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| author | Jonas Smedegaard <dr@jones.dk> | 2015-01-04 12:34:20 +0100 |
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| committer | Jonas Smedegaard <dr@jones.dk> | 2015-01-04 12:34:20 +0100 |
| commit | bc7c640e0db0328964a47c5cacf55b621779f611 (patch) | |
| tree | d440d91519d55ffe4c38bb0af40b303702540cc6 | |
| parent | df5fb8ae7109269a9e1fce596fa997ba8300ed8a (diff) | |
Sync with source as of 2015-01-01 17-55.
| -rw-r--r-- | eut.raw | 186 |
1 files changed, 94 insertions, 92 deletions
@@ -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":17605,"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":17624,"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});},{},{}); @@ -55,25 +55,33 @@ mw.loader.load(["mediawiki.page.startup","mediawiki.legacy.wikibits","mediawiki. </table> </td></tr></table> += Preface = -= About = +The study "''Ensuring utmost transparency - Free Software and Open Standards under the Rules of Procedure of the European Parliament''" has been produced at the request of the Greens/EFA Group in the European Parliament by Carlo Piana<ref name="Carlo Piana">'''Carlo Piana''' is an Italian qualified attorney based in Milano, founder of [http://array.eu Array] and specializing in Information Technology Law. He also serves in the Editorial Committee of the Free and Open Source Software Law Review [http://www.ifosslr.org Ifosslr] {{cite web|title=Carlo Piana|url=http://en.wikipedia.org/wiki/Carlo_Piana|accessdate=14 October 2014}}</ref> and Ulf Öberg<ref name="Ulf Öberg">'''Ulf Öberg''' is Founder and Managing Partner of the law firm Öberg & Associés. He is specialised in EU and Competition law and has extensive trial experience before the EU Courts, Swedish courts and European Court of Human Rights. {{cite web|title=Ulf Öberg|url=http://www.obergassocies.eu/en/about-us/ulf-oberg|accessdate=14 October 2014}}</ref> under the supervision of Professor Douwe Korff<ref name="Douwe Korff">'''Professor Douwe Korff''' is an Associate of the [http://www.oxfordmartin.ox.ac.uk/people/578 Oxford Martin School] of the University of Oxford and a member of the cybersecurity working group of its Global Cybersecurity Capacity Centre; a [http://isp.yale.edu/douwe-korff Visiting Fellow] at Yale University (in its Information Society Project); and a [https://cihr.eu/people/ Fellow] of the Centre for Internet & Human Rights of the European University Viadrina in Berlin.</ref>. -The study "''Ensuring utmost transparency — Free Software and Open Standards under the Rules of Procedure of the European Parliament''" has been produced at the request of the Greens/EFA Group in the European Parliament by Carlo Piana<ref name="Carlo Piana">'''Carlo Piana''' is an Italian qualified attorney based in Milano, founder of [http://array.eu Array] and specializing in Information Technology Law. He also serves in the Editorial Committee of the Free and Open Source Software Law Review [http://www.ifosslr.org Ifosslr] {{cite web|title=Carlo Piana|url=http://en.wikipedia.org/wiki/Carlo_Piana|accessdate=14 October 2014}}</ref> and Ulf Öberg<ref name="Ulf Öberg">'''Ulf Öberg''' is Founder and Managing Partner of the law firm Öberg & Associés. He is specialised in EU and Competition law and has extensive trial experience before the EU Courts, Swedish courts and European Court of Human Rights. {{cite web|title=Ulf Öberg|url=http://www.obergassocies.eu/en/about-us/ulf-oberg|accessdate=14 October 2014}}</ref> under the supervision of Professor Douwe Korff<ref name="Douwe Korff">'''Professor Douwe Korff''' is an Associate of the [http://www.oxfordmartin.ox.ac.uk/people/578 Oxford Martin School] of the University of Oxford and a member of the cybersecurity working group of its Global Cybersecurity Capacity Centre; a [http://isp.yale.edu/douwe-korff Visiting Fellow] at Yale University (in its Information Society Project); and a [https://cihr.eu/people/ Fellow] of the Centre for Internet & Human Rights of the European University Viadrina in Berlin.</ref>. The viewpoints in this study belong to the authors and the authors alone. +The study has been open for public review on euwiki.org from 15 October till 15 November 2014. Online support during the review period was provided by Jonatan Walck<ref name="Jonatan Walck">'''Jonatan Walck''' is a computer and computer networks specialist working with [https://web.archive.org/web/20141214070422/http://www.netnod.se/new-staff-netnod/ system administration and development of internet-connected services, hardware-software integration and electronics]. He is a founding member the Swedish non-profit [https://web.archive.org/web/20090923123947/http://juliagruppen.se/lang/en/om-juliagruppen/vi-ar-juliagruppen/ Juliagruppen] and a long term [https://web.archive.org/web/20130312211020/https://fscons.org/2012/people/jonatan-walck/ advocate for a free and open internet].</ref>. -The study has been open for public review on euwiki.org from 15 October till 15 November 2014. Online support during the review period has been provided by Jonatan Walck<ref name="Jonatan Walck">'''Jonatan Walck''' is a computer and computer networks specialist working with [https://web.archive.org/web/20141214070422/http://www.netnod.se/new-staff-netnod/ system administration and development of internet-connected services, hardware-software integration and electronics]. He is a founding member the Swedish non-profit [https://web.archive.org/web/20090923123947/http://juliagruppen.se/lang/en/om-juliagruppen/vi-ar-juliagruppen/ Juliagruppen] and a long term [https://web.archive.org/web/20130312211020/https://fscons.org/2012/people/jonatan-walck/ advocate for a free and open internet].</ref>. +The cover illustration has been created by Siri Reiter<ref name="Siri Reiter">'''Siri Reiter''' is a [http://sirireiter.dk/ graphic designer, illustrator and artist]. She graduated at [https://www.designskolenkolding.dk/en Kolding School of Design] and works primarily from Orø, Denmark.</ref> based on a photograph provided by the European Parliament's Audiovisual Services for Media. Transformation, layout and visual design for the 2nd edition of the study has been created by Jonas Smedegaard<ref>'''Jonas Smedegaard''' is an official Debian developer since 2001.</ref>. -The cover illustration has been created by Siri Reiter<ref name="Siri Reiter">'''Siri Reiter''' is a [http://sirireiter.dk/ graphic designer, illustrator and artist]. She graduated at [https://www.designskolenkolding.dk/en Kolding School of Design] and works primarily from Orø, Denmark.</ref> based on a photograph provided by the European Parliament's Audiovisual Services for Media which also holds the copyright of the original<ref>The photograph used for the illustration is hosted by the European Parliament's Audiovisual Services for Media, available at http://audiovisual.europarl.europa.eu/Assetdetail.aspx?id=3a50e246-d3c4-4ae8-9068-ce3249307d15</ref>. -Transformation, layout and visual design for the 2nd edition of this study has been created by Jonas Smedegaard<ref>'''Jonas Smedegaard''' is an official Debian developer since 2001. The source code for the transformation is available at http://source.epfsug.biks.dk/?p=eut.git</ref>. += Copyright and further information= -The work and the cover illustration are independently licensed under the Creative Commons Attribution-ShareAlike 4.0 International License. Transformation, layout and visual design is licensed under [LICENCE]. +The work of the authors is licensed under the [https://creativecommons.org/licenses/by-sa/4.0/ Creative Commons Attribution-ShareAlike 4.0 International License]. + +The cover illustration is licensed under [https://creativecommons.org/licenses/by-sa/4.0/ Creative Commons Attribution-ShareAlike 4.0 International License]. The [http://audiovisual.europarl.europa.eu/Assetdetail.aspx?id=3a50e246-d3c4-4ae8-9068-ce3249307d15 original photo] used for the illustration is hosted by the European Parliament's Audiovisual Services for Media which also holds the copyright. + +Transformation, layout and visual design are licensed under [LICENCE]. The [http://source.epfsug.biks.dk/?p=eut.git source code] for the transformation is available on-line. + +The 1st edition of the study was published on the Greens/EFA website on 11 December 2014<ref>Web article "Free Software and Open Standards in the European Parliament", available at https://web.archive.org/web/20141230225627/http://www.greens-efa.eu/free-software-and-open-standards-in-the-european-parliament-13245.html</ref>. + +More information about the study can be requested from Erik Josefsson, Greens/EFA Group in the European Parliament, Rue Wiertz 60, B-1047 Brussels, Belgium. E-mail: erik.josefsson@europarl.europa.eu = Table of Contents = __TOC__ = Foreword = -This report is timely, and deals with an important issue in an era of widespread disillusionment with and distrust of politics and political institutions (or at least politicians). "Utmost transparency" has the potential to strengthen accountability and increase popular participation in the democratic processes. The report links this principle with the technical standards and practical steps that can be taken to ensure its full implementation – or that can effectively limit access. As the authors of this study point out, there is a difference between the somewhat legalistic right of access to information ("freedom of information") on an ad hoc, on-request basis, and general openness and transparency. The former right allows entrance to an in-principle closed building, or to closed rooms within closed buildings, on request, subject to limitations; the latter removes entire walls and allows daylight to permeate to all corners. Parliament’s duty to ensure "utmost transparency" clearly demands the latter rather than just the former. +This report is timely, and deals with an important issue in an era of widespread disillusionment with and distrust of politics and political institutions (or at least politicians). "Utmost transparency" has the potential to strengthen accountability and increase popular participation in the democratic processes. The report links this principle with the technical standards and practical steps that can be taken to ensure its full implementation - or that can effectively limit access. As the authors of this study point out, there is a difference between the somewhat legalistic right of access to information ("freedom of information") on an ad hoc, on-request basis, and general openness and transparency. The former right allows entrance to an in-principle closed building, or to closed rooms within closed buildings, on request, subject to limitations; the latter removes entire walls and allows daylight to permeate to all corners. Parliament's duty to ensure "utmost transparency" clearly demands the latter rather than just the former. In order to elucidate the relevant requirements, the authors provide excellent overviews of a large number of widely diverging and complex issues relevant to the topic: human rights law, EU law ranging from the Charter of Fundamental Rights to EC directives on public sector information and Commission decisions on data re-use, copyright, patents and protection of databases, principles of good governance, transparency standards relating to the environment (Aarhus), the G8 Open Data Charter and others on the mainly legal and governance standards side; the European Interoperability Framework (versions 1 and 2), open standards (as variously formally defined) and "semi-formal" RFCs, FOSS and email system requirements on the more practical, technical side. They have looked at relevant rules and practices in a range of countries including India, Sweden and the UK. @@ -115,17 +123,17 @@ The European Parliament has been a champion in promoting not only openness of th <blockquote>In this connection, the Parliament avers that, whilst it is competent for the institutions to adopt appropriate measures for their internal organization with a view to ensuring their sound operation and the proper conduct of their procedures, the principle of openness of the legislative process and the access to legislative documents entailed thereby constitute essential requirements of democracy and therefore cannot be treated as organizational matters purely internal to the institutions. In this context, the Parliament adverts to the democratic nature of the Community legal order. It maintains moreover that the requirement for openness constitutes a general principle common to the constitutional traditions of the Member States which is also enshrined in Community law. Lastly, it argues that the right to information, of which access to documents constitutes the corollary, is a fundamental human right recognized by various international instruments.<ref>Case C-58/94 Netherlands v Council [1996] ECLI:EU:C:1996:171 at para 18.</ref></blockquote> -In its judgment, the Court stressed that the domestic legislation of most Member States enshrines, in a general manner, the public’s right of access to documents held by public authorities as a constitutional or legislative principle. The Court found that this trend "discloses a progressive affirmation of individuals’ right of access to documents held by public authorities" and that accordingly, the Council deemed it necessary to amend the rules governing its internal organisation, which had hitherto been based on the principle of confidentiality. The Court added that, "so long as the Community legislature has not adopted general rules on the right of public access to documents held by the Community institutions, the institutions must take measures as to the processing of such requests by virtue of their power of internal organisation, which authorises them to take appropriate measures in order to ensure their internal operation in conformity with the interests of good administration". +In its judgment, the Court stressed that the domestic legislation of most Member States enshrines, in a general manner, the public's right of access to documents held by public authorities as a constitutional or legislative principle. The Court found that this trend "discloses a progressive affirmation of individuals' right of access to documents held by public authorities" and that accordingly, the Council deemed it necessary to amend the rules governing its internal organisation, which had hitherto been based on the principle of confidentiality. The Court added that, "so long as the Community legislature has not adopted general rules on the right of public access to documents held by the Community institutions, the institutions must take measures as to the processing of such requests by virtue of their power of internal organisation, which authorises them to take appropriate measures in order to ensure their internal operation in conformity with the interests of good administration". -While dated, this analysis is still interesting for at least three reasons. First, the legal doctrine is divided as to whether or not it is possible to interpret the Netherlands v Council judgment as authority for the existence of a fundamental right of access to documents.<ref>See in that regard, for example, Chiti, E., "Further Developments of Access to Community Information: Kingdom of the Netherlands v. Council of the European Union", European Public Law, Vol. 2, No 4, 1996, p. 536 et seq.; Lafay, F., "L'accès aux documents du Conseil de l'Union: contribution à une problématique de la transparence en droit communautaire", RTD eur. 33(1), January-March 1997, p. 37 et seq.; Bradley, K. St. C., "La transparence de l'Union européenne: une évidence ou un trompe-l'oeil?", Cahier de droit européen, 3-4, 1999, p. 283 et seq.; Travers, N., "Access to Documents in Community law: on the road to a European participatory democracy", The Irish Jurist, Vol. 35, 2000, p. 164 et seq. For a different interpretation, see, for example, Ragnemalm, H., "Démocratie et transparence: sur le droit général d'accès des citoyens de l'Union européenne aux documents détenus par les institutions communautaires", Scritti in onore di G. F. Mancini, p. 809 et seq., Öberg, U., EU Citizen’s Right to Know: The Improbable Adoption of a European Freedom of Information Act, Cambridge Yearbook of European Legal Studies, Vol. 2, 1999, s. 303-328</ref> Second, when interpreting Rule 115, the relevant legal question is whether or not internal rules of the institutions may confer a substantive legal right to access to documents, to information, and/or to data on EU citizens. Third, the Court clearly links the issue of public access to documents to the nascent principle of good administration. +While dated, this analysis is still interesting for at least three reasons. First, the legal doctrine is divided as to whether or not it is possible to interpret the Netherlands v Council judgment as authority for the existence of a fundamental right of access to documents.<ref>See in that regard, for example, Chiti, E., "Further Developments of Access to Community Information: Kingdom of the Netherlands v. Council of the European Union", European Public Law, Vol. 2, No 4, 1996, p. 536 et seq.; Lafay, F., "L'accès aux documents du Conseil de l'Union: contribution à une problématique de la transparence en droit communautaire", RTD eur. 33(1), January-March 1997, p. 37 et seq.; Bradley, K. St. C., "La transparence de l'Union européenne: une évidence ou un trompe-l'oeil?", Cahier de droit européen, 3-4, 1999, p. 283 et seq.; Travers, N., "Access to Documents in Community law: on the road to a European participatory democracy", The Irish Jurist, Vol. 35, 2000, p. 164 et seq. For a different interpretation, see, for example, Ragnemalm, H., "Démocratie et transparence: sur le droit général d'accès des citoyens de l'Union européenne aux documents détenus par les institutions communautaires", Scritti in onore di G. F. Mancini, p. 809 et seq., Öberg, U., EU Citizen's Right to Know: The Improbable Adoption of a European Freedom of Information Act, Cambridge Yearbook of European Legal Studies, Vol. 2, 1999, s. 303-328</ref> Second, when interpreting Rule 115, the relevant legal question is whether or not internal rules of the institutions may confer a substantive legal right to access to documents, to information, and/or to data on EU citizens. Third, the Court clearly links the issue of public access to documents to the nascent principle of good administration. -According to the case law of the Court, the purpose of the Community institutions’ internal Rules of Procedure is to organise the internal functioning of its services in the interests of good administration. The essential purpose of such rules, particularly those with regard to the organisation of deliberations and the adoption of decisions, is to ensure the smooth conduct of the decision-making procedure. It follows that natural or legal persons may normally not rely on an alleged breach of such rules, as they are not intended to ensure protection for individuals. +According to the case law of the Court, the purpose of the Community institutions' internal Rules of Procedure is to organise the internal functioning of its services in the interests of good administration. The essential purpose of such rules, particularly those with regard to the organisation of deliberations and the adoption of decisions, is to ensure the smooth conduct of the decision-making procedure. It follows that natural or legal persons may normally not rely on an alleged breach of such rules, as they are not intended to ensure protection for individuals. -Therefore, internal rules cannot be regarded as measures conferring on European citizens a substantive right of access to documents, to information, or to data held by the EU institutions. They are not intended to vest in European citizens a formal ”right to know” what is going on within the European institutions, which is a prerequisite in a participatory democracy, where decisions are taken "as closely as possible to the citizen”. In the absence of general rules on the right of public access to information or to data held by the EU institutions, European citizens’ ”right to know” and to participate ”as closely as possible” in the decision-making process must therefore be found elsewhere. +Therefore, internal rules cannot be regarded as measures conferring on European citizens a substantive right of access to documents, to information, or to data held by the EU institutions. They are not intended to vest in European citizens a formal "right to know" what is going on within the European institutions, which is a prerequisite in a participatory democracy, where decisions are taken "as closely as possible to the citizen". In the absence of general rules on the right of public access to information or to data held by the EU institutions, European citizens' "right to know" and to participate "as closely as possible" in the decision-making process must therefore be found elsewhere. As a preliminary conclusion, Rule 115 does not in itself confer any rights on European citizens. Nevertheless, as compliance with internal Rules of Procedure may constitute an essential procedural requirement, and may in some circumstances have legal effects vis-à-vis third parties, their breach can give rise to an action for annulment before the EU Courts. Indeed, procedural rules laid down in Rule 115 constitutes an essential procedural requirement within the meaning of the second paragraph of Article 263 TFEU and its infringement leads to the nullity of the measure thereby vitiated. -In the light of the Court's judgment in European Parliament v. Council, that rule is an expression of the democratic principles on which the European Union is founded. In particular, the Court has already stated that the Parliament’s involvement in the decision-making process is the reflection, at the EU level, of the fundamental democratic principle that the people should participate in the exercise of power through the intermediary of a representative assembly.<ref>Judgment European Parliament v. Council EU:C:2014:2025, paragraph 80-81</ref> Not only has Parliament imposed upon itself that it shall ensure that its activities are conducted with the utmost transparency, but its actions shall also conform with the Principle of Openness enshrined in the Treaties and in the Charter, and the Right of Access to Information in Art. 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). +In the light of the Court's judgment in European Parliament v. Council, that rule is an expression of the democratic principles on which the European Union is founded. In particular, the Court has already stated that the Parliament's involvement in the decision-making process is the reflection, at the EU level, of the fundamental democratic principle that the people should participate in the exercise of power through the intermediary of a representative assembly.<ref>Judgment European Parliament v. Council EU:C:2014:2025, paragraph 80-81</ref> Not only has Parliament imposed upon itself that it shall ensure that its activities are conducted with the utmost transparency, but its actions shall also conform with the Principle of Openness enshrined in the Treaties and in the Charter, and the Right of Access to Information in Art. 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). == The Principle of Openness and the Right of Access to Information: A Basis for Imposing Free Software and Open Standards ? == @@ -135,21 +143,21 @@ The first real step towards allowing the public a right of access to documents h Article 1(2) and Article 10(3) of the Treaty establishing the European Union (TEU) states that in the European Union decisions are to be taken as "openly as possible" and ''as closely as possible'' to the citizen. -In this respect, Article 15(1) TFEU states that in order to promote good governance and ensure the participation of civil society, the Union’s institutions, bodies, offices and agencies are to conduct their work as openly as possible. According to the first subparagraph of Article 15(3) TFEU, any citizen of the Union, and any natural or legal person residing in or having its registered office in a Member State, is to have a right of access to documents of the Union’s institutions, bodies, offices, and agencies, whatever their medium, subject to the principles and the conditions to be defined in accordance with that paragraph. Moreover, according to the second subparagraph of Article 15(3), the general principles and limits on grounds of public or private interest governing this right of access to documents are to be determined by the European Parliament and the Council of the European Union, by means of regulations, acting in accordance with the ordinary legislative procedure. In accordance with the third subparagraph of Article 15(3) TFEU, each institution, body, office or agency is to ensure that its proceedings are transparent and is to elaborate in its own Rules of Procedure specific provisions regarding access to its documents, in accordance with the regulations referred to in the second subparagraph of Article 15(3) TFEU. +In this respect, Article 15(1) TFEU states that in order to promote good governance and ensure the participation of civil society, the Union's institutions, bodies, offices and agencies are to conduct their work as openly as possible. According to the first subparagraph of Article 15(3) TFEU, any citizen of the Union, and any natural or legal person residing in or having its registered office in a Member State, is to have a right of access to documents of the Union's institutions, bodies, offices, and agencies, whatever their medium, subject to the principles and the conditions to be defined in accordance with that paragraph. Moreover, according to the second subparagraph of Article 15(3), the general principles and limits on grounds of public or private interest governing this right of access to documents are to be determined by the European Parliament and the Council of the European Union, by means of regulations, acting in accordance with the ordinary legislative procedure. In accordance with the third subparagraph of Article 15(3) TFEU, each institution, body, office or agency is to ensure that its proceedings are transparent and is to elaborate in its own Rules of Procedure specific provisions regarding access to its documents, in accordance with the regulations referred to in the second subparagraph of Article 15(3) TFEU. -It should be noted at the outset that the General Court has held that Article 1, para. 2 EU and Article 255 EC did not have direct effect, and could therefore not form the basis of a request for disclosure of a document of an institution. The first provision was not regarded as "clear"<ref>Within the meaning of the judgment in Case 26/62 Van Gend en Loos [1963] ECR 1</ref>, and the second was not considered to lay down an unconditional obligation, since its implementation was held to be dependent on the adoption of subsequent measures. <ref>Case T‑191/99 Petrie and Others v Commission [2001] ECR II‑3677, paragraph 34-38 and Joined Cases T‑3/00 and T‑337/04 Pitsiorlas v Council and ECB [2007] ECR II‑4779</ref> +It should be noted at the outset that the General Court has held that Article 1, para. 2 EU and Article 255 EC did not have direct effect, and could therefore not form the basis of a request for disclosure of a document of an institution. The first provision was not regarded as "clear"<ref>Within the meaning of the judgment in Case 26/62 Van Gend en Loos [1963] ECR 1</ref>, and the second was not considered to lay down an unconditional obligation, since its implementation was held to be dependent on the adoption of subsequent measures. <ref>Case T-191/99 Petrie and Others v Commission [2001] ECR II-3677, paragraph 34-38 and Joined Cases T-3/00 and T-337/04 Pitsiorlas v Council and ECB [2007] ECR II-4779</ref> -In a different strand of its case-law, the General Court has referred to the "principle of the right to information" <ref>Case T‑14/98 Hautala v Council [1999] ECR II‑2489, paragraph 87</ref>, and to the "principle of transparency" <ref> Case T‑211/00 Kuijer v Council [2002] ECR II‑485, paragraph 52</ref>, in support of a finding that the previous internal rules of access to documents of the institutions must be interpreted in the light of the "principle of the right to information" and the principle of proportionality. The issue has obviously divided the General Court, which has also stated: +In a different strand of its case-law, the General Court has referred to the "principle of the right to information" <ref>Case T-14/98 Hautala v Council [1999] ECR II-2489, paragraph 87</ref>, and to the "principle of transparency" <ref> Case T-211/00 Kuijer v Council [2002] ECR II-485, paragraph 52</ref>, in support of a finding that the previous internal rules of access to documents of the institutions must be interpreted in the light of the "principle of the right to information" and the principle of proportionality. The issue has obviously divided the General Court, which has also stated: -<blockquote>For the purpose of applying Article 4 of Regulation EC No 1049/2001 regarding public access to European Parliament, Council and Commission documents, the concept of a document must be distinguished from that of information. The public’s right of access to the documents of the institutions covers only documents and not information in the wider meaning of the word and does not imply a duty on the part of the institutions to reply to any request for information from an individual.<ref>Case T 264/04 WWF European Policy Programme v Council [2007] ECR II-911 at para 76.</ref></blockquote> +<blockquote>For the purpose of applying Article 4 of Regulation EC No 1049/2001 regarding public access to European Parliament, Council and Commission documents, the concept of a document must be distinguished from that of information. The public's right of access to the documents of the institutions covers only documents and not information in the wider meaning of the word and does not imply a duty on the part of the institutions to reply to any request for information from an individual.<ref>Case T 264/04 WWF European Policy Programme v Council [2007] ECR II-911 at para 76.</ref></blockquote> -To date, no clear guidance on this issue has been provided by the Court. In Council v Hautala, the Court did not find it necessary to rule on "the existence of a principle of the right to information" in European Union law.<ref>Case C‑353/99 P Council v Hautala [2001] ECR I‑9565, paragraph 31</ref> +To date, no clear guidance on this issue has been provided by the Court. In Council v Hautala, the Court did not find it necessary to rule on "the existence of a principle of the right to information" in European Union law.<ref>Case C-353/99 P Council v Hautala [2001] ECR I-9565, paragraph 31</ref> Based on this lack of clarity in the case-law of the EU Courts, in Pitsiorlas v Council and ECB, the ECB contested the very existence in EU law of a fundamental legal principle which provides for a general right of access to its documents and to those of the EU institutions. It argued that although arguments based on such a principle have been raised on numerous occasions before the EU judicature, none of the EU Courts has considered it appropriate to examine them. In its judgement, the General Court held that "even supposing that the right of access to the documents held by the Community public authorities, including the ECB, may be regarded as a fundamental right protected by the Community legal order as a general principle of law", the plea of illegality in respect of Article 23.3 of the ECB Rules of Procedure, based on the alleged infringement of such a principle, could not be upheld. The General Court pointed out that fundamental rights cannot be understood as "unfettered prerogatives" and that it is "legitimate that these rights should, if necessary, be subject to certain limits justified by the overall objectives pursued by the Community, on condition that the substance of these rights is left untouched" <ref>Case 4/73 Nold v Commission [1974] ECR 491, paragraph 14</ref>. The General Court held that, as regards the right of access to documents, reasons related to the protection of the public interest or a private interest may legitimately restrict that right.<ref>Pitsiorlas v Council and ECB, paragraph 221-223</ref> -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. +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: @@ -157,19 +165,19 @@ The existence of a "principle of openness" is confirmed by Art. 15 of the Treaty === Charter of Fundamental Rights of the European Union === -Similarly, Article 42 of the Charter of Fundamental Rights of the European Union proclaimed in Nice on 7 December 2000 (‘Charter of Fundamental Rights’) also acknowledges this right: +Similarly, Article 42 of the Charter of Fundamental Rights of the European Union proclaimed in Nice on 7 December 2000 ('Charter of Fundamental Rights') also acknowledges this right: <blockquote>Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to documents of the institutions, bodies, offices and agencies of the Union, whatever their medium.</blockquote> -Article 42 of the Charter of Fundamental Rights of the European Union (‘the Charter’), Article 15(3) TFEU and Article 2(1) of Regulation No 1049/2001 thereby establish a right of access to documents of the institutions. In the context of the European Parliament documents, it should be noted that Article 4 of the Statute for Members of the European Parliament<ref>OJ 2005 L 262, p. 1</ref> provides that documents and electronic records which a Member has received, drafted or sent are not to be treated as Parliament documents unless they have been tabled in accordance with the Rules of Procedure. As Advocate general Kokkot has noted, the documents relating to a legislative procedure which are in the possession of a rapporteur must in principle be regarded as being in the possession of the Parliament. It will at some point in time be necessary to decide whether Article 15 TFEU and Article 42 of the Charter of Fundamental Rights of the European Union allow such documents to be excluded from the right of access in the future.<ref>Opinion Afton Chemical EU:C:2010:258</ref> +Article 42 of the Charter of Fundamental Rights of the European Union ('the Charter'), Article 15(3) TFEU and Article 2(1) of Regulation No 1049/2001 thereby establish a right of access to documents of the institutions. In the context of the European Parliament documents, it should be noted that Article 4 of the Statute for Members of the European Parliament<ref>OJ 2005 L 262, p. 1</ref> provides that documents and electronic records which a Member has received, drafted or sent are not to be treated as Parliament documents unless they have been tabled in accordance with the Rules of Procedure. As Advocate general Kokkot has noted, the documents relating to a legislative procedure which are in the possession of a rapporteur must in principle be regarded as being in the possession of the Parliament. It will at some point in time be necessary to decide whether Article 15 TFEU and Article 42 of the Charter of Fundamental Rights of the European Union allow such documents to be excluded from the right of access in the future.<ref>Opinion Afton Chemical EU:C:2010:258</ref> Moreover, Art. 10 TEU regarding the principle of democracy (especially Article 10(3), echoes the second paragraph of Article 1) and Article 15 TFEU, dealing with good governance, openness, transparency and access to documents. === Article 10 in the European Convention of Human Rights === -The development of the principle of openness in EU law has been accompanied by a parallel development of the case law of the European Court of Human Rights. In Guerra and Others v. Italy, the Strasbourg Court held that freedom to receive information under Art. 10 of the ECHR merely prohibited a State from restricting a person from receiving information that others wished or might be willing to impart to him. It states that freedom could not be construed as imposing on a State, in the circumstances of that case, positive obligations to collect and disseminate information of its own motion <ref>See Guerra and Others v. Italy, 19 February 1998, § 53, Reports of Judgments and Decisions 1998‑I).</ref> Similarly, Társaság a Szabadságjogokért concerned a request for access to information by a non-governmental organisation for the purposes of contributing to public debate. Here, the Court noted that it had recently advanced towards a broader interpretation of the notion of the “freedom to receive information” and thereby towards the recognition of a right of access to information.<ref>Társaság a Szabadságjogokért v. Hungary, no. 37374/05, § 44, 14 April 2009.</ref> +The development of the principle of openness in EU law has been accompanied by a parallel development of the case law of the European Court of Human Rights. In Guerra and Others v. Italy, the Strasbourg Court held that freedom to receive information under Art. 10 of the ECHR merely prohibited a State from restricting a person from receiving information that others wished or might be willing to impart to him. It states that freedom could not be construed as imposing on a State, in the circumstances of that case, positive obligations to collect and disseminate information of its own motion <ref>See Guerra and Others v. Italy, 19 February 1998, § 53, Reports of Judgments and Decisions 1998-I).</ref> Similarly, Társaság a Szabadságjogokért concerned a request for access to information by a non-governmental organisation for the purposes of contributing to public debate. Here, the Court noted that it had recently advanced towards a broader interpretation of the notion of the "freedom to receive information" and thereby towards the recognition of a right of access to information.<ref>Társaság a Szabadságjogokért v. Hungary, no. 37374/05, § 44, 14 April 2009.</ref> -In a recent judgment of 25 June 2013, for the case of Youth Initiative for Human Rights v Serbia,<ref>Application no. 48135/06, available at http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-120955</ref>, the Court unanimously recalled, in its reasoning on admissibility, that the notion of “freedom to receive information” embraces a "right of access to information". The judgment has, in our view correctly, been interpreted as having "established implicitly the right of access”, in that the notion of “freedom to receive information” embraces a right of access to information.<ref>European Parliament Policy Department C on request by the Committee on Civil Liberties, Justice and Home Affairs (LIBE): Openness, transparency and access to documents and information in the European Union, available at http://www.europarl.europa.eu/RegData/etudes/note/join/2013/493035/IPOL-LIBE_NT%282013%29493035_EN.pdf ; see also Dirk Voorhoof, Article 10 of the Convention includes the right of access to data held by an intelligence agency, accessible via http://strasbourgobservers.com/2013/07/08/article-10-of-the-convention-includes-the-right-of-access-to-data-held-by-intelligence-agency/</ref> +In a recent judgment of 25 June 2013, for the case of Youth Initiative for Human Rights v Serbia,<ref>Application no. 48135/06, available at http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-120955</ref>, the Court unanimously recalled, in its reasoning on admissibility, that the notion of "freedom to receive information" embraces a "right of access to information". The judgment has, in our view correctly, been interpreted as having "established implicitly the right of access", in that the notion of "freedom to receive information" embraces a right of access to information.<ref>European Parliament Policy Department C on request by the Committee on Civil Liberties, Justice and Home Affairs (LIBE): Openness, transparency and access to documents and information in the European Union, available at http://www.europarl.europa.eu/RegData/etudes/note/join/2013/493035/IPOL-LIBE_NT%282013%29493035_EN.pdf ; see also Dirk Voorhoof, Article 10 of the Convention includes the right of access to data held by an intelligence agency, accessible via http://strasbourgobservers.com/2013/07/08/article-10-of-the-convention-includes-the-right-of-access-to-data-held-by-intelligence-agency/</ref> In a concurring opinion, judges Sajó and Vučinić highlighted the general need to interpret Article 10 in conformity with developments in international law regarding freedom of information, which entails access to information held by public bodies referring, in particular, to Human Rights Committee, General Comment No. 34 <ref>Document CCPR/C/GC/34 of 12 September 2011, §§ 18, 3, 15)</ref>. @@ -181,21 +189,21 @@ Moreover, to give effect to the right of access to information, States Parties s <blockquote>States Parties should take account of the extent to which developments in information and communication technologies, such as internet and mobile based electronic information dissemination systems, have substantially changed communication practices around the world. There is now a global network for exchanging ideas and opinions that does not necessarily rely on the traditional mass media intermediaries. States parties should take all necessary steps to foster the independence of these new media and to ensure access of individuals thereto.</blockquote> -The principle of openness and the right of access to information are directed ‒ among other things ‒ at ensuring that decisions are taken as openly as possible and closely as possible to the citizens, in other words, it is a basic democratic tenet, where citizens must see what happens within the institutions (which is one of the means through which accountability of the institutions and their agents is ensured) ''and'' the institutions have an obligation to at least listen to what citizens have to say (in other words, participation and representation of interests). <ref >Interesting a reading is the work {{cite web | title = Transparency in Three Dimensions | url = http://illinoislawreview.org/wp-content/ilr-content/articles/2011/4/Schauer.pdf | year = 2011 | author = Schauer, Frederick | journal = University of Illinois Law Review | pages = 1339–1358 | volume = 2011 | issue = 4 | accessdate = 2014-08-08}} although in the US constitutional environment</ref>. +The principle of openness and the right of access to information are directed - among other things - at ensuring that decisions are taken as openly as possible and closely as possible to the citizens, in other words, it is a basic democratic tenet, where citizens must see what happens within the institutions (which is one of the means through which accountability of the institutions and their agents is ensured) ''and'' the institutions have an obligation to at least listen to what citizens have to say (in other words, participation and representation of interests). <ref >Interesting a reading is the work {{cite web | title = Transparency in Three Dimensions | url = http://illinoislawreview.org/wp-content/ilr-content/articles/2011/4/Schauer.pdf | year = 2011 | author = Schauer, Frederick | journal = University of Illinois Law Review | pages = 1339-1358 | volume = 2011 | issue = 4 | accessdate = 2014-08-08}} although in the US constitutional environment</ref>. == Legislative Openness == Ever since the Treaty of Amsterdam the concept of "the legislative" has had a place in the language of the EU Treaties. Under the second subparagraph of Article 207(3) EC the Council was already required to define "the cases in which it is to be regarded as acting in its legislative capacity" to allow the right of access to documents under Article 255(1) EC to be exercised. -In the realm of secondary legislation, Recital 6 in the Preamble to Regulation No 1049/2001 states that "[w]ider access should be granted to documents in cases where the institutions are acting in their legislative capacity." The Treaty of Amsterdam enshrined both the right of access to documents of the institutions, on the one hand, and referred to the special consideration to be given to the ‘legislative capacity’ of the Council, on the other. It has been argued that this indicated that the appropriate context for exercising the right of access was where the Council was acting in a "legislative capacity", thus acknowledging the close relationship that, in principle, exists between legislative procedures and the principles of openness and transparency <ref>Opinion of Advocate General Cruz Villalón in Case C‑280/11 P Council v Access Info Europe, EU:C:2013:325</ref>. +In the realm of secondary legislation, Recital 6 in the Preamble to Regulation No 1049/2001 states that "[w]ider access should be granted to documents in cases where the institutions are acting in their legislative capacity." The Treaty of Amsterdam enshrined both the right of access to documents of the institutions, on the one hand, and referred to the special consideration to be given to the 'legislative capacity' of the Council, on the other. It has been argued that this indicated that the appropriate context for exercising the right of access was where the Council was acting in a "legislative capacity", thus acknowledging the close relationship that, in principle, exists between legislative procedures and the principles of openness and transparency <ref>Opinion of Advocate General Cruz Villalón in Case C-280/11 P Council v Access Info Europe, EU:C:2013:325</ref>. On a comparative note, and despite the differences that may exist between national legislation and EU "legislation", or between Member State legislatures and the EU "legislature", the "legislative procedure" by which the Council and the European Parliament are bound, is conceptually very close to the national "legislative procedure", speaking from the point of view of its underlying purpose and thus the principles on which it must be based. In the end, they have in common the need to satisfy the imperative requirements of democratic legitimacy. -As the Advocate General correctly pointed out in Case C‑280/11 P Council v Access Info Europe: +As the Advocate General correctly pointed out in Case C-280/11 P Council v Access Info Europe: -<blockquote>’Legislating’ is, by definition, a law-making activity that in a democratic society can only occur through the use of a procedure that is public in nature and, in that sense, ‘transparent’. Otherwise, it would not be possible to ascribe to ‘law’ the virtue of being the expression of the will of those that must obey it, which is the very foundation of its legitimacy as an indisputable edict. In a representative democracy, it must be possible for citizens to find out about the legislative procedure, since if this were not so, citizens would be unable to hold their representatives politically accountable, as they must be by virtue of their electoral mandate. +<blockquote>'Legislating' is, by definition, a law-making activity that in a democratic society can only occur through the use of a procedure that is public in nature and, in that sense, 'transparent'. Otherwise, it would not be possible to ascribe to 'law' the virtue of being the expression of the will of those that must obey it, which is the very foundation of its legitimacy as an indisputable edict. In a representative democracy, it must be possible for citizens to find out about the legislative procedure, since if this were not so, citizens would be unable to hold their representatives politically accountable, as they must be by virtue of their electoral mandate. -In the context of this public procedure, transparency therefore plays a key role that is somewhat different from its role in administrative procedures. While, in administrative procedures, transparency serves the very specific purpose of ensuring that the authorities are subject to the rule of law, in the legislative procedure it serves the purpose of legitimising the law itself and with it the legal order as a whole.<ref>Opinion of Advocate General Cruz Villalón in Case C‑280/11 P Council v Access Info Europe, EU:C:2013:325</ref></blockquote> +In the context of this public procedure, transparency therefore plays a key role that is somewhat different from its role in administrative procedures. While, in administrative procedures, transparency serves the very specific purpose of ensuring that the authorities are subject to the rule of law, in the legislative procedure it serves the purpose of legitimising the law itself and with it the legal order as a whole.<ref>Opinion of Advocate General Cruz Villalón in Case C-280/11 P Council v Access Info Europe, EU:C:2013:325</ref></blockquote> In its judgment in Sweden and Turco v Council,<ref>(EU:C:2008:374)</ref> the Court held that it is for the Council to balance the particular interest to be protected by non-disclosure of the document concerned against, inter alia, the public interest in the document being made accessible in the light of the advantages stemming from increased openness. It states that when the Council is acting in its legislative capacity, it is particularly relevant that openness be considered, given that it enables citizens to participate more closely in the decision-making process, guarantees that the administration enjoys greater legitimacy, and is more effective and more accountable to the citizen in a democratic system. @@ -205,21 +213,21 @@ The following Recitals in the Preamble to Regulation No 1049/2001 are relevant i (2) Openness 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. Openness contributes to strengthening the principles of democracy and respect for fundamental rights as laid down in Article 6 of the EU Treaty and in the Charter of Fundamental Rights of the European Union. -(6) Wider access should be granted to documents in cases where the institutions are acting in their legislative capacity, including under delegated powers, while at the same time preserving the effectiveness of the institutions’ decision-making process. Such documents should be made directly accessible to the greatest possible extent.</blockquote> +(6) Wider access should be granted to documents in cases where the institutions are acting in their legislative capacity, including under delegated powers, while at the same time preserving the effectiveness of the institutions' decision-making process. Such documents should be made directly accessible to the greatest possible extent.</blockquote> 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: -<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. +<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.<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 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 === -The European Union, the Member States and 19 other States are parties to the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (‘the Convention’), which entered into force on 30 October 2001<ref>Aarhus Convention, available at http://www.unece.org/env/pp/treatytext.html</ref>. The Convention is based on three ‘pillars’ – access to information, public participation, and access to justice. Its preamble includes the following recitals: +The European Union, the Member States and 19 other States are parties to the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters ('the Convention'), which entered into force on 30 October 2001<ref>Aarhus Convention, available at http://www.unece.org/env/pp/treatytext.html</ref>. The Convention is based on three 'pillars' - access to information, public participation, and access to justice. Its preamble includes the following recitals: <blockquote>Recognising that, in the field of the environment, improved access to information and public participation in decision-making enhance the quality and the implementation of decisions, contribute to public awareness of environmental issues, give the public the opportunity to express its concerns and enable public authorities to take due account of such concerns, @@ -227,7 +235,7 @@ Aiming thereby to further the accountability of and transparency in decision-mak Recognising the desirability of transparency in all branches of government and inviting legislative bodies to implement the principles of this Convention in their proceedings,</blockquote> -Mirroring Article 2 of the Convention, the second sentence of Article 2(2) in Directive 2003/4/EC on public access to environmental information<ref>Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC (OJ 2003 L 41, p. 26) (‘the Directive’).</ref>allows Member States to exclude from the scope of the Directive bodies otherwise falling within the definition of "Public authority", "when acting in a judicial or legislative capacity". +Mirroring Article 2 of the Convention, the second sentence of Article 2(2) in Directive 2003/4/EC on public access to environmental information<ref>Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC (OJ 2003 L 41, p. 26) ('the Directive').</ref>allows Member States to exclude from the scope of the Directive bodies otherwise falling within the definition of "Public authority", "when acting in a judicial or legislative capacity". The Convention was approved on behalf of the European Community by Council Decision 2005/370/EC<ref>Council Decision 2005/370/EC of 17 February 2005 on the conclusion, on behalf of the European Community, of the Convention on access to information, public participation in decision-making and access to justice in environmental matters (OJ 2005 L 124, p. 1)</ref>, the annex to which contains a declaration by the European Community which reads, in so far as relevant, as follows: @@ -241,17 +249,17 @@ In ratifying the Convention on 20 May 2005, Sweden lodged a reservation which, i In accordance with Directive 2003/4/EC public authorities must in principle be required to make environmental information held by or for them available to any applicant at his request. However, the Directive permits Member States to exclude public bodies acting in a legislative capacity from the definition of a "public authority". In addition, access may be refused to certain types of documents, or if disclosure would adversely affect the confidentiality of proceedings of authorities where such confidentiality is provided for by law. -In her opinion in Flachglas Torgau (Case C‑204/09), Advocate General Sharpstone summarised the dilemma as follows: +In her opinion in Flachglas Torgau (Case C-204/09), Advocate General Sharpstone summarised the dilemma as follows: <blockquote> -53. [...] The performance of both judicial and legislative functions could be impaired if information of all kinds concerning each and every stage of the process – analysing the relevant issues and data, deriving conclusions from that analysis and formulating a final decision – could be demanded of right at all times by any member of the public. It seems reasonable to assume that considerations of that kind were in the minds of those who initially drafted the first of the instruments concerned and have remained, albeit implicitly, in the minds of those who have participated in the drafting of the subsequent instruments. +The performance of both judicial and legislative functions could be impaired if information of all kinds concerning each and every stage of the process - analysing the relevant issues and data, deriving conclusions from that analysis and formulating a final decision - could be demanded of right at all times by any member of the public. It seems reasonable to assume that considerations of that kind were in the minds of those who initially drafted the first of the instruments concerned and have remained, albeit implicitly, in the minds of those who have participated in the drafting of the subsequent instruments. -54. Yet it is by no means desirable, nor would it appear consistent with the overall thrust of the Convention or the Directive, for legislative or judicial activity to take place in impenetrable secrecy. It is generally considered necessary, in order to ensure the rule of law and democratic government, for both courts of law and legislative assemblies to operate in the presence of the public (or at least of the media as an intermediary) other than in wholly exceptional circumstances – and it is, moreover, generally accepted that such circumstances are more common in the course of judicial than of legislative activity. Other than in wholly exceptional circumstances, therefore, in neither case should decisions be taken on the basis of facts, or for reasons, which are concealed from citizens.<ref>Opinion Flachglas Torgau EU:C:2011:413</ref> +Yet it is by no means desirable, nor would it appear consistent with the overall thrust of the Convention or the Directive, for legislative or judicial activity to take place in impenetrable secrecy. It is generally considered necessary, in order to ensure the rule of law and democratic government, for both courts of law and legislative assemblies to operate in the presence of the public (or at least of the media as an intermediary) other than in wholly exceptional circumstances - and it is, moreover, generally accepted that such circumstances are more common in the course of judicial than of legislative activity. Other than in wholly exceptional circumstances, therefore, in neither case should decisions be taken on the basis of facts, or for reasons, which are concealed from citizens.<ref>Opinion Flachglas Torgau EU:C:2011:413, paragraphs 53 and 54</ref> </blockquote> == 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'' @@ -269,16 +277,16 @@ The greatest possible amount, degree, or extent; the maximum: worked every day t 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. -This means that the balancing test at hand should at least equal, and may even exceed, the one laid down in the case-law of the Court under the Principle of Openness. To this effect, the Court has held that assessing whether or not information is confidential therefore requires that the legitimate interests opposing disclosure be weighed against the public interest in the activities of the Community institutions taking place as openly as possible<ref>General Court Case T‑237/05 Éditions Jacob v Commission [2010] ECR II‑2245, citing, to that effect, Bank Austria Creditanstalt v Commission, paragraph 71, and Case T‑474/04 Pergan Hilfsstoffe für industrielle Prozesse v Commission [2007] ECR II‑4225, paragraphs 63 to 66.</ref>. +This means that the balancing test at hand should at least equal, and may even exceed, the one laid down in the case-law of the Court under the Principle of Openness. To this effect, the Court has held that assessing whether or not information is confidential therefore requires that the legitimate interests opposing disclosure be weighed against the public interest in the activities of the Community institutions taking place as openly as possible<ref>General Court Case T-237/05 Éditions Jacob v Commission [2010] ECR II-2245, citing, to that effect, Bank Austria Creditanstalt v Commission, paragraph 71, and Case T-474/04 Pergan Hilfsstoffe für industrielle Prozesse v Commission [2007] ECR II-4225, paragraphs 63 to 66.</ref>. -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: +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). +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). +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> +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, paragraphs 51-53</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> @@ -291,7 +299,7 @@ It is also clear that Rule 115 section 1 does not just refer to the fact that th Therefore it is safe to conclude that simply the publicity of the works is not sufficient. On the other hand, it is evident that those parts that need to be non-public shall be subtracted from the principle of openness, but this shall be an exception to the rule. -It should be noted that one of the open issues during the negotiations in the Council on the reform of regulation 1049/2001, is whether some reforms are needed to comply with the Treaty of Lisbon, which obliges the EU institutions to take decisions “as openly and as closely as possible to the citizen” and which requires a transparent legislative process. As has been The European Charter of Fundamental Rights also now recognises the right of access to EU documents “whatever their medium”, as a fundamental human right. At the very least the Treaties extend the scope of the right of access to all EU bodies and it is not clear whether this requires a legislative amendment to do away with current discrepancies such as different time frames for different EU bodies. +It should be noted that one of the open issues during the negotiations in the Council on the reform of regulation 1049/2001, is whether some reforms are needed to comply with the Treaty of Lisbon, which obliges the EU institutions to take decisions "as openly and as closely as possible to the citizen" and which requires a transparent legislative process. As has been The European Charter of Fundamental Rights also now recognises the right of access to EU documents "whatever their medium", as a fundamental human right. At the very least the Treaties extend the scope of the right of access to all EU bodies and it is not clear whether this requires a legislative amendment to do away with current discrepancies such as different time frames for different EU bodies. == Neighbouring concepts == @@ -299,7 +307,7 @@ It should be noted that one of the open issues during the negotiations in the Co 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". -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. +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. @@ -313,11 +321,11 @@ In Recital 9, the PSI Directive purports to build on the existing access regimes 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; +'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; +'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; +'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> 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. @@ -326,7 +334,7 @@ Article 11 of the PSI Directive provides a prohibition of exclusive arrangements === The G8 Open Data Charter === -In June 2013, the EU endorsed the G8 Open Data Charter and, with other G8 members, committed to implementing a number of open data activities in the G8 members’ Collective Action Plan. Commitment 1 of the Collective Action Plan required each member to publish by October 2013 details of how they would implement the Open Data Charter according to their individual national frameworks. In the EU implementation of the G8 Open Data Charter, it is stressed that compliance with the G8 Open Data Charter and para. 47 of the June 2013 G8 communique is fully consistent with existing EU policy. Particular reference is in particular made to "the many initiatives already adopted at EU level, including the revised Directive on the re-use of public sector information, the EU Open Data Portal and the new Commission rules on the re-use of its own documents". +In June 2013, the EU endorsed the G8 Open Data Charter and, with other G8 members, committed to implementing a number of open data activities in the G8 members' Collective Action Plan. Commitment 1 of the Collective Action Plan required each member to publish by October 2013 details of how they would implement the Open Data Charter according to their individual national frameworks. In the EU implementation of the G8 Open Data Charter, it is stressed that compliance with the G8 Open Data Charter and para. 47 of the June 2013 G8 communique is fully consistent with existing EU policy. Particular reference is in particular made to "the many initiatives already adopted at EU level, including the revised Directive on the re-use of public sector information, the EU Open Data Portal and the new Commission rules on the re-use of its own documents". In its self assessment, the European Union stressed that it "has for years been stressing the goal of opening up data as a resource for innovative products and services and as a means of addressing societal challenges and fostering government transparency. Indeed, better use of data, including government data, can help to power the economy, serving as a basis for a wide range of information products and services and improving the efficiency of the public sector and of different segments of industry. The European Union aims to be at the forefront of public administrations in terms of openness in relation to its own documents." It is noteworthy that Open Data within the European Union is first and foremost seen as "a resource for innovative products and services" with economic potential, and only seem to regard Open Data to hold a secondary function in fostering Open Government. @@ -353,7 +361,7 @@ The EU has furthermore committed to promoting the application of the principles * expands the scope of application of the EU Directive to certain cultural institutions; -* defines ‘machine-readable format’ and ‘open format’ and encouraging the use of those formats;<ref>EU implementation of the G8 Open Data Charter, EU Commitment 4: Promoting the application of the principles of the G8 Open Data Charter in all 28 EU Member States, page 8, available at http://ec.europa.eu/information_society/newsroom/cf/document.cfm?action=display&doc_id=3489</ref></blockquote> +* defines 'machine-readable format' and 'open format' and encouraging the use of those formats;<ref>EU implementation of the G8 Open Data Charter, EU Commitment 4: Promoting the application of the principles of the G8 Open Data Charter in all 28 EU Member States, page 8, available at http://ec.europa.eu/information_society/newsroom/cf/document.cfm?action=display&doc_id=3489</ref></blockquote> === Re-use of EU Institution documents === @@ -375,7 +383,7 @@ On 18 March 2010, the Swedish Government presented its Bill (2009/10:175) on Pub The survey shows that five central public sector bodies state that they have granted exclusive rights for one or more companies to re-use the respective bodies' documents. The questionnaire and interviews implemented by the Agency for Public Management show that several changes have taken place over the past year in terms of phasing out exclusive rights, if any. The survey shows, moreover, that there are unclear points regarding how the notion of 'exclusive rights' (or 'arrangements') should be defined. Based on the responses to the Agency's questionnaire survey, we find wide-ranging perceptions of differences between licensing agreements, on the one hand, and exclusive rights on the other. According to the Agency, there is substantial uncertainty regarding how the term 'exclusive right' should be interpreted. The Swedish Agency for Public Management therefore draws the conclusion that it is imperative to define the terms 'licensing agreement' and 'exclusive right', and also to assist both central and local public sector bodies in their work of developing non-discriminatory licensing agreements.<ref> Statskontoret, A survey of exclusive rights or arrangements (2010:21), available at http://www.statskontoret.se/in-english/publications/2010/a-survey-of-exclusive-rights-or-arrangements/.</ref> -It should be noted that in March 2012, the Swedish Competition Authority closed an investigation with regard to a possible abuse of a dominant position by the Swedish Patent and Registration Office (SPRO) regarding its Trademark register. The Swedish Patent and Registration Office (SPRO) started to offer from 2010 free access to the Trademark register to the downstream end-user market. Customers on the upstream wholesale market were offered more detailed data in different formats (so-called ''"register lifted data"'') for a one-time fee and then a yearly fee. Before 2010, SPRO had offered access to the database to end-users for a fee. The SPRO motivated the decision to eliminate the fee with that free access was within the public task assigned to it by the government. The complaining (incumbent) re-user alleged that it was likely it will be squeezed out of the market by SPRO offering a competing product for free.<ref> Björn Lundqvist and Ylva Forsberg (Stockholm University), Marc de Vries (Citadel Consulting) and Mariateresa Maggiolino (Bocconi), LAPSI 2.0 – competition law issues position paper, available at http://www.lapsi-project.eu/sites/lapsi-project.eu/files/LAPSIcompetitionartikelDraftII-1.pdf; Elisabeth Eklund and Oscar Jansson, Lower fees for re-use of public sector information – the PSI Directive and cases from the Swedish Competition Authority, available at http://www.worldservicesgroup.com/publications.asp?action=article&artid=4792; see also Björn Lundqvist, Marc de Vries, Emma Linklater och Liisa Rajala Malmgren, Business Activity and Exclusive Right in the Swedish PSI Act, Swedish Competition Authority, Uppdragsforskningsrapport 2011:2, available at http://www.konkurrensverket.se/upload/Filer/Trycksaker/Rapporter/uppdragsforskning/forsk_rap_2011-2.pdf.</ref>. This case shows that the underlying economic rationale for the PSI Directive can actually run counter the stated objective of fostering an Open Government. +It should be noted that in March 2012, the Swedish Competition Authority closed an investigation with regard to a possible abuse of a dominant position by the Swedish Patent and Registration Office (SPRO) regarding its Trademark register. The Swedish Patent and Registration Office (SPRO) started to offer from 2010 free access to the Trademark register to the downstream end-user market. Customers on the upstream wholesale market were offered more detailed data in different formats (so-called ''"register lifted data"'') for a one-time fee and then a yearly fee. Before 2010, SPRO had offered access to the database to end-users for a fee. The SPRO motivated the decision to eliminate the fee with that free access was within the public task assigned to it by the government. The complaining (incumbent) re-user alleged that it was likely it will be squeezed out of the market by SPRO offering a competing product for free.<ref> Björn Lundqvist and Ylva Forsberg (Stockholm University), Marc de Vries (Citadel Consulting) and Mariateresa Maggiolino (Bocconi), LAPSI 2.0 - competition law issues position paper, available at http://www.lapsi-project.eu/sites/lapsi-project.eu/files/LAPSIcompetitionartikelDraftII-1.pdf; Elisabeth Eklund and Oscar Jansson, Lower fees for re-use of public sector information - the PSI Directive and cases from the Swedish Competition Authority, available at http://www.worldservicesgroup.com/publications.asp?action=article&artid=4792; see also Björn Lundqvist, Marc de Vries, Emma Linklater och Liisa Rajala Malmgren, Business Activity and Exclusive Right in the Swedish PSI Act, Swedish Competition Authority, Uppdragsforskningsrapport 2011:2, available at http://www.konkurrensverket.se/upload/Filer/Trycksaker/Rapporter/uppdragsforskning/forsk_rap_2011-2.pdf.</ref>. This case shows that the underlying economic rationale for the PSI Directive can actually run counter the stated objective of fostering an Open Government. == Does Openness mean "accessible"? == @@ -389,7 +397,7 @@ Both of the mentioned standardisation rules have been mandated by some Member St The Commission reports that since January 2010, all new EUROPA websites have been created in compliance with WCAG 2.0, level AA success criteria.<ref>{{cite web|title=Web Accessibility|url=http://ec.europa.eu/digital-agenda/en/web-accessibility|publisher=European Commission|accessdate=16 October 2014}}</ref> and this includes the website of the European Parliament. <ref>{{cite web|title=Accessibility of the Europarl website|url=http://www.europarl.europa.eu/portal/en/accessibility|publisher=European Parliament|accessdate=16 October 2014}}</ref> -However, "accessibility" seems to extend to much more than just web view, as the flow of information is certainly passing through means that go beyond the web and the Internet in general. There is, therefore, a wider need to ensure accessibility by allowing that the IT systems be interoperable and technology neutral, so that accessibility is ensured not only by providing accessible content, but by allowing any technology provider to ensure that they can build accessible tools using the content in whichever form it can be presented, and ‒ as much as possible ‒ to make tools to tackle specific problems for people with different impairments for whom the simple accessibility criteria are insufficient. +However, "accessibility" seems to extend to much more than just web view, as the flow of information is certainly passing through means that go beyond the web and the Internet in general. There is, therefore, a wider need to ensure accessibility by allowing that the IT systems be interoperable and technology neutral, so that accessibility is ensured not only by providing accessible content, but by allowing any technology provider to ensure that they can build accessible tools using the content in whichever form it can be presented, and - as much as possible - to make tools to tackle specific problems for people with different impairments for whom the simple accessibility criteria are insufficient. == Does "accessible" mean (also) Free and Open? == @@ -397,21 +405,20 @@ If "transparency" here means "directly open, transparent and accessible to all t In an interconnected world this goal can be efficiently achieved by means of technology, in particular through telecommunication technology. This seems a sufficiently self-evident and commonly accepted concept that does not deserve further discussion and evidence. -Telecommunication technology cannot exist without standards. This is also quite easily understood and common ground. <ref name="ITU in brief">"Standards are critical to the interoperability of ICTs and whether we exchange voice, video or data messages, standards enable global communications by ensuring that countries’ ICT networks and devices are speaking the same language." From {{cite web|title=ITU in Brief|url=http://www.itu.int/en/ITU-T/about/Pages/default.aspx|accessdate=25 July 2014|ref=ITU}}</ref> +Telecommunication technology cannot exist without standards. This is also quite easily understood and common ground. <ref name="ITU in brief">"Standards are critical to the interoperability of ICTs and whether we exchange voice, video or data messages, standards enable global communications by ensuring that countries' ICT networks and devices are speaking the same language." From {{cite web|title=ITU in Brief|url=http://www.itu.int/en/ITU-T/about/Pages/default.aspx|accessdate=25 July 2014|ref=ITU}}</ref> Therefore "openness" shall mean that the external communication channels, of all sort, must use standards, which (or the many possible) standard(s) remaining yet to be assessed. All signs point in the direction that standards involved in a public institution shall be "'''open'''" <ref>For a very large collection of reference in this regard [http://www.opengovstandards.org/ Opengovstandards.org] is probably the best source. Quoting from it "Transparency means that information about the activities of public bodies is created and is available to the public, with limited exceptions, in a timely manner, in open data formats and without restrictions on reuse. Transparency mechanisms must include the disclosure of information in response to requests from the public and proactive publication by public bodies. Key information about private bodies should be available either directly or via public bodies." </ref> Quite in the same direction goes the seminal work of De Nardis and Tam <ref>DeNardis, Dr. Laura and Tam, Eric, Open Documents and Democracy: A Political Basis for Open Document Standards (November 1, 2007). Available at SSRN: http://ssrn.com/abstract=1028073 or http://dx.doi.org/10.2139/ssrn.1028073</ref> from which a citation is indeed appropriate: -<blockquote>With regard to standards that directly affect conditions relevant to democracy, the most prominent examples consist of standards that affect citizens’ access to information concerning government decisions as well as standards concerning government records. The importance of accountability renders openness of implementation and use similarly important in this context. +<blockquote>With regard to standards that directly affect conditions relevant to democracy, the most prominent examples consist of standards that affect citizens' access to information concerning government decisions as well as standards concerning government records. The importance of accountability renders openness of implementation and use similarly important in this context. [...] Consequently, the standards that affect such conditions must be continuously free of barriers to the widespread use of the relevant access technology. Democratic values are inconsistent with differential costs in the form of royalty fees or interoperability barriers that potentially result in unequal citizen access to such information. </blockquote> - -It is also quite self-evident that transmitting information to an outlet that cannot be used by the intended recipient equals to opaqueness, as openness must be a characteristic of the entire space between the object and the observer. As said before, while having total openness – which means totally unencumbered space – is more a reference than a realistic goal, getting as close as practically possible to it is the yardstick of compliance with the rule in hand.<ref>{{cite web|last1=Updegrove|first1=Andrew|title=With Access and Information for All|url=http://www.consortiuminfo.org/bulletins/feb09.php#editorial|website=Consortium Info|accessdate=25 July 2014}}</ref> <ref>{{cite web|last1=Updegrove|first1=Andrew|title=How Open Must an Open Government Platform be?|url=http://www.consortiuminfo.org/bulletins/feb09.php#feature|accessdate=25 July 2014}}</ref> +It is also quite self-evident that transmitting information to an outlet that cannot be used by the intended recipient equals to opaqueness, as openness must be a characteristic of the entire space between the object and the observer. As said before, while having total openness - which means totally unencumbered space - is more a reference than a realistic goal, getting as close as practically possible to it is the yardstick of compliance with the rule in hand.<ref>{{cite web|last1=Updegrove|first1=Andrew|title=With Access and Information for All|url=http://www.consortiuminfo.org/bulletins/feb09.php#editorial|website=Consortium Info|accessdate=25 July 2014}}</ref> <ref>{{cite web|last1=Updegrove|first1=Andrew|title=How Open Must an Open Government Platform be?|url=http://www.consortiuminfo.org/bulletins/feb09.php#feature|accessdate=25 July 2014}}</ref> It is reasonable that the means and infrastructure to be used to achieve the goal of openness are a matter of technical decisions in a scenario of non-unlimited resources. It also seems reasonable that once a high level decision on which channel is more conveniently adopted, at an early stage of the decisional process, and throughout the life cycle of the adopted solutions, the decision makers shall measure how easily accessible the channel is. @@ -438,7 +445,7 @@ The European Interoperability Framework was conceived in 2003 and defined as "[a 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: +To attain interoperability in the context of pan-European eGovernment services, guidance needs to focus on open standards. 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.). @@ -463,7 +470,7 @@ Reportedly due to intense lobbying by industry representatives,<ref>{{cite we 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] +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 in the EIFv2 is far more vague than the one found in the EIFv1: @@ -480,7 +487,7 @@ If the openness principle is applied in full: "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> +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> === The UK definition === @@ -489,7 +496,7 @@ Whether it is advisable or not to adopt a firm stance on Royalty Free standard c One clear Royalty Free stance with really far reaching requirements case is the one adopted by the UK Government: <blockquote> -'''12. Open standard - definition''' +Open standard - definition<ref>{{cite web|last1=UK Cabinet|title=Open Standards principles|url=https://www.gov.uk/government/publications/open-standards-principles/open-standards-principles#open-standard---definition|accessdate=11 November 2014|ref=UK-open}}</ref> Open standards for software interoperability, data and document formats, which exhibit all of the following criteria, are considered consistent with this policy: @@ -503,28 +510,24 @@ Fair access - the standard is published, thoroughly documented and publicly avai Market support - other than in the context of creating innovative solutions, the standard is mature, supported by the market and demonstrates platform, application and vendor independence. -Rights - rights essential to implementation of the standard, and for interfacing with other implementations which have adopted that same standard, are licensed on a royalty free basis that is compatible with both open source (see a list of open source licences approved by the Open Source Initiative via their License Review Process) and proprietary licensed solutions. These rights should be irrevocable unless there is a breach of licence conditions.<ref>{{cite web|last1=UK Cabinet|title=Open Standards principles|url=https://www.gov.uk/government/publications/open-standards-principles/open-standards-principles#open-standard---definition|accessdate=11 November 2014|ref=UK-open}}</ref> +Rights - rights essential to implementation of the standard, and for interfacing with other implementations which have adopted that same standard, are licensed on a royalty free basis that is compatible with both open source (see a list of open source licences approved by the Open Source Initiative via their License Review Process) and proprietary licensed solutions. These rights should be irrevocable unless there is a breach of licence conditions. </blockquote> === The Indian definition (an example of strictest approach) === Another very strict definition is the one for India's Government: <blockquote> -'''4.1 Mandatory Characteristics''' - -An Identified Standard will qualify as an “Open Standard”, if it meets the following criteria: - -4.1.1 Specification document of the Identified Standard shall be available with or without a nominal fee. - -4.1.2 The Patent claims necessary to implement the Identified Standard shall be made available on a Royalty-Free basis for the life time of the Standard. - -4.1.3 Identified Standard shall be adopted and maintained by a not-for-profit organization, wherein all stakeholders can opt to participate in a transparent, collaborative and consensual manner. - -4.1.4 Identified Standard shall be recursively open as far as possible. - -4.1.5 Identified Standard shall have technology-neutral specification. - -4.1.6 Identified Standard shall be capable of localization support, where applicable, for all Indian official Languages for all applicable domains.<ref name="Policy in India">{{cite web|last1=Government of India|title=Policy on Open Standards for e-Governance|url=https://egovstandards.gov.in/sites/default/files/Published_Policy_Framework_Document/Policy%20on%20Open%20Standards%20for%20e-Governance.pdf|accessdate=25 July 2014|ref=india}}</ref> +Mandatory Characteristics<ref name="Policy in India">{{cite web|last1=Government of India|title=Policy on Open Standards for e-Governance|url=https://egovstandards.gov.in/sites/default/files/Published_Policy_Framework_Document/Policy%20on%20Open%20Standards%20for%20e-Governance.pdf|accessdate=25 July 2014|ref=india}}</ref> + +An Identified Standard will qualify as an "Open Standard", if it meets the following criteria: +<ol> +<li>Specification document of the Identified Standard shall be available with or without a nominal fee.</li> +<li>The Patent claims necessary to implement the Identified Standard shall be made available on a Royalty-Free basis for the life time of the Standard.</li> +<li>Identified Standard shall be adopted and maintained by a not-for-profit organization, wherein all stakeholders can opt to participate in a transparent, collaborative and consensual manner.</li> +<li>Identified Standard shall be recursively open as far as possible.</li> +<li>Identified Standard shall have technology-neutral specification.</li> +<li>Identified Standard shall be capable of localization support, where applicable, for all Indian official Languages for all applicable domains.</li> +</ol> </blockquote> === Many more definitions === @@ -539,15 +542,15 @@ RFCs are akin to formal standards, because an authoritative and documented sourc They should not be underestimated, as they are at the foundation of some of the most important and widely used protocols, such as the protocols that make the Internet email system <ref>e.g., the IMAP Protocols, see among them {{cite web|title=IMAP protcol, RFC1064|url=http://tools.ietf.org/html/rfc1064|accessdate=25 July 2014}}</ref> -IETF's RFCs are generally considered Open Standards, and are commonly understood as "Royalty Free" Open Standards, although the "IPR policies" (the rules according to which technologies can be introduced into the RFCs depending on the "Intellectual Property Rights" – mostly patents rights – are claimed by the contributing party) allow for royalty-bearing licensing of the included technologies. <ref>See IETF RFC 3979{{cite web|title=IETF, RFC 3979,|url=https://datatracker.ietf.org/doc/rfc3979/?include_text=1|accessdate=25 July 2014}}</ref> +IETF's RFCs are generally considered Open Standards, and are commonly understood as "Royalty Free" Open Standards, although the "IPR policies" (the rules according to which technologies can be introduced into the RFCs depending on the "Intellectual Property Rights" - mostly patents rights - are claimed by the contributing party) allow for royalty-bearing licensing of the included technologies. <ref>See IETF RFC 3979{{cite web|title=IETF, RFC 3979,|url=https://datatracker.ietf.org/doc/rfc3979/?include_text=1|accessdate=25 July 2014}}</ref> == Free and Open Source Software (FOSS) == ==== Definitions ==== -There are two separate definitions on what is Free and what is Open Source Software.<ref name=piana_eup_juri>For an historical and general overview of Free and Open Source Software we refer to a briefing paper prepared for the Juri Commitee by Carlo Piana, which covers much of the background of Free Software {{cite journal|last1=Piana|first1=Carlo|title=A discussion of the different software licensing regimes|journal=Policy Department C: Citizens' Rights and Constitutional Affairs, Workshop: Legal aspects of free and open source software, Tuesday, 9 July 2013|pages=30-49|url=http://www.europarl.europa.eu/document/activities/cont/201307/20130708ATT69346/20130708ATT69346EN.pdf|accessdate=7 August 2014}}</ref> +There are two separate definitions on what is Free and what is Open Source Software.<ref name=piana_eup_juri>For an historical and general overview of Free and Open Source Software we refer to a briefing paper prepared for the Juri Commitee by Carlo Piana, which covers much of the background of Free Software {{cite journal|last1=Piana|first1=Carlo|title=A discussion of the different software licensing regimes|journal=European Parliament, Policy Department C: Citizens' Rights and Constitutional Affairs, Workshop: Legal aspects of free and open source software, Tuesday, 9 July 2013|pages=30-49|url=http://www.europarl.europa.eu/document/activities/cont/201307/20130708ATT69346/20130708ATT69346EN.pdf|accessdate=7 August 2014}}</ref> -* The Free Software Definition (by the Free Software Foundation): +The Free Software Definition (by the Free Software Foundation)<ref>{{cite web|title=What is free software - The Free Software Definition|url=https://gnu.org/philosophy/free-sw.html|accessdate=7 August 2014}}</ref>: <blockquote> A program is free software if the program's users have the four essential freedoms: @@ -555,11 +558,10 @@ A program is free software if the program's users have the four essential freedo * The freedom to run the program as you wish, for any purpose (freedom 0). * The freedom to study how the program works, and change it so it does your computing as you wish (freedom 1). Access to the source code is a precondition for this. * The freedom to redistribute copies so you can help your neighbor (freedom 2). -* The freedom to distribute copies of your modified versions to others (freedom 3). By doing this you can give the whole community a chance to benefit from your changes. Access to the source code is a precondition for this.<ref>{{cite web|title=What is free software - The Free Software Definition|url=https://gnu.org/philosophy/free-sw.html|accessdate=7 August 2014}}</ref></blockquote> - -* The Open Source Definition (by the Open Source Initiative) +* The freedom to distribute copies of your modified versions to others (freedom 3). By doing this you can give the whole community a chance to benefit from your changes. Access to the source code is a precondition for this. +</blockquote> -This is a slightly more verbose definition (only headlines are provided, for brevity): +The Open Source Definition (by the Open Source Initiative)<ref name=OSD>Full text at {{cite web|title=The Open Source Definition|url=http://opensource.org/osd|website=OSI|accessdate=7 August 2014}}</ref>. This is a slightly more verbose definition (only headlines are provided, for brevity): <blockquote> # Free Redistribution @@ -571,10 +573,10 @@ This is a slightly more verbose definition (only headlines are provided, for bre # Distribution of License # License Must Not Be Specific to a Product # License Must Not Restrict Other Software -# License Must Be Technology-Neutral<ref name=OSD>Full text at {{cite web|title=The Open Source Definition|url=http://opensource.org/osd|website=OSI|accessdate=7 August 2014}}</ref> +# License Must Be Technology-Neutral </blockquote> -Although the two definitions are different, it is difficult – nay impossible ‒ to find a subset of licenses that qualify under one definition and are outside the other definition, therefore, for our scopes, we will treat Free Software and Open Source Software (i.e., software licensed under either definition) as synonyms. +Although the two definitions are different, it is difficult - nay impossible - to find a subset of licenses that qualify under one definition and are outside the other definition, therefore, for our scopes, we will treat Free Software and Open Source Software (i.e., software licensed under either definition) as synonyms. ==== Is that about it? ==== @@ -598,7 +600,7 @@ Lock-in is a phenomenon where previous choices reduce the freedom to make future Locked-in solutions might not allow achievement of the goal of transparency, because budgetary and time constraints work against it. -The Commission has analysed this phenomenon with a lot of care, although sometimes it proved itself unwilling to take the medicine it prescribed to others,<ref>{{cite web|title=European Commission renews controversial Microsoft contract|url=http://www.computerweekly.com/news/1280095047/European-Commission-renews-controversial-Microsoft-contract|accessdate=9 December 2014}}</reF> within Action 23 of the Digital Agenda. <ref>{{cite web|title=Action 23: Provide guidance on ICT standardisation and public procurement|url=http://ec.europa.eu/digital-agenda/content/action-23-provide-guidance-ict-standardisation-and-public-procurement|accessdate=8 August 2014}}</ref> The Commission identified lock-in as an important problem that can only be cured with the adoption of open standards ‒ although, as we have seen before, it failed to define properly what an open standard is and it showed a weak spine in taking the concept of openness where others took it. +The Commission has analysed this phenomenon with a lot of care, although sometimes it proved itself unwilling to take the medicine it prescribed to others,<ref>{{cite web|title=European Commission renews controversial Microsoft contract|url=http://www.computerweekly.com/news/1280095047/European-Commission-renews-controversial-Microsoft-contract|accessdate=9 December 2014}}</reF> within Action 23 of the Digital Agenda. <ref>{{cite web|title=Action 23: Provide guidance on ICT standardisation and public procurement|url=http://ec.europa.eu/digital-agenda/content/action-23-provide-guidance-ict-standardisation-and-public-procurement|accessdate=8 August 2014}}</ref> The Commission identified lock-in as an important problem that can only be cured with the adoption of open standards - although, as we have seen before, it failed to define properly what an open standard is and it showed a weak spine in taking the concept of openness where others took it. <blockquote> The Digital Agenda for Europe identified "lock-in" as a problem. Building open ICT systems by making better use of standards in public procurement will improve and prevent the lock-in issue. <ref>{{cite web|title=Open Standards|url=http://ec.europa.eu/digital-agenda/en/open-standards|accessdate=8 August 2014}}</ref> @@ -608,7 +610,7 @@ Therefore standards are a way to avoid lock-in. The Commission carefully avoids * A Communication titled "Against lock-in: building open ICT systems by making better use of standards in public" <ref>{{cite web|title=Against lock-in: building open ICT systems by making better use of standards in public|url=http://ec.europa.eu/digital-agenda/news/against-lock-building-open-ict-systems-making-better-use-standards-public|accessdate=8 August 2014}}</ref> -* A staff working document "Guide for the procurement of standards-based ICT — Elements of Good Practice" <ref>{{cite web|title=Guide for the procurement of standards-based ICT — Elements of Good Practice|url=http://ec.europa.eu/digital-agenda/news/guide-procurement-standards-based-ict-%E2%80%94-elements-good-practice|accessdate=8 August 2014}}</ref> +* A staff working document "Guide for the procurement of standards-based ICT - Elements of Good Practice" <ref>{{cite web|title=Guide for the procurement of standards-based ICT - Elements of Good Practice|url=http://ec.europa.eu/digital-agenda/news/guide-procurement-standards-based-ict-%E2%80%94-elements-good-practice|accessdate=8 August 2014}}</ref> Proceeding from the above, we can safely take a few conclusions: @@ -675,7 +677,7 @@ Formats for documents available for reuse 3. This Decision does not create any obligation for the Commission to translate the requested documents into any other official language versions than those already available at the moment of the application. -4. The Commission or the Publications Office may not be required to continue the production of certain types of documents or to preserve them in a given format with a view to the reuse of such documents by a natural or legal person.<ref>Commission Decision of 12 December 2011 on the reuse of Commission documents (2011/833/EU), OJ L 330, 14.12.2011, p. 39–42</ref></blockquote> +4. The Commission or the Publications Office may not be required to continue the production of certain types of documents or to preserve them in a given format with a view to the reuse of such documents by a natural or legal person.<ref>Commission Decision of 12 December 2011 on the reuse of Commission documents (2011/833/EU), OJ L 330, 14.12.2011, p. 39-42</ref></blockquote> While fully analysing the licensing of data goes beyond the scope of this study, and while the discussion on open standards also covers the ''way'' (or format) in which data are made available for non-intermediated consumption, we suggest that not only for transparency purpose, but in order to generally remove unnecessary confusion, that instead of '''licensing''' data, a '''waiver''' on database right is adopted as default legal release tool. <ref>One of the authors has explained this finding in {{cite web|title=FreeGIS.net Data Licence 1.0|url=https://freegis.net/documents/10157/14646/FreeGIS+data+licence+1?version=1.0}} [ITA], but see also {{cite web|last1=Morando|first1=Federico|title=http://leo.cineca.it/index.php/jlis/article/view/5461|url=http://leo.cineca.it/index.php/jlis/article/view/5461|accessdate=8 August 2014}}</ref> @@ -696,7 +698,7 @@ Meanwhile, the email system is threatened by all sort of attacks, because of its The email system, which is basically made of two server components (one for sending the outbound emails, one for receiving, storing and forwarding to the recipient) and one client component. The standard server components are: * the Simple Mail Transfer Protocol (SMTP)<ref>http://tools.ietf.org/html/rfc5321</ref> for relaying and sending the messages out; * and the Internet Message Access Protocol (IMAP)<ref>http://tools.ietf.org/html/rfc3501</ref> and the Post Office Protocol (POP)<ref>http://tools.ietf.org/html/rfc1939</ref> for accepting, storing and making available the inbound message. -The client component can be a local application, installed on a computer, or a web application ‒ often referred to as "webmail" ‒ which offers retrieving, reading, composing and sending services that replicate those of the local application, without the need to locally download the message. +The client component can be a local application, installed on a computer, or a web application - often referred to as "webmail" - which offers retrieving, reading, composing and sending services that replicate those of the local application, without the need to locally download the message. Some providers have developed proprietary extensions to these protocols and services, probably the most popular is the MAPI protocol that links together the client Microsoft Outlook (and other clients that implement the protocol) with Microsoft Exchange Server <ref>{{cite web|url=http://msdn.microsoft.com/en-us/library/cc307725%28EXCHG.80%29.aspx|accessdate=7 October 2014|title=Exchange Server Protocols}}</ref> , but also Google's Gmail and Apple's Mail use proprietary protocols, especially for mobile consumption of the email services. @@ -724,7 +726,7 @@ Encrypted email cannot be scanned by security systems and therefore they are lik Emails are complementary to the use of mailing lists, which are particularly useful discussion fora when discussion occurs by threading them via an email discussion. To do so certain rules in both RFC5321 (section 3.9) and RFC2369 <ref>http://www.ietf.org/rfc/rfc2369.txt</ref> should be implemented. -From a discussion in a Freedom Of Information access request <ref>A(2014)6785 "Interoperability with the EP's mail systems", available at http://www.asktheeu.org/en/request/interoperability_with_the_eps_ma</ref> it looks like any such request coming from an external mailing list is outright refused by the European Parliament's systems, on the grounds that the address is considered not genuine ("spoofed"). However, a message sent by a member of a mailing list to the mailing list and relayed by the mailing list to its subscribers (including the sender) needs to contain the from: and reply-to: address of the originating email message must not be modified, and obviously this would cause the address of the incoming email being considered not genuine (again, "spoofed") according to the criterion that all messages from a European Parliament address must come from a European Parliament SMTP server. However, this is absolutely not mandated by the standard protocols (it is indeed ''normal'' that an address comes from an SMTP in a domain different from the domain of the originating address) and impedes the users of the European Parliament system to participate in external discussion mailing lists. +From a discussion in a Freedom Of Information access request <ref>Request A(2014)6785 "Interoperability with the EP's mail systems", available at http://www.asktheeu.org/en/request/interoperability_with_the_eps_ma</ref> it looks like any such request coming from an external mailing list is outright refused by the European Parliament's systems, on the grounds that the address is considered not genuine ("spoofed"). However, a message sent by a member of a mailing list to the mailing list and relayed by the mailing list to its subscribers (including the sender) needs to contain the from: and reply-to: address of the originating email message must not be modified, and obviously this would cause the address of the incoming email being considered not genuine (again, "spoofed") according to the criterion that all messages from a European Parliament address must come from a European Parliament SMTP server. However, this is absolutely not mandated by the standard protocols (it is indeed ''normal'' that an address comes from an SMTP in a domain different from the domain of the originating address) and impedes the users of the European Parliament system to participate in external discussion mailing lists. This seems in stark contradiction with the principle of transparency. @@ -753,10 +755,10 @@ The use of open standards goes in the direction of enabling multiple parts to in Internet was born and has grown as a deeply decentralised ecosystem. Market forces may or may not lead to a less decentralised situation in the future, with concentration in the hands of few. The European Parliament, as any public institution, should be aware of the impact that its decision have in exposing the privacy of their citizens that interact with their services by forcing them to use technologies which are available only through certain operators. Or worse, through services directly in the hands of them. -Similar conclusions seem to have been taken by the European Parliament Resolution of 12 March 2014 on the US NSA surveillance programme, surveillance bodies in various Member States and their impact on EU citizens’ fundamental rights and on transatlantic cooperation in Justice and Home Affairs: +Similar conclusions seem to have been taken by the European Parliament Resolution of 12 March 2014 on the US NSA surveillance programme, surveillance bodies in various Member States and their impact on EU citizens' fundamental rights and on transatlantic cooperation in Justice and Home Affairs: <blockquote> -91. Takes the view that the mass surveillance revelations that have initiated this crisis can be used as an opportunity for Europe to take the initiative and build up, as a strategic priority measure, a strong and autonomous IT key-resource capability; stresses that in order to regain trust, such a European IT capability should be based, as much as possible, on open standards and open-source software and if possible hardware, making the whole supply chain from processor design to application layer transparent and reviewable;<ref>European Parliament resolution of 12 March 2014 on the US NSA surveillance programme, surveillance bodies in various Member States and their impact on EU citizens’ fundamental rights and on transatlantic cooperation in Justice and Home Affairs (2013/2188(INI)), adopted Wednesday 12 March 2014 in Strasbourg, available at http://www.europarl.europa.eu/sides/getDoc.do?type=TA&language=EN&reference=P7-TA-2014-0230</ref> +Takes the view that the mass surveillance revelations that have initiated this crisis can be used as an opportunity for Europe to take the initiative and build up, as a strategic priority measure, a strong and autonomous IT key-resource capability; stresses that in order to regain trust, such a European IT capability should be based, as much as possible, on open standards and open-source software and if possible hardware, making the whole supply chain from processor design to application layer transparent and reviewable;<ref>European Parliament resolution of 12 March 2014 on the US NSA surveillance programme, surveillance bodies in various Member States and their impact on EU citizens' fundamental rights and on transatlantic cooperation in Justice and Home Affairs (2013/2188(INI)), adopted Wednesday 12 March 2014 in Strasbourg, point 91, available at http://www.europarl.europa.eu/sides/getDoc.do?type=TA&language=EN&reference=P7-TA-2014-0230</ref> </blockquote> = Conclusions = @@ -871,5 +873,5 @@ 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":289}); +mw.config.set({"wgBackendResponseTime":283}); }</script></body></html>
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