe, EU:C:2013:671, paragraph 31 and the case-law cited). -53 Moreover, if the institution applies one of the exceptions provided for in Article 4(2) and (3) of Regulation No 1049/2001, it is for that institution to weigh the particular interest to be protected through non-disclosure of the document concerned against, inter alia, the public interest in the document being made accessible, having regard to the advantages of increased openness, as described in recital 2 to Regulation No 1049/2001, in that it enables citizens to participate more closely in the decision-making process and guarantees that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system (Council v Access Info Europe, EU:C:2013:671, paragraph 32 and the case-law cited).<ref>C-350/12 P, Council v In 't Veld, ECLI:EU:C:2014:2039</ref></blockquote> +53 Moreover, if the institution applies one of the exceptions provided for in Article 4(2) and (3) of Regulation No 1049/2001, it is for that institution to weigh the particular interest to be protected through non-disclosure of the document concerned against, inter alia, the public interest in the document being made accessible, having regard to the advantages of increased openness, as described in recital 2 to Regulation No 1049/2001, in that it enables citizens to participate more closely in the decision-making process and guarantees that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system (Council v Access Info Europe, EU:C:2013:671, paragraph 32 and the case-law cited).<ref>C-350/12 P, Council v In 't Veld, ECLI:EU:C:2014:2039</ref> +</blockquote> In the same vein, the European Ombudsman has recognised that the wording and purpose of Articles 11 and 12 of Regulation 1049/2001 do not imply an obligation on Parliament to have, in its public register of documents, a reference to each and every document it holds. However, the Ombudsman found that Parliament should certainly interpret Articles 11 and 12 of Regulation 1049/2001 in a manner which allows the public to obtain "as complete a picture as possible" of how Parliament carries out its core tasks. Documents which relate to these core tasks should therefore, as far as possible, be recorded in Parliament's public register of documents. <ref>Decision of the European Ombudsman closing the inquiry into complaint 262/2012/OV against the European Parliament, available at http://www.ombudsman.europa.eu/cases/decision.faces/en/57773/html.bookmark</ref> @@ -285,29 +296,33 @@ It should be noted that one of the open issues during the negotiations in the Co == Neighbouring concepts == === Re-use of Public Sector Information === +The Directive 2003/98/EC on the re-use of public sector information <ref>Directive 2003/98/EC of the European Parliament and of the Council of 17 November 2003 on the re-utilisation of public sector information (OJ 2003 L 345, p. 90)</ref> as amended by Directive 2013/ +37/EU <ref>Directive 2013/37/EU of the European Parliament and of the Council of 26 June 2013 amending Directive 2003/98/EC on the re-use of public sector information (OJ L 175, 27.6.2013 p. 1-8)</ref>, also known as the "PSI Directive" <ref>In the remainder of this section, by using "PSI Directive" we make reference to the amended directive.</ref>, establishes a minimum set of rules governing the re-use and the practical means of facilitating re-use of existing documents held by public sector bodies of the Member States. Article 2(4) of the PSI Directive defines re-use as "the use by persons or legal entities of documents held by public sector bodies, for commercial or non-commercial purposes other than the initial purpose within the public task for which the documents were produced. Exchange of documents between public sector bodies purely in pursuit of their public tasks does not constitute re-use". -Directive 2003/98/EC<ref>Directive 2003/98/EC of the European Parliament and of the Council of 17 November 2003 on the re-utilisation of public sector information (OJ 2003 L 345, p. 90; ‘the ISP Directive’) </ref> establishes a minimum set of rules governing the re-use and the practical means of facilitating re-use of existing documents held by public sector bodies of the Member States. Article 2(4) of Directive 2003/98 defines re-use as ‘the use by persons or legal entities of documents held by public sector bodies, for commercial or non-commercial purposes other than the initial purpose within the public task for which the documents were produced. Exchange of documents between public sector bodies purely in pursuit of their public tasks does not constitute re-use. - -Article 3 of the ISP Directive entitled ‘General principle’ states that Member States shall ensure that, where the re-use of documents held by public sector bodies is allowed, these documents shall be re-usable for commercial or non-commercial purposes in accordance with the conditions set out in in the Directive. Where possible, documents shall be made available through electronic means. +Article 3 of the PSI Directive entitled ‘General principle’ states that Member States shall ensure that, where the re-use of documents held by public sector bodies is allowed, these documents shall be re-usable for commercial or non-commercial purposes in accordance with the conditions set out in in the Directive. Recital 9 clarifies that the definition of "document" is not intended to cover computer programmes. To facilitate re-use, public sector bodies should make their own documents available in a format which, as far as possible and appropriate, is not dependent on the use of specific software. Where possible and appropriate, public sector bodies should take into account the possibilities for the re-use of documents by and for people with disabilities. -In recital 16, the Directive establishes a link between re-use of public sector information and the "right to knowledge" in the following terms: +In recital 16, the PSI Directive establishes a link between re-use of public sector information and the "right to knowledge" in the following terms: <blockquote>Making public all generally available documents held by the public sector - concerning not only the political process but also the legal and administrative process - is a fundamental instrument for extending the right to knowledge, which is a basic principle of democracy. This objective is applicable to institutions at every level, be it local, national or international.</blockquote> -The ISP Directive does not contain an obligation to allow re-use of documents, and the decision whether or not to authorise re-use remains with the Member States or the public sector body concerned. The Directive applies to documents that are made accessible for re-use when public sector bodies license, sell, disseminate, exchange or give out information. To avoid cross-subsidies, re-use includes further use of documents within the organisation itself for activities falling outside the scope of its public tasks. Activities falling outside the public task will typically include supply of documents that are produced and charged for exclusively on a commercial basis and in competition with others in the market. +The PSI Directive does not contain an obligation to allow re-use of documents, and the decision whether or not to authorise re-use remains with the Member States or the public sector body concerned. It applies to documents that are made accessible for re-use when public sector bodies license, sell, disseminate, exchange or give out information. To avoid cross-subsidies, re-use includes further use of documents within the organisation itself for activities falling outside the scope of its public tasks. Activities falling outside the public task will typically include supply of documents that are produced and charged for exclusively on a commercial basis and in competition with others in the market. -In Recital 9, Directive purports to build on the existing access regimes in the Member States and does not change the national rules for access to documents. It does not apply in cases in which citizens or companies can, under the relevant access regime, only obtain a document if they can prove a particular interest. At Community level, Articles 41 (right to good administration) and 42 of the Charter of Fundamental Rights of the European Union recognise the right of any citizen of the Union and any natural or legal person residing or having its registered office in a Member State to have access to European Parliament, Council and Commission documents. Public sector bodies should be encouraged to make available for re-use any documents held by them. Public sector bodies should promote and encourage re-use of documents, including official texts of a legislative and administrative nature in those cases where the public sector body has the right to authorise their re-use. +In Recital 9, the PSI Directive purports to build on the existing access regimes in the Member States and does not change the national rules for access to documents. It does not apply in cases in which citizens or companies can, under the relevant access regime, only obtain a document if they can prove a particular interest. At Community level, Articles 41 (right to good administration) and 42 of the Charter of Fundamental Rights of the European Union recognise the right of any citizen of the Union and any natural or legal person residing or having its registered office in a Member State to have access to European Parliament, Council and Commission documents. Public sector bodies should be encouraged to make available for re-use any documents held by them. Public sector bodies should promote and encourage re-use of documents, including official texts of a legislative and administrative nature in those cases where the public sector body has the right to authorise their re-use. -Article 2 of the ISP Directive provides a number of useful definitions for the purpose of this study, since the European legislator has made an attempt to define open format and open standards as follows: +An addition to Article 2 of the PSI Directive, introduced by Directive 2013/37/EU <ref>See note above</ref>, provides a number of useful definitions for the purpose of this study, since the European legislator has made an attempt to define open format and open standards as follows: + +<blockquote> +6. ‘machine-readable format’ means a file format structured so that software applications can easily identify, recognize and extract specific data, including individual statements of fact, and their internal structure; -<blockquote>6. ‘machine-readable format’ means a file format structured so that software applications can easily identify, recognize and extract specific data, including individual statements of fact, and their internal structure; 7. ‘open format’ means a file format that is platform-independent and made available to the public without any restriction that impedes the re-use of documents; -8. ‘formal open standard’ means a standard which has been laid down in written form, detailing specifications for the requirements on how to ensure software interoperability;</blockquote> -Article 5.1 on available formats, Public sector bodies shall make their documents available in any pre-existing format or language, and, where possible and appropriate, in open and machine-readable format together with their metadata. Both the format and the metadata should, in so far as possible, comply with formal open standards. However, this does not imply an obligation for public sector bodies to create or adapt documents or provide extracts in order to comply with that obligation where this would involve disproportionate effort, going beyond a simple operation. +8. ‘formal open standard’ means a standard which has been laid down in written form, detailing specifications for the requirements on how to ensure software interoperability; +</blockquote> -Article 11 of the ISP Directive provides a prohibition of exclusive arrangements. Under Article 11.1, the re-use of documents shall be open to all potential actors in the market, even if one or more market players already exploit added-value products based on these documents. Contracts or other arrangements between the public sector bodies holding the documents and third parties shall not grant exclusive rights. Under Article 11.2 where an exclusive right is necessary for the provision of a service in the public interest, the validity of the reason for granting such an exclusive right shall be subject to regular review, and shall, in any event, be reviewed every three years. The exclusive arrangements established shall be transparent and made public. +Under the new article 5.1 on available formats, public sector bodies shall make their documents available in any pre-existing format or language, and, where possible and appropriate, in open and machine-readable format together with their metadata. Both the format and the metadata should, in so far as possible, comply with formal open standards. However, this does not imply an obligation for public sector bodies to create or adapt documents or provide extracts in order to comply with that obligation where this would involve disproportionate effort, going beyond a simple operation. + +Article 11 of the PSI Directive provides a prohibition of exclusive arrangements. Under Article 11.1, the re-use of documents shall be open to all potential actors in the market, even if one or more market players already exploit added-value products based on these documents. Contracts or other arrangements between the public sector bodies holding the documents and third parties shall not grant exclusive rights. Under Article 11.2 where an exclusive right is necessary for the provision of a service in the public interest, the validity of the reason for granting such an exclusive right shall be subject to regular review, and shall, in any event, be reviewed every three years. The exclusive arrangements established shall be transparent and made public. === The G8 Open Data Charter === @@ -329,7 +344,7 @@ The challenges identified by the EU for making further progress towards the open * simplifying clearance of intellectual property rights.<ref>EU implementation of the G8 Open Data Charter, Open data context, page 2 http://ec.europa.eu/information_society/newsroom/cf/document.cfm?action=display&doc_id=3489</ref></blockquote> -The EU has furthermore committed to promoting the application of the principles of the G8 Open Data Charter to all EU Member States within the context of a range of ongoing activities, in particular through ensuring the implementation of Directive 2013/37/EU of 26 June 2013 revising Directive 2003/98/EC on the re-use of public sector information which, according to the EU: +The EU has furthermore committed to promoting the application of the principles of the G8 Open Data Charter to all EU Member States within the context of a range of ongoing activities, in particular through ensuring the implementation of Directive 2013/37/EU of 26 June 2013 revising Directive 2003/98/EC on the re-use of public sector information (or the PSI Directive as defined in the previous section) which, according to the EU: <blockquote> * ensures that publicly accessible content can be reused in compliance with the Directive; @@ -412,19 +427,17 @@ In the last paragraph of the previous section we have concluded that free and op == Free and Open Standards == -There is no legal and binding definition on what an Open Standard is. All the attempts made so far within the EU legislature and policy documents have faced strong debate and criticism from either side of the spectrum ranging from those who claim that "Open" applies to all standard that are available to every concerned entity, to those who claim that "Open" needs a far stricter definition and the list of requirements for a standard to be called "open" extend beyond the nature of a technical document of the standard to encompass the legal restrictions to its implementations (first and foremost patents) and the independence from a single implementation, especially coming from the main proponent of the standard. +There is no legal and binding definition on what an Open Standard is. All the attempts made so far within the EU legislature and policy documents have faced strong debate and criticism from either side of the spectrum ranging from those who claim that "Open" applies to all standards that are available to every concerned entity, to those who claim that "Open" needs a far stricter definition and the list of requirements for a standard to be called "open" extend beyond the nature of a technical document of the standard to encompass the legal restrictions to its implementations (first and foremost patents) and the independence from a single implementation, especially coming from the main proponent of the standard. The debate around the European Interoperability Framework in its two incarnations (v.1 and v.2) is particularly illustrative of this dualism. - === The European Interoperability Framework V.1 === The European Interoperability Framework was conceived in 2003 and defined as "[an] overarching set of policies, standards and guidelines which describe the way in which organisations have agreed, or should agree, to do business with each other." <ref name=IDABC>{{cite web|title=EIF - European Interoperability Framework for pan-European eGovernment services|url=http://ec.europa.eu/idabc/en/document/2319/5644.html|accessdate=7 August 2014}}</ref> In essence, it is an effort put in place to have one reference for public administrations as well as private entities within Europe to seamlessly share services and data with each other, by means of agreed practices and standards, as an action from eEurope 2005 Action Plan. -One of the tasks of the project was indeed to find some common ground as to what "standard" means and what an "open standard" also means. +One of the tasks of the project was indeed to find some common ground as to what "standard" means and what an "open standard" also means: <blockquote> - To attain interoperability in the context of pan-European eGovernment services, guidance needs to focus on open standards 17. The following are the minimal characteristics that a specification and its attendant documents must have in order to be considered an open standard: * The standard is adopted and will be maintained by a not-for-profit organisation, and its ongoing development occurs on the basis of an open decision-making procedure available to all interested parties (consensus or majority decision etc.). @@ -438,23 +451,27 @@ To attain interoperability in the context of pan-European eGovernment services, Note that the recommendation did not prescribe the use of only open standards, but only advised to "focus" on open standards. There was also no ethical or ideological implication in the recommendation, which came from an objective and functional analysis. -To our knowledge, that was the first attempt to define open standards in an official, albeit non legislative, document from the European Union. The document was officially adopted in 2004.<ref name=IDABC /> +To our knowledge, that was the first attempt to define open standards in an official, albeit non legislative, document from the European Union. The document was officially adopted in 2004. === The European Interoperability Framework V.2 === -In 2006, the European Commission has started the revision of the European Interoperability Framework. <ref>{{cite web|title=Revision of the EIF and AG|url=http://ec.europa.eu/idabc/en/document/7728.html|accessdate=7 August 2014}}</ref> +In 2006, the European Commission has started the revision of the European Interoperability Framework.<ref>{{cite web|title=Revision of the EIF and AG|url=http://ec.europa.eu/idabc/en/document/7728.html|accessdate=7 August 2014}}</ref> -The effort was completed on December 2010.<ref name=EIFv2>{{cite web|title=Annex 2 to the Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of Regions 'Towards interoperability for European public services'|url=http://ec.europa.eu/isa/documents/isa_annex_ii_eif_en.pdf|accessdate=7 August 2014}}</ref> +The effort was completed on December 2010.<ref name=EIFv2>{{cite web|title=Annex 2 to the Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of Regions 'Towards interoperability for European public services' COM(2010) 744 final +|url=http://ec.europa.eu/isa/documents/isa_annex_ii_eif_en.pdf|accessdate=7 August 2014}}</ref> Reportedly due to intense lobbying by industry representatives,<ref>{{cite web|title=European Commission Betrays Open Standards|url=http://blogs.computerworlduk.com/open-enterprise/2010/05/european-commission-betrays-open-standards/index.htm|website=ComputerWorld UK - Blog|accessdate=7 August 2014}}</ref> <ref>{{cite web|title=European Interoperability Framework supports openness|url=http://opensource.com/government/10/12/european-interoperability-framework-supports-openness|website=Opensource.com|accessdate=7 August 2014}}</ref> notably in the new document there is no reference to standards at all, let alone to open standards, but more vaguely to "open specifications". <ref>EIFv2 , page 26</ref> -The relevant language starts with "'''If''' the openness principle is applied in full", therefore it is not even a recommendation that of apply openness in full, but only a trajectory is envisaged and made an hypothesis. Therefore Recommendation 22 states: +The relevant language starts with "'''''If''''' the openness principle is applied in full" [emphasis added], therefore it is not even a recommendation that of applying openness in full, but only a trajectory is envisaged and made an hypothesis. Consequently Recommendation 22 of the EIFv2 states: -<blockquote>Recommendation 22. When establishing European public services, public administrations '''should prefer''' open specifications, taking due account of the coverage of functional needs, maturity and market support. [emphasis added]</blockquote> +<blockquote> +Recommendation 22. When establishing European public services, public administrations '''''should prefer''''' open specifications, taking due account of the coverage of functional needs, maturity and market support. [emphasis added] +</blockquote> -The very definition of open specification is far more vague than the one found in the EIFv1: +The very definition of open specification in the EIFv2 is far more vague than the one found in the EIFv1: -<blockquote>If the openness principle is applied in full: +<blockquote> +If the openness principle is applied in full: * All stakeholders have the same possibility of contributing to the development of the specification and public review is part of the decision-making process; @@ -463,7 +480,7 @@ The very definition of open specification is far more vague than the one found i * Intellectual property rights related to the specification are licensed on FRAND terms or on a royalty-free basis in a way that allows implementation in both proprietary and open source software. </blockquote> -"FRAND" is an acronym of "Free, Reasonable And Non Discriminatory" conditions, and is a term of the trade in the standardisation world, and beside. However, it is not clear what it really means <ref>Most telling the EU-commissioned study for the European Commission - Directorate-General for Enterprise and Industry {{cite web|title=Patents and Standards - A modern framework for IPR-based standardization|url=http://ec.europa.eu/DocsRoom/documents/4843/attachments/1/translations/en/renditions/pdf|accessdate=14 October 2014}}, cfr pag. 130.</ref>, as for instance it can be argued that imposing a per copy royalty is discriminatory against Free Software (Open Source software), mostly against ''"strong copyleft"'' licensing conditions, a variant of Free Software licensing conditions. Therefore it is open to question whether FRAND conditions that do not allow "implementation in both proprietary and open source software" are indeed FRAND as per the very definition of open specifications. +"FRAND" is an acronym of "Free, Reasonable And Non Discriminatory" conditions, and is a term of the trade in the standardisation world, and beyond. However, it is not clear what it really means <ref>Most telling the EU-commissioned study for the European Commission - Directorate-General for Enterprise and Industry {{cite web|title=Patents and Standards - A modern framework for IPR-based standardization|url=http://ec.europa.eu/DocsRoom/documents/4843/attachments/1/translations/en/renditions/pdf|accessdate=14 October 2014}}, cfr pag. 130.</ref>, as for instance it can be argued that imposing a per copy royalty is discriminatory against Free Software or software with (other) strong ''"copyleft"'' licensing conditions. Therefore it is open to question whether FRAND conditions that do not allow "implementation in both proprietary and open source software" are indeed FRAND as per the very definition of open specifications. This is not the place to resolve the issue, but it is indicative of how there is a tension between those who oppose extending the definition of Open Standards to something that is not as open as it can be (mainly, some of the biggest patent holders, yet not all of them), and those who advocate a stricter definition to include only something that is really open to be adopted, without the need to take affirmative steps to obtain a license, even from a patent pool.<ref>For a dissertation of the topic in general, please see {{cite journal|last1=Dolmans|first1=Maurits|last2=Piana|first2=Carlo|title=A Tale of Two Tragedies – A plea for open standards, and some comments on the RAND report|journal=International Free and Open Source Software Law Review|date=2010|volume=2|issue=2|pages=115-138|doi=10.5033/ifosslr.v2i2.46|url=http://www.ifosslr.org/ifosslr/article/view/46|accessdate=7 August 2014}}</ref> <ref>Also with useful analyses on openness of standards a more dated article: {{cite journal|last1=Krechmer|first1=Ken|title=Open Standards Requirements|journal=The International Journal of IT Standards and Standardization Research|date=7 February 2005|volume=4|issue=1|url=http://www.csrstds.com/openstds.pdf|accessdate=7 August 2014}}</ref> @@ -757,7 +774,7 @@ This view is fully in line with new EU rules on public procurement that allow fo Finally, we have shown that other public bodies in certain Member States provide measurable benchmarks for the adoption of Free Software and Open Standards. We believe that the European Parliament should follow those leads, and exceed them. -We conclude that the Rules of Procedure of the European Parliament should whenever possible make '''Free Software''' and '''Open Standards''' mandatory for all systems and data used for the work of Parliament. In our view, that is the most appropriate way for the Parliament to meet its own standard of "utmost transparency". +We conclude that the Rules of Procedure of the European Parliament should whenever possible make Free Software and Open Standards mandatory for all systems and data used for the work of Parliament. In our view, that is the most appropriate way for the Parliament to meet its own standard of "utmost transparency". = Notes = @@ -851,5 +868,5 @@ mw.loader.state({"site":"ready","user":"ready","user.groups":"ready"}); mw.loader.load(["mediawiki.action.edit.collapsibleFooter","mediawiki.user","mediawiki.hidpi","mediawiki.page.ready","mediawiki.searchSuggest"],null,true); }</script> <script>if(window.mw){ -mw.config.set({"wgBackendResponseTime":274}); +mw.config.set({"wgBackendResponseTime":285}); }</script></body></html>
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